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| The D.A.'s Star Witness |
for BigTrial.net
If you're caught in a lie, when do you have to admit it?
If you're the district attorney's office of Philadelphia, never.
So the D.A.'s office, under Interim D.A. Kelley Hodge, is upholding the corrupt regime of her predecessor, Rufus Seth Williams, by continuing to pursue a retrial of Msgr. William J. Lynn.
Never mind that Williams is wearing a jumpsuit and sitting in a federal prison in Oklahoma, where he's doing a five-year stretch for taking bribes.
Or that Danny Gallagher, the D.A.'s former star witness in the case against Msgr. Lynn, is hiding out down in Florida, with his ill-gotten gains. That's the $5 million that Gallagher stole in a civil settlement from the Catholic Church, a heist made possible by the corrupt acts of D.A. Williams, who certified that a fraud like Danny Gallagher was an official victim of sex abuse.
In a 25-page brief filed Dec. 5th in state Superior Court, the D.A.'s office seeks to overturn Judge Gwendolyn Bright's motion to limit the evidence that the D.A. can present in a retrial of Msgr. Lynn. The defendant's lawyers, however, have a more ambitious goal; they're seeking to have the retrial thrown out on grounds of double jeopardy because of intentional prosecutorial misconduct.
Lynn is a free man because the Superior Court in 2015, for the second time in three years, overturned the monsignor's original 2012 conviction on one count of endangering the welfare of a child, namely Gallagher.
On March 24th, Judge Bright ruled that "certain information should have been provided to the defense," such as Detective Joe Walsh's trial prep of Gallagher. Walsh testified that he repeatedly questioned Gallagher about several factual discrepancies in his various tales of abuse, and that Gallagher responded by either claiming he was high on drugs, saying nothing, or inventing new stories.
In her March 24th ruling, Judge Bright said the prosecutorial misconduct in the Lynn case was sufficient to justify granting a new trial to the defendant. But since Msgr. Lynn had already been granted a new trial by the state Superior Court, the judge said, she didn't have to do anything else.
Well, there was one thing she could have done. If Judge Bright had found that the prosecutorial misconduct in the Msgr. Lynn case was intentional, then she could have thrown out the retrial on grounds of double jeopardy.
But the judge ruled that a "total dismissal is not a sanction warranted under the facts," and that there was "insufficient evidence to support such a remedy."
Well, Judge, I would say that if you know your star witness is a liar, and you put him on the witness stand anyway, that sounds intentional to me. Especially if the lead detective on the case, Detective Walsh, has already told your prosecutor that Gallagher is a liar, and the prosecutor responded by saying, "You're killing my case."
And that's exactly what Lynn's lawyers -- Thomas A. Bergstrom, Marc Tepper, and David A. Schumacher -- argue in their 24-page appeal brief filed Dec. 1st.
The defense cites the original grand jury report of Jan, 21 2011, where it notes that "the grand jury investigation began with the tearful testimony" of Danny Gallagher. He's the former altar boy who claimed that during the 1998-99 school year, when he was a 10 year old fifth grader, he was repeatedly raped by two priests and a Catholic school teacher.
Lie No. 1 --- Gallagher claimed that back when he was in fifth grade, he was a member of the bell choir maintenance crew at St. Jerome's Church in Northeast Philly. It was while he was putting the bells away after a concert, Gallagher claimed, that he was first accosted by Father Edward V. Avery, one of his attackers.
As anybody who's been reading this blog knows, three of Gallagher's former teachers testified that only eighth graders were big enough to lift the heavy bells and tables used by the bell choir, so there were no fifth grade members of the bell choir crew.
Lie No. 2 -- Danny Gallagher claimed he was serving at an early morning Mass when he was first attacked by Father Charles Engelhardt. Walsh, the defense lawyers wrote, found out that Danny's older brother James, also an altar boy at the same school, was the kid who served the early morning Mass. Walsh also found out that James Gallagher said his parents drove him to and from the church, and that the sexton, a senior citizen volunteer at the church, was the last person to lock up and leave the building.
The presence of the sexton would have been another reason not to believe Danny Gallagher's fables that he was alone in the sacristy after the early morning Mass when the priest raped him.
Lie No. 3 -- the grand jury report claimed that Gallagher's mother noticed a big personality change in her son while he was still at St. Jerome's. Gallagher's mother, however, testified to the grand jury that she noticed the big personality change when her son was a freshman in high school, and got kicked out for possession of marijuana and brass knuckles. Not while Danny was in elementary school, at St. Jerome's.
But the resourceful D.A.'s office solved that problem by simply rewriting the mother's grand jury testimony to fit their plot line.
In their appeal brief, the defense lawyers harp on the fact that the D.A.'s office had to know that Danny Gallagher was a liar.
"Despite the fact that it [the D.A.'s office] knew that it's primary witness was lying, the Commonwealth proceeded with its manufactured case against [Lynn] and put Gallagher on the stand," the defense lawyers wrote. "During his testimony, Gallagher falsely stated that he was part of the bell crew and choir in the 5th grade. Gallagher also falsely testified that he served the 6:15 a. m. Mass" with the priest in fifth grade.
"But when the Commonwealth's lead investigator challenged Gallagher on these facts prior to trial, he could not adequately respond," the defense lawyers wrote. "And when the Commonwealth's lead investigator challenged [Assistant District Attorney Mariana Sorensen] on these facts prior to trial, the response was, 'You're killing my case."
"Yet the Commonwealth proceeded to trial against [Lynn] anyway, desperate for a conviction, failing along the way to disclose those facts to [Lynn] and essentially suborning perjury," the defense wrote. "And, notwithstanding its knowledge then of these facts the Commonwealth continues to ignore the reality that its key witness is a liar, and continues to re-prosecute [Lynn] , still desperate for the conviction it rightfully lost on appeal."
In summation, the defense lawyers claim that the prosecutorial misconduct in the D.A.'s office was intentional.
"The Commonwealth abandoned their legal, ethical and moral responsibilities by presenting false testimony to two juries, resulting in the conviction and imprisonment of three men, one of whom died in prison."
The defense lawyers point out that in previous cases, the Superior Court has held that when the prosecution "intentionally engages in misconduct to deprive a defendant of a fair trial, double jeopardy attaches."
"Here, the Commonwealth improperly prepared Gallagher to testify, despite what it knew from Walsh, and continues to prosecute this case to this day, again despite what it knows from Walsh," the defense lawyers wrote.
In their 25-page brief, three top officials from the D.A.'s office, Hugh Burns Jr., Ronald Eisenberg, and John P. Delaney Jr., along with Interim D.A. Kelley Hodge, don't even mention the name of Detective Joe Walsh. Nor do they address any issue of misconduct.
Apparently, at the D.A.'s office, where the last occupant went to jail, they're above all that.
Instead, the D.A.'s entire 25-page brief, the D.A. attacks the "continuing criminal scheme" of Msgr. Lynn, which was a "pattern of intentionally mishandling other sexually abusive priests with the intent to shelter" both the priests and the church at large from scandal.
When Lynn was first tried, the trial judge, M. Teresa Sarmina, approved the introduction as evidence of 21 supplemental cases of sex abuse dating back to 1948, three years before Msgr. Lynn was born, to show a pattern in the archdiocese of covering up sex abuse.
When the Superior Court threw out Lynn's conviction in 2015, a three-judge panel found that the evidence provided by the 21 cases was far exceeded by their prejudicial effect.
When the D.A. went to retry the case, they asked Judge Bright to admit nine supplemental cases of sex abuse to show a pattern of church cover ups. The judge approved the admission of only three cases.
So in their appeal brief, the D.A.'s office wants the judge's order overturned, arguing that all nine cases should be presented as evidence.