First Annual International Wrongful Conviction Day Observance

Bepolite

Hosted by the Irish Innocence Project

2 OCTOBER 2014 5 - 6 p.m. Academic Facilities Auditorium, Griffith College, South Circular Road, Dublin 8

An Observance to Honour the Innocent Who Have Been Convicted and their Families. Speakers for the event include family members of the Justice for Harry Gleeson group, who have been working with the Irish Innocence Project to clear the name of Harry Gleeson, believed to have been wrongly executed for the murder of his neighbour Moll McCarthy more than 70 years ago, although the legacy of his hanging impacts the family still.

There will be a wine reception. The public is invited to attend and the event is free.

Many thanks to the mods who have graciously let me publicise this here.

conorh91

Have to say I'm a little uneasy about movements that are sort of lynchmobs in reverse, including those pardoning exercises in which the Oireachtas involves itself.

The pardoning of individuals, dead or alive, should be solely a function of the courts, upon whom such pardons are potentially a collateral attack by the Government and the public, and which undermine the finality and the integrity of the criminal process.

I don't know anything about the Harry Gleeson case and the merits of the claims being made, but I think there has to be some degree of skepticism regarding such lobbying.

Pat Mustard

From the summary by the Dean of Griffith College:

The Irish Innocence Projects works largely, but not exclusively, on the basis that a person claiming to be a victim of a miscarriage of justice has to adduce that a new or newly discovered fact shows that there has been a miscarriage within the rubric of the Criminal Procedure Act 1993. The burden of proof on the balance of probabilities lies with the alleged victim of the miscarriage of justice. In essence, the Innocence project assists in the unearthing of this new or newly discovered evidence with a view towards exoneration.

As I write there are some 20 active files. There are 12 student caseworkers drawn from Trinity, DCU and Griffith and up to eight supervising lawyers and a supervisory board which is chaired by an Irish Supreme Court judge. The project has several active cases including a constitutional case on preservation of evidence, a case on an application for a pardon and a trans national case. The project is based and housed in Griffith College Dublin.

BornToKill

conorh91 wrote: »

The pardoning of individuals, dead or alive, should be solely a function of the courts, upon whom such pardons are potentially a collateral attack by the Government and the public, and which undermine the finality and the integrity of the criminal process.

How does it work then, would you be able to tell us, in terms of the court overturning a verdict where the person found guilty has already been put to death? I'm interested in the mechanics like who reopens the case?

There is certainly finality, but not a great deal of integrity, where a person has been executed in the wrong for a crime. The justice system, like anything designed by humans, will make mistakes. Some of those mistakes have terrible repercussions. Is it better for the integrity of the system that it never admits to any mistakes at all, no matter how obvious after the event? Or that it acknowledges them and does what little it can to put them right?

If you have the time, there are some good books on this event including 'Murder at Marlhill' and some decent information resources on the internet as here.

conorh91

BornToKill wrote: »

How does it work, then would you be able to tell us, in terms of the court overturning a verdict where the person found guilty has already been put to death? I'm interested in the mechanics like who reopens the case?

I would suggest a reference could be made by the AG, but a reference by the President, not necessarily acting on the advice of Government but with Government's input, would seem appropriate too.

It's not necessarily the issue of lobbying in itself I find problematic, but this very particular type of lobbying of the decision-maker in criminal matters.

There is certainly finality, but not a great deal of integrity, where a person has been executed in the wrong for a crime.

I agree, but it's a matter for the courts.

BornToKill

conorh91 wrote: »

I agree, but it's a matter for the courts.

My view is that they have already had their chance.

Pat Mustard

conorh91 wrote: »

I agree, but it's a matter for the courts.

According to the website, they are gathering and reviewing new evidence for petitions before the courts.

http://www.irishstatutebook.ie/1993/en/act/pub/0040/sec0007.html#sec7

conorh91

The Mustard wrote: »

According to the website, they are gathering and reviewing new evidence for petitions before the courts.

http://www.irishstatutebook.ie/1993/en/act/pub/0040/sec0007.html#sec7

Yes but not in relation to Harry Gleeson, surely? The man is dead, there is no CCA involvement, although an inquiry could conceivably involve a sitting judge per s.8 of the act of 1993, but not as a judge qua judge of the CCA.

johnnyskeleton

Im somewhat reluctant to say it, but im also a bit sceptical of these things. According to the indo there are four issues:

http://m.independent.ie/irish-news/the-new-evidence-that-could-exonerate-harry-gleeson-29563251.html

On the other hand, since most of the info on the internet is published by the relatives or innocence project, its hard to see what the evidence against him actually was.

I thibk the past is often a foreign country - they seem to do things differently there. But yet they had jury trials, representation for the accused - Sean McBride SC - the presumption of innocence and other procedural safeguards.

If the time of death was problematic this wouldve been pointed out to the jury. I am not sure that time of death assessments today are significantly more accurate than those in the 1940s - after all, the laws of thermodynamics tend not to change.

The firearms register proves nothing - the prosecutions reciept could be falsified to suit them but the cartridges may have been falsely omitted by a local shop in rural Tipp. Plus, surely the uncle, a respected man in the town, couldve given evidence as to his purchases.

A "dying declaration" is not worth the paper that its printed on, and its not at all clear what a dvd has got to do with anything.

So there are questions raised, but surely something a bit more certain would be needed? I mean, the temptation is to say "ah sure it was so long ago why not exhonerate him".

Ive also seen some wild allegations on boards and elsewhere on the internet about it being collusion between the IRA and the Gardai. During WW2? While the IRA was largely interned without trial (a clearer case of injustice if you ask me)? It all seems a bit far fetched and I think its odd that its only being raised now.

So, while not saying anything about his innocence or otherwise, surely there should be more balance eg what evidence the prosecution did have. If they had no evidence at all, well theres your injustice right there!

Pat Mustard

conorh91 wrote: »

Yes but not in relation to Harry Gleeson, surely?

I don't know what's happening in relation to Harry Gleeson tbh.

BornToKill

johnnyskeleton wrote: »

It all seems a bit far fetched and I think its odd that its only being raised now.

It isn't just now it is only being raised. There has always been a concern over this conviction. This particular book, examining the matter in detail, was published 21 years ago.

Bepolite

Gleeson has been going on for years. I'm not really in a position to make any comment on the particular involvement of the Innocence Project. The Innocence Project and this particular event is not aimed specifically at the Gleeson case.

There are several cases currently under review by the project including one that has received quite a bit of press attention. There are a couple on international cases also being looked at; one in particular that has received a fair amount of press attention. I pass no comment on such but some google searching will reveal what has been discussed in the press.

Beyond that there is 'lobbying' (such as it is which is essentially one/two people producing academic papers) to try and change the way evidence is handled, including a constitutional right to retesting in light of new techniques becoming available where questions remain. I have produced a paper on same but it's an undergrad one and is propping up a table somewhere, where it firmly belongs.

Innocence projects in general have been successful all over the US, Ireland's is exceptionally well supported and one of only two projects in the World that also have journalists on staff - for investigative purposes only. I do understand some people's unease with projects of this nature, but realistically there's much that needs changing in Ireland and with no impetus that will never happen.

Why not pop along for some free wine and a chat, see what you think.

johnnyskeleton

BornToKill wrote: »

It isn't just now it is only being raised. There has always been a concern over this conviction. This particular book, examining the matter in detail, was published 21 years ago.

Well exactly! 21 years ago for the book and 24 years for the affidavit. Surely the register issue couldve been discovered before now or even before the trial. The only possible recently discovered facts could be the dvd or the expert reviewing the pathologists findings but again why did the person on the dvd say nothing for 60+ years and why did no one seek an independent forensic scientists report until last year.

It just seems very odd to me that it has lain dormant for so long. One of the problems with the passage of time and the focus on newly discovered facts is that we hear little about the original evidence. I mean if there was a murder trial today and Daves neighbour was found on his land, found by Dave when he was out walking, Dave stonewalled the gardai at all stages and there are no other likely suspects, would you find any of the issues in the independent article sufficient to raise a doubt?

Im all in favour of investigating the risk of an unfair trial, but a bit of balance is needed. As conoroh91 points out, its a matter for the courts of law rather than the court of public opinion and it is tragic that the accused has died but thisbis nowhere near the likes of the cases where DNA excludes the accused or the real culprit steps forward.

Bepolite

conorh91 wrote: »

I would suggest a reference could be made by the AG, but a reference by the President, not necessarily acting on the advice of Government but with Government's input, would seem appropriate too.

It's not necessarily the issue of lobbying in itself I find problematic, but this very particular type of lobbying of the decision-maker in criminal matters.

I agree, but it's a matter for the courts.

I appreciate your opinion and thank you for generating some discussion on the topic.

The issue as far as I see it, and I'm open to correction, is it's not a matter for the courts at all. There is no mechanism for bringing this back before the courts. It's a matter for the executive and upon convincing the minister of justice, if that ever happens, a matter for the President.

Why I would agree that this is not the correct forum for a 'live' case, even a cold one, where the convicted party is dead there is no other option as far as I'm aware.

Bepolite

johnnyskeleton wrote: »

Well exactly! 21 years ago for the book and 24 years for the affidavit. Surely the register issue couldve been discovered before now or even before the trial. The only possible recently discovered facts could be the dvd or the expert reviewing the pathologists findings but again why did the person on the dvd say nothing for 60+ years and why did no one seek an independent forensic scientists report until last year.

It just seems very odd to me that it has lain dormant for so long. One of the problems with the passage of time and the focus on newly discovered facts is that we hear little about the original evidence. I mean if there was a murder trial today and Daves neighbour was found on his land, found by Dave when he was out walking, Dave stonewalled the gardai at all stages and there are no other likely suspects, would you find any of the issues in the independent article sufficient to raise a doubt?

Im all in favour of investigating the risk of an unfair trial, but a bit of balance is needed. As conoroh91 points out, its a matter for the courts of law rather than the court of public opinion and it is tragic that the accused has died but thisbis nowhere near the likes of the cases where DNA excludes the accused or the real culprit steps forward.

Pop along and have a word with the caseworkers etc. Suffice it to say there's enough to raise significant doubt over some of the elements in his trial. I can't really elaborate further but your concerns are valid, in in the main, have been put forward and dealt with.

johnnyskeleton

Bepolite wrote: »

Beyond that there is 'lobbying' (such as it is which is essentially one/two people producing academic papers) to try and change the way evidence is handled, including a constitutional right to retesting in light of new techniques becoming available where questions remain. I have produced a paper on same but it's an undergrad one and is propping up a table somewhere, where it firmly belongs.

Thats an interesting area alright but i wonder - with so many firms of professional human rights lawyers with access to top scs, why hasnt someone who wants to argue for such a right brought such a case? Indeed, the CCA are quite open to miscarriage of justice cases and ones where there is a new procedure to test evidence can be very persuasive. However, new forensic scientific procedures cannot set at nought the requirement that trials are heard primarily on oral evidence.

Innocence projects in general have been successful all over the US, Ireland's is exceptionally well supported and one of only two projects in the World that also have journalists on staff - for investigative purposes only. I do understand some people's unease with projects of this nature, but realistically there's much that needs changing in Ireland and with no impetus that will never happen.

But thigs dont change in the abstract. The CCA will only rule on real cases not hypotheticals. I struggle to see what a journalist can do that a forensic science lab and a good solicitor cant.

Bepolite

johnnyskeleton wrote: »

Thats an interesting area alright but i wonder - with so many firms of professional human rights lawyers with access to top scs, why hasnt someone who wants to argue for such a right brought such a case?

Indeed. A digression but I was at a conference recently and asked, in light of cases decided in Scotland, why there were not many cases in front of the Irish and European courts in relation to human rights violation in relation to Irish prisons. I'm still not sure I ever got an answer. Things seem to slip through the net on an alarmingly regular basis.

johnnyskeleton wrote: »

Indeed, the CCA are quite open to miscarriage of justice cases and ones where there is a new procedure to test evidence can be very persuasive. However, new forensic scientific procedures cannot set at nought the requirement that trials are heard primarily on oral evidence.

I would agree that the CCA are open, and go further in saying they are part of the solution rather than part of the problem. However the way we handle, test and store evidence in this country needs radical reform. I personally have witnessed evidence passed around a jury, which up until that point could have been subsequently tested, but was opened and contaminated. The witness for the Garda forensic lab was even questioned on the fact that the items had not been DNA tested.

johnnyskeleton wrote: »

But thigs dont change in the abstract. The CCA will only rule on real cases not hypotheticals. I struggle to see what a journalist can do that a forensic science lab and a good solicitor cant.

I don't meant to be cheeky but you know that journalists are generally better than lawyers at investigative work. In relation to forensic labs, they're no good if the evidence to be tested went in the bin, in some cases prior to the exhausting of the appeal process let alone once someone is in prison.

As for good solicitors; there are lawyers (generally barristers but one or two solicitors) that graciously donate their time, but the costs for most people are prohibitive.

It should be noted that the project does not get involved in cases until the appeals process has been exhausted. Cases are generally investigated on the basis of Section 2 of the Criminal Procedure Act, 1993.

Bepolite

Anyway - regardless of anything else, nice to see some discussion of the subject and I hope one or two of you can make it. If any of you are involved with colleagues / students that might find it interesting the invitation is open to all.

conorh91

Bepolite wrote: »

The issue as far as I see it, and I'm open to correction, is it's not a matter for the courts at all. There is no mechanism for bringing this back before the courts. It's a matter for the executive and upon convincing the minister of justice, if that ever happens, a matter for the President.

I appreciate that and I suppose it's not reasonable for me to criticize any particular group for doing precisely what is envisaged in our Constitution and primary legislation.

So i guess I'm really criticizing the constitutional position, and not any group in particular. The whole issue of extra-judicial pardoning is just something I'm uncomfortable with.

My observation would be that accused persons' families are often in denial about their family member's actions, or will attempt to justify criminal behaviour on some spurious basis. As this entrenched rejection of culpability is passed down the generations, you can imagine how it grows wings and mutates from fact into folklore. Combine that folklore with tabloid reporting, and a populist Minister keen for a good-news story, and you have a recipe for damaging the integrity of criminal justice system.

If we look back at the context of the 1937 Constitution, it seems likely that Article 13.6 was intended to provide for pardoning crimes of a political nature, arising out of the previous 20 years of national strife and disunity.

I don't think it was intended to revisit "ordinary" criminal cases and I don't think it has a place in our constitution, being the single most offensive provision to the doctrine of the separation of powers.

BornToKill

conorh91 wrote: »

As this entrenched rejection of culpability is passed down the generations, you can imagine how it grows wings and mutates from fact into folklore. Combine that folklore with tabloid reporting, and a populist Minister keen for a good-news story, and you have a recipe for damaging the integrity of criminal justice system.

It's there since 1937 so you can likely supply some good examples of the damage it has done. And what if it isn't a 'rejection of culpability' as you put it? What if culpability never existed in the first place? Your argument assumes a system which never errs. Wishful thinking.

Bepolite

I simply don't agree with the assertion that presidential pardons are a bad thing. I've been sick today and am in that limbo of too tired to be fully coherent but can't sleep so I'll keep it brief, sorry if I don't make much sense.

The US has operated a presidential pardon power for hundreds of years. Until the mid - late 20th century they were relatively common. The presidential pardon acts as a safety valve, a safety valve for what? Well that's a good question and if there was a complete answer we wouldn't need it in the first place.

As for lobby groups becoming involved in the process, I don;t think were in much danger of abuse. I can't see a scenario where pardoning an offender would win out over being 'tough on crime'. If it does then isn't it right that the executive has stepped in to do the will of the people. I'm repeating Jurisprudence this semester and I've just realised I'll need to reread the speluncean explorers. Perhaps we're both two sides of the same truepenny here.

BornToKill

Bepolite wrote: »

I can't see a scenario where pardoning an offender would win out over being 'tough on crime'.

Purported offender.

Bepolite

BornToKill wrote: »

Purported offender.

Not necessarily, and actually in most cases not, there is nothing to prevent a presidential pardon of someone who is guilty of an offence. An excellent example of this would be where ridiculous sentences were handed down in relation to drug offences, where the judge had no choice because of mandatory minimum sentencing.

It should also be clearly understood that a pardon is not an exoneration, there is no way in Irish law to exonerate someone posthumously.

BornToKill

That isn't a pardon, though. Unless I completely misunderstand it. It is saying you are guilty, but the sentence was a bit harsh.

hullaballoo

BornToKill wrote: »

That isn't a pardon, though. Unless I completely misunderstand it. It is saying you are guilty, but the sentence was a bit harsh.

It depends on the type of "pardon". A full pardon is absolution. There is also the power to commute or remit a sentence. In line with the wording in the constitution, there is a right to pardon (absolution), commute or remit a sentence.

conorh91

BornToKill wrote: »

It's there since 1937 so you can likely supply some good examples of the damage it has done.

As far as I know (via google) there have only been three Presidential pardons. I am sure I was taught there had only been one, but I'm not going to argue with google.

The mere fact that there have not been a spate of pardonings does not really have any impact on the value or wisdom of Article 13.6. Article 15.2.2. is another fully redundant provision should be removed. Just because a provision is rarely used doesn't mean it cannot be abused in the future.

Bepolite wrote: »

As for lobby groups becoming involved in the process, I don;t think were in much danger of abuse. I can't see a scenario where pardoning an offender would win out over being 'tough on crime'.

It might arise many years into the future, when the victim has been cleared off and the family (possibly in denial) manage to collect some new, purportedly relevant evidence, and employ social media to generate a distortion of the facts of the case.

Never trust a politician's resolve to barricade himself from a wave of populism.

I do take your point on the US President, but I don't personally believe American political or constitutional norms are necessarily wise templates for this country to follow.

Bepolite

hullaballoo wrote: »

It depends on the type of "pardon". A full pardon is absolution. There is also the power to commute or remit a sentence. In line with the wording in the constitution, there is a right to pardon (absolution), commute or remit a sentence.

The above explanation is much better than mine but I would add that it's still not an exoneration in the same way Section 2 of the 1993 Act is. It should also be noted for the purposes of continued discussion that once a newly discovered fact becomes available and the CCA are willing to hear the case it is a balance of probabilities test that is applied.

BornToKill

hullaballoo wrote: »

It depends on the type of "pardon". A full pardon is absolution. There is also the power to commute or remit a sentence. In line with the wording in the constitution, there is a right to pardon (absolution), commute or remit a sentence.

On my reading, those are three distinct things. Commute and remit are exclusive of pardon.

hullaballoo

BornToKill wrote: »

On my reading, those are three distinct things. Commute and remit are exclusive of pardon.

Yes, that's correct, they ought not be conflated in terms of legal significance. They are often, incorrectly, interchanged in common vernacular especially from the meeja.

BornToKill

hullaballoo wrote: »

It depends on the type of "pardon". A full pardon is absolution. There is also the power to commute or remit a sentence. In line with the wording in the constitution, there is a right to pardon (absolution), commute or remit a sentence.

So if these three terms are disparate, and we agree on that, then what are the 'types of pardon' to which you refer here? I don't understand.

hullaballoo

BornToKill wrote: »

So if these three terms are disparate, and we agree on that, then what are the 'types of pardon' to which you refer here? I don't understand.

Sorry, I realise I have conflated the issue in that post.

What I mean is that when "pardon" is used in layman's vernacular, it often encompasses the three terms. This is generally down to not bothering to know the difference and it is most visible in the mass media. For (an entirely concocted) example, John Smith was convicted of murdering the leader of a drugs gang and sentenced to life imprisonment. After anti-drugs lobbyists wrote to the President extolling the virtues of murdering evil drug barons, el Pres decides to commute Mr Smith's sentence to 6 years. The media will inevitably erroneously report this as a pardon.

I hope that clarifies my point rather than worsening the confusion!

BornToKill

Pardon to be granted:

http://www.irishtimes.com/news/social-affairs/pardon-for-man-wrongly-executed-for-murder-75-years-ago-1.2062299