Former Priest, Now A Prisoner, Sets Himself On Fire

By Ralph Cipriano
for bigtrial.net

Ed Avery looked the prosecutor in the eye and said he didn't do it.

He said he never touched the 10-year-old altar boy known as "Billy Doe." The defrocked priest today rode a bus from the state prison up in Laurel Highlands, Somerset County, all the way to the Criminal Justice Center in Philadelphia, at least a four-hour trip, just to tell a jury it was all a lie.

Avery said he only pleaded guilty because if convicted at the first Archdiocese of Philadelphia sex abuse trial last year, he was facing a prison sentence of up to 20 years. And the prosecution was offering a sweetheart deal -- only 2 1/2 to 5 years in jail.

So on March 22, 2012, Avery pleaded guilty to involuntary deviate sexual intercourse with a child, and conspiracy to endanger the welfare of a child -- the alleged victim of both crimes was Billy Doe -- "to avoid a more lengthy prison term," Avery said.

"I did not want to die in prison," the 70-year-old former priest told an angry prosecutor. 

Assistant District Attorney Mark Cipolletti was incredulous. "You're sitting in state prison today because of [Billy Doe's} allegations," he said.

"I chose to take the plea," Avery corrected him. 

When Cipolletti attempted to cut off Avery's answer, a delighted defense lawyer, Michael J. McGovern, stood up and told the judge that Cipolletti can't do that to "his witness."

Judge Ellen Ceisler had a pained look on her face as she glanced over at Avery, and then back at the defense attorney.

"I think he's a hostile witness at this point," she said.

On cross-examination, defense lawyer McGovern asked Avery if he ever had "sessions" with Billy Doe. According to the prosecution, sessions was the priest's code name for sex with kids.

"Absolutely not," Avery said. He couldn't sit here in court and say he was guilty of raping Billy "because it positively never happened," Avery said.

The rape that Avery pleaded guilty to supposedly happened in a storage closet at St. Jerome's parish after a 6:30 a.m. Mass back in 1999. But Avery said he almost never said Mass at St. Jerome's, because he was employed as the chaplain at Nazareth Hospital. He was at the hospital every day of the week, beginning at 3 a.m., and he stayed on the job until 8 p.m., Avery said.

This was his routine 24 hours a day, seven days a week, Avery testified. At Nazareth Hospital, Avery said Mass every day, and the service was televised, he told the jury.

McGovern asked Avery if he was friends with McGovern's client, Father Charles Engelhardt, on trial at the second archdiocese sex abuse trial for allegedly raping Billy Doe.

"We were acquaintances," Avery said.

A 2011 grand jury report said that after Father Engelhardt had sex with Billy in the sacristy at St. Jerome's, he told Father Avery about it. According to that grand jury report, Father Avery allegedly went to Billy and said he heard about his "session" with Father Engelhardt, and that Billy's sessions with Father Avery would soon begin. Then Avery raped the boy.

Did you ever discuss with my client having sex with Billy Doe, the defense lawyer asked.

No way, Avery said. The only thing he said he remembered discussing with Engelhardt was Pasta Night, which was every Wednesday at the St. Jerome rectory, where both Engelhardt and Avery lived at the time.

Why did you take the plea bargain, McGovern asked.

"To get a lesser sentence," Avery said. "Every motion that was made was turned down. The options were less and less. I didn't want to die in prison. That's why I took the plea."

McGovern asked if Avery was worried about being the target of a civil lawsuit filed by Billy Doe.

"I'm pretty much almost destitute at this time," he said.

The notion that Avery never touched Billy Doe, and only pleaded guilty because he got a sweetheart deal from the prosecution was first raised last September in an unsuccessful motion to reconsider bail for Msgr. William J. Lynn filed in Pennsylvania Superior Court.

Lynn, the first Catholic administrator in the nation to be sent to jail for the sexual sins of the clergy, was convicted by a jury on June 22 of one felony count for endangering the welfare of a minor, namely Billy Doe, by not doing enough to protect him from Avery. Lynn previously was denied bail by Judge M. Teresa Sarmina, who presided over his trial; a bail motion on behalf of Lynn was also denied by the Superior Court.

In their motion to reconsider bail filed in Superior Court, Lynn's lawyers said that Avery told his lawyers he never touched Billy Doe. Avery was also given a polygraph test, which he passed.

"This newly discovered information leads to the disconcerting conclusion that the Commonwealth was driven by a zealous and single-minded desire to try [Lynn] and obtain a conviction, despite information that put into question the justice of pursing that outcome,"Lynn's lawyers concluded in their unsuccessful motion.

It's one thing to file a motion seeking bail based on what one set of defense lawyers, namely Avery's, supposedly told another set of defense lawyers, namely Lynn's. A polygraph, on top of that, is not even admissible as evidence in a Pennsylvania criminal court.

But it's entirely another matter to yank that defendant out of jail, put in him in a courtroom under oath, and ask him once and for all for the truth.

Lynn is currently sitting in jail serving 3 to 6 year years for endangering Billy's welfare. But if you follow Avery's statements to their logical conclusion, it means that stacking the deck in the first archdiocese sex abuse trial wasn't enough. It wasn't enough for the judge to let in 21 supplemental sex abuse cases dating back to 1948, before the defendant was born, to demonstrate a clear pattern of conduct in the archdiocese.

No, the prosecutors had to get one of the defendants to cop a plea to something he didn't do, a sex crime that never happened, just to bag Lynn with a "historic" conviction. It's the sort of thing that an ethics panel or an appeals court might want to look into.

Avery's admissions today placed the prisoner in jeopardy, as both the prosecutor and defense lawyers took pains to point out in court.

Avery has already served 10 months of his sentence. The inmate currently is in protective custody, the prosecutor noted. That could change suddenly, the prosecutor warned. Avery is a convicted child molester in protective custody, the prosecutor said. He could become a highly publicized convicted child molester suddenly mixed in with the general prison population.

"Life is gonna get even worse when the press is covering it, yes?" Assistant District Attorney Cipolletti asked Avery.

The former priest agreed.

Avery has another 18 months to go before he is eligible for parole. But, as defense lawyers pointed out, the state might take revenge on Avery by not granting him parole, and letting him serve his full five-year sentence. The state could also file perjury charges against Avery, defense lawyers said. If convicted, that could mean additional time, and the former priest could wind up dying in jail.

But none of that seemed to phase the prisoner, who obviously had something to get off his chest, and nothing was going to deter him. Avery, who looked like he had lost weight since his last courtroom appearance, was dressed in a floppy, light-blue prison uniform on the witness stand. He did not have to wear handcuffs, and he was also not wearing his once-familiar toupee.

The prisoner even disagreed with Cipolletti when the prosecutor asked if the priest had been "laicized," the formal church procedure for busting a priest down to a lay person.

"That's incorrect," Avery told the prosecutor. The man with two Ph.D. degrees, in spirituality and gerontology, told the Cipolletti he hadn't been laicized, he had been "defrocked." What that meant, the prosecutor cut in, was that Avery could no longer dress up as a priest, present himself as a priest, or say Mass publicly.

That's all true, Avery told the stunned prosecutor, but he added, "Once a priest, always a priest."

Lawyers familiar with Avery's status have said that Avery now serves unofficially as the prison chaplain.

Among the spectators watching Avery in the courtroom were his two civil lawyers. "He killed 'em," one was overheard telling another spectator before he left.

After Avery became a hostile witness, prosecutor Cipolletti teed off on him.

Avery had claimed he was destitute. That prompted Cipolletti to ask Avery if before he went to jail, he sold a property that he had originally purchased for a dollar for more than $1 million.

"Yes," Avery said.

Cipolletti then went through Avery's entire personnel file from the archdiocese's secret archive files. The prosecutor brought up the name of a man who came forward in 1992 to say that he had been sexually abused by Avery back in the late 1970s.

The prosecutor read files that divulged how, when first confronted with accusations of abuse, Avery had told Lynn and other Catholic higher-ups that if he had touched the boy during a night the boy spent in the priest's bed in the rectory, it was only accidental. But on the witness stand today, Avery owned up to his crime.

"I admitted that it happened," Avery said of the abuse. "I was very sorry that it happened."

That prompted objections from defense lawyers, who said that Cipolletti was going far beyond the bounds of evidence previously discussed on direct testimony or cross-examination. The judge, however, said it was proper for Cipolletti to cast a wider net when attacking the credibility of a hostile witness.

The prosecutor went through the names of several other alleged victims of abuse from the 1970s who came forward to make accusations against Avery. The prosecutor also took the time to disclose the race of each victim, several of whom were black, possibly for the benefit of a jury that included five African-Americans.

In response, Avery said he had been guilty of "always horsing around" with boys, and wrestling with them. Cipolletti said that the priest had also dropped ice into the boys' pants as part of his horseplay.

The prosecutor was no longer interested in what the witness had to say, frequently cutting off Avery's answers. Defense lawyers reacted by falling all over themselves to make objections, saying that the prosecutor wasn't letting Avery finish his answers. This was true. Sadly, the judge meekly went along with the charade, and the result was the prisoner frequently was silenced.

And many in the audience wondered what else Avery might have to say. But instead they were treated to more oratory from the prosecutor.

Cipollletti went into one long discourse about how abuser priests like Avery had betrayed the faith of young boys who made the fatal mistake of trusting them, prompting McGovern to stand up and ask the judge if it was time for closing arguments, because Cipolletti was certainly making one.

I'm ready to give my closing as well, the defense lawyer told the judge.

That won't be necessary, the judge told McGovern. The situation in the courtroom, however, had deteriorated, and plainly needed strong direction, but none was forthcoming from the bench. For a fleeting moment, some defense lawyers in the courtroom, which included a former member of Lynn's defense team, may have actually missed M. Teresa Sarmina, the prosecution-friendly but no-nonsense judge who presided over the Lynn trial.

In response to Cipolletti's escalating attacks on the witness, which included cutting him off and talking over the witness, Burton A. Rose staged a counter-attack.

 Rose, a defense lawyer representing Bernard Shero, a former teacher also accused of raping Billy Doe, asked Avery what would have happened at his plea bargain hearing if Judge Sarmina had asked if he had actually raped Billy. It was a question that according to a five-page transcript of that hearing introduced into evidence today, Judge Sarmina had never bothered to ask.

"I would have had to say no," Avery said.

"That would have scuttled the plea bargain?" Rose asked.

Yes, Avery said.

"Did you sexually assault that young man?" Rose asked, referring to Billy Doe.

"I did not," Avery said.

"So help you God?" Rose asked.

"So help me God," Avery said.

"That's it," Rose said before sitting down.

It sure was.