Fordham Law

Question of Bevilacqua's competence presents unusual legal situation

James A. Cohen in The Philadelphia Inquirer, September 12, 2011

Media Source

By John P. Martin

Inquirer Staff Writer

It's an unusual legal proposition: Cardinal Anthony J. Bevilacqua may have to take the witness stand to prove he doesn't belong there.

Monday was the day Bevilacqua, 88, the reclusive former leader of the Roman Catholic Archdiocese of Philadelphia, was to appear for a competency hearing in Philadelphia Common Pleas Court.

After a request from the cardinal's lawyer for more time, Judge M. Teresa Sarmina last week postponed the proceeding until next month.

Prosecutors want to depose and videotape Bevilacqua and use the testimony at next spring's trial of Msgr. William J. Lynn, a key aide charged with endangerment for allegedly covering up child sex abuse by local priests.

Bevilacqua testified before a grand jury eight years ago on the same topic. But his lawyers say the prelate, who retired in 2003 after 15 years leading the archdiocese, has dementia and cancer and is now too sick to endure what could be days of interrogation.

Sarmina called the hearing to see for herself. If she deems him fit to testify, the videotaped deposition could start Oct. 19.

When the question of competency crops up in criminal cases, it usually focuses on defendants' ability to understand charges and make lucid decisions about their defense. Experts say battles over the competence of witnesses are far less common, in part because the standard is typically low.

"It would be highly, highly unusual for a judge to disqualify a witness from testifying," said James A. Cohen of Yardley, a professor at Fordham University Law School. "You can take a 5-year-old and once the 5-year-old says, 'I know it's bad to lie,' that witness will be qualified to testify."

The scenario in this case is also unusual because Bevilacqua's mental fitness isn't being challenged by either side in the criminal case. His lawyer, Brian J. McMonagle, is the one who has argued to the judge that the cardinal shouldn't testify, at least not in public.

At a hearing last month, McMonagle accused prosecutors of pressing for the public testimony to make the cardinal "walk the gauntlet" under a media spotlight. (The judge has issued a gag order barring the lawyers and defendants from commenting outside the courtroom.)

Pennsylvania's criminal code cites four conditions for declaring a witness incompetent: if he cannot express himself, doesn't understand his duty to tell the truth, has an impaired memory, or has been, at any relevant time, "incapable of perceiving accurately."

At the hearing last month, Assistant District Attorney Mark Gilson said prosecutors knew no reason Bevilacqua couldn't show up or be questioned in open court. The cardinal "gets around, he does travel," Gilson said.

McMonagle countered that the cardinal requires constant care. He told the judge he wants to call two doctors to testify about Bevilacqua's mental state. What their evaluation will include is unclear.

In grand jury testimony in January, Bevilacqua's longtime attorney, William Sasso, said that during his most recent visits to the cardinal's home at St. Charles Seminary, Bevilacqua was unable to focus and sometimes drifted off. "He expresses frustration at being unable to remember things or articulate thoughts," Sasso testified.

An impaired memory alone does not equal incompetence, experts say. What's more illustrative is if a witness struggles to complete sentences or gives conflicting replies to the same questions.

Richard Bonnie, a professor who specializes in psychiatry and criminal matters at the University of Virginia Law School, recalled a hearing for an elderly woman with dementia who was in a dispute over changes to her will.

When attorneys asked her open-ended questions, Bonnie said, the woman gave meandering and confused replies. But asked narrowly tailored questions, she was clear and consistent and gave information that was corroborated by facts.

"So the mode of questioning someone can bear on their ability to competently testify," Bonnie said.

Ultimately, the judge will have broad latitude in deciding whether the cardinal is fit to be questioned - and how that testimony should proceed.

Stephen J. Morse, a professor of law and psychiatry at the University of Pennsylvania, said the judge could rely solely on medical records and doctors' opinions, particularly if those doctors introduce test results about Bevilacqua's memory loss. They also might try to persuade her that a competency hearing would be unduly stressful on an already frail man.

Morse questioned whether doctors' testimony would be enough to sway the judge. "The gold standard would include having the witness testify before the judge," he said. "You can't do a good mental examination of him without actually examining him."