Will Lynch Supporters Call on DA to Prosecute Priest for Perjury

By Tracey Kaplan
Mercury News
July 7, 2012

http://www.mercurynews.com/los-gatos/ci_21024016/will-lynch-supporters-call-da-prosecute-priest-perjury

For weeks as the priest-beating trial unfolded, it was the victim's name that was dragged through the mud. Even the prosecutor branded the Rev. Jerold Lindner a child molester who decades earlier brutally raped the man on trial in the revenge attack.

But a day after the jury acquitted Lindner's attacker, Will Lynch's supporters say there is another way to bring the priest to justice and protect young potential victims. They want District Attorney Jeff Rosen to bring Lindner up on perjury charges for allegedly lying under oath about molesting Lynch and his 4-year-old brother in the mid-1970s. The priest is now back at his bucolic hilltop retirement center in Los Gatos, immune from prosecution because Lynch and other accusers came forward with their molestation allegations after the statute of limitations lapsed.

"If we can't get justice directly, this is another way we can get him off the street," Lynch said.

Even though Lindner could only get a maximum of four years in county jail, Lynch said, "It's better than zero years."

Rosen is considering the possibility of prosecuting Lindner, but he and legal experts say that would be a difficult task that might not succeed or bring much solace to the victims.

The priest is 67 years old. But the main clergy-sex abuse victims group in the United States, Survivors Network of those Abused by Priests, or SNAP, said there are cases involving priests in their 70s and 80s who have continued to prey on children.

SNAP also wants the church and the Jesuits to denounce and discipline Lindner. And although Lynch disagrees, the group is also demanding that the Jesuits move Lindner to a "remote, secure, independently run treatment center not run by the church."

"These guys and their supervisors don't have the skills or will to monitor him," said David Clohessy, SNAP's national director.

Lynch believes the public is actually safer if Lindner is kept here, where his picture has been plastered all over the news.

A spokesman for the California Province of the Society of Jesus said in an email that Lindner's status, like that of all Jesuits, is reviewed at least annually. Lindner has lived at Sacred Heart Jesuit Center in Los Gatos for 10 years "under supervision," he said, adding that Lindner can't leave unaccompanied. Lindner testified at trial that he was free to check out a car and leave the center, but never mentioned he couldn't go out alone.

Lynch himself faces a possible retrial on a misdemeanor assault charge because the jury deadlocked 8-4 on that count. The panel acquitted him of felony assault, felony elder abuse and misdemeanor elder abuse.

The lawyers on both sides of the case are set to meet with Judge David A. Cena on Thursday, and prosecutors could reach a decision by then on whether to retry Lynch.

In an email to his staff obtained by this newspaper Friday, Rosen defended the original decision to take a stand against vigilantism and prosecute Lynch. The case went to trial after Lynch refused to negotiate a plea deal because he wanted to expose Lindner.

"As prosecutors, we must sometimes take actions that are unpopular, in order to uphold the rule of law, and the high ideals of our country," he said in the email. "We knew the Lynch case would be difficult, but our mission is to do what is right, not what is easy or popular."

However, some legal experts say it's unlikely Rosen will decide to retry him. A third of the jury voted for acquittal, and Lindner will not cooperate with prosecutors.

The priest took the stand during Lynch's trial and denied molesting the brothers after testifying for 40 minutes about the short but "vicious" and painful beating that left him bruised and with two small cuts requiring stitches. But the judge wound up striking the priest's entire testimony from the record and ordering the jury to ignore it after the priest refused to answer any more questions, depriving Lynch's attorneys of the right to cross-examine him.

As to possible perjury charges against Lindner, Rosen is expected to take several weeks to decide. However, when the verdict was announced Thursday, the district attorney made a statement suggesting that Lindner is outside the reach of the law: "Unfortunately, (Lindner) is beyond the limits of human justice for crimes committed decades ago. However, he is not beyond divine justice for the crimes he committed in this world."

On Friday, Rosen said in a statement that the legal standard for proving perjury is far more complex than most people realize.

"There is a common misconception that perjury is simply lying on the witness stand," Rosen said. "In fact, it is much more complicated as the penal code makes clear. We will carefully review the applicable law and Mr. Lindner's abbreviated testimony. We then will determine if it is appropriate to file perjury charges against him in this circumstance."

Among other hurdles, prosecutors have to have proof from more than one witness, essentially forcing them to put together a multi-victim sex case dating back three decades.

"There's no legal reason they couldn't bring perjury charges," said Gerald Uelmen, a former federal prosecutor who teaches at the Santa Clara University School of Law.

But Uelmen said such a trial would be a "circus" that would do little to protect children in the long run.

"The whole reason Will Lynch went to trial was to expose the priest," Uelmen said. "I'd say he achieved that, and case closed."

Professor Stanley A. Goldman, who teaches criminal procedure at Loyola Law School in Los Angeles, said Lindner's alleged lies may not even meet the legal standard for perjury. They would have to be material, that is, be statements that were used to affect the outcome of the proceeding or that had the probability of influencing the outcome of the proceeding.

The Jesuits have doled out millions of dollars to settle cases brought by Lindner's victims -- and advocates say the payouts and underlying documentation of Lindner's history could help prosecutors prove a perjury case.

But Goldman said that unless the supporting documents contain an admission of guilt by Lindner, the information could be deemed hearsay and therefore inadmissible.

"The up side of prosecuting the priest on perjury charges is you take a potential child molester off the street," Goldman said. "But it's legally dicey."

Contact Tracey Kaplan at 408-278-3482.

Contact: tkaplan@mercurynews.com