While a new judge will be presiding over the trial of the co-defendants in the Philadelphia priest sexual-abuse trial, observers of the criminal justice system expect that she will handle the case well.
Philadelphia Court of Common Pleas Judge M. Teresa Sarmina, who presided over the trial of Monsignor William Lynn and former priest James Brennan this spring, said that she could not preside over the trial of co-defendants Bernard Shero and the Rev. Charles Engelhardt because of scheduling conflicts.
Taking over for Sarmina is Philadelphia Court of Common Pleas Judge Ellen Ceisler.
The trial was originally slated to open September 4, but had to be postponed because Engelhardt’s defense attorney, Michael McGovern, had deaths in the family.
Instead, Ceisler will preside over the trial, Sarmina said in court Friday, because she is normally in a “SMART” calendaring room — a specialized calendaring room that aligns with one of the city’s detective divisions — and does not have a trial schedule.
Defense attorneys Fortunato N. Perri Jr., of McMonagle Perri McHugh & Mischak, and George Newman, of Newman & Associates, said that Ceisler is a smart, fair and knowledgeable judge.
“The legal theory is a judge can just step in and take over,” Newman said, but he said that is often not the case because, after a lot of pretrial activity, it can be difficult to get up to speed suddenly.
In addition, Newman said, decisions are often made in the context of prior decisions, and another judge walking in “doesn’t know what has transpired other than what the cold docket entries tell them.”
But Newman, who has tried a number of cases in front of Ceisler, said that she is “very fair and has an extremely good grasp of criminal law. If somebody had to jump in at the last second it’s great that it’s her. She’s a really smart judge.”
Perri said that, after practicing before Ceisler for years, “the transition will be seamless.”
Jeffrey Lindy of Lindy & Tauber, who was one of the attorneys representing Lynn at the trial, said that “this is a fortuitous turn of events for defense counsel. Anybody who sat through the trial saw [Sarmina] was very open and accepting of the commonwealth’s theory of the case and she was very hostile to the defense theory.”
The prosecution theory was “a very novel theory,” Lindy said. “Their theory pushed the envelope. It’s an aggressive theory and it was accepted on all points. I think, for the attorneys who are currently in this case to have a new judge, I think they made out pretty well.”
Lynn’s lawyers said in a petition to the state Supreme Court, which was denied without comment, that the endangering the welfare of a child statute was amended in 2007 to extend criminal liability to the supervisors of people with direct responsibility for the welfare of children.
However, because Lynn’s charges date before the changes to the statute, Lynn’s lawyers argued that he couldn’t be charged with endangering the welfare of children because the theory for his liability is as a supervisor.
McGovern said in court that the trial might take three to four weeks, which Sarmina said was news to her because she had been told the case would take one week.
The trial now is scheduled for October 22 until November 9, even though McGovern said he had scheduled a prepaid vacation in order to be present for when the birth of a grandchild is going to be induced. Prosecutor Mark Cipolletti said that, with his homicide case schedule, that is the only three-week window he has in 2012.
For her own part, Sarmina said she is booked until May 2013.
Abuse case witness D.G. has alleged that he was abused by three different men, one of them a parochial school teacher and two of them priests, when he was in the fifth grade. The Legal is not naming confirmed or alleged victims.
Former priest Edward V. Avery pled guilty to abusing D.G., and Lynn, then the secretary for clergy and the late Cardinal Anthony J. Bevilacqua’s delegate for matters involving sexually abusive priests, was convicted of endangering D.G.’s welfare because he recommended Avery for his clerical assignment where he encountered D.G.
The jury acquitted Lynn of conspiring with that boy’s abuser, Avery, to endanger the welfare of D.G. or other minors.
Avery is serving 30 to 60 months in prison as part of his negotiated plea deal.
During Brennan’s and Lynn’s trial, D.G. testified that, at the age of 10, when he was an altar server, he was not warned that Avery was a danger to him.
Sarmina acquitted Lynn of conspiring with Avery to endanger D.G.’s welfare at the close of the case.
Before Avery abused him, Avery told him he’d heard about D.G.’s “‘sessions’” with Engelhardt, D.G. said, The Legal previously reported.
Engelhardt’s case was severed out because he was an Oblate of St. Francis de Sales and not under the control of the secretary for clergy. Shero, as a schoolteacher, had his case severed out for similar reasons.
The jury hung on Brennan’s charges, including that he allegedly sexually abused another male besides D.G. That trial also will be presided over by another judge besides Sarmina.