Read more about Philadelphia priest molestation lawsuits. This post is cross-posted on the Philadelphia Priest Abuse Trial Blog.

On Thursday, after the prosecution closed their case, Judge Sarmina swiftly dismissed the conspiracy charges against Monsignor Lynn and Father Brennan.  Although the move caught some observers by surprise, it was likely not a surprise to the prosecutors.  To prove a criminal conspiracy, the Commonwealth has to prove beyond a reasonable doubt that the defendants had a “shared criminal intent,” defined by Pennsylvania law as “the common understanding that a particular criminal objective is to be accomplished.” Commonwealth v. Lambert, 795 A.2d 1010 (Pa. Super. Ct. 2002). Whatever Monsignor Lynn’s crime was, the evidence did not show, beyond a reasonable doubt, that he intended for children to be molested.  Thus, the conspiracy charge was plainly difficult to prove from the onset, and the dismissal is not surprising given the actual evidence presented.


Which brings us to the core question of this case:  What was Monsignor Lynn’s intent?


For centuries, the English common law, and subsequently the American common law, has required that criminal convictions include proof of two separate elements:  the mens rea (the guilty mind) and the actus reus (the guilty act).  In Lynn’s case, he is charged with endangering the welfare of children, and I don’t think anyone can genuinely dispute that Monsignor Lynn’s actions in fact endangered the welfare of children within the Archdiocese of Philadelphia’s parishes and schools.  There is no denying that, as of at least February 18, 1994, when Lynn drew up the list of 35 sexually abusive priests, Lynn’s acts — such as his involvement in transferring priests around once allegations were made — and his inactions — such as his failure to ever report any of them to the police — allowed abusive clergy to keep preying on children in the community.  But it is a fundamental premise of our criminal law that the magnitude of the damage caused is not by itself enough to prove that a crime occurred, the prosecution must also prove he had the mens rea for the crime.


Proving mens rea is inherently difficult; “for who among men knows the thoughts of a man except the man’s spirit within him?” 1 Corinthians 2:11. It is only on television that defendants suddenly concede at trial their own guilt and malicious intent.  In real courtrooms, defendants never confess on the stand, and they also typically have not left behind “smoking gun” emails or letters outlining their wicked plans. Mens rea is thus typically proven through circumstantial evidence, and that’s why the prosecution put on the case they did, which at many times looked more like an indictment of the Catholic Church itself than of Lynn personally.  


Why did it matter that the Archdiocese of Philadelphia was aware of sexually abusive priests before Lynn was born, continuing through until Lynn’s appointment as Secretary of the Clergy in 1992?  Because, as Ralph Cipriano has described on this blog, Lynn’s defense has focused on his limited abilities as a mere priest.  He was not, as he testified, a lawyer (though Cardinal Bevilacqua was), nor was he a detective, nor did he have any sort of training in psychiatry or psychology.  The District Attorney’s Office has put on a broad circumstantial case to show that Lynn was not expected to be a detective, nor a prosecutor, nor a criminal profiler, but instead was only supposed to be a reasonable person — and what reasonable person would create a list of dozens of priests with abuse accusations against them and then, instead of alerting the authorities, actually enabled the priests to abuse more children by shuffling them around to unsuspecting parishes once accusations were lodged?


That’s why the tortuous path taken by Lynn’s February 1994 memo after it was written is so important.  The memo, of course, demonstrates that many officials within the Archdiocese of Philadelphia, including Lynn, knew of credible molestation accusations against priests within the Archdiocese.  That fact alone could, as part of the overall circumstantial case, show that Lynn knew he was endangering children by not acting on that list to stop future abuse.  But the strange tale of how that list finally came to light shows something else, too: consciousness of guilt, an awareness that the list itself implicated the Archdiocese and its officials.  Put another way, if the list wasn’t incriminating, why hide it? Indeed, why did the Archdiocese have any “secret archives,” a term the Pennsylvania Catholic Conference itself used to describe the files?


Dozens of books have been written by lawyers, jury consultants, law professors, and others about effective trial strategies that help persuade jurors and judges.  Two of the most common trial advocacy techniques are primacy and emphasis.  “Primacy” is the idea that jurors will more heavily weigh information they hear first, because it sets the stage of all the evidence they hear after that.  “Emphasis” is the competing, but not necessarily contradictory, notion that jurors will also heavily weigh the last evidence they hear, because it concludes the story and provides a framework for re-evaluating the evidence presented throughout the case. 


Looking at the prosecution’s case, it’s not difficult to see how they used primacy and emphasis to build a case that Lynn knew from the beginning of his tenure that the clergy had a serious problem that was endangering children throughout the Philadelphia area.  Recall that the prosecution began with evidence about Father Avery, against whom the evidence was so overwhelming that he plead guilty rather than face the jury.  In many ways, though, the core of the claim against Lynn relating to Avery is not what but when:  as Ralph Cipriano reported here, the testimony at trial showed that Lynn began his investigation of Avery in October of 1992, soon after Lynn took his position as Secretary of the Clergy.  The primacy of that evidence is obvious:  the prosecution wanted the jury to know that, from the very beginning of Lynn’s tenure, he knew the Archdiocese had a problem with abusive and predatory priests.  


Then, the prosecution closed its case by describing the long, strange trip the February, 1994 memo took before it was revealed to the public, a means of emphasizing that Lynn knew he was guilty and knew the memo implicated him. Lynn created the list in February of 1994 and sent it to Monsignor Molloy, the Assistant Vicar for Administration.  In response, Cardinal Bevilacqua ordered the list be shredded, but Molloy shredded only four copies and kept Lynn’s.  That list then apparently vanished, although Bevilacqua obviously remembered it when he mistakenly instructed his spokesperson to reference “35 abusers” in 2002, but the Archdiocese’s in-house lawyer, Coyne, was unable to get copies of it from Molloy, Bishop Cullen, or Father Cistone, who had witnessed the shredding of the other copies.  The list was then discovered again in 2006 in the office of the Secretary of the Clergy by the Director of Operations, where its path becomes unclear. Coyne says he was given it by Lynn’s replacement, but Lynn’s replacement doesn’t recall that, and the list again vanished (Coyne says he forgot about it).  It was only in 2012, after Welsh & Recker took over as the outside lawyers for the Archdiocese, that the document was produced by Coyne when Welsh specifically requested it.


Why was the memo initially shredded, then buried twice?  The prosecution has a simple answer for that: because Lynn and the others were all trying to hide it.  That, of course, is circumstantial evidence of consciousness of guilt. The prosecution thus began with Lynn’s knowledge of clergy abuse as early as he started in 1992 and ended with Lynn leaving with the list he prepared intentionally buried. That, the prosecution believes, has proven the elements of endangering the welfare of a child, explained more in my post here. Lynn was “aware of [his] duty to protect the child[ren], … aware that the child is in circumstances that could threaten the child’s physical or psychological welfare …  failed to act or must have taken action so lame or meager that such actions cannot reasonably be expected to protect the child’s welfare.” Commonwealth v. Winger, 957 A. 2d 325 (Pa. Super. Ct. 2008)(intrepreting 18 Pa.C.S. § 4304).


The defense begins their case next week, and then it goes to the jury.