Guess what? It’s raining
- Injustice: Life and Death in the Courtrooms of America by Clive Stafford Smith
Harvill Secker, 376 pp, £18.99, July 2012, ISBN 978 1 84655 625 8
On 16 October 1986 a maid went into a downtown Miami hotel room and found two dead bodies. One was tied to a chair, riddled with bullets; the other was kneeling, shot through the head. They were Derrick Moo Young, aged 53, and his son Duane Moo Young, 23, businessmen from Jamaica who had looked after properties in Fort Lauderdale owned by the man who would be accused of killing them, Krishna Maharaj, a Trinidadian national and British citizen. A few months before the murder, Maharaj had accused the Moo Youngs of stealing from him and his relatives in Trinidad, and the men had argued. Maharaj’s fingerprints were found throughout the hotel room. The murder weapon was never discovered, but a ballistics expert testified that it had most likely been a 9mm Smith & Wesson. Maharaj’s gun collection had included a 9mm Smith & Wesson though he claimed it had been stolen from him shortly before the murders.
The star witness for the prosecution was Neville Butler, a reporter on the Caribbean Echo, a small newspaper that served West Indians in Miami. Butler testified that Maharaj had paid the newspaper $400 to accuse the Moo Youngs of theft. The Moo Youngs then got the newspaper to publish a series of articles that claimed Maharaj was a money-launderer. Maharaj tried to buy the newspaper to stop the stories. When the owner wouldn’t sell, Maharaj started a rival, the Caribbean Times, and began hiring the staff of the Echo. Butler testified that Maharaj had offered him a better-paying job on the Times, but only on condition that Butler got him a meeting with the Moo Youngs. They wouldn’t have agreed to that, so Butler fooled them into thinking that ‘Eddie Dames’ – the name of an air-traffic controller visiting from the Bahamas – wanted to meet them in a suite at a downtown hotel. Butler said in court that he’d told the Moo Youngs that Dames wanted their help importing American restaurant equipment into the Bahamas. Butler said that when the Moo Youngs arrived in Room 1215, they found Maharaj and Butler instead. Maharaj demanded that Derrick Moo Young confess, in writing, to stealing his money. He provided pen and paper. When Moo Young refused and tried to leave, Maharaj shot him, then his son. No one in the hotel heard the shots, and Maharaj’s gun didn’t have a silencer, but Butler testified that Maharaj had used a pillow as a muffler. A few hours later, Butler went to the police, and took them to Maharaj, who was waiting for Butler at a restaurant near the airport. Another reporter on the Echo, Tino Geddes, testified that Maharaj had asked him to say that they had been together at the time of the murder, far away from the hotel, but Geddes had refused.
The lawyer for the defence rarely raised objections, and asked few questions during the cross-examinations. When the prosecution rested its case, the defence rested too, without calling any witnesses. Only after the jury had pronounced Maharaj guilty, and was deliberating whether to recommend life imprisonment or the death penalty, did Maharaj take the stand. ‘As true as Jesus Christ was crucified on Friday, I had nothing to do with the murders,’ he said. It was true that the Moo Youngs had stolen from him, but ‘money was not that important to me, never has been.’ He said that Butler had persuaded him to meet ‘Eddie Dames’ in Room 1215 that morning, telling him that Dames could distribute the Caribbean Times in the Bahamas. A few hours before the Moo Youngs were killed, Maharaj had waited there for Dames, reading the newspapers and drinking coffee, but when Dames didn’t show, Maharaj left. He said that many people had seen him miles away from the hotel at the time of the murder, though none of them had been called as a witness. He had never asked Geddes for an alibi. He didn’t know why Butler was lying. He had no idea who killed the Moo Youngs. The defence counsel told the judge that Maharaj had passed a lie-detector test; the prosecutor told the judge that Butler had passed one too. They cancelled each other out, the judge decided, and following the jury’s recommendation he sentenced Maharaj to death by electric current.
In the US, death row inmates are entitled to state-funded counsel only for their first appeal. Once they’ve lost that, they’re on their own. But being sentenced to death, as opposed to mere life imprisonment, has advantages. Lawyers opposed to the death penalty take action; the press takes notice. Foreign governments come, finally, to the defence of their citizens. A recent study found that those on death row were nine times more likely to be exonerated than those given prison terms for similar crimes, which confirmed what some convicts had already worked out for themselves. In 1986, Joe Amrine was convicted of murder in Missouri, and at the penalty phase of his trial decided to do everything he could to get the death penalty, but not because he wanted to die. He told National Public Radio:
I only had one option. And the only option I had was to make sure I received the death sentence. And I came to the conclusion that night just between me and the guys that was in what they call the unit with me. We all talked about it. And they all came to the same thing I said, which was there was too many guys in prison who had life and fifty years without parole, or life without parole, who might be innocent or whatever but they are stuck in prison because they don’t have a lawyer and they can’t get nobody’s attention.
So I figured if I end up getting life in prison without the possibility of parole, I’m stuck. Any legal work that we did on my case, I’ve had to do it myself. Or any publicity I’m going to get, where am I going to get it from? I don’t have a death sentence. So what if a guy got life and fifty years? We hear about them every day.
So when the penalty phase came and he put me on that witness stand, I had made my mind up that I’m going to think of every bad act I’ve ever done as far back as I can remember. Every bad act by my sisters and brothers, my father, my mother, my neighbours. Everything bad I could think to tell them. Everything bad I could think that I could tell them I did while I was in prison, I told it. Because I wanted to make sure I received the death sentence. Because I figured if I received the death sentence, I’ll have a lawyer. And I might be able to get some publicity. And I might be able to overturn this wrong conviction I have.
Amrine was sentenced to death, and then as he’d predicted, a lawyer offered to represent him for free. A film was made about his life, and eventually he was exonerated and released. When Krishna Maharaj lost his first appeal, Clive Stafford Smith – the director of the legal charity Reprieve – began representing him for free at the request of the British consul. Stafford Smith has now written his account of the case in Injustice: Life and Death in the Courtrooms of America.
Elsewhere, Stafford Smith has written that ‘nobody with the means to pay for an effective defence ever ends up on death row in the United States.’ Maharaj is an exception, and Stafford Smith is convinced that the greatest mistake his client made was trying to skimp on legal fees. The prosecution prevailed because they told the jury a story that made sense. Maharaj’s lawyer, Eric Hendon, offered them nothing, or worse than nothing. While cross-examining Butler, Hendon accused him of murdering the Moo Youngs in order to sell more copies of the Caribbean Echo. No one bought it. Because Maharaj was born in Trinidad before its independence, he was entitled to assistance from the British consulate from the time of his arrest, but no one offered it to him, and he didn’t know to ask for it. Until imprisonment bankrupted him, Maharaj was a rich man, but he hired Hendon because he came cheap: a $20,000 set fee, peanuts compared with what he should have spent on lawyers and his own expert witnesses, Stafford Smith suggests. (O.J. Simpson’s defence is said to have cost $10 million.) A murder trial shouldn’t be handled by a single lawyer, but a partner would have cost Hendon money, so he did it alone. A rare moment of comedy in this book is provided by Stafford Smith’s harangue against the innocent client, so much more annoying than a guilty one. The innocent man can’t tell his lawyer what happened – he wasn’t there. And his innocence is so obvious to himself that he doesn’t feel the need to waste money on legal bills. Or maybe Maharaj was undone by his foreignness: Americans know that when you’re indicted for murder, it’s time to sell everything you have. ‘Have you been saving up for a rainy day?’ Richard Gere as the defence attorney asks in Primal Fear. ‘Guess what? It’s raining.’
In the course of his many appeals, Stafford Smith claimed that Maharaj had received ‘ineffective assistance at trial’, but though Hendon had been lousy, legally he hadn’t quite been lousy enough. In an article in the Yale Law Journal, the human rights lawyer Stephen Bright wrote of executed men whose lawyers ‘referred to their clients by a racial slur, cross-examined a witness whose direct testimony counsel missed because he was parking his car, slept through part of the trial, or was intoxicated during trial. Appellate courts often review and decide capital cases on the basis of appellate briefs that would be rejected in a first-year legal writing course in law school.’ Rural areas of the US often don’t have public defenders, so local lawyers – often without criminal law experience – are roped in. They’re paid too little to do the job properly, and usually aren’t the cream of the legal profession. (An article in the Philadelphia Inquirer about court-appointed lawyers in Pennsylvania found that ‘officials in charge of the system say they wouldn’t even want to be represented in Traffic Court by some of the people appointed to defend poor people accused of murder.’) One man sentenced to death in Texas, Federico Martinez-Macias, was represented at his trial by a lawyer paid $11.84 an hour; Stafford Smith once sued the state of Mississippi because ‘the hourly fee for four capital trial lawyers varied from $1.28 to a high of $2.22 an hour.’ A study of criminal defence work in a typical Alabama county found that some lawyers spent as little as fifteen minutes with a client before trial and none of them spent more than two hours. Some defendants facing the death penalty have been represented by law students. ‘Excuse me, Your Honour, can I have a moment to compose myself?’ one asked at the start of a trial. ‘I’ve never been in a courtroom before.’
The judge at Maharaj’s trial was replaced on its third day, when he was caught accepting a bribe in another case. Stafford Smith thinks the judge asked Maharaj for a bribe too – Maharaj claimed that one of the judge’s friends visited him in jail, demanding $50,000. He also thinks initial rulings may have gone against Maharaj because he didn’t pay up. Maharaj’s lawyer didn’t call for an investigation or a mistrial, and Stafford Smith believes this is because ‘Hendon was on a set fee. If the case had to start up again, he would have to spend days picking another jury and going over the evidence again. It would all eat into what he’d been paid.’ Hendon also failed to interview the men who might have cleared his client. Maharaj said that from noon on 16 October, when the Moo Youngs were being murdered, he had been forty miles away, first drinking at a bar, then eating lunch at a restaurant. Maharaj hired private investigators to track down witnesses, and six men said that they could vouch for his alibi. One of them was Geddes, who first said that he’d had a beer with Maharaj around noon, ‘but later felt guilty and refused to continue the charade’. Geddes’s testimony for the prosecution was devastating, and Hendon said he feared the other witnesses would also fall apart on the stand. But Stafford Smith insists that Geddes had it in for Maharaj, and the other alibis were good: ‘Had Hendon only talked to the five other witnesses, he would have learned that they were firmly sticking to their guns, contradicting Geddes’s assertion that he had confabulated the alibi,’ and that all were willing to testify. For the American edition of Injustice, which comes out later this year, Stafford Smith has added a chapter in which he shows that Geddes was probably exporting guns to Jamaica and drugs back to the US. A few weeks before Maharaj’s trial, he was arrested on a weapons charge in Jamaica. Florida prosecutors flew there to support him – rather unusual – and he got off with a fine. This was almost certainly a reward for testifying against Maharaj, but the jury never knew it.
‘There is an extraordinary rule in Florida,’ Stafford Smith writes. ‘The defendant in a criminal case can have access to the prosecution and police file only after he is convicted.’ By law, the prosecution has to turn over exculpatory evidence, but they didn’t turn over to the defence the actual results of Butler’s lie-detector test, which they told the judge he’d passed; police records revealed that, according to their own tester, the results were ‘ambiguous and inconclusive’. The prosecution presented the Moo Youngs as obscure, law-abiding, family-oriented – unlikely targets of a double homicide. Derrick Moo Young had reported earnings of only $20,000 the year before he died; his bank account never had more than a few dollars in it. But the police and prosecution saw his passport, and had access to his papers and credit card statements. These weren’t turned over to the defence until after Maharaj’s conviction, and Stafford Smith noticed oddities in them. In the nine months before they died, the Moo Youngs had taken 13 international flights, including to the Cayman Islands. Derrick Moo Young’s briefcase was found in Room 1215, but no one paid attention to what was in it: letters by Moo Young in which he was negotiating to buy a Panamanian bank for $600 million and to lend the government of Trinidad $2 billion. He had access to $5 billion in Japanese yen. The paper trail was enough to send Stafford Smith and his allies to the Bahamas, Trinidad, Panama and Colombia. Stafford Smith thinks the Moo Youngs laundered money for Colombian drug dealers, largely through Panamanian banks, and had been skimming 1 per cent for themselves, which was the real reason they were killed.
When Butler told the police he had watched Maharaj kill the Moo Youngs, they stopped looking for other suspects. They didn’t investigate, for example, the man staying across the hall from Room 1215, a Colombian under investigation for carrying $40 million of drug money to Switzerland. ‘Surely the evidence pointed strongly to a complicated drug hit,’ Stafford Smith writes. He says he’s discovered a man, Adam Amer Hosein, who phoned Room 1215 on the morning of the Moo Young murders; another man is willing to testify that Hosein was linked to the Moo Young businesses in Panama, and may have gone to Room 1215 with a gun that day.
All of this was enough, Stafford Smith was confident, at least to get his client a new trial. Eighty-six MPs signed a letter to the Florida governor, Jeb Bush, asking him to review the case. But Stafford Smith couldn’t prove that the Colombians had ordered a hit on the Moo Youngs, or that Butler had lied. And he ran into a problem: the ‘procedural bar – a rule which states that if a lawyer fails to object to something in the original trial, that objection cannot be raised at a later stage’. The court ruled that Hendon should have brought up the information about the Moo Youngs’ globetrotting and money laundering during the original trial (‘the defendant could have obtained the information had he used “reasonable diligence”’). Stafford Smith thinks this is unfair, and he’s right: ‘It is not the prisoner who is raising or “waiving” claims that might be important to his case.’ There’s a courthouse maxim that it’s not the worst criminals who get the death penalty but those with the worst lawyers.
There are more than two million incarcerated Americans. If the system gets it right even 95 per cent of the time, more than 100,000 of them are innocent. But Stafford Smith is convinced that there are many more innocent people than that, and he uses Maharaj’s trial as a starting point for an anatomy of judicial blight, of police officers who call going to court ‘testi-lying’ and forensic experts who get away with nonsense because the defence can’t afford to hire their own experts to challenge them. Lawyers are too often venal, and so are judges. In the end, Maharaj’s sentence was reduced to life imprisonment: Stafford Smith discovered that the trial judge – the one who replaced the judge who was removed for bribery – had secretly asked the prosecution to write the order sentencing Maharaj to death even before the sentencing phase of the trial, though the law requires judges to wait until they’ve heard the evidence and then to write their own judgments. With the threat of execution removed, the MPs lost interest. Maharaj’s appeals have now been exhausted, and it seems likely that he will die in prison. We end the book not convinced that Maharaj is innocent, but certain that he shouldn’t have been found guilty. This should amount to the same thing.