DA Disputes Evidence Was Held Back at Priest Trial

By John P. Martin
Philadelphia Inquirer
September 18, 2012

http://www.philly.com/philly/news/20120918_DA_disputes_evidence_was_held_back_at_priest_trial.html

Philadelphia prosecutors scoffed Tuesday at a new claim by defense lawyers that they withheld evidence that might have helped Msgr. William J. Lynn at his landmark child-sex abuse and endangerment trial.

The District Attorney's Office never received a formal statement or polygraph results suggesting that Lynn's codefendant, former priest Edward Avery, had lied when he admitted sexually assaulting an altar boy, according to Hugh Burns, chief of the appeals unit.

The accuser's testimony about the 1999 attack became a cornerstone of Lynn's trial.

"To say that we knew [Avery] was innocent was, I'm sorry, it's insane," Burns said. "What we know is that he formally pleaded guilty because he had evidence that made him guilty."

Burns' comments marked the office's first response since defense lawyers on Monday cited Avery in their latest bid to win bail for Lynn, the former secretary for clergy for the Archdiocese of Philadelphia.

Burns said he'll file a formal reply to the Superior Court motion within two weeks, but wanted to counter specious claims by the monsignor's defense.

Avery, 70, was a critical figure in the landmark case, even though the Common Pleas Court jurors never heard or saw him.

Four days before the trial opened in March, Avery pleaded guilty to sexually assaulting the 10-year-old boy at St. Jerome Church in Northeast Philadelphia and conspiring with Lynn to endanger children.

Three months later, jurors convicted Lynn of a single count of endangerment because he had let Avery live at the parish and celebrate Mass there in the 1990s despite knowing the priest had molested a boy in a previous assignment.

Lynn is now serving 3 to 6 years in state prison.

In their bail motion, attorneys Thomas Bergstrom, Allison Khaskelis and Alan Tauber said they learned only last month that Avery had passed a polygraph in which he denied assaulting, or even knowing, the former altar boy.

Bergstrom said one of Avery's lawyers told him about the polygraph.

The motion says Avery had agreed to admit to molesting another boy in the 1970s, but prosecutors insisted instead he plead guilty to the attack on the St. Jerome's boy.

In return, Avery got a 2 ? to 5-year prison term, one far shorter than what he faced if he had been convicted at trial, where prosecutors were prepared to show jurors evidence that he molested at least a half-dozen boys.

The monsignors' defenders said the district attorneys knew about Avery's denial and the polygraph results, but didn't share them because they were "driven by a zealous and single-minded desire" to convict Lynn, the first church official charged with covering up clergy sex-abuse.

They contend that violated longstanding court rules requiring government lawyers to turn over any evidence that could be considered exculpatory for a defendant.

Burns disputed the facts and the argument.

Guilty defendants routinely insist they are innocent at first, he noted. And he said prosecutors never saw any polygraph results - but that even if they had, they would not have been required to share them because the material came from a co-defendant, not uncovered by government investigators.

Besides, the appeals chief said, the results of a polygraph commissioned for a defendant by a defendant wouldn't have mattered.

"It would have made no difference," Burns said, "because polygraphs are not reliable - and that's why they are not admissible in court."

Lynn's lawyers say the information could have shaped their tactical decisions at trial.

The lawyers said they had considered cross-examining Avery's accuser, but that Common Pleas Court Judge M. Teresa Sarmina made it clear such a line of questioning would open the door for prosecutors to tell jurors about Avery's guilty plea.

So the man's testimony stood unchallenged.

Taleah Grimmage, one of the jurors, acknowledged Tuesday that the testimony from the former altar boy "definitely played a large part" in their guilty verdict against Lynn.

"He was the face, the voice" of Avery and Lynn's crimes, Grimmage said in an interview.

But the man's testimony wasn't the only evidence that swayed jurors, she said. Lynn's decision to let Avery live at the parish rectory and celebrate Mass there endangered other children as well, she said.

"A lot of us felt that if [the accuser] didn't exist, there were other potential children who did come in contact with Father Avery," Grimmage said.

The issue could ripple beyond Lynn's appeal. Avery had been listed as a potential witness in the January trial of the Rev. Charles Engelhardt and Bernard Shero, who are charged with sexually abusing the same altar boy at St. Jerome's.

The accuser also has a civil suit pending against Avery, Lynn and the Archdiocese of Philadelphia.

Contact staff writer John P. Martin at 215-854-4774, at jmartin@phillynews.com