Book festival interview: Clive Stafford Smith, author of Injustice

CLIVE STAFFORD SMITH is feeling depressed. The day before our interview, the United States Supreme Court had denied a judicial appeal in the case of seven more detainees at the Guantanamo Bay camp. No-one else has done more to highlight their plight than the charismatic, eloquent founder of the legal action charity Reprieve, but it’s an uphill and seemingly neverending struggle.

The judgment means that the Guantanamo detainees he represents – already cleared of any involvement in terrorism – are all still being kept there without a release date in sight. “Some people object when I call Guantanamo a gulag, but I don’t think Solzhenitsyn was ever in a prison where more than half of the inmates had been cleared for release but weren’t allowed out.”

Yet Stafford Smith isn’t the kind of man to let the vagaries of the US legal system defeat him. If he was, he certainly wouldn’t have bothered to carry on pursuing justice in the case he writes about so compellingly in his latest book.

Read the first chapter of Injustice, though, and you would wonder why he – or, come to that, anyone – would spend time campaigning on behalf of Kris Maharaj, a British Trinidadian businessman who has now spent 26 years in a Florida prison after having been found guilty of a double murder in 1986. And you certainly wouldn’t understand why Stafford Smith would want to take it all the way up to that very Supreme Court that has just ruled against his Guantanamo clients.

The evidence presented by the prosecution lawyers against Maharaj was damning. They told the court he had been involved in a feud with Derrick and Duane Moo Young, a Jamaican businessman and his son, who were murdered in Maharaj’s penthouse suite in a Miami hotel. The “Do Not Disturb” sign had Maharaj’s fingerprints. There was a ballistics evidence that proved the shots came from the type of gun Maharaj was known to possess. There was a clear motive: the Moo Youngs had accused Maharaj as a swindler and forger in a Caribbean newspaper and Maharaj had bought a rival paper to attack them in print. There was even an eyewitness – who had passed a lie detector test – and if that wasn’t enough, one of Maharaj’s apparent alibis had switched sides and put him in the frame for murder.

This isn’t one of those classic clear-cut miscarriages of justice cases in which an innocent defendant is stitched up by prejudice. It’s a complex case, and one in which all the evidence seemed to be pointing one way – at Maharaj. “I’m not the least bit surprised that the jury convicted the poor guy,” Stafford Smith admits.

He first took up the Maharaj case in 1993. Back then, he was a 34-year-old lawyer already carving out a reputation as the last-ditch hope for prisoners on Death Row in America’s jails. He must have cut an unlikely figure in the appeal courts of Deep South, this tall cricket-loving Englishman, his public school accent only marginally modified by studying at university in North Carolina rather than Cambridge.

No-one, though, would have doubted his sincerity, especially when inveighing against capital punishment – which, in the case of execution by electric chair, he invariably calls “torture to death”. “It is so barbaric and disgusting that nothing else quite comes close,” he says, recalling the execution he witnessed of Nicky Ingram, another Death Row Brit, two years after he took up Maharaj’s case. “I can self-diagnose myself as suffering from a mild form of post-traumatic stress disorder simply from my experience of watching it. I get flashbacks even now as we are talking about it.” He has lost six of his cases to the executioner, and though he has prevented the judicial killing of 300 more, he hates boasting about it. Sometimes he even has doubts that he is doing the right thing, especially if a Death Row prisoner repeatedly tries to commit suicide. That was what happened in the case which affected him the most of all.

“Larry Lonchar, a man from Michigan who was on Death Row in Georgia for triple homicide, was bipolar. So was my own father. He kept dropping his appeals and trying to commit suicide and each time I would stop him. The parallels between my father and Larry were very stark – with the exception that Larry lived in what is in so many ways a heartless country and my father lived in England, a gentle country by comparison. Anyway, finally, they managed to kill him. Larry had got religion by then, so he didn’t care, but he said something to me that meant so much – it still makes me a bit teary, actually. He said I was the only friend he had who had stuck by him. And that meant a lot, because for eight years I wasn’t sure I was doing the right thing.”

At least he was able to ensure that Maharaj avoided the electric chair: he was given a life sentence instead. But the more Stafford Smith  investigated the case, the more it became clear that he was looking at a monumental injustice. Chapter by chapter, Stafford Smith pains-takingly demolishes that seemingly copper-bottomed case against Maharaj. He had alibis who weren’t called: his defence lawyer was on a fixed fee and didn’t want to spend time cross-examining them. The prosecution witness hadn’t passed a polygraph, as the court was originally told, and the prosecutors coached him to change his story to match the unfolding evidence. The police evidence about Maharaj’s gun turned out to be valueless. The judge himself was arrested mid-trial on corruption charges: again, the defence lawyer waived his right to call for a mis-trial.

But there was worse to come. Derrick Moo Young had been described as a semi-retired businessman getting by on $24,000 a year. Yet – suppressed by the prosecution – in his briefcase he had documents showing he was a money-launderer trying to shift billions of dollars for drug cartels. “I have never seen anything like it in my career,” says Stafford Smith.

And all of a sudden, there was a motive: the documents showed that the Moo Youngs had been trying to skim one per cent off these multi-million deals. And there was even a more likely suspect in the frame. Right across the corridor from the hotel’s penthouse suite in which they were killed was a Colombian “businessman” who was being investigated for carrying $40 million to Switzerland. The case was starting to look like an Elmore Leonard novel – Rum Punch, maybe – a drugs cartel hit which isn’t properly investigated because an innocent man has already been framed.

At this stage, trails were starting to open all over the place. To Panama, there the Moo Youngs were negotiating to buy a bank for $600m, boasting of their access to $5 billion in US bonds. To a whole series of unsavoury characters involved in the drugs business in the Bahamas. To Colombia itself (where the owners of half of Panama’s 100 banks lived in the 1980s).

Stafford Smith, pursuing a massively expensive case on a shoestring budget, doesn’t have the resources to investigate these links as clearly as he knows they should be. He has already run risks by asking awkward questions in the Bahamas and is clearly unfazed by physical danger. “I’d go to Colombia in the morning if we had the money and if my wife would let me,” he laughs.

But the Maharaj case haunts him because it is emblematic of almost everything that in the course of three decades he has identified as being wrong with American (and to a lesser extent British) justice. “What Kris’s case shows is that the improbable happens all the time. You might be absolutely sure that you have the right man, and yet you will still be wrong. That’s what has happened with Kris.

“There are so many cases like this. I’ve got one just now. A six-day-old baby found dead in a freezer. What happened? The father sleepwalked and put the baby in the freezer by mistake. These sort of things happen all the time, but when they do nobody believes them.” Even if we accept that 95 per cent certainty as the standard for “reasonable doubt”, he points out, that still means that one in 20 of the people we lock up could be innocent.

Often, he says, the US legal system seems to show an institutional bias against justice. Defence lawyers in capital cases are often next to useless. Prosecutors are under political pressure to get results. In the appeals structure, innocence is no defence. If a defence lawyer let through something in the original trial, that topic can’t be reintroduced further down the line: even new evidence is often disbarred if it materialises more than 30 days after conviction.

Kris Maharaj is now 73 and has exhausted all of his appeals. He’ll be 101 before he will get parole. But Stafford Smith isn’t giving up. “Our only chance is to challenge the very system. I want to make this the test case on whether innocence is really irrelevant or not.” In his bid to make provable innocence constitutional grounds for freeing a prisoner, he says, “I want to stir up as much trouble as possible. Because it’s out only chance to get people to take this seriously if it becomes a cause célèbre. And we’ve got to do it quite quickly. Because Kris is 73 and he’s going to die.”

• Injustice by Clive Stafford Smith is published by Harvill Secker, price £14.99. Stafford Smith is at the Edinburgh International Book Festival today