Justice behind closed doors - the Malcom MacArthur Case

Whether or not justice is being done these days, it is certainly not being seen to be done. The “deal” system, in which lawers work out what's best for their clients or most expedient for the legal establishment, has been thrown into the limelight by the MacArthur case and the failure to prosecute for the murder of Donal Dunne. Inside the MacArthur case, we look at how the deal was done and in whose interests. And how the deal backfired.

Malcom MacArthur: How the Deal was Done

The release of Malcom MacArthur will come up for consideration in five years time. It is then he expects to reap the benefit of pleading guilty to the murder of Bridie Gargan, because the factors that will determine his release date were considered long before the case ever came to trial. This is what formed the strategy of the defence and explains several mysteries surrounding the case, such as why he never applied for bail, why he co-operated with the court and pleaded guilty, why the Donal Dunne charge was dropped, and why in the last minute of the five minute Gargan trial the defence entered a psychological report that stated that Macarthur was not a danger to society.

From the minute the evidence was examined the defence knew that the best deal for Malcolm Macarthur was to get him convicted and into jail within the minimum of sensational publicity. It was hoped that the case would fade from public memory in time for the Minister for Justice to agree to a relatively early release.

Macarthur, the model prisoner, convicted of one murder not two, a man the psychiatrists say is not dangerous - why shouldn't he go free when the time comes? On average, the time of release for most "lifers" is seven years. Macarthur and his lawyers were aiming for an early release and the plan might have worked out were it not for public outrage and the efforts of the Dunne family at the dropping of the second murder charge.

From the moment of arrest, the case against Macarthur was directed from the office of the Director of Public Prosecutions in Dawson Street. While Macarthur was being questioned by gardai in one room in Dun Laoghaire garda station, the DPP was being phoned from another. As Macarthur dictated his twenty page confession explaining in detail how and why he murdered Bridie Gargan, the DPP was kept informed and advised on the charges that were brought against him later that afternoon in the District Court.

The presiding District Justice was Mary Kotsonouris who appointed solicitor Roger Sweetman from the Free Legal Aid panel to act for Macarthur. Sweetman is one of several available solicitors and it is up to the District Justice to make the choice when the accused expresses no preference.

Charged with a double murder and allocated a solicitor, Malcolm Macarthur was then taken to Mountjoy Prison. The case was put back for another five days and the legal manoeuvres began.

For the defence, the first move was the appointment of Paddy McEntee, SC. McEntee was an obvious choice. He is the most prominent criminal lawyer in the Republic. It was he who conceived and directed the strategy of the Macarthur defence from the beginning.

Paddy McEntee came to prominence as a criminal defender primarily through his work in the Special Criminal Court in the 1970s.

His career dovetailed with the growth in importance of that court where he is widely credited with the protection of civil liberties which might have otherwise eroded in the face of non-jury trials. He succeeded in having quashed several Special Criminal Court convictions in the Court of Criminal Appeal.

He is a master of court room drama and speeches designed to sway ajury but his flamboyant manner belies the fact that most of his success is due to meticulous preparation and an impressive command of the case law that has developed in the last five years, especially involving the rules of evidence. If there was a technical flaw in the prosecution case against Macarthur, he was the man to find it.

McEntee is well known to all criminal solicitors, including Roger Sweetman with whom he had recently defended Penny Dorricott, the mother who attempted to drown her baby in the Royal Canal. He was not surprised when Sweetman's senior partner, John Jay, phoned him and asked him to take the Macarthur case.

In less sensational cases, the solicitors do months of footwork long before senior counsel is brought in. Often counsel will meet with the accused just once or twice before the trial. But in the Macarthur case, within a week of the arrest, Macarthur and McEntee met, for the first time, in Mountjoy. There were another five consultations between the two men before the trial.

Why all the special attention? How was this case so different from any other? The case against Macarthur was stark, the evidence overwhelming. There were few points of fact left for Macarthur and McEntee to discuss. The only variable was Macarthur's mental state.

The defence team, led by Paddy McEntee, was toying with a plea of guilty but insane. It was felt that McEntee would have to understand what made Malcolm Macarthur tick. More importantly, he had to know what kind of impression Macarthur would make on a jury should he ever enter the witness box.

But the reports of psychiatrists who saw Macarthur in Mountjoy did not support the guilty but insane strategy. Also, to give this tactic a chance, a sympathetic jury was crucial. At this stage, McEntee was worried that the level of publicity precluded the possibility of a fair jury, never mind a sympathetic one.

Already, Macarthur had been physically attacked during two of his district court appearances. Reports of his upperclass background and playboy lifestyle were widely circulated. So low was the credibility of politicians and so great public cynicism, that the involvement of the Attorney General in the case fuelled the popular belief that there would be a cover up and somehow Macarthur would get off.

Most murderers plead not guilty, simply because there is nothing to lose by doing so. A guilty plea carries a mandatory life sentence, so nearly all murderers give "not guilty" a try. The rules of evidence in a murder trial are stringent.

For most murderers there's a good possibility that the charge might be reduced to manslaughter. If not, they can't get more than life anyway. (Unless it's a case of capital murder of a garda or a prison officer when the death penalty still applies.)

Pleading not guilty is one of the options Macarthur and McEntee discussed and rejected. From the beginning, the level of publicity worried the defence team and outraged Macarthur. From the legal point of view, the publicity jeopardised the chance of a fair trial. It also jeopardised Macarthur's future chances of being released from prison within ten years.

Most convicted murderers do not serve more than seven years in prison. If the prisoner behaves himself while in jail, doesn't represent a danger to society, and isn't psychologically predisposed to violence, he stands a good chance of an early release. The assessment is made by a liaison committee comprised of prison and Department of Justice staff, but the final decision rests with the Minister for Justice. But no Minister for Justice will release a murderer in the face of public outrage, which is why it was in Malcolm Macarthur's interest to fade from public memory as quickly as possible.

That is why he had to avoid publicity at all costs, even at the cost of pleading guilty to the murder of Bridie Gargan.

A not guilty plea would have ensured a three week trial and an accompanying media circus. Not only would all the gory details be known, the most sensational evidence would be highlighted day after day after day. The evening papers would vie with each other for the most gruesome headline, with each edition giving an update on the trial. The early editions might tell how the gardener at the American Embassy saw the car shaking and the blood dripping out. Later editions might tell of the car chase and Bridie Gargan's pathetic efforts to catch the attention of passers-by.

The litany of horror would progress daily until Malcolm Macarthur was as firmly entrenched in public memory as Mohangi. Not only would he lose the case, he would lose the chance of an early release.
 

As defending barrister, it was McEntee's job to get the best deal possible for Macarthur. "Plead guilty" was the best possible advice McEntee could give to Macarthur. It wasn't advice given lightly, McEntee has only once before entered a plea of guilty in a murder trial. He wouldn't have done it if there had been another way out.

But that wasn't the end of it. There wasn't any point in pleading guilty to the murder of Bridie Gargan to avoid sensational publicity if the details were going to be dragged through the courts in the Donal Dunne trial.
 

One guilty plea wasn't enough. Macarthur had two options - plead guilty twice or squeeze a deal out of the Director of Public Prosecutions.

Two guilty pleas and two murder convictions would undoubtedly prolong Macarthur's term in prison, because the seriousness of the conviction is a factor which matters when release is being considered. The life sentences might run concurrently, but two murders are considered worse than one when it comes to being released.

Paddy McEntee hammered out the best possible deal for Macarthur - plead guilty to the first charge and the second will be dropped. The DPP gets his conviction, Macarthur has the chance of getting out of prison while he's still a relatively young man.

It wasn't as stark as that. There were sound legal arguments presented by the defence to support the deal. McEntee argued that given the publicity there was no chance of a fair trial in the Donal Dunne case. The facts of the evidence weren't nearly as strong as they were in the Bridie Gargan case. Macarthur was the only witness to the crime and he didn't admit murder. A lesser charge, argued McEntee, was more appropriate but there was a danger that public prejudice against Macarthur would swamp the facts.

It is a general legal principle that the accused should accrue some benefit from pleading guilty. It is seen as a sign of remorse, and it also saves the court time. In lesser charges the benefits of pleading guilty are reflected in the sentence. In the Gargan case, this wasn't possible given the mandatory life sentence that accompanies a murder conviction.

For Macarthur a guilty plea was worthwhile only if the remaining charge of murdering Donal Dunne was dropped. All that remained was to sell the idea to the DPP.

The prosecutions case was, in the meanwhile, being directed by the DPP, Eamonn Barnes and his five legal assistants. The DPP's office acts as a kind of controlling satellite over all criminal cases. Neither the DPP, nor his assistants ever appear in court but they exercise a tight control over what happens there through the prosecuting counsel who acts under their direction.

The office of the Director of Public Prosecutions was established in 1974 to remove the power of prosecution, held previously by the gardai and the Attorney General, from political influence. Political influence meant that lucrative legal briefs were handed out to the party's favoured barristers.

Now, it is Eamonn Barnes who decides who gets the work. He also decides which charges are brought and which are not proceeded with. The most obvious reason for a '''nolle prosequi" or a dropped charge is insufficient evidence. But there can be other reasons. And, contrary to the statement issued following the dropping of charges in the Donal Dunne case, the OPP's office does, on occasions, offer explanations.

In at least one case the charges against a sex offender were not proceeded with because the offender had submitted himself for treatment and the children he had abused were on the road to recovery. The psychologists treating the children explained to the OPP that the ordeal of a trial would inhibit if not prevent recovery. The OPP's office informally conveyed the reasons for not proceeding to a group of very irate parents.

Barnes has held the post of OPP since it was created. Called to the bar in 1962, he practised on circuit in the west until he joined the civil service as a legal assistant in the late 1960s. He was not a particularly outstanding barrister according to some who practised with him at the time. However, he fared particularly well in the civil service and was rapidly promoted to third in command in the Attorney General's office.

When the job of Director of Public Prosecutions was created, several distinguished barristers, one of them now a Supreme Court Judge, applied. At the time Barnes' appointment, over the heads of these barristers, caused considerable resentment among the practising legal profession.

Eamonn Barnes appointed Harry Hill to act as senior counsel for the prosecution of Malcolm Macarthur. It was an unusual choice because Hill isn't particularly well known for criminal prosecutions. There are several other barristers, who often act for the OPP, who would have been more obvious choices.

In fact, Harry Hill was not the OPP's first choice. Another barrister was approached but declined the brief because of his friendship with the former Attorney General, Patrick Connolly.

Hill's most famous criminal case, previous to Macarthur, was his defence of one of the two Englishmen convicted of murdering two girls in Galway and Brittas Bay. In the Macarthur case, acting on behalf of the OPP, he didn't enjoy the same independence he knew as defence counsel. In fact, at times he was just an informed messenger between McEntee and the OPP.
 

Legal deals are not supposed to be a part of the Irish judicial system, but they are. Deals are done daily in our courts, though not to the same degree as in Britain or the United States. However, in Ireland judges are never involved. In charges where there's a gradation of seriousness, say, from grevious bodily harm to wounding with intent, it is not unusual for the prosecution to start with a charge that the defence thinks is more serious than the facts warrant. That's when the bargaining begins. "We plead guilty to the lesser charge and you drop the more serious one." The OPP gets an assured prosecution, the courts are saved a lot of time and money, and the accused gets a shorter prison sentence.

The barristers who strike the deals meet regularly even when they are on opposing sides in a particular case. For a start, they all share the same office in the antiquated but hallowed halls of the Law Library in the Four Courts. They can be seen consulting in the crowd of clients and solicitors that is forever milling around the doorway of the Law Library. It is there that most deals are struck. It only remains to have them approved or vetoed by the DPP's office in Dawson Street. The person who puts the deal to the DPP is the prosecuting barrister. In the Macarthur case, Harry Hill.

The DPP accepted the MacArthur deal because it brought with it a certain murder conviction. Even with a hostile jury, the defence might have succeeded with a guilty but insane plea. It was within the realm of possibility. A guilty plea was an absolute certainty, and it is not often such an offer is made.

An added bonus was the prospect of a cheap trial, and the Macarthur case was very cheap indeed. The total legal fees are thought to have come to no more than £5,000 which is inexplicably low, even for such a short trial.

The only problem with the Macarthur deal was unsatisfied public curiosity. At the time, among the legal profession, there was widespread annoyance with the media and a tendency to be dismissive of the public's right to know.

Harry Hill planned to read into the court record a statement of evidence. That would satisfy the media and the public and they would still get their guilty plea. Paddy McEntee didn't object. A statement of evidence, couched in legal jargon and cooly read aloud by the prosecuting counsel wouldn't do much harm and it would allay fears of a cover-up.

However, they didn't reckon with Judge McMahon who presided over the Macarthur trial.

By October 9, nearly two months after Macarthur's arrest, the Book of Evidence was ready. The trial was set for January II, by which time Macarthur had been in prison for five months. As part of the defence policy masterminded by McEntee he never applied for bail because it would give rise to even more publicity and outraged comment.

Another tactic was to get the case to trial as quickly as possible. Macarthur appeared in the District Court five times. Each time, the defence complained about delays.

Minutes after the murder trial of Bridie Gargan commenced, McEntee looked for an adjournment to consider documents presented by the prosecution. More damning evidence. Psychological reports that testified to Macarthur's sanity and a do-it-yourself home electrocution chart allegedly destined for a third victim.

The next morning, following the adjournment, Macarthur pleaded guilty to the murder of Bridie Gargan. Harry Hill asked for a further adjournment on the Donal Dunne charge and said then that he did not anticipate the charge being proceeded with.

Macarthur's strategy had apparently worked. He got himself through the trial with the minimum of fuss and publicity. The prosecution wasn't going to proceed with the charge of murdering Donal Dunne. He could begin to fade into obscurity behind the walls of Mountjoy. Were it not for Judge McMahon.

After the guilty plea was entered, Harry Hill offered to read a statement of evidence and call as witness Chief Superintendent Courtney, who led the Macarthur investigations, to give a background to the case. It was a gesture to satisfy public curiosity. But Judge McMahon, exercising the independence of the bench, said that since there was a mandatory life sentence, the evidence was irrelevant. He declined the offer to have it read, thus fuelling the fires of public outrage that kept the Macarthur case on the front pages, especially when "nolle prosequi" was entered and the Donal Dunne charge dropped.

Macarthur's low profile strategy was so successful that it backfired and his name was back in the headlines.

But in the final minute of the Gargan trial, McEntee made one of the eleventh hour manoeuvres for which he is well known. He asked that a report of psychiatric evidence be entered as part of the court record. Judge McMahon agreed.
 

It seemed an innocuous enough action. McEntee explained to the court that the purpose of the report was that psychiatric evidence would be available to the authorities if it was ever needed.

The evidence in this report states that Malcolm Macarthur is not a danger to society. As part of the court record it had only one purpose, to sway the minds of those who will one day open the Macarthur file when his release comes up for consideration. Whether he is considered dangerous or not will be a crucial deciding factor for or against early release.

Barring a successful private prosecution by the family of Donal Dunne, the Macarthur case is now history. The solicitors and barristers involved have moved on to other cases. Harry Hill, once again representing the DPP, is prosecuting in the McAleavey case in the Curragh opposite Paddy McEntee who is defending.

For Macarthur, the immediate future is bleak. He is currently held in the base of Mountjoy prison. It is an area of the prison reserved for those who for reasons of their own safety cannot mix with the general prison population. It is where the Littlejohns were kept. It is where the convicted rapists and murderers Shaw and Evans have been since their conviction in 1978. For the foreseeable future, it is also the home of Malcolm Macarthur.

Entry to the base is through a steep wrought iron spiral staircase from the B wing. The base is a subterranean, cavern-like cellar. There are windows in the cells but they are high in the walls adjacent to the 'ceiling. The most exciting thing Macarthur could expect to see from the window of his prison is the feet of someone walking by.

Still, reports from inside the prison seem to indicate that he has adjusted to prison life. At first he kept to himself away from the other prisoners, talking only to prison officers. More recently, he's begun to socialise. He's teaching his fellow inmates how to play American pool on the table provided by the prison. He's a model prisoner and he's rapidly becoming immensely popular.