Judge's Words Come Back to Haunt Her

By Ralph Cipriano
The Big Trial
January 9, 2014

http://www.bigtrial.net/2014/01/judges-words-come-back-to-haunt-her.html


She's a judge who's developed "a true ability to keep an open mind."


She strives to "advance the fair administration of justice." One of her "special strengths" is "the ability to look at both sides" of an argument,  balance competing interests, and "arrive at a well-reasoned and just decision."


She can think "outside the box." She's skilled at research, reading and writing. That's why "it's not infrequently" that the appellate courts "are praising" her opinions.


Who is this Wonder Woman in judicial robes? Is it Sandra Day O'Connor? Judge Judy Sheindlin? Nope, it's Philadelphia Common Pleas Judge M. Teresa Sarmina.


Back in 2008, Judge Sarmina touted her "special strengths" on a 15-page questionnaire for the Pennsylvania Bar Association when she briefly campaigned for the state Supreme Court.


The judge's claims are in stark contrast with a unanimous opinion delivered by a three-judge panel of Superior Court judges on Dec. 26th that reversed the 2012 conviction of Msgr. William J. Lynn. In their opinion, the Superior Court judges  described Judge Sarmina's trial summary in the Lynn case as conveying "not an accurate impression;" they also labeled her application of the law as "fundamentally flawed."


Sarmina, 61, served as a former Philadelphia assistant district attorney from 1984 to 1989, according to how she filled out the questionnaire. She was a Pennsylvania deputy attorney general from 1989 to 1993, working with a drug strike force; and a senior deputy attorney general from 1993 to 1995, working with a medicaid fraud control unit.


On Nov. 4, 1997, she was elected to a 10-year term as a Common Pleas Court judge. On Nov. 4, 2007, she was elected to a second 10-year term. But she had higher aspirations.


"Throughout my tenure on the bench, I have endeavored to advance the fair administration of justice," Judge Sarmina wrote to the Pennsylvania Bar Association in 2008. "I am now ready and prepared to have a  more far-reaching impact on the citizenry of Pennsylvania."


The Pennsylvania Bar Association asked, "What special strengths do you feel you possess that would particularly well qualify you for the position of judge or justice?,"


In her reply, Judge Sarmina talked about her experience of the prior 11 years, where she presided over "96 homicide trials, including 12 capital trials, three of which resulted in the imposition of the death penalty."


"I have developed a true ability to keep an open mind, to allow the litigants to present their case, to maintain a level 'playing field,' to follow the law, and to see that justice is done," Judge Sarmina wrote. "In this setting, it often takes courage to do the right thing, because there are very high stakes and great pressures that are brought to bear. Thus, my special strengths include experience, fairness, impartiality, courage and integrity, and the proper exercise of discretion."


It's hard to square her claims about fairness and impartiality with the Lynn case, where Judge Sarmina allowed into evidence 21 supplemental cases of sex abuse dating back to 1948, three years before Lynn was born. For the defendant, that's not exactly a level playing field.


Andrew Katz, the judge's law clerk, said in an email that he had passed along a request for comment to the judge, but there was no further response from either the judge or her clerk.


"During the course of my experience as a trial judge, in reviewing the case law as may concern a particular issue, I have learned that what very often must be done is to balance the competing interests in arriving at a decision, such as the police interests vs. the accused's interests, the state's interests vs. the rights of the citizenry," Judge Sarmina wrote on the bar association questionnaire.


"Balancing is also critical in my day to day work, such as in making evidentiary rulings, and in imposing sentence in each case where there is a conviction. Thus, one of my special strengths is the ability to look at both sides and to arrive at a well-reasoned and just decision."


Tell that to the half-dozen defense lawyers in the Lynn case. They lost one motion after another, and were dressed down time and time again while the prosecutor was allowed free reign.


"Having presided as a trial judge over thousands of cases over the courts of the past 11 years, I have learned when compassion is called for, and have the courage to be compassionate," Judge Sarmina wrote.


"I am able to think 'outside the box' and to be creative."


Maybe it is creative in the Lynn case to take a complete reversal on the law by a higher court, and a unanimous opinion that required the defendant to be "discharged forthwith," and turn that into a house arrest for the defendant, complete with an ankle bracelet, and weekly reporting to a parole officer.


On the Pennsylvania Bar Association questionnaire, Judge Sarmina said she was used to scrutiny from higher courts.


"The nature of the trial work which I have handled over the past five and half years, and of the stakes involved, has resulted in appeals being taken in almost every case that proceeded to trial," Judge Sarmina wrote. "Thus, I have had the opportunity to engage in research, and to read and write extensively and have developed the ability to be coherent and persuasive in my opinions."


She specifically mentioned having her work reviewed by the state Superior Court. According to Judge Sarmina, the judges on the Superior Court were big fans of hers.


"It is not infrequently that the Superior Court is praising my opinions and adopting them into their own decisions," Judge Sarmina wrote. "Thus, my special strengths include research and reading and writing, all key skills  for a Justice to possess."


Contrast that to what the Superior Court opinion had to say about Judge Sarmina's work in the Lynn case.


The Superior Court quotes Judge Sarmina's trial record. Judge Sarmina wrote that Lynn "did not include any information whatsoever" when he notified an archdiocese treatment facility in writing about Father Edward V. Avery's prior molestation of a teenage victim back in the late 1970s and early 1980s.


"When asked about these allegations, Father [Avery] did admit to taking the minor into a place serving alcohol while he was disc jockey," Judge Sarmina recounted in her trial summary about Lynn's interview where he confronted Avery with the victim's claims.


Lynn "also failed to mention that Avery admitted that" the prior abuse "could be" something that had happened, and that he had reportedly been under the influence of alcohol, Judge Sarmina wrote in her trial summary. "Though [Lynn] provided St. John Vianney with an incomplete, misleading referral, the facility still recommended inpatient hospitalization."


Those paragraphs of the judge's trial summary were flagged by the panel of Superior Court judges


"Here, the trial court's summary leaves the impression that [Lynn] did not indicate the real reason he referred Avery for an evaluation, or that he had misrepresented the reason as being that Avery had provided alcohol to minors," the Superior Court judges wrote.


"This is not an accurate impression, as it is unsupported, and, in fact, was contradicted by the record," the Superior Court judges wrote. "The first question on the referral form asked, 'What are the reasons for referral of this client for assessment?' [Lynn] responded, 'Allegations of sexual misconduct made by an adult make against Fr. Avery. The male was in his teenage years when the alleged actions took place.' "


The Superior Court also took Judge Sarmina to task for failing to properly interpret Commonwealth v. Halye. It's a case where the Superior Court in 1998 reversed a conviction for endangering the welfare of a child [EWOC] because the Commonwealth "failed in its burden of proving" the defendant "was in the position of supervising the children."


The state's original EWOC law, which went into effect in 1972, says:


"A parent, guardian or other person supervising the welfare of a child under 18 years of age commits a misdemeanor of the second degree if he knowingly endangers the welfare of a child by violating a duty of care, protection or support."


In Commonwealth v. Halye, a cousin visiting a boy's home snuck into the boy's bedroom; the boy's mother subsequently discovered the cousin sexually assaulting the boy.


"Despite the criminal nature of" the cousin's actions, "which support his convictions for involuntary deviate sexual intercourse, indecent assault and corruption of minors," the Superior Court decided, "there is insufficient evidence" that the cousin had a "role as a supervisor or guardian of the child to support the endangering the welfare of a child conviction."


"No testimony was presented to indicate" that the cousin "was asked to supervise the children or that such a role was expected of him," the Superior Court decided in the Haye case.


The Superior Court judges faulted Judge Sarmina for "having failed to consider the compelling implications of Halye," because that case "directly considered the element in question," namely whether the accused was "supervising the welfare of a child."


That's the key question in the Lynn case. Lynn's defense was that he never was "supervising the welfare of a child," and that he did not "knowingly" endanger the welfare of a child because he never met the alleged victim in his case, a former 10-year-old altar boy named Billy Doe.


The Superior Court also faulted Judge Sarmina for "having relied to an excessive extent on the broad mandate outlined by" another appellate case that did not consider the key question, namely whether the defendant had supervised the child.


Because of those two mis-applications of law, the Superior Court opinion says, "the trial court's endeavor at statutory construction of the pre-amended EWOC statute was fundamentally flawed in this case."


Regarding the state's original EWOC law, the Superior Court judges criticized Judge Sarmina for adding "ambiguity where none need exist."


"The plain meaning of the statute requires that, for a person who is not a parent or a guardian of the endangered child to be subject to criminal liability, he must at least be engaged in the supervision, or be responsible for the supervision, of 'a child,' "the Superior Court judges wrote.


"We reject the interpretation of the trial court, as endorsed by the Commonwealth," the Superior Court judges wrote, that the original EWOC law "does not require that an individual be a 'supervisor of a child' to fall under EWOC's umbrella of criminal liability.' "