David Randolph Smith

A Dark Past Repeated

History repeats itself. The travesties of justice and abuse of human rights that marked the response of the British to the IRA in the 1970s have an eerie parallel to the present. In our zeal to convict criminals and catch terrorists, U.S. prosecutors and officials have misused "scientific evidence" in court and mistreated prisoners at Guantanamo and Abu Ghraib in a manner all too reminiscent of the infamous 1974 Prevention of Terrorism Act and the trumped up science used to convict the Guildford Four and the Maguire Seven. For a riveting account of the denials of justice during this period (be prepared for human rights abuse deja-vu) read Guildford Four-member Paul Hill's biographical account, Stolen Years, Before and After Guilldford (1990). When I recently read this book, I was struck by its relevance to a recently decided New Jersey case and the prisoner abuse scandals at Guantanamo and Abu Ghraib.

  • Dark Science. On October 75 1974 the IRA bombed two English Pubs in Guildford, England killing seven people and injuring many others. Three young Irish men (Paul Hill, Gerry Conlon, Paddy Armstrong) and Armstrong's English girlfirend, Carole Richardson (the "Guildford Four") were accused of being in an "IRA terroist cell" and were convicted of the bombings in 1975 despite the absence of any witnesses or physical evidence. In 1977 an appeal was rejected because "scientific evidence" of the detonation devices used in the Guildford bombings showed a "pattern" consistent with guilt. This evidence was bogus and after 15 years in prison, in 1988, the convictions of the Guilford Four were overturned. Daniel Day Lewis' film, In the Name of the Father, based upon Gerry Conlon's 1990 book, Proved Innocent, recounts this travesty of justice. Similarly contrived "scientific evidence" (Thin Layer Chromotography) was used by English courts to convict and imprison the Irish "Maguire Seven" in 1976 for possessing bomb-makingmaterials (nitroglycerine). Gerry Conlon's father, Giuseppe Conlon, was among the Maguire Seven and was wrongly convicted using the TLC test. He died in prison. This "science" was later repudiated and the convictions of the Maguire Seven were quashed in 1991.
    • Could it happen here? In State v. Behn, No. A-2062-03T3 (N.J. Super. Ct. -- App. Div. Mar. 7, 2005) a New Jersey appellate court reversed a murder conviction that rested on FBI comparative bullet lead analysis, remanding for a new trial. "The integrity of the criminal justice system is ill-served by allowing a conviction based on evidence of this quality, whether described as false, unproven or unreliable, to stand," says the appellate opinion. The claim of the FBI expert used in the case was that every batch of lead was unique. The defendant's sister was unrelenting in her efforts to prove that the FBI's test was bogus. She succeeded. The State prosecutor had argued that the the FBI bullet lead test meant bullets found in the defendant's possession came from the "same compositional group" as the bullets that killed the victim, and stated that there was a 99.9987% likelihood that the bullets "came from the same lot." The court found this "scientific evidence" was unproven and unreliable. Hundreds of criminal cases nationwide are now in question given the rejection of the validity of the CBLA test used by the FBI to analyze bullet lead. See "FBI Bullet Test Misses Target," National Law Journal (April 4, 2005) (subscription required).
  • Terrorism. In 1974, the Birmingham and Guildford pub bombings led to the Prevention of Terrorism Act (PTA). This Act extended the reach of anti-terror law beyond Northern Ireland to the whole of Britain. It gave the power to routinely stop and hold people for up to seven days without resort to a court. The right to remain silent was removed with the introduction of a charge of withholding information. Paul Hill of the Guilford Four was the first man held under its provisions. He served 15 years for a crime that he did not commit.
    • The lessons of the British reponse to IRA terrorism are keenly applicable to Guantanamo and Abu Ghraib. A top lawyer for the state Department, William H. Taft, IVThe USA Patriot Act, now under review for renewal of certain provisions, allows federal agents to use "secret warrants," roving wiretaps and to search library records. The "sneek and peek" warrant was used to search an Oregon lawyer's home (who was mistakenly arrested in connection with the Madrid train bombings--a mishap that also involved the improper use of "scientific" fingerprint identification evidence). The New York Times reports, in "Justice dept. Defends Patriot Act Before Senate Hearings" (April 5, 2005) there is a growing use of secret search warrants and numerous civil rights groups have called for provisions of the Patriot Act to be scaled back. As Santayana said, "Those who cannot remember the past are condemned to repeat it."