Lynn's Lawyer Seeks Return Visit to Superior Court Panel; District Attorney Objects, Claims It's "Judge-Shopping"

By Ralph Cipriano
for Bigtrial.net

Thomas A. Bergstrom, the defense lawyer for Msgr. William J. Lynn, is seeking a return visit before a panel of three state Superior Court judges who previously ruled that his client should get out of jail immediately.

Bergstrom also is seeking permission to brief that Superior Court panel on other appeal issues that the defense lawyer hopes will get his client a new trial.

In response, top appeal lawyers for District Attorney R. Seth Williams argued that Bergstrom was "judge-shopping." Furthermore, the D.A. asserted that the state Superior Court panel of judges that previously ruled on the Lynn case had made a "material misrepresentation of the law." Because of that material misrepresentation, the district attorney argued in his brief, it would constitute an "appearance of impropriety" if the same panel were allowed to rehear the case.

On Wednesday, Bergstrom filed a reply brief that claimed the D.A.'s accusation of judge-shopping was "unfounded and insulting." Regarding the alleged material misrepresentation of the law, Bergstrom wrote that the charge was "disturbing." He argued that the Superior Court panel of judges was best-suited to rehear the Lynn case because they are already familiar with it.

Msgr. Lynn is the former secretary for clergy for the Archdiocese of Philadelphia who was convicted three years ago by a jury on one count of endangering the welfare of a child [EWOC].

On July 24, 2012, Common Pleas Court Judge M. Teresa Sarmina sentenced Lynn to three to six years in jail.

Lynn had served 18 months of his sentence when on Dec. 26, 2013 a panel of three state Superior Court judges -- John T. Bender, Christine L. Donohue and John L. Musmanno -- reversed the monsignor's conviction and ordered him "released forthwith." But Judge Sarmina didn't agree, and instead imposed conditions on the defendant that amounted to house arrest.

Lynn had spent 16 months under house arrest until April 27th, when the state Supreme Court reversed the reversal by the Superior Court. Three days later, Judge Sarmina granted a motion by the D.A.'s office to revoke bail and send Lynn back to jail to serve out the remainder of his sentence.

Bergstrom filed a motion seeking a return before the same panel of state Superior Court judges, so the panel could rule on other appeal issues in the case.

On May 15th, Ronald Eisenberg, deputy of the law division of the D.A.'s office, and Hugh J. Burns Jr., chief of the D.A.'s appeals unit, filed a 9-page answer to the defense petition that opposed a return visit to that same panel of state Superior Court judges.

Lynn was convicted under the state's original child endangerment law that 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."

The state Superior Court reversed Lynn's conviction because the court found Lynn did not have "any direct supervisory role over" the victim, the district attorney wrote. In rendering their decision, the Superior Court panel "heavily relied" on a previous 1998 case, Commonwealth v. Halye, which held that the "true meaning" of "supervising the welfare of a a child" was "not supervision of children's welfare but 'actual' or 'direct' supervision of children," the district attorney wrote.

The Superior Court also took "the highly unusual step" of declaring that Lynn was "ordered discharged forthwith."

"The original panel's decision is the one and only published Pennsylvania appellate decision, that, in granting relief on the basis of insufficient evidence, ordered the appellant 'discharged forthwith,' " the district attorney wrote.

The state Supreme Court found that the Superior Court panel had misstated the meaning of the Halye case, the district attorney wrote.

"This is a high profile case," the district attorney wrote, so avoiding the appearance of impropriety is a "particularly acute consideration."

"In that regard the appearance that defendant is judge shopping should be avoided," the district attorney wrote.

In their brief, the district attorney said that Superior Court panel had claimed as "unmistakable" a Superior Court ruling that "simply does not exist." That mistake does not constitute a "mere error of law, but a material representation of the law," the district attorney wrote. "Such conduct creates an appearance of impropriety."

"The appropriate exercise of discretion is to assign this case on remand to a different panel," the district attorney concluded.

In a second brief of 12 pages filed May 18th, the district attorney opposed Bergstrom's motion to file an additional briefing with the state Superior Court.

"This argument not only disregards the final and controlling decision of the Surpme Court that the evidence is sufficient, it mischaracterizes that [Supreme] Court's opinion as if it somehow invited further litigation of this settled issue," the district attorney wrote.  Bergstrom's "latest legal gyration . . . should be rejected," the district attorney wrote.

On May 20th, Bergstrom filed a 5-page reply in support of his previous motions to return before the state Superior Court panel, and be allowed an additional briefing.

Instead of engaging in judge shopping, Bergstrom argued, his motivation was to seek a decision on the appeal issues in the case as soon as possible. Especially now that his client is back in jail.

"The original panel is clearly familiar with this long, complicated case and thus would be in the best position to reach a decision in the most expeditious manner," Bergstrom wrote.

"The Commonwealth also alleges impropriety based upon the original Panel's alleged 'material misrepresentation of the law,'" Bergstrom wrote. "This disturbing accusation is not supported by either the facts or the law."

Bergstrom in his brief pointed out that at the opinion arrived at by the three Superior Court judges was the same opinion stated by Chief Justice Saylor of the Supreme Court in a dissent.

"Differences of opinion among judges happen constantly, and rarely amount to a 'material misrepresentation of the law,' " Bergstrom wrote.

In their opinion, the state Supreme Court ruled that under the law, Lynn was considered an "other person supervising the welfare of a child."  

"In other words, the supreme court decided the very narrow issue of whether ... Msgr. Lynn, could be a supervisor who could, therefore, be convicted of EWOC, and determined that he could," Bergstrom wrote. "What the Supreme Court did not decide was whether the 'Commonwealth's evidence sufficed to prove that [Lynn] was aware of his duty of care, protection or support [whether] he violated this duty or [whether] he knowingly endangered the welfare of a child, because, again, these questions are beyond our grant of allowance of appeal."

"None of those elements of EWOC were before the Supreme Court, but they are directly before" the Superior Court on appeal, Bergstrom wrote. So an "additional briefing would assist this Court by further exploring those additional elements of the crime of EWOC."