GUARDIANS
OF PERJURY?
After
many delays and almost as many changes in court
venue, the trial of two detectives charged with
perjury to jail Colm Murphy commenced and collapsed.
Dundalk wags had predicted in jest that the detectives
might produce passports stamped Zambia, claiming
to have been out of the country when Mr. Murphy
was arrested, interrogated and charged. The facetious
reference alluded to British crime scene constable
Fiona Cooper. When caught in contradictions in
the Belfast trial of Sean Hoey, Cooper returned
with a passport stamped Zambia covering the dates
when crucial reports were issued over her name.
She defended herself by accusing her boss and
other ranking crime scene constables.
In
Dublin there was no need for passports or passing
blame. The altered written reports of Mr. Murphy's
interrogation were not admitted into evidence
against the very detectives who wrote the reports,
because the chain of custody had been broken.
Writings prepared by gardai, maintained in custody
by gardai, and controlled by gardai could not
be admitted in a trial against gardai, because
of gardai mishandling of the evidence. The gardai
congratulated themselves on the outcome.
After
excluding all evidence on a legal technicality,
a verdict of acquittal was entered and then presented
in the headlines as if a trial on the merits had
been fully litigated. The verdict however may
do little for victim Colm Murphy. Tainted evidence,
inadmissible against the gardai will apparently
become untainted when Colm Murphy is scheduled
for a re-trial.
BACKGROUND
The
ordeal of Colm Murphy began some six months after
the Omagh tragedy. A prominent businessman, builder
and bar owner, Mr. Murphy was seen by numerous
clients and customers throughout that day in Dundalk.
Mr.
Murphy is also a well known Republican, hardly
surprising for someone originally from South Armagh.
He had been imprisoned twice for Irish Republican
Army related charges in the twenty-six counties,
and fallen victim to an FBI sting operation in
New York on charges of conspiracy to purchase
weaponry for the Irish National Liberation Army.
All this transpired years before he had returned
to Dundalk and a successful business career.
Crown investigators believed that a cell phone
owned by Mr. Murphy had been used in the Omagh
vicinity on that tragic day. There were of course,
several hundreds of cell phones used in the area
that day. No one was charged with making or receiving
a call from the phone registered to Mr. Murphy.
A hundred innocent explanations existed.. Because
of his Republican background the British and their
Dublin counterparts suspected that Colm Murphy's
phone was somehow involved. There was clearly
no legal evidence to support conspiracy charges,
much less legal proof sufficient to convict. A
conspiracy charge required admissible evidence
that Colm Murphy knew about the planned action
and knowingly provided the cell phone in furtherance
of a conspiracy to carry out the planned action.
Absent witnesses, only a confession could supply
the missing elements.
INTERROGATION
In February 1999, Colm Murphy was arrested and
taken to Monaghan. Teams of gardai including Liam
Donnelly, John Fahy, and at least one detective
implicated in the McBrearty scandal, interrogated
him. He was denied any right to remain silent,
and given only intermittent access to his solicitor.
After three days gardai emerged and claimed that
Colm Murphy had confessed to crucial facts which
supplied the missing links of conspiracy. Mr.
Murphy was formally charged in court, amidst a
blaze of headlines congratulating the gardai for
cracking the case.
Colm Murphy immediately and steadfastly proclaimed
his innocence and adamantly insisted that he had
never said the crucial admissions touted by the
gardai . His claims of frame-up were largely ignored.
However a number of key facts would at first support
and later prove scientifically that Colm Murphy
told the truth about the confession being fabricated
and that those who put the words over his name
had lied.
SEQUENCE
Four factors would emerge which showed that Mr.
Murphy's statements had been forged or fabricated.
Firstly the statement contained basic details
about Mr. Muphy's family and local geography which
were simply wrong. For example, a woman was described
as a relative, who is not related to Colm or the
Murphy family. Localities were misidentified.
Such details were not crucial to the scenario
outlined in the statement. However it was inconceivable
that Mr. Murphy could make mistakes about family
relationships or place names of local areas. John
Fahy from Monaghan or Liam Donnelly from Cavan
might well make such errors.
The
sequence of the alleged admissions during the
course of the interrogation was wrong. It is an
obvious technique for each team of interrogators
to observe or be briefed on information given
during each session. Each team then tries to build
upon what was admitted to earlier teams of interrogators.
Here the opposite occurred. Mr. Murphy, gardai
claimed made damning admissions in some sessions.
These alleged admissions disappear in the following
session, and Mr. Murphy is questioned as though
no breakthrough had been made. Much later the
admissions made to earlier teams then re-appear.
Such a sequence does not ring true for notes taken
during the interrogation. Such a sequence points
to fabrication written later and a frame-up.
The
third factor was the lack of notes. Mr. Murphy
had been questioned for three days. Each question
and answer, should have been taken down by hand.
No recording was made. Recording equipment was
available but inexplicably not used in this top
priority case. Only thirty-eight pages of notes
were produced. An interrogation so lengthy should
have resulted in many more pages. The utter lack,
indeed absence of notes pointed to interview pages
being discarded or forged to include the alleged
admissions, and delete exculpatory statements.
SCIENTIFIC
PROOF
All of this was overshadowed by scientific proof.
Mr. Murphy through his family and legal team was
able to retain experts who examined the notes
of the interrogations using electrostatic document
analysis (ESDA). These ESDA tests had broken open
miscarriages of justice cases in Britain and now
were being used to determine whether the thirty-eight
pages had been written during Mr. Murphy's interrogation
or were re-written or fabricated afterwards. The
tests results were clear. The interrogation notes
had indeed been altered. ESDA proved forgery with
scientific certainty. Colm Murphy had been framed.
TRIAL
Many
legal observers felt that Mr. Murphy's acquittal
was now assured. Even the Special Criminal Court
would have to exclude the alleged confession when
confronted with scientific proof.
Moreover the frame-up and fabrication of the statements
seemed to extend to all of the interrogators.
Procedures required that original notes of a statement
must be secured. It seemed impossible for Fahy
and Donnelly to have fabricated notes without
the knowledge, involvement and consent of others.
It seems inconceivable that Fahy or Donnelly would
have forged notes and been prepared to lie about
it, if there were any risk of other interrogators
doing a Fiona Cooper and giving them up from the
witness box. It was expected that all statements
would be discredited and the charges based on
these statements dismissed.
VERDICT
In a remarkable verdict, the court deemed Fahy
and Donnelly discredited witnesses who consistently
testified falsely in denying that they had forged
or altered notes of the interrogation, but credited
the testimony of the other interrogators. It ignored
the fact that Fahy and Donnelly could not have
fabricated notes without the knowledge, cooperation
and backing of all others in the interrogation
team.
APPEAL
On appeal the verdict was overturned. Fahy and
Donnelly were charged with perjury and forgery
of interview notes .Colm Murphy was released from
Portlaiose. It seemed as if Colm Murphy's ordeal
in the criminal courts would end, although he
still faced a civil case financed by the British
government. It seemed likely that the trial of
Fahy and Donnelly would reveal a conspiracy to
pervert the course of justice and wrongly jail
Colm Murphy. There were gardai involved in Mr.
Murphy's interrogation who also worked the McBrearty
case, in which false confessions were made up
for a crimes never committed. A full litigation
of the facts of this case, many believed, would
show that the same sort of conspiracy now under
investigation by the Morris Tribunal, was part
of a pattern of forging confessions to jail people
that certain gardai decided should be jailed,
and that Colm Murphy had been another victim.
A full litigation in which each member of the
interrogation team was forced to testify, could
well have unearthed garda counterparts to Fiona
Cooper, prepared to shield themselves by attesting
to the involvement of others in a conspiracy.
JUSTICE
The
exclusion of the fabricated statements and acquittal
on that basis also excluded any risk that the
gardai witnesses would be forced to enter the
witness box under possible jeopardy for perjury
or conspiracy charges. It will be interpreted
by many not as justice but as the gardai taking
care of their own. Years ago a heavy squad operated,
beating confessions out of innocent men like Nicky
Kelly and then swearing falsely to cover-up their
methods. This case raises questions whether the
gardai have been signaled that they may simply
dispense with the brutality, forge the confessions
and lie about it in court with impunity. If Colm
Murphy can be re-tried based on fabricated statements
ruled inadmissible against gardai, or worse with
some forged notes purged from the case as if they
did not taint each of the interrogators, it will
raise questions about whether the "guardians
of the peace" have become "guardians
of perjury".
