State Supreme Court Reinstates Msgr. Lynn's Conviction

By Ralph Cipriano
Big Trial
April 27, 2015

http://www.bigtrial.net/2015/04/state-supreme-court-reverses-reversal.html


The Pennsylvania state Supreme Court today reinstated the conviction of Msgr. William J. Lynn on a single charge of endangering the welfare of a child.

On June 22, 2012, a Philadelphia Common Pleas jury convicted Lynn of endangering the welfare of a child, namely a former 10-year-old altar boy dubbed "Billy Doe" by a grand jury. Lynn, the former secretary for clergy for the Archdiocese of Philadelphia, became the first Catholic administrator in the country to go to jail for failing to adequately supervise a sexually abusive priest. He was sentenced on July 24, 2012 to a prison term of 3 to 6 years.

Lynn had served 18 months of his sentence on Dec. 26, 2013, when a panel of three state Superior Court judges unanimously reversed the monsignor's conviction and ordered that he be "released forthwith." The trial judge in the case, M. Teresa Sarmina, however, refused to allow Lynn's release after the D.A. argued that Lynn might flee to the Vatican. For the past 14 months, the monsignor has been held under house arrest in a Northeast Philadelphia rectory and according to Judge Sarmina's conditions must wear an electronic monitoring bracelet on his ankle at all times.

The 60-page opinion on behalf of four state Supreme Court justices doesn't automatically mean that the monsignor is headed back to jail to serve the remainder of his sentence. The case is now remanded to the state Superior Court where Lynn's lawyers can proceed with an appeal on several remaining trial issues. Such as whether Lynn received a fair trial in a case where Judge Sarmina let in 21 supplemental cases of child abuse in the archdiocese dating back to before the monsignor was born.

The district attorney, however, could preclude that appeal process by filing a motion with Judge Sarmina to revoke Lynn's bail. If the D.A. does file that motion to revoke bail, based on Judge Sarmina's previously demonstrated antipathy to Lynn, the monsignor had better have his toothbrush packed.

To Thomas Bergstrom, Lynn's lawyer, the "really troubling aspect" of the state Supreme Court opinion was the complete elimination of the element of criminal intent.

"It literally gives the prosecution the right to try someone for endangering the welfare of a child that he [Lynn] doesn't even know exists," Bergstrom said. Lynn left the office of secretary for clergy in 2004. Billy Doe came forward five years later, in 2009, to report an abuse that had allegedly happened back in 1998.

Bergstrom now has 14 days to decide whether he will ask the state Supreme Court to reconsider their opinion. Judging from the court's almost unanimous front and strong language, that may be a waste of time.

Bergstrom also could file a motion to have Lynn's bail continued while the state Superior Court examines other appeal issues raised about Lynn's original trial before Sarmina.

The Supreme Court opinion, written by Justice Max Baer, notes that in 1994, two years after he became secretary for clergy, Msgr. Lynn compiled a list of 35 archdiocese priests then in active ministry with previous complaints of sexual abuse of minors. The first priest on the list was Father Edward V. Avery, an alcoholic with three previous incidents of abuse involving the same altar boy beginning at age 12.

Avery gave the victim his first beer at age 12 and took the altar boy and others from the parish to his home in New Jersey, where he supplied them with more alcohol. The boys slept in a loft in Avery's home with several beds. According to archdiocese records, during two or three such encounters, Avery's hand "slipped to" the altar boy's crotch.

In two subsequent incidents, the boy got drunk and fell asleep in Avery's bed. When he awoke, Avery's hands were inside the victim's shorts. In a subsequent ski trip when the boy was 18, Avery joined the victim in bed and after he had fallen asleep, massaged the victim's penis until he ejaculated.

Under Lynn's supervision, Avery was transferred to St. Jerome's, a parish with a grade school where Avery lived while he was working as a chaplain at Nazareth Hospital.

The Superior Court's reversal of Lynn's conviction was based on the wording of the state's original 1972 child endangerment law. The law says, "A parent, guardian or other person supervising the welfare of a child under 18 years of age commits an offense if he knowingly endangers the welfare of a child by violating a duty of care, protection or support."

A previous district attorney, Lynne Abraham, and a previous grand jury, had opined in writing that the state's original child endangerment statute applied to persons who had direct contact with children, such as parents, teachers and guardians. Abraham and the previous grand jury said the law didn't apply to supervisors such as Lynn, who presided over priests who had direct contact with children.

In 2007, the state legislature, at the request of D.A. Abraham, amended the child endangerment law to include supervisors such as Lynn.

While the state Superior Court found that the original law did not apply to Lynn, the state Supreme Court disagreed. The only thing that mattered, the Supreme Court opinion stated, was "whether the evidence sufficed to prove [Lynn's] supervision of the welfare of a child."

"Focusing on the supervision element, the statute is plain and unambiguous that it is not the child that [Lynn] must have been supervising, but the child's welfare, including that of" [Billy Doe], identified in the Supreme Court opinion by his real initials, D.G.

"By requiring supervision of the child's welfare rather than of the child, the statute endeavors to safe-guard the emotional, psychological, and physical well-being of children," the state Supreme Court opinion states. "Simply put, [Lynn] did not safeguard the physical and moral welfare of D.G. by placing Rev. Avery, a known child molester, in a position to molest him."

Lynn, the state Supreme Court said, was the "point man" in the archdiocese regarding allegations of sexual abuse by the clergy. It was his job to protect the welfare of children, the state Supreme Court said. Instead, Lynn transferred Avery and did not tell the priest's new supervisor about his prior abuse. Lynn "took no action to ensure that the abusive priest was kept away from children at his new assignment," the state Supreme Court opinion stated.

Lynn also "did not warn parishioners of St. Jerome's about Rev. Avery, and informed [Avery's] former parishioners that his departure was for health reasons," the state Supreme Court wrote.

In the state Supreme Court opinion, the justices ominously broaden their attack on Lynn to go beyond the specific allegations involved in Avery's alleged abuse of Billy Doe.

Lynn "suppressed complaints and concerns by the colleagues" of abusive priests such as Avery, the Supreme Court opinion stated. And when contacted by law enforcement in cases involving abusive priests, Lynn "misrepresented facts to thwart their investigation of these priests and their crimes," the Supreme Court wrote.

The Supreme Court also wasn't swayed by the prior written opinions of D.A. Abraham and a previous grand jury, that the original child endangerment law didn't apply to Lynn.

"The decisions of neither the grand jury nor a prior District Attorney prove the meaning of the EWOC [endangering the welfare of a child] statute, which is determined by analyzing the plain language contained therein," the Supreme Court wrote. "What the members of the grand jury or the prior District Attorney believed about the scope of the statute is irrelevant."

The state Supreme Court also disregarded the legislature's rewriting of the child endangerment law in 2007 to include supervisors. "A subsequent change in language does not retroactively alter the legislative intent that is apparent in the plain language of the prior version of the statute," the state Supreme Court opinion stated.

Lynn's attorneys also argued that the original 1972 child endangerment law had never previously been applied to a supervisor. But that didn't impress any of the justices who heard that argument.

"We find this argument to be inconsequential and irrelevant," the state Supreme Court wrote.

"The Superior Court erred in holding that the EWOC statute required evidence of direct supervision of children and overturning [Lynn's] conviction on that basis," the state Supreme Court wrote.

In a five-page dissenting opinion, Chief Justice Thomas G. Saylor noted that the question is whether the original 1972 state law was "directed to a person who supervised other people who were responsible for supervising a child's welfare, since there is little evidence that [Lynn] directly supervised the welfare of any child at St. Jerome's Church or elsewhere."

The Crime Code states that its provisions should 'be construed according to the fair import of their terms," Saylor noted. But the Crimes Code also states that when the law contains an ambiguity, "it should be 'strictly construed in favor of lenity,'" Saylor wrote, "meaning that the ambiguity should be resolved in favor of the accused."

"It is true that [Lynn] was obligated to protect children from sexually abusive priests," Saylor wrote. "However, I find persuasive the Superior Court's explanation that this amounted to a duty on the part of [Lynn], which is to be distinguished from supervision."

Justice Saylor also noted that the two examples provided in the original state law -- parents and guardians -- "are in a very different position" from Lynn.

Justice Saylor, in his dissent, also noted that Lynn could not have been validly convicted as an accomplice, because the accomplice statute "requires an intent to promote or facilitate the offense in question."

Lynn "may have been substantially derelict in his obligations," the justice wrote, but when he read the record of the Lynn case, "there were no facts placed before the jury by which it could reasonably conclude [Lynn] affirmatively intended that children's welfare be endangered."

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