Two Defendants Elect Not to Testify in Archdiocese Sex Abuse Case

By Ralph Cipriano
for bigtrial.net

The court crier swore in Father Charles Engelhardt and Bernard Shero as witnesses.

Judge Ellen Ceisler then asked if the two defendants were electing not to testify on their behalf at the Archdiocese of Philadelphia sex abuse trial.

Both defendants confirmed they had decided to take a pass.

Engelhardt

The judge asked if either man was on drugs or alcohol, or prescription medications, or was mentally disoriented in any way.

To each of these three questions, each defendant replied, "No, Your Honor" three times. The judge assured both defendants that she would instruct the jury to draw "no adverse inference" from their decision not to testify.

After the two defendants testified, the defense today closed out its case with five more character witnesses on behalf of Father Engelhardt. The prosecution called a rebuttal witness, a cousin of the priest who said that Engelhardt had a "horrible reputation" in the community, without any explanation of what he was alluding to. Then it was on to the first closing statement from Burton A. Rose, on behalf of Bernard Shero.

Shero

It was a surprise move that neither defendant elected to take the stand. There's an annoying gag order in the case that prevents lawyers on both sides from talking to the press. From early on, however, the courtroom buzz was that Engelhardt was going to testify, and that Shero might appear on the witness stand as well.

But when it was time to stand up and be counted, both men elected to remain seated at the defense table as spectators. Assistant District Attorney Mark Cipolletti certainly looked surprised that neither defendant was going to testify. Cipolletti had been overheard earlier in the trial salivating at the prospect of cross-examing both defendants.

One defense lawyer, however, who's been sitting in on the case wasn't the least bit surprised by the decisions of Engelhardt and Shero. And he doesn't have a gag order hanging over him.

Alan J. Tauber, one member of Msgr. William J. Lynn's defense team, said the decisions of both defendants not to testify was "an indication that the defense felt the case went in well for them."

Shero, Tauber said, "appeared to be a much more sympathetic person than what I would have expected based on the limited information we had about him in the pre-trial process." And as far as Engelhardt was concerned, the testimony of his accuser, "Billy Doe," was "so contradictory, and virtually nothing else against him" came in as evidence, Tauber said. Engelhardt also had "an enormous amount of good character evidence" on his behalf, Tauber said.

Another lawyer who didn't have a gag on is William J. Brennan, the defense lawyer for Father James J. Brennan, Lynn's co-defendant, who wound up with a hung jury last year. Brennan said he was surprised by the defendants' decision not to testify.

"It's the toughest decision that one makes in a criminal case," Brennan said.  "With my view from the cheap seats, it indicates to me that the defense feels fairly confident about how the case went in, and probably decided not to take the chance."

After the two defendants announced their decision not to testify, Assistant District Attorney Cipolletti got up to make an objection. Cipolletti complained about hearsay evidence presented during the trial that Shero had had to move out of a Northeast Philadelphia house that his parents had bought for him allegedly because kids from St. Jerome Catholic School had been throwing rocks at his house.

On the witness stand, Shero's mother had brought up the alleged rock throwing, as had another witness, a teacher from St. Jerome's. The only reason the hearsay evidence was allowed was because of the presumption that Shero was going to take the stand and testify directly about the rock-throwing incident, Cipolletti said.

Shero's lawyer, Rose, however, countered that several prosecution witnesses had alluded to the rock-throwing incident as well, namely one mom who had worked as a lunch room aide and testified that she thought Shero was a weirdo. The grinning mom told the jury that throwing rocks at Shero's house was one way for the kids to get rid of somebody they were afraid of.

The judge told Rose "you can't highlight it [the rock throwing] in your closing. I think it's fair at this point."

The parade of defense character witnesses continued. Larry Conti, a teacher at North Catholic High School for 40 years, as well as a baseball, basketball and football coach, testified that the 66-year-olld Father Engelhardt had an "impeccable" reputation in the community for being a peaceful and law-abiding citizen.

Four other witnesses testified in the same manner, including two relatives of the priest's, and the parent of one of Father Engelhardt's former students.

The defense rested its case. The prosecution then called a rebuttal witness, Brian Lyman.

Lyman testified that he was a cousin of Father Engelhardt's. The witness told the jury he had a Ph.D. and was a college professor and research scientist.

Lyman said that Father Engelhardt's mother and Lyman's grandmother were first cousins. Engelhardt officiated at Lyman's wedding, and also baptized his children, Lyman testified.

The assistant district attorney asked Lyman about Father Engelhardt's reputation in the community.

"He has a horrible reputation," Lyman said.

Michael J. McGovern, Engelhardt's lawyer, smiled when he thanked Lyman for coming down to the courtroom. "I have no questions," McGovern said, and Lyman was on his way out the door.

According to two sources, however, the prosecution had asked the judge if Lyman could testify about an incident where his priest cousin had allegedly attempted to have sex with him. The judge, however, ruled against the request, and the witness was allowed to testify only as a reverse character witness.

Out in the hallway, Lyman declined to comment on what he would have said on the witness stand, except to say that the prosecution had been "constrained." Lyman said he would also like it known that he was "here to support the victim" in this case, the former altar boy known as Billy Doe who was allegedly raped by Father Engelhardt.

It was time for Burton Rose to make his closing statement on behalf of Bernard Shero.

Rose, who spoke for less than an hour, began by walking over to the jury box, and standing in front of it. He told the 12 jurors and six alternates that the entire two weeks of testimony in the case boiled down to whether the jury believed Billy Doe's story.

"That is the only issue," Rose said.

As far as the defense is concerned, Billy Doe's story that Shero offered to give him a ride home, and then raped the boy in the back seat of his car was a tall tale.

"It never happened," Rose said.

Rose told the jury that Billy Doe's accusations were "uncorroborated." He talked about Billy's story of how he had supposedly undergone a drastic personality change after he was allegedly raped by two priests in fifth grade, and allegedly raped by Shero in sixth grade. Billy supposedly became "dark and gothic and a loner," Rose said. That assertion of a personality change, however, was contradicted by the testimony of Billy's parents, as well as the testimony of five teachers from St. Jerome's Catholic School, Rose said.

Rose talked about Billy Doe's history as a drug addict, his multiple arrests, his five or six acid trips, his experiments with magic mushrooms, and the 23 drug rehabs that Billy spent time in.

"This is the person that the Commonwealth is relying on to send Father Engelhardt and Bernard Shero to jail," Rose told the jury. Rose admitted his client was "socially awkward" and "weird," but because of that, "Bernard Shero is the perfect target" for somebody like Billy Doe, who knows how to work the justice system.

Why would Billy Doe invent a story about being raped by Bernard Shero? It allows Billy to "excuse his horrible behavior over the past ten years," Rose said, and it lines him for a "big pay day" if he wins his civil suit against the archdiocese.

"He's been around," Rose said of Billy Doe. "He knows how to game the system."

Billy Doe testified in front of a grand jury in April 2010, Rose said. Six weeks later, he escaped from a drug rehab that he was enrolled in. On June 8, 2010, he was arrested and charged with possession of a controlled substance with intent to distribute, namely 56 bags of heroin, Rose said. After Billy brought his story to the district attorney, the charges in Billy's heroin case were dropped.

In November 2011, Billy is arrested again, Rose told the jury, and that case is continued until this day.

Rose held up Billy's report card from sixth grade to remind the jury that after he was allegedly raped during the fourth quarter of the 1999-2000 school year, Billy told authorities he missed a lot of time at school. But his report card for the fourth quarter shows zero absences.

"His report card tells us that [Billy] is not telling us the truth," Rose told the jury.

Rose brought Billy's story up to date. He said that according to Billy's testimony, in September of 2012, while he was on probation and recovering from a drug habit, Billy ran into his best friend from high school, Leo Hernandez. And according to both men, where did they meet? In Hammerheads, a bar in the Mayfair section of Philadelphia.

Rose brought up the testimony of Louise Hagner, the retired social worker of 30 years who worked as an victims assistance coordinator for the Archdiocese of Philadelphia. Hagner testified that Billy told her a much wilder version of the rape story where Shero allegedly punched Billy in the face, before wrapping a seat belt around his neck, and then raping him.

"Louise Hagner, why would she lie?" Rose asked. He reminded the jury that Billy Doe first told Hagner that Shero had raped him in the classroom after school, and then he changed the story to say he'd been raped in a parking lot near a dumpster. But Billy Doe told a grand jury that Shero raped him in Pennypack Park.

Rose was clutching a boy's size light blue polo shirt from St. Jerome's, the same type of shirt Billy was wearing the day he was allegedly attacked by Shero. Shero was so ferocious in raping Billy that he allegedly ripped the boy's shirt, Billy told Hagner. And then Billy threw the torn shirt in the sewer.

You know how hard it is to tear one of these shirts, Rose told the jury.

"He's not getting the facts straight because the story isn't straight," Rose said. Billy claimed that Shero had anally raped him, but Billy didn't tell his mother or father about the rape, and he didn't tell his doctors. Shero's not some god-like priest, he's a teacher, and Billy isn't afraid of teachers, especially Shero, whom he considers a weirdo, Rose said.

"Why didn't he tell 'em? 'Cause it didn't happen."

Rose said Billy's story doesn't make any sense. According to Billy, a year after he's been raped by two priests, Shero takes him for a ride. He parks the car, unzips his pants and exposes himself, and then he orders Billy to get in the back seat of the car. Shero, according to Billy, has to get out of the front seat, and walk around the car to the back seat.

"Why didn't he run?" Rose said. "Because it never happened."

Rose brought another soft spot in Billy's story. How did Bernard Shero pick Billy as a rape victim? There's no testimony in the case of any relationship of any kind between Shero and Engelhardt or Edward Avery, Billy's alleged attackers.

Did one of the priests walk over to Shero and say, "Hey I committed a felony and you should to?" Rose asked the jury. My client might be "awkward and socially inept, but he's not a child rapist," Rose said.

Unlike most pedophile cases, there was no grooming of the victim in this case, Rose told the jury. Without any preliminaries, three predators allegedly attacked Billy. And the third attacker, Bernard Shero, never comes back for more.

"What are the odds that these facts are true?" Rose said.

Next, Rose brought up Father Avery's testimony, where the defrocked priest said he pleaded guilty to avoid dying in prison, even though he never touched Billy. By doing so, Avery now risks not getting out on probation after he serves 2 1/2 years of his sentence. If the district attorney writes a letter to the parole board saying Avery hasn't been cooperative, Avery will probably be stuck with serving his maximum term of five years, Rose said. And then he might be facing a perjury rap.

"Edward Avery has a lot to lose, and nothing to gain" by telling the truth in this case, Rose said.

Finally, Rose brought up his client's suicide note to his parents the night detectives from the district attorney's office were coming to arrest him for allegedly raping Billy Doe.

"You know that the D.A. has decided to go forward with this case," Rose said, reading from the note. Shero tells his parents that whether he is is found innocent or guilty, he and his family will be "dragged through the mud."

When people hear the nature of the charges against him, Shero writes, his parents will be "ostracized by everyone ... No way I can put you through the grief and anguish this will cause."

"You heard from Mr. Shero," Rose said, clutching the note. "He doesn't have to testify." With that, Rose asked the jury to find his client not guilty.

The trial continues at 9:30 a.m. tomorrow in Courtroom 304 with closing statements from Michael J. McGovern, on behalf of Father Engelhardt, and Assistant District Attorney Mark Cipolletti, on behalf of the Commonwealth.