Cardinal Pell’s Acquittal Corrected Many Legal Errors
ANALYSIS: Notre Dame legal scholar Gerard V. Bradley highlights the fundamental legal errors that gave rise to the cardinal’s wrongful conviction.
At just past 8pm Eastern time on Monday April 6 — 10 o’clock Tuesday morning in Australia — the Australian High Court unanimously acquitted George Cardinal Pell of sexually assaulting two choirboys in Melbourne’s St. Patrick’s Cathedral, around Christmas time in 1996.
Within hours, Cardinal Pell walked out of Melbourne’s Barwon prison a free man. His time there was spent mostly in solitary confinement. He was not permitted to say Mass while incarcerated. Before the day was done, the cardinal celebrated Mass for some Carmelite sisters. In this more-than-ordinarily doleful Lenten season, it is joyous news indeed.
Upon his release, Cardinal Pell issued a statement in which he noted the “serious injustice” he suffered. He nonetheless harbored “no ill will to my accuser”:
“I do not want my acquittal to add to the hurt and bitterness so many feel; there is certainly hurt and bitterness enough. …The point was whether I had committed these awful crimes, and I did not.”
Cardinal Pell also said that “my trial was not a referendum on the Catholic Church; nor a referendum on how church authorities in Australia dealt with the crime of paedophilia in the church.” That is true enough, in a way: Only Cardinal Pell was convicted and the Church was not a party. But in another way, it is false: The cardinal, 78, would not have been charged, much less convicted, but for the anti-Catholic hysteria which surrounded the whole proceeding. Cardinal Pell owned (if you will) some of that hostility; he was for decades Australia’s most prominent defender of Catholic faith and morals, in a land rapidly alienating itself from both. But much of the hostility owed to sexual abuses committed by so many lesser Catholic clergy. George Pell came to symbolize that horrendous institutional sin. He was an available and, in some persons’ opinion, a deserving, scapegoat.
The allegations against Cardinal Pell were first reported in 2015. Charged formally in June, 2017, he was tried unsuccessfully in September, 2018. (That jury was unable to reach a verdict.) Cardinal Pell was retried and found guilty on Dec. 11, 2018, of five counts of sexual assault. The trial judge confirmed the verdict and, on March 13, 2019, sentenced the cardinal to six years in prison. He needed to serve three years, eight months before becoming eligible for parole.
A 2-1 majority of the Victoria appellate court subsequently affirmed the trial court’s judgment based upon the jury verdict. The lone dissenter, an Oxford-educated jurist named Mark Weinberg, filed a 200-page opinion dissecting the evidence as well as his colleagues’ reasoning, He reached the same conclusion reached by all seven members of the High Court: “there is ‘a significant possibility that an innocent person has been convicted.’” In fact, a walk-through all of the evidence shows, to a practical certainty, that George Pell is innocent. It is no wonder that the High Court acquitted Cardinal Pell. It is scandalous that it went that far.
The evidence at trial portrayed two incidents. Both involved a then-13-year old choirboy described in legal proceedings as “A” to protect his anonymity. A said that the first incident occurred in the sacristy of St. Patrick’s after a high Mass. Present then was another putative victim, choirboy “B.” Victim A testified that some weeks later, in a hallway teeming after Mass with choir members and other cathedral functionaries, the cardinal briefly though brutally assaulted him again. No one reported that second alleged incident. Not even A, until 2015. (By then B had died. He passed without ever claiming to have been abused by anyone. In fact, he expressly denied that any such thing happened to him, when his mother in 2001 pointedly asked him.)
The High Court all but agreed with the cardinal’s lawyers that this second allegation was “fanciful.” The Court stated:
“The assumption that a group of choristers, including adults, might have been so preoccupied with making their way to the robing room as to fail to notice the extraordinary sight of the Archbishop of Melbourne dressed ‘in his full regalia’ advancing through the procession and pinning a 13 year old boy to the wall, is a large one.”
As would be the “assumption” that, if it had happened, no one would be heard to remark upon it.
The High Court judged that no rational jury could have convicted Cardinal Pell on any of the charges. The evidence at trial, the judges ruled, left behind an incorrigible “reasonable doubt.” These judges’ task did not require them to say more than that. But the unbiased reader of their judgment (as well as Weinberg’s encyclopedic, masterful opinion) would easily draw the inference: Nothing happened. A’s whole story, with respect to both alleged incidents, was “fanciful.”
The High Court listed the legal mistakes responsible for the miscarriage. One was that the lower court judges (and, evidently, the jurors, too) effectively applied a double standard to the two sides. They uncritically bought A’s whole story; they were clearly enthralled by what they called its raw “authenticity” and “ring of truth.” But when it came to the 20-or-so witnesses who were intimately familiar with liturgy at St. Patrick’s in late 1996 — and whose testimony established what the High Court called a set of “compounding improbabilities” that falsified what A said — these jurists became hypercritical: Ah, yes, but these witnesses do not establish that A’s story was “impossible.” Thus, Cardinal Pell is guilty.
The errors in this way of thinking are no less profound for being violations of elementary principles. Most egregiously, it wrongly shifts the burden of proof to the defendant. Rather than holding the government to its standard duty to prove crimes “beyond a reasonable doubt,” George Pell was effectively required to disprove a beguiling fancy — by showing that it was “impossible.”
Also, the jury and judges ignored their fundamental obligation to fairly but also critically evaluate all of the evidence. Nor did they consider all of the evidence together: that is, they failed to use the 20 witnesses’ evidence as a critical metric of A’s testimony. If they had done so, they would have easily concluded (as did the High Court) that this cascade of “improbabilities” at least creates a “reasonable doubt” about A’s story.
Cardinal Pell was incredibly lucky in one decisive respect: Victim A set his sordid story in a well-trafficked place. Had the background setting been instead a campsite or a locker room or some other isolated venue, the cardinal’s conviction would have been affirmed. Tried according to the mistaken norms just described, it would seem that anyone accused by an engaging fantasist or a skilled liar, would be defenseless.
This case of Pell v. The Queen is over and done with. There is no legal avenue by which A’s allegations could be relitigated in any criminal context. There is no legal obstacle, however, to A bringing a civil claim against Cardinal Pell. (Some readers might recall that, after O.J. Simpson was acquitted of murder, the family of victim Ronald Goldman successfully sued Simpson for wrongful death.) In any civil suit against Cardinal Pell, though, A would not have the benefit of the anonymity he enjoyed in the criminal trial. Nor would he be shielded from cross-examination on his credibility, including any relevant emotional difficulties he might have had. (In fact, Cardinal Pell’s legal team was rebuffed in court — in the absence of the jury — when they attempted to gain access to records of A’s treatment for psychological problems.)
There are statutes of limitation that would block civil suit nearly a quarter-century after the alleged fact. But in Victoria, judges have discretion to waive those limitations. There is also the real prospect that other persons might come forward with new criminal and civil allegations against Cardinal Pell. The cardinal’s days in court are almost certainly not over.
Gerard V. Bradley is a professor of law at the University of Notre Dame
and a former assistant district attorney in New York County, New York.