PHILADELPHIA (CN) - At an intensely combative and vitriolic hearing Friday afternoon in a sex-abuse case that has shaken the Philadelphia Archdiocese to its core, the judge left one defense attorney seething after disclosing that he could be disqualified from the case because the government thinks the lawyer might be a witness as a former seminarian.
The lawyer, who represents a current Roman Catholic priest charged with raping a boy in his parish, fired back that prosecutors were being "anti-Catholic" and had uttered an "abomination."
Court of Common Pleas Judge Renee Cardwell Hughes told defense attorney Richard DeSipio that she's received information that "might make you, in fact, a witness because of events that occurred while you were a seminarian."
The information "stems from the fact that you attended the seminary with a student who asserts he was abused," Hughes said, adding that DeSipio "may possess factual knowledge about abuse that occurred with that student."
She added that the substance of the claim that DeSipio witnessed something is still unclear. "I just don't know if it's true," Hughes said. "I really don't know if it's true."
Yelling and visibly upset, DeSipio demanded that the government, then and there, identify the source of the allegation. "Let them spill it out right now!" DeSipio demanded.
"How dare they send you a letter about that," DeSipio said, referring to the district attorney's office. "That's an abomination."
Monsignor William Lynn, who is accused of giving sex abusers easy access to minors, was the dean of students at a seminary while DeSipio attended the school, a prosecutor said. The charges against Lynn stem from his tenure as clergy secretary for the Philadelphia Archdiocese where he acted as personnel director for priests. He is reportedly the highest-ranking member of the Roman Catholic Church in the United States ever to be charged with child endangerment. Unlike his four co-defendants, including two current and one former priest, Lynn is not charged with rape or sexual assault.
"They are anti-Catholic. I'll say it," DeSipio fumed. "[The district attorney is] attacking me as a Catholic!"
The judge rejected DeSipio's claim. "Attack you? You attacked me! You don't even know me!" Hughes said, referring to a prior argument over the necessity of a preliminary hearing, another hotly contested issue Friday afternoon.
"Mr. DeSipio, I suggest you shut up," Hughes said. "People are coming from out of the woodwork [to provide information to the commonwealth.]"
If the government can prove the allegation is credible in 30 days, DeSipio will be disqualified as an attorney for one of the priests charged with rape, the Rev. James Brennan.
"You can change lawyers now, you can change lawyers in 30," the judge warned DeSipio's client. "[But] there are some conflicts that are not waivable."
DeSipio argued that the 30-day investigation was "really unfair to Father Brennan," given his mounting legal costs.
Judge Hughes was livid that DeSipio spoke up again. "If you open your mouth one more time I am going to have the sheriff take you out of here," she told DeSipio.
As DeSipio continued to argue, Hughes said she might have him "locked up and held in contempt." Instead she issued a gag order, responding to what she observed as attorneys having "gone to the airways to advocate."
"No more interviews with anyone," the judge ruled.
"Does that include the DA going on Chris Matthews' 'Hardball' and going to the New York Times," defense attorney Michael McGovern asked.
The judge responded affirmatively: "I don't want tweets. I don't want Facebook. I don't want IMs [instant messages]."
Hughes said the court will revisit the gag order on April 15, when the defendants are to be arraigned. That date also marks the deadline for the DA to provide the defense with the first batch of discovery, she said.
The Rev. Brennan is accused in a grand jury report
released in February of raping a 14-year-old boy while Brennan was serving as a parochial vicar of St. Andrew Church in Newtown, a Philadelphia suburb, in 1996. According to the report, Brennan arranged to have the boy, whom he had known for five years, sleep over his apartment. During the sleepover, "he lay down behind the boy and put his penis into the boy's buttocks," according to the report.
DeSipio said his client deserves a preliminary hearing, which could allow Brennan to confront his accuser.
"This accuser says there was an erect penis in his buttocks," DeSipio said. "Was it in your buttocks, or was it in your anus," he asked rhetorically, referring to a distinction that could have significant legal implications. "If that question wasn't asked [of the grand jury], and he didn't specify anus or butt cheeks, I have a right to ask that."
The lawyer also called the credibility of Brennan's accuser into question by referencing reports that he is in jail on a drug charge and has a criminal record that includes a conviction for lying to law enforcement officials.
"There's no witness," DeSipio said. "I know that they [the prosecutors] don't like that he's in jail."
According to the grand jury report, Brennan's alleged victim became reclusive and started abusing heroin after the sleepover at Brennan's apartment. The report states that the second accuser, who was allegedly victimized by three different defendants, attempted suicide after battling with depression and a drug and alcohol addiction after he was abused.
This child was allegedly abused beginning in 1999 while he was a 10-year-old altar boy in the fifth grade at the St. Jerome School in Philadelphia. The Rev. Charles Engelhardt is accused of having oral sex with the boy, who was then "in effect passed around to Engelhardt's colleagues," according to the report. "Father Edward Avery undressed with the boy, told him that God loved him, had him engage in oral intercourse, and ejaculated on him," the report continues. "Next was the turn of Bernard Shero, a teacher in the school. Shero offered Billy a ride home, but instead stopped at a park, told Billy they were 'going to have some fun,' took off the boy's clothes, orally and anally raped him, and then made him walk the rest of the way home."
Avery has since been defrocked. "For what they did, Father Avery, Father Engelhardt, Father Brennan, and teacher Shero will all be charged with rape and related offenses," the report states.
All but one of the men's defense attorneys challenged the government's attempt to amend its case by adding a conspiracy charge that had not explicitly been requested of the grand jury.
"The issue here is that if the DA seeks to amend, it has to be subject to some sort of prima facie determination," the defense argued.
The judge found otherwise, ruling that the commonwealth established "good cause" in its pleadings and that "there is no constitutional right - federal or state - for a preliminary hearing."
It was "a technical error on the commonwealth not to charge conspiracy" originally, Hughes said. "Conspiracy is made," and the defendants will not be afforded a preliminary hearing, she ruled.
Hughes said there was abundant evidence to support the amendment.
"I'm the only person, besides the prosecutors, who has seen every stitch of evidence," she said.
Defense attorney McGovern, who represents Engelhardt, said this nondisclosure was precisely the problem.
"Your Honor, this is patently unfair!" McGovern said. "You know the evidence. They know the evidence. I don't know what the evidence is! I haven't seen any!"
The attorney said proceeding to trial without a preliminary hearing was like saying, "Let's have a dart game in a dark room."
"What kind of country is this where we have this?" McGovern shouted.
The judge barked back, baring her teeth: "You sit down! Sit, sit, sit!"
DeSipio joined in McGovern's call for a preliminary hearing. "What you can't do, and what I submit they're trying to do, is say just because we have a grand jury, we have good cause [to bypass a preliminary hearing]," DeSipio said.
The judge also addressed a potential conflict of interest concerning Monsignor Lynn. Plans for the Archdiocese of Philadelphia to pay Lynn's legal costs present "a whole array of conflicts that I can't even imagine at this point in time," Hughes said.
"It's real simple," the judge said to Lynn, who was donning his clerical collar, "your master is the person that's putting bread on the table."
"It may be in your best interest to put forth a defense that attacks other people [or the church]," Hughes said.
She told Lynn he was putting himself in the position of receiving "advice from people who are being paid by people whose interests don't necessarily align with yours."
The stakes of this gamble could amount to "14 years of incarceration versus probation," she said.
Lynn, in a calm voice, declined. "Well, I trust these two men," he said, adding that the church hadn't placed any conditions on the payment of his legal costs.
Hughes was incredulous. "You are making a knowing, voluntary and intelligent decision to place yourself in conflict with your attorneys?" she asked.
"I am," Lynn responded, waiving his right to any future appeal based on the argument that his attorneys had a conflict of interest.
"Then we're moving forward," the judge said.
After arraignments and release of the first batch of discovery, which will include grand jury notes and testimony, on April 15, the government will prepare the release of a second batch. The government said that batch would take longer to produce, as it will include roughly 10,000 pages of documentation, much of which will need to be redacted.
Hughes said the government must give the defense a specific timeline for the production of the second batch. "There has to be some finality," she said.
Publication of the grand jury's report on Feb. 11 triggered the administrative leave
of 24 priests over the next month in the Philadelphia Archdiocese.