Santa Cruz Sentinel
Posted: 06/22/2012 04:00:20 PM PDT
By Tracey Kaplan
Will Lynch’s trial on charges of beating priest begins
Co-counsel, Paul Mones, left, advises Will Lynch as he arrives for his trial, at the Hall of Justice, in San Jose, on Wednesday, June 20, 2012. Supporters were on hand with placards, protesting the fact that Father Jerold Lindner was never brought to trial for his abuses on Lynch. Lynch in 2010 allegedly beat Lindner, whom he says sexually assaulted him and his brother when they were boys of 7 and 4 years of age. (Karen T. Borchers/Staff)
Claiming the prosecutor in the San Jose priest-beating trial committed misconduct, defense attorneys Friday asked the judge to declare a mistrial based on the explosive accusation.
Attorneys for Will Lynch — who is charged with beating up the Jesuit priest he says brutally molested him and his brother when they were children — contend the prosecutor committed misconduct by suborning perjury.
Santa Clara County deputy district attorney Vicki Gemetti put Father Jerold Lindner on the stand Wednesday after announcing to the jury in her opening statement that he molested the brothers and would almost certainly lie under oath by denying the alleged molestation or saying he didn’t remember.
As predicted, Lindner testified he had not raped Lynch when he was 7 nor molested his 4-year-old brother on a camping trip in the 1970s in the Santa Cruz Mountains. Lynch’s lawyers argue that the false testimony could affect the jury’s verdict, violating their client’s due process rights.
But prosecutors strongly deny the accusation, calling it a baseless attack on Gemetti’s personal integrity based on a “novel legal theory unsupported by case law, statute or common sense.”
In the counter brief filed in Superior Court, they argue case law establishes that a prosecutor has a duty to correct any false testimony, not that a prosecutor must never call a witness who may lie.
The accusation is so out of line, the office contends, that the judge should weigh whether to sanction lead attorney Pat Harris or report him to the State Bar.
Judge David A. Cena is set to hold a hearing on the issue Monday morning. He abruptly sent the jury home Thursday without explanation after meeting privately to discuss the issue with the prosecution and defense lawyers.
It is by no means certain Lynch’s attorneys will prevail. Appellate courts have overturned cases on similar grounds, the defense insists — but not until after the defendant has been convicted.
In Gemetti’s favor is that prosecutors in domestic violence cases routinely warn juries that a battered woman may not tell the same story on the stand as she did to police.
Harris and attorney Paul A. Mones argue domestic violence cases are different because those prosecutors truly don’t know what the victim will say. In this case, they claim, Gemetti signaled to the jury that she all but knew for sure that the priest would lie.
“It’s a little bit like apples and oranges,” Mones said.
Harris also said that in the 20 years he’s been practicing law and in Mones’ 30-year legal experience, they had never heard the prosecution tell a jury its star witness would not tell the truth.
To meet the legal standard for perjury, the defense has to not only prove that Lindner lied, but also that the lies were material to the case. Even though the case itself is about the attack on the priest, not the molestation, Harris and Mones argue the false testimony is material because Gemetti told the jury that Lynch’s motive was revenge for the molestation.
If the judge grants the defense motion without closing the door to a retrial, prosecutors could try again.
But a mistrial might be a mortal blow to a case many considered a legal quagmire bound to sink on the issue of the priest’s character and credibility. Prosecutors have said they are trying the case despite admitting he was a molester because the law exists to protect all members of society, regardless of who the victim is.
Lynch insisted on going to trial, risking a felony conviction and jail time because he wanted to “out” Lindner, who could not be prosecuted for molesting the Lynch brothers and at least nine other children because the statute of limitations had run out.
Without acknowledging wrongdoing, the Jesuits paid Lynch and his brother about $187,000 each after legal fees to settle a lawsuit they filed claiming Lindner had raped Lynch and made him have oral sex with his brother.
The March 10, 2010, attack on the then-65-year-old priest left him bruised and with two small cuts requiring stitches. It occurred at the Sacred Heart retirement home on College Avenue, where Lindner is listed as a child molester.
Lynch, now 44, is charged with two felonies that together carry a maximum sentence of four years — assault by means of force likely to produce great bodily injury and elder abuse under circumstances likely to produce great bodily harm or death.
Attorneys seek mistrial over priest’s testimony
Published: Saturday, Jun. 23, 2012 – 1:45 am
By PAUL ELIAS Associated Press
SAN JOSE, Calif. — Attorneys representing a California man charged with assaulting a priest who he claims raped him decades ago want a judge to declare a mistrial.
The attorneys have said that a prosecutor committed misconduct in handling the priest’s testimony. The defense attorneys accuse the prosecutor of knowingly allowing false testimony, known as “suborning perjury.”
Father Jerold Lindner denied under oath on the witness stand Wednesday that he molested William Lynch during a 1975 camping trip.
Lynch has pleaded not guilty to assaulting Lindner in 2010. His attorney, Pat Harris, has succeeded in large measure of turning the assault trial into an expose of Lindner’s alleged sexual abuse of Lynch.
The trial began Wednesday in a courtroom filled to capacity with dozens of spectators claiming to be sexual abuse victims of the Catholic Church. Several more demonstrated outside with large signs decrying the church’s abuse scandal.
Lindner was even accosted in the court hallway by one of his alleged victims Thursday morning as he tried to enter the courtroom. Debbie Lukas, who settled a lawsuit with the church that alleged Lindner abused her, screamed at him “look me in the eyes” before sheriff’s deputies escorted her out of the courthouse.
Harris’ call Friday for a mistrial is rooted in Santa Clara County deputy district attorney Vicki Gemetti’s opening statement to jurors, which she delivered Wednesday morning.
She told the jury that “the evidence will show” Lindner did molest Lynch. Gemetti predicted Lindner would deny the molestation, but urged the jury to convict Lynch anyway. Harris says that because Gemetti knowingly allowed Lindner to falsely testify, she suborned perjury.
Deputy district attorney Kevin Smith, defending Gemetti and arguing against the mistrial, said in a court filing Friday that prosecutors are allowed to elicit testimony they know to be false as long as they disclose that in advance. Smith said false testimony is often knowingly presented in gang cases and domestic violence trials.
Smith said Gemetti “followed the law to the letter with the utmost candor and professionalism.”
Smith also raised the possibility of pursuing misconduct charges against Harris. Smith said it appears that Harris offered to drop his request for misconduct charges against Gemetti if her office dropped the criminal case.
Smith provided transcripts of a brief text message conversation between Harris and Gemetti late Wednesday night discussing the priest’s testimony. Harris tells Gemetti that he doesn’t want to pursue misconduct charges against her.
“Please talk to your boss and get rid of this case,” Harris texted. “I don’t want to have to do this.”
The next morning, the two met with the judge where Harris said he wouldn’t need to pursue the misconduct charges against Gemetti if the case was dismissed, according to Gemetti’s declaration filed with the court late Friday. Harris also told Gemetti and the judge that “people were emailing him about reporting my actions” to the State Bar of California, according to Gemetti’s declaration.
Smith said the district attorney’s office would leave it to the judge to “determine whether the unfounded accusations of prosecutorial conduct in this case, and the reference to not pursuing this motion in exchange for the (district attorney’s) dismissal of this case…merit sanctions or a referral to the State Bar.”
Harris said the misconduct allegations raised against him were a “sadly desperate attempt” to deflect attention from Gemetti’s handling of Lindner’s testimony.
“It is laughable that my text to Ms. Gemetti is misconduct,” Harris said. “I have been begging her for a dismissal, as any defense attorney would do since day one.”
Judge David Cena will consider the requests Monday morning. If he declines to declare a mistrial, the priest is expected to resume testifying.