MercuryNews.com (Silicon Valley)
Posted: 06/25/2012 10:03:11 AM PDT
Updated: 06/25/2012 12:25:45 PM PDT
By Tracey Kaplan firstname.lastname@example.org
A retired Catholic priest has refused to answer more questions in the trial of the man accused of beating him in Los Gatos, a move that could end the case.
When Rev. Jerold Lindner was called back to the stand this morning, he invoked the 5th Amendment right against self-incrimination. Lindner is the key witness against San Francisco resident Will Lynch, who is accused of assaulting Lindner in 2010.
Lindner allegedly molested Lynch decades ago when he was a child.
Judge David A. Cena dismissed the jury until this afternoon. He is considering whether Lindner can invoke his right against self-incrimination. The statute of limitations has run out on the alleged molestations, but Lindner’s attorney says the priest could be charged with perjury. He has already in court denied he molested Lynch.
Even if Cena says the 5th Amendment doesn’t apply, Lindner could still refuse the testify. Cena could then charge him with contempt.
The jury already heard him testify for about 40 minutes Wednesday in response to questions by prosecutor Vicki Gemetti. If Lindner does not answer any additional questions, the defense could argue it would deny Lynch the right to confront and cross-examine his accuser.
However, Cena can reject that argument and order Lindner’s testimony struck from the record and instruct the jury to ignore it. The judge would have to decide that the impression on the jury left by the priest, who testified in detail about the attack, including his fright, was not prejudicial to the defendant.
When he dismissed them until 2:30 this afternoon, Cena told jurors, “this is a bit unusual,” referring to the delays. ” I hope you understand.”
He prefaced that comment with the explanation, ” Efficiency takes a back seat to due process in criminal cases.”
The jury had been sent home Thursday morning and returned at 10 a.m. today, only to be let go again.
Earlier this morning, Cena rejected the motion for a mistrial. Lynch’s attorneys contended Gemetti suborned perjury when Gemetti put 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.
Cena noted there is no evidence Lindner committed the molestation, so there is no evidence he made a false statement under oath.
Lynch’s attorneys also contended Gemetti withheld evidence and lied about it.
In his ruling on the mistrial motion, the judge did not address the issue of whether Gemetti lied by claiming the priest hadn’t told her at their May 29 meeting about how he planned to testify.
Lindner’s attorney, Joe Wall Jr., said in a written declaration said the priest told her twice in no uncertain terms that he didn’t molest the brothers and would say so on the stand.
The judge is not expected to declare a mistrial based on the alleged discovery violation. But the allegation still might mar her reputation, unless Cena explicitly exonerates her on the record.
What the judge ruled so far was that Gemetti did not suborn perjury by putting on the stand someone she knew would lie. But he made his ruling on the grounds that there is no evidence that Lindner molested the brothers. Therefore, it cannot be concluded that the priest even committed perjury by making a false statement, never mind whether or not Gemetti suborned it.
Deputy District Attorney Kevin Smith argued against a mistrial, saying, “I speak for Jeff Rosen and the entire office and the people of California that Ms. Gemetti did nothing wrong.”
This morning’s hearing on allegations of prosecutorial misconduct before a packed courtroom drew a phalanx of prosecutors, including Special Assistant David Angel, who among other duties heads the office’s Conviction Integrity unit, and Brian Welch, head of the homicide team.
Gemetti, who had a seemingly affable relationship with defense attorneys Pat Harris and Paul Mones, interacted with them tersely with her arms crossed.
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