THE LIFE AND death of Ms Elaine O’Hara is an extremely sad and harrowing tale. She was a beautiful human being who led a troubled life that should not have been capped by a lurid trial in the criminal courts; and I hope that her family can go on and remember her for far more than she might have been distilled into as a victim described for the Irish people through the writings of court reporters.
Every now and again a criminal case comes along in this country, as in any other with a fair and open justice system, which catches the public attention. The trial of Graham Dwyer for the murder of Elaine O’Hara featured details, and even video clips, of nonstandard and violent sexual fetishes; detailed private text message correspondence; and a major element of whodunit, with circumstantial evidence woven together to make a prosecution case rather than a clear and undeniable smoking gun being provided.
This case attracted a huge audience
The evidence presented provided a narrative that vacillated as the days wore on. As Judge Tony Hunt himself pointed out in his summing up to the jury, at the end of one day of evidence Mrs Dwyer identified a key item of evidence, a spade, as belonging to Mr Dwyer and it seeming like “game, set and match” in terms of the case. The following day a forensic scientist gave evidence that cast doubt on that assertion.
Though media comment on the case has been impossible until a verdict was reached, it clearly attracted a huge audience and prompted much discussion between individuals. It is safe to say that Graham Dwyer is a near-household name in Ireland today as a result, and the topic has been discussed on many bar stools, in a multitude of workplaces and around a great number of dinner tables. In the courtroom itself there was an overflow of visitors to the public gallery on several days, and arguments even broke out amongst people on one of the final days of the trail as to who got what seat.
The life and death of Elaine O’Hara is not entertainment
In a functioning democratic society, the justice system must be fair and open. It must be so fair that even the most heinous criminal, found with the most smoking gun in their hands at the scene of the crime, must receive an acquittal if there is some mitigating fact that casts reasonable doubt on their guilt. Justice must be as open as practicable to ensure that its functioning is held to account and upholds the standards of that fairness.
The Graham Dwyer trial, however, also highlights why some cases should probably be held in seclusion until a verdict is reached.
For one, it is the job of the prosecution and the defence in a case of this nature to spar relentlessly in a back and forth that can be quite entertaining if you are inclined to follow it as if it were a work of TV fiction. This is not entertainment, however, and we in the public received daily doses of the life and death of Elaine O’Hara that kept many hanging on for the next bit of back and forth.
Respecting the victim
As a senior counsel for the defence, Remy Farrell, pointed out to the jury, the public perception of Graham Dwyer would have “the media and every bar stool juror” urge them to convict. This, he feared, would make it unpopular for them to acquit and could affect their impartial judgement of the facts of evidence in front of them, which is all a jury is supposed to consider. Thus, the outcome of the trial could be affected by public sentiment arising from reportage that, otherwise, is not necessary for the conduct of the trial.
Apart from the insistence that all court proceedings be held in public, which they are not in other types of cases, there is good cause to argue that the media be deprived of real-time entertainment in certain cases, and be limited to reporting after the jury has deliberated and delivered a verdict.
This would remove the alleged pressure on the jury to convict as the court of public opinion might, and also remove much of the heat from the reporting that might sully or bury the memory of Ms O’Hara.
What harm would have come to the justice system?
Then there is the matter of Mr Dwyer himself. As he has been found guilty one feels that there is little to say in mitigation of the public trial by media he has endured in parallel to his jaunt in the criminal courts. This case could have gone either way, however, and there are many other cases like it where reputations are tarnished for people later acquitted.
One must take a case like this and consider it not for the man in question, but for the principle of ensuring that everyone gets a fair trial; and that if there is a possibility of their acquittal, that it be a wholesome one and not a legal one ignored in the court of public opinion.
I would say that any appeal being considered will seek to use the media coverage and widespread opinion on the case to seek an overturning of the verdict on the basis that the jury may have been influenced by the circus around them.
Fundamentally I wonder, what harm would have come to the justice system had the details of this case been held by the media until a comprehensive report could be written of the event in its entirety? I am aware it’s a move away from convention and I am also aware that it should only be used in special cases likely to attract the full circus as this one has. But I feel that both the workings of the justice system and the dignity of Elaine O’Hara would have been better preserved had we kept it off the front pages day after day for several weeks.
Aaron McKenna is a businessman on columnist for TheJournal.ie. You can follow him on Twitter here.
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