Did the Prosecution's "Smoking Gun" Hit the Wrong Target?

It was billed as the prosecution's smoking gun -- a worn gray folder of documents passed out to the jury, just before the prosecution rested its case.

Inside the folder were several typed and handwritten documents, including a 1994 list of 35 then-active priests compiled by Msgr. William J. Lynn who had been either convicted or accused of sexual abuse of minors. The list was ordered shredded by Cardinal Bevilacqua in 1994, but 18 years later, the list and the gray folder mysteriously reappeared in a locked safe at archdiocese headquarters.

The smoking gun was supposed to be proof of a conspiracy to protect the Catholic Church and keep its shameful sexual abuse of children hidden at all costs. But last week, as the defense presented its case, the smoking gun took on another meaning.

The way the defense spun it, the smoking gun was proof that Msgr. Lynn had done his best to expose sexually abusive priests in the ministry, and put his bosses on notice about them. The story of how Lynn's superiors handled that folder, as well as their author, was proof that the monsignor was out of the real power loop in the archdiocese.

When the defense got through telling its version of the story, the smoking gun was left pointing at Cardinal Bevilacqua and his three top assistants. The defense's ability to hijack the prosecution's key piece of evidence for their own purposes prompted one former federal prosecutor to say it was another indication that the case against Lynn should have been dismissed on legal grounds before the trial even started.

It's useful to follow the defense testimony of what happened to the smoking gun after Lynn compiled his list of 35 abuser priests.

The secretary for clergy was summoned to appear at the March 15, 1994 "issues meeting." This was a cabinet level meeting held monthly at the archdiocese, usually between Cardinal Bevilacqua and his No. 2 in command, Bishop Edward P. Cullen, then vicar for administration.

A third top official who often attended the issues meetings was Msgr. James E. Molloy, then assistant vicar for administration. The meetings, which could go on all day, were usually held at the cardinal's mansion on the Main Line, but the March 15, 1994 session was moved to archdiocese headquarters at 222 N. 17th St.

Lynn was told to bring all his documents regarding the list, to the issues meeting. When he got there, Lynn was greeted by Bevilacqua, Cullen and Molloy.

Lynn's superiors questioned him about the list and the Dux memo he had written that was attached to the list. Father James Dux was a priest accused of sexually abusing some 11 minors dating back to the 1960s. Lynn began investigating Dux in 1992; in 1994, Cardinal Bevilacqua talked Dux into retiring.

Lynn's story is that after the Dux investigation, he started to wonder if there was "anybody else in active ministry who had live claims against him," as he told the grand jury.  So Lynn and his assistant, Msgr. James Beisel, began working nights, combing through all 323 files in the secret archives, to compile their list of abuser priests in active ministry. It took two or three weeks to finish the job.

"It seems to me I was trying to give a full picture of sex abuse here,"Lynn told the grand jury. "The people above me should know what's going on."

The memo cited the Dux case as the impetus for the search. It also stated the results of the search. Lynn and Beisel discovered that the archdiocese had 35 active priests accused or convicted of sex abuse of minors. The Dux memo said the list contains three confirmed pedophiles, a dozen priests who had been found guilty of or had confessed to sexually abusing minors, and 20 additional priests accused of sexually abusing minors.

After Lynn was questioned about the documents in the gray folder, he was dismissed by his superiors, but told to leave behind all his documents. Molloy, who died in 2006, left a handwritten memo that described what happened next. "On March 22, 1994, at 10:45 a.m., I shredded, in the presence of Rev. Joseph R. Cistone, four copies these lists from the secret archives," Molloy wrote. "The action was taken on the basis of a directive I received from Cardinal Bevilacqua at the issues meeting of March 15, 1994 ..."

But Molloy also stated in his handwritten memo that he kept one copy of the list, which turned out to be Lynn's copy, that was kept in the office of the secretary for clergy. It was found there in a locked safe in February 2012, less than two weeks after Bevilacqua died on Jan. 31.

Lynn told the jury this week that he did not learn of the shredding of the documents until February 2012, 18 years after he left the gray folder with his bosses. Talk about being out of the loop!

A true smoking gun points only one way, making one side's case, but not both sides, said Fred Tecce, a former federal prosecutor and TV commentator who has publicly questioned the case against Lynn.

Tecce describes the prosecution's case like this: "horrible things happened to children in the Archdiocese of Philadelphia, some one needed to be held responsible, and the only guy in the courtroom that could fit that bill was Msgr. Lynn."

"While it's true that horrible things did happen to children in the archdiocese, and something really needs to be done to address that," Tecce said, "under the law and the facts, it's not appropriate to hold Lynn responsible. That's not the way the law is supposed to work."

In other words, we don't discover a horrible crime and then round up somebody to blame for it. We have rules of law that govern society, and when people break those laws, we charge them with crimes, Tecce said. Through no one's fault the existing laws were not broad enough to prosecute the church for its past conduct. That will not be the situation going forward, Tecce said.

As the defense showed this week, Lynn didn't have the power in the archdiocese to transfer priests from one parish to another. He also didn't have the power to remove a priest from active ministry, unless the priest confessed to him first that he had sexually abused children. But most priests accused of sexual abuse of minors denied those allegations when Lynn confronted them, according to the testimony of Lynn and his two assistants.

The only man in the archdiocese who had the power to transfer priests or take them out of active ministry was the late Cardinal Bevilacqua.

The prosecutor can talk all day about how Lynn never called the police when he found out about an allegation of sex abuse, Tecce said. Lynn's testimony last week was that most of the people he interviewed who claimed they were sexually abused as minors by priests were usually in their 20s and 30s when they came forward, so the alleged crimes did not fall within the statute of limitations.

But Lynn is not charged with failure to notify authorities, he is charged with conspiracy to endanger the welfare of minors by allowing abuser priests to continue in ministry. But if Lynn did not have the power to move priests around from parish to parish, or take them out of active ministry, then he did not have the power to endanger the welfare of children, Tecce said.

By charging Lynn with conspiracy to endanger the welfare of minors, the prosecutors are "attempting to expand the scope of the statute," Tecce said. "I don't think that's appropriate."

Tecce's contrarian view of the archdiocese case extends to the prosecution's cross-examination of Lynn.  During the cross, which will be going into its third day when court resumes Tuesday, Assistant District Attorney Patrick Blessington has been pounding away, calling Lynn a liar up to 14 times an hour, or once every four minutes.

"I would cross-examine the guy, treat him with respect, and be done with it in 45 minutes," Tecce said. "But I don't have command of all the facts and I'm not there in the courtroom. He [Blessington] is and that's his style. Time will tell which was the right approach."