D.A. Files Motion to Send Msgr. Lynn Back to Jail

By Ralph Cipriano
Big Trial
April 28, 2015

http://www.bigtrial.net/2015/04/da-wants-to-send-lynn-back-to-jail.html

Assistant D.A. Patrick Blessington

A day after the state Supreme Court reinstated Msgr. William J. Lynn's conviction, the district attorney filed a motion in Common Pleas Court seeking to revoke Lynn's bail and send him back to jail.

"Consistent with its prior rulings, this Court should, once again, revoke Defendant's bail, thereby remanding him to the service of the remainder of his sentence," said the motion filed today by District Attorney R. Seth Williams and Assistant District Attorney Patrick Blessington, who originally prosecuted Lynn.

Not so fast, said Thomas A. Bergstrom, who is Lynn's lawyer. Bergstrom filed a response to the D.A.'s motion in Common Pleas Court today stating that the D.A. has applied to the wrong court. Any argument over Lynn's bail should be dealt with in state Superior Court, Bergstrom asserted.

Common Pleas Court does not have jurisdiction over the case, Bergstrom argued. After the state Supreme Court reinstated Lynn's conviction, the Supreme Court specified that the case was to be remanded within 14 days back to the state Superior Court, where a number of appeal issues from Lynn's original trial are still pending.

The monsignor is currently under house arrest at a North Philly rectory, where he is confined to two floors and has to wear an electronic monitoring bracelet on his ankle at all times. In the battle over which court will decide whether Lynn remains on bail, however, the district attorney at present appears to have the upper hand. The D.A.'s motion to revoke Lynn's bail is scheduled for a hearing at 9 a.m. Thursday in Common Pleas Court before Judge M. Teresa Sarmina, who presided over Lynn's trial.

On July 24, 2012, Common Pleas Court Judge Sarmina sentenced Lynn to three to six years in jail after his conviction by a jury on one count of endangering the welfare of a minor. Lynn had served 18 months of his sentence when the state Superior Court on Dec. 26, 2013 reversed his conviction and ordered him "released forthwith."

But the trial court did not go along with that request. On Dec. 30, 2013, Judge Sarmina granted the bail request for Lynn under the conditions for house arrest. Lynn has spent the past 16 months under house arrest.

On Monday, the state Supreme Court overturned the Superior Court's reversal of Lynn's conviction. A day later, the D.A. pounced.

In his response to the D.A.'s motion, Bergstrom wrote that he is going to file a motion in state Superior Court to have the case returned to the same panel of three Superior Court judges that reversed Lynn's conviction. Bergstrom also plans to file a motion with that same panel to keep Lynn out of jail on the original $25,000 bail deposit of 10 percent imposed by Judge Sarmina.

"Any application for bail revocation or otherwise should be presented to the Superior Court as the Court on remand," Bergstrom wrote. "The trial court is without jurisdiction to consider the current bail motion."

"Mmultiple and undeniable appellate issues remain" for the Superior Court to consider, Bergstrom wrote. Such as whether the lower court "abused its discretion by improperly admitting evidence of 21 instances of bad conduct by other priests dating back as late as the 1940s."

Other appeal issues for the Superior Court to consider include whether "the trial court improperly charged the jury as to a number of issues including the duty of care element" as part of the crime of endangering the welfare of a child, Bergstrom wrote. Another appellate issue is whether the "lower court abused its discretion by denying mistrial motions based on prosecutorial conduct," Bergstrom wrote. The Superior Court didn't consider those issues because they decided the state's original child endangerment law did not apply to Lynn because he did not fit the definition of an "other person supervising the welfare of a child."

"Those other issues are now ripe for review," Bergstrom wrote.

In his response to the D.A.'s motion to revoke bail, Bergstrom set the stage for further battles over the wording of the state's original 38-word child endangerment law of 1972. The law states: "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."

"In arriving at its decision, the [Supreme] Court made clear it was only deciding whether [Lynn] qualified as a supervisor of the welfare of the child." Whether [Lynn] owed a duty of care to a particular child was not addressed or considered by the [Supreme] Court."

Here's what the state Supreme Court had to say about the subject:

"Therefore, whether [Lynn] owed a duty of care to the children of St. Jerome's, or to D.G. [Billy Doe] in particular, is not an issue in this appeal and was not encompassed without grant of allowance of appeal. Rather, the legal issue we address concerns solely whether the evidence sufficed to prove [Lynn's] supervision of the welfare of a child."

The state Supreme Court decided that under the state's original child endangerment law, Lynn qualified as an "other person supervising the welfare of a child."

But the state Supreme Court decided in their 60-page opinion not to explore the second element of the law, namely did the law apply to Lynn in the sense of whether Lynn owed a duty of care to a particular child.

The state Supreme Court went on to say:

"While we recognize that the answer to this question will in most circumstances be informed by exploring the extent of the duty owed to the endangered child, we need not engage in such an exploration herein; nor do we wade into an unnecessary review of the trial court's conclusions regarding other elements of EWOC, [endangering the welfare of a child] including that the Commonwealth's evidence sufficed to prove that [Lynn] was aware of his duty of care, protection or support, that he violated this duty, or that he knowingly enraged the welfare of a child, because, again these questions are behind our grant of allowance of appeal."

The state Superior Court, however, has already addressed the issue of whether Lynn owed a duty of care to a particular child when they reversed Lynn's conviction.

Here's what the Superior Court had to say about that subject:

"There was no evidence that [Lynn] had any specific knowledge that [Father Edward V.] Avery was planning or preparing to molest children at St. Jerome's. Indeed, Avery was not even diagnosed with a mental impairment that suggested he had a predisposition to commit sexual offenses."

The archdiocese had decided that Avery was an alcoholic, not a pedophile.

The Superior Court went on to say:

"As such, the notion that Avery was an ongoing, ever-present danger more than a decade after having sexually assaulted R.F. [a previous teenage victim] was tenuous at best. Eve more tenuous was the conclusion that the natural and probable consequences of [Lynn's] negligent supervision of Avery were Avery's intentional acts of molestation against a victim unknown to [Lynn]. Here, the information available to [Lynn] only suggested Avery's acts of sexual abuse were a byproduct of his alcohol abuse, and there was no evidence that Avery had resumed drinking, or that [Lynn] knew of such behavior."

The Superior Court wrote that Lynn appointed Avery to a chaplaincy at Nazareth Hospital "so as to limit his contact with children." Also, "the Commonwealth's own evidence demonstrated that upon Avery's preachment at St. Jerome's rectory, the parish's pastor, Father Graham, was told that Avery 'was not to be around children and was to live in the parish, be around the other priests and minister to the local hospital.' ''

Lynn, the Superior Court wrote, "did not know or know of D.G. [Billy Doe], he was not sufficiently aware of Avery's supervision of D.G. or any other child at St. Jerome's, nor did he have any specific information that Avery intended or was preparing to molest D.G. or any other child at St. Jerome's."

The issue of Lynn's intent was also addressed by state Supreme Court Chief Justice Thomas G. Saylor in a dissenting opinion when he wrote:

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

While on house arrest, Begrstom wrote, Lynn has abided by all the rules and regulations imposed on him. Further, William Lynn is neither a danger or a flight risk."