European judges slam ‘paper witness’ in Irishmen’s conviction for grisly killing

Two Irishmen charged with stabbing and dismembering a man went from acquittal to 13-year prison sentences after Dutch appeal judges accepted a disputed witness’ account without hearing him testify.(CN) — A stabbing, a dismembered body in a suitcase and one disputed witness turned an acquittal into 13 years in prison, but European judges said Tuesday a Dutch appeals court skipped a crucial step: Hearing the man whose story sealed the convictions.The European Court of Human Rights found the Netherlands denied Kenneth Brunell and Barry McArdle a fair hearing after an appeals court overturned their acquittals and convicted them of manslaughter without questioning the key witness in person. The two Irish nationals sought a finding to let them ask for their Dutch cases to be reopened.On Feb. 24, 2009, a suitcase and several plastic bags were found with the dismembered remains of 29-year-old Irishman Keith Ennis near an Amsterdam sea dike. Reports said Ennis had fled Ireland while facing gun and drug charges; Dutch investigators concluded he had been stabbed in a Rotterdam apartment a week earlier.Another Irishman, identified in the judgment only as witness X, had been staying there. He accused Brunell and McArdle of killing Ennis, cutting up the body and helping dump the remains.The Amsterdam Regional Court found X too unreliable to prove the killing in 2017. It acquitted Brunell and McArdle of murder and manslaughter but convicted them of unlawfully disposing of the body, sentencing each to two years. In 2018, though, the Amsterdam Court of Appeal convicted both men of manslaughter and increased their sentences to 13 years.Phone records placed the men in the apartment, and DNA linked McArdle to the chainsaw used to dismember Ennis. But only X offered details about the men’s roles in the killing. None of the judges who convicted Brunell and McArdle heard him testify.“The assessment of the trustworthiness of a witness is a complex task that involves an evaluation of a witness’s demeanor and the manner in which testimony is given, elements which cannot be fully captured by a mere reading of his or her recorded words,” the judges found.The Dutch Supreme Court’s later review was limited to legal questions and could not fix that omission, the European judges wrote.Helena Morão, assistant professor of criminal law and criminal procedure at the University of Lisbon, said the outcome follows established European precedent.“In this case, the written testimony was the key element for the conviction on appeal, and its credibility, though challenged by the defense, was neither directly evaluated nor subjected to adversarial argument in the appellate court; therefore, the right to a fair appeal was clearly violated,” Morão said.She noted the men had no further appeal offering a full review of facts and said reopening the proceedings was the most appropriate remedy.Maciej Fingas, a doctor of law specializing in criminal procedure at the University of Gdańsk’s Faculty of Law and Administration, said the outcome exposes how readily Dutch courts rely on written witness statements. Even the original trial judges never heard X.Fingas said Dutch lawmakers should reconsider allowing such practices since defendants should generally confront witnesses before judges who decide their guilt.Niels van Schaik, a lawyer representing the men and a criminal defense and Supreme Court appeals specialist at Van Schaik, Van Elst and Van Dam Advocaten, welcomed what he described as an important judgment of principle. When an appeals court plans to overturn an acquittal by reassessing a decisive witness, he said, it should generally hear that witness itself.Van Schaik said a review application would be filed for McArdle. Jacqueline Kuijper, another lawyer for the men and a criminal appeals specialist, confirmed Brunell will also seek a review.The Dutch government did not respond to a request for comment.Brunell and McArdle sought no damages, and the European court awarded none. It said reopening their Dutch cases upon request is the most appropriate remedy.Either side has three months to seek review by the court’s Grand Chamber, a step reserved for exceptional cases. Barring that, the ruling becomes final and the Netherlands would decide whether to reopen the convictions.Courthouse News reporter Eunseo Hong is based in the Netherlands.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads