Msgr. Lynn's Lawyers: D.A. "Breathtakingly Dishonest"

By Ralph Cipriano
for BigTrial.net

It was supposed to be a sober exchange of appeal briefs. But the battle now before the state Supreme Court over the fate of Msgr. William J. Lynn has turned into a legal brawl.

Lynn is the former secretary for clergy for the Archdiocese of Philadelphia from 1992 to 2004, who was convicted in 2012 on one count of endangering the welfare of a child, namely Danny Gallagher, the "lying, scheming" former altar boy also known as "Billy Doe."

In December, the state Superior Court, for the second time in three years, overturned Lynn's conviction, and ordered a new trial. Lynn, serving a three  to six year prison term, has remained in jail, pending an appeal by District Attorney Seth Williams to the state Supreme Court.

The first time the state Superior Court reversed Lynn's sentence, in December 2013, the D.A. appealed to the state Supreme Court. Meanwhile, Lynn got out jail on house arrest. In April 2015, the state Supreme Court ruled in the D.A.'s favor, and Lynn was sent back to jail, where he remains. So the D.A. is hoping that lighting strikes twice.

But Thomas A. Bergstrom and David A. Schumacher, Lynn's lawyers, have broken out the brass knuckles. In a 15-page appeal brief filed today, the defense lawyers stated that the D.A.'s appeal brief to the state Supreme Court contains "statements and allegations that are breathtakingly dishonest." Also, the "level of unprofessionalism" exhibited by the D.A.'s petition is so "alarming" that it appears the only objective is to "drive this [Supreme] Court to a decision grounded in emotion," the defense lawyers wrote.

Last December, the Superior Court judges ruled that the trial court -- Common Pleas Court Judge M. Teresa Sarmina -- had "abused its discretion" by allowing 21 supplemental cases of sex abuse to be admitted as evidence against Msgr. Lynn.

The 21 cases dated back to 1948, three years before Lynn was born, and took up at least 25 days of the 32-day trial. In his appeal brief, Lynn's lawyers argued that the prosecution "introduced these files to put on trial the entire Archdiocese of Philadelphia, hoping to convict [Lynn] by proxy for the sins of the entire church."

The Superior Court judges agreed, ruling that the "probative value" of the supplemental cases "did not outweigh its potential for unfair prejudice, and that this potential prejudice was not overcome by the trial court's cautionary instructions."

In their decision, the Superior Court judges heavily criticized Judge Sarmina, whom they had reversed on the same case for the second time in the three years. The judges wrote that Sarmina "has apparently mistaken quantity for quality in construing the probative value of this evidence en masse." The Superior Court judges further declared that the "probative value of significant quantities of this evidence was trivial or minimal."

That prompted the D.A. to write a 30-page petition filed March 10th seeking a review of the Superior Court decision reversing Lynn's conviction and ordering a new trial. In its brief, the D.A. stated that the 21 supplemental sex abuse cases allowed into evidence by Judge Sarmina were relevant, necessary and not excessive, and that "the risk of improper prejudice was minimal."

In its statement of the case, the district attorney began by saying, "Defendant was a high-ranking Archdiocesan official specifically responsible for protecting children from pedophile priests. Instead, he relocated them as part of a general scheme of concealment, in a manner that put numerous children at risk of being sexually molested."

But according to the defense lawyers, the D.A.'s petition is "hinged on two inaccurate, uncharged and unproven allegations: that Father [Edward] Avery was a pedophile and that [Lynn] reassigned Avery as part of a general scheme of concealment."

"The record is absolutely clear," the defense lawyers state. "Avery was never diagnosed as a pedophile," and that Lynn "never reassigned Avery" and "had no authority to assign or transfer any priests."

"Only Cardinal Bevilacqua had such and final authority," the defense lawyers wrote. "Finally, no scheme to conceal was ever charged or proven."

It is true, as the D.A. knows, that Avery was never diagnosed as a pedophile. The padre was interested in teenagers, not children. At Lynn's trial, the jury found Lynn not guilty of conspiring with Avery, or anyone else, to endanger the welfare of a child. It was also established through trial testimony that only Bevilacqua had the authority to reassign or transfer priests.

"Not satisfied with distorting the facts," the defense lawyers wrote, the D.A. "fires a missile across the state Superior Court's bow by suggestion that the Court's decision will lead to unreported sex abuse."

The defense lawyers quoted the D.A.'s brief as saying, "The message of the Superior Court's divided decision is a dismal one -- it signals victims of child sexual abuse who are already reluctant to come forward that they may do so in vain."

"A more reckless and incendiary charge is unimaginable," the defense lawyers wrote.

The defense lawyers quote the D.A. as saying that Lynn provided "aid to pedophile priests [which] led directly to the abuse" of Danny Gallagher by Avery. "Nothing is further from the actual truth," the defense lawyers wrote.

"Among the 21 abusive priests uncovered in the secret archive files, and those he investigated, only 2 were diagnosed as pedophiles," the defense lawyers wrote, referring to former priests Peter Dunne and Nicholas Cudemo.

Lynn recommended in 1993 that Dunne be removed from ministry, the defense lawyers wrote. Lynn had "no involvement with Cudemo," who was removed from the priesthood in 1995, and permitted to retire the following year.

Attached to its brief, the defense lawyers included a six-page summary of the 21 priests who were the subject of the supplemental sex abuse cases allowed into evidence by Judge Sarmina, along with the "abusive history" of each to show that the D.A. had misstated the facts on most of the cases.

"Faced with the knowledge that the Superior Court decision was completely correct," the defense lawyers wrote, the D.A. "resorts to draping all of the foregoing baseless arguments in the cloak of emotion, submitting time-and-again that this Court should grant its Petition because of the 'high profile' nature of the case. Unfortunately for the Commonwealth, the media attention paid to a case is not one of the Standards Governing Allowance of Appeal . . . and its Petition should be denied."

The defense lawyers rip the D.A. for repeatedly "appealing to the [Supreme] Court's emotions." The defense lawyers quote the D.A.'s petition as saying, "Defendant was a high-ranking Archdiocesan official," and, "The high-ranking degree of national attention focused upon this case greatly exacerbates this problem, which transcends the interest of the parties."

And: "This case is being closely followed, not merely by the media and the public at large, but by victims of similar kinds of sexual abuse."

The defense lawyers left out this other incendiary gem from the D.A.'s brief: "Victims may now more than ever fear to come forward because, given the ultimate result in the case of one of the very masterminds of such a plot, there simply is no point."

It's hard to be a mastermind of a plot when the jury decides there was no conspiracy between Lynn and Avery, or Lynn and anybody else.

The state Supreme Court's standards for allowing petitions for appeal include if the lower court decision was erroneous, or conflicts with a higher court's decision. Other standards include if the case is of "substantial public importance." And if the lower court "has so far departed from accepted judicial practices or so abused its discretion as to call for the exercise of Pennsylvania Supreme Court's supervisory authority."

"The standard is a tough one," the defense lawyers wrote. It's so tough that in 2014, the defense lawyers wrote, only 39 petitions were accepted, and 1,954 were denied. The D.A. is "undoubtedly aware of these statistics," the defense lawyers wrote, and that's why the D.A. "has resorted to its groundless, passion-based position."

The district attorney in its petition contained "no discussion whatsoever" of any of the seven factors that the state Supreme Court is supposed to consider for appeals, the defense lawyers wrote. "The reason for that is obvious," the defense lawyers wrote. The D.A. "cannot pass the general test nor satisfy any of the factors."

There is nothing special about the Lynn case, or important, the defense lawyers argued. The Superior Court decision is "non-precedential and unpublished," meaning it can't be cited by another court or party in any other action.

Long odds, according to the defense lawyers. That explains why the D.A. 's office had to distort facts and appeal to emotion.  They're on a crusade to keep Lynn, the trophy head of the D.A.'s self-described "historic" prosecution of the church, in jail "where he belongs," as previously stated by Seth Williams.