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IndyBar: Belfast, 1972, The Troubles and the Confrontation Clause

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bell-soundoff-header-2-15col.jpgWelcome to the first edition of “Bell’s Sound Off (An Off Beat Sort of Legal Commentary).” Watch for future installments on the IndyBar Blog, where attorney James Bell will add his unique brand of legal analysis to the hot topics making headlines.

On an evening in September 1972, a stray bullet pierced a window of an apartment complex near the Falls Road in downtown Belfast, Northern Ireland. The bullet entered a single apartment and penetrated the wall directly above the stove where a woman had been cooking just 30 seconds beforehand.

That bullet originated from a firefight between the Irish Republican Army (IRA) and the British Army and the woman who had been standing at the stove was my mother.  Well, she wasn’t my mother yet, but she soon would be. However, she would not be my mother in Northern Ireland. On that evening, my parents made a promise to move to “anywhere, but here.”1 That promise was kept in 1973 when they moved to the tropical paradise known as Saskatoon, Saskatchewan Canada, which had previously been deemed “uninhabitable” by British explorers due to the bitter cold.

After stops in Ontario, Baltimore and Pennsylvania, I was raised in Alabama and later moved to Indiana where I became a United States citizen. Had I grown up in Northern Ireland, things may have been different for me. For other one thing, I probably would not greet my high school friends by yelling “Roll Tide!” I may have never heard of Alabamian Charles Barkley (which would have been “turrible”) and I would probably not like eating ribs so much. So it is safe to say that the stray bullet, the IRA and “The Troubles” in Belfast have had at least a small effect on my life. (If you find it odd that acts of car bombing, murder and terrorism are referred to as “The Troubles” join the club. To me, they seem more than “troubling.”)

Now, I am not an expert on “The Troubles,” but I know more about them than say … the fine people who live in Greenbow, Alabama2. So if you are from Greenbow and are reading this, let me give you this nutshell: the violence in Northern Ireland stems from a conflict between factions who either wish for Northern Ireland to be part of the United Kingdom or wish for it to be part of a united Republic of Ireland.

Of course, it is far more complicated than that and I will likely never comprehend half of it. What I am certain of is that when I boarded a plane for Belfast during the holidays as a boy, my Christmas presents were unwrapped (before Christmas—gasp) by British agents who were looking for bombs. I remember being randomly stopped in our rental car and allowing a British soldier to search for bombs. And I remember parking that same rental car outside the perimeter of downtown Belfast due to the government’s fear of car bombs. I also remember feeling surprised that no one else seemed surprised by all of this talk of bombs.

One other thing I gathered during my trips to Belfast was that Gerry Adams seemed (at least to me) to be the face of the IRA. However, it was always made clear to me that he was not in fact a member of the IRA, but was instead the head of Sinn Fein, the political wing of the IRA. Regardless of this distinction, I always got the feeling that maybe he wasn’t a guy with whom I would want to have a pint of Guinness.

I remember one night in 1994 when my grandfather called our Alabama home from Cork, Ireland, to yell at us because “our President” Bill Clinton had granted Adams a 48-hour visa to travel to the United States against the advice of the State Department and apparently, the wishes of my grandfather.

Sometimes I don’t think the Irish understand the size of the USA. For example, while visiting Ireland when “Baywatch” was popular, I was often asked if I “knew Pamela Anderson.” Maybe this explained why my grandfather was registering his complaint about Clinton with me. Maybe he thought I would bump into Bill on bowling night and could pass on his constructive criticism. (Oh my grandfather would have loved Twitter. @BillClinton would have received plenty of “constructive criticism” from @IrishGrandad.)

So I asked my Grandad “Why are you so upset?” And he responded, without any evidentiary support, that Adams had “blood on his hands.”

Years have passed since Adams visited the U.S. and my grandfather is no longer with us. Quite frankly, regardless of the effect that an IRA bullet had or did not have on my life, I have not given much thought to Gerry Adams in a while. So it sort of caught me off guard when I learned that Gerry Adams had been arrested for the 1972 murder of a Belfast woman. Apparently, my grandfather was not alone in his belief about what was on Gerry Adams’ hands.

Jean McConville’s Murder and Disappearance

Jean McConville was a mother of 10 and was accused by the IRA of being an informer for the British. Along with 15 other individuals, she was dragged away in front of her children, murdered and dumped in an unmarked grave. Her body was found in 2003. Gerry Adams was arrested, but not charged, for her murder on April 30, 2014.

Evidence Against Adams

The sole evidence against Adams appears to be the taped interview of an IRA member named Brenden “The Dark” Hughes. Hughes’ taped interview was given to the Boston College-Belfast Project which created a historical archive of the IRA during the Troubles. On tape, Hughes stated that Adams ordered the death and disappearance of Ms. McConville.

Hughes was in a unique position to know Adams’ dealings. After all, he was friends with Adams and even spent time in jail with Adams after they were both arrested in 1971. However, the strength of his testimony had one teeny catch: He couldn’t give any. He died in 2008. If you don’t believe me, ask Adams. Adams was a pall bearer at Hughes’ funeral.

Reliability of Evidence

Things must be different in Northern Ireland because in the United States, the Hughes tape would be seen as classic hearsay and its admission would be in violation of the Sixth Amendment’s Confrontation Clause. This was made clear after the Unites States Supreme Court decision in Crawford v. Washington, 541 U.S. 36 (2004). In Crawford, the defendant was accused of sliding a knife into another man.3 At trial, the state played for the jury his wife’s tape-recorded statement that described the stabbing. Id. at 38. The wife did not testify due to spousal privilege and the defendant obviously couldn’t question a tape. Id. at 40. Therefore, the defendant had no opportunity for cross-examination.

In reversing the conviction, the Supreme Court of the United States held that “[w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” Id. at 69. Because there was no cross-examination, there was no confrontation and the tape was admitted in violation of the Confrontation Clause. Surely, the Brenden Hughes tape would suffer the same fate as the Crawford tape, if the government attempted to play it in a U.S. court.

Adams’ Release

As I was writing this article, I learned that Gerry Adams had been released from jail after a four-day stay and that no charges were filed. With the exception of talk about what this meant to the peace process, the rest of the media accounts sounded pretty familiar. There was speculation that the arrest was politically motivated (which it sometimes is in the U.S.), the accused said he was innocent (which he or she sometimes is in the U.S.) and the accused said that the jail food was “inedible” (which it always is in the U.S.).

So there you go. Three thousand miles and there ain’t a whole lot that’s different. Cold cases are investigated, friends “snitch” on friends and jail food is still jail food. But there was deafening silence in the media about the reliability of the evidence against Adams.

It would be quite a world if we were able to say anything into a tape recorder, die and then have that one-sided tape be used against our enemy down the road, without any chance for the trier of fact to hear the circumstances and motivation surrounding the statement. While some constitutional protections erode over time, the right to confrontation hopefully won’t. Procedurally reliable evidence should be expected in any criminal justice system, regardless of the quality of the food.•

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  • bully boy eh?
    A fine article, interesting perspective on evidence, well done. Personally I favor the British. But, to be fair, the Fenians did not harm too many in their entire struggle, compared to, say, what the Allies did in 1945 in just a few nights in Dresden, Tokyo, Hiroshima or Nagasaki. So for that reason alone, I would not sweat the Irish too much.
  • Sez You
    In the case of Gerry Adams, may yer granda rest in peace knowing Gerry will get his just due. Glad the bullet missed yer mum.

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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