Anthony McIntyre reflects on the conviction of South Armagh man Aaron Brady on a charge of capital murder. 

This morning, the 16th of August, 2060, 69 year old Aaron Brady was released from prison, having served forty years of a life sentence imposed after he had been found guilty in 2020 of the capital murder of a member of An Garda Siochana, Detective Adrian Donohoe. Brady emerged from the front entrance of the prison looking pale but otherwise fit and healthy for a man of his age. Asked by waiting media if he now intended getting on with his life, he frowned, stared into the distance, and said in an almost inaudible whisper, "I have no life left to get on with."

Futuristic but not improbable given the mandatory minimum sentence of 40 years that must be imposed on the Crossmaglen man next October after he was found guilty by a jury in a Dublin court last week. Presuming the tariff is held at 40, as a result of a 2013 Supreme Court ruling he should benefit from 25% remission which would see him released a decade earlier. Hardly a lot to look forward to at this stage of a sentence. 

It is a sobering thought, without much in the way of redemption. This is a tough sentence meant to punish rather than rehabilitate. Little in the way of rehabilitation is required to prepare someone to pick up their weekly pension. Whatever message such a sentence is meant to convey, it, at the same time,  invites us to ponder the Nietzsche entreaty to "mistrust all in whom the impulse to punish is powerful." 

When the trial opened, I followed it as frequently as I could. I remembered the killing of Adrian Donohoe, thinking it a particularly ruthless and brutal act of gratuitous violence. It seemed less a robbery that went wrong than a murder that went right. For the robber armed with a shotgun, there was no intention to do anything other than kill the Garda the moment he alighted from his car.

Initially, when Brady came to trial, the case against him looked very weak. I felt the Prosecution would have serious problems getting it across the line, particularly past a jury which would in all likelihood be less tuned into a state imperative to secure a conviction in a way that a judge would be. Juries have long been a democratic foil against the authoritarian instinct of judges.

As the days grew into weeks and then months I could see the threads of evidence being weaved together into a rope that would eventually become a noose around the neck of the accused. To more than a few people I commented that Brady was goosed. So when the verdict was returned there was no great surprise. It struck me that it was the only verdict that could be returned. Then I began talking to a close friend who is pretty astute when it comes to evidentiary procedures, having faced enough of them himself. Like me, he does not belong to the Society of Angels.

He raised a number of serious concerns about the quality of the evidence, feeling that it fell considerably short of the standards that a charge of capital murder should require: the consequences being so enormous, the bar should be set higher than is the norm. He was making no defence of Aaron Brady, but pointed out the dangers of relying on the binding together of a wide and disparate range of threads, that even when pulled together left  many visibly awkward joints, something which caused the prosecutor to comment that on their own each thread amounted to nothing. His attitude seemed to be that the Prosecution case was akin to rebuilding a mirror from all the broken pieces. At the end what do you actually see in it?

At that point, I came to feel that my own view of proceedings was based on the balance of probability.  I remain of the view that Aaron Brady probably did kill Adrian Donohoe. But a conviction in a criminal court rather than a civil one requires more than the balance of probability. It has to be based on evidence that must be proven beyond reasonable doubt. Probably is not good enough. 

Aaron Brady was lying through his teeth. Nobody believes he was loading cubes of diesel waste at the time of the killing. He would hardly require an alibi from his girlfriend of the time for that. But none of his lies or the other circumstantial evidence placed him at the murder scene. He could arguably have been the person who burned the car after the murder rather than being present at the Lordship Credit Union: a solid enough reason for him to seek an alibi.

Fingerprints, DNA or forensics place a person at the scene in a way that circumstantial evidence does not. The circumstantial requires imagining him at the scene rather than actually placing him there. What placed Brady at the scene is other people not at the scene themselves but who claim Brady told them he was there. This dimension of the case would have been much stronger had the US police put a wire on Brady. If he was as loose as is claimed, an admission of culpability would have been forthcoming soon enough. Instead, witnesses whose evidence was either inconsistent or possibly the result of US police inducement, figured heavily in nailing Brady as the shooter. That Brady is such a consummate liar allows for the possibility that he was lying via bragging about his role in the death of Adrian Donohoe in circumstances where he felt free and safe to embellish the tale.

Moreover, if there was enough circumstantial to convict Brady there was an equal amount of it to allow for the inference to be drawn that one of the witnesses had been induced into giving evidence.

Much of the circumstantial pertained to Brady's links to other suspects. The suspects, even if guilty, remain nothing more than suspects for now. That Brady's links to people convicted of nothing can form part of the evidential chain seems dubious. 

The Gardai are no doubt convinced that they got their man. On the balance of probability they did get him. But it is less sure that they got him justly. Justice is not merely a result, it is also a process. As the liberal tenet has it, process justifies outcome. And if the process has been tempered by foul means to secure what is considered a fair outcome ... society gets more vengeance than justice.

⏩Follow on Twitter @AnthonyMcIntyre

Capital Murder

Anthony McIntyre reflects on the conviction of South Armagh man Aaron Brady on a charge of capital murder. 

This morning, the 16th of August, 2060, 69 year old Aaron Brady was released from prison, having served forty years of a life sentence imposed after he had been found guilty in 2020 of the capital murder of a member of An Garda Siochana, Detective Adrian Donohoe. Brady emerged from the front entrance of the prison looking pale but otherwise fit and healthy for a man of his age. Asked by waiting media if he now intended getting on with his life, he frowned, stared into the distance, and said in an almost inaudible whisper, "I have no life left to get on with."

Futuristic but not improbable given the mandatory minimum sentence of 40 years that must be imposed on the Crossmaglen man next October after he was found guilty by a jury in a Dublin court last week. Presuming the tariff is held at 40, as a result of a 2013 Supreme Court ruling he should benefit from 25% remission which would see him released a decade earlier. Hardly a lot to look forward to at this stage of a sentence. 

It is a sobering thought, without much in the way of redemption. This is a tough sentence meant to punish rather than rehabilitate. Little in the way of rehabilitation is required to prepare someone to pick up their weekly pension. Whatever message such a sentence is meant to convey, it, at the same time,  invites us to ponder the Nietzsche entreaty to "mistrust all in whom the impulse to punish is powerful." 

When the trial opened, I followed it as frequently as I could. I remembered the killing of Adrian Donohoe, thinking it a particularly ruthless and brutal act of gratuitous violence. It seemed less a robbery that went wrong than a murder that went right. For the robber armed with a shotgun, there was no intention to do anything other than kill the Garda the moment he alighted from his car.

Initially, when Brady came to trial, the case against him looked very weak. I felt the Prosecution would have serious problems getting it across the line, particularly past a jury which would in all likelihood be less tuned into a state imperative to secure a conviction in a way that a judge would be. Juries have long been a democratic foil against the authoritarian instinct of judges.

As the days grew into weeks and then months I could see the threads of evidence being weaved together into a rope that would eventually become a noose around the neck of the accused. To more than a few people I commented that Brady was goosed. So when the verdict was returned there was no great surprise. It struck me that it was the only verdict that could be returned. Then I began talking to a close friend who is pretty astute when it comes to evidentiary procedures, having faced enough of them himself. Like me, he does not belong to the Society of Angels.

He raised a number of serious concerns about the quality of the evidence, feeling that it fell considerably short of the standards that a charge of capital murder should require: the consequences being so enormous, the bar should be set higher than is the norm. He was making no defence of Aaron Brady, but pointed out the dangers of relying on the binding together of a wide and disparate range of threads, that even when pulled together left  many visibly awkward joints, something which caused the prosecutor to comment that on their own each thread amounted to nothing. His attitude seemed to be that the Prosecution case was akin to rebuilding a mirror from all the broken pieces. At the end what do you actually see in it?

At that point, I came to feel that my own view of proceedings was based on the balance of probability.  I remain of the view that Aaron Brady probably did kill Adrian Donohoe. But a conviction in a criminal court rather than a civil one requires more than the balance of probability. It has to be based on evidence that must be proven beyond reasonable doubt. Probably is not good enough. 

Aaron Brady was lying through his teeth. Nobody believes he was loading cubes of diesel waste at the time of the killing. He would hardly require an alibi from his girlfriend of the time for that. But none of his lies or the other circumstantial evidence placed him at the murder scene. He could arguably have been the person who burned the car after the murder rather than being present at the Lordship Credit Union: a solid enough reason for him to seek an alibi.

Fingerprints, DNA or forensics place a person at the scene in a way that circumstantial evidence does not. The circumstantial requires imagining him at the scene rather than actually placing him there. What placed Brady at the scene is other people not at the scene themselves but who claim Brady told them he was there. This dimension of the case would have been much stronger had the US police put a wire on Brady. If he was as loose as is claimed, an admission of culpability would have been forthcoming soon enough. Instead, witnesses whose evidence was either inconsistent or possibly the result of US police inducement, figured heavily in nailing Brady as the shooter. That Brady is such a consummate liar allows for the possibility that he was lying via bragging about his role in the death of Adrian Donohoe in circumstances where he felt free and safe to embellish the tale.

Moreover, if there was enough circumstantial to convict Brady there was an equal amount of it to allow for the inference to be drawn that one of the witnesses had been induced into giving evidence.

Much of the circumstantial pertained to Brady's links to other suspects. The suspects, even if guilty, remain nothing more than suspects for now. That Brady's links to people convicted of nothing can form part of the evidential chain seems dubious. 

The Gardai are no doubt convinced that they got their man. On the balance of probability they did get him. But it is less sure that they got him justly. Justice is not merely a result, it is also a process. As the liberal tenet has it, process justifies outcome. And if the process has been tempered by foul means to secure what is considered a fair outcome ... society gets more vengeance than justice.

⏩Follow on Twitter @AnthonyMcIntyre

23 comments:

  1. Think he sunk himself by blabbing all over NY that he did it. Was any testimony from people in the US used?

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    1. Steve - it is alleged that he did. The allegation would be much more forceful had one of the people he loosed to been wired for sound. The jury then could have had something other than hearsay. If he was so loose then recording his admissions would not have been all that difficult. And there would have been much less scope for allegations of inducement.

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  2. A strong and thought provoking piece from AM.

    Here's my take on this case: Civic society in order to function must have access to methods of censure for aberrant behaviour. Citizens, as well as those who are positioned to protect them, are entitled to protection from those who willfully violate the laws of the land.
    If we cannot collectively agree methods to maintain law and order then we can only descend further into chaos. If we're not to have a judicial and penal system, how else is society to be organised?

    Aaron Brady has received due process and has been convicted by a jury of his peers. He is likewise entitled to, and will like Graham Dwyer, Joe O'Reilly and all other citizens have the right to appeal his conviction.

    Like most responsible and decent citizens I will patiently allow that process to unfold and despite the concerns AM may, or may not have aroused for others, I for one won't loose any sleep over Brady's conviction.

    (Describing him as a 'South Armagh man' is somewhat loaded too. The opening sentence of the article would have made just as much sense without that qualifier)!

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    1. Henry Joy,

      thanks for that.

      I agree. I can see no other way for society to function which would deny it a judicial and penal system. I think a jury is necessary for the purposes outlined in the piece.

      My concern is one from a liberal perspective of process justifying outcome. A jury heard the evidence and made a decision. I find it strange to see republicans online complaining that the reason Brady got a jury trial was that a juryless trial would not have convicted him. So much for their calls to disband the Special Criminal Court.

      I don't believe the issue is jury centred, and is perhaps one of what the judge permitted the jury to consider as admissible.

      Without the US witnesses there would have been little for this case to sustain itself to the point of a capital murder finding. Yet there seems to be so much circumstantial suggesting something untoward about how the evidence was secured. If the circumstantial swings against Brady, then justice requires it swings for him when appropriate.

      The victim in all of this is the murdered Garda. But for justice to be served, then society would need to know beyond reasonable doubt that the person who fired the shot is doing the forty years rather than an associate, while the shooter goes free.

      I spoke to an elderly man just after the trial. He was gushing in his praise for Adrian Donohoe. It wasn't hype doing the rounds after his murder but genuine affection for the guy. But he did say there seemed to be so little that placed Brady at the scene. He was making no case for Brady but the quality of evidence caused him to raise an eyebrow.

      I don't think Brady is innocent. My concern is how his guilt was procedurally arrived at. Like you, I have little sympathy for him. But I remember talking with a journalist in England once about his namesake Ian Brady. The journalists said he was objecting to the way Ian Brady was being maltreated in confinement because while he was a brutal person, that did not license the system to behave wrongly toward him. The journalist's pursuit of the matter might not have been popular but it was proper.

      Finally, I didn't get the point about the use of the term South Armagh. Loaded in what way? That is what he is and its use allows diversity of language rather than repetitive use of the same adjective.

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    2. In reverse order:

      Calling him a 'South Armagh man' jarred on a couple of levels. Even though we may reconstruct ourselves, previous iterations linger on in the shadows too. There's a previous version of HJ that held 'South Armagh men' in a venerated position. Labeling Brady as such confronted me to some degree with the pain that comes along with most maturing processes and with the associated loss of innocence.
      Also somewhere in the mix were ideas and feelings, still synthesising, that Barry's last piece and my attempt to formulate a response to the substance of his position evoked.
      (I had just finished responding to him and was mulling over issues about identity and difference before I followed on to this piece).
      There was something around identity and linguistics that your phrasing piqued; about how we define ourselves and the other through language. For example how if your introductory line had read 'Anthony McIntyre reflects on the conviction of Northern man Aaron Brady on a charge of capital murder' would the matrix of both understanding and interconnections shift?

      All that may sound convoluted but these are the things that occupy my little head by times. Anyways all that'll have to go on the slow burner for now until something more coherent emerges.

      On your expressed concerns about process justifying outcomes, I just wouldn't sweat it. The taxpayer will fund, and further line the pockets of several legal-eagles as they pursue his appeals through the High Court, Supreme Court and maybe even to Europe too.

      You bleeding hearted liberals!

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    3. Henry Joy,

      I never gave how the term South Armagh might be interpreted any consideration. It has as much relevance as Carlow to me in the sense that I used it. Northern man would have done just as well.

      Process justifying outcome is not something I am going to sweat as such. At this stage I have no dog in the fight. I come at it much like I would at supergrass evidence. Is it a safe way to secure convictions? I don't believe so.

      I have long given up on consequentialism where the ends justify the means!

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    4. Now that you've long given up on consequentialism would you consider submitting an application for an idleness grant form this German University

      All applications will form part of an exhibition named The School of Inconsequentiality: Towards A Better Life, opening at the Hamburg university in November. It will be structured around the question: “What can I refrain from so that my life has fewer negative consequences on the lives of others?”

      Just asking ... LOL!

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  3. AM
    "But for justice to be served, then society would need to know beyond reasonable doubt that the person who fired the shot is doing the forty years rather than an associate, while the shooter goes free."
    That just about sums it up. Miscarriages of justice allow the real perps to go free. If you haven't watched the Netflix series The Innocence Files you should give it a watch.

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    1. Haven't watched it Peter but will try to make a point of doing so now that you have recommended it

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  4. Larry Hughes writes

    It just seemed to me at the time to be another shocking event in that area. I have zero insight but wondered as with the hay-shed bludgeoning of a young upstart, was the deliberate killing of a Garda a marker being set down. It seemed to me at the time that the Garda had been lured to his death rather than a coincidental event. It was the sense I had of the incident and who the Garda was that got shot was probably pure lottery. Who can tell? Were the Garda finally setting down a marker of their own with this case?

    I never followed the case. I was too busy swilling beers and playing riffles of the IRA and sticking up pictures of Canary Wharf and two fingers at the Brits on FB from the safety of my flat in Asia. While my neighbour (a Rangers supporter) was playing Dam Busters and Penny Arcade and other British tunes. Thankfully neither of us have been implicated let alone arrested no matter how exuberant it became. (thought he could fit the age bracket so there's a strand in his ROPE!! But this guy convicted has obviously brought attention to himself that set the forces of law and order in VERY serious motion.

    Labeling him a loose talker and a South Armagh man likely was an attempt to strip away local support for him and leave him isolated. I agree a wire tap would have been more compelling than slander. Given the resources put into the case on both sides of the Atlantic.

    No less than with the RUC during the troubles intelligence seems to be sufficient for a Garda conviction in certain cases rather than evidence. Given the number of scoundrels and sewer rats out there that should be worrying.

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  5. It's hard to watch racist/lazy/corrupt cops framing people allowing perps to reoffend. Innocents spending years inside for nothing and the US system that allows it to happen. Harrowing stuff.

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  6. AM

    Had he accepted the witness testimony and gone with the bravado defence -maybe he may have created a reasonable doubt that he was just trying to make hiself out to be a big man?

    Had he said simply said the witnesses had been mistaken -that would have been less likely to create a reasonable doubt -because how would individual witnesses make the same mistake?

    But when he called witnesses liars -he was attacking their reputations and credibility (meaning they had to be malicious and not mistaken). I guess, the jury knew beyond reasonable doubt that he was a liar, and correspondingly, he failed to raise a reasonable doubt that the witnesses accounts were false. On that basis the jury may have been satisfied that he was guilty beyond reasonable doubt??

    Peter

    You might also want to watch Netflix 'How to Fix a drug Scandle': gripping stuff.

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    1. Christy - I think there is much in that. I think the aspect of the witnesses that struck me most was the reasonable doubt about the manner in which the evidence was secured. The judge also declared one of the witnesses hostile.

      Everybody knows beyond reasonable doubt that he was lying but to me that pushes it towards balance of probability rather than reasonable doubt.

      Blaming the Gardai and the media for setting him up struck me as one of those moments when a trial can turn. Although in this case, the damage was already done.

      Because we live in the real world and not the cloistered one of a judge's chambers, I think balance of probability is what guides us in most things. And for that reason there will be few rushing to campaign on Brady's behalf, the general feeling being that if he did not get a just verdict he got one he deserved. I just thought it worth writing about and flagging up a few of my own observations.
      Glad you commented - I had wondered what your take on it had been given your ability to assess the judicial system in the round.

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  7. Christy
    Thanx I'll give a watch

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  8. AM

    No one can say at what percentage a reasonable doubt falls on; and it likely varies from case to case or jury to jury. That means it could overlap with the balance of probabilities so you are not wrong about that.

    I think his chances of winning on appeal would be slim because the CoA will always conclude that the trial judge and jury had the benifit of seeing the demeanour of the witnesses; where they cannot. Unless he can show that the trial judge misdirected the jury then the CoA will not replace the jury verdict with their own.

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    1. It is a grey area and for that reason I suppose there has to be as much objective evidence as possible. Circumstantial tends to be at the weaker end of the objective spectrum.
      That has been my own view - without a finding of misdirection or a finding of having ruled admissible what the COA feels should have been inadmissible, there is little chance of a successful appeal.
      I can't see too many taking to the streets to protest the outcome of this one.

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  9. "No one can say at what percentage a reasonable doubt falls on; and it likely varies from case to case or jury to jury. That means it could overlap with the balance of probabilities so you are not wrong about that."

    I don't see how beyond reasonable doubt and balance of probabilities can overlap. The balance of probabilities merely means it is more likely than unlikely. Beyond reasonable doubt is always a higher threshold. It means not only is it more likely but it is so likely there is no reasonable doubt that it happened.

    I can see how beyond reasonable doubt passes the balance of probabilities threshold but as a threshold balance of possibilities is always lower. They don't overlap, one is merely an easier hurdle to pass than the other.

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    1. Simon - I think in the mind of people they can. People can convince themselves beyond what they think is reasonable doubt by the balance of probabilities. What you say should logically be the case but in the real world it is not so simple.

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  10. Each indivdual piece of evidence doesn't have to be accepted beyond reasonable doubt but the jury should be directed that if they have a reasonable doubt after considering all the evidence they should find the defendant not guilty. The jury gets direction on what is sufficient.

    It is the final outcome which needs to pass the hurdle of beyond reasonable doubt which means if the jury has a reasonsble doubt even if it's unlikely they may not convict him.

    I also understand that you can't have justice without injustice and people have probably decided someone's fate on balance of probabilities, or because of someone's skin colour or their accent but without actually sitting through a trial as a member of that jury it is difficult to make a judgement on the outcome even with careful reading of all that was reported.

    Remember if a case was to be decided on balance of probabilities it woukd take quite a few jury members to be erroneous in their understanding of what was expected of them.

    Saying that, 40 years is a heavy sentence and judging by severe sentencing in the United States it is unlikely to be a deterent.

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    1. Each individual piece of evidence was described by the Prosecution as amounting to nothing and the verdict had to be fashioned from drawing all the circumstantial threads together.
      I just wonder if it was posssible to draw those threads into a rope so tight it left no reasonable doubt wriggle room.
      As you say the jury heard the lot and we can't start trying to upend trial by jury because it reaches a verdict that might not be flawless. I think we discussed jury verdicts in the case of the Belfast Ruby Rape trial. I just found it strange to see some republicans online claiming that Brady would have got a more fair trail without a jury. That would hardly be our experience of Diplock.

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    2. The big change after the introduction of Diplock Courts was the changes in the rules of evidence. Because it took less robust evidence to bring a case, more republicans ended up in court. However, if the jury trials were still in place the same number of republicans would've ended up before the court.

      Although we witnessed a dramatic rise in numbers before the court the proportion of those convicted under Diplock courts was the same as under the jury system beforehand. As I say, the big change was in the rules of evidence. Republicans, once they reached trial were just as likely to be found guilty under a Diplock judge than with a jury. I have seen the percentages.

      Juries tended to be overwhelmingly Protestant and found the same proportion of Republican defendants guilty as a judge. These overwhelmingly Protestant juries tended to favour loyalist suspects who went to jail in propotionately less numbers than Republicans. Under Diplock, a bigger proportion of loyalists were convicted.

      Whether a jury or a judge, republicans went to jail in the same proportion. However, the numbers who were charged went up due to the changes in the rules of evidence.

      Loyalists were worse off under Diplock because, not only did the number on trial go up, due to the changes in the rules of evidence but a bigger proportion of those who reached trial were convicted.

      It's a peculiarity of the system. However, republicans were more likely to be arrested, more likely to be charged, more likely to be brought to trial, more likely to be convicted, more likely to receive a heavier sentence and less likely to see early release. Until relatively recently, this was also true but to a lesser extent, for Catholic "ordinary decent prisoners" as the screws name them. I haven't seen recent statistics but know they were trying to address this.

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  11. Great stuff Simon which I think reinforces the point I made that there is no reason for believing a non Jury court would have given Brady a fairer hearing. Diplock had a hopeless bias towards security force personnel who came up in front of it. I think with the exception of two cases everyone else was acquitted. And of the two one had the verdict overturned. That's my memory of it anyway.

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    1. In my view you are 100% correct, a judge would have to be more lenient than the man's peers, which in this case doesn't seem likely. There is absolutely no evidece pointing in this direction, although I caveat that by saying I didn't follow the case closely.

      The public mood can have a big impact on jury thought processes as well as a judge's but nevertheless there is something to be said for having a jury hear your case. It is a human rights issue and if there are problems with interference they should put safeguards in place, not throw the baby out with the bathwater.

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