The Santa Clara County District Attorney's Office said Friday it's investigating whether to file perjury charges against Los Gatos Jesuit priest Jerold Lindner, the victim in the high-profile William Lynch assault and elder abuse case.
However, even before the county's top prosecutor announced he wouldn't be refiling the charge, Lynch's supporters were calling for Jeff Rosen to file perjury charges against the priest.
Following Lynch's acquittal, his supporters and members of the Survivors Network of those Abused by Priests, began calling for the DA's Office to charge Lindner with perjury.
The maximum punishment for perjury is four years in jail, although officials with the DA's office say it's highly unlikely Lindner would receive that sentence if he's charged and found guilty.
California Penal Code 118 states that a person commits perjury when he deliberately gives false information while under oath and he's subject to prosecution if he willfully gives false information when testifying in court, when being deposed, in a signed affidavit, in a signed declaration, or in a signed certificate.
Perjury is a serious felony and it's considered a so-called "non-alternative felony," meaning it can only be a felony, explained criminal attorney and legal analyst Steven Clark.
A press release issued by the DA's Office last week announced prosecutors wouldn't retry Lynch on the lesser misdemeanor assault offense, stating that the office was evaluating the obstacles to filing a perjury charged against the priest.
The DA's Office also said Friday it would take several weeks to make a decision on the matter and that when a decision is made, it would explain its rationale to the public.
Clark said one of the issues faced by the DA's Office is that since it had frequent contact with Lindner before the trial - including meetings, and calling him as a witness during the court proceedings - it may be so involved with the case that the office itself may be a witness to the case.
In that case, Clark said, the question is whether the case should be referred to the California Attorney General's Office to consider the potential conflict.
Clark also said the second issue with the perjury charge is that, in general, it's a difficult charge to prosecute because you need someone more than just saying he did something and another person saying he didn't do it. "If it's just coming down to two people saying something happened, that typically going to be very challenging ... it's not enough for perjury. You would need more corroboration," he said.
Witnesses would have to be called to support the perjury charge to say that Lynch was indeed molested, and those witnesses could be other people who say the priest molested them, Clark added.
Witnesses from Lynch's civil case in 1998, in which the Catholic Church paid a $625,000 out-of-court settlement to the Lynch brothers for the alleged abuse by Lindner, would have to be called to testify, Clark stated.
These witnesses would speak about Lindner's conduct, which would be helpful to the prosecution, but it would still come down to the priest saying he didn't do it and Lynch saying he did it. "Is that going to be enough? Even with cooperation to prove perjury, that may be difficult. The issue is also if Lindner is ever going to take the stand," Clark explained.
"It's a challenging perjury case because there's no other evidence," Clark added, saying that in some perjury cases there are documents or video that show those charged are lying, but that evidence doesn't seem to exist in this case.
The other tricky legal issue related to a possible perjury case against the priest is that
"That makes [Lindner's testimony] not material for purposes of the William Lynch case. His testimony was thrown out, so how could him saying, 'I didn't molest him,' be material ... when it wasn't even considered by the court for the jury," Clark said.
But even with the procedural and burden-of-proof problems related to a possible perjury case, Clark said he understood why so many still want the DA's Office to charge the priest. Many believe he's never been brought to justice, and the charge would be a way of giving justice to the alleged victims.
"You don't have make-up calls in the law," Clark said. "The fact that Lindner may have gotten away ... may not have been brought to justice for the child molest, doesn't mean that he should be prosecuted for a case that can't be proven."