Claiming the prosecutor in the San Jose priest-beating trial committed misconduct, defense attorneys Friday asked the judge to declare a mistrial based on the explosive accusation.
Attorneys for Will Lynch -- who is charged with beating up the Jesuit priest he says brutally molested him and his brother when they were children -- contend the prosecutor committed misconduct by suborning perjury.
Santa Clara County deputy district attorney Vicki Gemetti put Father Jerold Lindner on the stand Wednesday after announcing to the jury in her opening statement that he molested the brothers and would almost certainly lie under oath by denying the alleged molestation or saying he didn't remember.
As predicted, Lindner testified he had not raped Lynch when he was 7 nor molested his 4-year-old brother on a camping trip in the 1970s in the Santa Cruz Mountains. Lynch's lawyers argue that the false testimony could affect the jury's verdict, violating their client's due process rights.
But prosecutors strongly deny the accusation, calling it a baseless attack on Gemetti's personal integrity based on a "novel legal theory unsupported by case law, statute or common sense."
In the counter brief filed in Superior Court, they argue case law establishes that a prosecutor has a duty to correct any false testimony, not that a prosecutor must never call a witness who may lie.
The accusation is so out of line, the office contends, that the judge
Judge David A. Cena is set to hold a hearing on the issue Monday morning. He abruptly sent the jury home Thursday without explanation after meeting privately to discuss the issue with the prosecution and defense lawyers.
It is by no means certain Lynch's attorneys will prevail. Appellate courts have overturned cases on similar grounds, the defense insists -- but not until after the defendant has been convicted.
In Gemetti's favor is that prosecutors in domestic violence cases routinely warn juries that a battered woman may not tell the same story on the stand as she did to police.
Harris and attorney Paul A. Mones argue domestic violence cases are different because those prosecutors truly don't know what the victim will say. In this case, they claim, Gemetti signaled to the jury that she all but knew for sure that the priest would lie.
"It's a little bit like apples and oranges," Mones said.
Harris also said that in the 20 years he's been practicing law and in Mones' 30-year legal experience, they had never heard the prosecution tell a jury its star witness would not tell the truth.
To meet the legal standard for perjury, the defense has to not only prove that Lindner lied, but also that the lies were material to the case. Even though the case itself is about the attack on the priest, not the molestation, Harris and Mones argue the false testimony is material because Gemetti told the jury that Lynch's motive was revenge for the molestation.
If the judge grants the defense motion without closing the door to a retrial, prosecutors could try again.
But a mistrial might be a mortal blow to a case many considered a legal quagmire bound to sink on the issue of the priest's character and credibility. Prosecutors have said they are trying the case despite admitting he was a molester because the law exists to protect all members of society, regardless of who the victim is.
Lynch insisted on going to trial, risking a felony conviction and jail time because he wanted to "out" Lindner, who could not be prosecuted for molesting the Lynch brothers and at least nine other children because the statute of limitations had run out.
Without acknowledging wrongdoing, the Jesuits paid Lynch and his brother about $187,000 each after legal fees to settle a lawsuit they filed claiming Lindner had raped Lynch and made him have oral sex with his brother.
The March 10, 2010, attack on the then-65-year-old priest left him bruised and with two small cuts requiring stitches. It occurred at the Sacred Heart retirement home on College Avenue, where Lindner is listed as a child molester.
Lynch, now 44, is charged with two felonies that together carry a maximum sentence of four years -- assault by means of force likely to produce great bodily injury and elder abuse under circumstances likely to produce great bodily harm or death.
Contact Tracey Kaplan at 408-278-3482.