By Brian Fraga | National Catholic Register

March 18, 2015

CONCORD, N.H. — Imprisoned for 21 years after his conviction for crimes he adamantly denies he committed, Father Gordon MacRae says he is “cautiously hopeful” that the federal courts will give him a new opportunity to prove his innocence.

“I know that Supreme Court decisions and precedents have made it very difficult for innocent defendants to have a case re-heard at this level. Most people who judge the justice system by TV’s Law and Order don’t understand the steep uphill climb,” Father MacRae told the Register in an email message Tuesday, after his attorneys presented oral arguments on behalf of his habeus corpus appeal at U.S. district court in Concord, N.H.

Father MacRae, whose story is told on the These Stone Walls blog, has been incarcerated in the New Hampshire State Prison since his September 1994 conviction on one count of sexual assault and four counts of felonious sexual-assault charges. Now 62, Father MacRae was a parish priest in the Diocese of Manchester, N.H., when the alleged victim accused Father MacRae of molesting him several times when he was a 15-year-old boy in the early 1980s.

In court documents, Father MacRae’s attorneys argue that “newly discovered evidence,” which include allegations that the accuser concocted his story for financial gain, establishes Father MacRae’s “actual innocence.” His lawyers argue that innocence should override any time limits or procedural bars that prevent a new hearing of the case.

The March 7 “hearing, for which there is no decision yet, was not a hearing on the merits, but solely on whether case law and procedure will even allow for a hearing on the merits,” Father MacRae said.

“Again, plea deals and the justice system work really well for guilty defendants, but for the innocent, not so much. It should be a grave concern to Americans that 97% of criminal cases are resolved by plea deals. Those who risk a trial risk their lives,” he added.

Turned-Down Plea Agreement

Father MacRae took that risk in 1994, when he turned down a plea deal that would have carried a maximum three-year prison term. Maintaining his innocence, he took his chances at trial, which ended in guilty verdicts after 10 days of testimony. In November 1994, a judge sentenced Father MacRae to an aggregate prison term of 33½ to 67 years.

In their appeal, Father MacRae’s current attorneys — Robert Rosenthal of New York City and Cathy Green of Manchester — contend that Father MacRae was denied his constitutional right to effective counsel, adding that his original lawyer’s conduct “undermined [his] own case, served the state mightily and assured the conviction.”

Rosenthal and Green also suggest that Father MacRae’s conviction occurred during the midst of a “moral panic that infected law enforcement, the public, media, judicial system and verdicts.” The corresponding era, the attorneys say, has since been widely recognized as fostering “a wave of unjust sexual-abuse accusations and convictions,” many of which have since been reversed and vacated.

“A dispassionate analysis of MacRae’s conviction reveals it to be just such a case — built on lies, overzealous police work and defense counsel’s actions that were wholly contrary to MacRae’s interests,” Rosenthal and Green said.

Diocese of Manchester

Meanwhile, Father MacRae said the Diocese of Manchester has not been in recent contact with him nor shown any support. In the early 2000s, Father MacRae said diocesan officials expressed concern that he had been wrongfully convicted and sentenced and even promised legal assistance.

“Then the 2002 Dallas Charter happened, and both mercy and justice went out of the world for accused priests,” Father MacRae told the Register.

Thomas Bebbington, director of communication for the Diocese of Manchester, told the Register that the diocese “has not been involved in any of the appeals filed by Gordon J. MacRae, nor has the diocese provided funding for these appeals or legal counsel.”

Said Bebbington: “Since this is a civil matter in which the diocese is not involved, we have no additional information to release. We continue to pray for all involved and for the vitality of the Catholic Church in New Hampshire.”

A central figure in Father MacRae’s new appeal in federal court is his accuser, identified in court documents as Tom Grover, who was 27 when he accused his former parish priest in Keene, N.H., of having molested him as a teenager. Father MacRae’s attorneys say Grover, “a drug addict and alcoholic, with neither a job nor prospects,” looked for a payday and sued the Diocese of Manchester, for which he won almost $200,000.

However, the attorneys say there was no corroborating evidence and not a single witness to the alleged sexual abuse, “though it was to have happened in busy, populated places.” Rosenthal and Green say Grover has since admitted to friends and family that he lied about the alleged molestation and that he has confessed to perjuring himself at trial.

“Grover’s addictions continued after trial, and his rap sheet continues to grow, with charges of all sorts of things, from traffic infractions to violent crimes in at least three states and Native-American jurisdictions,” Rosenthal and Green wrote.

State’s Response

However, Richard Gerry, the warden of the New Hampshire State Prison, who is named as the defendant in Father MacRae’s appeal, has moved to dismiss the appeal as untimely.

Through his attorney, Gerry said the appeal does not address the nature of the evidence presented at the priest’s 1994 trial, the performance of the prosecution or defense counsel or the fairness of the trial itself. Father MacRae’s attorney’s statements that they have new evidence to prove innocence, Gerry said, are “not new,” and any claim of actual innocence “is suspect at best.”

The petition, Gerry’s attorney said, “is almost entirely based on attacking the credibility of the victim … determinations made by the jury two decades ago. His newly discovered evidence provides nothing more than additional avenues of attack on cross-examination through witnesses of whom he was well aware at the time of trial.”

To date, the New Hampshire state courts have not looked favorably on Father MacRae’s post-conviction petitions. The New Hampshire State Court denied his direct appeal in June 1996. In April 2012, Father MacRae filed a petition for relief with the Merrimack County Superior Court, arguing that his defense lawyer at trial refused to conduct critical discovery, failed to object to the prosecution’s expert testimony and “literally” provided the state with the defense case before trial. However, the court never held a hearing on those issues and denied the petition in July 2013. The New Hampshire State Supreme Court subsequently declined to review the lower court’s decision.

Financial Assistance

Father MacRae said the state court system’s refusal to hear his case was “very frustrating, and it could happen again.” He said donations to his defense fund helped his case get a new hearing in federal court.

“Yes, in fact, the hearts and generosity of others are the only reason we got to this point,” he said.

Father MacRae has also been assisted by journalists and organizations that have taken up his cause.

Wall Street Journal reporter Dorothy Rabinowitz’s critical articles on the conviction led to renewed efforts to review the case. The Boston-based National Center for Reason and Justice has endorsed Father MacRae’s effort for a legal review and investigation. The Catholic League for Religious and Civil Rights, the False Memory Syndrome Foundation and other organizations have also expressed support.

In 2007, Cardinal Avery Dulles and Father Richard John Neuhaus asked the priest to write a “new chapter in the volume of Christian literature from those unjustly in prison.” The result, Father MacRae said, is his blog, These Stone Walls.

Register correspondent Brian Fraga writes from Fall River, Massachusetts.

The above article was first published in the National Catholic Register on March 18, 2015.