Defense Lawyers Argue Judge Should Give Monsignor Minimum Sentence and Let Him out on Bail Pending Appeal

By Ralph Cipriano
Philadelphia Priest Abuse Trial Blog
July 21, 2012

http://www.priestabusetrial.com/2012/07/defense-team-says-monsignor-poses-no.html

Msgr. William J. Lynn poses "no danger to the public," his defense lawyers argue, so putting him away for a maximum prison term of seven years would amount to "cruel and unusual punishment." Lynn's defense lawyers are also asking that Lynn be freed from jail pending an appeal.

On Tuesday, Lynn will stand before Judge M. Teresa Sarmina, and be sentenced for his June 22 conviction on a third-degree felony of endangering the welfare of a child. He is facing a prison term of between 3 1/2 to 7 years. Assistant District Attorney Patrick Blessington has already said that the prosecution will seek the maximum sentence of seven years for Msgr. Lynn.

Lynn's defense team, however, argued in a sentencing memo filed Wednesday that Lynn has never touched a child, and that "no reported Pennsylvania case has ever dealt with a situation where an individual had been convicted of EWOC [endangering the welfare of a child] without ever knowing the child that he or she was accused of endangering."

"Msgr. Lynn has never harbored any intent to harm a child," Lynn's lawyers argued. "To the contrary, letters from friends, teachers, fellow priests, nuns and family members extol Msgr. Lynn's love and respect for children and their safety, offering in supporting innumerable examples of the care and protection he showed the children he has come across."

"What is more, the lengthy legal ordeal, which started for Msgr. Lynn in 2002, with the onset of the first grand jury, has raised his awareness of sexual abuse of children in the Catholic community and taught him to act with an overabundance of caution in his subsequent job as pastor of St. Joseph's parish in Downingtown," wrote defense lawyers Thomas A. Bergstrom, Jeffrey M. Lindy, and Alan J. Tauber.

"The teachers of St. Joseph's elementary school and the parish parents have written of the rigid Safe Environmental program that Msgr. Lynn has instituted at the parish," the defense lawyers wrote. "Many parents have insisted that they would entrust their children to Msgr. Lynn's supervision without hesitation. To say that Msgr. Lynn has not adopted and internalized the lessons of the grand jury and his subsequent trial would be absurd. The last ten years of his life were a time of reflection, penance and rehabilitation."

"Msgr. Lynn, now 61 years of age, has served as a priest for 36 years," the lawyers wrote. "He has never inappropriately touched a child. To the contrary he has led a life of selflessness, devoted to service to his fellow men."

Lynn was convicted of endangering a former 10-year-old altar boy, who was sexually abused by Father Edward V. Avery. Avery has already pleaded guilty to involuntary deviant sexual intercourse with a minor, conspiracy, and endangering the welfare of a child. He was sentenced to 2 1/2 to five years in prison, a sentence that Lynn's defense lawyers argue should not exceed Lynn's sentence.

Lynn's offense was allowing Father Avery to continue in ministry after he had been accused of sexually abusing another victim in the 1970s. After he received the report of the previous abuse from a former victim who came forward in 1992, Lynn confronted Avery, who denied it. Lynn sent Avery off for nine months of hospitalization and psychiatric evaluation, where he was diagnosed as an alcoholic, but not a pedophile.

"The treatment team indicted to Msgr. Lynn that Avery was fit for a return to ministry," the lawyers wrote. "As a result, Msgr. Lynn had no choice but to recommend Avery's return to ministry," the lawyers wrote, because Cardinal Bevilacqua had a policy that only priests "diagnosed with pedophilia and ephebophilia were permanently removed form ministry."

Msgr. Lynn helped put together an aftercare integration team, which included Father Graham, the pastor of St. Jerome's parish," the defense lawyers wrote. Avery was under the care of two therapists, and also attended weekly AA meetings.

"In sum," the lawyers wrote, "Msgr. Lynn did not suspect, and had many valid reasons not to suspect, that Avery was anything but rehabilitated. He certainly never foresaw the tragic events leading up to" the abuse of the 10-year-old altar boy.

Lynn recommended to Cardinal Bevilacqua that Avery be allowed to continue in ministry as a hospital chaplain, and reside at St. Jerome's Parish, where he sexually abused the 10-year-old altar boy.

"Incarcerating Msgr. Lynn, especially for a prolonged period of time, can do no good," the defense lawyers conclude. "Msgr. Lynn has already suffered eighteen excruciating months of public scrutiny, shaming and vilification. A sentence of time served, probation, work-release, or house-arrest, would ensure that Msgr. Lynn can still use his priestly gifts to improve the lives of those around him."

In support of their argument, the defense lawyers submitted statistics that showed of more than 3,000 people sentenced in Pennsylvania for EWOC between 2005 and 2010, the mean minimum sentence imposed was 20 months, and the mean maximum sentence imposed was 61 months. On Tuesday, Lynn faces a minimum sentence of 42 months, and a maximum sentence of 84 months.

In response, Barbara Dorris, a spokesman for SNAP, the Survivors Network of those Abused by Priests, said that Lynn had engaged in "unprecedented, shameful deceit, callousness and recklessness about children's safety."

"Once again, a high-ranking cleric is saying, "I'm different from and better than the rest of you,"

Dorris said. "Once again, a top church official wants special treatment, even though he [was] basically putting children -- hundreds of them -- in harms's way and helping perhaps dozens of predators stay hidden, employed and around kids."

Lynn's defense lawyers have also filed a separate motion seeking bail pending an expected appeal of Lynn's conviction, and what the defense says is an unusual likelihood that Lynn will be successful on appeal.

In their motion, Lynn's defense lawyers argue that the monsignor "was convicted of child endangerment based upon a novel theory of liability that held him criminally responsible for inadequately supervising a priest who was alleged to have sexually abused a child and who exposed others to a similar danger."

"Defendant Lynn has argued to this Court that the EWOC count [endangering the welfare of a child] should have been discharged because he is not a member of the class of persons covered by the statute," the defense lawyers wrote. "This argument will be one of Defendant Lynn's principal claims on appeal and there is a substantial possibility that the Pennsylvania appellate courts will agree and discharge this case."

Lynn's defense lawyers have argued that under the old EWOC statute, since amended, that Lynn did not fit the definition of a supervisor of child care under the law. It's a fascinating argument, as the past two Philadelphia district attorneys disagreed completely over the issue of whether the old EWOC law applied to Lynn.

"The high potential for appellate discharge is surely no less than a 50/50 proposition as exemplified by the prosecutor's own recent contradictory interpretations of the [EWOC] statute," the defense lawyers wrote. The lawyers point out that a 2005 grand jury report, issued under former District Attorney Lynne Abraham, decided that the "archdiocese hierarchy [was] beyond the scope of the EWOC statute. Then, a second grand jury in 2010, under a new district attorney, Seth Williams. "recommended that Defendant Lynn be charged under that self-same statute."

"While Defendant Lynn submits that the likelihood of appellate relief is far higher than that, even a fifty percent chance that he could serve a prison sentence where appellate discharge looms so high manifestly warrants release pending appeal," the defense lawyers wrote. In other words, Lynn could serve a minimum 3 1/2 year sentence before his appeal case is heard.

"The chance of unjust incarceration is simply too great not to grant bail," the defense lawyers argue. They maintain that Lynn, currently being held in jail without bail, poses no flight risk. The defense lawyers also ridicule the idea that the monsignor, if freed, might flee to Vatican City:

"Defendant Lynn poses no risk of flight," the defense lawyers wrote. "Lynn has surrendered his passport. His picture, name and story have been published for the past several months in the media across the country as well as abroad. He is without property or wealth. There has been some fanciful suggestions that Defendant Lynn could flee the country and seek refuge in the Vatican which has no extradition treaty with the United States."

Judge Sarmina previously asked the district attorney to research whether they could draw up a legal waiver of extradition for Lynn to sign, in the event that she let him out of jail under house arrest, and he fled to the Vatican. Lynn offered to sign such a waiver, but defense attorney Blessington said his research showed such a waiver would be worthless, even if signed by Lynn.

"Though technically possible, such an action is far-fetched," Lynn's defense lawyers wrote of the monsignor's possible escape to the Vatican. "Leaving aside the practical impediments to such a journey, and that such a move would be completely contrary to Defendant Lynn's proven character, legal interests and future ambition, there is absolutely no basis to believe that the Vatican would harbor an American fugitive," the defense lawyers wrote. "A search of all reported legal cases in the United States failed to turn up even once instance where the Vatican harbored an American fugitive. The suggestion of refuge in the Vatican cannot be given any serious credence."