No Justice in County Clare

by HARRY BROWNE

Peace activist Mary Kelly has been convicted of criminal damage to a US Navy 737 at Ireland’s Shannon Airport — after the jury wasn’t allowed to hear evidence that she carried out her act "with lawful excuse". Sentencing has been deferred for a week.

After about three hours’ deliberation, the jury in Ennis Circuit Court, only a few miles from the airport, returned with a majority of 10 to 2 finding her guilty. The trial had lasted just over a week, but much of that time consisted of legal argument in the jury’s absence.

Kelly, who freely admits taking an axe to the aircraft on January 29, 2003 — a few weeks before the US/UK invasion of Iraq — was forced to defend herself, without lawyers, in the trial. Back in June, she fell out with her lawyers over legal strategy just as the trial was set to begin.

Nonetheless, and despite her evident nervousness and inexperience, the Irish nurse conducted her defence meticulously, comprehensively establishing to the satisfaction of everyone except Judge Carroll Moran that she was entitled in law to try to show the jury that she has reasonable cause for her action based on the threat to the people of Iraq and her intention to prevent crimes there.

Moran, who presided over Kelly’s first, hung-jury trial last year, as reported in Counterpunch, was determined to insist that "all evidence relating to the war in Iraq and the US use of Shannon Airport is irrelevant". In the first trial he had permitted some testimony from witnesses such as Ramsey Clark, though as that 2003 trial wore on he cracked down, scarcely permitting a word from Scott Ritter and telling the jury to ignore all discussion of the war.

The US military use of Shannon has actually increased in the meantime: a staggering 22,000 troops passed through during last month alone, i.e. more than 15 per cent of the entire US troop deployment in Iraq.

But this time Judge Moran wasn’t having any of it. The jury heard next-to-nothing from an array of assembled witnesses: Pentagon-Papers leaker Daniel Ellsberg; former UN assistant secretary-general Denis Halliday; Dr Horst Gunther, an expert on depleted uranium; former Irish army commandant Ed Horgan; and even a lowly Counterpunch journalist.

Judge Moran appeared to know little shame. For the first two days of the trial he reminded Kelly, in the jury’s presence and absence, that "lawful excuse" could not apply in her case because the law required that any threat she was combating be "immediate" in time and space. But he was wrong: Kelly showed him that the relevant statute had been amended and there was no explicit requirement of immediacy. Even the prosecuting barrister admitted that "to a layperson’s eyes" the law seemed to give Kelly wide scope to defend her action on the basis of her "honest belief" that it was justified.

But after some visible squirming in his seat, sadly unseen by the absent jury, Judge Moran — though admitting that the immediacy requirement had indeed vanished from the statute books — still barred all evidence relating to the war. (He had, however, permitted the prosecutor to suggest, in cross-examining Kelly, that at the time of her action there were still hopeful diplomatic efforts taking place to prevent war, an assertion of great naivety that Kelly was never allowed to counter effectively.) The fact that the crimes committed by the US in Iraq are prosecutable in Ireland under Irish law also failed to move Moran, as did her appeal, again based in law, for jurors to be the ones to decide about the reasonableness or otherwise of her action.

In his charge to the jury, Judge Moran said he had acted to prevent the case degenerating into a political debate. He said the defence of lawful excuse did not apply as there was no connection in space or time between the act carried out by Kelly and the person or property she was claiming to protect.

Kelly was able to present some evidence in relation to the plane itself, a logistics craft that was bound for Sicily, the Navy’s Mediterranean hub. She attempted to discredit the American estimate of the value of the damage she had caused, $1.5 million: her engineer said it would be more like 10 per cent of that figure. But these were relatively peripheral arguments, and her central case was largely unmade because of the judge’s rulings.

The fact that two jurors held out for acquittal is somewhat heartening in the circumstances. They must have moved by Kelly’s own spell in the witness box, when she spelled out in simple terms her transformation from nurse and mother to axe-wielding activist. Her politicisation, she explained, had been considerably accelerated in 2002 by her hair-raising encounters with Israeli troops in Bethlehem.

Kelly’s earnest efforts climaxed in an emotional final speech, when she hoped to convince 12 residents of the area around Shannon, where many locals believe they it need the cash the Americans bring. Her commitment to peace, and to using the democratic forum of trial-by-jury to demonstrate the just and essential nature of her action, put the naïve hopes of US "activists" for John Kerry’s election into grim perspective.

Five more people who damaged the same plane a few days after Kelly’s action, the Pitstop Ploughshares group, are set for another jury trial next March. They successfully applied last year for a change of venue to Dublin, and so far their new judge has been more accommodating of efforts to subpoena evidence about the war and the use of Shannon.

Kelly, who has gathered a tight and loving circle of supporters around her, is certain to appeal her conviction. The best that can be said for Judge Moran is that he left her with ample grounds to do so.

HARRY BROWNE is a journalist and lecturer at Dublin Institute of Technology. Harrybrowne@eircom.net


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