CW5 Re-Trial Collapses

dublin | crime and justice | feature Tuesday November 08, 2005 18:22 by Anon Court Reporter

Probable Public Perception of Biased Judge, AGAIN

"The CW5's 2 main statutory defences to the charges were ruled out as 'inadmissible' this morning by Judge Donagh McDonagh, who was then rather suddenly forced to 'pull the plug' and send the jury home after his relationship with a certain Mr. Bush was revealed to the Court by defence counsel."

With the above words the Anon Court Reporter starts this, his 9th and last for this round, court report. Since it seems the judge forgot to order that the reasons for the collapse of the case be kept out of the media (as was done when the first trial collapsed) all the gory details are included in full. Also included below are links to Anon Court Reporter's exemplary day by day blow by blow reporting of the case

• Day 1
• Day 2
• Day 3
• Day 4
• Day 5
• Days 6 & 7
• Day 8 report
• Feedback: Jury would probably have found CW5 not guilty

The CW5's 2 main statutory defences to the charges were ruled out as 'inadmissible' this morning by Judge Donagh McDonagh, who was then rather suddenly forced to 'pull the plug' and send the jury home after his relationship with a certain Mr. Bush was revealed to the Court by defence counsel.

Last Friday was the ninth day of this trial, and the DPP had made an application that the CW5’s whole main defence of ‘Lawful Excuse’ under the Criminal Damage Act 1991 (as amended in 1997) be ruled inadmissible and denied to the jury.

[This is the legal clause (section 6.2.c) which makes the action justifiable if done with the honest belief that one is acting to save life or property, even if the belief is mistaken]

First thing this morning (at 10:30am) Judge Donagh McDonagh gave his ruling on this: saying that their intent was clearly to cause damage, there was no question of recklessness, that the language in the applicable section is substantially similar to UK legislation, on which several authorities had been opened. But that while everyone in court accepted that they had acted with an honest belief (subjective), the objective test, i.e. whether they have a LAWFUL excuse, that is a question of LAW for the Judge to decide.

Judge McDonagh said the key question is “Was it done to protect others?” He said that Mr. Oxley, the RAF military expert witness called by the defence last week, had given no evidence SPECIFICALLY indicating that the CW5 action had saved / protected any PARTICULAR life or property (Mr. Oxley actually said that this would be completely impossible to know, due to the complex and miasmic nature of war, but that nevertheless, in purely military terms, an attack on such a supply plane of the aggressor would be legitimate and useful from the point of view of a defending force).

McDonagh continued to say that therefore the connection implied was “too tenuous, nebulous and remote when viewed objectively” – and therefore he had decided it was not a LAWFUL excuse and the defence would not be available to be put to the jury.

The Judge further stated he would “not direct the jury to enter a verdict of guilty”.

McDonagh then went further to make a ruling on the 2nd statutory defence, i.e. Justifiable use of Force to Prevent Crime or a Breach of the Peace, or to protect property. This is contained in section 18 of the Non-Fatal Offences against the Person Act, 1997.

Neither party to the case had asked for a ruling on this matter, and the prosecution had seemed to concede its applicability, particularly in the light of the very frank testimony of Mr. Jimmy Massey, a former US Marine Sgt. who confessed under oath last week in the witness box to complicity in breaches of the Geneva Conventions for the protection of Citizens in time of War (by his 45-man platoon implementing shoot-to-kill orders against civilians, resulting in the shooting dead of 30 Iraqi civilians during a 3-month tour starting at the time of the land invasion in March 2003) and the fact that most of the CW5 defendants had in their own testimony steadfastly proclaimed their intention to prevent just such crimes, which they had foreseen. It had also been clearly established with Garda witnesses that such crimes are in fact triable before this very same Circuit Court, by virtue of the (Irish) Geneva Conventions Act, 1962, which brings prosecution of offences committed anywhere, anytime, by anyone, against this instrument of international law firmly within the jurisdiction of domestic law enforcement in this country.

These uncomfortable legal facts the Judge now proceeded to eliminate on the grounds that, reading the whole act in context, since it deals with non-fatal assault, threatening people with syringes, etc., the crime referred to be prevented has to be one of those mentioned in the other sections of the same act, and has to be territorial, (no reason was given for this, and much cogent argument had been presented to the contrary) and to read it any other way “would be to do violence to the act”. Therefore, it was very strongly implied (although not explicitly stated as such) that this defence was also to be denied them and not go to the jury either.

Apparently, the legalistic logic of Judge McDonagh seemed to imply that if Massey and his men had used a syringe instead of a M-16 on the Iraqi civilians, or maybe only assaulted as opposed to murdered them, then the Catholic Workers would be allowed to put this legal defence, of trying to prevent that crime, to the jury in Dublin.

There was then a short recess for the defence to digest this unpalatable news, an effective ‘tabula rasa’ of the defences by the Judge.

There then followed a very vigorous defence application to recall Mr. Oxley to fill in the gap the judge had found in his evidence and used in ruling out the defence of Lawful Excuse. In making this application phrases such as, “outrageous attack on justice”, “very unfair”, and "putting procedure before the interests of justice” etc., were directed to the Judge by the defence. The DPP opposed this application and the Judge deferred his decision, arranging for closing speeches to follow and ordering that the court break for lunch.

However, just before that point, Mr. Michael O’Higgins, SC for Deirdre Clancy and Nuin Dunlop, addressed the judge to inform him that, “A matter has been brought to our attention this morning and there may be an issue arise afterwards which will affect the course of the trial. I am awaiting further instructions.”
Judge McDonagh replied “I await with baited breath!” and left for his lunch on the strength of this bon mot.

At 14:30 the court reconvened in the absence of the jury, who had not appeared in the morning at all.

Defence senior counsel Mr. Rod O’Hanlon, for Ciaron O’Reilly and Damien Moran, now proceeded to broach the mysterious “issue” mentioned earlier – telling Judge McDonagh that it had come to the attention of the defence that he, Judge McDonagh, had attended the Bush inauguration in 2001 and been invited back in 2004, and that if this was the case there may be an application that he disqualify himself. At this point Judge McDonagh laughed aloud, and alone.

Mr. O’Higgins then addressed him to ask for confirmation of the details supplied to the defence, namely that he (McDonagh) had attended, while a barrister, at a photocall in Heuston, Texas, in or around 1995 and been photographed posing beside the then-governor of Texas, George W. Bush, and had then subsequently been invited to and had indeed attended the Bush inauguration in 2001, and been further invited to the 2004 re-inauguration by Mr. Tom DeLay, but had been unable to attend due to a schedule conflict.

Judge McDonagh confirmed all this, saying, “You are absolutely correct”.

The defence then proceeded to make application that the Judge discharge the jury, due to the potential for a public perception of bias on his behalf against the accused – given the fact that, in a certain sense, Mr. Bush, with whom the Judge would appear to be on friendly personal terms, is implicated at least indirectly in this case. It was further pointed out that if this were the position of a juror serving on the panel, that person would in all likelihood be excluded ‘for cause shown’ if such information came to light at the time of jury selection.

The prosecution did not oppose this application, but did open to the Judge two authorities. Firstly, the House of Lords ruling in the Pinochet case, where the decision to extradite was overturned due to one Judge having an indirect connection to Amnesty International, who had joined to the proceedings for the purpose of making submissions, although not a party strictly speaking (Amicus Curiae brief). – The other case was the Dublin Well-Woman Centre v. SPUC. The senior counsel for the DPP, Mr. Conor Devally suggested that these cases indicated it would not be necessary for the Judge in this case to either recuse himself or discharge the jury.

Judge McDonagh then took a short recess to consider his position, before returning at 15:05 and abruptly calling down the jury to dismiss them, thus collapsing the trial.

Tempests were very clearly written on McDonagh’s face at this time and he did not offer the jury any explanation for this strange result, despite their obvious disappointment at having to endure 14 days of stress for no reason.

As the jury trooped out with much grumbling and shrugs of the shoulders, McDonagh very rapidly adjourned the case, the defendants to continue under the same bail to appear before him again on Friday at court number 8, and he then practically ran out of Court - the echos of defence counsel intoning “Very good, milord” bouncing off his back.

NB: This factual report is based on contemporaneous notes and observations made personally by the author in Circuit Court #23 today. Transmission Ends.