Prosecutor Tries Vainly To Plug All The Holes In His Case

By Ralph Cipriano
for bigtrial.net

It was a telling sign in the prosecutor's closing statement that he spent as much time attacking a social worker for the Archdiocese of Philadelphia as he did the two defendants in the case.

But Assistant District Attorney Mark Cipolletti had to address glaring discrepancies between what "Billy Doe," the alleged victim in this sex abuse case, told the social worker, Louise Hagner, back in 2009, and what he subsequently told law enforcement authorities.

Cipolletti also had to call into question the testimony of former priest Edward V. Avery, who showed up in court in a prison uniform last week to tell the jury that he never touched Billy Doe.

Avery may have pleaded guilty last year to involuntary deviate sexual intercourse with the former 10-year-old altar boy, the former priest testified, but he only did it because he was facing 20 years in prison, and the prosecution offered him a sweetheart deal -- 2 /12 to five years in jail. Incredibly, nobody ever asked the 70-year-old defrocked priest if he actually was guilty of committing the crime he pleaded guilty to until last week.

The assistant district attorney also had to explain away another factual discrepancy between what Billy Doe told this jury, and what he told a detective in the district attorney's office.

In short, Mark Cipolletti has his work cut out for him today as he used a rambling 82 minutes to try and plug all the holes in a case that a jury is now deliberating. And although he went through the academic exercise of reading from his notes to make sure he had addressed all the leaks, his speech was flat and strangely passionless. That prompted partisan observers on both sides of the case to question whether the prosecutor's heart was fully in it.

In contrast, Michael J. McGovern, the defense lawyer for Father Charles Engelhardt, appeared much more confident and upbeat as he faced a much simpler task. McGovern began his closing statement by referring to Billy Doe, the lone accuser of his client, as "a walking, talking personification of reasonable doubt." McGovern spent the rest of his 55 minutes pointing out all the discrepancies in Billy's differing accounts of the alleged crimes against him, in what the defense lawyer characterized as a "mountain of reasonable doubt."

McGovern went first.

The mustachioed former prosecutor told the jury that his client has been on ice for nearly four years since Jan. 29, 2009, when Billy Doe first phoned in his complaint to the archdiocese sex abuse hotline.

The next day, Father Engelhardt's order, the Oblates of St. Francis DeSales, took Engelhardt out of active ministry. It was the first complaint of alleged sexual abuse in 40 years of ministry for Engelhardt, McGovern told the jury. The 66-year-old priest has spent the past four years living in a oblate retirement home with no official assignment, McGovern said.

The priest has been waiting all this time to confront his accuser. Because the archdiocese sex abuse investigation was conducted under the secrecy of a grand jury, there was no preliminary hearing. The man known as Billy Doe in a 2011 archdiocese grand jury report testified last year at the trial of Msgr. William J. Lynn, but the defense elected not to cross-examine him.

Pinning down the accusations in the case has been like trying to "nail jello to a wall," McGovern said.

McGovern talked about what Billy Doe told Louise Hagner, the social worker for the archdiocese who  drove out to interview Billy Doe on Jan. 30, 2009.

McGovern brought up the lengthy cross-examination of Hagner this week when she testified. The defense lawyer complained that the prosecutor had treated Hagner "like she's some sort of un-indicted co-conspirator." The prosecutor ripped Hagner for rushing out to interview Billy the day she learned of his complaint, McGovern said, because Billy had sounded distraught on the tape, and had said he needed time to compose himself.

But Hagner was concerned about Engelhardt being in active ministry, and Bernard Shero being active in a classroom, McGovern said. Hagner was concerned about taking both men out of service, which happened before the end of the day. What did the prosecutor want her to do, McGovern asked. Wait two weeks to see if Engelhardt and Shero attacked anybody else? What would they have said then?

Louise Hagner subsequently testified before a grand jury, McGovern said. Based on her testimony, the grand jury indicted Engelhardt and Shero. Nobody on the prosecution had a problem with Hagner back then, the defense lawyer said. "Everything was peachy-keen."

Billy Doe told Hagner that he had one sexual encounter with Engelhardt, when the priest allegedly raped him in the sacristy after the 6:30 a.m. Mass during the 1998-99 school year at St. Jerome's parish in Northeast Philadelphia. The priest allegedly locked four doors of the sacristy, and forced the boy to engage in oral sex, before flipping the boy over and pounding him with brutal anal sex for five hours between 7 a.m. and noon, Billy Doe told Hagner.

A year after the district attorney's office was notified about Billy Doe's complaint, on Jan. 28, 2010, Detective Andrew Snyder drove up to Graterford Prison to spring Billy Doe out of jail, and take him to the district attorney's office, so he could tell his story to an assistant district attorney, and his parents.

This time, Billy Doe claimed he and Engelhardt had engaged in two sexual encounters, both involving mutual masturbation. He did not mention oral or anal sex with the priest.

On March 11, 2010, Billy Doe testified before a grand jury, and said that he and Engelhardt engaged in one sexual encounter, involving oral sex.

McGovern asked which of the three stories was the jury supposed to believe.

"That's supposed to be proof beyond a reasonable doubt?" McGovern said to the jury. "Please."

McGovern talked about all the visits Detective Joseph Walsh of the district attorney's office made to St. Jerome's to interview Billy's former teachers about the personality change he supposedly went through after he was allegedly raped in fifth and sixth grade by three different predators.

When Detective Walsh interviewed Billy's teachers, "They told you what the yearbook demonstrated, [Billy] was a happy-go-lucky kid," McGovern said.

But the district attorney never brought those five teachers to this trial to testify, McGovern said. Instead, the defense had to call the five teachers as witnesses.

McGovern placed blown-up transcripts of the testimony of Billy's mother before the grand jury.

When did you notice a change in Billy, his mother was asked.

"At age 14," the mother told the grand jury. When Billy was a freshman at Archbishop Ryan, "he wasn't the same child," she said. That year, Billy was thrown out of high school for possessing marijuana and brass knuckles. His mother told the grand jury she noticed "superficial wrist cuts." Before that, his mother told the grand jury, her son could either be described as "Dennis the Menace or the All-American boy."

The prosecution, however, relied on two of Billy's former grade school classmates at St. Jerome's who said they noticed a change in him before he graduated.

"Who do you think got it right," McGovern asked, those former classmates or Billy's mother?

Since Billy came forward to make his complaint, Father Engelhardt's photo has been all over the news, and all over the internet. "This is a child molester," those photos told the public, McGovern said. At every parish in the archdiocese, the news of Father Engelhardt's arrest was announced, and then they asked any other victims to call an archdiocese hot line.

To date, "not one child or one student" has come forward to make a complaint, McGovern said.

The prosecution is asking you to believe that a man who had 40 years of unsullied ministry suddenly decided one morning after 6:30 Mass to take off all his clothes in a church sacristy with four unlocked doors where anybody could walk in on him, and spend five hours raping a 10-year-old altar boy, McGovern said.

"There is no corroboration of any of the accusations in this case," McGovern told the jury. He brought up Billy's drug use. By his own testimony, Billy began smoking marijuana at 11, and it became a daily habit. He was drinking beer in 10th grade with Leo Hernandez, his best friend in high school, when he supposedly told Hernandez that he had been sexually abused by priests. Remember, McGovern said, how Billy testified about the first day he met Hernandez in 10th grade, the two boys smoked a blunt, "a big marijuana cigar," McGovern said.

According to Billy's testimony, the last time he met up with Hernandez, when Billy was on probation and recovering from drug abuse last September, the two men were in a bar in Northeast Philadelphia called Hammerheads, McGovern said. He speculated the two men were probably "drinking or smoking pot."

Based on what we know about the credibility of Billy Doe, McGovern asked the jury, if Billy Doe said you could take a walk across thin ice, would you believe him?

"Would you take a walk on that ice?"

McGovern reminded the jury about the civil lawsuit Billy Doe has filed against the Archdiocese of Philadelphia, and the daily presence at the trial of Billy's civil lawyer.

"When somebody says it's not about the money, it's usually about the money," McGovern said. Examine the evidence and find my client not guilty of all the charges.

When Assistant District Attorney Mark Cipolletti stood up to give his closing statement, the prosecution flashed a photo of a smiling 10-year-old Billy Doe wearing his parochial school uniform and looking like the star of Leave It To Beaver.

The photo was plastered on several courtroom TVs, the most prominent of which was on the witness stand behind a microphone where witnesses gave their testimony. 

Talk about an emotional pitch. It struck several lawyers in the courtroom that the prosecution had made its point, and at some point, they should have taken down the photo. Instead, it stayed up on all the courtroom TVs for the entire 82 minutes of the prosecutor's closing statement.

The trim and usually intense Cipolletti began by making an appeal to the common sense of the jurors. If you follow your common sense, he said, you will come to an inescapable conclusion, namely that three different predators, "selected and groomed one boy," and one of those predators was "sitting in a state prison."

If the jury examines the evidence in this case, Cipolletti said, they will find a "tidal wave of guilt washing over these two men," he said, meaning the two defendants. Father Engelhardt and Bernard Shero "are drowning in their guilt," the prosecutor said.

Cipolletti talked about how, after he was raped by three men, Billy Doe "used drugs to numb the pain." And now, he said, the only defense of the people who caused Billy's pain is to "smear the accuser."

"They don't want you to think" about the tawdry details of their crimes, the details that Billy Doe had blurted out on the witness stand, Cipolletti said. How three grown men had brutally raped a child, how one priest was guilty of "shoving his penis into every orifice of a boy's body."

"He was badly damaged," the prosecutor said of Billy Doe. But when he confronted his abusers, "he finally started to heal," he was finally able to get "that tumor out of his body."

Take a look at that picture of 10-year-old Billy Doe, the prosecutor said. That boy dreamed of growing up to become an FBI agent. Now, because of what these men did to him, that dream will never be realized. What could Billy have become if these men hadn't ruined his life, the prosecutor asked. We'll never know.

Billy was "innocent" and had "a lack of suspicion," Cipolletti said. As such, he was the perfect prey for predators like Engelhardt and Shero and Avery, cunning men who were clever at selecting just the right target.

And how did Billy view Father Engelhardt and Father Avery? "A priest is God's man on earth," the prosecutor said. When a boy commits a sin, he goes to a priest, "and they can get you forgiveness from God."

The prosecutor reminded the jury of what Billy Doe said that Father Engelhardt did after he allegedly caught Billy drinking sacramental wine in the sacristy. He opened his briefcase, the prosecutor said, and showed him pornography of naked men and women.

"He saw an opportunity and he took it," Cipollletti said. A week later, when he saw that Billy hadn't told anybody about the pornography, the priest allegedly told the boy, "It's time to become a man," the prosecutor said.

While the prosecutor was speaking, Billy Doe was seated in the courtroom, in a row with his father, a Philadelphia police sergeant, his mother, a registered nurse, and his fiancee. Billy bowed his head and appeared at times to be crying during the prosecutor's closing statement. His mother leaned over and put her arm around her waif of a son, in a protective way, and rubbed his back. On Billy's other side, his fiancee snuggled in closer, as if the two women were trying to protect him from being hurt again.

In front of the jury box, the assistant district attorney was lambasting the defense lawyers for portraying the prosecution of Engelhardt and Avery as part of "an attack on the priesthood." There are bad apples in every profession, Cipolletti said. 

Men like Avery and Engelhardt who are predators and seek out the innocent. Engelhardt saw that Billy "didn't tell anyone" about being raped. "He buried it in his 63-pound body," the prosecutor said. And the men who raped him continue to lie.

Therefore, it's "no shock when he [Avery] got up there and denied his guilt" when he testified, the prosecutor said. Avery was "too ashamed to tell you" what he did, the prosecutor said, "or he was trying to help one of his friends."

Avery has abused "five known victims," Cipolletti said. When I confronted him about that in this courtroom, what did he say? It was just horseplay or wrestling.

And what did Avery do to Billy? "Ed Avery sees an opportunity," Cipolletti said. And after he rapes Billy, he tells him, "God loved him."

"Bernard Shero had an entire year to evaluate" Billy Doe, Cipolletti said of Billy's sixth grade teacher. Shero was always leaning on kids' shoulders, rubbing their backs, and invading their personal space. Then he violently raped a 60-pound, four-foot-high 11 year-old boy, the prosecutor said.

Sadly, during the trial, no evidence of grooming was presented, or any expert testimony about how it works. The prosecution had expert witnesses lined up before the trial; so did the defense, but they were fighting about whether proper notification had been given. Then, suddenly there was no expert testimony in the case. Since there's a gag order still on, and Judge Ellen Ceisler closed pre-trial hearings to the press, and sealed all pre-trial motions, we have no idea what went on behind closed doors. So it was left to the prosecutor to try and patch another hole in the case.

Soon, Cipolletti was doing even more patch work.

Billy Doe isn't doing this for money, the prosecutor told the jury. "You hear him say you know what, no dollar amount will ever fix this."

And what did the defendants do during this trial, Cipolletti said. "To sit here and blame him is despicable ... Every chance they got, that's what they did, put the victim on trial."

"What happened to [Billy] before he got to high school," the prosecutor asked. "He got raped by three grown men."

At this point, Billy's mom was dabbing her eyes while she continued to rub Billy's back.

Louise Hagner, the prosecutor said of the archdiocese social worker, she's supposed to "provide services for victims." Hagner told the grand jury Billy was slurring his words, the prosecutor said. But when Cipolletti asked Hagner about that testimony, "the voice that was slurred becomes a bad [phone] connection."

Louise Hagner insisted on interviewing Billy Doe, even though he was distraught, and he told he he needed time to compose himself, Cipolletti said. But Hagner drove out to his house that same day because she was "so determined to talk to him."

"You kind of have to wonder what her purpose was," Cipolletti said of Hagner. She told the grand jury Billy seemed like he might be impaired, but she denied that on the witness stand in this case, Cipollettti said.

"She couldn't keep track of her own lies," the prosecutor said. Billy may have "over-exagerated the amount of force used" in the attacks on him, Cipolletti conceded. But Billy never saw any of Hagner's notes or her subsequent typed report, so he couldn't verify the information.

Instead of showing any of her work to Billy, Cipolletti said, she gave it to the archdiocese's in-house counsel, and the private law firm hired to defend the church against sex abuse claims from victims such as Billy Doe.

On the witness stand, Hagner said she had a usual policy of shredding her handwritten notes after she typed up her report. But in this case, she couldn't explain why she didn't destroy those handwritten notes in this case, Cipolletti said. Was it because the archdiocese suspected a lawsuit was coming?

The defense claims Billy Doe is in this for money, Cipoleltti said. But when Louise Hagner asked him if he needed any assistance, say for counseling or to pay any of his utility bills, Billy told Hagner he didn't need anything from the archdiocese. He wouldn't take a dime, Cipolletti said.

Cipolletti turned his attention to Detective Andrew Snyder of the district attorney's office. Billy told Hagner he had one sexual encounter with Engelhardt; he told Snyder he had two sexual encounters with Engelhardt. But during their first meeting in the sacristy, Engelhardt showed the boy porn; in their second encounter in the sacristy, that's when Engelhardt attacked.

Isn't it possible, Cipolletti said, that "Snyder got it mixed up," and confused two encounters with Engelhardt in the sacristy with two sexual encounters with Engelhardt in the sacristy?

Regarding the 49-year-old Bernard Shero, "He spent a year watching [Billy]," Cipolletti said. "At the end of the year, he saw an opportunity, and he took it."

Cipolletti told the jury that Billy's friends were more credible than his parents or teachers when it came to detecting a personality change in the boy after the alleged rapes.

"Who knows you better at 10 years of age," he said. The prosecutor used blow-ups of the boy's parochial school report cards to show that Billy's grade-point average had dropped from 88.6 in fifth grade to 86 in sixth grade, to 78 in 7th grade, to 80.7 in eighth grade. Meanwhile, his behavior needed improvement, his teachers noted, and Billy's absences, which were six in fifth grade, went up to 10 1/2 by eighth grade, the prosecutor said.

Whatever the numbers on those report cards proved was not only lost on this observer, but also on a jury that appeared sleepy.

Maybe it was the presence of Assistant District Attorney Patrick Blessington in the courtroom that caused spectators to question Cipolletti's lack of passion. Blessington, the pyrotechnic lead prosecutor in the Msgr. Lynn case, was a spectator today in the first row. You could almost hear him yelling and screaming and calling the two defendants and their lawyers a bunch of liars

But while Blessington sat silent, Cipolletti attacked the defense for trying to impeach Billy's best high school buddy, the guy he confessed his abuse to, "because he was smoking pot in high school." Pretty lame, the prosecutor was saying.

He turned his attention to Bernard Shero's suicide note. 

"Not once ... does he say he say he's innocent," Cipolletti said. "Does that sound like an innocent man?"

He talked about the defense assertion that no other student had ever come forward and claimed to be abused by Engelhardt.

"No child or student has had the courage that [Billy Doe] had," the prosecutor said, taking the time to point out a sobbing Billy in the courtroom, in case anybody on the jury had missed him. It takes a lot of guts to do what Billy Doe did, the prosecutor said, to take the witness stand and talk about the shameful things that were done to him.

These two defendants, "they sit here soaking in their guilt," the prosecutor told the jury. "Give Billy justice," he said. Find both defendants guilty of all the charges.

After Cipolletti finished, Judge Ceisler charged the jury, and they began deliberations. After a couple hours,  and snowflakes started falling, the judge sent the jurors home for the weekend. Deliberations are scheduled to resume Monday at 9:30 a.m.