Saturday 22 October 2016

Dearbhail McDonald: Sights and sounds you can never erase

Published 27/12/2015 | 02:30

DEPRAVED: The trial this year of Graham Dwyer piqued public curiosity like no other
DEPRAVED: The trial this year of Graham Dwyer piqued public curiosity like no other

The most experienced reporter can still be distressed by evidence heard in court.

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Every so often, I am asked which of the legal cases I have covered in this writing life has 'got to me' the most.

I try not to think about it, in part because covering the courts requires professional skills of objectivity and of detachment. I also detest the cult of prurience as well as the galling hierarchies that can surround certain trials at the expense of lesser publicised, but not any lesser griefs.

It's human nature to be fascinated and appalled by what William Golding in Lord of the Flies describes as the innate savagery of man.

Just think of murderer Mark Nash, serving not one but two double life sentences. Or think of the grim yet utterly engrossing murder trial of Graham Dwyer, 2015's criminal law blockbuster.

You can't unsee or unhear much of what you bear witness to in court: you can equally be triggered even if you never step foot inside of one.

I've learned, I think, how to process what our friends in America call vicarious or secondary courtroom trauma.

However, there are sights and sounds you can't erase, images and scenes that won't release you from their grip.

Sounds like the anguished cries of the parents of two little girls (aged six and nine) as the man who subjected their babies to a violent rape ordeal received two life sentences.

On that day in March 2014, the cries of the parents were accompanied by the tears of others including lawyers; gardai, journalists, prison staff - my own, too - as the father of one of the girls read a poem in his daughter's honour.

Earlier this month the rapist, whom I hope will one day be named to protect the public, thankfully lost an appeal against the severity of his life sentences. But I often think of those little girls and their families and pray they will recover from such an inconceivable experience.

The trial of Graham Dwyer, whose appeal will be heard next year, was also in a deeply depraved class of its own.

Dwyer's trial piqued public curiosity like no other as it had what the late High Court judge Ms Justice Mella Carroll referred to in the Catherine Nevin trial as "themes emerging of fictional characters or plots from an airport novel".

Except it was real.

In the past, evidence read in court, such as post mortem results or forensics from the garda technical bureau, led us to imagine what might have happened to a victim. This scientific evidence can, however, serve to insulate or keep us at some remove from the victim's final hours or moments.

But the forensic reconstruction of the final year of Elaine O'Hara's life was beyond words.

The garda investigation led by Detective Sergeant Peter Woods, with its incredible recall of incriminating material gleaned from computers and phones - even those submerged in a reservoir for almost a year - brought us into Dwyer's debased mind and Elaine's lonely heart.

Through technology, including deleted documents, CCTV and texts - even a runner's app - we were brought on Elaine's final journey from her bedroom in a mental health facility to a horrendous death on Kilakee Mountain.

Of all of that courtroom trauma, including the showing (with members of the public excluded) of home-made videos of Dwyer stabbing and pretending to stab women during sex, it was the detail of Elaine's final journey which has stayed with me.

When asked which case 'got to me the most', people assume it is the Dwyer case - perhaps they're right.

But I was also deeply affected by last Christmas's 'life-support' case which led a three-judge divisional High Court to sit on Christmas Eve and St Stephen's Day to determine the fate of a young, brain-dead mother in the early stages of pregnancy.

There are many images that haunt me and my colleagues about the case we covered last Christmas in a cold and bleak courtroom in the Four Courts.

There was the quiet dignity of her father as he told of his distress at seeing his daughter's chest slowly rise and fall, knowing that she was dead. Or her two small children brought in to see their mother with an open wound in her head where fungus was growing, and being told the nurses were looking after her until the angels appeared.

One medic testified that the young woman's brain was liquefying and pouring toxins into her bloodstream.

Another broke down as he spoke of a little girl with painted nails who was fully dead.

The image that haunts and angers me the most is a scene recounted by a consultant neurologist who treated the woman at the hospital where she was pronounced dead.

He sought legal advice on what to do (as his clinically dead patient was pregnant) but none was forthcoming.

Like some obscene, Paddy Irishman joke, the neurologist told the High Court how he and two colleagues found themselves in a room trying to figure out Article 40.3.3 of the Irish Constitution.

This is the Constitutional provision which impossibly - because when rights collide, a hierarchy inevitably prevails - gives due regard to the equal rights to life of an expectant woman and her foetus.

Did you hear the one about the three doctors in a room trying to figure out the Eighth Amendment?

The medical evidence in the case, harrowing though it was, was unequivocal.

The woman had died at 15 weeks gestation and the foetus was facing nothing but death and distress. This allowed the judges to approve the cessation of somatic life-support without fear of offending the Eighth Amendment.

Back in the newsroom late last Christmas Eve, my news editor asked me if it was necessary to include certain details, such as the liquefying brain, the waiting angels and the painted nails?

I argued, with a heavy and reluctant heart, that it was.

It was necessary to illustrate how we have created a crippling climate of fear and uncertainty where some of the country's leading medics felt they could not exercise their clinical judgment in the best interests of their patients and their grieving families.

I said that the public must know of the chilling impact of legislative inertia and failed political leadership by successive governments who leave it to unelected judges to do their job. That they must know that it 'comes to this' when we create a culture of vitriolic censorship around women's healthcare and autonomy.

The Eighth, whose potential repeal has politicians running for the hills, has cast a long pall over Irish social and healthcare policy.

Our failure to confront the Eighth and articulate fully the legal status of the foetus means we have no functioning laws governing not just abortion - the 2013 Protection of Life During Pregnancy Act is utterly unworkable and we also have no adequate laws for issues such as IVF, surrogacy, stem cell research and other pressing ethical, legal and medical issues.

Having spent last Christmas Day with my family discussing my wishes should I ever find myself in a similar scenario to Miss P, my hope for 2016 is that we can finally have a mature, inclusive and compassionate conversation around the Eighth and the many and varied situations our women find themselves in when they face a crisis pregnancy.

It won't be easy, but we can not shirk our responsibilities for another generation.

Sunday Independent

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