For One Priest, A Fate Worse Than Dying in Prison

When Judge Joseph LaPlante denied the Habeas Corpus petition of Fr Gordon MacRae, a last hope for freedom faded. The only thing left to take from him is priesthood.I am grateful for this additional opportunity to clarify for the readers of These Stone Walls the legal and canonical paths ahead for wrongly imprisoned priest, Father Gordon MacRae. There is in fact another appeal currently being researched by counsel, but my understanding is that it is a long shot. However, that seems to be the nature of Habeas Corpus law.Just before starting this sequel to my previous article, “Judge Joseph LaPlante Denies Priest’s Appeal,” I was sent a very interesting document. It’s a copy of a dissertation for the Licentiate in Canon Law (JCL) at a highly regarded Pontifical university. I had been slowly working my way through the well written and scholarly document when a particular point and its footnote caught my eye. Bear with me on the technical language, but this is a point that is of utmost importance to the future of at least one imprisoned priest. The point is about a faculty incorporated into article 21 of the 2010 Revision of the Code of Canon Law:

“The Congregation for the Doctrine of the Faith may… present the most grave cases to the decision of the Roman pontiff with regard to dismissal from the clerical state … when it is manifestly evident that the delict [crime] was committed and after having given the [accused] the possibility of defending himself.”

A footnote on this clause points out that the Latin, “data reo facultate sese defendendi” was translated in the English edition: “after having given the guilty party the possibility of defending himself.” The document’s author pointed out that the word “reus” could mean either “guilty” or “accused” depending on the context, and added:

“. . . but one of the essential conditions of the right of defense is the presumption of innocence. The self-defense of a party already considered guilty could only be of use in establishing mitigating circumstances in order to lessen the penalty. But what if the accused maintains his innocence, even in the face of a civil conviction, as in the famous case of Fr. Gordon MacRae?”

“The famous case of Fr. Gordon MacRae” has just taken on a new sense of urgency. My first reaction to Judge Joseph LaPlante’s denial of this priest’s Habeas Corpus petition without allowing any witness testimony was a sense of dismay at the black eye our justice system continues to inflict upon itself. The year 2014 saw a record number of exonerations of the wrongly convicted in America - prisoners who unjustly served years or even decades in prison before preserved and irrefutable DNA evidence proved them innocent.But what of those like Father MacRae, accused of sexual crimes based solely on the word of another with no evidence at all? Clearly, the U.S. justice system has had an epidemic of injustice, and the epidemic is not limited to cases with DNA evidence. Claims of sexual abuse in which the accuser has a clear financial stake in the outcome of a trial should be looked upon with skepticism. When the accused is a Catholic priest, the weight of media-fueled prejudice can be substantial as it was in the case of Father MacRae.My second reaction to Judge LaPlante’s decision was to feel a bit put off that I had not known of this decision sooner. After a long awaited March 17 hearing before Judge LaPlante, he signed his Order denying the petition on March 25 (the Solemnity of the Annunciation for those who keep track of such things). The imprisoned priest learned of the decision a week later on Wednesday of Holy Week, but he kept it to himself until the day after Easter. I asked him why he remained silent about this through Holy Week. “I didn’t want to cast a shadow on anyone’s Holy Week and Easter,” he said by telephone in his own defense.I realized only later with a mix of both sadness and joy that the imprisoned priest knew of this outcome when he wrote his Divine Mercy post, “You Did It to Me: Wisdom and Works of Mercy.” I just reread it in that light, knowing now that the man who wrote it was also aware of a cold, hard fact: that he is one misinformed judicial ruling closer to being condemned to die in his unjust imprisonment.For me, that thought has transformed his Divine Mercy article from a very good message to a monumental one. From it I have learned something about both the man and the priest, and the meaning of priestly witness and sacrifice. Having since spoken with him, I also learned something about a dread far deeper than the prospect of dying in prison.RENDER UNTO CAESAR WHAT IS CAESAR’SMust priestly sacrifice in this case also require sacrificing the priest to the interests of tort lawyers, insurance companies, and mediated settlements? Must the Church’s justice rely on and mirror the clearly flawed justice of the civil courts? The late Father Richard John Neuhaus seemed to foresee this question when he wrote “A Kafkaesque Tale” (First Things magazine, September, 2008). Father Neuhaus observed that the Fr MacRae case “reflects a Church and a justice system that seem indifferent to justice.”The March 17 hearing before Judge LaPlante turned out to be solely a hearing on procedure and whether the fine points of law should be applied in a light that would either allow or bar a claim of actual innocence to be heard. It isn’t a slam dunk. You and I can read the Memorandum of Law and numerous exhibits and statements filed in this case and available for review at the National Center for Reason and Justice website. Many people have in fact read them and then asked why on earth this man ever went to prison and is still there. State prosecutors, a state judge, and now a federal judge have asked a different question: should claims and evidence of innocence be enough to revisit a conviction?I have read the transcripts of that March 17 hearing on procedure, and I described some of Judge LaPlante’s commentary on the unheard evidence in my earlier article. Which brings me to a good place to point out that Father MacRae has never been allowed to speak in his own defense. In his 1994 trial, Judge Arthur Brennan cautioned the defendant not to take the stand in his own defense, a very unusual piece of advice from a trial judge. The public defender who brought Father MacRae’s State appeal 1996 said that he was surprised to come across this in the trial transcript, and knew of no precedent in which a trial judge rendered such a warning.Then in sentencing MacRae to more than thirty times what the State was offering in a plea deal, Judge Brennan did not allow him to utter a single word. Then the 1996 appeal was denied while dismissing the central appeal issue as “harmless error.” It is noteworthy that in 2001, Monsignor Edward Arsenault, an official of the Diocese of Manchester, wrote in a confidential memo to the bishop that it was unfair to deny legal assistance to Father MacRae, leaving his sole chance at appeal in the hands of a public defender “who did not serve justice.” Now the final arbiter of “justice” has denied the case without ever having even seen this priest.It’s important for those concerned for justice in this case to understand the fine points of law at work here, and to understand that these failed appeals are not indicative of guilt. They are also not indicative that justice has taken place. For example, a rather shocking U.S. Supreme Court decision (Herrera v. Collins, 1993), concluded that “newly discovered evidence of actual innocence is not a bar to the lawful execution of a defendant.”In another prevailing decision, Supreme Court Chief Justice William Rehnquist ruled that “a claim of actual innocence is not, itself, a constitutional claim.” In fact, Chief Justice Rehnquist went even further to deny claims of actual innocence before U.S. courts. Innocence Project attorneys Barry Scheck and Peter Neufeld describe this in their landmark book, Actual Innocence (New American Library, 2003):

“Chief Justice William Rehnquist suggested that politicians would save the lives of the wrongly condemned. Prisoners who wanted to argue they had been wrongly convicted could resort to the pardon system, the court noted. The pardon system would serve as a safety valve. Justice Blackman, joined by [Justices] Stevens and David Souter, were appalled . . . ‘If the exercise of a legal right turns on an act of grace, then we no longer live under a government of laws,’ Blackman wrote.”

I wonder if Supreme Court Justice David Souter was appalled enough. He has since taken early retirement from the Supreme Court bench and lives quietly off the radar in New Hampshire. We could use his judicial umbrage right about now. The fact is that the State of New Hampshire’s pardon system is political, and as such entirely ineffective in addressing injustice. To the best of my knowledge and belief, a Governor of New Hampshire has not pardoned a convicted prisoner since the Civil War, and is certainly not going to start with a priest convicted, however wrongly, of sexual abuse.And it certainly isn’t going to happen in an election year as the State of New Hampshire enters into its public face hosting the First in the National Presidential Primary. No, this all leaves me with one point of total alacrity: a falsely accused and wrongly convicted priest cannot receive justice in the current climate in the United States.THE DIOCESE OF MANCHESTERThis grim reality must be made known if the Church is going to base a canonical decision about priesthood on the mere fact of a conviction. In a commentary I wrote for the Homiletic and Pastoral Review entitled “Sex Abuse and Anti-Catholicism,” I described forced laicization of accused Catholic priests as “a sort of ecclesiastical equivalent of lethal injection.” We cannot envision our Church adopting the position of the U.S. Supreme Court in Herrera v. Collins described above that “evidence of actual innocence is not a bar to the lawful execution of a defendant.”And in this case in particular, there was a good deal behind the scenes in which, for reasons of their own, Church officials in the Diocese of Manchester added to the injustice this priest must now live with behind bars. In March of 2014, the Diocese of Manchester published a “Narrative Regarding Investigation Involving the Rev. Msgr. Edward Arsenault.” You may read for yourselves the claims in that case. The sole point I wish to make is a statement of the Diocese in Paragraph One of that document:

“The information is provided to the faithful because Msgr. Arsenault has been a public figure in the local Church, and his conduct has had a significant impact on the Church. Msgr. Arsenault has rights under civil and canon law that constrain the diocese from further comment.”

I raise this commendable statement by way of comparison. When Father MacRae faced trial in 1994, no official in the Diocese of Manchester acknowledged those same rights for him, and some officials openly trampled upon those rights. Knowing that the priest maintained his innocence and struggled without support to mount a defense, Church officials in the Diocese of Manchester issued this pre-trial statement in September, 1993:

“The Church has been a victim of the actions of Gordon MacRae as well as these individuals . . . It is clear that he will never again function as a priest.”

I do not raise this comparison of diocesan press releases to embarrass anyone. For the most part, the Diocese of Manchester does not have the same leadership it had in 1994. Still, Church officials must acknowledge this violation of Father MacRae’s rights to due process and a presumption of innocence. This is not done by clamoring for his continued prosecution in secretive missives to the Holy See based on the challenges he faces to overturn an unjust conviction. I think many readers of These Stone Walls would weigh in on the scandal such a unilateral dismissal from the priesthood would produce.Six years after Father MacRae went to prison, Dorothy Rabinowitz at The Wall Street Journal began looking into this case, and expressed being troubled by the role of money and mediated settlements in its background. This quickly piqued the renewed interest of the Diocese of Manchester. In June, 2000, New Hampshire attorney Eileen Nevins met with Church officials to discuss this media interest. Attorney Nevins described this meeting in a sworn affidavit:

“During this meeting with Bishop McCormack and Bishop Francis Christian, they both expressed to me their belief that Father MacRae was not guilty concerning the Grover charges and that the Bishop would consider offering some financial aid to assist with a legal defense.”

Six months later in December, 2000, Mr. Leo Demers, a long time friend of Father MacRae and a production executive at the PBS-Boston flagship station, WGBH, also sought a meeting with Bishop McCormack triggered by the interest of PBS Frontline in the MacRae case. Mr. Demers wrote in a sworn affidavit:

“The meeting with Bishop McCormack began with him saying, ‘Understand, none of this is to leave this office. I believe Father MacRae is not guilty and his accusers likely lied. There is nothing I can do to change the verdict.’”

In a subsequent statement, Mr. Demers revealed a verbatim log of this meeting that explained more clearly the Bishop’s concerns. What follows is one of many entries quoting Bishop John McCormack:

“ I do not want this to leave this office because I have struggles with some people within the Chancery office that are not consistent with my thoughts, but I firmly believe that Father MacRae is innocent and should not be in prison.”

The promises of legal assistance never materialized. Father MacRae was given hopes for an investigation and appeal, but over the next several years he just faced a cruel stringing along with promise after promise of assistance that never came. For a broader understanding of what took place here, see my earlier article, “Bishop Takes Pawn: Plundering the Rights of a Prisoner Priest.”Now, today, Father Gordon MacRae accepts his cross, and he will carry it to the very end. Over the next few weeks he is attending a Divine Mercy retreat within the prison with fifteen other prisoners he has led by example out of darkness. I cannot pretend to tell the Holy See what to do, but I can plea, and my plea is simple: leave this man alone. No one is clamoring for his dismissal from the priesthood - not S.N.A.P., not the media, and certainly not his accusers who slithered silently into the background as soon as they cashed their cheques.And what can any of us do in the event that all appeals are futile? We can be like Simon of Cyrene. We can help him carry his cross. We can support him, make prison a little more bearable, keep him in typewriter ribbons, and keep him from starving. We can assist him to assist others. It’s a good investment because I happen to know that he offers his days in prison for us.And we can make These Stone Walls shout. We can tell the world of this, and share this voice in the wilderness. And we can support him with our prayers as he supports us with his.And we can learn from him, learn to bear the injustices and turbulence that so affect our lives. We can learn to bear one another’s burdens as he does, and share one another’s graces for that is exactly what has been going on behind those stone walls for twenty-one years.And what of this priest if he loses all? Will he be okay? I happen to know him, and my hurting heart takes comfort in one self-evident truth: He will never be defeated, nor will he ever put down his cross in despair.