Judge Frank Martin and the Cowzer Affair
JUDGE Frank Martin's "inadequate and unsatisfactory" charge to a jury last year has lead to the retrial of a
23 year-old Dublin man who has already served seven months in Mountjoy Prison on a robbery conviction.
Gerard Cowzer, of Holies Street, may remain behind bars for another year before he faces a jury again, however, because the court has denied him bail.
Cowzer is serving a 12 year sentence handed down by Judge Frank Martin for the robbery of £1,290 from the Irish Permanent Building Society in Baggot Street, in February of 1981. The sentence was one of the stiffest awarded last year and at the time of the trial several solicitors said they were "horrified" by its length.
Cowzer's retrial received almost no media attention last month when it was granted by the Court of Criminal Appeals - despite the fact it was the first retrial given by the three judge panel during this sitting. This contrasts sharply with the publicity focused on the sentences handed down in the Fairview Park murder case in the same week.
In addition to also highlighting the vagaries in the Irish justice system, the Cowzer case is interesting in several other respects.
From the beginning, the Cowzer family has insisted that Gerard was innocent and only convicted on the flimsiest of evidence. They have questioned the behaviour of the trial judge - Judge Martin - and the conduct of the trial which led to the conviction. The two main factors which convicted Gerard Cowzer were the testimony of one Building Society employee who claimed he recognised the accused as one of the three robbers and the existence of a fingerprint which may or may not have been Cowzer's.
The employee who helped put Cowzer away until 1994 identified him as one of the men who held him up on Friday February 13, 1981 - even though the thieves were in the office for less than one minute and were wearing balaclava helmets at the time. The witness told the court that there was something about Cowzer's eyes which he recognised which led him to believe he was the man who robbed the building society.
WHEN the Court of Criminal Appeals heard Cowzer's lawyers argue that Judge Martin had failed to instruct
the jury not to attach too much weight to the testimony of this "eyewitness", they agreed. The Appeals Court ruled that the judge had an "obligation" to strongly remind the jury that the witness had seen the robbers for less than a minute and then while wearing balaclavas, and that the testimony was not enough in itself to warrant a conviction.
Cowzer's counsel also argued that the other piece of evidence which helped convict him - a disputed fingerprint - should have been the subject of another warning from the bench to the jury. During the trial, the prosecution presented a partial fingerprint found at the scene of the crime which it contended belonged to Cowzer. Three fingerprint experts were produced by the State and they all testified that there were strong similarities between Cowzer's print and the one found at the Building Society.
The defence, however, called its own fingerprint expert - a former member of the Garda Bureau - who testified that although there were similarities between Cowzer's fingerprint and the one in evidence there was also one dissimilarity. Any dissimilarity in fingerprints automatically means the prints are not the same.
The judges on the Appeals Court appeared quite concerned that Judge Martin did not remind the jury as they were about to begin deliberations that there was conflicting testimony about the print and especially that one expert had definitely said that the print could not have been Cowzer's.
It was on the basis of these two omissions by Judge Martin that Gerard Cowzer was granted a retrial last month. But several other points came out during the one hour hearing which the Appeals Court chose to ignore when making their ruling.
Rex Mackey, SC, for Cowzer, claimed that during the questioning of the main defence witness the judge "interrupted persistently". "The very gist of cross examination lies in the unbroken series of questions to the witness," Mr Mackey said, adding that Judge Martin's questions ruined the effect of the questioning.
There was no disputing Mr Mackey's contention that Martin did a fair bit of interrupting. The trial transcript shows that of the 108 questions put to Mr Sheehan, the fingerprint expert, 57 came from Judge Martin, including 21 questions in a row. (In other words, 53 per cent of the questions put to the defence fingerprint expert came from the bench).
"He made it clear to the jury that they were to disregard the testimony ... not in so many words, but he certainly gave that impression,' Mr Mackey told the Court. Since the prosecution had not objected to the expert, Mr Sheehan, as a bona fide expert in the field there seemed, it was claimed, no reason for the judge to be so critical.
Judge Martin, however, seemed to doubt Mr Sheehan's credentials and at one time even asked him if he had been "dismissed from the Guards". Mr Sheehan it turned out, had resigned from the Garda Bureau with no cloud of suspicion, and yet, the defence maintained that by even asking the question the Judge had planted a doubt about the witness's integrity in the minds of the jury.
Mr Mackey told the court that it seemed clear that Judge Martin had "conspicuous views about the validity of Mr Sheehan's testimony" and that by communicating these views to the jury and by failing to warn the jurors of the conflicting fingerprint testimony - that he had prejudiced the case.
One member of the Appeals Court in particular seemed puzzled by the Judge's behaviour in that instance and asked the prosecuting attorney to tell the court exactly how he would have phrased that same question so as to appear totally impartial.
"I suppose I would have asked why he left the Gardai", (rather than had he been dismissed), replied the prosecutor.
Although Mr Mackey asked the Court of Criminal Appeals to "express disapproval of this type of judicial behaviour" the court did not give Cowzer a retrial based on the number of Judge Martin's interruptions. The retrial was granted solely on the fact that the judge failed to caution the jury that the two pieces of evidence were in dispute.
COWZER'S Appeals Court hearing took place in the High Court on Monday morning, March 7. That was a particularly bad day for Judge Martin, who, in addition to seeing one of his stiffest sentences thrown out and a retrial granted, was also the subject of a communique from the Minister for Justice.
The Minister took strong exception to Judge Martin's request that a 21 year-old man - who was described in press reports as a "pickpocket with a drug problem" - be forced to serve every day of a 12 month sentence for the theft of about £20. Mr Noonan said he reserved the right to review any sentence handed down in the courts.
In recent weeks the judiciary has come under attack from all quarters - for lenient sentencing in the Fairview Park murder and for uneven sentencing all around. But wild and unpredictable sentences - which seem to bear little relation to the crime - have long been almost institutionalised in the Irish judicial systems. For example, in the month surrounding Cowzer's conviction last year, several other convicted criminals including rapists, robbers who shot a man and a man who kicked a mentally retarded boy to death - all got off with lighter sentences than Gerard Cowzer. (The murderer escaped with only three years in jail).
Judge Frank Martin himself has come under fire for his rather heavy-handed courtroom approach which last year lead him to ban a representative from the Rape Crisis Centre from his courtroom even though she was only there to provide moral support to a rape victim.
In fact, one week after the Cowzer sentencing, Judge Frank Martin sent two men to prison for just five years for indecently assaulting a woman at knifepoint. Martin expressed disgust for the crime and was quoted as saying that in 25 years on the bench he thought he had heard cases which plumbed the depths of human degradation. This crime however, reached a new low, he said. The maximum sentence the two men could have received was ten years.
But days after the retrial was ganted the Cowzer family were surprised to hear that Gerard Cowzer had been denied bail and would continue to be imprisoned for a crime for which he had not been convicted. Also, the family was shocked to discover that the trial will go back into the Circuit Criminal Court where they stand an even chance of drawing Judge Frank Martin as the trial judge again.
At this time, they are investigating the possibility of getting the case transferred to the Central Criminal Court.