Archdiocese Serves Subpoena On District Attorney

Does This Man Have Anything to Hide?

By Ralph Cipriano
for Bigtrial.net

Here's a switch. More than a decade ago, after former District Attorney Lynne Abraham got a judge to serve multiple subpoenas on the Archdiocese of Philadelphia, the archdiocese in a civil case has talked a judge into serving a subpoena on Abraham's successor, District Attorney Seth Williams.

In a lengthy investigation that preceded a groundbreaking 2005 grand jury report on the church, D.A. Abraham got a judge to approve a series of subpoenas that pried open the archdiocese's secret archive files. The files, kept under lock and key in a safe, contained some 45,000 pages of documents detailing what the grand jury described as "countless acts of sexual depravity" committed by 169 priests over four decades against hundreds of children.

But on March 12, ruling in the civil case of former altar boy "Billy Doe," Common Pleas Court Judge Jacqueline F. Allen approved the serving of a subpoena on the D.A.'s office, over the objections of the former altar boy's lawyers.

Court records don't say what the archdiocese's lawyers are seeking. But since the archdiocese has recently deposed two detectives from the D.A.'s office, it would be logical to assume that the archdiocese wants to see the D.A.'s confidential files from his flawed investigation of Billy Doe.

BACKGROUND TO THE CIVIL CASE

Billy Doe is a grand jury's pseudonym for a former altar boy who claimed when he was 10 and 11 he was raped in separate attacks by two priests and a Catholic school teacher. In two historic criminal trials in Philadelphia, Billy Doe's allegations resulted in his three alleged attackers being sentenced to jail. In addition, a fourth defendant, Msgr. William J. Lynn, became the first Catholic administrator in the country to go to jail for not properly supervising predator priests.

The current D.A.'s investigation of Doe's allegations, however, as reported on this blog, was flawed from day one. In contrast to the groundbreaking work done under D.A. Abraham, namely that 2005 grand jury report that's withstood the test of time, a subsequent grand jury report done in 2011 under D.A. Williams was so sloppy it contained more than 20 factual errors.

Under Abraham, the D.A.'s office investigated the archdiocese for years and issued multiple subpoenas, the last of which was executed in 2002, before the D.A. published the 2005 grand jury report.

In contrast, under Seth Williams, the D.A.'s office issued its flawed grand jury report in January 2011, and then, 11 months later, detectives finally got around to interviewing witnesses in the case. And what did discover? Every witness statement that I've seen, including ones from the alleged victim's mother and brother, contradict Billy Doe's allegations.

In the civil case, scheduled to go to trial Aug. 3rd, Billy Doe is seeking to cash in on his alleged pain and suffering. Named as defendants are the archdiocese, Msgr. Lynn, and the three men who went to jail for raping Billy: Father Charles Engelhardt, former priest Edward V. Avery and former Catholic school teacher Bernard Shero. Also named as a defendant in the civil suit is the late Cardinal Anthony J. Bevilacqua.

Father Engelhardt died last November in jail after serving nearly two years of his 6-to-12 year sentence. Shero remains in jail serving 8 to 16 years, as does Avery, serving sentence of 2 1/2 to 5 years.

Msgr. Lynn was sentenced to 3 to 6 years in jail. But on Dec. 26, 2013 Lynn's conviction was overturned by the state Superior Court, which ordered him to be "discharged forthwith." More than a year later, however, the monsignor remains under house arrest on a couple of floors of a Northeast Philadelphia rectory while the state Supreme Court mulls his case.

Reporting on Billy Doe's civil case has been hampered by a voluntary confidentiality stipulation entered into by all the parties "to protect the confidentiality of medical records and other protected documents," according to the docket. Hence, the only information available on the case is what's reported on the lengthy civil docket.

Last month, Billy Doe's lawyers were thwarted in their efforts to seek summary judgment. On March 23rd, Judge Allen denied the plaintiff's motion for summary judgment against Avery. That same day, the judge denied the plaintiff's motion for summary judgment against Shero.

A THIRD GRAND JURY INVESTIGATION

According to the court docket, the case has been hard fought on both sides during a prolonged discovery process.

In a 36-page motion filed Jan. 5, the archdiocese's defense lawyers opposed "plaintiff Billy Doe's omnibus motion to overrule objections and compel discovery."

"With inflammatory bluster, plaintiff accuses the Archdiocese of making 'incomplete at best' productions, thereby warranting 'appropriate sanctions,' " wrote defense lawyers James J. Rohn, Nicholas M. Centrella, Frank R. Emmerich Jr. on behalf of the archdiocese.

During the civil case, the archdiocese has turned over 472 pages of discovery and "has made comprehensive responses to the vast discovery sought by plaintiff," the defense lawyers wrote.

"Significantly, plaintiff has deposed each and every living person who served within the archdiocese's administration in the 1990s and 2000s who might have knowledge of facts responsive to plaintiff's discovery requests," the defense lawyers wrote.

During the case where the first docket entry is recorded in July 2011, ten current or former archdiocese officials have been deposed. They include retired Bishop Edward P. Cullen, the archdiocese's former vicar for administration, who was deposed for two days.

Msgr. Lynn was deposed for three days.

Father Engelhardt was interviewed twice in prison before his death. Also interviewed in jail were Shero and Avery.

During the case, the plaintiff has filed "eight separate sets of discovery requests," that according to the archdiocese's defense lawyers, constitute an "overly broad and unduly burdensome order."

The plaintiff's discovery requests included a request to "compel the archdiocese to make admissions on behalf of dead individuals such as Mgr. [James E.] Molloy who passed away on March 14, 2006," the defense lawyers wrote.

Molloy was the archdiocese's former assistant vicar for administration.

"The archdiocese has good reason not to make admissions on behalf of deceased individuals or others no longer serving with the archdiocese," the defense lawyers wrote. In their response, the defense lawyers characterized the plaintiff's discovery requests as "overly broad, unduly burdensome and irrelevant."

"The plaintiff's repeated attempts to conduct a third grand jury investigation through these civil proceedings must be rejected," the defense lawyers wrote. The "plaintiff must be foreclosed from conducting a fishing expedition."

According to the defense lawyers, during the discovery process, a "civil claim for one alleged victim" has been "transformed into an inquisition of the archdiocese's handling of sexual abuse allegations across decades."

The archdiocese has "already responded to plaintiff's 984 requests for admission served March 4 2014, the defense lawyers wrote. "Plaintiff continues to abuse the discovery process."

In her ruling on the contested discovery motions, the judge seems to have split the baby. In an order entered March 12th, the judge ruled that the plaintiff's motion to overrule defense opposition and compel discovery was "granted in part." But no further details are divulged.

I PLEAD THE FIFTH 

While most of the depositions conducted during the civil case remain confidential, one notable exception posted on the docket is a transcript of a videotaped deposition of Avery conducted on Dec. 15, 2014, at SCI Laurel Highlands.

In the deposition, which lasted 17 minutes and was recorded on 21 pages, Avery pleaded the Fifth Amendment to every question.

A little background is in order here. On March 22, 2012, Avery pleaded guilty to involuntary deviate sexual intercourse and conspiring with Msgr. Lynn to endanger the welfare of a child. At the time, the 69-year-old Avery was facing a sentence of 13 1/2 to 27 years in jail. Instead, he got 2 1/2 to 5 years.

Avery subsequently recanted his plea deal, telling a prosecutor in court that the only reason he pleaded guilty and lied about raping a child he never met was because he didn't want to die in jail.

The transcript of Avery's jailhouse interview posted on the docket reveals the following exchanges:

Q.  Do you understand that today here during this videotaped deposition you have an opportunity to tell your side of the story to the civil jury who will be watching and listening to this deposition?

A. I plead the Fifth Amendment . . .

Q. Now, if you didn't actually sexually abuse [Billy Doe] you understand that today is an opportunity for you to say that under oath?

A. I plead the Fifth Amendment . . . 

Q. Mr. Avery you used to be a Catholic priest correct?

A. Yeah, I plead the Fifth Amendment . . . 

Q. Mr. Avery, you've never been married, correct?

A. I plead the Fifth Amendment.

Q. And you've never married because you'e not sexually attracted to women, correct?

A. I plead the Fifth Amendment.

Q. Mr. Avery, you are a pedophile, aren't you?

A. A. I plead the Fifth Amendment.

Q. Sir, you are a child molester, aren't you?

A. I plead the Fifth Amendment.