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

Welcome 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.•