A Question of Judgement

Gerard Cowzer, a 23 year-old Dublin man who has been entangled in the Irish legal system for the past year and a half, is back in Mountjoy Prison, serving a five year sentence for the 1981 robbery of the Irish Permanent Building Society in Baggot Street.

This is seven years less than he was originally given for the same crime and yet is still a stiff sentence by recent standards.
Cowzer was sentenced in March 1982, to 12 years imprisonment for the robbery in which only £1,290 was taken and no one was injured. His sentence was one of the longest awarded in the courts last year - far surpassing punishments meted out for crimes such as murder, rape and attempted murder.

At the time of his sentencing by Judge Frank Martin in the Circuit Criminal Court, several Dublin solicitors expressed shock that such a "savage" sentence had been given. Cowzer immediately announced that he intended to seek relief from the courts for either a retrial, mistrial or a reduction in sentence. "I got the same sentence for a £1,290 robbery that Nicky Kelly got for the Sallins Mail Train Robbery, one of the biggest heists in Irish history", Cowzer said at one point.

One year later Cowzer was back in court - this time before the Court of Criminal Appeal. During the appeal hearing it emerged that Cowzer had been largely convicted on two pieces of evidence: the testimony of an eyewitness and a partial thumbprint found in the getaway car.

The eyewitness evidence was in dispute because, on the day of the crime, three men wearing balaclava helmets and wielding lead pipes entered the building society, demanded money and left. They were in the office for about one minute. The shortness of time, combined with the fact that the perpetrators' were masked, makes this eyewitness testimony arguable. Judge Martin, however, did not remind the jury not to place too much weight on this witness's identification of Cowzer as one of the robbers.

The second piece of evidence, the thumbprint, was also the subject of controversy. While expert witnesses for the State testified that the print was probably Cowzer's, the expert witness for the defence, a former member of the garda bureau, showed one point of "dissimilarity", which in police terms, disqualified Cowzer from being the owner of the print altogether.

Nevertheless, Judge Martin did not remind the jury that they had listened to conflicting evidence regarding the fingerprint.
Cowzer's attorneys also suggested to the court that Judge Martin had attempted to prejudice the jurors during the trial by persistently interrupting during cross examination and by suggesting that the defence fingerprint expert had been sacked by the gardai. (He had, in fact, resigned'.)
On Monday morning, March 7, the Court of Criminal Appeal did something it had not done during this entire sitting - it awarded a retrial. Cowzer was entitled to another trial, it ruled, because of Judge Martin's "inadequate and unsatisfactory" charge to the jury. It did not rule on the charges that Martin had deliberately prejudiced the jury.

Although he was initially denied bail while awaiting his retrial, a bail application to the High Court was successful in getting Cowzer out of prison to await his June court date, providing he surrender his passport and check in daily with the lrishtown garda station.

Throughout his brief period of freedom Gerard Cowzer hoped to be exonerated in court for the crime which he claims he did not commit. One nagging thought bothered him, however. That he might once again draw Judge Frank Martin in court.

Facing the very real possibility that his client might well stand trial again before the same judge that had already tried to send him to prison for 12 years, Cowzer's solicitor, Pat McCartan, investigated the possibility of having the case moved out of the Circuit Court and into the Central Criminal Court. The move was ruled out because of the cost involved several thousand pounds. Cowzer receives free legal aid and this legal manoeuvre would not be covered under the system.

With time running out Cowzer had to make a decision - to plead not guilty and risk drawing Martin as the trial judge or enter a plea of guilty hoping the judge would significantly reduce the sentence, suspend it altogether or let it go at time already served which was 16 months. Judge Frank Martin seldom hears cases in which the plea is guilty.

Three days before the trial date Cowzer called Pat McCartan and told him to enter a plea of guilty - he did not want to risk the Martin factor.

On the day the trial would have begun Gerard's mother, Rita Cowzer, checked the court docket. She says Gerard was scheduled to appear in Court 15 - Judge Martin's courtroom.

While no one can predict how the retrial might have gone, the Cowzer family believes that Gerard was tactically correct to plead guilty  to something he says he never did rather than risk facing the same trial judge.

But what happened in Courtroom 14 on the day of Cowzer's sentencing was also surprising.
In pleading guilty to the robbery, Gerard told Judge Neylon that at the time of the theft he had been a drug addict and had stolen the money to finance his heroin habit. He told the judge that since his release he had changed many of his old ways, was staying home a lot and working parttime as a driver. In addition, he offered to pay restitution for the robbery with money advanced to him by his employer with the promise that Cowzer would work off the amount later.

Judge Neylon did not appear to be impressed. He told the court that he wanted to make it clear that he was not "accepting any money in this case". He also said that committing a crime to finance another crime was not excusable.

"This is a very bad crime", the judge said. "The accused has pleaded guilty. Had he pleaded not guilty and been found guilty he would have gotten a very long prison sentence."

The judge then made the curious point that in sentencing Cowzer he was keeping in mind that the court of Criminal Appeal have been recently increasing sentences in cases like this one. He also pointed out that Gerard had 15 previous convictions going back to the age of 10 and that he had been "given various chances" in his early days of crime to go straight.

With that he sentenced Gerard Cowzer to five years in prison. After some legal points were raised he agreed to include time already served - which means that Cowzer is now facing about another three and a half years in prison.
Cowzer has said he will seek an appeal of his sentence, knowing full well that he runs the risk of having the sentence increased by the Appeals Court.

The day after Cowzer was sentenced in the Central Criminal Court, a man named Michael O'Connor received an identical five years prison sentence. Mr O'Connor had stabbed a man to death last September. •