Pell: the evidence may be ‘compelling’ but is it true?

Pell: the evidence may be ‘compelling’ but is it true? ‘Hamlet’ is ‘compelling’ drama, too. But it is a work of fiction, says an American former district attorney

Gerard V. Bradley | Aug 29 2019 |  comment 13

The Court of Appeal of the state of Victoria dismissed George Cardinal Pell’s appeal on Wednesday, August 21 from his sexual abuse conviction.

That conviction came at the end of a second trial on five counts of indecency with a minor, after a first jury could not agree on a verdict.

He was sentenced to six years, without the possibility of parole until November 2022. Cardinal Pell’s lawyers are yet to decide a further appeal to the Australian High Court. That process is likely to take up to a year. During the interim, the cardinal will remain in a Victorian prison.

Because the trials were conducted in closed sessions and under a press “gag” order, accounts of the evidence against the cardinal have been incomplete and even sketchy. Until now.

It was long widely known that the case involved allegations of assaults on two choirboys, both aged 13 when the crimes supposedly occurred in late 1996.

The setting was said to be just after then-Archbishop Pell celebrated Mass at St Patrick’s Cathedral in Melbourne.

One of the boys died accidentally a few years ago. The surviving complainant said nothing to anyone of his horrendous story until 2015. (The other boy died without ever claiming to have been abused; in fact, he expressly denied that any such thing happened to him when his mother in 2001 pointedly asked him.)

It has long been apparent, too, that the allegations against Cardinal Pell were so inherently improbable as to be, on their face, almost fantastic. Nonetheless, the prosecutors pressed on. They finally got a jury to return the verdict they wanted.

Knowing the cardinal as I do, and evaluating the evidence reported in light of my years as a Manhattan trial prosecutor, I have always confidently believed that Cardinal Pell is innocent.

One small mercy of this unwelcome appellate setback is that I am now certain that Cardinal Pell is innocent.

Another consolation is that the appellate decision supplies reasonable grounds to hope that the High Court will finally correct this awful miscarriage of justice if the Cardinal seeks leave to appeal. The basis for affirming Cardinal Pell’s innocence lies in the evidence now recounted in extraordinary detail across the 325 pages of the appellate corpus.

The court split 2-1. The dissenting judge — an Oxford-educated lawyer named Mark Weinberg — never quite said that he believed that Cardinal Pell was innocent.

The closest Weinberg J came to saying so might be this sentence: “[T]o my mind, [there is] a ‘significant possibility’ that the applicant in this case may not have committed these offences.”

Perhaps Weinberg J came closer when he addressed the second of the two assaults alleged by the surviving claimant:

“The complainant’s account of the second incident seems to me to take brazenness to new heights, the like of which, I have not seen … I would have thought that any prosecutor would be wary of bringing a charge of this gravity against anyone, based upon the implausible notion that a sexual assault of this kind would take place in public, and in the presence of numerous potential witnesses.

“Had the incident occurred in the way that the complainant alleged, it seems to me highly unlikely that none of those many persons present would have seen what was happening, or reported it in some way.”

None did. Weinberg J directed the reader to the next logical inference: If the complainant made up (for reasons we shall likely never know, or at least not ever fully understand) one of the two assaults, then no reasonable person should credit just on his say-so that the first incident ever occurred, either.

Yet that is exactly what the prosecutors maintained.

Justice Weinberg wrote, quite accurately, that the “prosecution relied entirely upon the evidence of the complainant to establish guilt, and nothing more.

“There was no supporting evidence of any kind from any other witness. Indeed, there was no supporting evidence of any kind at all. These convictions were based upon the jury’s assessment of the complainant as a witness, and nothing more.”

“Indeed,” Weinberg J added, the prosecutor not only “did not shrink” from making it his whole case at trial. The prosecutor “invited the members of this Court to approach this ground of appeal in exactly the same way.”

Justice Weinberg’s opinion is masterful and cogent. It supplies (though he did not expressly say it) overwhelming proof that George Pell is an innocent man.

There is another encouraging thought: The path to reversal on further appeal if pursued is now in view.

According to Australian procedure, much of the appellate judges’ job in a case such as Cardinal Pell’s (where the gravamen of the appeal is the sufficiency of the evidence to convict at the trial) is to simply use common sense to weigh the evidence presented to the jury.

This the three jurists did; the entire trial was videotaped and transcribed as well. Two members of the court said that they agreed with the jury’s verdict. So they voted to affirm the conviction.

Their common sense is obviously poor and their practical judgment, worse.

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Gerard Bradley is a Professor of Law at the University of Notre Dame in the US and a former Assistant District Attorney in New York County, New York. This article orginally appeared in The Catholic Weekly (Sydney) and has been republished with permission.