When Prosecutors Cheat

By Ralph Cipriano
for Bigtrial.net

When Assistant District Attorney Peter Carr stood to begin oral arguments today in Superior Court, Presiding Judge Anne E. Lazarus let him know before he said a word that he was facing an uphill climb.

"You've got your work cut out for you," she warned Carr.

During the hearing, allegations of judicial errors and prosecutorial misconduct were piling up as defense lawyers for Father Charles Engelhardt and former Catholic school teacher Bernard Shero argued that their clients deserved a new trial.

Carr attempted to blow off most of the accusations as a "harmless error" here, a "not consequential" error there, and, best of all, "certainly not a "reversible error."

But Judge Lazarus cut him off and said she agreed that when weighed individually the errors might indeed be minor. But the judge said there were so many errors and her concern was that the "quantitative effect" of all those errors might have fundamentally compromised the defendants' rights to a fair trial.

It was the most powerful moment of the hearing. A half-dozen blocks away at the district attorney's office, you could almost hear Seth Williams screaming.

In the D.A.'s self-described "historic" prosecution of the Archdiocese of Philadelphia, the Superior Court has already reversed the conviction of Msgr. William J. Lynn. In court today, defense lawyers were seeking reversals for two more defendants in that historic prosecution -- Engelhardt and Shero. Would hitting the trifecta on reversals make appellate history?

TESTICULAR PAIN AND A SIXTH-GRADE REPORT CARD

Burton A. Rose, the lawyer for Shero, got the hearing started by faulting the trial judge in the case, Judge Ellen Ceisler, for allowing Dr. Gerald Margiotti, a pediatrician, to testify as an expert to the jury in the Engelhardt-Shero case.

Dr. Margiotti testified about the victim in the case, Billy Doe, saying that Billy's boyhood complaint of testicular pain was consistent with sexual abuse. The defense cried foul because the pediatrician had never examined Billy Doe, and was not qualified as an expert. Rose told the Superior Court judges that had he known that Judge Ceisler was going to allow Dr. Margiotti to testify as an expert witness, he would have brought in his own expert witness to refute the doctor.

After Dr. Magiotti testified, the prosecutor told the jury that the doctor's testimony amounted to "scientific medical corroboration" of Billy Doe's accusation of sex abuse, Rose told the judges. The prosecutor, former Assistant District Attorney Mark Cipolletti, also told the jury that Billy's testicular pain was a "silent witness," Rose said, that "the victim didn't make it up."

Rose also faulted the judge for allowing the prosecutor to misstate the evidence in his closing statement to the jury regarding the number of absences Billy Doe had on the final marking period of his sixth grade report card. Billy Doe testified that after he was raped by Shero, his homeroom and English teacher, he became seriously ill and missed a lot of school. 

Billy Doe's report card for the time period in question, however, the fourth quarter of the 1999-2000 school year, showed zero absences. In his closing statement to the jury, prosecutor Cipolletti, according to Rose, told the jury three times that Billy Doe during the fourth quarter of sixth grade was absent 3 1/2 days.

The report card showing zero absences was "evidence of reasonable doubt," Rose said. "Where he [Cipolletti] got that number I don't know."

The defense objected at trial, but Judge Ceisler overruled their objections. Judge Ceisler also decided not to instruct the jury that Cipolletti had stated the wrong facts. Instead, the judge decided to rely on the jury's memory of what the facts were.

"NEWLY DISCOVERED EVIDENCE"

Next, Rose brought up "newly discovered evidence" that had originated in Billy Doe's civil suit against the Archdiocese of Philadelphia, where Billy is seeing to cash in on his alleged pain and suffering. Rose was circumspect in his discussion with the Superior Court judges because his filings in the criminal appeal have been sealed at the request of the district attorney.

Before he even spoke about the issue, Rose asked the judges for permission to talk about the filings. The judges agreed so the defense lawyer spoke cautiously.

In his filings with the court, Rose wrote that Shero deserved a new trial because of contradictory and false statements made by Billy Doe to his many drug counselors, statements that Rose claimed amounted to a "fantasy of sexual abuse."

Billy Doe's medical records unveiled in the civil case showed that Billy first told his drug counselors he had "no history of physical or sexual abuse."

Then Billy told his drug counselors he was: sexually abused at 6 by a friend; sexually abused at 7 by a teacher; sexually abused or raped at 8 by an unknown assailant; sexually abused or raped at 9 by an unknown assailant; and sexually abused again at 9 by a 14-year-old family friend.

This was before Billy told the district attorney he was raped at 10 by Father Engelhardt and Father Edward V. Avery, and at 11 by school teacher Shero.

In their criminal appeal, Rose and McGovern also accused prosecutors of misconduct for not telling them about a witness they interviewed before trial, Judy Cruz-Ransom, a social worker who was a victims’ assistance coordinator for the Philadelphia archdiocese.

Cruz-Ransom and another archdiocesan social worker, Louise Hagner, took the first statement from Billy, after he called in on an archdiocesan hotline the day before to claim he was abused. 

In her deposition in the civil case, Cruz-Ransom corroborated the testimony of Hagner in the criminal case: that Billy Doe had appeared sober and seemed to be faking tears as the told the two social workers wild stories about being anally raped for hours, getting punched and knocked unconscious,  being tied up with altar sashes and strangled with a seat belt.

But when Billy retold his stories to the police and grand jury, all that violence and anal rape was dropped from his story. Billy attempted to explain this away by claiming he was high on drugs when he talked to the social workers.

A CONSPIRACY CHARGE AND A RECANTING

Next up was Michael J. McGovern, arguing on behalf of Father Engelhardt. McGovern told the Superior Court judges that Judge Ceisler should have tossed a conspiracy charge against Father Engelhardt a lot sooner than she did. During the trial, the judge overruled defense objections to the charge that Father Engelhardt had conspired with Father Edward Avery to endanger the welfare of Billy Doe.

There was "not a scintilla of evidence" of any conspiracy between Engelhardt and Avery, McGovern told the judges. McGovern made a motion before trial to get the conspiracy charge dropped, but Judge Ceisler refused.

After the jury delivered its verdict and convicted Engelhardt of conspiracy, the judge at sentencing announced she was going to throw out the conspiracy charge as unproven because she decided the jury had committed "an error of law," McGovern told the judges.

But that decision came after  Judge Ceisler had given lengthy and repetitive jury instructions on conspiracy and accomplice liability that took up 10 out of 44 pages of jury instructions and one page of a two-page jury verdict sheet, McGovern said. After the trial, the judge admitted she had made a mistake, McGovern said, but it was too late for his client.

McGovern also faulted Judge Ceisler for allowing prosecutor Cipolletti to conduct a lengthy cross-examination during the Engelhardt-Shero trial of his own witness, former priest Ed Avery.

On the eve of the first archdiocese sex abuse trial, Avery had pleaded guilty to involuntary deviate sexual intercourse with a child and conspiring with Msgr. Lynn to endanger the welfare of a child. At the time, Avery was facing a possible sentence of 13 1/2 to 17 years, when he cut a deal for a plea bargain that resulted in a  sentence of 2 1/2 to 5 years.

At the second archdiocese sex abuse trial, the Engelhardt-Shero case, the prosecution called Avery as a witness. When Cipolletti asked Avery if he had raped Billy Doe, Avery recanted, saying he had lied to take the plea bargain because he didn't want to die in jail. The truth was that he never touched Billy Doe, Avery told Cipolletti. He wouldn't even know Billy if he was in the courtroom.

Cipolletti, then was allowed by the judge to treat Avery as a hostile witness. The prosecutor proceeded to cross-examine Avery on whether he had abused six other alleged victims, even though there was "no evidence on the record" about any of the other alleged victims, McGovern told the Superior Court judges.

This was more judicial error and more prosecutorial misconduct that ruined his client's chances for a fair trial, McGovern argued to the Superior Court. At the time Cipolletti was allowed to beat up Avery, McGovern was still defending Engelhardt against the charge of conspiring with Avery to endanger the welfare of Billy Doe. So Judge Ceisler was letting Cipolletti have a field day with Avery at a time when Avery was Engelhardt's "co-conspirator," McGovern said.

The last thing McGovern complained about was another allegation of prosecutorial misconduct. In his closing, prosecutor Cipolletti told the jury that although there was no other alleged victim of Engelhardt out there except Billy Doe, more victims might be coming forward.

Here's what the prosecutor said that McGovern objected to: "What he [McGovern] didn't tell you was no child, no student has come forward" -- dramatic pause -- "yet."

After Cipolletti got through with his closing, McGovern motioned for a mistrial and a cautionary instruction for Cipolletti, but Judge Ceisler turned down both requests.

THE DISTRICT ATTORNEY'S REPONSE

Assistant District Attorney Peter Carr told the Superior Court judges that Judge Ceisler's decision to allow Dr. Margiotti to testify as an expert witness was a "harmless error."

The doctor would have qualified as an expert witness if the prosecutor had asked, Carr argued. The defense lawyers knew the doctor was going to testify, so there was "no surprise," Carr said.

Judge Sallie Updyke Mundy asked Carr how were the defense lawyers supposed to know what to expect if they didn't know that Dr. Margiotti was going to testify as an expert witness.

Judge Lazarus told Carr that the normal procedure would have been to have a voir-dire conducted of the doctor, so that lawyers in the case would have known whether he was qualified to be an expert witness.

Carr, clearly in retreat mode, continued to insist that letting the doctor testify as an expert was a "harmless error" because as a pediatrician, Dr. Magiotti clearly knew enough to made the "obvious" observation that testicular pain could have been evidence of sex abuse.

Letting Dr. Magiotti testify as an expert was "not consequential," Carr argued to the Superior Court judges.

On the issue of Billy Doe's sixth-grade report card, Carr conceded that the "prosecutor seems to have misspoken." Carr claimed that Cipolletti made the mistake of quoting Billy Doe's absences during the third-quarter marking period, rather than his fourth-quarter absences. But it was "not a significant issue," Carr told the judges.

On the conspiracy charge, Carr argued that there was evidence of a conspiracy between Fathers Engelhardt and Avery, even though Judge Ceisler dismissed the conspiracy charge as unproven.

The "evidence" that Carr cited was frankly, pathetic -- Billy Doe's allegations that the two priests had used the code word "sessions" to describe their alleged sexcapades with Billy.

The assistant district attorney was drawing on a bogus 2011 grand jury report based on Billy's nonsensical stories that had Avery telling Billy he had heard about his "sessions" with Billy from Engelhardt, and that Avery's "sessions" with the hapless altar boy would soon be getting underway.

That was "not an idle conversation," Carr told the judges. That's how Engelhardt was able to point out to Avery a "particularly vulnerable" victim like Billy, Carr argued.

Attention Assistant District Attorney Carr: I know you probably drew the short straw for this assignment, but before you embarrass yourself further, the detectives in your own office came up with a far more plausible explanation for "sessions."

Nearly two years after the district attorney put out that bogus 2011 grand jury report with more than 20 factual mistakes in it, detectives interviewed one of Billy's drug counselors, Mark Besben. It was Besben who divulged that "sessions" was the term for one one-on-one and group therapy sessions that counselors had with addicts like Billy. After attending 23 drug rehabs, that's probably where Billy picked up the term.

Carr defended Cipolletti's cross-examination of Avery by saying that the prosecutor did not know whether any future victims would have come forward. He was just holding out that possibility to the jury.

By this time, Carr was getting tired. He only had a half an hour for oral arguments, and as he conceded to the judges, "There a lot of issues here."

Judge Mundy asked about Dr. Magiotti's testimony. When did the doctor say Billy's testicular pain occurred, she wanted to know.

It was about a year before the rape of Billy by Shero, Carr told the judge. So it didn't really matter.

What about the victim, Judge Mundy asked. What was his testimony regarding when the testicular pain occurred?

Carr said he didn't know.

On rebuttal, Burt Rose shot up and told Judge Mundy that Billy Doe, always marching to his own drummer, told the jury that the testicular pain happened "after sixth grade," when Billy had supposedly been raped by Shero.

So maybe it did matter.

A NEW ACCUSATION OF PROSECUTORIAL MISCONDUCT

The defense lawyers had one last log to throw on the fire. They didn't bring it up during oral arguments, but on Oct. 23, McGovern filed a "second application" on behalf of Engehardt to "amend brief and reproduced record."

In the application, McGovern charged additional prosecutorial misconduct regarding the testimony of Leo Omar Hernandez. At the Engelhardt-Shero trial, Hernandez testified that he was Billy Doe's "best guy friend" when the two were sophomores at the International Christian Academy High School in Northeast Philadelphia.

Hernandez testified that while they were 16-year-old sophomores, Billy allegedly told him about being sexually abused by two priests and a teacher. Hernandez was the only witness at the trial to offer any corroborating evidence of Billy's accusations.

In his new application, McGovern asks the Superior Court to remand the matter of whether his client deserves a new trial to the Court of Common Pleas for an evidentiary hearing. The issue to be debated: "The Commonwealth's failure to inform ... trial counsel that Leo Omar Hernandez, a key witness for the prosecution, was less than truthful in his testimony against these defendants."

It was the understatement of the day, as McGovern would go on to explain.

"Leo Omar Hernandez testified at the trial that he left the U.S. Air Force in 2008 with an honorable discharge," McGovern wrote. "Mr. Hernandez testified that he ended his friendship with [Billy Doe] because he was upset with [Billy Doe] who was getting involved in illegal drug use including heroin."

"Mr. Hernandez was portrayed by the Commonwealth as an upright and moral young man whose integrity could not be subject to question," McGovern wrote. In his closing to the jury, prosecutor Cipolletti referred to Leo Hernandez as an "Air Force veteran working, working on his own, has a family, a kid, hasn't seen [Billy Doe] in years," McGovern wrote, quoting the prosecutor.

The prosecutor referred to Hernandez as a "stand-up guy" with "common sense" who fought with Billy over his drug use and eventually concluded, "I can't get involved with this," McGovern wrote, quoting the prosecutor.

But, McGovern wrote, he has since learned that less than two months after he testified as a witness at the Engelhard-Shero trial, Hernandez filed a medical malpractice case in Philadelphia Common Pleas Court against a doctor whom Hernandez claimed had gotten him hooked on drugs and then sexually abused him.

"At his deposition on May 22, 2014, Mr. Hernandez testified that he was discharged under honorable conditions from the U.S. Air Force in 2009 for a 'failure to adapt,' " McGovern wrote. Hernandez received an honorable discharge under general conditions "due to misconduct involving a serious offense," McGovern wrote. "Discovery as to this issue is presently ongoing."

"Mr. Hernandez also testified at the deposition that he does not reside with his son [as was testified to at trial] but rather lives by himself," McGovern wrote. "More importantly, Mr. Hernandez testified that he has been employed part-time as an exotic dancer in all-male exotic clubs in Philadelphia ... and that he had been involved in a homosexual relationship with the defendant in the civil case ... who injected him with drugs from May 2011 to March 2012, including opiates and synthetic heroin."

"Mr. Hernandez also testified at one point he was so ill he was admitted to an emergency room in Las Vegas, Nevada for having overdosed from the use of controlled substances," McGovern wrote. "Finally, Mr. Hernandez testified that he himself was the victim of sexual abuse committed by his own doctor."

Regarding prosecutorial misconduct, McGovern "contends that the Commonwealth either knew, or should have known, of these facts, and should have made such knowledge available" to defense lawyers at the Engelhardt-Shero trial.

The failure to inform the defense of Leo Hernandez's secret life amounted to a "violation of Brady v. Maryland," McGovern wrote. The landmark 1963 U.S. Supreme Court ruling says that prosecutors can’t withhold “exculpatory evidence” that could clear a defendant. "Concealment of this evidence resulted in the denial" of Engelhardt's "right to a fair trial," McGovern concluded. His client "is entitled to a new trial as a matter of fundamental fairness."

If the Superior Court agrees, and overturns the convictions of Engelhardt and Shero, in addition to already overturning Msg. Lynn's conviction, maybe District Attorney R. Seth Williams should change his first name from Rufus to Reversal.