'Dynamite Charge' for Jurors in Clergy Sex-Abuse Case

By John P. Martin
Philadelphia Inquirer
June 21, 2012

http://articles.philly.com/2012-06-21/news/32353062_1_jurors-deliberations-defense-lawyer

Lawyers call a judge's speech to a deadlocked jury a "dynamite charge," the workingman's nickname for a bid to blast through an impasse.

On Wednesday, the 12th day of jury deliberations in the 13th week of the child-endangerment and sex-abuse trial of two Archdiocese of Philadelphia priests, the dynamite sticks came out. It just wasn't clear who might get hurt.

Common Pleas Court Judge M. Teresa Sarmina's directive could dislodge a verdict in the landmark trial of a Catholic Church supervisor. Or it could implode a case a decade in the making.

"If I was the one of the prosecutors, I would be worried right now," said defense lawyer Will Spade, a former Philadelphia assistant district attorney who worked on the first investigation into alleged clergy sex abuse by area priests.

The jury of seven men and five women said it had reached a consensus on only one of the five counts against Msgr. William J. Lynn and the Rev. James J. Brennan. It did not identify which charge or defendant.

After being granted Thursday off so a juror could attend to a family matter, the panel is scheduled to regroup Friday morning. Already, its deliberations have outlasted any high-profile case in Common Pleas Court in decades. Each day increases the odds of an outcome that satisfies no one.

Advocates for clergy sex-abuse victims were seizing on the positive - that at least some jurors saw sufficient evidence to convict Lynn and Brennan - but also steeling themselves for the worst.

"Frankly, a hung jury on the majority of the charges is far better than a jury that acquits. If there have to be two trials, that's fine," said Marci Hamilton, a victims' advocate and lawyer who has frequented the trial and who represents accusers suing the archdiocese. "Looking at it from the side of survivors, an acquittal would be devastating."

Brennan, 48, is accused of child endangerment and attempting to rape a 14-year-old boy in 1996. The rape allegation is a routine sex-crime charge, the type that jurors hear and decide each week in courtrooms from Philadelphia to, say, Bellefonte.

Under state law, such cases can rise and fall solely on the believability of alleged victims. In this trial, Brennan's accuser spent nearly two days on the witness stand, insisting that the priest had tried to sexually assault him in 1996 and facing a withering cross-examination from a defense lawyer who called him a liar.

On Wednesday, the judge offered to let jurors rehear that testimony if it could help break their impasse. They didn't act on her offer.

Still, jurors may have settled on one of the two charges involving Lynn and Edward Avery, the defrocked priest who admitted sexually assaulting an altar boy in a Northeast Philadelphia church in 1999.

Prosecutors contend that Lynn, as archdiocesan secretary for clergy, conspired with Avery or other church leaders and endangered children by letting Avery remain and celebrate Mass at St. Jerome Church despite knowing he had molested a teen years earlier.

Jurors were never told that Avery pleaded guilty days before the trial to the sex assault and conspiracy. But they may have noticed that he had disappeared from the defense table and figured out the rest.

The other charges are related endangerment counts against Brennan and Lynn, making it unlikely jurors had resolved charges against one but not the other.

Only the judge will decide when jurors can quit. She could give them another charge, and compel them to keep meeting for a week. They were warned when chosen the trial could last up to four months, a mark not yet hit.

Or she could accept that 12 days of deliberations is enough and declare a mistrial, which would force prosecutors to decide whether to retry the case.

Deadlocked juries aren't rare. Researchers at the Center for Jury Studies at the National Center for State Courts in Virginia estimate that around 6 percent of all U.S. trials end with a hung jury, and that 4 percent end in mistrials for other reasons.

The studies show that hung juries are more common in cases with multiple defendants and multiple counts, as well as in urban courts. They also occur more often in cases where jurors face a mountain of complex evidence and are asked to apply legal concepts that typical citizens don't usually have to ponder.

Like conspiracy. Or endangerment.

"It doesn't surprise me when you're dealing with an offense like that, that it's a little harder for a jury to reach their decision," said Greg Hurley, an analyst at the Center for Jury Studies.

The instruction Sarmina gave jurors - known in Pennsylvania courts as a Spencer charge - was a gentle push to work harder, reminding them about the effort required to hold the trial and the unlikelihood that any other jury could do better. There are no hard data on the effectiveness of such charges.

"I've seen cases where it's worked," said Jack Meyerson, a veteran Philadelphia lawyer who has worked as a prosecutor and defense attorney. But, he added, "I would guess in more cases than not, it doesn't work."

As confounding, Meyerson said, is knowing that a juror may be holding out for reasons he or she will never share.

The jurors in the clergy case offered no clues after Sarmina gave them her Spencer charge before lunch on Wednesday. More than three hours later, they filed solemnly back into the jury box to be sent home for the day.

One male juror crossed his arms tightly as the judge began talking. At least three others stared blankly ahead.

After Sarmina discharged the panel, the packed courtroom sat in silence. Assistant District Attorney Patrick Blessington, chief of special investigations for the District Attorney's Office and leader of the trial team, was the first to jump up and march out the back door.

Though unusual, the length of the deliberations is not unprecedented.

It took a Common Pleas Court jury 12 days in October 1980 to convict one defendant and acquit another in the shooting death of city Police Officer James Ramp in the city's August 1978 confrontation with MOVE in West Philadelphia.

In August 2000, a Common Pleas Court civil jury spent 10 days deliberating before deciding that Monsanto Co. should pay $90 million to the state for selling defective and toxic PCBs that contaminated the Department of Transportation's Harrisburg headquarters after a 1994 fire.

The local record for deliberations appears to belong to a federal court jury that deliberated for 19 days in 2005 before convicting former City Treasurer Corey Kemp, two Commerce Bank executives, and two others on corruption charges.

That the jurors in the clergy case met for more than two weeks before signaling a deadlock suggests the problem is not one obstinate or unreasonable holdout, according to Hurley, a former defense lawyer.

"The only thing you can safely say when a jury has been out this long," he said, "is that there is some bona fide dispute going on back there."

Contact: jmartin@phillynews.com