Judge Alex Kozinski Speaks Out on Wrongful Convictions

The U.S. has “an abiding and unfulfilled moral obligation to free citizens imprisoned by questionable means,” says Judge Alex Kozinski of the Ninth Circuit Court.“I can’t do this anymore.” I sometimes find myself waking up with that as the first thought of the day to enter my mind. But don’t worry. I’ve been waking up uttering that about once a week for at least twenty of the twenty-three years I have spent in wrongful and unjust imprisonment. The thought is more of a temptation than any real conviction. “You don’t have that luxury,” my friend Pornchai Moontri often says in rebuttal. He’s right.By now many readers have seen an article by me published on September 23 at Spero News Forum to mark two simultaneous events: 23 years of wrongful imprisonment for me, and 23 years since the release of the great Stephen King story and celebrated prison movie, The Shawshank Redemption. If you missed my article about these parallel stories, I hope you will read it and help promote it. Doing so lets Spero Forum and other news outlets know that stories like this should remain in the public consciousness. My article is “The Shawshank Redemption and its Real World Version,” published on the day I awoke in prison for the 8,400th time.Many readers of These Stone Walls have been asking questions about what comes next in our legal effort. Some want to organize a fundraising effort to start a new legal appeal. Others want to start a letter writing campaign to Church or state officials. Still others want to initiate a pardon or sentence commutation request from the New Hampshire governor or the U.S. president.As much as I appreciate the concern behind these approaches - a concern not only for me but for the state of our justice system - none of them seems feasible. Though we still accept donations to our legal fund described on the “Donate” page here, there is no current legal process underway.We are still recovering from the one-sided dismissal of our appeal efforts with no valid hearing on testimony or evidence. Ryan MacDonald wrote of this denial of justice in “A Grievous Error in Judge Joseph Laplante’s Court.”The pardon idea is also not realistic. Outgoing U.S. presidents can issue pardons only for those convicted in federal courts. And the notion of a “pardon” is that it applies only to guilty defendants. It is one of the grossly understated realities of American criminal justice that pardons and plea deals work only for the guilty who end up serving vastly less time in prison than the innocent who cannot fathom taking part in such deals.And we are in an election year when it is political heresy for a politician to acknowledge a wrongful conviction - especially of a sexual offense, and ESPECIALLY when the defendant is a Catholic priest who still refuses to denounce the Church and renounce the priesthood. The truth is that if I were an Islamic cleric convicted in the same way with the same outcome, the clamor for my release would be deafening. In Catholic circles - or at least in Catholic leadership circles - the silence is not so much malicious as it is fearful. American Catholic leaders live in terror of being criticized by SNAP or The New York Times, or The National Catholic Reporter.Which reminds me of a little side story. Last year on the Solemnity of the Immaculate Conception, the same day that Pope Francis opened the Holy Door to the Jubilee Year of Mercy, Peter Feuerherd wrote an article in the National Catholic Reporter profiling the story of a North Carolina parish with a contingent of “progressive” Catholics fighting to oust their priest because they could not abide his theological orthodoxy. Being a man of informed conscience, Ryan fired off a blistering e-mail to Mr. Feuerherd for choosing that day to smear a good priest’s reputation based on little more than innuendo and rumor. The NCR Editor responded defensively but commended Ryan for writing “a good article” about a prisoner on his own blog.That article was “Thomas Merton and Pornchai Moontri: A Prayer for the Year of Mercy.” Ryan withheld any further rebuttal in the hopes that just maybe Peter Feuerherd and NCR will find the courage to take on that injustice and write of it. Of course, that didn’t happen. And it wouldn’t happen. Not unless a way could be found to sanitize that story from any reference to a priest in prison wrongly convicted of sexual abuse.A VOICE OF JUDICIAL INTEGRITYOn the evening before Spero News published “The Shawshank Redemption and Its Real World Version,” I was able to ask a friend to help me comment on another story that caught my eye. It was an opinion piece entitled “Rejecting Voodoo Science in the Courtroom” by Judge Alex Kozinski (The Wall Street Journal, September 20, 2016). Judge Kozinski wrote:

“Among the more than 2.2 million inmates in U.S. prisons and jails, countless may have been convicted using unreliable or fabricated forensic science. The U.S. has an abiding and unfulfilled moral obligation to free citizens who were imprisoned by such questionable means.”

Judge Kozinski has served as a judge on the Ninth Circuit U.S. Court of Appeals since 1985, and is also a senior advisor to the President’s Council of Advisors on Science and Technology. His incisive op-ed in The Wall Street Journal asks a most important question: “Why trust a justice system that imprisons and even executes people based on junk science?”He went on to explain his question with an analysis of the dismal state of what police and prosecutors across the country present as reliable, or even irrefutable, scientific evidence of a defendant’s guilt in a system plagued with an epidemic of wrongful convictions. “Many unfortunates languish in prisons based on such bad science,” Judge Kozinski concludes. It took me a couple of days to do it, but I managed to get a comment posted on the article at WSJ.com:

“It takes courage and integrity for any judge to critique the very system over which he presides on a daily basis. The relatively vast number of exonerations of the wrongfully convicted is evidence of what Judge Kozinski here describes. However, there is another class of the unjustly imprisoned who are convicted in the United States without a shred of forensic evidence and based solely on the word of an accuser. In the State of New Hampshire (NH RSA 632:A6) a defendant can be convicted of sexual assault even decades after an alleged offense with no evidence or corroboration beyond the word of an accuser. This is so even when an accuser has a clear financial gain from bringing the claim. How does one appeal the evidence in a case in which there was never any?”

AN Ed.D. AND A LOT OF BSRyan MacDonald wrote a scathing report about the prosecution’s expert witness testimony in my 1994 trial. His title is “How Psychotherapists Helped Send an Innocent Priest to Prison.” The “expert” in that case was Dr. Leonard Fleischer, Ed.D. who testified for the prosecution in a trial filled with allegations of witness tampering and witness misconduct.Accuser Thomas Grover testified that over a decade earlier, in the months just before his 16th birthday, he came to me five times for help with his drug problem, and was forcibly sexually assaulted each time. When he first told the story, he said he was 10, then 12, then 14, then Detective James McLaughlin gave him a copy of my resume “to help him with his dates.”When asked why he would return from week to week after such assaults, Thomas Grover claimed that he “repressed” the memory of it from week to week, and had “out-of-body experiences.” He also said that he had been in treatment for drug abuse at least six times.In the trial, and in each of the subsequent attempts at appeal, I was never permitted to testify. In the most recent appeal, federal Judge Joseph Laplante explained away or ignored all the discrepancies, then dismissed the case without hearing from me or even laying eyes on me. Had I been allowed to speak under oath at this or any time in this entire 23-year ordeal, this is what I would have said:Thomas Grover never came to me for counseling for this or any other problem at age 15. I called him to my office a single time, at age 18, when I confronted him about terrorizing his mother and family in his repeated drunken and drug-induced rages. He was a large, aggressive, narcissistic bully with a criminal record of fraud, forgery, theft, and assault, all of which Judge Arthur Brennan kept from the jury at my trial.That single confrontation in my office at Saint Bernard Rectory took place in 1986 and not 1983 as claimed. Just outside my office door were his mother and some of his siblings whom I summoned to be ready to confront him if he did what they said he always did: lied, cried, and threw a childish temper tantrum, blaming others for his problems. I gave him a choice of going to treatment or going to jail. He chose treatment. A month into it, he was caught smuggling drugs into the treatment center.In his testimony at trial, Thomas Grover claimed to have seen an expensive marble chess set in my rectory office in 1983. A priest-friend, Father “Moe” Rochefort testified that this was impossible because that chess set was purchased while on a vacation with him three years later in 1986. After just one hour of deliberation, the jury came back with a question. They asked Judge Brennan to let them review a copy of Fr Rochefort’s testimony. Brennan denied their request. After just another half hour, they arrived at their verdict because there was absolutely no other evidence to review.At the trial, the prosecution’s “expert” witness was not allowed to be in the courtroom during Thomas Grover’s testimony, but a surrogate was present to take notes. In his testimony, Leonard Fleischer, Ed.D. testified - with no evidence or corroboration to back it up - that “in my experience” 85% of men in treatment for substance abuse had been childhood victims of sexual abuse. Then he went on to cite “out-of-body” experiences as a symptom he has encountered.This is the very “voodoo” evidence that Judge Kozinski today exposes as “junk science” and it has been discredited everywhere but in sexual abuse prosecutions. This is not the first time this federal appellate judge has presented a sobering review of how such trials are conducted. In “The GOP’s Justice Reform Opportunity,” (Washington Post, Oct. 23, 2015) George Will cited Judge Kozinski’s expose’ of how juries decide guilt or innocence:

“Kozinski says we know ‘very little’ about how juries decide cases. Do they assume that the presumption [of innocence]’ remains in place until it is overcome by persuasive evidence, or do they believe it disappears as soon as any actual evidence is presented? Do they actually distinguish between a ‘preponderance’ of evidence, ‘clear and convincing’ evidence, and ‘evidence beyond reasonable doubt’? Research demonstrates that the person making a first assertion has a substantial advantage. In a courtroom, juries hear from prosecutors first... And police have opportunities to manufacture or destroy evidence, influence witnesses, extract confessions, and otherwise stack the deck against people they think should be convicted.”

That last acknowledgment by this courageous judge calls to mind the statement of Steven Wollschlager, a former accuser of mine. Ryan MacDonald included his signed statement in “The Father Gordon J. MacRae Story: Injustice in New Hampshire.” Steven Wollschlager has a disturbing first-hand account of witness tampering and attempts at bribery, but he has never been allowed to testify under oath in any court. Any judge today who reads that statement but declines to allow and review his testimony is complicit in this corruption and coverup.HARMLESS ERRORIn his WSJ article, Judge Kozinski shed some light on why my own appeals to the federal courts have not been successful, and why I remain in prison after 23 years:

“Setting aside wrongful convictions has become exceedingly difficult under a 1996 law called the Antiterrorism and Effective Death Penalty Act, which severely limits the ability of federal courts to review state-court decisions. Congress should amend the legislation to authorize swift federal relief to prisoners who make a convincing showing that they were convicted with false or overstated expert witness testimony.”

It was yet another law arising from the [Bill] Clinton era and its tough-on-crime pattern of laws that severely limited the rights of the wrongfully convicted to seek justice in federal courts. In her landmark “Oscar Hangover Special: Why ‘Spotlight’ is a Terrible Film,” CounterPunch writer JoAnn Wypijewski also dissected the voodoo science that passed for “evidence” at my trial and that of another Catholic priest.When I was sent to prison, I had one opportunity for a direct state appeal. No Catholic priest without a wealthy family has the resources for such a trial and appeal. As I sat in prison awaiting that next step, a letter arrived from a spokesman for my bishop: “To the extent “Mr.” MacRae is without funds for an appeal, he should contact the public defender’s office.” At that very same time, my Diocese issued checks to Thomas Grover and his brothers for a combined total of $650,000.In that appeal to state courts in 1996, the court ruled, and the prosecution conceded, that much of Dr. Fleischer’s testimony should not have been allowed, but dismissed it as “harmless error.” Harmless indeed! In a brief poll of the jurors after the trial, several reported being swayed solely by Fleischer’s “expert” testimony, but under the rules, none of this could be raised in a federal appeal because a state court had already ruled that it was “harmless error.”And prison itself doesn’t end the voodoo prosecution. In 2005, a prison bureaucrat recommended that I be remanded to the worst possible housing assignment citing on an official Classification form that “Inmate minimizes offense.”  There isn’t much in life more traumatic than 23 years of wrongful imprisonment for crimes that never took place. And yet, I have not never had a single out-of-body experience. With his Ed.D. and B.S., Doctor Leonard Fleischer might say that’s solid evidence of my guilt. There have been 1,576 exonerations of wrongfully convicted Americans since 1989. Judge Alex Kozinski states that for every one of them, there may be dozens of others unable to prove their innocence against the junk science that helped to convict them.So what do I do next? I simply do not know. But asking you to share this post, and others mentioned herein, seems a necessary step to engage the court of public opinion. As Judge Alex Kozinski concluded, “If your son or daughter, sibling or cousin, best friend or spouse was a victim of voodoo science, you would expect no less.”