A secret, “liquid gold” recording captures a US special agent “unashamedly” coercing a suspect to put Aaron Brady “in the frame” for murdering a Garda and was wrongly withheld from the trial jury, a barrister has told the Court of Appeal.
Brady (32), who was jailed in 2020 for a minimum of 40 years for the murder of Det Garda Adrian Donohoe, is bidding to overturn his conviction before the Court of Appeal.
On the third day of the hearing before the three-judge appeals court Michael O’Higgins, for Brady, said the trial court erred in refusing to allow the defence introduce into evidence the tape recording of a conversation between another suspect and special agent Matt Katske of the US Department of Homeland Security.
Mr O’Higgins submitted that the tape came as near to “suborning” [inducing them to commit perjury] a witness as it is likely to get. Counsel said the defence wanted and needed to get the tape into evidence in the case and it should have gone before the fact-finders of the trial to show there was a significant deficit in the State’s case.
The lawyer said the trial judge had been presented with something that was “virtually unprecedented”, where a law officer “unabashed and unashamedly” turned the screw to nominate Brady for an offence with a mandatory minimum sentence of 40 years and that Suspect A had been “poked and prodded” to provide that.
Mr O’Higgins previously argued at trial that the jury needed to be aware that special agent Katske behaved in this way so that when they looked at the evidence of Daniel Cahill “they will know what they are dealing with”. Mr Cahill gave evidence that Brady told him on three occasions that he had shot a garda but the defence claimed that Mr Cahill may have been pressurised by Homeland Security with the threat that he would be deported if he refused to give a statement to gardaí.
In opening Friday’s submission to the three-judge panel, Mr O’Higgins played the recorded conversation between Suspect A and special agent Katske in which the officer can be heard saying: “I want to know people who know Aaron Brady admitted doing it, then I can offer things once I have that, until I have that I can’t offer anything.”
Counsel added: “That is a very telling comment as it makes clear if in the dealing ring you have to first out people who know Aaron Brady had admitted it, if you don’t have that golden ticket then you’re not in the dealing ring”.
Mr O’Higgins said this was very “improper bargaining”. “The power of an inducement is linked to a person in authority and this person is parading their authority in lights,” he said.
Mr O’Higgins said the “money shot” in the recording was when agent Katske told Suspect A “my goal is Aaron Brady, I want to be clear on that”.
The defence wanted to introduce the tape recording as evidence into Brady’s trial that Suspect A for the robbery spoke to special agent Katske in July 2017 at Belfast Airport. Mr Brady’s lawyers said that the special agent, who was at the time attached to the American embassy in London, appeared to offer help with citizenship in return for information that would convict Brady.
Suspect A’s brother was under threat at the time of being sent home from the US. In the recording, which was carried out covertly by Suspect A, the special agent can be heard saying: “He’s being removed, he’s going home. I can find plenty wrong with his paperwork. If he puts Aaron Brady away, you will probably never hear from me again ... I can’t do anything for him until he commits to doing something for us in this case.”
Retired former detective inspector Pat Marry told the trial during legal argument that he first heard of the recording after Suspect A sent it to special agent Katske who then passed it on to him.
Mr Marry said he had not told the special agent to approach Suspect A or anyone else with offers in return for statements. Mr O’Higgins for the defence said that if Mr Marry is to be believed then this was evidence of a “maverick” agent behaving in a “bizarre and inappropriate manner” taking it on himself to enter into a bargain in return for evidence against his client. He said the agent indicated there were “great prospects available” for anyone willing to make statements against Brady.
In that context, Mr O’Higgins said it was necessary for the jury to hear about what was said to Suspect A at Belfast Airport. However, Mr Justice Michael White refused to allow the tape to be played in front of the jury and refused to allow Mr O’Higgins to question agent Katske about it.
The trial judge said the issue was a collateral one and that Daniel Cahill and special agent Mary Ann Wade had said repeatedly when cross examined in front of the jury that no inducements were offered in return for Mr Cahill’s statement.
Mr O’Higgins for the appellant further submitted that the tape showed two sides of the same coin, namely inducement and threat. “A threat that [Suspect A’s brother] will be going home and an inducement that if he gets information to put Aaron Brady away then he can help [Suspect A’s brother’s] problem,” said Mr O’Higgins.
The appellant also claimed that the manner in which Homeland Security worked with An Garda Síochána was unique and unprecedented; nothing to do with enthusiasm as the prosecution had contended. “I characterise it as an attempt to subordinate, one of the most blatant attempts to put someone in jail for a crime, where agent Katske was invested in securing an actual conviction,” he stressed.
These were matters, Mr O’Higgins said, that the defence ought to have been allowed to ventilate before the jury to show how statements were being obtained and as to whether there was any inducement. He said it was for the jury to determine whether Agent Katske was acting on his own initiative or officially.
“What on earth is going on here?” asked the lawyer. The barrister called the tape recording – which the defence said displayed agent Katske’s unsanctioned and unauthorised behaviour coercing a witness to give a particular form of testimony – “liquid gold”. He said it was the “placing of the bait” which was significant in this instance and that people were “being put up” to put Brady in the frame.
In reply, Dean Kelly, for the Director of Public Prosecutions (DPP), said the tape did not have the relevance that the defence had contended. He said the appellant had invited the Court of Appeal to adjudicate on what agent Katske was doing when he travelled to Belfast that day and submitted that this was not an aspect of the trial which fell on the DPP to stand over.
The appeal continues on Monday, when it is expected that the appellant will raise a complaint regarding witness Molly Staunton who gave testimony via video link from New York during Covid-19.