Will Lynch Trial: Defense Alleges Prosecutorial Misconduct

By Tracey Kaplan
Oakland Tribune
June 25, 2012

http://www.insidebayarea.com/oaklandtribune/localnews/ci_20931980/will-lynch-trial-defense-alleges-prosecutorial-misconduct

Prosecutors in the San Jose priest-beating trial have said they pursued the case despite the accused man's understandable motive -- retaliating against the cleric he said brutally molested him as a child -- because it's the right thing to do.

No matter how good the motive, they said, victims cannot be allowed to mete out justice in defiance of the rule of law.

But now, lawyers for the priest's alleged assailant, Will Lynch, are filing a second motion for a mistrial, claiming among other grounds that prosecutor Vicki Gemetti violated the rule of law herself -- by withholding evidence and lying about it.

Gemetti told the lawyers and judge she did not know what the victim and star witness -- the Rev. Jerold Lindner -- would say in court when she asked if he molested Lynch and his then-4-year-old brother on a camping trip in the Santa Cruz Mountains in the mid-1970s. The defense had asked for the information in multiple discovery requests right up until Wednesday, the first day of trial, so the lawyers could prepare to cross-examine him. Gemetti that morning "stated she had not discussed it (with the priest) and that she had no idea what he was going to say," according to the motion.

Gemetti also told the jury the same thing, saying, "The evidence will show he molested the defendant all those years ago. What he'll say about that, I don't know. I expect he will probably lie to you ... He might say, 'I don't remember.' " She also reiterated it to the judge and Lynch's lawyers again Thursday, when they were discussing whether Lindner committed perjury.

Lindner's denial

But in an account corroborated by the priest's attorney, Joe Wall Jr., the defense claims 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 that he did not molest the brothers and would take the stand and say so under oath.

This newspaper obtained the motion late Sunday.

In a statement, the District Attorney's Office said, "The DA has full faith in Ms. Gemetti's integrity and legal ability and will respond to the defense attorney's allegations tomorrow morning in a court of law."

In the motion, the defense says it learned about the situation after Wall called the prosecutor last week because he was upset that she essentially called the priest a liar in her opening statement when she told the jury he molested then-7-year-old Lynch and his little brother. Wall told Gemetti that if she believed Lindner was lying -- and yet put him on the stand -- she was suborning perjury because she knew from the meeting a few days prior exactly what Lindner's position was going to be, according to the motion.

After the conversation, Gemetti texted lead defense attorney Pat Harris, saying she had forgotten that the priest told her what he'd say on the stand. In the motion, Harris said Gemetti realized "this whole thing was unraveling," when she texted him, saying, "I wanted to advise you I spoke with Joe Wall today. He reminded me that when I was explaining to Lindner that he needed to be honest about the molest he denied it. I apologize for the oversight. See you tomorrow."

Under the U.S. Supreme Court decision in Brady v. Maryland, prosecutors must turn over any material evidence that may be helpful to the defense -- regardless of whether it is requested.

On Friday, Wall came to court and told the judge and lawyers that Gemetti had discussed possible immunity for the priest, which he explained to her was impossible because a witness cannot get immunity against perjury, according to the motion.

Last week, Lynch's attorneys filed their first motion for a mistrial, accusing Gemetti of suborning perjury -- and they now claim the new information about her interview with Wall and the priest supports the accusation that she knowingly deceived the court and the defendant.

Lynch's attorneys may not succeed in persuading Judge David A. Cena to declare a mistrial on those grounds. But the allegation is particularly explosive because the Santa Clara County District Attorney's Office is still recovering under a new administration from scandals regarding withheld evidence and untruthful prosecutors. In May, the State Bar charged deputy district attorney Troy Benson with five counts of misconduct, including illegally suppressing evidence and attempting to cover it up through a series of lies.

Fifth Amendment

The charges, which could result in a suspension or disbarment, came after an appellate court noted Benson told a judge he had no idea medical exams of alleged child molestation victims were videotaped -- even though he had reviewed such a videotape less than three weeks earlier. The court expressed doubt that he had truly forgotten about the first videotape.

In Lynch's case, there may be other grounds for a mistrial -- namely that the priest reportedly intends to invoke his Fifth Amendment right against self-incrimination, and refuse to answer any more questions. The jury already heard him testify for about 40 minutes Wednesday in response to questions by Gemetti. If Lindner invokes the Fifth, the defense could argue it would deny Lynch the right to confront and cross-examine his accuser.

However, Cena, the judge, 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.

Contact: tkaplan@mercurynews.comcontracostatimes.com