STATE OF RHODE ISLAND V. JOHN GORDON:

Why Now & Who Cares?

by Michael A. DiLauro

---

This homily was presented at the Memorial Mass for John Gordon that was held in St. Mary's Church in Pawtucket on Saturday, October 8, 2011.

Some of you may have read about the recent efforts of Rep. Peter Martin (D-Newport) to have John Gordon pardoned for the 1843 murder of Amasa Sprague. In that effort Rep. Martin has introduced a resolution asking Governor Chafee to exercise his pardon power under Article IX, Sec. 13 of the Rhode Island Constitution to do so. It has been reported that Senator Michael McCaffrey (D-Warwick), Chairman of the Senate Judiciary Committee, will also be introducing an identical resolution. Article IX, Sec. 13 also requires the advice and consent of the Senate before the pardon becomes operative. The effort is supported by diverse groups of criminal justice stakeholders and others, some of which in the past have never joined forces or agreed upon much of anything, clearly "not the usual suspects".

Questions about this effort have been asked and rightly so. The expenditure of political capital and other resources (always in short supply and even more so this year) in such an effort is great. And to what end? John Gordon was executed by the State of Rhode Island on Valentine’s Day, 1845, on the very spot where some of us do our shopping or go for power walks at lunch, the Providence Place Mall. The vehicle of a pardon even if successful will not bring John Gordon back or rectify the injustice that most believe was done to him so ling ago. So why bother?

Father Bernard Healey, lobbyist for the Diocese of Providence and a fervent supporter of the efforts to pardon Gordon, has been quoted as saying that the effort provides a "teaching moment" for we as a society to consider how we treat the poor, immigrants, and the less fortunate. It seems that in bad economic times such as these the focus, attention, and mindset of many is to blame them for our troubles. In addition to the resolutions and media attention a recent play by Ken Dooley at the Rhode Island Center for the Performing Arts (the old Park Theatre in Cranston) entitled "The Murder Trial of John Gordon" showed these less seemly aspects that were present in the Gordon Case in a very powerful and moving way. Some things never change.

Why should we as criminal defense practitioners care about Gordon Case and the current effort? Also fair questions - after all we are busy every day trying to right injustices in cases involving people who are still with us. But with that said there is much truth about what Father Healey has said, not just in the social but the criminal justice context as well.

Having read the trial record in the Gordon case, I can tell you that some of the things that we still struggle with every day as criminal defense practitioners were present in the Gordon Case. These include:

• John Gordon's fate was not decided by a jury of his peers. Not a single Irishman served on his jury. Indeed, the jury did not reflect a fair cross section of the community either as it was made up entirely of Yankees who owned land, a requirement for voting and jury service at the time.

• In a complex case that eventually required the testimony of 102 witnesses at trial, the Providence Journal trumpeted that the guilty parties had been apprehended at the time of the Gordon's arrest, just a couple of days after the crime.
• Indeed, the investigation of the Sprague Murder suffered from "tunnel vision" - John Gordon and his brothers were targeted as the guilty parties and then evidence was gathered to support these assertions, rather than compiling the evidence fairly and impartially and allowing the investigation to go where the evidence lead.

• John Gordon did not receive a fair trial. His trial judge, Job Durfee, gave instructions to the jury that favored native born witnesses and discredited the Irish, including those of Gordon's family who testified in his defense, such as his mother who provided an alibi for him.

• What passed for forensic science at the time was presented as infallible evidence of guilt but was really just short of witchcraft. This included forensic pathology, firearms and toolmarks identification, footprint evidence, and hair and fiber analysis (or the lack thereof). For those of you familiar with or who attended recent trainings put on by the Connecticut and Rhode Island Public Defenders Offices regarding the recent National Academy of Science Report, "Strengthening Forensic Science In The United States" (which questioned some of the basic underpinnings and assumptions upon which these "sciences" are based on) may be thinking, "some things never change", and you would be right.

I for one agree with my friend, Father Healey: something I rarely do. The attempt to pardon John Gordon does present a "teaching moment" for us - to consider why we do what we do; our role in the criminal justice system; and how we can make it work better. If not now, when?

I will keep RIACDL members informed about the pardon effort as it moves forward. In the meantime, check out Representative Martin's superb website, www.stacyhouse.com, which is a comprehensive source of information about the case and the pardon effort.