Cassandra Voices

Tag: state

  • Facilitating the Dirty Business of the State

    Both as a lawyer and Supreme Court judge, Louis Brandeis was an inveterate opponent of big business interests. Less well known than his other contributions, is that he a co-authored a text in the 1890 Harvard Law Review that invented a privacy right, which has steadily been eroded in criminal justice.

    Indeed, as a judge in Olmstead v US Brandeis extended the privacy right to what he termed ‘the dirty business of the state’. In that case, without judicial approval, federal agents had installed wiretaps in the basement of Olmstead’s office and in the streets near his home.

    Culminating in the recent Quirke case, in Ireland, a right to privacy in criminal proceedings has now reached a juncture of virtual nonexistence.

    In my last article I referred to Irish Supreme Court Justice Gerard Hogan’s opinion that for thirty years the Irish Courts have failed to enforce due process under Article 38 of the Irish Constitution. The Quirke case delivers us to the terminus, facilitating the dirty business of the state.

    In that case, evidence gleaned from a computer unlawfully seized from Patrick Quirke’s home was deemed admissible. Jurors in Quirke’s original trial were informed that Quirke’s computer was used for internet searches on the decomposition of human remains and limitations of forensic DNA. Quirke was found guilty of murder based on circumstantial evidence.

    Louis Brandeis 1856-1941.

    No Statutory Safeguards

    In Ireland we now enjoy no statutory safeguards, other than Judges’ Rules, whereas in the U.K. Section 76 and Section 78 of PACE (The Police and Criminal Evidence Act 1984) are actively enforced to exclude coercive and inappropriate tricks or force, and that which impacts on the fairness of the proceedings. I know from experience that judges in the U.K. are vigilant at throwing out a case in the event of an abuse of process.

    The murmurings by the Irish government about the implementation of the Special Criminal Court recommendations is a space which should be carefully watched. Most likely, in my view, is that an institutional preference for non-jury courts will be given ever-wider jurisdiction.

    It is a sign of how we are entering an inquisitorial rather than adversarial age worldwide, not just in Ireland, which suits the interests of many of our elites. Our own, and other states, are sidestepping the Rule of Law in the interests of big business, often at the expense of the sometimes-innocent lives of others.

    Furthermore, it is noticeable that the seven judges of the Supreme Court selected to adjudicate on the Quirke case did not include the state’s leading constitutional lawyer. Gerard Hogan’s absence was his presence.

    One can only wonder why Hogan was, deliberately or otherwise, excluded. Perhaps to preserve a show of strength through unanimity? Or maybe Hogan would rather colleagues were unanimously wrong, and wanted no hand nor part in it.

    While on the High Court Peter Charleton was the architect of the nefarious JC case. His judgment in Quirke expressly reinforces that case, and fails to over-rule it as doctrinally unsound. He also sidesteps accepted breaches of EU and ECHR data protection under the privacy right. The judgment effectively subsumes a right to privacy at the expense of public order considerations, and legitimates the dirty business of the state.

    The Supreme Court could have engaged in a process of reconsideration and followed the late Adrian Hardiman’s masterful dissenting judgment in JC. They had a choice and did not.

    Hardiman’s absence is also his presence. The shade of a forgotten ancestor. His dissent is not even addressed in any satisfactory detail in Quirke. This failure to address Hardiman’s reasoning is not dissimilar to the way the State treats whistleblowers, who are demonised, ignored, trivialised or excluded. If all else fails, as in the McCabe inquiry which Charlton presided over, the State endeavours to deflect, invoking the shabby excuse of inadvertence – at least until confronted by the stark truth.

    Then, only after being caught with your legal pants down, do you cobble together a shabby deal involving a multimillion pound pay out. With a confidentiality agreement of course.

    Image: Daniele Idini

    Factual Matrix

    The factual matrix of Quirke may go some way towards suggesting that it was an inadvertent mistake, but that is not a typical pattern, as various sources, including the Morris Tribunal, and Hardiman’s eviscerating judgment in JC, demonstrate that discipline – and it might be said ethics –  are barely apparent in the Irish police force: An Garda Síochana.

    It is not a case of – as I can testify – simply of incompetence, though this is undoubtedly part of the problem. It is a combination of tunnel vision, or cognitive bias, coupled with active attempts to frame those deemed to be threats, or perceived threats.

    Whistleblowers, including and especially internal ones, are a particular target, but human rights lawyers or defence counsels may also be in their line of fire.

    There is no point having the symmetrical precision contained in Charleton’s detailed judgment and in some of the majority judgments in the JC case. This is not a case about shipping or guarantees where rules can be implemented precisely with clear consequences; and where high commercial stakes demand clarity and precision, which can then be cross-checked against best practice in industry.

    The rules in criminal proceedings must be matched up with, and adapted to, social realities. A member of An Garda Síochana may describe something as inadvertence when it was a reckless or deliberate violation of constitutional rights. There is a consistent tendency to lie or cover up. That is what the Morris Tribunal and other reports demonstrate. Things have got worse not better. This was not dealt with adequately in the Report of the Fennelly Commission.

    Image: Daniele Idini.

    The Path of The Law

    In one of his most celebrated contributions to legal discourse Brandeis created the so-called Brandeis Brief, which is often used in cases involving the death penalty, and others. This involves the marshalling of economic and sociological data, historical experience, and expert opinions to support legal propositions, i.e. judgments must be cross-checked against social realities.

    Therefore, in Ireland the behaviour of the police does not warrant a watering down of the strict exclusionary rule. In Ireland we require a high standard. Discretionary rules will not be applied.

    If the police are afforded the excuse of inadvertence, they will happily paper over illegality.

    Rules must be informed by social realities. It was recently alleged in the High Court that a number of officers supervised the importation of drugs, and controlled the flow of shipments to dealers. Woe betide anyone who has the temerity to stand in their way.

    Charleton by implication, and expressly, suggests that a factual inquiry into the bona fides or honesty of a police action and decision can be made in a specific context. But given the present Special Criminal Court dispensation, accepting uncorroborated police evidence, that inquiry must be very limited and conditioned by the judgement of subjective officialdom.

    The acceptance of a Garda evidence in even securing a warrant without adversarial scrutiny is unacceptable. Safeguards need to be built into the system.

    The Quirke judgment is a travesty: a neatly-ordered, precise and tidy travesty – as is Charleton’s want. We should not be facilitating the dirty business of the state but enforcing the privacy right.

    Feature Image: Daniele Idini

  • Island State

    On 55th West between 8th and 9th Street I just miss getting mugged. I hear them coming up behind me, two street kids and I speed up. They hit the next guy, take his phone and break his arm. I back off, slipping between parked cars as they run away. He’s just sat there on the pavement in his neatly pressed suit, cradling his broken arm. This is a quiet street, neatly trimmed hedges, expensive apartments. I say something like “Can I help?”, but he doesn’t speak English. The cops arrive and I give them a vague, racist sounding description of ‘the perps’. Two days ago I would have helped.

    Two days ago I owned a can of pepper spray, picked up for fifteen bucks on Venice Beach because Inglewood felt dangerous. But they scan you and pat you now, before they let you board the ferry to Ellis Island, so I trashed it. I sit on a rock in Central Park and call friends in Ireland and Russia on the last of my credit. These calls last a surprisingly long time. I am completely alone.

    So I get a ticket for the Tonight Show. If Letterman looks a little orange on camera, then he’s ruddy as a horse under the lights. Tonight’s guests: Sean Lennon, Billy Bob Thornton and a girl who hypnotises lizards and poses them in hand sown outfits. I feel sorry for Lennon, this nerdy, yupster kid, born overshadowed. Billy Bob’s here promoting a movie. He’s brought along a picture of himself as a fat toddler. We laugh as instructed. ‘The CBS orchestra’ make a good house band, tight session musicians in loud ties and late 30’s paunch. I watch Dave’s hands shake during the ad break, as pages coo and pamper him. Is he still nervous after all this time? Is it Parkinsons, rattling through the L-dopa? Is it the DTs?

    Up and down the Upper East Side stalk little old ladies with pointed faces. Their midget pooches, humiliated in booties, snap against their leads like bobbinhead Johny Rottens in the CBGB’s gift shop. I pick up a naggin in 7-Eleven, mixing it with the too sweet remains of a Big Gulp. Tiny grocery stores are selling mountains of outsize pumpkins. Jews for Jesus thrust leaflets at passing Hasidim, angry under their beards. Columbia is a squall of grey bricked buildings splashed onto a sandstone thoroughfare. I don’t know if it’s a good school, but I’ve read about the naked campus parties. I am titillated and terrified in equal measure. The campus is quiet, and I potter about the swollen crypt of St Paul’s chapel, come to rest on the steps of the library and wish I went here.

    Laura and I are mid-conversation. One of those drunken transitions you can’t remember happening. I’m talking up the Aran Islands, staring at this fake pearl necklace on her tan wrist. She’s a senior, majoring in Neuropsych, and we talk about functional imaging and the new Girl Talk record. She hop skips and jumps before me down the steps, right out of the college and across to a red brick hall of residence and it’s happening finally, that manic pixie dream romance.

    At the party she tells me to wait. I stand in a dark room containing an actual keg that no one actually drinks from. Minutes go by and I think of leaving to buy condoms. I wonder how I’ll get back in. I worry about us finding a room, I wonder if I can sneak her back to my hostel, if I’ll have to bribe whoever’s on the desk. I wonder how long it’s been since I jerked off, and whether I’ll be able to last with a stranger. I lick my palm to check if my breath stinks.

    Laura is kissing a tall Indian kid in t-shirt that reads ‘Cover me in Chocolate and feed me to the Lesbians’. I am crammed on a couch, beside a heavy freshman with a dyed blonde goatee. He reads aloud from his first novel. No one is listening.

    Charles, Charlie, Chuck, had been dead for a very long time. Music had become little more than sound. He gathered and collected films that he did not watch. He purchased books that he never found the time to read. He feared the theft of these collections, though they gave him little pleasure. He carried paperbacks like stowaways in his leather satchel, wearing away the covers on unbroken spines. He had walked through pairs of shoes in the time between reading one book and the next. Periodically he would attempt to consume something; some item of narrative literature, some important work of cinema, some critically acclaimed contemporary composition. Books were too long. Songs were too kitsch or too sincere. Films simply frightened him. It was as though, long ago he had run out of a burning building and into the snow, and he could not remember how to return or find a place to escape the cold.

    In my mind the East Village is an all night street party, tuned in dropped out business men sleazing on boho bimbos in dyed pashminas and lambswool ponchos. I am disappointed. At 14th St, yuppies are replaced by respectable gay couples and hipsters. The air gets smoky, moleskins appear, even the homeless wear designer cast offs. Disneyland Manhattan. I watch a twenty something couple eat day old burgers from the twirling, spoiling windows of an Instamat. I puke in front of them on purpose.

    They show midget porn in the Double Down Saloon. We drink Coronas and the house cocktail, Ass Juice. The money shot in midget porn comes after the action, when the burley stud zips up his little person partner and fucks the suitcase out the window. I am flirting with a roller derby queen. We have consumed great quantities of some cheap imitation of falafel, which demands drink in its roiling savoury language, and on its own bowel wrenching terms. On the street her Disney princess miniskirt and whiffle bat get catcalls. I line up shots at the wing mirrors of parked cars and strike out.

    Rain falls my last morning in Manhattan. It drops in fat wet polyps that hit and burst as I drag my sodden case across Midtown, heart of a heartless empire.  I spend my last damp dollars on American candy for my Irish girlfriend. I take the Long Island Railroad from Penn Station, watching the neighbourhoods get shorter and poorer. These carts were once crewed by gangster taggers in matching costumes. They’d rob you and stick you and keep on walking. Eyes like scissors, riding high over the low down world. They’re gone now, civilised. I am fifteen hundred feet up in the air. Outside, the wingtips blink clouds purple, and the ice wind wracks this comfortable shell.

    * * *

    Feature Image: view of the stage with David Letterman’s desk and guest seats.