D.A. Finally Has To Explain Flip-Flop On Child Endangerment Law

Hugh J. Burns Jr.

By Ralph Cipriano
for Bigtrial.net

It's one of the enduring mysteries of the current district attorney's self-described "historic" prosecution of the Archdiocese of Philadelphia.

How could the former district attorney, Lynne Abraham, and one grand jury back in 2005 look at the state law for endangering the welfare of a child [EWOC], and decide it didn't apply to Msgr. William J. Lynn, Cardinal Anthony J. Bevilacqua, or any other high-ranking official at the archdiocese?

And how could the current district attorney, Seth Williams, and another grand jury in 2011 look at that same exact EWOC law and decide it did apply, not only to Msgr. Lynn, but also to Father James J. Brennan, Father Edward V. Avery, Father Charles Engelhardt, and Bernard Shero?

In the appeals battle over the conviction of Msgr. Lynn, District Attorney Seth Williams finally had to answer the question that he had previously been dodging. The D.A.'s official explanation for the flip-flop was spelled out in a 63-page brief filed June 25th in Superior Court.

In the brief, written by Hugh J. Burns Jr., chief of the D.A.'s Appeals Unit, the author conceded that one Philadelphia district attorney got it right and one Philadelphia district attorney got it wrong.

The question is, did Burns prove that his current boss, Seth Williams, got it right?

Or did Burns, in the opinion of Msgr. Lynn's defense lawyer, Thomas A. Bergstrom, write a fatal flaw into his argument that finally exposed Seth Williams's tortured logic?

The decision may ultimately not only affect Msgr. Lynn, but also Engelhardt and Shero. All three men are now sitting in jail after being convicted of one count of EWOC each. The decision may also impact Father Brennan,  acquitted last year when a jury hung on two charges against him, one of which was EWOC. The priest is scheduled to be retried Oct. 21.

In his brief, Burns noted that Msgr. Lynn "complains that a 2005 grand jury report written by counsel for the prosecution concluded that high-level Archdiocesan officials could not be successfully prosecuted, and at the time the Commonwealth did not charge him; but a later Grand Jury that heard additional evidence recommended charging ..."

Burns wrote that Lynn "concludes ... these events establish that, in the opinion of the prosecutors (or at least those who wrote the 2005 report)" that the state EWOC law "does not apply to him."

"This complaint is illegally incoherent," Burns wrote. "An exercise of prosecutorial discretion in declining to charge at one point in time has nothing to do with a purely legal issue of statutory construction, which is for this Court to determine and is not controlled by the opinions of counsel."

In other words, the Superior Court can decide which D.A. got it right, and which D.A. got it wrong. In his brief, Burns conceded that one of the two D.A.s screwed up.

"Further, that one of the Commonwealth's two charging decisions was arguably wrong (albeit the latter was based on additional evidence) does not mean that the one [decision] defendant dislikes is wrong," Burns wrote.

It should be noted that the "additional evidence" that the 2011 grand jury heard, as mentioned by Burns, was the extremely suspect testimony of two drug-addicted criminals, Billy Doe and Mark Bukowski.

The state's EWOC law, which went into effect in 1972, says: "A parent, guardian or other person supervising the welfare of a child under 18 years of age commits a misdemeanor of the second degree if he knowingly endangers the welfare of a child by violating a duty of care, protection or support."

In previous legal filings, Msgr. Lynn's lawyers have argued that state appeals courts have interpreted those "supervising the welfare of a child" to be people in direct contact with children, such as parents, guardians and teachers. Since 1972, defense lawyers argued, the state EWOC law has been applied in nearly 300 cases. Until Lynn came along, that 1972 EWOC law had never been applied to a supervisor.

Unfortunately, for Msgr. Lynn, it wasn't his only legal milestone.

On June 22, 2012, Lynn became the first Catholic administrator in the country to be sent to jail in connection with the church's sex abuse scandals when he was convicted by a Philadelphia jury on one count of EWOC. Specifically, Lynn was charged with placing Father Avery, a known offender, back in ministry where he raped a 10-year-old altar boy identified in the 2011 grand jury report as Billy Doe.

Lynn is now serving a 3 to 6 year jail sentence.

The D.A., in his brief, would like to forget that after no archdiocese official was charged with EWOC in 2005, the district attorney's office began campaigning state-wide for the EWOC law to be amended to include supervisors.

The D.A.'s office in its campaign admitted that even if the amended law was passed, nothing could be done retroactively under the amended law to charge any archdiocese official with a crime.

When the amended law was introduced in the state legislature, proponents claimed new language was needed to include supervisors, because the old law didn't apply to supervisors. This legislative history, the D.A. argued in its most recent filing, is "useless" and "legally inadmissible."

The amended EWOC law, which took effect in 2007, says, "A parent, guardian or other person supervising the welfare of a child under 18 years of age, or a person that employs or supervises such a person, commits an offense if he knowingly endangers the welfare of the child by violating a duty of care, protection or support."

In the D.A.'s brief, Burns conceded that Lynn could not have been charged under the amended 2007 EWOC law, because his crime occurred before the law was amended.

"Proceeding under the 2007 amendment would also have been impermissible as an ex post facto violation of the constitution," Burns stated on page 24 of the D.A.'s brief.

But two pages later, on page 26, Burns stated, "As Defendant well knows, he endangered the welfare of [Billy Doe] by breaching his duty to prevent priests under his supervision, such as Avery, from sexually molesting children. The evidence is sufficient because defendant was Avery's supervisor, with a specific duty to prevent Avery from doing exactly what defendant instead facilitated."

Thomas A. Bergstrom

That argument put a smile on the face of defense attorney Bergstrom.

"They've fallen into their own trap," Bergstrom said. "The old law requires that Lynn be the supervisor of the welfare of a child. That there be direct contact between Lynn and the child. The new statute doesn't make that connection. They [the D.A.] just ignore the fact that Lynn is not supervising a child."

Instead, the D.A. argued in their brief that Lynn's duty was to supervise Avery.

"That's the new statute," Bergstrom said. "That's absolutely fatal to them. Now if I can only get a judge to listen to me ..."

Elsewhere in the D.A.'s brief, however, Burns argued that the meaning of the amended 2007 law in effect was there all along in the wording of the original 1972 statute. It's a clever argument about semantics. In order to succeed, it requires that the history of the law and how it was applied by prosecutors and the appeals courts, as well as the legislative history of the 2007 amendment, disappear.

"While the defendant argues that the evidence failed to show that he was a 'supervisor of children' ... the plain language of the [original] statute applies to a 'person supervising the welfare of a child, not 'supervising a child,'" Burns wrote. "It is therefore not limited to supervision of a child but includes supervision of the welfare of children ..."

"Under the unambiguous language of the statute, defendant was a person 'supervising the welfare' of children, with a clearly defined duty to protect them from priests under his supervision who were known to have already sexually abused children and who presented a threat of similar conduct in the future," Burns wrote. "By doing just the opposite and exposing children to danger, defendant violated his duty of care, and thus the statute."

"In arguing to the contrary, defendant seizes upon anything and everything except the only thing that matters," Burns wrote, namely, "the plain language of the statute under which he was convicted."

Not exactly, Mr. D.A. Here's where the D.A.'s argument finally crashes and burns. It's the inevitable result of what happens when public officials take the meaning of a law and twist it into a pretzel, to suit their own political purposes.

If the D.A. is right, then he gets to wave a magic wand, and claim there never was a problem with interpreting the meaning of the original law.

If the wording of that original EWOC law was as plain and unambiguous as the D.A. claims, then why did they have to amend that law to include supervisors?

Why did two successive district attorneys -- and two grand juries -- take totally opposite positions based upon totally opposite interpretations of that same original law?

In the world of Seth Williams, where the only governing principle is political expediency, anything is possible. But at the end of the day, maybe an appeals court will finally expose this district attorney for what he's been able to get away with since 2011, namely a cheap magic trick worthy of a charlatan.