Philly Priest Abuse Trial--Shifting Narratives

 I have linked to two interesting pieces about the priest abuse trial taking place in Philadelphia. A former Philadelphia Inquirer reporter, Ralph Cipriani is blogging about the trial daily and his coverage is excellent. Philadelphia Priest Abuse Trial Blog    The Philadelphia Inquirer's coverage is more perfunctory.  Philadelphia Inquirer    

What is interesting about this case from a trial strategy perspective is the narrative of the various parties. The Philadelphia District Attorney's Office is currently prosecuting Monsignor William J. Lynn, the Secretary for Clergy for the Archdiocese of Philadelphia under Cardinal Anthony Bevilacqua, with two counts of endangering the welfare of a child and conspiracy.  Father James Brennan was also charged and is being tried for attempted rape of a 14 year old boy in 1996; and another priest,  Edward V. Avery, pleaded  guilty pre-trial to multiple counts of child abuse and conspiring with Lynn.

The trial arises from two lengthy Grand Jury investigations that began in 2002. The first Grand Jury released its report in 2003 and documented more than 100 victims of child sexual abuse by at least 63 priests. Because of Pennsylvania's then-existing statute of limitations, the terrible crimes outlined in the report could not be prosecuted.  In January 2011, a second Grand Jury indicted Lynn, Brennan and Avery (along with two other lay teachers) following a lengthy investigation. 2011 Grand Jury Report    During the Grand Jury investigations, Cardinal Bevilacqua, Lynn, and other priests testified about the church's practices for investigating and reporting credible allegations of sexual abuse involving minors. Cardinal Bevilacqua testified that he delegated the issue of clergy abuse investigation almost completely to Lynn and had no real day-to-day knowledge of the specifics aside from what Lynn advised him; he also claimed poor memory and denied any direct knowledge of Avery or Brennan's abuse of children.  During his grand jury testimony, Lynn explained  that he was exercising his own discretion as to how he addressed problem priests; and did not implicate the Cardinal in the decision making process.

The Archdiocese's strategy during the Grand Jury phase attempted to insulate Cardinal Bevilacqua from any liability or responsibility for abusive priests. Instead, Lynn, retained executive control over the investigation and discipline of problem priests without the need to consult the Cardinal. The Archdiocesan presented the narrative that Lynn had ultimate authority over such personnel decisions subject only to the duty to report his final decisions to the Cardinal. In other words, "don't blame the Cardinal, if only Lynn had told him everything, he would have promptly acted."  Or, the poor Cardinal was betrayed by the inaction of his subordinates. Lynn was indicted; and the Cardinal merely chastised in the report.

Several weeks before the trial, the Cardinal died. After the Cardinal's death, and burial with full accolades of the Vatican and catholic community,the Archdiocese suddenly discovered a 1994 memorandum Lynn authored for the Cardinal in an old safe. The memorandum identified 34 problem priests with histories of abusing children. Cardinal Bevilacqua, himself a lawyer, responded to the memorandum with an order to shred the original and and destroy all copies. Despite the Cardinal's order, a copy of the memorandum escaped the shredder and found its way into the personal safe of Lynn's predecessor.

The trial evidence against Monsignor Lynn has largely consisted of blood curdling stories of now-adult males coming forward to tell their tale of horrid abuse at the hands of trusted priests while they were children.  Some of these victims have grown up to be doctors and priests themselves; other have led very troubled and difficult lives. According to courtroom observers, these stories have brought tears to the eyes of many of the jurors.  In addition to victim testimony, damaging documents have been introduced from Lynn's own and Archdiocesan files that corroborated the abuse; and demonstrated the church's priority to prevent disclosure and avoid any scandal. Lynn's grand jury testimony has also been presented by prosecutors reading from transcripts.

After the death of Bevilacqua and the "discovery" of the "shredded" memorandum, Lynn's attorneys changed the narrative from the Grand Jury strategy of "if only the Cardinal had known" to "Cardinal Bevilacqua stopped Lynn from doing the right thing." Instead of Grand Jury Lynn, an empowered executive with control over the lives and careers of hundreds of Archdiocesan priests, his lawyers have attempted to portray him as really only a toothless toady of the Cardinal. According to the new narrative, the Cardinal's response to Lynn's 1994 "shredded" memorandum showed that Lynn was powerless to discipline or report problem priests; he was merely acting as a puppet to the whims and desires of his Cardinal-Archbishop who intentionally ignored Lynn's pleas to take care of the problem priests. Essentially, Lynn's attorneys have raised the Nuremberg defense, i.e. "I was just following orders."Nuremberg Superior Order Defense

The prosecution's narrative presents Lynn as a knowing accomplice and enabler of priests who were abusing children. According to prosecutors, Lynn was merely following a long-existing institutional practice of ignoring credible allegations of abuse to avoid scandal to the church; and minimize civil liability arising from victim lawsuits. At trial, the prosecutors have introduced a broad spectrum of evidence against Lynn that spans many years and multiple abusers. Lynn himself has no history of abusing anyone. Accordingly, the concern of the prosecution must be creating a compelling coherent narrative that explains the connection of these various criminal acts committed by multiple abusers decades ago to the child endangerment and conspiracy charges against Lynn.  Based upon courtroom accounts, the prosecution appears to be using Lynn's new narrative to weave a very compelling story of an institution more concerned with dissent from authority than child abuse; and Lynn as the chief enforcer of conformity.

As described by former Philadelphia Reporter Ralph Cipriani:

If you're a priest in the archdiocese of Philadelphia, you can "act out sexually" all you want. You can get away with it for years, even decades at a time, while they transfer you from parish to parish, in between recuperative stays at St. John Vianney's, the friendly archdiocese clinic for sex abusers. Just make sure that you don't disobey an order from the archbishop. Because in the archdiocese of Philadelphia, that's the one unpardonable sin for which there is zero tolerance.

The prosecution narrative about a church more interested in punishing dissent than child abusers is particularly powerful because it is consistent with Lynn's defense team's central narrative. In both narratives, Cardinal Bevilacqua is a strict authoritarian figure who tolerates no disobedience from his subordinates. Yesterday's prosecution witness was a well-respected  pastor who was disciplined and "sent to the woodshed" for years because he questioned the Cardinal's decision to transfer a problem priest to his parish. Specifically, the priest told Lynn that the archdiocese had to stop its "practice of transferring problem priests around." As explained by the church's archives and the testimony of Father Michael C. Picard,  merely questioning the Cardinal's decision brought down a total "s@#$storm" on Picard's head. According to Cipriani who was present during the trial testimony: 

A meeting of the priest personnel board was convened by Msgr. Lynn and Cardinal Bevilacqua. All 15 board members unanimously agreed that Father Picard had disobeyed the archbishop. Father Picard had now landed somewhere in between double secret probation and the Inquisition.

Bishop Joseph R. Cistone, then assistant vicar for administration, wrote the cardinal, saying that Picard had committed a grave offense. "He did disobey the archbishop, and this is what's out on the street," Cistone warned. And worse, Father Picard "denied being disobedient."

In the secret archive files, Cardinal Bevilacqua stated, "He will not tolerate even the appearance of disobedience by any priest." Father Picard's act of disobedience was exacerbated because "He made public what should have be kept private ... If he had any concerns about a priest, he should not say anything."

The cardinal's men discussed having Father Picard write a letter of apology to Father Mills, another letter of apology to Cardinal Bevilacqua, and finally a third letter of apology to every priest in the archdiocese. At the end of the meeting, the records noted, the cardinal thanked the members of the priest personnel board for their "wisdom and support."

To support the prosecution narrative, this testimony establishes, without a doubt, that the Cardinal and Lynn were eminently capable of swiftly and fiercely disciplining priests when the issue is important to them personally. In a situation of perceived insubordination, the full weight of Archdiocesan discipline is brought down to bear. But child abuse,. . . that is a matter that can wait or even be ignored. The wheels of accountability and discipline appear to move much more slowly to punish abusers, if at all; than dissenters.

Equally as important for the prosecution's narrative is the fact that at least one priest, Fr. Picard, had the fortitude to question the Cardinal's decision making; and in fact, the problem priest was not transferred to his parish. Accordingly, the Picard example demonstrates that Lynn was not powerless to to say "No" to the Cardinal, it's just that he lacked the courage to accept the career consequences of questioning the Cardinal.This is fundamentally different than what was at stake for the "Superior Order" defense in Nuremberg. There, the military officers at least could assert that they themselves would have met the same fate as the death camp victims, death,  had they disobeyed orders from a superior.  It will be interesting if the jury views  the possibility that Lynn would have had his career stalled any more sympathetically than the Nuremberg Tribunals viewed the Superior Order defense. Despite the possibility of execution  for military insubordination, the Tribunal explicitly rejected the idea that an unlawful superior order relived the executor of the order from legal responsibility.  Nuremberg Principle IV

The defense is attempting to establish the narrative that Lynn merely followed a sacred vow of obedience to follow the Cardinal's directives. The Picard example is equally supportive of this particular narrative. From the Lynn defense team's perspective, the disciplining of Picard illustrates the primacy of a priest's duty to be obedient to his bishops and superiors even in the face of competing moral or civil responsibilities. In order for this narrative to be palatable, the defense must establish that a cleric's duty of obedience is every bit as significant as a human's moral responsibility to another person. In my opinion, this is a difficult narrative to sell to a jury comprised of lay people. More importantly, the prosecution may present the earlier narrative presented during the Grand Jury investigation of Lynn, the empowered executive, to impeach the new narrative of Lynn, the powerless subordinate who was simply following orders.

As described in my earlier focus group post, my opinion about the palatability of the  "Superior Orders" defense to a lay juror is ultimately irrelevant. As the comments to the Priest Abuse stories in the Philadelphia Inquirer and on Cipriani's blog make clear, this is not a story where individuals are particularly persuadable. To folks who believe that the catholic church is a benevolent organization under siege by secular forces that are using the abuse crisis to attack the church's moral authority, Lynn's defense may indeed fall on sympathetic ears. To folks who believe that the church is a hypocritical organization that harbored pedophiles for decades, the prosecution's narrative is completely consistent with their own perception and will be readily accepted. In other words, both sides will pluck nuggets from the evidence that support their competing views.

The same principle is equally as true with respect to the DA's case against Fr. Brennan. The prosecution's narrative is one where a trusted family friend ingratiated himself with an overwhelmed mother struggling to raise her troubled teenaged son in order to satisfy his own unnatural urges. In this case, Brennan's accuser has been consistently inconsistent in his various retelling of what happened during a sleep over at the priest's house in 1996. To the Grand Jury, the victim apparently testified about forced anal penetration; at the trial, he testified about being fondled while wearing gym shorts. Brennan's victim maintained contact for years with his alleged abuser and offered inconsistent testimony at a church hearing about the events. The victim has had a troubled life of petty criminal convictions, desertion from the military, and substance abuse. But Brennan's story is equally odd. He testified that the then-14 year old boy coerced him into allowing him to use his laptop to view pornography, engaged him in explicit sexual conversations; and shared his king-sized bed. And the victim's mother testified that both Brennan and her son reported soon after that the night did not go well; that the boy viewed pornography on the Brennan's computer; but that she did not know what precisely happened that evening. She also testified about Brennan's alcohol abuse and  troubled family life. (Apparently, evidence of Brennan's inappropriate relationships with teenagers at a local high school reported in the 2011 Grand Jury report will not be presented to this criminal jury.)  The prosecution's narrative is that a victim of childhood sexual attempts to suppress his own memory and details of that event; and that early abuse results in a lifetime of effects and problems. Under that narrative, the victim's troubled history and inconsistencies are consistent; and the alleged abuse is completely corroborated by Brennan's details of a night where an adult priest appeared to abdicate his role as an adult. A victim orientated juror is likely to pick out the portions of evidence favorable to the preferred narrative and even view the inconsistencies and criminal background as being totally consistent with a history of childhood abuse. They will also have a problem with Brennan's own admission of a sleepover with a teen involving porn and bed-sharing. A defense orientated juror will seize on the victim's inconsistencies under oath and criminal background as being evidence that the claims against the church are largely false and exaggerated.

Absent a device to read the narrative playing in the juror's heads, it is impossible to predict how the jury will ultimately decide. Presumably, the Lynn defense team has selected the jury carefully and perhaps conducted a focus group to determine whether the "Superior Order" defense has narrative appeal. Likewise, Brennan's defense team has calculated the risk of relying upon a defense that places huge reliance on jurors simply not believing the victim despite some corroboration that the night went terribly wrong. Given Brennan's past, it is extremely unlikely that he will take the stand to offer his version of that night's events. By the time of deliberations, the jury will have been overwhelmed by story after story of priests taking advantage of young males. It is difficult to predict the effect of that evidence on the jury's perception of priests generally; or priests that take an interest in young boys specifically. What is true is that both sides have presented ripe low hanging fruit to construct opposing narratives; and often the same fruit will be used in different ways to complete their preferred narrative.

Focus Groups

"Is this going to be on the test?" Much to the chagrin of pedantic professors, shrewd students from time immemorial have asked this simple question. And trial attorneys need to ask it themselves when preparing their case. Like the student faced with a complex body of materials before an exam, an attorney's file contains hundreds of factual and legal issues. Knowing what is going to be on the test is as helpful to the trial lawyer as it is to the shrewd law student.

The "test" for a trial lawyer is the verdict form.  And the answers are the jury's completed responses. One of the best tools an attorney can use to learn the likely answers are focus groups. Our firm uses focus groups to learn the answers to the test before trial. By presenting the case first for a focus group, an attorney learns what facts and arguments are truly important to the verdict. More importantly, presenting a case for a focus group provides invaluable information about jury deliberations, a part of the case that even seasoned attorneys have little insight.

Watching a focus group deliberate is truly a life changing experience for an attorney who is used to standing outside the deliberation room pacing to await the verdict. The first lesson learned is how few jurors are truly persuadable. Instead, most jurors build their own narrative very early in the presentation and maintain it to the ultimate verdict. In focus group exercises where the jurors are polled about their likely decision at the various stages of the presentation; very few of them actually move or change their decision. What is most surprising is how little deviation occurs from the first poll conducted after a brief summary statement of the case.  Defense orientated jurors tend to assemble facts and arguments selectively from both presentations that support the defense perspective; and plaintiff orientated jurors do the same. In most exercises, there is only a very small minority of jurors that actually change sides after hearing the more detailed presentations from both sides. In other words, while jurors state and represent that they will keep an open mind about the evidence throughout the case, very few of them actually do. This suggests that jury selection is the most important stage of the trial; followed in importance by a strong coherent opening statement. Even the most effective advocates with compelling presentations fail to sway jurors orientated to their own particular narrative. The key is selecting the jurors who are likely to be most receptive to the narrative favoring your client; and tailoring the presentation to the arguments that are consistent with that narrative.

Intuitively, we know the same principle from US politics. A candidate debate rarely sways a significant percentage of voters, and national elections are decided by a small slice of undecided voters. What a debate can do is affect the voters that are in play, or sway the tiny percentage of voters that are persuadable.  The same principle becomes apparent through a focus group exercise.

In other words, careful trial preparation requires more listening than preparing for advocacy. It is critical to discover the prevailing narrative of sample jurors to the dispositive questions in this case. The strength of the arguments often bear little relationship to how the jurors will answer the questions. Many focus groups use instant feedback meters that provide information about arguments that individual jurors find helpful or persuasive. It is very disconcerting to watch a juror whose meter consistently finds your presentation and particular arguments "helpful," but answers the questions adverse to your client. Indeed, the juror may find the argument helpful, but he or she will make it fit their narrative.

Trials are not attorney competitions where the jury is being asked to vote on who was the most effective advocate. Success depends upon how the jury answers the actual verdict questions. After observing several focus group exercises, and evaluating the data, it is clear that the shrewd student has the correct approach to trial advocacy. Its all about the answers to the test. And the only way to get true insight into the answers is to find out how your likely jurors are going to answer those questions. Absent a focus group, it is very easy for an advocate to mislead him or herself into what arguments are likely to be persuasive and win the day. We need to start advising our clients that what the attorneys and clients think are important to the case are necessarily secondary to what likely jurors think is important. Conducting a focus group is an important tool to educate yourself and your client