In an extraordinary move, prosecutors have asked a judge to order Cardinal Anthony J. Bevilacqua to testify on videotape about clergy sex-abuse cases, even though his lawyers say he suffers from cancer and dementia and is too infirm to be questioned.
The District Attorney's Office made the request as part of its criminal case against Msgr. William J. Lynn, who faces child endangerment and conspiracy charges over allegedly enabling abusive priests while he was Bevilacqua's secretary for clergy.
Lynn, 60, is the first member of the Roman Catholic hierarchy in the nation to be charged with such a crime. He has pleaded not guilty.
Prosecutors' attempt to compel Bevilacqua's testimony follows their dramatic decision late last month to publicly file 1,200 pages of testimony the cardinal gave in 2003 and 2004 to the first Philadelphia grand jury investigating sexual abuse in the five-county archdiocese.
Assistant District Attorney Mariana Sorensen said in court documents that the cardinal's grand-jury testimony and that of two bishops, priests, and others were necessary to establish the conspiracy case against Lynn and three codefendants.
Lynn's lawyers, Thomas A. Bergstrom and Jeffrey M. Lindy, bristled at the release of those documents, saying they would be inadmissible in court. Bevilacqua, 88, would not be available to testify at trial because of his ill health, they said, and thus he could not be cross-examined.
On Monday, prosecutors responded by trying to force Bevilacqua to testify anew on videotape.
Since a trial is likely to be months away, they said, "it is in the interest of justice to preserve Cardinal Bevilacqua's testimony before his health and memory deteriorate further and he becomes unavailable."
Lynn's lawyers, citing the cardinal's infirmities, responded by asking Common Pleas Judge Teresa Sarminato shield Bevilacqua from further questioning, saying he was "not competent."
Any testimony he would give, they said in court filings, would "only confuse and prejudice the proceedings against Msgr. Lynn" and deprive him of a fair trial.
Moreover, they said, "the strain of such a requirement on Cardinal Bevilacqua is simply inhumane."
They noted that Bevilacqua had been spared from testifying before the second grand jury, which this year recommended charges against Lynn. The cardinal's lawyer testified that Bevilacqua's memory was unreliable and that being questioned by the panel would be "traumatic."
In its February report, the grand jury castigated Bevilacqua and said his "knowing and deliberate actions" as archbishop "endangered thousands of children."
But the panel brought no charges against him. Bevilacqua's health and lack of mental acuity were factors in that decision, which the grand jury said it made "reluctantly."
However, it accused Lynn of putting children "in harm's way" by recommending the assignment of abusive priests to parishes where they had unsupervised access to children.
Lynn is to stand trial with three current or former priests and an ex-teacher.
The Rev. Charles Engelhardt, the Rev. Edward Avery, and former parish schoolteacher Bernard Shero are charged with sodomizing or raping an altar boy at St. Jerome's parish in Northeast Philadelphia in 1998 and 1999, when he was 10 and 11 years old. A former priest, James Brennan, is charged with raping a 14-year-old boy at Brennan's residence in 1996. All have pleaded not guilty.
It is in this case that prosecutors seek to compel further testimony from Bevilacqua.
When the cardinal appeared before the first grand jury, he was questioned at length about decisions to assign known abusers to ministry where they had access to children. He defended his actions and said he had always put the safety of children first.
Nonetheless, the grand jury concluded that in shielding abusive priests, Lynn "was carrying out the cardinal's policies exactly as the cardinal directed."
Prosecutors say this makes Bevilacqua a "material witness" in their case against Lynn and underscores the need to videotape his testimony in case he is unavailable at trial.
The District Attorney's Office declined to comment Wednesday, as did defense lawyers, citing a gag order imposed by the judge.
Read Cardinal Anthony J. Bevilacqua's grand jury testimony from 2003 and 2004 at www.philly.com/testimonyEndText