Big MO Shifting As Defense Rests Case

By Ralph Cipriano
Philadelphia Priest Abuse Trial Blog
May 30, 2012

http://www.priestabusetrial.com/2012/05/big-mo-shifting-as-defense-rests-case.html

As the defense rested its case Tuesday in the Archdiocese of Philadelphia sex abuse trial, the momentum in the courtroom appeared to be shifting. The question is whether it had moved enough to matter.

A month ago, the prosecution appeared so far out in the lead, they were paring down witness lists, and playing it safe, as they strove to protect a big fourth-quarter lead. Sure there were problems with the Father James J. Brennan side of the case, but the evidence against Msgr. William J. Lynn seemed stacked so high the only question was when the monsignor went down, would that giant sucking sound take Father Brennan along with him.

But then Judge M. Teresa Sarmina, who had been pro-prosecution all the way, suddenly whacked two conspiracy charges off the prosecution's case. Next the defense stole the prosecution's alleged smoking gun -- that list of 35 abuser priests drawn up by Lynn and ordered shredded by Cardinal Bevilacqua -- and used that same evidence to show that Lynn may have been just a patsy.

Yesterday, the last shoe to drop was Assistant District Attorney Patrick Blessington's anti-climactic finish to his three-day cross-examination of Msgr. Lynn, a performance that was toned-down from the previous fireworks. By the time Blessington limped to the finish, it sure seemed like the prosecutor had run out of steam. That's the risk you take when you stretch a cross over three days, but maybe the prosecution is still so far ahead, it won't matter.

The jury may decide that what happened to children in the archdiocese was so horrific that somebody has to pay. It may not matter that the district attorney's office sent the jury the equivalent of a corporal and a private to pay for the sins of an marauding army that evidence in the case showed had been raping and sexually abusing innocent children since 1948.

After all, the prosecutors couldn't dig up the most recent general who oversaw the most recent crime sprees, and they didn't bother to charge anybody else in that general's high command who's still around, and make them answer for what happened. Maybe the jury will be too angry to notice the bait and switch. But that doesn't mean the rest of us have much to cheer about.

On Wednesday, the jury will be home, but lawyers from both sides will meet in court to argue over the wording of the judge's jury instructions over the charges in the case against Msgr. Lynn and Father Brennan. Closing arguments are scheduled for Thursday, and the case may go to the jury as early as Friday.

The national media has descended on Philadelphia, as excitement builds over the fate of Msgr. Lynn, the highest-ranking Catholic administrator in the country to be criminally charged in the clerical sex abuse epidemic. In recent days, The New York Times, National Public Radio and CBS news have all descended on Courtroom 304 in the Criminal Justice Center. Why if the story gets any bigger, maybe even Fox 29 will show up.

The first order of business dealt with Tuesday was that Judge Sarmina had to rule on a motion filed over the weekend by the defense that attempted to whack two more charges from the prosecution case. This time, the defense targeted two endangering the welfare of children [EWOC] charges, one against Msgr. Lynn, and one against Father Brennan, over Father Brennan's alleged 1996 attempted rape of then 14-year-old Mark Bukowski. [The judge had recently struck down charges that Lynn and Brennan had engaged in a conspiracy to endanger the welfare of children.]

To anybody who could do basic math, the defense motion sure seemed to make sense. The law in effect in 1999 said that Pennsylvania residents had until two years after their 18th birthday to file EWOC charges. Bukowski turned 18 on Sept. 23, 1999, meaning that the commonwealth had until September 2001 to file the EWOC charges. The current EWOC charges were not filed until 2010, so it wasn't even close.

The prosecution, however, in its brief argued that Father Brennan had been engaged in a "continuing course of conduct" of grooming Bukowski that went on for 10 years, ending in 2006, when Father Brennan was removed from ministry. Thus according to the commonwealth's argument, the victims in the case not only included Bukowski, but "children both named and unnamed, that were supervised by Father Brennan."

The only problem is that no other victim has come forward to say that Father Brennan had abused him, despite a massive search by law enforcement authorities and the archdiocese. The campaign included articles in area newspapers, television ads, and 10,000 letters mailed to former parishioners and children formerly supervised by Father Brennan.

Alan J. Tauber, one of Msgr. Lynn's defense lawyers, told Judge Sarmina that the Commonwealth's miss of the statute of limitations was so egregious that it should trouble the judge's conscience. That, of course, was fighting words to anybody wearing robes. But Tauber pressed on, arguing that the judge should be "compelled to rule" that the two EWOC charges be tossed.

Assistant District Attorney Blessington dismissed the motion to dismiss as "another last-ditch attempt, a Hail Mary if you will" that was "out of bounds."

The judge sided with Blessington, ruling that "the motion to dismiss is denied," handing the Commonwealth a victory that would trouble any civil libertarian type. This on top of a prosecution case that went on for eight weeks, claiming that Msgr. Lynn and Father Brennan had entered into a conspiracy to harm children, even though the prosecution never presented one shred of evidence to support that. Observers were left to wonder why Father Brennan was even in the courtroom most days, as the vast majority of evidence in the case, and some 43 out of 48 prosecution witnesses, had absolutely nothing to do with him.

If the prosecutors believed Father Brennan attempted to rape Mark Bukowski, why on earth wasn't he tried separately? It would have been over in two weeks. With no connection between Father Brennan and Msgr. Lynn, it made absolutely no sense to try the two together.

After the judge made her ruling, Blessington continued his cross-examination of Msgr. Lynn. Blessington inquired about a 1992 memo from the secret archive files written by Lynn that advised Father Robert L. Brennan [no relation to defendant James J. Brennan] to "keep a low profile" after he had been accused of inappropriately touching some 20 boys.

The investigation of Father Robert L. Brennan was conducted by Msgr. James E. Molloy, with Lynn working as his assistant. Blessington wanted to know why Lynn and Molloy were telling that other Father Brennan to keep a low profile.

"We were telling him we were concerned about him, that he might be a danger to someone else," Lynn told the dubious prosecutor. "Everything was done in that context."

Blessington noted that that concern was not expressed in Lynn's memo. "It's not documented anywhere," the prosecutor said. "You're just making it up now."

"Absolutely incorrect," the monsignor responded.

Blessington brought up the case of Father Michael J. McCarthy, who, besides molesting teenage boys, moonlighted as a travel agent. Blessington wanted to know why Msgr. Lynn didn't remove Father McCarthy from ministry after he was accused of such offenses as masturbating a teenage boy who slept over the priest's beach house in his bed.

"I couldn't do anything," Msgr. Lynn responded. The monsignor said that the cardinal had sent Father McCarthy out for psychiatric evaluation, but kept the results of that evaluation to himself. Only the cardinal had the power to remove McCarthy, Lynn said, and it couldn't be done without a diagnosis of pedophilia.

What got Father McCarthy into real trouble was when a rival travel agent complained to the cardinal that the priest was horning in on a business whose owner had just made a $25,000 donation to Catholic Life 2000.

The complaint by the rival travel agent prompted the cardinal in 1993 to order Lynn to do a "high priority" investigation of Father McCarthy. Lynn searched the priest's rectory room and found 13 gay porno videos and travel brochures promoting a gay cruise to Thailand.

Lynn argued that the two issues, Father McCarthy's alleged abuse of boys, and his travel business, "were not connected at all."

But when Blessington dared the monsignor to cite another case where he had done so much investigating so quickly, the monsignor said he couldn't recall one "off the top of my head."

When Blessington pressed the issue, Lynn smiled and said, "If I start naming cases you'll start saying I'm lying again."

Earlier in his cross, Blessington had repeatedly calling Lynn a liar, up to 14 times in one hour, or once every four minutes. But during 90 minutes of questioning Tuesday, Blessington only accused Lynn of lying a few times.

After Lynn found the gay porno and gay cruise brochures, Father McCarthy was sent out for another evaluation. This time he was diagnosed to have "homosexual ephebophilia," an attraction to post-pubescent boys. In the secret archive files, the therapists who treated Father McCarthy cited his "sexual acting out behavior" with eight high school boys who stayed over his beach house, where the priest slept naked with his overnight guests.

Lynn said the problem was that Father McCarthy was challenging his diagnosis, and under canon law, he could have won an appeal to the Vatican. In the secret archive files, the monsignor paid lip service to checking up on the original diagnosis, but when he called the priest's therapists, they said they got it right the first time.

"I didn't expect the diagnosis would change," Lynn said. "I was trying to keep him out of ministry."

When Blessington challenged how Msgr. Lynn handled another pedophile priest, Msgr. Lynn responded, "I did much more than had been done previously."

Blessington read the names of accused abusers on Lynn's famous list of 35 priests. Lynn told the prosecutor that he gave that list "to my superiors."

"Now we're back to blaming the bosses," Blessington said.

Lynn replied that Cardinal Bevilacqua "wasn't going to remove anybody without a diagnosis" of pedophilia. "I was trying to do the right thing."

Finally, after three days of cross-examination, Blessington asked Msgr. Lynn about his co-defendant, Father James J. Brennan. A memo had gone to the monsignor that Father Brennan had a guest staying over in the guest room of his priestly residence at Divine Providence Village.

Meanwhile, Father Brennan in his own letters to the archdiocese had talked about how he had been unable to faithfully serve parishioners, and like the prodigal son, had squandered his fortune on riotous living.

Didn't language like, plus the roommate, set off any red flares, Blessington asked.

No, the monsignor said, that's the way priests talk when they're asking for a leave of absence.

Blessington asked about Father Edward V. Avery, a co-defendant who before the trial began, pleaded guilty to involuntary deviant sexual intercourse with a 10-year-old altar boy. When the priest was shipped out for psychiatric evaluation, Lynn told a parishioner the priest was resigning for health reasons.

That was a lie, wasn't it, Blessington asked, showing flashes of his former anger.

"That was the not a true statement in the letter," Lynn acknowledged. Once again, Lynn blamed the false statement on the late cardinal, who had a policy of not allowing the monsignor to tell parishioners the real reason why abuser priests were taken out of ministry.

"I was not allowed to explain why the priest was not at the parish," the monsignor said.

"Who was doing the bidding of the cardinal at every turn of the road?" Blessington countered.

"I was doing what I was supposed to do," Lynn replied. The monsignor said that Father Avery was transferred to another parish where "he did not have ministry with children."

That angered Blessington, who pointed out that at his new assignment at St. Jerome's, Father Avery occasionally said Mass a couple times a year to up to 600 to 750 children at a time. Father Avery was also allowed to act as a disc jockey at a grade school dance, where he could "act like a pied piper," Blessington said.

"It happened once and it was stopped," Lynn told the jury about the dance.

Lynn conceded, however, that when Father Avery raped the ten-year-old altar boy, it was the one time on his watch that an abuser priest under his supervision had abused a child.

"Now you're sorry, after three days" of cross-examination, Blessington said.

"I was sorry when it first happened," Lynn said.