Archdiocese Fights to Keep 12 Documents out of Lynn Trial

By John P. Martin
Philadelphia Inquirer
March 19, 2012

http://articles.philly.com/2012-03-19/news/31211068_1_archdiocese-fights-gag-order-attorney-client-privilege

The Archdiocese of Philadelphia fought Monday to keep private 12 documents that could reveal how its lawyers advised church leaders to handle claims that priests were molesting children.

The records include correspondence between the lawyers and Msgr. William J. Lynn, the church official criminally charged over his alleged role in responding to abuse allegations in the 1990s. Most concern the "development of policy" by the archdiocese, its attorney, Robert Welsh, said during a Common Pleas Court hearing.

Welsh opposed a bid by Lynn's lawyers to get copies of the documents. He asserted that they are protected by attorney-client privilege and that releasing them could hurt the archdiocese as it gears up to defend itself against a wave of lawsuits by alleged abuse victims.

The archdiocese "has a dog in the fight in the civil cases, and needs to protect its position," Welsh told Judge M. Teresa Sarmina.

The arguments came during a hearing that offered a glimpse of courtroom strategies that may be used when Lynn's landmark criminal trial - the first for a church official accused of covering up child sex-abuse - begins Monday:

Lynn, onetime secretary for clergy, pointing fingers at church lawyers and his superiors; his codefendants, former parish priests accused of molesting a boy, portraying their accusers as drug-addled criminals out to make a buck; and prosecutors fighting to limit attacks on witnesses and blunt defense attempts to confuse or distract jurors.

Sarmina reserved ruling on most of the matters, but she is expected to resolve them before trial opens. She has imposed a gag order barring the lawyers and defendants from discussing the case.

Much of the courtroom debate has involved a mountain of documentary evidence, including roughly 30,000 records the has archdiocese handed over to prosecutors and defenders in recent weeks.

The judge also has ordered church lawyers to be ready to turn over hundreds or thousands of pages from files that might ordinarily be protected by attorney-client privilege but that in certain circumstances could become admissible at trial. The 12 documents in dispute Monday were on such a list prepared by archdiocesan attorneys.

Welsh noted that Lynn is charged with child endangerment, one of the crimes in which state law prohibits defendants from arguing that they were acting under an attorney's advice. He also argued that the materials at issue aren't the kind that could prove Lynn's innocence, one of the exceptions to the privilege rule.

Lynn's lawyers, Thomas Bergstrom and Jeffrey Lindy, said that he wrote nine of the 12 memos in question when he worked in church administration and that it was unfair for the archdiocese to block his access to them days before trial.

They also said it was impossible without reviewing them to predict how significant the files might be.

"Within the last month, we have seen documents that very well may blow this case wide open," Lindy said.

He was referring to the discovery of a 1994 memo that suggested Cardinal Anthony J. Bevilacqua ordered aides to shred a list of priests suspected of sexual misconduct with minors.

Both sides said they would be open to letting the judge review the documents in a sealed proceeding and determine whether they should be turned over.

Prosecutors contend that Lynn, as secretary for clergy from 1992 to 2004, endangered children by recommending priests for assignments that gave them access to youths despite his knowing or suspecting that they would engage in abuse.

Among other requests, the prosecutors asked the judge to bar the defense from arguing that Lynn was the target of an unfair selective prosecution. Assistant District Attorney Patrick Blessington said the commonwealth always had described Lynn as one of several officials who deserve blame, even if he is the only one charged.

"It's always been our position that this was an archdiocese-wide policy which in and of itself was criminal in nature," Blessington said.

Lynn's lawyers said that they had no plans to argue selective prosecution, but that they couldn't expect jurors to consider Lynn's decisions in a vacuum. "I don't think we can run from the fact there's going to be evidence here that other people within the archdiocese knew about certain events and didn't do anything about it," Bergstrom said.

Lynn's codefendants, the Rev. James J. Brennan and Edward Avery, were parish priests in the 1990s when each allegedly molested a boy. Both have pleaded not guilty.

On Monday, their lawyers made clear they intended to challenge the accusers and their version of events. The two young men, both of whom are expected to testify, have troubled histories including drug abuse and criminal records.

Both also have filed lawsuits against the archdiocese seeking monetary damages.

Money "could be a motive for this case," said Brennan's lawyer, William Brennan.

Contact: jmartin@phillynews.com