San Jose: Judge Rejects Motions for Mistrial; Priest Beating Case to Resume Testimony

By Tracey Kaplan
Marin Independent Journal
June 25, 2012

http://www.marinij.com/ci_20934002/san-jose-judge-rejects-motions-mistrial-priest-beating

Will Lynch leaves the Santa Clara County Hall of Justice during the lunch break in San Jose, Calif. on Monday, June 25, 2012. Lynch is accused of allegedly assaulting Rev. Jerold Lindner, who he says molested him as a child in the mid-1970s. A motion for a mistrial was denied by Judge David A. Cena earlier in the day.

Krista Nemechek and Tamara Roehm protest outside of the Hall of Justice as a motion for a mistrial of the trial of Will Lynch is denied by Judge David A. Cena in San Jose, Calif. on June 25, 2012. Lynch is accused of allegedly assaulting Rev. Jerold Lindner, who he says molested him as a child in the mid-1970s

Christina Smith addresses the media at the Santa Clara County Hall of Justice as a motion for a mistrial of the trial of Will Lynch is denied by Judge David A. Cena in San Jose, Calif. on Monday, June 25, 2012. Lynch is accused of allegedly assaulting Rev. Jerold Lindner, who he says molested him as a child in the mid-1970s. Smith is a spokesperson for the Lynch family and their supporters

[with video]

In another bizarre legal twist, the judge in the San Jose priest-beating case Monday threw out the testimony of the Jesuit after he invoked his right against self-incrimination and refused to answer more questions in the trial of a man charged with assaulting him.

Judge David A. Cena said he will instruct the Santa Clara County jury to ignore the Rev. Jerold Lindner's 40-minute testimony last week, including his insistence that he did not sexually molest his suspected attacker, Will Lynch, 35 years ago when Lynch was 7 years old.

The ruling deprives the prosecution of its star witness, making the assault case against Lynch potentially more difficult to prove.

But it also could hurt Lynch, whose attorneys immediately called for a mistrial, saying it was unfair to proceed with the case because they will not have the opportunity to cross-examine Lindner. They said the jury heard half the story and could be left with a lingering impression of the May 10, 2010, attack at the Sacred Heart retirement center in Los Gatos, which the elderly priest described as "vicious" and painful.

"How do you unring that bell?" said Pat Harris, Lynch's lead attorney. "It is a laughingstock of justice when the prosecution literally puts on a witness, lets him tell his entire tale, tell his story of what happened, and then we don't have the opportunity to question him and cross examine him."

The judge ruled that Lindner had a valid right to invoke the Fifth Amendment

even though the statute of limitations has run out on the priest's alleged molestations of Lynch and his 4-year-old brother, as well as at least 10 other people, including his sister, niece and nephew.

The Jesuits have doled out millions of dollars to settle cases brought by Lindner's purported victims -- including the Lynch brothers -- but the priest was never prosecuted because Lynch and others reported the abuse after the brief window of opportunity set by the statute of limitations

ended.

Cena agreed with Lindner's attorney, Joe Wall Jr., that the priest risked perjury charges by continuing to testify, although the prosecution argued otherwise. Wall also made it clear that Lindner would chance being held in contempt of court by the judge and sent to jail for the duration of the trial to avoid answering any questions not covered by his Fifth Amendment privilege.

Earlier Monday, Cena rejected another defense motion for a mistrial, finding there was no prosecutorial misconduct on Deputy District Attorney Vicki Gemetti's part. That paves the way for Lynch's trial to resume Tuesday after the defense attorneys put their objections on the record early in the morning.

Deputy District Attorney Kevin Smith argued against the prosecutorial-misconduct motion, saying, "I speak for Jeff Rosen and the entire office and the people of California that Ms. Gemetti did nothing wrong."

Lynch's attorneys had contended Gemetti suborned perjury by putting 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.

But the judge said there was no evidence offered that Lindner molested the brothers. Therefore, it cannot be concluded that the priest had already committed the crime of perjury by making a false statement, never mind whether or not Gemetti suborned it.

In an account corroborated by the priest's attorney, the defense also claimed Gemetti interviewed Lindner in Wall's presence on May 29, about three weeks before the first day of trial. During the interview, the cleric told her twice in no uncertain terms that he did not molest the brothers and would take the stand and say so under oath. Lynch's attorneys claimed Gemetti violated the rules of discovery by not divulging what the priest said and telling them she had no idea what he would say on the stand.

Legal experts say Gemetti could have handled the discovery requests in a more timely, straightforward manner. But fellow prosecutors praised her as an ethical lawyer and noted that the judge did not criticize her handling of the matter.

Even so, the accusations appeared to have taken their toll. Gemetti, who had a seemingly affable relationship with defense attorneys Pat Harris and Paul Mones, interacted with them tersely Monday with her arms crossed.

The judge's rulings appeared to put an end to the dramatic delays that have kept the jurors in Dept. 34 from hearing the case since Thursday morning when the judge sent them home the day after the trial started.

The panel of nine men and three women had returned at 10 a.m. Monday, only to be let go again in the afternoon.

With his usual dry, understated humor, the judge told the jury, "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."

Contact: tkaplan@mercurynews.com