A fight to the death: The lawyer who has dedicated his life to campaigning against capital punishment



22:37 GMT, 7 July 2012


by Clive Stafford Smith

Harvill Secker 18.99 ☎ 16.99 inc p&p

Mission in life: Lawyer Clive Stafford Smith defends prisoners on Death Row

Mission in life: Lawyer Clive Stafford Smith defends prisoners on Death Row

Aged ten, Clive Stafford Smith saw a picture of Joan of Arc being burnt at the stake. He was particularly upset because he thought she looked like his sister Mary.

Five years later, he discovered that what he had imagined to be a singularly cruel part of history was still happening in America: men and women were being executed by society. Aged 19, full of the idealism of youth, he set off for the States, vowing to put an end to the death penalty.

He managed to get himself a job with a lawyer in Georgia who was campaigning against capital punishment and spent his first season visiting prisoners on Death Row. ‘That summer my opposition to the death penalty slipped down from my brain and into my heart.’

Now aged 53, he has dedicated his life to the defence of prisoners on Death Row. Not all of his campaigns have, alas, been successful. ‘Over the years, I have watched six of my clients die: two in the electric chair, two in the gas chamber and two on the lethal injection gurney . . . If I am forced to choose, I would probably say I hate the electric chair the most.’

He offers a gruelling description of the procedure: the metal cap placed over the head with a damp sponge inside to conduct the electricity better; the nut tightened on the electrode; the lower electrode placed on the right leg, which has been specially shaved for the occasion; the dark leather mask pulled down over the face, so that the witnesses in the soundproofed viewing chamber are spared the full horror of the final agony.

In America, justice and money are inextricably linked: or, rather, injustice and money. It cost O. J. Simpson roughly $10 million to hire the legal team and assorted ‘experts’ who managed, against the evidence, to gain him an acquittal on two counts of murder. That same year, the total legal budget available to eight people facing the death penalty in Louisiana was $16,000, the same amount that Simpson was paying one ‘expert’ for a single day’s work.

Some of the most powerful passages in this uneven book relate to these bogus experts. Stafford Smith argues convincingly that the massed armies of ‘forensic scientists’ who are treated with such solemnity in American courtrooms are, in fact, peddling what he calls ‘junk science’, or guesswork masquerading as knowledge.

Those who claim to be able to identify handwriting, shoe-prints, hair and bullets (especially bullets) are little better, he says, than charlatans, yet they have managed to send hundreds of people to their deaths. Where, he asks, is the scientific evidence to back up their claims

Their supremacy remains unchallenged, he says, ‘in part due to the fact that many lawyers chose their profession because they hated the scientific subjects that might have taken them into medicine’. But is this really so Not for the only time, he fails to bolster his assertion with the type of proof he would be scrupulous in demanding of his opponents.

He is not as other lawyers and has, accordingly, written an unlawyerly book, in ways both good and bad. On the one hand, he is passionate and humane, but on the other he is often overstated and haphazard, regularly spinning off into odd areas of irrelevance when he would be better off sticking to the point. For instance, in the middle of an interesting disquisition on money-laundering, he inserts a distracting anecdote about trying to take a pack of Newcastle Brown Ale into a high-security prison.

Graphic description: Stafford Smith has watched two of his clients die in the electric chair and he offers a gruelling account of the procedure

Graphic description: Stafford Smith has watched two of his clients die in the electric chair and he offers a gruelling account of the procedure

He sometimes seems as keen on starting arguments as on winning them. Arguing that, by the end of a case, a prosecutor may find himself justifying actions that he would earlier have rejected as corrupt, he invents a term called ‘Tony Blair syndrome’, and launches an attack on Blair’s acquiescence to Bush in the invasion of Iraq. But why drag Blair into it, thus ostracising many of those he is trying to win over Lawyers are meant to expand the circle of support for their arguments, not diminish it.

The basic story Stafford Smith tells in Injustice revolves around the case of a wealthy British businessman, now aged 73, who was convicted of double murder in Miami in 1986. Kris Maharaj has been in prison ever since, most of that time on Death Row.

From the evidence at the trial, the case against Maharaj seemed open-and-shut: he lured a business rival and his 23-year-old son to a Miami hotel room and then shot them both dead.

There seemed no room for doubt: a witness to the murders identified him, his lawyer offered virtually no defence, and Maharaj himself failed to testify on his own behalf. From the courtroom transcripts, it is hard not to agree with the prosecution lawyer that these murders were ‘especially wicked, evil, atrocious and cruel’. Maharaj was found guilty, and sentenced to death.

Stafford Smith first met Maharaj seven years later, soon after he had just lost his first appeal to the Florida Supreme Court. He was still vehemently protesting his innocence, but how to prove it

One of the many peculiarities of the justice system in Florida is that the defendant has access to prosecution and police files only after he has been convicted, by which time it is too late. When Stafford Smith began digging around in these files, he came across a startling number of anomalies, none of which had been revealed during the trial.

Six witnesses who had been prepared to testify that Maharaj was elsewhere at the time of the shootings had never been called; the older victim, far from being a retired businessman on a modest income, was in fact earning millions laundering money for a Colombian drugs cartel, who had recently found out that he had his hand in the till; the supposed witness to the shootings had failed a lie-detector test; and the chief detective on the case had falsified and suppressed evidence. Yet nearly 20 years after all this came to light, Maharaj is still in jail.

The first judge, ‘Mousey’ Gross, was arrested halfway through the trial for taking bribes in another case; it is possible his replacement was being leant on by the real killers.

They are not alone: most of the judges, prosecutors, police and juries who appear in the book, drawn from this and other cases, might have leapt straight from the pages of Elmore Leonard.

A juror with a PhD in English tells Stafford Smith that she is gifted with extrasensory perception, so she knew instinctively that a defendant was guilty, even though the DNA tests contradicted her. The man was sentenced to death.

A defence lawyer sleeps through part of a trial, and when his client complains, the judge refuses to admonish him, declaring: ‘The Constitution does not say that the lawyer has to be awake.’

A young attorney who is meant to be defending a young black man on a capital offence in Mississippi kicks off by saying: ‘Excuse me, your honour, can I have a moment to compose myself I’ve never been in a courtroom before.’

Seven members of a jury in Florida drink beer throughout a trial; four of them supplement it with marijuana, and during the course of the trial one sells a quarter-pound of the drug to another. Yet there is a rule against ‘impeaching a juror’s verdict’, so, even after all this evidence of debauchery, the Supreme Court refuses to overturn the conviction.

Stafford Smith is particularly depressing on the ability of juries to see sense. Studies suggest that as few as a third understand that the prosecution bears the burden of proof. A study of one jury revealed that none of them knew what the word ‘mitigating’ meant: one of them even thought it meant ‘aggravating’.

It is tempting to be smug about the superiority of British juries, but I’m sorry to say that, while I was reading Injustice, a friend who had served on a jury told me that a fellow juror had been convinced the defendant was guilty from the very start.

‘I never trust people with little piggy eyes,’ she had explained.