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Public representativesRecording of US agent ‘coercing’ suspect into putting Aaron Brady in frame for murder ‘withheld’ from jury, court hears
Claim about ‘secret’ recording being kept from jury made by barrister for Brady during appeal against murder conviction
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.
Here is the script organized with the speaker names changed as you requested:
Belfast Airport Recording
**J Flynn:** This is ... this was ... Okay, so after that thing happened, the witness statement, and then they said that, “Oh, [unclear 00:07] and it’s missing [unclear],” obviously, because I don’t remember every single thing I’ve done yesterday, never mind. So, I say, “Okay, well, let’s meet, but I’m not ... I’m not meeting you in a gas station.” I said, “Well, we’ll have a chat. You can ask me whatever you want.” My brother was there, because he was with me.
They wouldn’t ask me the direct questions they want to know. Instead of doing ... They wanted to be the detectives that they are instead of just being upfront. Detectives use ... I don’t know if you are detectives or what your role is, but I know detectives ...
**Katske:** [Unclear 00:35]
**J Flynn:** The question people in a way ... in a different way ... You know how it works. They don’t ask you the direct question. They ask you the question six different ways.
**Katske:** Sure.
**J Flynn:** And I just ask them, "Look, just ask me the question ..."
**Katske:** Trying to sync the mind.
**J Flynn:** "... that you want to ask me."
**Katske:** Sure.
**J Flynn:** "Be upfront with me. Just ask me, 'Jimmy, were you there?' Then I would tell you yes or no." You know what I mean? Just a simple ask. But I've already said it on record, on oath ... on their oath, on the hard court case. Because your prosecutor asked me the question was I involved in at any ... What did he say? Did I commit any crimes or something.
**Katske:** Which was obvious to you that that's how this all comes about.
**C Flynn:** Yeah.
**Katske:** I will say I don't know everybody that the guard even claims was there. I mean, they’ve given me the names, but I’m saying I haven’t looked into everybody’s life that they claim [unclear/voice too low and distorted 01:23]. But I do believe for sure that there's one guy there that doesn't think it was a mistake, and that's Aaron Brady. I would bet everybody else is not happy with the way that day went down. Aaron Brady I think loves it.
**J Flynn:** You know the ... you know from looking at people and talking to people.
**Katske:** Absolutely.
**J Flynn:** That's why you have this guy here as well, he's probably reading ... trying to read my facial expressions. I know how it works. You know what I mean? But ... And you probably ... this is probably why you're so confident with Aaron because when you obviously talked to him or whatever.
**Katske:** Didn't go like that.
**C Flynn:** Oh, you did try and talk to him?
**J Flynn:** He was there.
**Katske:** Oh, I was there for the arrest.
**J Flynn:** Yeah, they obviously go and talk ...
**Katske:** I was there for an interaction.
**J Flynn:** He's probably been asked about 50 times already since ...
**Katske:** I was there for an interaction.
**C Flynn:** How was he?
**J Flynn:** And probably ... his cellmate's probably [unclear 02:06]
**Katske:** Aaron's a difficult guy, right? Well, so if you come talk to me and you act like a human being and we sit there and talk and you don't start pointing out, "Well, it was that guy, it was that guy, it was that guy," that tells me, "Maybe it was you." If you're saying, "It was that guy, that guy, that guy, that guy, that guy ..." Yeah, it could have been ... it could have been everybody other than him, right? And the people he's naming, I guarantee when I talk to every one of them, they're going to say, "It’s Aaron Brady," or nothing. But they're not going to say no one ...
When I talk to everybody else that he’s saying here, they will not say, “It’s one of those other people.” So, if he says it was Anthony was there, Jimmy was there and Colleen, and I go talk to Jimmy and Colleen, I think none of them are going to say the other two ...
**J Flynn:** I'm just going to save your number on my phone [unclear 02:50]. I don’t want you to think that [unclear 02:51]
**Katske:** So, I just ... I do think that maybe one of the easiest ways to help and start this is finding other people. Whether ... They could be here too. They don't have to be in New York or Boston, but ...
**J Flynn:** There's another slight problem with all this as well, is it's not really a problem but it's just a situation really for me. It's a situation kind of thing. From where we come from you can get a bullet for telling sort of shit.
**Katske:** I know. That border region's tough. I know. I don't know ...
**J Flynn:** Yeah. That's why there's so many problems with all these cases.
**Katske:** Well, one thing I offer though is being in the United States would stop that.
**J Flynn:** Being in the United States, yeah. Of course, that's why I want to take into consideration. I'm not saying if I know something or don't know something. I just ... I'd love to think about it.
**Katske:** Well, let me follow up on that. So, if you know people, maybe in border region or whatever, that know Aaron and Aaron has spoke about this and they want to come to the United States and have a way ... but they’re willing to testify, but I need to get them protection and get them out of that.
**J Flynn:** Of course.
**Katske:** I'm here to talk about that. That's what I want to know. I want to know people that know Aaron Brady has (admittedly?) doing it, and then I can do ... I can offer things once I have that. Till I have that, I can’t offer anything.
**J Flynn:** And what I want to say to you as well as matter as like ... whether I do or do not know something, if somehow over the next week that I hear someone send something to me and know about it ...
**Katske:** Yes.
**J Flynn:** ... I have no problem telling you who it is.
**Katske:** Please.
**J Flynn:** Because I don't ... I want this off my back.
**Katske:** And people are talking right now, because it was just ... it’s in the papers, it’s in everything.
**J Flynn:** Of course, it’s just ...
**Katske:** So, there is talk going on right now.
**J Flynn:** Everybody knows. Once the guards release something to the papers, it gets everybody talking again.
**Katske:** That’s right.
**J Flynn:** Gets the phones going, gets social media going. We know the way investigators go. You know what I mean? We’re from South (Carolina?), this is ... We’re born and raised ... We’re taught everything. You know what I mean? This is how we’re taught, but it’s just ... Let me sleep on it. I’m not saying that I can or cannot help you on that right now.
**Katske:** I understand. I understand.
**J Flynn:** I know what your offer is.
**Katske:** [Unclear 04:48]
**J Flynn:** I know what your offer is not ... not going to be there all for the next six years or two months or 24 hours.
**Katske:** No, I want to speak to you before you leave.
**J Flynn:** Yeah, of course.
**Katske:** I do. And I’d like to speak to you next week if possible.
**J Flynn:** Well, you know what? [Unclear 05:04], I’m here for ... I’m here for 10 days so ... Something like that there, yeah. But I might be traveling to the UK for a day or so.
**Katske:** No problem, these are short flights.
**J Flynn:** Yeah, short flights, so ... But I will be back. If I go there, I will be back.
**Katske:** I’ll be in the States, I’ll be in the States.
**J Flynn:** You’ll be in the States next week or here?
**Katske:** Oh, no, no, not next week. But I’m going to be in the States regularly, I work there.
**J Flynn:** Of course you are, you work on this case.
**Katske:** I mean, there’s stuff. A lot of it’s going on in New York and Boston.
**J Flynn:** Of course.
**Katske:** So, I’m overseeing that.
**J Flynn:** I know ... I know this has been going on for a while. I know that ... that they’re trying their hardest to build a case to take my citizenship. I know that. I know. They wouldn’t ask me that on the stand. He wouldn’t. I haven’t ... I’m not going to say I ... I
know somebody who knows somebody who can tell me stuff as well to put it that way. United States, you get a lot of connections when you’re over there. So, that’s all I’m saying to you.
**Katske:** I understand.
**J Flynn:** But ... So, I know and Eugene knows.
**Katske:** I’m going to talk [unclear 05:56]
**J Flynn:** That’s why we have good attorneys for that there and for his case. But, honestly, he’s ... he’s not ... he ... whatever is ... Well, that gets a little BS, because he never ... any ... he never did anything wrong in that case, so ... But I’m going to be a witness there, because I know what happened.
**Katske:** Wait, what are you talking about?
**J Flynn:** Eugene’s case.
**Katske:** Oh, Eugene. Oh, in Boston. In Boston, right.
**J Flynn:** Unless they have the judge ...
**Katske:** I’m not involved with that by the way.
**J Flynn:** ... the judge under the table, there’s no way you can be ...
**Katske:** I’m not involved with that by the way.
**J Flynn:** Yeah, but I think I ...
**Katske:** It’s not even a federal crime. He’s facing state charges for that.
**J Flynn:** Of course, but if he gets convicted, he loses his green card.
**Katske:** No ... You know it’d be horrible for him. Right, yeah.
**J Flynn:** Yeah, of course. Because ...
**Katske:** Unless ...
**J Flynn:** The homeland security was there, in that day.
**Katske:** Unless I can step in on it. Unless I have a reason to step in on it. But if you guys don’t give me a reason to come forward and stand up for Eugene, how do I stand up for Eugene?
**J Flynn:** But, like, see, there’s so many obstacles in the way. Because you guys have to have an open mind because ... even I’m just going to have to remembering or something, is whenever them homeland security guys, I don’t know if it was you or who, you know, one of your colleagues, came to the trial in Quincy courthouse [unclear 06:57]
**Katske:** It wasn’t me. But a guy that works with us.
**J Flynn:** Well, whenever he came he told that prosecutor, because we ... I ... again, I have connections as well. He told the prosecutor, “These are bad guys. Get them out of here.” You got to have an open mind. If you’re going to come and tell us we’re bad guys without even ... even hearing what we have to say.
**C Flynn:** We’re innocent until proven guilty.
**J Flynn:** Yeah. Not guilty until proven.
**Katske:** Yeah. No one’s going to ... No one’s ... Nothing’s happening [unclear 07:18]
**J Flynn:** But that’s what your colleague said to the prosecutor.
**Katske:** So, that’s not good, and I’m not happy about that. But nothing ... but still ... The prosecutor doesn’t find you guilty either.
**J Flynn:** No, of course.
**Katske:** So, you have ... There has to be a charge in America. We can’t drum up a charge. There has to be a charge. And there is a charge on him.
**J Flynn:** Yeah.
**Katske:** And ... but we’re not going to tamper with the jury. We’re not going to do anything. It’s going to be based on the facts. If there is ... If he’s not found guilty of that and I can’t find anything wrong with his immigration paperwork, which believe me, there’s things wrong with his immigration paperwork, he’s not going ...
**J Flynn:** I don’t know [unclear 07:50]
**Katske:** ... he’s not getting removed. But there’s problems. So, but if nobody comes to say, “Yes, Eugene’s willing to help,” I can’t ... He’s going to be removed. I just don’t ... I don’t see another way around that. And that’s why ... If it sounds like I’m being a jerk, I want you guys to know where the truth of ... the trust I’m telling you. Eugene’s going to get removed.
**J Flynn:** We know what’s going to happen, we know what is going to be down the line if things don’t work. We know we ... that’s ... We know.
**Katske:** Okay. I appreciate you sitting down talking to us and having this conversation.
**J Flynn:** I have no problem talking to anybody. That’s the problem. I have no problem talking to anybody other than they ... Again, they went around the wrong way. They want to terrorize everybody first and then ask for help. That’s not the way you do things.
**Katske:** No.
**J Flynn:** No.
**Katske:** It’s not ...
**J Flynn:** You wouldn’t do that. You are too smart for that.
**Katske:** The ... and ...
**J Flynn:** Bad, bad police work, that’s all it was. That’s why this guy has never got justice.
**Katske:** Yeah, no one ... Arrest haven’t happened, right?
**J Flynn:** Not one arrest yet.
**Katske:** So, there’s a lot of credibility to what you’re saying because, like you said, we would have probably made that arrest.
**J Flynn:** You got that. These guys – FBI, CIA – would have nailed them guys like that.
**Katske:** So, I think you understand the offer.
**J Flynn:** Yeah, totally.
**Katske:** It has to be quickly. You can’t call me ... You can’t wait months and Eugene’s ready to go on a plane getting deported and think I’m going to stand up for him.
**C Flynn:** Yeah.
**J Flynn:** No, no, no.
**Katske:** Because this opportunity is here right now. And I’m telling you, call Eugene and give him this offer. Have him call me. Have him call me. This is open to Eugene, this is a ...
**J Flynn:** Between me and you and everyone else, I don’t know what Eugene or Eugene doesn’t know. I don’t know.
**Katske:** No, I’m not saying that. I’m saying offer it to him if he does after or if he knows friends that know about it.
**J Flynn:** Yeah.
**Katske:** And get that. Because once ...
**J Flynn:** I’ll mention it to him that I have this conversation.
**Katske:** Once this is moving along and he’s in deportation process, it’s not ... I can’t ... I don’t ... I don’t always have the ability to stop that.
**J Flynn:** Of course. No, I know that.
**Katske:** But if ... depending on the information, I do have a lot of authority to help out. I do. When it comes to citizenship in the United States, when it comes to status, legal status in the United States, when it comes to being deported from the United States, I have a lot of authority to help out. But I can’t help ... And I understand there are so many things ...
**J Flynn:** Eugene’s in a tricky situation. He’s only a green card, he doesn’t have the rights I have.
**Katske:** That’s right, he doesn’t.
**J Flynn:** So, he’s in a tricking situation. But I don’t ... I can’t sit here and tell you yes or no, what information he has.
**Katske:** No, I know, but I want you to offer it to him.
**J Flynn:** Very rarely we discussed this ever with him before, you know?
**Katske:** But I want you to offer it to him.
**J Flynn:** I will, whatever.
**Katske:** I want ... I’m interested ...
**J Flynn:** Of course, I’m going to offer it to him if he’s ... We know there’s all the investigation going on.
**Katske:** Yes, yes, yes.
**J Flynn:** So, obviously ...
**Katske:** Absolutely.
**J Flynn:** If we can help ourselves out ... to help you guys out.
**Katske:** My goal is Aaron Brady. I want to be clear on that, yeah. So, if Aaron Brady goes away, you’ll probably never see me again.
**J Flynn:** Whenever you’re having your conversation after here with the other guys, the other party, then so just let them know like why the reason is there’s lack of cooperation. You know what I mean? That’s ... if ... just ... They don’t want to offer people anything. They just want to terrorize people. That’s it. You know what I mean?
**Katske:** I’ll even say that you offered to talk to me regarding whatever questions you have.
**C Flynn:** Yeah. [Unclear 11:00]
**J Flynn:** [Unclear 11:00]. If you come with me a sheet of paper ...
[All voices are distorted/background noise/scratching noise 11:04]
**J Flynn:** So, then ... anyways, let’s ...
**Katske:** All right, I appreciate you guys's time. I really do. I know you weren't prepared for this today.
**J Flynn:** But either way I’ll call you.
**Katske:**
Okay.
**J Flynn:** Whether I’m going to talk to you or not I’m going to talk to you, I’ll call you.
**Katske:** I appreciate it.
**J Flynn:** We fuck with you, all right?
**Katske:** Okay, I appreciate that. That’s what I asked. And I’m going to be straight up with you.
**J Flynn:** [Unclear 11:33]
**Katske:** I hope you feel better. I hope you enjoy your time, and we’ll be in touch.
**J Flynn:** As long as somebody else doesn’t beat me down the road and call me for an interview.
**Katske:** No ... Well, I ... I do not believe somebody’s going to do that. No one has told me that that is going on.
**J Flynn:** Sure, [voice distorted 11:48]
**Katske:** I don’t ... Yeah, I do not believe that is going to happen. I do not.
**J Flynn:** I don’t believe it is either, but they know where I was or what I was doing, so ...
**Katske:** I’ll know when that’s going to happen. They wouldn’t ... They would be lying to me if that happens to you. That would be them telling me they’re doing something that they’re [unclear 12:09] we had discussion [unclear]. If we had discussion ...
**J Flynn:** [Unclear 12:13], but I wouldn’t believe all [unclear]
**Katske:** I know, I know, but I’m telling you that right now that that is something that I have discussed with them, that ... your travel and that they are not trying to get [unclear 12:24]. No problem.
[All voices distorted/background noise/scratching noise 12:26]
**Katske:** Okay, thank you. Have a good day. [Unclear 12:43]
**J Flynn:** Okay, I had ... I thought I had. Okay, thank you.