Priest Abuse-assault Case Isn’t over Yet

By Christopher Schumb
San Jose Today
July 10, 2012

http://www.sanjoseinside.com/news/entries/7_10_12_priest_william_lynch_jerold_lindner_trial/

The verdict is in for the William Lynch Trial, and unsurprisingly it was “not guilty” on all felony counts. The jury did hang 8-4 for “guilty” on a misdemeanor battery charge, but Mr. Lynch was never charged with the misdemeanor count by the District Attorney—it was added by Judge David Cena as a “lesser included offense,” which allows the jury to find him guilty of a less serious offense if the court believes there is evidence to support such an instruction.

The difference between felony and misdemeanor battery is the severity of the injury inflicted on the victim. Felony battery requires a showing of force that would have inflicted great bodily harm, whereas misdemeanor battery is merely “touching” done without consent in a rude or insolent manner.

The not guilty verdict was not a surprise to most experienced attorneys. As one juror noted, it is tough to find someone guilty of a crime when the court tells you that you cannot rely on the testimony of the victim. Indeed, many felt that the defense was crazy to move for mistrial after Father Jerold Lindner’s testimony was stricken by Judge Cena, after the priest invoked his Fifth Amendment Right to remain silent. Once the priest’s testimony was out, the allegations of sexual abuse were no longer relevant evidence, because the Judge had ruled it was admissible only to impeach Father Lindner’s credibility.

Thus, it was the best of all possible worlds for the defense: The prosecution’s key witness was totally discredited before the jury. Meanwhile, the videotape of Mr. Lynch’s moving description of the sexual abuse he suffered at the hands of Lindner—the man he was charged with assaulting—had already been played to the jury in opening statements. Had the case been a mistrial, Father Lindner would not have testified at the retrial and the allegations of abuse would not have been admissible by the defense. Although, the prosecution might have put forward some evidence of abuse in order to prove Mr. Lynch’s motive for assaulting the priest.

Interestingly enough, Mr. Lynch probably would have been acquitted of all charges had he not voluntarily taken the stand. The prosecution was barely able to prove Mr. Lynch was in the room, much less how the priest came to suffer his injuries. It was clear to the jury that everyone, including the prosecutor, believed that Father Lindner molested Mr. Lynch. The sympathies of the jury were clearly with the defendant and against the alleged victim. This makes the burden of proof for the prosecution—proof beyond a reasonable doubt—an almost impossible obstacle to overcome when there is no first-hand account of how the assault occurred. A jury sympathetic to the defendant will look for any excuse to acquit, and not having a clear account as to how the assault occurred gives each juror an obvious excuse for a not guilty verdict.

However, when Mr. Lynch took the stand and told the jury that he was the one who went to the retirement home, that he got into Father Lindner’s room by lying about the death of his brother and it was he who grabbed the priest first, the uncertainty the jurors could have used to acquit him was eliminated. No matter how sympathetic a jury is towards a defendant, Mr. Lynch’s testimony could not be disregarded.

What appears to have happened is that the jury did not find Father Lynch’s injuries to be serious enough to justify the felony charge; something that was a problem for the prosecutor from day one. But two-thirds of the jurors believed that there was evidence beyond a reasonable doubt that Mr. Lynch in fact attacked Father Lindner, and that evidence most assuredly came from Mr. Lynch’s own mouth.

The decision to testify is always up to the defendant. Mr. Lynch’s defense attorneys are very adept, and they certainly knew that the defense had nothing to gain by Mr. Lynch testifying. Indeed, had Mr. Lynch remained silent, it would have looked to the jury that the case was so weak that the defense did not even believe it merited a response. Mr. Lynch’s decision to testify could not have been part of any defense strategy since it substantially increased the likelihood that he would be convicted. But winning the case was obviously not Mr. Lynch’s goal.

He wanted to confront Father Lindner in court about what he did to him. Mr. Lynch was not satisfied with the taped account of the abuse that was played to the jury in opening statements, and he wanted to tell the jury and the world, under penalty of perjury, what Father Lindner did to him, and he did so at his own peril.

The saga is not over yet. Two issues remain: Does the District Attorney decide to re-try Mr. Lynch on the misdemeanor charge that the jury hung on? And, does District Attorney Jeff Rosen‘s office file charges against Father Lindner for perjury?

As was the case with the underlying trial, these two decisions are fraught with issues and no matter which way the District Attorney goes, he will be criticized by someone. Re-trying Mr. Lynch for the misdemeanor will be unpopular and exhaust a lot of resources. But no District Attorney wants to encourage an open season on beating up alleged child molesters like Father Lindner, which is the message the jury sent to the public by its verdict.

The perjury case has another twist: Will the District Attorney’s Office even get to make the call on whether to charge it? As it turns out, Vicki Gemetti, the prosecutor, is a potential witness in Father Lindner’s perjury trial because she not only interviewed him prior to the trial—she was also the one who asked the priest questions that resulted in the alleged perjured testimony. In cases where an attorney in the District Attorney’s office may be a witness, the best practice is to usually refer the case to the Attorney General for prosecution, thereby avoiding even the appearance of bias.

Christopher Schumb is an attorney with a general practice in San Jose.