Published in the Current and the American Journal
The lawyer for convicted murderer Jeffery Gorman says the Maine Supreme Court made a mistake when it upheld Gorman’s conviction, and will ask the court to reconsider. He may also ask the U.S. Supreme Court to take the case.
Last week, the Maine Supreme Court unanimously upheld Gorman’s conviction for the murder of Amy St. Laurent after a night out in the Old Port in October 2001. In 2003, Gorman was sentenced to 60 years in prison for the crime.
Gorman initially asked the Law Court to reverse his conviction, saying the prosecution’s key evidence should not have been heard by the jury. That evidence was a tape recording of testimony given by Gorman’s mother, Tammy Westbrook, to a Cumberland County grand jury.
Westbrook told the grand jury that Gorman called her Dec. 9, 2001, the day after St. Laurent’s body was found buried in a wooded area off Route 22 in Scarborough.
In that conversation, Westbrook said, Gorman confessed to the crime, and told his mother something nobody but the killer knew: St. Laurent had been shot once in the head.
During the trial, Westbrook testified she had no recollection of speaking to a grand jury, and no memory of any conversation with her son about St. Laurent. She also testified that she was receiving psychiatric treatment for delusions and post-traumatic stress disorder.
The prosecution argued an audio tape recording of Westbrook’s grand jury testimony should be presented as evidence during the trial. Superior Court Judge Nancy Mills agreed.
The evidence figured strongly in the prosecution’s case against Gorman, and jurors in the criminal trial asked to see a transcript of the recording during their deliberations. That was not permitted, but they were allowed to hear the tape played again.
After five hours of deliberation, the jury unanimously convicted Gorman of the murder.
Gorman appealed the conviction, claiming that the tape should not have been played because Westbrook could not be cross-examined about the statements she made in the recording.
The right to cross-examine witnesses is guaranteed in the Sixth Amendment to the U.S. Constitution. Westbrook could not be effectively cross-examined because she did not recall making the statements, or any discussions regarding the case, said Christopher MacLean, an attorney who represented Gorman during the appeal.
In a February interview, MacLean said there might have been enough evidence to convict Gorman of manslaughter, but not murder.
Asking for reconsideration Monday, MacLean reacted to the judgment of the Law Court, which upheld the admission of Westbrook’s recorded grand jury testimony, the murder conviction and the 60-year prison sentence.
“I’m disappointed,” he said. MacLean will ask the court to reconsider its decision, “focusing on the fact that the Maine Law Court really didn’t deal with the problem” of what is and is not admissible testimony.
The appeal process was halted earlier this year when a U.S. Supreme Court decision clarified some aspects of admitting recorded testimony into evidence. Lawyers for Gorman and the Attorney General’s Office updated their arguments before the Maine Supreme Court in light of that ruling.
But in its written decision last week, the Maine judges did not address the issue fully, MacLean said. The new decision demanded that “cross examination really take place,” he said. At Gorman’s trial, “clearly there was no cross-examination on the subject matter” of Westbrook’s testimony.
The Law Court could deny the request or ask for MacLean and the Attorney General’s Office to submit new arguments, either in writing or orally.
Taking the case to Washington
MacLean also said he would discuss with Gorman an appeal to the U.S. Supreme Court.
“We haven’t made any firm and final decisions in that regard,” MacLean said. He had not yet talked to Gorman, though he had left a phone message at the Maine State Prison and had mailed Gorman a copy of the Maine Supreme Court’s ruling.
“I’m very interested in getting this before the U.S. Supreme Court,” MacLean said. He assumes Gorman will approve the move, which MacLean admitted is “a bit of a long shot.”
A case appealed to the U.S. Supreme Court is not automatically taken up by the country’s highest judges. Instead, lawyers must ask the court to review the case, a request the judges can either accept or deny.
“Who knows whether they would take a case like this,” MacLean said. “The vast majority of requests to the U.S. Supreme Court are denied.”
MacLean, who has never before asked the U.S. Supreme Court to take a case, and has never handled a case before the court, said he believes the court may take the case because it has “public policy” implications, particularly for
domestic violence cases, in which witnesses make statements to police and later claim they cannot remember what they said.
If statements recorded earlier but later disclaimed by witnesses are still admissible, “I shudder to think” of what could happen in large numbers of cases across the country, MacLean said.
A ruling from the U.S. Supreme Court would clarify the rules regarding that type of testimony, even if the justices affirmed the decision of the Maine judges.