Posted on Wed, Aug. 31, 2011
By John P. Martin
Cardinal Anthony J. Bevilacqua is too sick to appear in court next month and should be allowed to testify privately at home about how he handled years of allegations that local priests were molesting children, his lawyer told a Philadelphia judge Tuesday.
Brian J. McMonagle contended that prosecutors were pressing for the former leader of the Archdiocese of Philadelphia come to court "so that he has to walk the gauntlet and come to the courthouse with all the fanfare."
Assistant District Attorney Mark Gilson disputed that, saying prosecutors wanted to avoid the appearance of treating the 88-year-old cardinal differently than any witness in a criminal case.
Gilson also told Common Pleas Court Judge Teresa Sarmina that a sealed hearing might be seen as an extension of the secrecy that has shrouded the church's response to sex-abuse allegations.
"I would argue it is in the public interest to open these doors and knock down these walls," Gilson said.
The lawyers' comments came as both sides and the judge began planning for what could be an extraordinary moment: the public interrogation of a prelate who led the 1.5-million-member archdiocese for 15 years but has been largely out of sight since the clergy sex-abuse scandal broke.
This month, Sarmina ordered the cardinal to her courtroom on Sept. 12 so she could decide whether he was fit to testify.
Citing concerns about his health, prosecutors want to question Bevilacqua on video in case he cannot appear at the March trial of four former and current priests arrested in connection with the alleged rape of two boys in the 1990s.
Though never charged, Bevilacqua, who retired in 2003, remains a key figure in the case.
One of his top aides, Msgr. William J. Lynn, is accused of endangerment, having allegedly helped place the three other priests in posts that enabled them to abuse the boys. As secretary for clergy under Bevilacqua, Lynn advised the cardinal about where to assign priests. He is the highest-ranking church official nationwide to be charged with protecting abusive priests or concealing their acts.
The grand jury that this year recommended the charges also castigated Bevilacqua and church leaders for their response to sex-abuse complaints.
Bevilacqua appeared before another grand jury on the matter seven years ago. He was spared from testifying before the more recent panel after his lawyers argued that he was frail and suffered from dementia, cancer, and other ailments.
This month, the judge asked for proof: She ordered that the cardinal's doctors turn over his medical records for two years, and that he appear in court. If she finds him fit to testify, the ensuing deposition could last days, and include questions from prosecutors and cross-examination by lawyers for Lynn and the other defendants.
Prosecutors told the judge both proceedings should occur in public. Gilson said there was no evidence to suggest that Bevilacqua was bedridden or unable to appear.
"He gets around, he does travel, he does go places," the prosecutor said.
McMonagle, a prominent criminal defense lawyer who recently joined the case as Bevilacqua's attorney, said he planned to present two doctors to testify about the cardinal's health and competency.
He argued that the public has no right to access the deposition, in part because the testimony will be preserved on video and could be released at trial. McMonagle also said prosecutors routinely take statements from ailing witnesses outside court and wondered whether they were changing the practice because of this witness' stature.
"It's because he's the cardinal, it's because this case has gotten enormous attention in the press," he said. "Is this the 'cardinal's exception'?"
He said the archdiocese had agreed to set up a room to accommodate the judge and attorneys at Bevilacqua's residence or the neighboring St. Charles Borromeo Seminary.
Sarmina said she wanted to review the records and talk privately to the lawyers before ruling if, where, and under what conditions Bevilacqua testifies.
"I'm not clear that he is suffering from dementia," the judge said. "He may be, but I'm not clear on that."
Contact staff writer John P. Martin at 215-854-4774 or martin@phillynews.com.
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