Murder trial jury discharged after viewing Prime Time
Judge feared RTÉ discussion might influence jurors
JURIES may have to be quarantined in hotels and courts sit late at night to avoid the ‘running commentary’ on trials in the mainstream and social media, a murder trial judge has said.
Judge Carmel Stewart spoke out over the collapse of a murder trial following a discussion on RTÉ’S Prime Time about another case.
The dramatic ending of the retrial of a man accused of staging the suicide of a musician came about after a barrister complained that the defence of ‘provocation’ had been rubbished on Tuesday night’s Prime Time.
The judge called the jury in to ask if any of them had watched the segment dealing with provocation. Five hands went up.
‘Given that five of you watched it, did any of you discuss it this morning?’ she asked.
‘Yes, yes, yes,’ replied the jury foreman.
The defence barrister had raised the issue because he said the scenario discussed on the programme ‘mirrored’ the facts of the ongoing trial. Judge Stewart criticised what she described as ‘a parallel justice system in the court of public opinion’ which operated without ‘any regard to the courts at trial’.
She noted that another Central Criminal Court trial had collapsed in the past fortnight due to such coverage and said perhaps there would need to be a return to courts sitting late at night and juries being sequestered to a hotel until there was a verdict.
The second trial she was referring to involved an accusation of rape.
It collapsed following coverage in a newspaper in which details of the case were included in a comment piece.
‘You have to sit through a criminal trial from beginning to end to get the full picture,’ said Judge Stewart. ‘In this day of instant communications and instant response, this parallel running commentary ongoing in both media and on other public platforms and social media comment is quite concerning.
‘It may well mean that we have to return to that [sequestering juries], if this type of running commentary continues where trials are ongoing,’ she said.
She was responding to a defence application to discharge the jury following a 10-day trial because of the RTÉ programme, which the barrister said ‘rubbished’ the defence of provocation on which he was partially relying.
The jury had begun deliberating on Tuesday on whether the man, who stabbed a musician on either side of his neck, was guilty of murder or manslaughter.
Keith Brady, 31, of Cartron Estate in Sligo town was charged with murdering Martin ‘Matt’ Kivlehan, 59, between August 2 and August 3, 2015 at The New Apartments on Holborn Street.
He pleaded not guilty to murder but guilty to manslaughter.
The jury heard Garda evidence, and a witness statement, that the scene looked staged to make it look like Mr Kivlehan had stabbed himself.
The eight men and four women of the jury had spent just under two hours considering their verdict before suspending deliberations on Tuesday night. It was a retrial so this was the second jury to consider the case and it was due to resume deliberations yesterday morning.
However, before the jury was brought into court, defence barrister Brendan Grehan played the judge a segment from Prime Time. He said that, following a report on the recent trial of farmer Michael Ferris – who killed Anthony O’Mahony with a teleporter machine – there was a general discussion about the law of provocation between the presenter and a well-known senior counsel, lecturer, author and media commentator.
Ferris was found not guilty of murder and convicted for manslaughter. Provocation formed a significant part of his defence.
Mr Grehan said afterwards: ‘I’m not saying there can never be media, academic or legal discussion in relation to a defence or its merits. But we are, in this trial, at a particularly sensitive time where a jury is deliberating.’
He said that the criticism of the defence of provocation and of the subjective test used in the defence may or may not be valid. However, he said some of the discussion mirrored the facts of this particular case.
He said provocation had been described as defence-friendly and ridiculous by reference to two of the country’s most wellknown supreme court judges.
‘It effectively suggests that the courts here are soft on the defence and rubbishes the defence of provocation,’ he said.
‘It leaves the jury in the situation where they’ve heard directions from you [Judge Stewart] but now may have been exposed to the view that judges of the Supreme Court don’t agree with the law in respect of this matter.
‘The application I’m bound to make is one to have the jury discharged as there’s a real risk and danger that contamination may have taken place.’
Having reviewed Prime Time ratings from last year, he suggested three of the 12 jurors could potentially have seen and been influenced by it.
Prosecuting barrister Paul Murray said he was not too sure that it was absolutely and necessarily fatal to the case. Both barristers agreed that, if none of the jury had seen it, that could be the end of the matter so long as the programme was removed from the internet.
When it emerged that five jurors had seen and discussed the programme Judge Stewart said: ‘There’s a likelihood they could have been influenced by the programme. Mr Brady is entitled to a trial in accordance with law. The defence of provocation is the law of this land as it stands.’
She said she was left with no option but to discharge the jury.
She also said ‘some sort of parallel justice system in the court of public opinion’ was ‘effectively gathering force’ in this country ‘without any regard to the courts at trial’. She extended her sympathies to Mr Kivlehan’s family and said: ‘I can truly assure you that this is not the outcome that anyone in this courtroom wanted. This is a tragedy, but maybe eventually someone will take note and take care before they issue wanton utterances on issues of sensitivity.’
RTÉ declined to comment last night. A date for a third trial will be set on December 17. Comment – Page 12
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‘May need to sequester juries’ ‘Rubbishes defence of provocation’