US embassy cable - 05DUBLIN1372

UNCLAS SECTION 01 OF 02 DUBLIN 001372 
 
SIPDIS 
 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: PREL, MARR, MOPS, EI, FAB5 
SUBJECT: TRIAL OF SHANNON WAR PROTESTERS COLLAPSES FOR 
SECOND TIME 
 
 
1.  The jury hearing the case of the "Fab 5" was 
discharged November 7 after legal argument over whether a 
perception of bias could be made against the judge. 
Earlier in the trial, the judge had ruled that "legal 
excuse" would not be acceptable as a defense. He thereby 
eliminated the defense's best argument.  Subsequently, 
the defense claimed that events Judge Donagh McDonagh had 
attended in the U.S. could give the impression of bias. 
Specifically, the defense cited a conference in Texas in 
the 1990's in which the judge and other attendees were 
photographed with then Governor Bush. Defense also cited 
the judge's attendance at President Bush's inauguration 
in 2000 and invitation to attend the 2004 inauguration. 
The defense said these events could give the appearance 
of bias, given that the Fab 5 attacked the plane to 
protest U.S. policy.  The judge said he would not give a 
detailed analysis of his social history in open court, 
but after a private meeting with the counsel, he 
dismissed the jury.  The Director of Public Prosecutions 
must now decide whether to bring the case to trial for a 
third time. 
 
2.  This is the second time a jury was dismissed in this 
case.  The first trial was abandoned when Judge Frank 
O'Donnell withdrew it from the jury on the sixth day of 
the trial.  Yesterday was the 10th day of the second 
trial at Dublin Circuit Criminal Court. 
 
3.  Below is the text of the article that appeared in the 
November 8 edition of the Irish Times. 
 
BEGIN TEXT 
 
The second trial of five anti-war protesters accused of 
damaging a US aircraft at Shannon airport has collapsed 
after defence lawyers suggested the judge had been 
invited to both of George W Bush's presidential 
inaugurations and attended the first one in 2000. 
 
The first trial was also abandoned when Judge Frank 
O'Donnell withdrew it from the jury on the sixth day of 
the trial. Yesterday was the 10th day of the second trial 
at Dublin Circuit Criminal Court. 
 
In the absence of the jury defence counsel asked Judge 
Donagh McDonagh to confirm whether he had, as a barrister 
in the mid-1990s, attended a conference in Texas which 
involved a photo call with the then governor, George W 
Bush. 
 
Counsel also suggested that Judge McDonagh was invited to 
both of Mr Bush's presidential inaugurations and attended 
the first one in 2000. Michael O'Higgins SC suggested 
that the 2004 invitation was "extended by Mr Tom DeLay, 
who has had recent difficulties". 
 
Roderick O'Hanlon SC told Judge McDonagh that matters had 
been brought to the attention of the defence team which 
could lead it to ask the judge to disqualify himself from 
handling the trial as they touched on issues relevant to 
the trial. 
 
Brendan Nix SC said it was not a question of "actual" 
bias but the "perception of bias". 
 
Mr O'Higgins said the defence was not attempting to argue 
that any decision made by Judge McDonagh had been 
affected by the information. 
 
He said the trial process should "be seen to be 
untainted" and the "purity of the system must be to the 
fore. The personality of George W Bush is part of this 
trial whether one likes it or not," he added. 
 
Judge McDonagh said that he would not "give detailed 
analysis" of his social history in open court and said 
that counsel could speak to him in the privacy of 
chambers.  Judge McDonagh then rose for around 15 minutes 
before returning to withdraw the case from the jury. The 
judge said that matters had arisen in its absence and he 
had "no option" but to withdraw the case from it. 
 
The five accused, who have pleaded not guilty to two 
counts each of causing damage without lawful excuse to a 
naval aircraft, property of the US, have been remanded on 
continuing bail until this Friday, when the case will be 
mentioned in court. 
 
Judge McDonagh did not respond to questions from The 
Irish Times last night about whether he was invited to, 
or had attended, the inaugurations. 
 
END TEXT 
 
3.  Embassy officials are attempting to get further 
information from the GOI and will be reported septel. 
 
KENNY