The Valley of the Shadow of Death

On a pretty regular basis, people write or send e-mails asking that I volunteer my services on behalf of one or another person in prison or on death row who the writer knows absolutely to be innocent.  Often there's an additional inducement.  Perhaps a cut of the lawsuit against the oppressive police and prosecutors and judges who put this person behind bars or on a path to the gurney.  Perhaps the fact that it's so open and shut a case that no serious work will be involved to free the person who's languished in prison for decades.

There was, for instance, this note that I came across while clearing some old messages out of my inbox recently.

In my opinion, a private investigation of that matter should get acquittal by itself without even going to a court, a prosecutor can merely review the findings, then make a few phone calls, and sign some papers for his release.

Would that it were that easy.  Just find an investigator (not, obviously, one of the numerous corrupt and incompetent ones who have failed over 20 years or more to discover the readily available overwhelming proof of innocence) who'll work for nothing for a couple of hours and then call up the prosecutor.

Voilà

Except, well, no.  It doesn't actually work like that.

The evidence, if it exists, isn't sitting on the kitchen table ready to be picked up.  It isn't available with a quick Google search.  And it isn't, frankly, all that self-evidently compelling.
And even if it were, the prosecutor has neither the power nor, almost surely, the inclination to be readily convinced and then to act on it and secure the person's freedom with the stroke of a pen or a phone call or two.

It really is a lovely idea, It's also nonsense.

Once the jury says 

Guilty!

Well, it's pretty much over.   If they say he did it, then there's nothing much left to consider.  Just some technical mumbo jumbo about hearsay rules and exclusionary rules and Batson challenges and effective assistance of counsel, about which nobody gives a rat's ass.  

Because, after all, the jury said 

Guilty!

Which means it's pretty much over.  Because he either did it or might as well have.

That's the sad truth underlying Clive Stafford Smith's new book, The Injustice System: A Murder in Miami and a Trial Gone Wrong.

It was 1986 when Krishna (Kris) Maharaj, a successful businessman, was charged with the murders of Derrick Moo Young and Duane Moo Young at the DuPont Plaza Hotel in downtown Miami, a crime horrific in its coldness and brutality. It was 1994, when Smith first met him. represent him for free. By then, Kris had been on death row for seven years. All his money had been spent on lawyers who, truth be told, didn't do the job. Now he was broke and his best legal options largely past. In The Injustice System, Smith tells the story of how it is that Kris ended up there and of the fight to free an almost certainly innocent man.

In the world of capital defense, as in pretty much every field, there are stars, those lawyers others turn to for advice and inspiration.  Clive is among them.  He founded a couple of non-profits (the Louisiana Crisis [now Capital] Assistance Center and Reprieve). He teaches at major national capital defense seminars.  He's smart, clever, dedicated, passionate.  You get him in your corner, things look up.

That's certainly how it looked to Kris Maharaj.  But then, Kris had always figured things were going to look up.  He was innocent, you know.  That would be obvious to the jury.  If not, it would be obvious to the judge.  It followed that there was no need to fuss, no need to spend big bucks on a first rate trial team.  Just a lawyer who talked a good game.  Really, that would be all he'd need.

Except it wasn't.  And the next guy and the next guy and Kris was broke and then Clive came to see him and, as I said, with him in your corner, things look up.

As I said, this is the story of how it is that Kris ended up on death row for a crime he almost certainly didn't commit.  And about what happened after that.  Smith takes us through the case point by point, historical event through historical event.

He begins with the trial, then the sentence.  What happened next and his first meeting with Kris.  Then there's examination and investigation as Smith peels away the lies, the distortions, the misrepresentations.  And what he finds as he digs deeper. 

He investigates the witnesses.  He looks for other suspects.  He follows the money.  Was Derrick Moo Young tied to the Columbian drug cartels?  It sure looks that way.  Was his murder a hit for stealing from the Columbian drug cartels?  It sure looks that way.  

And what about the crooked judge?  And what about the jury?

Kris files post-conviction pleadings in state court, then in federal court.  This is how it goes, how these cases play themselves out.

Smith explains it all carefully and clearly.  These are the legal steps.  These are the legal hurdles.  Here are the stories of other cases and how the went.  Stories of other prosecutors and other judges and other juries.  Of other investigations and other innocent men and women. Here are stories of forgiveness and compassion, and stories of hatred and vengeance.  He tells the story of Rais Bhuiyan (which I've written about here and here).

Through it all, Smith never loses sight of Kris, who is himself both ordinary and extraordinary.  And of Kris's wife, Marita, who's simply extraordinary.  They, as much as the family of the Moo Youngs, are victims here. 

As an epigraph, Smith offers this from Pascal Calogero, a former chief justice of the Louisiana Supreme Court.

Our justice system makes two promises to its citizens: a fundamentally fair trial and an accurate result.  If either of those two primises is not met, the criminal justice system itself falls into disrepute.

And so it does. The Injustice System lays it out.  Piece by piece.  Kris's case is the model. But it's not just his case.  It's another and another and another.

Most of the books you'll read - even the really good ones - about innocent men and women caught up in the system, like most of the movies and TV shows, most of them are about a case where things went wrong.  For whatever reason, the system screwed up.  It failed. And then through some combination of diligence and luck and pluck the truth came out.

This book is different.  Oh, it shows the system screwing up.  But Clive makes clear that it's not an aberration. And diligence and luck and pluck - they just may not be enough.

Clive is, among other things, a terrific storyteller.  And he's got a terrific story to tell.  Of how the system fails.  How it's designed to fail.  How failure isn't an accident, it's a feature.

At the same time, ever and always, it's a story of man.  I'll give him the last word.  He was in the hospital associated with the prison. Shackled to a bed. Suffering from a flesh-eating bacteria. Smith paid him a visit.

I ask Kris what keeps him going, when he can't do anything in the hospital.  He responds by quoting Psalm 23, the entire thing from memory. "'Surely goodness, mercy and love shall follow me all the days of my life,'" he intones.  I look at the grubby wall again and wonder. 

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My thanks to the publisher for sending me a copy of The Injustice System for this review.

Post-Moretem

I haven't been posting lately, and for a variety of reasons it'll probably be another couple of weeks before I'm back at it regularly.  But I'm something of an election junkie, so here are a few observations from last night.

Propositions 34 and 36

Supporters point out that more than four million Californians voted to abolish the death penalty.  That's extraordinary, but it wasn't enough.  Proposition 34 lost by about a half million votes.

Is there a lesson in that?

Here's one.  Economic arguments against the death penalty in a weak economy have force, but not as much force as misleading stories about monsters being set free to rape and pillage and murder at will.  Here's another. If California voters won't vote for abolition, it's probably not a good idea for abolitionists to be aiming for a referendum in other states, either.

But while voters were turning down Prop 34, they voted big for 36.  That was the one to loosen the state's 3-Strikes law.  It passed with just over 2/3 of the vote.  That's a margin of more than 3 million voters which is downright impressive.

But notice that they didn't eliminate three strikes.  They just limited it.  Unless one of the three felony strikes involved guns, sex, or drugs, a third felony won't trigger an automatic 25-life sentence unless it's a particularly serious or violent one.  Or something like that.  Otherwise, the third strike just gets a sentence double what it would otherwise be.  So not paying for the pizza - if that's the third felony - may not lead to a life sentence.  Just years and years.  Which is better, but if I were in the Golden State I probably wouldn't be dancing in the streets over it.

Texas Court of Criminal Appeals

Maybe if the democrats had actually made an effort to oust Killer Keller, there'd be good news on this one.  Maybe not.  In any event, they didn't and she got herself re-elected.

At the same time, and to the surprise I expect of nobody - least of all he - Mark Bennett's quixotic campaign for the Court of Criminal Appeals failed.

Marijuana

Arkansans and Montanans decided the scourge of Killer Weed is sufficiently horrifying that those who needs its health benefits should shut up and suffer.  They turned down proposals to allow medical marijuana.  On the other hand, those drug-addled voters in Colorado and Oregon and Washington voted to legalize a recreational puff.

Of course, Obama won re-election and his justice department has made clear that whatever the states might say, the feds will happily prosecute anyone caught with a few seeds.  It's not like it was an election issue or anything, and there's no reason to imagine that a Romney win would have changed that.  

But the legalization votes signal something important about a change in direction.  Not everywhere and not all at once, but it's a movement.  The drug war isn't anywhere near its last gasp, but there's some indication appearing that its worst excesses are maybe, just maybe, beginning to pose a problem.

Same-Sex Marriage

In state after state after state, voters have enacted bans of one sort or another on same sex marriage.  Those places where it's become legal have achieved legality by legislation or judicial decision.  (And there's a pretty good chance that SCOTUS will rule on the federal defense of marriage act, known as DOMA, this term.)  Until now.

Voters in Maryland and Maine passed referenda in favor of same-sex marriage.  It looks like maybe Washington State voters will, too.  And in Minnesota, while they sent Michelle Bachman back to Congress, they turned down an effort to ban same-sex marriage.

Immigration and Immigrants

If exit polling is to be believed, what everyone paying serious attention expected actually happened.  Latino/Hispanic voters went big for Obama and it's not because they're major fans of the Affordable Care Act or increasing taxes on those making over $250,000 or because they agree with his stands (or maybe half-getting up from his seats) on abortion or same-sex marriage or the right unilaterally to decide which Americans should be killed by drones.  

No, they voted for Obama because even if he didn't actually manage to get the Dream Act passed, he favored it.  And because he didn't announce that they should all be deported - and maybe even deport themselves.  And because he wasn't openly hostile to them.

Because, that is, the Republicans drove them away.  We don't want your kind, they effectively said, which is another way of saying "We don't want your votes."  Which if you're trying to figure out how to drive away voters is a pretty good approach.  But it can be a problem if they all come out and vote against you.  And if they're the fastest growing segment (at least by some measures) of American society.

On the other hand, Joe Arpaio cruised to an easy, and apparently unprecedented, sixth term as Sheriff. So maybe none of that applies in Maricopa County, where not much else that reflects either good sense or the Rule of Law does, either.

Abortion

It should simply be noted that the Senate candidates who said the stupidest things about pregnancy and abortion all lost.  

SCOTUS

Over at The Volokh Conspiracy, David Bernstein offers a series of predictions.  This one is probably right.

I’m pretty confident that Ruth Bader Ginsburg will retire before Obama’s term is up. I’m also pretty confident that unless they die or become totally incapacitated, Anthony Kennedy and Antonin Scalia aren’t resigning.

Democracy

The 1964-65 television season brought a short-lived dramatic series about a state legislator, James Slattery, played by Richard Crenna.  (It apparently played in Latin America in 1967.)

Here's how each episode began, and it's perhaps appropriate that I can only find it with Spanish subtitles.