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Bush-Linked Judge Bows Out

Another Mistrial in Irish Ploughshares Case

by HARRY BROWNE

The Irish battle over the use of Shannon Airport as a stopping point for US troops and equipment has turned into a legal war of attrition: for the second time a judge has been forced to collapse the trial of the "Pitstop Ploughshares" because of his own "perceived bias".

The first trial, last March, ended after a week when Judge Frank O’Donnell admitted that some of his comments during the trial could be construed as prejudiced against the defendants. Last week there was a still-more-dramatic twist when, after two weeks and with the re-trial nearly over, defence lawyers alleged that Judge Donagh McDonagh had attended an event with George Bush in 1995, was a guest at his inauguration in 2001, and was invited again to the inauguration this year. The judge admitted the charges were "half right" (he didn’t say which half) and discharged the jury.

Ten of thousands of US troops continue to arrive en route to Iraq through County Clare’s Shannon Airport, a civilian facility in a supposedly neutral country. (Ireland is not a NATO member.) The airport has also hosted stopovers by aircraft involved in the "extraordinary rendition" of people for torture in third countries or in Guantanamo.

Five members of the Catholic Worker movement, Deirdre Clancy, Karen Fallon, Nuin Dunlop, Damien Moran and Ciaron O’Reilly, were arrested at the airport in the early hours of February 3rd, 2003, after they had attacked a US Navy C40 with hammers and a pickaxe, disabling it for several months. They initially spent up to three months in jail as the Irish authorities tried to impose vicious bail conditions. The conditions, in the end, were strict enough: for much of the last 33 months they have been forced to stay out of Clare and appear every day at police stations. Bemused cops told them that signing-on regime was usually reserved for alleged murderers.

Now two trials for "criminal damage without lawful excuse" have collapsed because of judges’ behaviour and background, and the defendants (who could face years in prison if convicted) wonder whether they can get a fair trial. Supporters ask whether it makes any sense to continue prosecuting them: a few left-leaning members of the Irish parliament have called for charges to be dropped.

Although these are jury trials, judges are crucial to their outcome, as the eventual conviction of Mary Kelly on similar charges shows. (Kelly got a suspended sentence.) That’s because it turns on the interpretation of the law as it relates to "lawful excuse". According to defence arguments, the law gives scope to defendants to argue that they had a "lawful excuse" to damage property in the subjective "honest belief" that they were protecting lives or property. Which of course is exactly what they believed.

The prosecution and both judges have more or less acknowledged as much. But in legal rulings made in the absence of the juries, the judges said the five’s action was not "reasonable in the circumstances" because the damage they inflicted on the aircraft was merely symbolic.

Judge O’Donnell called attention to the fact that the five broke off from hammering the plane to form a circle and pray — they "sat down on the job", the judge said. The implication from both judges was that if they had done more damage to more aircraft, they could have relied on the "lawful excuse" defence. Because he didn’t give credence to their legal argument, O’Donnell refused to allow the defence to call expert witnesses about the war in Iraq. In this month’s second trial, McDonagh was more liberal about witnesses, allowing Kathy Kelly of Voices in the Wilderness to testify, along with former UN assistant secretary-general Denis Halliday and former Marines staff sergeant Jimmy Massey.

Massey, the subject of controversy back home, made an indelible impression in Ireland. After testifying he said he was struck by the fact that he’d sat in a witness stand and under oath admitted involvement in the killing of 30 civilians, then walked out of court, while five people who had tried to stop such things from happening remained inside on trial.

Another witness, Geoffrey Oxlee, a former Royal Air Force officer and expert on military logistics, testified about the knock-on effect of even a minor disruption to military supply lines, and also about the potential "inspirational" effect of small and apparently desperate missions. He even cited an old "Beyond the Fringe" comedy sketch in which British officers look for a volunteer for a much-needed "futile gesture", saying it told a basic strategic truth.

But Judge McDonagh wasn’t having it. In a legal ruling he made it clear he was going to instruct the jury that the facts of this case wouldn’t allow them to consider the "lawful excuse". This didn’t entirely doom the defence case: in Mary Kelly’s first trial a few jurors defied the judge’s clear instructions and held out for a hung jury. (Conversations with jurors after the fact suggested such an outcome was likely in this case too.) Nonetheless, last week the lawyers decided to drop their Bush-bomb, and the trial was abandoned.

The saga, however, continues. So far, the prosecution is pressing ahead, despite the clear natural-justice claims that the defendants have been through enough and have been denied fair and speedy trials. A new trial date has been set: July 5th, 2006. It will be a perfect time of the year for more legal fireworks.

HARRY BROWNE lectures at Dublin Institute of Technology and writes for Village magazine. He can be reached at: Harrybrowne@eircom.net