Can Msgr. Lynn Case Be Retried Without A Victim?

By Ralph Cipriano
for BigTrial.net

Judge Gwendolyn Bright today set a Jan. 13th date for the retrial of Msgr. William J. Lynn on a single charge of endangering the welfare of a child. Now the question hanging over the case is whether the D.A.'s star witness will be there.

Judge Bright also set an Oct. 28th date for a pre-trial hearing in the case, at which two big issues may be discussed. One is the topic of further prosecutorial misconduct in the case involving two sets of documents that the D.A.'s office withheld from defense lawyers during the original trial.

The second more complicated issue is whether the D.A.'s office will be able to retry the case against the monsignor without a victim. In doing so, the D.A.'s office would spare itself the burden of having to watch former altar boy Danny Gallagher try to explain on the witness stand all of his many lies and memory lapses while he was fraudulently claiming in three different courtrooms that he was supposedly raped by two priests and a schoolteacher.

The big question is whether Judge Bright will go along with a victim-less case.

How can the D.A.'s office retry a child endangerment case without an alleged victim? Well, you can certainly understand why they'd want to.

Danny Gallagher told so many different stories about his alleged rapes over the years that the contradictions fill hundreds of pages of transcripts in the civil and criminal courts. That's great grist for cross-examination. And when he was questioned about all those contradictions in the civil courts, Gallagher had to claim he didn't remember more than 130 times.

If you're the defense in this case, it's more evidence to present to a jury that Gallagher is a stone-cold liar.

For Gallagher, who has already collected $5 million in a civil settlement, the question is why he would ever risk coming back to Philadelphia from his Florida home after he already got paid. And if he runs into trouble on the witness stand, the lying, scheming altar boy could be risking a perjury charge.

Well thanks to some twisted logic by the state Supreme Court, the D.A.'s office can actually make an argument that they can legally retry the case against Lynn without a victim. In fact, they're expected to do so. But it's going to take some explaining as to how we wound up in the twilight zone with this crazy case.

Let's start at the beginning. Msgr. Lynn is the Archdiocese of Philadelphia's former secretary for clergy from 1992 to 2004. Back in 2012 he was convicted of a single felony count of endangering the welfare of a child, namely Gallagher, the former altar boy a grand jury dubbed "Billy Doe."

When he was sentenced to 3 to 6 years, the monsignor became the first Catholic official in the country to go to jail in the pedophile priest scandals, not for touching a child, but for enabling the abuse by putting a known abusive priest back to work in a parish where he would have access to kids.

But the state Superior Court in 2013 overturned Lynn's historic conviction on the basis that the state's original 1972 child endangerment law didn't apply to Lynn. This position was supported by former District Attorney Lynne Abraham, who wrote in a 2005 grand jury report that the state's original child endangerment law didn't apply to supervisors such as Msgr. Lynn or his boss, Cardinal Anthony Bevilacqua. That's why the 2005 grand jury didn't indict Lynn or Bevilacqua, although the grand jurors stated after investigating decades of child abuse and cover ups in the archdiocese, that they surely would have indicted both clerics if they could have.

The child endangerment law, however, was applied for more than three decades only to people who had direct contact with children, such as parents teachers or guardians. D.A. Abraham then led a statewide campaign to amend the law. In 2007, the state legislature complied by amending the law to specifically include supervisors.

But all that legal and legislative history meant nothing to the state's highest court.

In 2015, the state Supreme Court decided to reinstate Msgr. Lynn's conviction, and reverse the reversal of the state Superior Court. To pull that off, the state Supreme Court not only had to reinterpret the original meaning of the state's1972 child endangerment law; they also took a much harsher view of what actually constituted the crime of child endangerment in the Lynn case.

And that meant big trouble for the defendant.

The state's original 1972 child endangerment law said, "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."

While the state Superior Court found that the original law didn't apply to Lynn, because he was a supervisor, the state Supreme Court took a different view. According to the Supremes, the only thing that mattered was "whether the evidence sufficed to prove [Lynn's] supervision of the welfare of a child."

Not whether he was a supervisor.

"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" [Gallagher], identified in the Supreme Court opinion by his 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 opined. "Simply put, [Lynn] did not safeguard the physical and moral welfare of D.G. by placing Rev. [Edward] Avery, a known child molester, in a position to molest him."

So according to the state Supreme Court's reinterpretation of the meaning of the original child endangerment law, merely by placing a child in harm's way, Msgr. Lynn committed the offense of endangering the welfare of a child. So in a retrial, the D.A. can actually argue that they don't need no stinkin' victim.

But Msgr. Lynn's lawyers are expected to argue that in the original case, since the D.A. put up Danny Gallagher as a victim, that in a retrial, they're not going to be able to run away from that. The defense lawyers can say to the judge that in a retrial, the D.A.'s office should not be allowed to redefine the crime of endangering the welfare of a child. Because we're talking about a defendant who originally was charged way back in 2011 with endangering Gallagher's welfare.

It will be up to Judge Bright to decide whether she's willing to allow the case to be retried without a victim. If she decides no way, it could be the end of the circus. The D.A. could simply decide to fold its tent rather than have to put the radioactive Gallagher on the stand.

But if the case proceeds, then it will be on to the prosecutorial misconduct issue. Judge Bright has already found in this case that the D.A. engaged in prosecutorial misconduct when it did not disclose to the defense a pre-trial grilling of Gallagher by Detective Joseph Walsh, the lead investigator in the case.

Walsh came out of retirement in 2017 to testify that he repeatedly caught Gallagher telling one lie after another. And when he confronted the former altar boy, Gallagher actually admitted to the detective that he had made up his original charges of rape that he told to two social workers at the archdiocese.

None of this was ever divulged to the defense before Lynn's first trial.

Since the first trial of Lynn two sets of documents have surfaced that were never turned over to the defense.

The first set of documents was seven pages of typed notes by former Assistant District Attorney Mariana Sorensen, dating back to Jan. 28, 2010, when Sorensen and another detective first interviewed Gallagher at the D.A.'s office along with Gallagher's parents. This was at a time when the D.A.'s office was trying to get Gallagher, who was all over the lot with his original charges, to stick to a single narrative.

These are notes that the D.A.'s office, in three different courtrooms in front of three different judges, have claimed didn't exist. The defense will no doubt call Sorensen as a witness and ask her to explain all the lies.

Next, Lynn's lawyers will introduce some more notes from the archdiocese social workers who first investigated Gallagher's claims of abuse. The notes date back to 2009 and show that the altar boy didn't want to press charges when he first came forward to make his claims of being repeatedly raped by two priests and his homeroom teacher; instead all Gallagher wanted to do was get paid.

Of course, none of this material was ever turned over to defense lawyers either.

At yesterday's brief status conference, the judge asked Assistant D.A. Blessington if the prosecution was seeking a new trial date. This was after Blessington repeatedly warned the judge that the D.A. might file more appeals of her future pretrial rulings.

The D.A. just lost an appeal to the state Supreme Court of an earlier pretrial ruling by the judge, a delay that stretched back to last year.

"We are proceeding to trial," Blessington told the judge.

The publicity-shy judge also made it plain that a completely nonsensical pretrial gag order that she imposed on the well-publicized case, now in its ninth year, will remain in effect. So that both sides can't do any talking to the press.