O Brother, Where Art Thou?

By Ralph Cipriano
Big Trial
February 5, 2013

http://www.bigtrial.net/2013/02/o-brother-where-art-thou.html#more


Last week, the jury in the Archdiocese of Philadelphia sex abuse case sent a note to the judge, asking where was Billy Doe's older brother? And why didn't he honor a subpoena from the defense?

That set off a blame game amongst the judge and lawyers in the case trying to figure out who was responsible for the older brother of the alleged triple-rape victim not showing up in court.

They're still arguing about why the witness didn't show. But now we know why the defense wanted to call Billy's older brother as a witness.

On Jan. 9, 2012, Billy's older brother gave a signed, 14-page statement to Detective Joseph Walsh of the District Attorney's office.

The statement showed that the older brother, then a 26-year-old lawyer, had no direct knowledge about the three alleged rapes of Billy Doe. But the older brother, who had served as an altar boy and a sexton at St. Jerome's, contradicted Billy on several key elements of his story, such as who took care of the sacramental wine after Mass, whether priests were ever alone with altar boys, and whether the doors to the church sacristy at  St. Jerome's were ever kept locked.

It was 10 a.m. on Jan. 9,  2012, when Billy's older brother sat down in the district attorney's office to answer some questions.

Joe Walsh, a tall, white-haired detective, was the lead investigator on the district attorney's archdiocese sex abuse probe since 2002. Walsh is a former homicide cop with an old-school gentlemanly manner who's seen it all. In his handwritten report, Detective Walsh records the questions he poses to Billy's brother, and his responses, in a Q and A format.

  "Q. ... Are you related to [Billy]?"

  "A. Yes, he's my brother."

"Q. Did you go to St. Jerome's?"

"A. Yes, from kindergarten to 8th grade."

"Q. What high school did you attend?"

  "A. Archbishop Ryan. I graduated in 2003."

The brother, three years older, would have been in eighth grade at St. Jerome's, when Billy was in fifth grade. This was back in the 1998-1999 school year when Billy Doe claimed he was raped by Father Charles Engelhardt and Father Edward V. Avery. Billy's older brother graduated from Archbishop Ryan, the same school where Billy Doe, as a freshman, was kicked out for possession of marijuana and a pair of brass knuckles.

"Q. Did you go to college?"

"A. Yes, Kutztown University, I graduated in 2007. I then attended University of Drexel Law School from 2008 to 2011. I passed the bar exam October 2011."

The older brother is the adopted son of a Philadelphia police officer and a registered nurse who lived in Northeast Philadelphia. Billy is the younger biological son of the same parents. The older brother became a lawyer, Billy a drug addict who's been in and out of jail and 23 different drug rehabs.

"Q. When you attended St. Jerome's were you an altar server?"

"A. Yes, from fifth to eighth grade, until I graduated."

  "A. Did you serve Mass with Father Avery?"

"A. Yes, I don't remember how frequently -- or what Masses. But I did serve Mass with him."

"Q. Did you serve 6:15 a.m. Mass with Father Avery?"

"A. Yes. My mother or father would always drop me off. After Mass, they would come back and get me because they would have to get ready for work. They didn't stay for Mass. They would come back for me."

Billy lived less than a mile from St. Jerome's, but his parents would drive both sons to and from 6:30 a.m. Mass. That was also the testimony of Billy's mother during the trial. It's hard to believe such an attentive parent would be clueless about her son being raped three times by three grown men while he was just 10 and 11 years old.

  "When you served the 6:15 a.m. Mass, who was present?"

"A. The sexton -- There were two older men who were sextons. One of them would unlock the church doors around 6 a.m. The alter servers were supposed to arrive at church about 15 minutes before Mass began -- So, sometimes I arrived at 6 a.m. when the sexton did. When I went in, I would help out setting up the altar for Mass. The sexton would take care of the sacraments. We would go into the sacristy and put our robes on. The priest put on his vestments in a larger room in the sacristy and the altar servers room was separated by a doorway. The door was never closed -- it was blocked by a chair against it. Mass lasted about 20-30 minutes. After Mass, I would take off my robe and leave and meet my mom or dad ... [and they] drove me home. The sexton would remain and clean the altar and put the sacraments away in the sacristy."

Billy Doe's testimony was that he was alone in the sacristy with both Father Engelhardt and Father Avery on several occasions, including two separate rapes. Billy Doe claimed that Father Engelhardt caught him sipping sacramental wine. Billy testified that it was his job as an altar boy to dispose of the unused wine after Mass, Billy Doe testified. But his older brother told Detective Walsh that the sexton took care of the sacraments.

Billy's story is that when Father Engelhardt caught him sipping the wine, he gave him more wine, and then opened a briefcase and showed him pornography. Billy claimed a week after showing him the porn, the priest and altar boy served 6:30 a.m. Mass together. That's when Father Engelhardt, according to Billy, allegedly locked four doors of the sacristy, took off his clothes, ordered the boy to undress and then raped him.

Billy told three different versions of the alleged rape by Father Engelhardt. He told an archdiocese social worker that he had only one "session" with Father Engelhardt, and that the priest forced Billy to engage in oral sex, before flipping the boy over and pounded away for five hours of brutal anal sex. He told a detective in the district attorney's office that he had two sessions with Father Engelhardt, both involving masturbation. He told the grand jury he had one session with Father Engelhardt, and it involved oral sex.

In response, Billy testified during trial that he was high on drugs when he talked to the social worker from the archdiocese, and doesn't remember a thing. The prosecutor in the case, Assistant District Attorney Mark Cipolletti, suggested that the detective got the details wrong when he interviewed Billy.

According to the older brother's statement to Detective Walsh, however, the alleged rape by Father Engelhardt could have never happened. The two sextons were around before and after the altar boys showed up and left. Also, the doors of the sacristy stayed open, including one propped open with a door, the older brother told Detective Walsh.

"Q. Were you ever a sexton?"

"A. Yes. It began when I was in seventh grade. In addition to being an altar server, I was a part-time sexton. We picked up the keys to the church the day before Mass and I would unlock the church doors and set up for Mass. When I was a sexton, there were two additional altar servers who served Mass. After Mass it was my responsibility to clean up and put the sacraments away before I left. My parents would meet me and drive me home."

"Q. Did the church remain unlocked after the 6:15 Mass?"

"A. After Mass when I was the sexton, one of the other sextons would show up and give him the keys before I left. The church remained open."

"Q. What doors would you enter the church through?"

"A. The side doors of the church would be the first ones unlocked and the altar. Altar servers and sexton and priest would enter the church through those doors, then the doors in the rear of the church would be unlocked."

"Q. Were two altar servers assigned to each Mass?"

"A. Always two assigned to each Mass and sometimes three and on Holidays even more."

It was Billy Doe's testimony -- and it was also included in the 2011 grand jury report -- that Father Avery asked Billy to stay after Mass when the boy, then a fifth grader, was helping to set up the bell choir. 

"Billy was putting the bells away after choir practice when Father Edward Avery pulled him aside to say that he had heard about Father Engelhardt's session with Billy, and that his sessions with the boy would soon begin," the grand jury report said. "Billy pretended he did not know what Father Avery was talking about, but his stomach turned."

Three teachers from St. Jerome's, however, testified that only eighth graders were allowed on the maintenance crew that set up the bell choir. That's because the bells were heavy, and so were the cases they were carried in, and the tables they sat on.

"Q. Did your brother [Billy] serve 6:15 a.m. Mass?"

"A. Yes."

"Q. Did your parents drive [Billy] to ... Mass and pick him up after Mass?"

"A. Yes. As far as I know. I would stay asleep."

"Q. Did you ever switch Masses -- serving a Mass with [Billy]?"

"A. No."

"Q. How did you find out which Mass you were assigned to be an altar server?"

"A. Father Graham made up the schedule for I believe a month and I would give it to my mom and she put it on the refrigerator. [Billy] and I ... he was an altar server and I was in 8th grade would be on the same list."

[Father Joseph B. Graham, longtime pastor at St. Jerome's, died in 2011.]

"Q. If you wanted to switch serving Mass with another altar server what would you do?"

"A. I would need a good reason for my parents -- If I wanted to switch with someone -- Next I would have to get approval from Father Graham and call the altar server you wanted to switch with."

Billy Doe's testimony was that he frequently switched Masses with other altar servers to get away from Father Engelhardt and Father Avery. But his parents never testified to this, and obviously the older brother didn't recall anything about it either.

The prosecution relied on a former classmate of Billy's at St. Jerome's and his mother to testify that they recalled Billy frequently calling so he could switch Mass with her son.

"Q. Did any priest ever ask you to stay around after Mass and do something for them?"

"A. I was never asked to stay after Mass."

"Q. What would the sexton do after Mass ended?"

"A. He would put the sacraments away -- clean up around the altar -- make sure the candles were put out -- closed windows that were opened. The sexton was the last one out after Mass."

Finally, Detective Walsh got to the money question.

"Q. Did your brother [Billy] ever tell you he was sexually assaulted by Father Avery, Father Engelhardt or Mr. Shero?"

"No."

"Q. Were you and [Billy] close as brothers?"

"A. No. He was three years younger than me and we had different friends."

"Q. Did you introduce [Billy] to marijuana?"

A. No."

"Q. Did you smoke marijuana with [Billy]?"

"A. Yes. When he was in high school was the first time we smoked together."

Q. Do you know when [Billy] began smoking marijuana?"

"A. No."

"Q. How old were you when you smoked marijuana with [Billy]?"

"A. I was a senior in high school and he was a freshman."

"Q. Did you do any other drugs with [Billy]?"

"A. No. We smoked weed about a dozen times together. Just weed, no other drugs."

It was Billy Doe's testimony that he began smoking marijuana at 11, and he underwent a drastic personality change after being raped twice as a 10-year-old fifth grader and once as a 11-year-old sixth grader. His parents, however, testified that they noticed a change in Billy when he was a freshman, and got kicked out of Archbishop Ryan.

Detective Walsh asked Billy's older brother about the bell crew.

"Q. Were you a member of the bell crew at St. Jerome's?"

"A. No."

"Q. Did you know if [Billy] was a member of the bell crew? Or choir?"

"A. I don't know for sure."

"... Q. Did you and [Billy] have separate bedrooms?"

"A. Yes."

Let's get back to the argument over why Billy's older brother never appeared in court.

Last week, here's what happened after the judge read the jury's question about what happened with the older brother.

"He was never subpoenaed," Assistant District Attorney Mark Cipolletti told the judge. When defense lawyer Michael J. McGovern started to argue, the judge cut him off, saying, "You sent it first class, you don't know if he got it."
Billy's older brother "never ignored the subpoena," Cipolletti insisted. The prosecutor complained that McGovern deliberately brought up the subpoena in front of the jury during the trial one day by loudly asking if the older brother had shown up in court yet. When McGovern tried to speak again, the judge cut him off again, saying she was "upset when you did that and it's coming back to bite you now."

"There is no proof of service," Cipolletti told the judge. "That's what happens when you do things at the last minute."

The judge said she would write a note back to the jury, saying, "There's no evidence that he received a subpoena."

And that's how it ended before the verdict came in.

McGovern now says that back in late December or early January, the defense sent a subpoena by first-class mail to the older brother's home address, which was also listed as his business address, since he was unemployed at the time.

The older brother has since taken a job for a Pittsburgh law firm, McGovern said he was told by prosecutors. And when the defense inquired about Billy's older brother during the trial, they were told his firm had sent him out of town to Chicago. The defense then tried to schedule the witness to appear in court a few days later, but the judge declined to delay the trial, McGovern said. The defense lawyer says he regrets that Billy's older brother didn't testify.

"It would have been more reasonable doubt upon a mountain of reasonable doubt," said McGovern, who still maintains that his client, Father Engelhardt, is innocent. "But I don't know what this jury would have done with that."