Goodbye to Death Row: Briton who gave hope to the hopeless goes home

Campaigning lawyer Clive Stafford Smith is leaving the US after 26 years of defending some of America's worst criminals. He talks to Andrew Buncombe
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The Independent US

Clive Stafford Smith is leaving with one last victory. After a quarter of a century working at the heart of America's criminal justice system - mainly fighting for people sentenced to death - the celebrated 44-year-old lawyer is returning to Britain.

Clive Stafford Smith is leaving with one last victory. After a quarter of a century working at the heart of America's criminal justice system - mainly fighting for people sentenced to death - the celebrated 44-year-old lawyer is returning to Britain.

His clients are losing a rare and valuable ally. Only last week, in what was his final case, Mr Smith secured the release of an innocent man who had spent almost a decade on death row. On Tuesday the prisoner, Daniel Bright, informed Mr Smith that the authorities had sent him a cheque for $10 by way of compensation. It worked out at $1.11 for each of the nine years Mr Bright had spent behind bars. "It's crazy," said Mr Smith. "The state, the federal government, the prosecutors - they're all immune from us suing them. The legal system is designed to protect lawyers. But I don't want to rant ..."

On Tuesday evening, sitting in a restaurant on New Orleans' Canal Street - the bustling thoroughfare, crammed with trams and people, that edges the city's French Quarter - Mr Smith recalled the 26 years he had spent in the US and explained why he had felt moved to stand up for those without a voice, to represent paedophiles and police killers and even - in an intriguing addendum to his curriculum vitae - to become a champion of oral sex.

New Orleans has been Mr Smith's home since 1993: he previously lived in Georgia and North Carolina. He always believed that having adopted the motto of "work hard, play hard", this steamy city on the bank of the Mississippi with its jazz and voodoo and endless appetite for pleasure would be more fun than somewhere like the comparatively austere Atlanta. It is also the perfect setting for his work.

Given that the majority of his John Grisham-style cases involve prisoners on death row and that the southern states, along with Texas, are the ones who most use the death penalty, New Orleans is the ideal location. The Grisham connection, incidentally, is no casual reference: Mr Smith says that the Mississippi writer based a large part of one of his novels, The Chamber, on one of the cases he handled.

As with a Grisham novel, the matter of execution is never far from Mr Smith's world. He estimates that he has handled more than 300 death-row cases. He has witnessed six executions, all of clients he failed to save. "I am there as their friend. I don't like it - I hate it. But it is not as bad, not nearly as bad, as seeing a jury sentence someone to death. One condemned prisoner whose execution he was about to witness told him: "You're the only person who has stayed by me, who has proved that they're my friend."

Mr Smith was born in Newmarket, Suffolk, where his parents ran a stud farm. He first came to the US in 1978, having won a scholarship to study journalism at the University of North Carolina. He might have followed that career path had he not spent a summer working with the Atlanta Team Defence Project, visiting death-row prisoners across Georgia. Very soon he realised that journalism was not for him.

By the age of 20 he was set on a new path. He later graduated from the Columbia Law School, worked as a staff lawyer for the Southern Centre for Human Rights in Atlanta for nine years and then founded the Louisiana Justice Centre, which operates from the premises of a former radio station and has a staff of 23. It was a career choice that was never going to make him rich: even now his salary is only $25,000.

Mr Smith's work has seen him represent many of what some would consider society's worst cases: rapists, child-murderers and serial killers. He has done so out of a belief not only that everyone deserves their day in court with proper representation, but that someone should not be judged by their worst acts alone.

"What is the worst thing you have ever done in your life? How would you feel if we were to judge you on nothing other than that?" he asked. "What if your brother murdered someone? Would you want to send him to jail or would you want to and understand why he had done it?"

At this point Mr Smith admitted he was something of a fantasist when it came to the notion of punishment and sentencing. He feels there is no point in jails, that they do not act as a deterrent and than society should not be looking to act out of revenge. He believes there should be secure establishments were criminals are held in order to protect society, but he believes that all killers and rapists - by the inherent nature of what they have done - are in some way mentally ill.

"Bin Laden? I believe he is insane," he said. "After everything he has done?"

He admits this belief is not something he shares often in public - aware that the American legal and judicial system is very much about punishment and has very little interest in rehabilitation of prisoners. In order for his work to be taken seriously by the prosecutors and judges he deals with, he chooses to use the system to fight the system. One example was his involvement in a successful effort in the late 1980s to decriminalise oral sex. Astonishingly, at this time consensual oral sex between adults was considered a crime - oral sodomy - in 25 states. The case he took on involved a Georgia man called James Moseley, who was fighting a custody battle with his estranged wife.

In order to secure custody of the children, Moseley's wife accused him of sexual assault - rape and two counts of "aggravated" oral sodomy. The jury did not believe the wife, whose own sister testified against her, and found Moseley not guilty.

But Clayton County Superior Court Judge William Ison decided - having heard Mr Moseley claim that the oral sex with his wife had always been consensual - decided the defendant had to go to jail. Having been advised not to appeal by his first lawyer, Moseley was sentenced to five years. In the prison exercise yard, Moseley would rub shoulders with killers and armed robbers who laughed when he told them his crime. Soon he started telling people he was a killer.

In a memorable appeal, Mr Smith used Georgia's own laws to overturn the sentence - but not the conviction - and have Moseley freed. "Mr Moseley was eligible for 20 years for his heinous crime," it read. "Had he committed the same offence with his wife after she was dead, he could only have received half the time. Had he had intercourse in the courtroom during the trial, his punishment would still have been less. Indeed, had he chosen not his wife, but a donkey, he could only have received one-quarter of the sentence. Had he committed the crime with a deceased donkey in the public square, he could not have been sentenced to as long in prison as for having oral sex with his wife. The law is patently unconstitutional as applied to Mr Moseley in this case."

Much of his work has involved cases in which Mr Smith believed his clients were utterly innocent. One of the most famous was that of 26-year-old Edward Earl Johnson who was executed in 1987 for a murder which most legal observers now believe he did not commit. The case became the topic of a BBC documentary and a follow-up film in which Mr Smith tracked down the man he believes committed the crime.

That Johnson could be convicted against a weight of evidence does not surprise Mr Smith. Johnson was black - and in the US a defendant is four times more likely to be sentenced to death if they are a black man convicted of killing a white victim than vice versa. But Mr Smith also points to a lunacy about the capital offence system in which once the process has started, a defendant's possible innocence is barely important. He cites a 1992 US Supreme Court case that found "someone's innocence is not constitutionally relevant to whether or not they should be executed".

Mr Smith and his English wife, Emily Bolton, who runs the justice centre's Innocence Project, are returning to Britain to be nearer their families. Mr Smith will be working for prisoners held by the US at Guantanamo Bay. He said their cases and that of Johnson, and the countless other black prisoners he has represented, are closely linked.

"Every generation has its nigger," he said. "And the way we define that horrible term is the people we look down on and blame for everything. The current generation's nigger is the terrorist. The terrorists and the criminals."

Mr Smith said he had spoken to the families of more than 40 prisoners at Guantanamo Bay, where the inmates are denied access to lawyers. "I have yet to find any one of them who I believe is guilty," he said.

Those who have worked with him and his wife over the years are quick to heap praise on their achievements. "Both are tireless champions of the notion that everyone is supposed to get a fair shot in court. But most don't," said George Kendall, former head of the legal defence fund of the National Association for the Advancement of Coloured People (NAACP). "They're going to be missed by many. Yet I think they've made sure that the work that's important to them is going to continue."

For now Mr Smith is focusing on finding some office space in London for his new project, appealing to anyone that can help with this to visit his website (www.reprieve.org.uk). He says given that the US will not let lawyers visit the Guantanamo Bay prisoners, he can just as effectively work from London.

On a personal level he is happy to be leaving - as a foreigner he still feels alienated despite the years in America. Neither will he miss the death threats and the complaints from prosecutors and police whom he has exposed in court. But he also accepts that by leaving the American south, by walking away from the corruption and racism that persists here, he is leaving the place where he can perhaps do the most good.

He said: "In the sense that there is no-one here to help those who need it, I feel like a traitor."

THE STAFFORD SMITH CASEBOOK

Krishna Maharaj

Once Britain's second biggest racehorse owner, Maharaj was convicted of the 1986 murder of a rival businessman in Miami and sent to death row. At the trial the defence lawyer failed to call witnesses who would have testified that at the time of the killing, the defendant was 25 miles away. The lawyer also failed to demand a retrial when the judge was charged with corruption relating to a bribe he had taken about the case. With Mr Smith's help, Maharaj had his sentence reduced to life in 2002. Mr Smith is still fighting for his release, believing it to be the most "clear-cut case of someone who is innocent".

Tracey Housel

Bermudan-born Tracey Housel, technically a British citizen, was executed in Georgia in March 2002 having been convicted of a series of killings across the US. Mr Smith tried to have his sentenced changed to life imprisonment. The British Foreign Secretary, Jack Straw, wrote to Georgia State officials to appeal for Housel. Mr Smith believes only the intervention of Tony Blair could have saved his client. "I was saying to them back in London that, with all respect, no one here has heard of Jack Straw," he says.

Daniel Bright

Daniel Bright, Mr Smith's most recent victory, was convicted of killing Murray Barnes outside a bar in 1995 on the night of the Super Bowl American football final. He was freed last week after Mr Smith revealed that the FBI had suppressed evidence that showed his client was innocent. He said that Mr Bright was now at an "undisclosed location" within the US because a number of people were after him. "We have had two people who were exonerated who have been killed within hours of being released," Mr Smith said.

Edward Earl Johnson

Edward Earl Johnson, who was executed in 1987 in Mississippi, was the subject of the award-winning film 14 Days in May. Johnson pleaded his innocence to the end and said that his confession had been forced out of him by police who had threatened to kill him on the spot. Mr Smith, who witnessed his client being gassed, took it upon himself to track down the man who he believes carried out the crime. He was never charged. "It's a sick world out there and everyone is calm and collected but I am telling you something - I am not calm and collected," he said after the execution.

Ryan Matthews

In April, Ryan Matthews, 23, was ordered to receive a retrial after his conviction for the killing of a grocer was set aside. Mr Smith says DNA evidence proves that his client was not responsible for the killing. Last week he secured his client's release on bail while he awaits the new trial. "There's no evidence he's guilty' he said. Matthews was on death row at Angola State Penitentiary for the 1997 killing of the grocer, Tommy Vanhoose. The Louisiana Supreme Court ordered the retrial after learning of the DNA evidence, which points to someone already in jail as the killer.

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