In the midst of a flurry of wrongfully convicted black men finally given their freedom comes the perplexing saga of 78-year old Joseph Gorden, locked up in New York’s Fishkill Correctional Facility since 1993 for a murder he says he didn’t commit. But that, as they say, isn’t the half of it.
Last March, Gordon was denied his fifth application since since 2017, when he had served the minimum term of his sentence of 25 years to life in prison. The reason he is still incarcerated is simple: he refuses to express remorse for the 1991 murder of a white Westchester County doctor, because Gordon insists that he is innocent. Usually a parole board will not waive the remorse requirement, which—and this is not the ethics quiz!– presents a classic ethical conflict for defense lawyers.
A lawyer cannot advise a client to lie. That is a bright-line professional ethics edict of long-standing. A lawyer is also required to defend a client’s rights and fight for his or her interests as zealously as possible. Would you, as a lawyer, convinced of your client Joseph Gordon’s innocence, advise him to express remorse to the parole board, which would require a false acceptance of the jury’s verdict? Many lawyers have done exactly this, and would argue that they did the right thing. Their bar associations and courts would almost certainly disagree.
I digress, however; sorry. That problem has always fascinated me. My favorite version is when the lawyer knows the convicted client is not guilty because another one of his clients has confessed to the murder, a confidence that the lawyer cannot ethically reveal.
Back to Gordon’s real situation though: his was not a trial where the jury voted guilty on flimsy grounds. Dr. Daniel Pack, a 38-year-old neurologist with a wife and two young children, was found shot to death in Gordon’s basement. Gordon admitted that he covered up the murder, burying the body in some woods away from his home and leaving the doctor’s car in a New Jersey parking lot. At his trial, he explained that his actions were intended to protect the real murderer, but refused to say who that was. Meanwhile, prosecutors presented a plausible motive for Gordon to kill Peck, whom he knew.
Based just on those facts, I might have voted for a guilty verdict. Wouldn’t you?
It wasn’t until his second parole hearing, after he had served the minimum 25 year sentence, that Gordon relented and finally told the parole board who was the real murderer: his son, Chad, then 16, in his forties now. Gordon told the panel he had returned home and discovered that Chad had shot Dr. Pack during an argument over a homosexual relationship between them. Gordon didn’t call the police, he said, because he feared for his son’s safety in prison. “All I know is I wanted to take care of my son,” he told the panel. Gordon expressed regret…for the suffering of the doctor’s family. “To this day I am sorry that [Pack] died,” the hearing transcript records him saying. “The pain that this caused his wife is unimaginable. I can’t even speak to it. All I can say to you is that I am sorry. I can’t change it. If I could, I would. I have tried to do everything in here that I could.”
The problem is that Chad denies it all. He even testified against his father at the trial, and survived a furious coss-examination by his father’s lawyer, who accused him of pulling the trigger.
To make the case even tougher, corrections officers, civilian prison employees, a psychiatric social worker and a former superintendent at Fishkill all argue that Joseph Gordon possesses exceptional character and values, based on his conduct in prison. They are convinced that he poses no risk to society, and would be a productive member of his community.
Still, the only reason to believe in Gordon’s innocence is that he refuses to express remorse for the murder, even though doing so would gain him his freedom.
Your Ethics Alarms Ethics Quiz this weekend is…
As a parole panel member, would you conclude that releasing Gordon is the ethical course?
This needs to be a movie.
I see Samuel L. Jackson as Gordon.