Writing Worth Reading
Writing Worth Reading
You’ve spent 28 years representing defendants in US death penalty cases and 10 years representing Guantanamo Bay detainees, and you’ve just completed a book, The Injustice System, forthcoming this summer, that sums up your insights from representing the accused over so many years. Please give us a preview.
I was inspired to write the book by a client, Kris Maharaj. I’ve represented him since 1994. So that’s 18 years. Kris is a British guy who is on death row in Florida. He’s patently innocent and yet he’s still in prison. He is a self-made man from Trinidad who came to Britain when he was quite young, set up a business and became a millionaire. At one point he bought two racehorses from my father. He was investing in property in Florida and was ripped off by two guys he had been in business with, who ended up being murdered in downtown Miami. Kris was convicted of the crime. You can come to your own assessment at the end of my book about whether you think he did it or not, but there’s no question that he got the most unfair trial, and evidence was covered up that I think points very strongly to who really did it.
Kris is now 73. His wife Marie is the same age and has stood by him for the last 26 years while he’s been banged up, first on death row and now, after we got him a resentencing trial, he’s serving life. No sane legal system could uphold this conviction and that’s why I wrote the book. He’ll never get released. He’ll die there. Because I failed him in the courts, I wanted to write a book to at least get the public interested in him. The more I got into writing a book about Kris the more I realised it was about the flaws in the legal system generally.
In almost each step of the process, those involved in a capital case are precisely the wrong people for the job that they’re doing. I’m afraid it’s rather hard to put it briefly: I explain it in 110,000 words. Just to give you one example: The innocent defendant is the most useless individual in the world because a) he or she can’t tell you anything about what happened and b) the innocent person is incredibly impatient, and doesn’t want to have an investigation because they know that they’re innocent. So they think, how can 12 people possibly find them guilty beyond a reasonable doubt? So they’re useless and as a result they’re predisposed to get screwed by the legal system in ways that I don’t think the legal system truly appreciates.
How about the law enforcement?
If the goal is to make sure that the legal system does what we advertise – that 100 guilty people can go free rather than one innocent person gets convicted – than you need to have police who are constantly questioning whether they’re getting the right person. In truth – and this is not meant to be in any way a criticism of the human beings who are police – studies show that people who become police tend to be folks who believe in the system. They believe they don’t make mistakes. They believe that the system gets it right. As a consequence, they’re uniquely predisposed to get it wrong. I’ll give you an example: I had two delightful British police come to visit me not long ago, really nice guys. I was just testing out the theory on them. “In 54 years of service,” I asked them, “how many times do you think maybe, possibly you arrested the wrong person?” They didn’t pause for a breath before they said, “Oh, never!” They insisted that even the people found innocent at trial were actually guilty. To be that fantastically infallible is tremendous but of course it’s impossible. What you really want in the police are the sort of people who don’t want to be police officers – people who are sceptical about whether they themselves get it right.
It’s also true of defence lawyers. The defence lawyers in capital cases are generally the worst people you could possibly have in those situations. In this case it’s because of money. If you’re representing a corporation on some contract issue or whatever, you might charge up to $1,000 an hour. If you’re doing a death penalty case it wasn’t long ago that we got paid $1,000 for the whole case and it would come out to below minimum wage. So what we see is that in the cases where you might think you’d want the best lawyers in the world – life and death cases – you actually often get the worst. And the consequence is obvious.
In what jurisdiction and when were you paid $1,000 for a whole case?
Well, that was the rule across most of the South when I started doing trials there. So, for example, in Louisiana, in Mississippi that was what we were paid when I was doing capital trials to begin with. We used to sue them over it. One time we sued them in Mississippi, in part under the federal minimum wage law. They were paying us less than if we worked at McDonald’s. And we won. I don’t mean to say that lawyers are worth more than people at McDonald’s – frankly, they’re normally not. They then started paying $25 an hour. The average law firm, it costs you 40 bucks or more an hour to keep the doors open. It just doesn’t pay for lawyers to do those cases so they don’t.
How about the other lawyers, the prosecutors and the judges who oversee this whole system?
The prosecutors have very much the same profile as the police. There are reasons people become prosecutors. Those reasons tend to be fairly parallel to why people become police, though with the added notion that it’s designed as an adversarial system. So it’s designed to make prosecutors adversaries of defendants.
A prosecutor or even a judge never gets to meet the human being on trial. If you were interviewing me for a job, you would be crazy to make a decision about me without ever even meeting me. Yet that’s what prosecutors, judges and even jurors do in criminal cases. I’ve often asked prosecutors to just sit down with my client, go in a room and talk to them, use it against them if you want, I just don’t care. The reason for that is because I thought that if they met the individual as a person they would begin to see what I see, which is that this wasn’t the awful heinous crime that you think it was, there were reasons. Maybe not excuses, but whatever. The whole legal system tries to dehumanise the defendant. Many people think that’s a wonderful idea – I think it’s awful.
There are many other reasons. When you look at victims, for example, what we do with victims is horrible. The politicians and the media encourage victims to think they’re going to have a catharsis when there’s an execution or a really heavy punishment. They promise this false dawn to folks. The way one can look at it is: How did your parents teach you? They didn’t teach you to be vengeful; they taught you to be compassionate. Now it’s sometimes difficult to be compassionate but on the other hand it’s clearly what we all strive to do, but that’s exactly the opposite of what the government teaches us in the judicial process. That’s frankly quite sickening and it’s quite counterproductive for victims as well.
Let’s get to your books, beginning with one that seems to be an exercise in empathy, Ernest Raymond’s We, the Accused. Tell us about it.
Capuchin Classics sent me this, asked me to read it and consider doing a foreword. I thought: Oh God, I don’t like to read books about the death penalty; I like to read slightly more cheerful stuff when I’m not doing cases. But I did read it and I was absolutely captivated.
This was written in the 1930s but I thought it was a brilliant book that captured so much about the judicial process. And a very well written book as well. The title sums it up – We, the Accused – the way that the system accuses itself. And there are just lovely quotes in there about where the governor of the prison comes to see the humanity of the person he’s meant to be killing. That rang very true with me because it isn’t that the defence is the good guy and everyone else is a bunch of bastards – very often the governors of some prisons are fantastic human beings who really didn’t want to do some of the things that the politicians made them do.
The book is about how an ordinary person, given the right set of circumstances, could commit murder – is that right?
Yes, I suppose so. One of the crimes that I think we can all agree that everyone could do is homicide. Now whether it’s homicide by accident, when you hit someone while driving a car, or what we refer to as murder, everyone under the right circumstances, or perhaps I should say the wrong circumstances, could kill someone. What the book tries to do is to explore that in a context of someone who’s a human nonentity, accused of poisoning his wife.
You’re often faced with the same challenge that Raymond overcame in writing this book, which is engendering empathy for someone who killed another person. In the foreword you noted that evoking empathy and not sympathy is key to convincing a jury to reject the death penalty. Please explain what you meant by that.
Sympathy tends to dehumanise. If we ask a jury for sympathy because the prisoner was abused or because the prisoner is mentally ill, that tends to dehumanise them. Empathy is what humanises them.
The best example I can think of was a guy I represented years ago, who, according to the experts, the psychiatric experts, had no real defence. They said there was nothing wrong with him. I thought they were patently wrong but we were left without any way to explain what was a pretty terrible crime. The one thing that ultimately characterised this individual was his religious faith. Lawyers, particularly left-wing lawyers, tend to be a bunch of atheistic zealots who are very deeply uncomfortable when talking about religion, which I think is a terrible mistake. People can think what they like about religion but jurors understand the language of religion. I once made the mistake of quoting Shakespeare to a jury, and an old Georgia lawyer in the courtroom said to me, “Clive, I’ve used that quote myself but when I say it, I say I think it was in the Book of Job.” I don’t think that lying to jurors is ever good, but on the other hand I got his point. The language jurors speak is the language that means a lot to them, which tends to be the language of their religious faith.
In this particular case, my guy was a Pentecostal Christian. While Pentecostals very often in America would execute just as soon as look at you, according to what they initially say, when you dig into their beliefs they believe in redemption far more than the average person. Indeed if you ask a Pentecostal juror what the worst crime that you can commit is they won’t say murder, they’ll say, very often, the failure to accept Jesus Christ as your lord and saviour. Now in this case, pretty much all of the jurors were Pentecostal Christians. They really understood that my client was trying to climb the mountain and Satan would grab his ankle and pull him back down again. They understood him far better than the prosecutor and they came back very quickly, in his favour – avoiding the death penalty. That really taught me the lesson that it was their empathy for him. They understood where he was coming from. That was the key thing, not their sympathy for what he had been through as a child.
Religion can be one point of entry to empathy.
It doesn’t apply across the board. You have to know what the jurors’ language is. It’s a matter of making the decision-maker see the humanity in the individual. Sometimes it can be mental illness. For example, I had a case where we got 12 jurors all of whom had a deep personal experience of mental illness and so in that case they could really empathise with what the prisoner had come through because they had that in their lexicon. They saw him as being akin to their relative who had gone through the same thing.
Empathy starts in so many ways. It’s about stories that you could relate to. In America it’s often religious faith because religion is very important in America. They see churchgoing people as akin to them. It would be a very different story in Britain. Maybe you could base it on silly things such as what football team they support. Frankly, I would execute anyone on the spot who supports Arsenal. Only because of what they did to Ipswich Town last season, which is my team.
I hope you’re able to afford an outside sports consultant when you represent people in the United States.
I speak American sports language. I lived there 26 years. I can bore you about baseball as well.
Another time. In your introduction you credit We, the Accused, which was published in 1935, with helping to bring about the abolition of the death penalty in England. Can you tell us how this novel became instrumental in changing UK law?
This book was very widely read at the time and much admired. I think it helped people see even guilty people facing the death penalty as human beings. Raymond is a very fine writer.
When was the death penalty abolished in the UK?
Theoretically, it wasn’t abolished until 1997, when they finally got rid of it technically for treason or something. But in reality it was abolished in the 1960s.
Clive Stafford Smith is a British lawyer specialising in civil rights and the death penalty in the United States. He is also the founder and director of Reprieve, a human rights not-for-profit organisation. Stafford Smith has helped secure the release of 65 prisoners from Guantánamo Bay. In 2000 he was awarded an OBE for humanitarian services. His book Bad Men: Guantanamo Bay and the Secret Prisons was published in 2008. His latest book, The Injustice System, will be published later this year
Long, scholarly essay. Retired justice of US Supreme Court, opponent of death penalty, reviews David Garland's "Peculiar Institution", which finds that executions don't deter crime, but they do please public
Put another way, since 1978 each execution has set the state back a staggering $308m. Comes from additional costs of capital trials, enhanced security on death row, cost of providing legal representation over many years
State executioner reflects on death penalty. From "the executioner high" to long term depression, guilt caused by memories of inhuman work. "When you look at the death certificate it says, HOMICIDE. How can it leave you?"
A treat from the past, first published in 1931 and disinterred as capital punishment again fills the headlines in Britain. A powerful and affecting piece of writing
