Judge's Ruling Sets off Fireworks

By Ralph Cipriano
Philadelphia Priest Abuse Trial Blog
June 14, 2012

http://www.priestabusetrial.com/

It was another slow and foggy afternoon in Courtroom 304, as Judge M. Teresa Sarmina handled one question after another from an inquisitive panel of jurors.

Then, the jury in the Archdiocese of Philadelphia sex abuse case, now in their eighth day of deliberations, asked the judge this question: If the charge of EWOC -- endangering the welfare of children -- is the result of a criminal conspiracy, does it have to be the intent of a criminal conspiracy?

The judge said no, setting off a free-for-all among lawyers in the case, and a temper tantrum from a prosecutor while the judge just sat there and watched.

The question that the jury asked could be pivotal to reaching a verdict in this trial, hence the late-afternoon fireworks in Courtroom 304.

Msgr. William J. Lynn, the former archdiocese secretary for clergy, is accused of conspiring to endanger the welfare of children by deliberately keeping Father Edward V. Avery in ministry, even though the priest in 1992 was accused of sex abuse, namely repeatedly fondling the genitals of a 12-year-old boy back in the late 1970s.

Despite the allegations of abuse, Father Avery was given another assignment the following year, in 1993, at St. Jerome's parish. Later that same year, Father Avery performed oral sex in the church sacristy on a 10-year-old altar boy, and then forced the boy to perform oral sex on the priest.

Father Avery has pleaded guilty to involuntary deviant sexual intercourse with a minor, endangering the welfare of a child, and conspiring to endanger the welfare of a child. The jury, however, was never told that on the eve of trial Avery pleaded guilty, and received a sentence of 2 1/2 to 5 years in jail.

Lynn's defense team argued during trial that Lynn could not have foreseen that Father Avery would sexually abuse the 10-year-old altar boy because the priest had undergone a psychiatric evaluation and was diagnosed as not having a sexual disorder, but instead, a problem with alcohol. In response to the diagnosis, Lynn set up an aftercare program where Father Avery was undergoing weekly psychiatric counseling, as well as treatment from Alcoholics Anonymous.

So, in other words, if endangering the welfare of the 10-year-old altar boy was the result of a criminal conspiracy between Lynn and Avery, did it have to be the intent of the criminal conspiracy?

The judge answered that question by saying that "intent does not have to be criminal in nature." That prompted objections from the normally placid Thomas Bergstrom, one of Lynn's defense lawyers.

"It's got to be a knowing violation," Bergsrom insisted. Bergstrom told the judge she had just taken "criminal intent off the table" in a criminal trial, which he said was "a real problem" and a "mistake."

That set off Assistant District Attorney Patrick Blessington, who had been standing and waiting silently for Bergstrom to finish his objections. When Bergstrom interrupted Blessington, the prosecutor began yelling at Bergstrom to "sit down" and "shut up."

"I'm getting tired of these personal attacks," Bergstrom countered. But Blessington was so angry he couldn't stop yelling, as he argued that the defense lawyers in the case were continually abusing the legal process with last-minute, baseless objections.

Bergstrom and Alan Tauber, another defense lawyer, had raised their objections just as a court deputy was about to open a door to allow the jury back in the courtroom, so they could be dismissed for the day. Instead, the jurors had to wait while the lawyers duked it out.

"I've seen better manners in a barnyard," Blessington yelled at Bergstrom.

"This court is right on the law," Blessington continued yelling. "He [Bergstrom] is wrong on the law," the prosecutor told the judge. "Make him shut up!"

The judge, however, said nothing during Blessington's rage. It was in marked contrast to how the judge usually handles William J. Brennan, the loudest defense lawyer. Brennan has received plenty of admonitions from the judge, as well as a $250 contempt-of-court fine.

As the jury has continued to deliberate without a verdict, and asked question after question, lawyers in the case have been getting tense.

Earlier, Blessington noted that "this is the third or fourth time someone or a group somehow is hung up on this" among the jurors. Blessington was talking about the question of criminal intent on the charge of conspiracy to endanger the welfare of children.

One local legal commentator came down squarely on the side of the defense.

"Every crime has to have an act and an intent to break the law," said Fred Tecce, a former federal prosecutor and TV commentator. "That's just Law School 101. And instructing a jury that you don't have to have intent to break the law, I don't think it's appropriate."

Earlier, the judge told the jury that she was not going to accommodate their requests for more read backs of testimony.

The jury had requested a read back of Mark Bukowski's two days of testimony. He's the alleged victim who claimed that in 1996, when he was 14, Father James J. Brennan attempted to rape him. The jury had also requested the testimony of Bukowski's mother, as well as the transcript of an interview with Bukowski done by Jack Rossiter, a former FBI agent who was investigating sex abuse allegations on behalf of the church. The jury also asked for the testimony of the former 10-year-old altar boy who had been sexually assaulted by Father Avery.

"You're not gonna have all that stuff read to you, let me start with the bottom line," the judge told the jury on Thursday morning, shortly after they had reported to the courtroom. The judge said she did not want to replay the entire trial, and that it was time for the jurors to rely on their own recollections of the testimony, and impressions of the witnesses.

The judge said she would produce excerpts of testimony to clear up "some sticking points" among jurors. But when the jury retired to deliberate, they did not ask for any testimony excerpts from their original requests. Instead, they asked for five documents relating to Msgr. Lynn's handling of Father Thomas J. Wisniewski, who was accused in 1992 of sexually abusing a 15-year-old boy. The jury also asked for a report on the psychological evaluation of Father Avery.