I believe that BC and its attorneys did an absolute disservice to all issues involved in this case. The fact that they chose not to appeal based on the Price interview was absurd. She was tricked into it, under psychiatric care and in order to proffer this argument the presenter must have clean hands. Clearly this was not the case. This should have been appealed by BC if for no other reason than to make a record for appeal. I have a feeling that BC knows they are now exposed to liability and are improperly trying to platform a defense in this proceeding.

I think that’s a really good statement of what’s at stake in this case: Is the benefit of oral history such that oral histories should be entitled to an evidentiary privilege, like the attorney/client privilege, even if they contain evidence of crimes? I’ve called this question a toss-up in prior posts, though my view is that the law doesn’t recognize such a privilege (yet?). But that’s not really what the Moloney/McIntyre case is most centrally about. Their complaint is really about the propriety of the subpoenas under the MLAT, not the evidentiary privilege. So even if they’re right about everything they say in their complaint, a win for them wouldn’t establish a rule that would prevent, say, the government from subpoenaing oral histories in a purely domestic case.

The great irony here is that Moloney and McIntyre are the two people on earth who bothered to pursue information about Jean McConville’s killing, while the police in Northern Ireland did nothing about it for forty years. There would be nothing at all on record anywhere about this killing without their effort. But that effort won’t be possible to replicate in the future, because future research subjects can learn about this outcome and realize that they are endangering themselves by speaking about topics the police might find interesting.

Moloney and McIntyre aren’t protecting murderers—they’re the people who got discussions of the murder on tape. They’re protecting the confidentiality they promised to their subjects, and they’re protecting the viability of future research.

Well, BC seems clearly to take the view that in light of Dolours Price’s interview that her materials ought to be turned over. My guess—it’s just a guess—is that because the judge asserted that the additional materials to be turned over bear on the investigation of the McConville crimes, BC will probably not challenge the ruling, because, as its spokesman said: “We would never want anyone to think that Boston College was obstructing a murder investigation.” So I guess whether this is a victory or not depends on what you think the College is trying to accomplish. It’s already clear that BC isn’t trying to accomplish what Moloney and McIntyre are trying to accomplish, namely, to quash both subpoenas in toto no matter how much the interviews have to do with the kidnapping and killing of Mrs. McConville.

Oh! Well, I’ll look forward to meeting you.

I’ll be at the hearing—I’ll coming in for the afternoon.