Updated: 3:30 p.m., June 25: A judge ordered the testimony of a priest whom prosecutors say was pummeled by a man who claims he sexually molested him stricken from the record Monday.
And he also granted the priest's Fifth Amendment invocation submitted by his attorney Joe Wall, Jr., despite the prosecutor on the case filing a brief opposing the Rev. Jerold Lindner right against self-incrimination.
"There's no valid Fifth Amendment claim," said Santa Clara County Deputy District Attorney Vicki Gemetti.
With Father Jerold Lindner's testimony now stricken, given June 20 during the start of the trial, attorneys representing William Lynch, 44, accused of assault and elder abuse of the priest, defense attorneys said they faced a serious problem, as the basis of case was the cross-examination of the priest.
"Our most major concern is that we have the right to cross examine," said Lynch's attorney Paul Mones.
Attorney Pat Harris echoed his co-counsel's concern: "The courts have routinely stated that if the defense doesn't get to cross examine there is no right to confrontation ... This basically gives us two options, if he chooses to go on the stand, he can be held in contempt of court facing possible jail time or under general fairness can't continue.
"This is the ultimate in an unfair trial," Harris said. "This would be a laughing stock of justice if that happened."
Due to Santa Clara County Superior Court Judge David Cena striking Lindner's testimony and allowing him to take his Fifth Amendment, Lynch's attempt to once again have the judge declare a mistrial failed, with the magistrate calling everyone back to court at 8:30 a.m. Tuesday.
In striking Lindner's testimony, Judge Cena said: "I believe that even in a restrictive view of the scope of the Fifth Amendment privilege would deprive the defendant the right to cross examine Mr. Lindner regarding allegations of past molestations against the defendant and others."
On Monday morning, Cena denied a mistrial motion tied to alleged prosecutorial misconduct and perjury in the
Lynch is accused of assaulting Lindner at the Sacred Heart Jesuit Center in Los Gatos in May 2010. Lynch claims Lindner sexually abused him and his brother when they were boys.
Lynch's attorneys sought a mistrial, claiming misconduct on the part of prosecutor Vicki Gemetti in knowingly using perjured testimony.
Santa Clara County Deputy District Attorney Kevin Smith defended Gemetti against the allegation and Cena dismissed the mistrial motion.
Cena said Lindner's testimony denying the molestation didn't relate to either of the crimes for which Lynch is being tried, assault and elder abuse of the priest.
Cena also stated Lindner has never stated that he's molested anyone and has never been convicted of any molestation charge. He also said the defense had failed to prove that the priest's testimony is 100 percent false when he denied abusing Lynch.
"It's clear to the court that both the prosecution and the defense believe that Mr. Lindner molested Mr. Lynch. However, it is still in dispute between Mr. Lindner and Mr. Lynch, and it's the province of the jury, not the defense and not the prosecution, to decide that fact," Judge Cena stated.
In the end, the judge said: "The court finds that the defense has not proven the testimony to be perjured."
By stating up front that Lindner's testimony would probably be false, the prosecution didn't deceive the jury, defense or court in any way, Cena added.
Lindner's attorney, Joe Wall Jr., attended the proceedings Monday morning. Cena called all attorneys into his chambers to discuss how the case would now proceed.
Prior to the judge's ruling on the mistrial matter, Smith argued that the defense, in taking the prosecution to task for admitting that Lindner had molested the defendant, was unfair. He said the defense attorneys had opposed excluding the evidence of the molestation charges.
"To be surprised or to claim that this is being made the centerpiece by the people ... the people had no choice in this matter. We attempted to exclude a very big deal of it and were opposed," Smith said, adding that defense attorneys had even asked to put witnesses to talk about Lindner's alleged molestations against them.
Smith said Lynch and his attorneys engaged in a media campaign regarding the molestation immediately after jury selection and before the trial began on June 20.
"We're here today because the defense is surprised by how we're prosecuting our case. They are a little panicked about the tactic of taking this all head on and saying, 'We believe Mr. Lindner is a molester and it doesn't matter,' " Smith stated.
Smith argued Gemetti had done nothing wrong by openly stating the priest had molested Lynch and that the priest would lie about it to the jury.
Three weeks before he testified, Lindner twice denied that he molested Lynch. He denied it when he told police about the May 10, 2010 assault and in a deposition taken in 1998 civil lawsuit brought against the Catholic Church by Lynch and his brother. The brothers obtained a $625,000 out-of-court settlement.
The prosecution stated it was ready to call Santa Clara County Deputy District Attorney Charles Gillingham to testify that he's done the exact same thing that Gemetti did in a gang-related case. In that case, he testified that the defendant was going to lie when called as a witness. "Sometimes ... witnesses lie," he said. "It's not a rarity, unfortunately."
At around 10:45 a.m. Monday, the jury was escorted back into the courtroom after being dismissed on Thursday
But the jurors were only in the courtroom for a few minutes before they were again dismissed until 2:30 p.m., allowing time for attorneys to work out issues related to Lindner's continuing testimony.
Lindner, who was brought into the courtroom through the judge's chambers for security reasons, was told by the judge that Gemetti had stated that the priest had molested Lynch 35 years ago. The judge said since Lindner had denied it, Wall had expressed his intention to advise the priest against answering any questions during the trial related to any allegations of molestation.
"This advice is based on your right against self-incrimination," the judge counseled him. The priest answered in the affirmative, indicating he understood.
Wall said he believed the District Attorney of Santa Clara County could file perjury charges against Lindner. "I will shut down any line of questioning pertaining to alleged molestation," he said.