Philadelphia — Defense lawyers for a priest and a Catholic school teacher convicted of raping a former altar boy claim that prosecutors didn't tell them about a witness who would have bolstered the testimony of a key defense witness and called into question the accuser's credibility.
Claiming prosecutorial misconduct, defense lawyers are seeking a new trial in Pennsylvania Superior Court. In their latest filings, they charge that prosecutors violated Brady v. Maryland, a landmark 1963 U.S. Supreme Court ruling that says prosecutors can't withhold "exculpatory evidence" that could clear a defendant.
In a strange twist that confounds legal experts, the court ordered the filings to be sealed.
The charge of prosecutorial misconduct is in an application to amend the appellant brief filed July 9 in Pennsylvania Superior Court by Burton A. Rose, a lawyer for former teacher Bernard Shero. Michael J. McGovern, who is also seeking a new trial for his client Fr. Charles Engelhardt, filed the same application to amend on July 10.
The same day, the district attorney's office asked the court to seal the records in the cases. On July 29, the dockets in both cases recorded that the seal was granted, but no reason was stated regarding why.
"That's a very extraordinary remedy," said Alan J. Tauber, a former defense lawyer for Msgr. William J. Lynn, who was also sent to jail because of accusations from the same former altar boy. "I don't know what basis they would have to put this under seal."
A spokesman for the district attorney's office did not respond to a request for comment.
The application to amend concerns the testimony of Judy Cruz-Ransom, a social worker who was a victims' assistance coordinator for the Philadelphia archdiocese.
On Jan. 30, 2009, Cruz-Ransom and another archdiocesan social worker, Louise Hagner, drove out to take a statement from the accuser, then 20 years old, who had called in on an archdiocesan hotline the day before to report an allegation of abuse. Throughout court proceedings, the accuser has been identified as "Billy Doe."
At the criminal trial of Shero and Engelhardt, Doe testified he was high on heroin when he got into the car driven by Cruz-Ransom and gave a statement to Hagner, who was taking notes.
Doe told the jury that when he met with the social workers, he was staggering and slurring his words and was basically in a "semi-comatose state." That's why he didn't remember a bunch of tall tales he told Hagner, Doe testified to a jury.
Hagner testified that Doe claimed that Shero had punched him in the face and tried to strangle him with a seat belt before he raped Doe, then 11 years old. Doe also claimed to Hagner that Shero had ripped his shirt during the attack, and that afterward, Doe threw that ripped shirt in the sewer.
At the trial of Engelhardt and Shero, however, Doe conceded to the jury that Shero had never punched him the face, strangled him with a seat belt or ripped his shirt. Doe also conceded that he never threw his shirt in the sewer.
Hagner had testified that Doe also claimed that Engelhardt had anally raped him for five hours inside the sacristy of St. Jerome Church after Mass, and that afterward, the priest had threatened to kill Doe if he told anybody.
But at the trial of Engelhardt and Shero, Doe conceded to the jury that Engelhardt didn't anally rape him and didn't threaten to kill him. Instead, Doe told the jury that he engaged in mutual masturbation and oral sex in separate incidents with Shero and Engelhardt.
Doe still insisted he was high on heroin when he met the two social workers from the archdiocese.
On Jan. 13, 2013, at the trial of Shero and Engelhardt, a defense lawyer asked Hagner whether Doe appeared drunk or high the day she interviewed him.
"No," Hagner told the jury. "We would never interview anyone who was impaired."
A few times during the interview with Doe, Hagner told the jury, Doe "put his head down and made crying noises." But when he lifted his head, the social worker said, "his eyes weren't red and there weren't any tears."
Hagner became the defense's most important witness. In his closing argument at the criminal trial, defense attorney Rose argued that there was no reason why Hagner would have given false testimony.
The prosecutor went after Hagner so hard on cross-examination that defense lawyer McGovern told the jury that the social worker was treated like she was "some sort of un-indicted co-conspirator."
During the prosecutor's closing statement, Assistant District Attorney Mark Cipolletti spent as much time attacking Hagner as he did the defendants. Cipolletti told the jury that Hagner was trying to protect the archdiocese but "couldn't keep track of her own lies."
Cruz-Ransom was never interviewed by police nor called to testify before a grand jury. She also refused to be interviewed by defense attorneys prior to the Engelhardt-Shero criminal trial. As a result, the defense didn't call her as a witness because they had no idea what she would have said on the witness stand.
In a separate civil action, Doe v. Archdiocese of Philadelphia et al, Doe is suing the church, Shero and Engelhardt in Philadelphia Common Pleas Court, seeking money for his alleged suffering. The case is expected to go to trial next year.
It is for that civil case that Common Pleas Court Judge Jacqueline Allen issued an order April 2 compelling Cruz-Ransom to give a deposition requested by Doe's civil lawyer or "risk the imposition of sanctions," according to the court docket.
The application to amend asserts that Cruz-Ransom stated in that deposition that she was accompanied by her own attorney when she spoke with prosecutors before the Engelhardt-Shero trial.
The application claimed prosecutorial misconduct because the prosecutors did not disclose that they had interviewed Cruz-Ransom nor did they turn over any record of what Cruz-Ransom had told them. The defense at trial was hindered because Cruz-Ransom's testimony would have corroborated the defense's chief witness, Hagner, claimed the application.
Cruz-Ransom's testimony would have backed up the trial testimony of Hagner that Doe did not appear to be under the influence of drugs or alcohol when they interviewed him and that he appeared to do some fake crying, the application claimed.
The application to amend claimed that Cruz-Ransom testified in the civil deposition that while she was driving, Doe directed her to a location near a dumpster in front of an apartment building where he claimed Shero had assaulted him. At trial, Doe had claimed that Shero had assaulted him in a park.
On Jan. 30, 2013, a jury convicted Shero and Engelhardt of sexually abusing Doe.
Shero, 51, was sentenced to eight to 16 years in prison after he was convicted of the rape of a child, attempted rape, involuntary deviate sexual intercourse with a child, endangering the welfare of a child, corruption of a minor, and indecent assault.
Engelhardt, 67, was sentenced to six to 12 years after he was convicted of endangering the welfare of a child, corruption of a minor, and indecent assault.
According to the dockets in the Shero and Engelhardt cases, the district attorney is to file responding briefs in the Superior Court on Friday.
A third alleged assailant of Doe, former priest Edward Avery, 71, is serving two-and-a-half to five years after pleading guilty on March 22, 2012, to involuntary deviate sexual intercourse with a child and conspiring with Lynn to endanger the welfare of a child.
On Jan. 13, 2013, after he was called as a prosecution witness in the criminal trial of Shero and Engelhardt, Avery recanted his former guilty plea. On the witness stand, Avery stated he had never touched Doe. He had only pleaded guilty, he told the jury, because at the time he was 69 years old and was facing a prison sentence of more than 20 years.
"I did not want to die in prison," Avery told an astonished prosecutor Cipolletti. "I chose to take the plea."
Last month, after serving his mandatory minimum sentence of two-and-a-half years, Avery was turned down for parole because, he was told, he had not expressed any remorse for the crimes he had pleaded guilty to. Avery remains in jail, where he will presumably serve out the rest of his sentence.
According to his lawyer, Mike Wallace, Avery said it was hard to express remorse for "something he didn't do."
A fourth man sent to jail because of Doe's allegations is Lynn, former secretary for clergy for the Philadelphia archdiocese.
Lynn, 63, was convicted on June 22, 2012, by a jury on one count of endangering the welfare of a child because in his supervisory role of abusive priests, he failed to prevent the rape of Doe by Avery. Lynn became the first Catholic administrator in the country to be sent to jail for the sexual sins of the clergy.
The monsignor had served 18 months of a three- to six-year prison term on Dec. 26, 2013, when the Pennsylvania Superior Court overturned his conviction. The state appellate court ruled that Pennsylvania's original 1972 child endangerment law did not apply to supervisors such as Lynn, only to those who had direct contact with children, such as parents, guardians or teachers.
The law has since been amended to include supervisors. After Lynn's conviction was overturned, District Attorney Seth Williams successfully petitioned the state Supreme Court to review the case.
Lynn is under house arrest as he awaits a hearing before the state's highest court. A judge has confined Lynn to residing on two floors of a parish rectory in northeast Philadelphia, where he must wear an electronic monitoring ankle bracelet at all times
[Ralph Cipriano, former reporter for The Philadelphia Inquirer and the Los Angeles Times, is an author and currently writes a blog for bigtrial.net.]