"A Single Breathtaking Admission"

Msgr. William J. Lynn

By Ralph Cipriano
for Bigtrial.net

It's the lawyer's version of yelling, "Gotcha."

In a 12-page reply brief filed today in Superior Court, defense lawyers for Msgr. William J. Lynn argued that District Attorney Seth Williams blew the entire case against Lynn by making a "single breathtaking admission."

The alleged admission: that the D.A. prosecuted Lynn "ex post facto," or after the fact, under the standards of an amended child endangerment law.

The district attorney's "single breathtaking admission" was contained in a 63-page brief filed June 25 in Superior Court. In the brief, the D.A. stated that Lynn had "endangered the welfare of" Billy Doe by "breaching his duty to prevent priests under his supervision, such as [Father Edward V.] Avery, from sexually molesting children. The evidence is sufficient because [Lynn] was Avery's supervisor, with a specific duty to prevent Avery from doing exactly what [Lynn] instead facilitated."

The D.A. was referring to Lynn's failure during the 1998-99 school year to prevent Avery from raping the 10-year-old altar boy known as Billy Doe. According to defense lawyers Thomas A. Bergstrom and Allison Khaskelis, the D.A.'s prosecution of Lynn for failing to supervise Avery was a "glaring ex post facto violation of the Constitutions of the United States and Pennsylvania."

"This is unquestionably the standard set forth in the 2007 amendment, which the Commonwealth has plainly admitted would violate the ex post facto provision," the defense argued, namely that Lynn was responsible, not for supervising the welfare of a child, but for supervising Avery.

The state's 1972 statute that makes it a crime to endanger the welfare of a child [EWOC] applies to "a parent, guardian or other person supervising the welfare of a child under 18 years of age."

The amended EWOC law, which took effect in 2007, was changed specifically to include supervisors such as Lynn. The amended law applies not only to "a parent, guardian or other person supervising the welfare of a child under 18 years of age," but also to "a person that employs or supervises such a person."

"By its own admission, it is evident that the Commonwealth did not even attempt to demonstrate that [Lynn] was a supervisor of a child," the defense lawyers argued in their brief.  The prosecution's "entire theory of the case and subsequent argument was geared to show that [Lynn] supervised Avery, who, in turn, allegedly supervised" Billy Doe, the defense lawyers wrote.

"By its own admission, the Commonwealth committed an unconstitutional ex post facto violation that merits the reversal of [Lynn's] conviction," the defense brief stated. "It was the Commonwealth's burden to demonstrate that [Lynn] was a supervisor of the welfare of a child ... This it could not and did not do under the law or on the facts."

Lynn is currently serving a 3 to 6 year prison term after his June 22, 2012 conviction by a jury on one count of EWOC.

The defense brief also took exception to the district attorney's characterization of the original 1972 EWOC law as being written in "unambiguous language."

The law is unambiguous "in that it did not cover individuals like [Lynn], the defense lawyers wrote. The defense lawyers pointed out that it was the district attorney's office that "unanimously spearheaded the effort to amend" the EWOC law, so that it would apply to "individuals like [Lynn]."

The defense brief refers to the "unprecedented flip-flop" of the district attorney's office over the interpretation of the meaning of the original EWOC law. In 2005, then-District Attorney Lynne Abraham and a grand jury concluded that the old EWOC law did not apply to Msgr. Lynn, Cardinal Bevilacqua, or any other high-ranking official of the Archdiocese of Philadelphia.

In 2011, District Attorney Seth Williams and a new grand jury concluded that the old EWOC law did apply to Lynn, as well as Fathers Avery, William J. Brennan, Charles Engelhardt, and a lay teacher, Bernard Shero.

"As has been demonstrated before, the Commonwealth has been willing to change its theory of this case at every juncture to suit its thirst for a high-profile conviction," the defense lawyers wrote.

The district attorney has the option of responding in writing to the defense brief. Or the district attorney can respond when oral arguments are made in Superior Court later this fall on Lynn's appeal.

Meanwhile, Msgr. Lynn remains in jail at SCI Waymart, about 30 minutes north of Scranton.