Defense Lawyers Say Appeals In Lynn Case Could Go On For Years

By Ralph Cipriano
Big Trial
May 12, 2014

http://www.bigtrial.net/2014/05/defense-lawyers-say-appeals-in-lynn.html

Defense lawyers for Msgr. William J. Lynn say the state Supreme Court's decision to review the case could result in two more years of  appeals.

Defense lawyers are worried about a scenario where it's 2017, and Msgr. William J. Lynn is being tried for a second time.

By that juncture, Lynn will have served a year and a half in jail, and at least three years under house arrest.

"It could be unending," Thomas A. Bergstrom, Lynn's lead defense lawyer, said about future appeals in the case.

Philadelphia District Attorney Seth Williams is not commenting about the state Supreme Court's decision last week to grant the D.A.'s petition for a review of the Lynn case. But a former prosecutor in the district attorney's office says the state Supreme Court's review may be less about Lynn and more about sending a message in Pennsylvania that child abuse can no longer be covered up.

No matter who's right, it looks like the Lynn case won't be going away any time soon.

CASE HISTORY

From 1992 to 2004, Msgr. Lynn, 63, was the former secretary for clergy for the Archdiocese of Philadelphia. In that position, he was responsible for supervising priests accused of sexually abusing children.

Two grand juries in Philadelphia have investigated whether Lynn should have been charged with endangering the welfare of a child in connection with the archdiocese's sex abuse scandals.

The two grand juries, and two district attorneys, came to opposite conclusions.

In 2005, former District Attorney Lynne Abraham and a grand jury put it in writing that Lynn could not be charged under the state's original 1972 child endangerment law. D.A. Abraham and the 2005 grand jury declared that as much as they would have liked to put Lynn in jail, along with his old boss, Cardinal Anthony J. Bevilacqua, the original child endangerment law applied only to adults who had direct contact with children, such as parents, teachers and guardians. The law did not apply to Lynn, who was a supervisor of priests, and had no direct contact with children, the grand jury said.

As a result of the political fallout from that 2005 grand jury report -- which revealed horrendous abuses successfully covered up by two archbishops -- the state legislature, at the request of District Attorney Abraham, amended the state's child endangerment law in 2007 to include supervisors such as Lynn.

In 2011, a new district attorney, Seth Williams, and a new grand jury decided that Lynn could be charged under the old 1972 state law with endangering the welfare of a child. The new D.A. never explained the official flip-flop.

On July 22, 2012, Lynn was convicted by the jury of one count of endangering the welfare of a child, and he was subsequently sentenced by trial Judge M. Teresa Sarmina to three to six years in prison.

On Dec. 26, 2013, a panel of three state Superior Court appeals judges unanimously reversed Lynn's conviction, saying the state's original child endangerment law did not apply to him.

Lynn, who had served 18 months in prison, was released from jail Jan. 2, after the archdiocese posted a $25,000 deposit on Lynn's $250,000 bail. Under conditions of bail imposed by Judge Sarmina, Lynn was basically placed under house arrest. He was confined to living on two floors of the rectory of St. William's Church, a parish in the Lawncrest section of Philadelphia. Lynn has to wear an electronic ankle bracelet at all times. He also needs the approval of his parole officer to visit his doctors or lawyers.

ENTER THE STATE SUPREME COURT

District Attorney Williams appealed the reversal of Lynn's conviction to the state Supreme Court. On May 8, the state Supreme Court wrote that Williams'  "petition for allowance of appeal" had been granted by the state's highest court.

In issuing a brief order, the state Supreme Court noted that "the issues, as stated by the petitioner, are:"

"1. Was the evidence insufficient to prove endangering the welfare of children because defendant [Lynn] did not have direct contact with children?"

2. If Lynn could not be convicted as a principal in a conspiracy to endanger the welfare of children, "Was the evidence sufficient to convict him [Lynn] as an accomplice?"

Lastly, the state Supreme Court denied a defense "brief in opposition" to the D.A.'s request for a review.

"It's obviously disappointing," said Alan J. Tauber, a former member of Lynn's four-member defense team. But Tauber added, "it's not surprising that the state Supreme Court would want to weigh in on a case that has had a compelling social interest."

FOUR POSSIBLE SCENARIOS

Tauber outlined four possible outcomes of the state Supreme Court review:

-- The state Supreme Court could decide to affirm the Superior Court ruling that Lynn's conviction should be reversed; such a decision would immediately end the case .

-- Ronald D. Castile, the state Supreme Court's chief justice, is scheduled to retire at the end of this year because he is 70 years old, the state's mandatory retirement age for judges. If the Lynn case doesn't get to the state Supreme Court before Castille steps down in December, and the remaining six members deadlock 3-3, a tie means the Superior Court ruling would stand.

-- The state Supreme Court could decide to reverse the Superior Court. The case would then be remanded back to the Superior Court, which would have to decide on other appeal issues raised by Lynn's defense lawyers.

Chief among those issues was a decision by Judge Sermon at trial to allow 21 cases of supplemental sex abuse to be entered into evidence against Lynn, to show a pattern of conduct in the archdiocese. The supplemental cases dated back to 1948, three years before Lynn was born. The defense has long contended that Judge Sarmina's decision to allow the 21 supplemental cases in as evidence made it impossible for Lynn to get a fair trial.

-- The state Supreme Court could decide that the decision to grant a review in the case was "improvidently granted," and the Superior Court decision would stand.

[In other words like the old Gilda Radner Saturday Night Live skit, the state's highest court could simply say, "Never mind."]

But in the Lynn case, victims rights advocates feel the political winds are blowing the other way.

Even defense lawyers are feeling the breeze.

The state Supreme Court's decision to take the Lynn case shows that at least one member of the court, or several members, have "a keen interest in how the Commonwealth sees and frames the issues," Tauber agreed.

That could be bad news for Msgr. Lynn.

If the state Supreme Court overturns the reversal of Lynn's conviction, and sends the case back to the Superior Court, it would set the stage for "one and a half to two years" of more appellate litigation, Tauber estimated.

If the state Superior Court decides that Lynn deserves a new trial, the district attorney would most likely appeal that decision to the state Supreme Court. If the state Superior Court decides that Lynn doesn't deserve a new trial, Lynn's defense lawyers would most likely appeal that decision to the state Supreme Court.

"This is going to be going on for a while," Tauber said.

Meanwhile, Lynn would remain under house arrest. That's another flashpoint for more litigation.

Nothing would stop the district attorney at any point in the appeal process from filing a motion with Judge Sarmina to send Lynn back to jail.  Keep in mind, Judge Sarmina has been receptive to prosecutors' arguments that Lynn is a flight risk who might attempt to flee to the Vatican.

Lynn's lawyers could also go to court to try and amend Lynn's bail conditions.

TOM BERGSTROM'S TAKE

Bergstrom, Lynn's lead defense lawyer, still professes confidence that his client will ultimately be vindicated. He says he's looking forward to arguing the case before the state Supreme Court.

"It will be a challenge, but I think we'll prevail on the law, as we should," he said.

Bergstrom said he's not worried about the two issues raised by the district attorney that were quoted in the state Supreme Court's decision to review the case. The two issues are whether the evidence in the case was insufficient to prove that Lynn did not endanger a child because he had no direct contact with children; and whether there was sufficient evidence to prove that Lynn was an accomplice to the crime of endangering the welfare of a child.

Bergstrom, of course, believes that the Superior Court got it right, and that the language of the 1972 state law was clear that it didn't apply to Lynn. Also, state law regarding whether someone can be charged as an accomplice to the crime of endangering the welfare of a child requires that the accomplice act "with the intent of promoting or facilitating the commission of the offense" by soliciting another person to commit it, or by aiding a person "in planning or committing it."

Lynn's defense lawyers have argued that he could not have possibly known that Father Edward Avery was going to rape Billy Doe, the former 10-year-old altar boy who's the alleged victim in the case.

"It doesn't strike me that either of those issues are worthy of review," Bergstrom said. "I think this case may have been taken because the Supreme Court recognized that it was of huge public interest for such a long time. There were people in Arkansas reading about the Lynn trial."

About his client, who has been silent since his release, Bergstrom said, "He's disappointed but he's holding up fine."

Regarding the possibility of the district attorney arguing that his client belongs in jail, Bergstrom said, "legally that is an issue that I hope doesn't come up." But he did acknowledge that "theoretically, he [Lynn] could stay under house arrest until this thing is resolved."

That doesn't strike Bergstrom as fair.

"He [Lynn] is certainly is the most punished priest in the country for doing what he did, which is not touch a child."

A FORMER PROSECUTOR'S VIEW

Will Spade is a criminal defense lawyer. But he's a former assistant district attorney under Lynne Abraham who worked with the 2005 grand jury that exposed the depths of clerical corruption in the Philadelphia archdiocese. Spade argued unsuccessfully back in 2005 to charge Lynn, as well as Cardinal Bevilacqua, with endangering the welfare of a child.

So Spade was glad that Seth Williams filed an appeal.

"I was please to see that they accepted it," Spade said of the state Supreme Court. "I'm hopeful that they'll reverse the Superior Court" and "affirm the conviction and sentence" of Lynn.

But Spade thinks there's a bigger issue at play here.

"I don't think its about punishing Msgr. Lynn anymore," Spade said. "He's been punished. It's about establishing law that will make any administrator or any bishop in the archdiocese think twice before they cover up anything else. The bigger issue is making sure we're clear that in Pennsylvania you can't cover this stuff up" any more.

THE LAST WORD

Jeff Lindy, a former defense lawyer for Msgr. Lynn, says it's a "fool's errand" to try and figure out what the justices on the state Supreme Court are thinking.

He believes if the appeals drag on, at some point, Lynn's current defense lawyers "will have an eighth amendment argument that you have to take him [Lynn] off house arrest."

[The Eighth Amendment of the Constitution prohibits excessive bail and fines, and cruel and unusual punishments.]

Seth Williams, Lindy said, "may never win this case," but he would be happy to have "Msgr. Lynn on house arrest until he passes away."

Lynn, Lindy said, is "still being punished for the sins of the Catholic Church."

Aside from the "peculiarities of the priesthood," namely celibacy, Lindy said, the archdiocese behaved the way any corporation or institution typically handles sex abuse -- they "swept it under the rug."

Like Bill Clinton's White House, or the Pentagon, or Penn State, the archdiocese of Philadelphia is guilty of covering up sex abuse, Lindy said.

"It's ludicrous," Lindy said about the continuing house arrest of Lynn. Regarding a petition to free Lynn, Lindy said, "They should file it now."

It won't get anywhere in the local courts, Lindy said, but eventually some federal judge will give Lynn a break when he realizes "this district attorney would keep Lynn under house arrest for the rest of his life."