What's Hanging The Jury?

Last week, the jury in the Archdiocese of Philadelphia sex abuse case asked lots of questions and requested to have days of trial testimony read back to them. The case appeared to be moving slowly in reverse.

Meanwhile, prosecutors in the Penn State case made their opening statement on Monday and then began presenting testimony from ten alleged victims representing 52 charges over 15 years. By Thursday, after just four days, the prosecution rested. On Monday, the defense in the Penn State is scheduled to begin its case. The verdict could be in by Friday.

But for long-suffering jurors in the archdiocese case, Monday will mark the tenth day of deliberations, and the 13th week of trial. If the archdiocese case was a TV show, it would be canceled by now. While the archdiocese case languishes, the Penn State trial has stolen all the headlines and media attention.

What's hanging the jury? A couple of veteran lawyers had differing ideas.

"I could never begin to speculate because I'm not there," said Dennis J. Cogan, a prominent Philadelphia defense attorney. "If I had to take a wild guess, there may be someone, or lots of someones [on the jury] who were revulsed by the way Msgr. William J. Lynn was treated on cross-examination."

From what Cogan read about the three-day cross, Assistant District Attorney Patrick Blessington was "being shrill and being a bully flexing his prosecutorial muscles," Cogan said. "The jury may be reacting to that for all I know."

Cogan said he was amazed that Blessington told "a really distinguished and fine man like [defense lawyer] Tom Bergstom to shut up and sit down." From that kind of language, "I can only imagine what the nuances of the cross examination were like," Cogan said. "I'm actually surprised that the judge would put up with him."

Fred Tecce, a former federal prosecutor and TV commentator, marveled at the efficiency of the Penn State prosecution. "That's the way it's done," he said.

As far as the archdiocese trial was concerned, it should be over by now, Tecce said. "They heard it the first time, and they can't reach a verdict," Tecce said of the jury. "That's reasonable doubt. That's the end of it."

As far as what's hanging the jury, Tecce's guess is that jurors were "appalled by what happened" to children in the archdiocese, "but the way the law's written and the way the case was charged, they're conflicted about holding Msgr. Lynn responsible for those atrocities."

The case may be taking its toll. The Philadelphia Inquirer reported that on Friday, the 12 jurors, "a generally upbeat group," "seemed solemn and tired and several appeared angry, faces scowling and arms crossed tightly across their chests."

What's hanging the jury? Here's a few more possibilities:

1. The burden of a long trial.

The prosecution in the archdiocese case could have presented its case in a week or two. The original three defendants were Msgr. William J. Lynn, the archdiocese's former secretary for clergy, and two priests allegedly under his supervision, Father Edward V. Avery and Father James J. Brennan. All three were originally charged with conspiring to endanger the welfare of children, with Avery charged with sexually abusing a 10-year-old altar boy, and Brennan with the attempted rape of a 14-year-old boy.

But the trial was complicated by the judge's decision to allow the prosecution to present the cases of 21 additional abuser priests, dating back to 1948, to show a pattern in how the archdiocese handled complaints of sex abuse against minors. Initially, the prosecution was gratified by the judge's decision, because it gave them a chance to put the Archdiocese of Philadelphia on trial for its treatment of children. How could the Commonwealth lose that case?

But by one defense lawyer's count, Thomas Bergstrom's, the prosecution spent 36 of 40 trial days presenting evidence regarding the 21 supplemental abuser priests. Maybe under that mountain of supplemental evidence, the real case against Lynn, Avery and Brennan got buried.

The requests for read backs of trial transcripts centered on days when evidence was presented against Avery and Brennan. Jurors asked for read backs on the testimony of the former victim of Avery, and the alleged victim of Brennan. The jury also sought a read back on the testimony of the mother of Brennan's accuser, as well as the testimony of a detective hired by the archdiocese who interviewed both Brennan and his accuser.

The judge told the jury she could not honor all their requests for read backs on days of trial transcripts. Instead, the judge said she would honor requests for read backs on excerpts of transcripts, to clear up any "sticking points" among jurors.

The first of those excerpts was read back Friday, testimony from Lynn's cross-examination regarding his supervision of Avery, who has already pleaded guilty.

Only one jury question has sought more documents about one of the 21 supplemental priests, Father Thomas J. Wisniewski. The documents the jury requested were about Lynn's supervision of the priest while he was undergoing psychological counseling and treatment for alcohol abuse.

2. The Brennan distraction.

Before the trial began, the defense sought to have Father James J. Brennan tried separately, but the judge turned down that request. Then, after the prosecution presented eight weeks of testimony, the judge threw out the conspiracy charge that linked Brennan to Msgr. Lynn, proving that Brennan really didn't belong at the defense table for this trial. If Brennan had been tried separately, it would have been over in two or three days.

During jury deliberations, many early questions centered on the Brennan case, as if the jury wanted to get that out of the way so they could concentrate on the Lynn case. The judge's charge requires the jury to find that Brennan not only endangered the welfare of the 14-year-old he is accused of attempting to rape, but also unnamed other children who were under Brennan's supervision. No evidence has been presented during the case to show that Brennan has a second abuse claim, so the jury may be having trouble with that. 

3. The "patsy" problem.

The problem with putting the Archdiocese of Philadelphia on trial is that according to the prosecution's storyline, Lynn is the one guy left holding the bag for the collective sins of the archdiocese's rampant sexual abuse of innocent minors, and the systemic cover-up of that abuse, dating back to 1948, as masterminded by Cardinals Bevilacqua and Krol. By allowing the prosecution to present evidence dating back to 1948, the judge was in effect holding Lynn responsible for events that took place up to 44 years before Lynn took office in 1992 as the secretary for clergy.

The prosecution in this case has worried from the start about whether the jury would regard Lynn as a patsy or fall guy. The remedy, of course, would have been for either one of two Philadelphia district attorneys to have indicted the late Cardinal Bevilacqua and charged him with conspiracy to endanger the welfare of children, along with his highest-ranking aides. But that would have required political courage.

In February 2012, the prosecution had another opening to solve the patsy problem. That month, the archdiocese turned over memos that showed that the late Cardinal Bevilacqua had ordered the shredding of a list of 35 abuser priests then in ministry compiled in 1994 by Msgr. Lynn. A handwritten note from the late Msgr. James E. Molloy described the cardinal ordering the shredding of the list, which was done by Molloy, and witnessed by Joseph R. Cistone, now bishop of Saginaw, Michigan.

The prosecution could have added Bishop Cistone to the case, charging him with conspiracy to endanger the welfare of children, and, say, obstruction of justice. Another high-ranking archdiocese official who could have been charged was Edward P. Cullen, formerly the number two man in the Philadelphia archdiocese, and now bishop emeritus of Allentown. According to archdiocese records, Cullen sat in on a meeting to discuss what to do with that list of 35 abuser priests, along with Cardinal Bevilacqua, Molloy and Lynn.

But District Attorney Seth Williams decided to give Cardinal Bevilacqua and his top aides a pass, leaving Lynn as the lone fall guy. Judge M. Teresa Sarmina has had a gag order imposed on the case since early 2011, so neither the DA nor the prosecutors can be asked any questions that they probably don't want to answer.

4. The judge's confusing rulings.

The latest example of this was last week, when the judge decided to reverse herself on the issue of whether Lynn had to have criminal intent when he allegedly entered into a conspiracy to endanger the welfare of children.

On Thursday afternoon, just before she sent the jury home for the day, the judge instructed the jury that Lynn did not have to have criminal intent to be found guilty of conspiracy.

On Friday morning, before the jury resumed deliberations, the judge instructed the jury that Lynn did have to have criminal intent to be found guilty of conspiracy.

If the judge is confused on the law this late in the case, who can blame the jury for being confused?