Judge Rejects Lynch Defense Team Mistrial Motion

KTVU
June 25, 2012

www.ktvu.com/news/news/crime-law/judge-rejects-lynch-defense-team-mistrial-motion/nPdmY/

Artist rendition of Rev. Jerold Lindner testifying

KTVU.com and Wires

SAN JOSE, Calif. —

A judge has tossed out a priest's testimony against a man charged with assaulting him after the reverend invoked his Fifth Amendment right to avoid self-incrimination as it became clear he might be accused of lying on the stand.

The Rev. Jerold Lindner told Santa Clara County Superior Court Judge David Cena on Monday morning that, under the advice of his attorney, he was invoking his Fifth Amendment right against self-incrimination and was declining to give additional testimony.

After a recess, Cena tossed Lindner's previous testimony after Lynch's attorneys argued that it would be unfair to allow it to stand if they could not cross-examine the priest.

Lindner testified last week in the trial, in which defendant William Lynch, 44, has been charged with felony assault and elder abuse for allegedly attacking Lindner at a Los Gatos retirement home in May 2010.

Earlier Monday morning, Cena denied motions by the defense to declare a mistrial based on the prosecutor's unusual claim in her opening statement that Lindner would likely lie on the witness stand by denying having molested Lynch and his brother on a camping trip i 1975, when Lynch was 7 years old.

The prosecution's case rests on the assertion that Lynch was acting in revenge as a vigilante when he assaulted Lindner, but the argument is complicated by Lindner's claim in testimony last week that no sexual abuse occurred.

Smith, who was acting as a representative for the Lynch family and who says she was on the camping trip where the alleged molestation occurred in the 1970s, said outside of court Monday morning that Judge Cena's decision not to declare a mistrial was "disappointing but not unexpected."

The trial began last 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 for a mistrial was 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, said in a court filing Friday that prosecutors were 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.

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."