The Englishman on Death Row

For 12 years, Clive Stafford Smith's life has had one overriding purpose - to keep the condemned out of the electric chair. He has succeeded 200 times. But we know him best for the cases he has lost. Profile by Peter Gillman. Portrait by Fritz Hoffman

Peter Gillman
Sunday 23 October 2011 05:51

The first hate mail arrived just two days after Nick Ingram was executed. "To Clive Stafford Smith," read a typed letter from one Frank Pezzolla of Atlanta. "I, like many others in Georgia and across America, are damn sick and tired of reading and hearing your moans about your 'pal' the late Nicky Ingram. One would believe it's the first time we've fried some real American hero in this state. For God's sake man, he was a bad guy. You and your ilk are an anachronism in modern-day America. If it displeasures your kind so much, why not get the hell out of my country?"

As he tossed the letter back on to the cluttered desk of his office two blocks from the French quarter in New Orleans, Stafford Smith conceded that it was a fair question - and one that he had been pondering in the days since Ingram had been electrocuted on 7 April in Georgia's surreally named Diagnostic and Classification Center in Atlanta. Why indeed should a British lawyer, from a comfortable English middle-class upbringing, a former public school head boy and a cricket lover to boot, take on the weight of both the US judicial system and US public opinion, which, in their wisdom, have decreed that murderers should be put to death?

Certainly, Stafford Smith could be forgiven for feeling he has served his time. He has been a Death Row lawyer for 12 years, and seven years have already passed since his last major exposure in the British media. British audiences following the switchback drama of Ingram's final days may have sensed some familiarity with his earnest, bespectacled face or the mid-Atlantic drawl - an uneasy cross between Standard English and Deep South - with which he argued for Ingram's life.

In 1988, Stafford Smith appeared in the extraordinary BBC television documentary Fourteen Days in May, which reported the final days on Death Row of a young black man, Edward Johnson, at Parchman Farm, a state penitentiary in Mississippi. Stafford Smith was seen fighting to save Johnson until barely an hour before he was led away to the gas chamber. It was the first case the lawyer had lost.

Since then, Stafford Smith has been defeated in just three other cases, Ingram included, out of more than 200. Yet the tears he shed in the viewing chamber as Ingram was electrocuted may be interpreted as a lament both for his client and for himself. Stafford Smith has seen one marriage and several other long-term relationships founder through the relentless physical and emotional demands of the work. His salary from the Louisiana Crisis Assistance Center amounts to $25,000 a year - not even one tenth the earnings of former law-school colleagues now ensconced in US law firms or corporate practices.

He drives a Nissan Cintra with 140,000 miles on the clock - or rather did, until it was written off in a crash shortly after Ingram died. The Nissan's replacement, a Toyota Camry (200,000-plus miles), floated away in the floods which hit New Orleans soon afterwards. He lives in an early 19th-century house in the Lower Garden quarter of New Orleans which, despite its historical provenance - a cousin of Abraham Lincoln once lived there - is so much in need of refurbishment that his mother felt compelled to take up a paint brush on a recent visit.

Jean Stafford Smith also reveals that when Clive took up Death Row work, she imagined he would stick it for five years or so. Stafford Smith admits that he set himself the same approximate limit. "I didn't think I'd last much longer myself."

Stafford Smith agrees that the impetus for his career may be located in his quintessentially English upbringing - or rather, in what became of it. Now 35, he grew up in Cambridgeshire, where his parents owned a well-known stud farm for race-horses, and he appeared set to follow a pre-ordained pattern of family success. His brother, Mark, won a scholarship from prep school to Radley, where he became head boy. Clive, two years younger, followed precisely the same path, then surpassed his brother by playing cricket - as an aggressive opening bowler - for the school's first XI. When Mark progressed to Emmanuel College, Cambridge, Clive seemed destined to follow.

Then came a family cataclysm. The stud farm went bust, his parents divorced, and Clive rebelled against "everything". He rejected Cambridge and took up a scholarship to study politics in North Carolina. (This time, he appears to have led the family exodus - Mark is now a researcher into arid land management in Alice Springs, Australia; and their sister, Mary, is researching the pollution of coral reefs in Queensland.) As part of his course, Clive was assigned to spend his first summer with the Los Angeles Police Department, where he was first intrigued, then appalled, by the officers' fervent support for capital punishment.

As a corrective, he spent the next summer with a group of Atlanta lawyers, known as Team Defense, who worked on Death Row cases. Stafford Smith paid frequent visits to the Georgia state penitentiary and came to know most of the prisoners on Death Row. "I was 19," says Stafford Smith. "I thought they were really nice people. Killing them just seemed senseless."

Although Stafford Smith was to formulate rather more elaborate views on the immoral, unjust and barbaric nature of capital punishment, he remained guided by that first instinctive response. He spent three years studying law at Columbia University in New York, and then returned to Georgia to join another Death Row group, the Southern Prisoners Defense Committee (SPDC). Its director, Steve Bright, had no qualms about hiring this eager young Englishman.

"He was incredibly enthusiastic and willing to work for almost no money," Bright says. "He had never even handled a traffic case before. Yet he seemed quite fearless, and plunged right in."

The aim of the SPDC, and the handful of Death Row practices like it, was to fill a manifest lacuna in the US judicial system. Most prisoners who end up on Death Row are drawn from the ranks of the indigent and powerless, unable to afford lawyers and forced to depend on public defenders or those prepared to work for miserly legal aid rates which, even in capital cases, may be limited to $1,000 for the entire trial. (Some courts adopt the imaginative procedure of awarding legal aid cases to the lawyer who puts in the lowest bid.)

Worse still, convicted defendants wishing to appeal are provided with no funds at all, save in some cases to cover a single application to the next court in line. This practice has been endorsed by the US Supreme Court, which ruled that convicted prisoners have no right to an attorney after their first appeal has been heard. As a result, 70 per cent of Death Row prisoners who wish to appeal cannot afford to do so. It is here that Death Row groups step in. Funded minimally and erratically by charities and individual donations, they search for openings in the jumbled strata of the US judicial system through which they can extricate their clients.

It was in these procedures that Stafford Smith rapidly became an expert. He came to relish the quest for inconsistencies and loopholes which would save his clients, fortified by a distinctly unflattering view of his judicial opponents: "bozos" and "morons" are two favoured epithets. At the same time, his principal motivation remained his anger at the amoral ruthlessness of the system in which his clients were caught, together with the casual complicity of some of its minor players. Such, at least, was demonstrated by a day in court in Lake Charles, a dreary town of boarded-up shops and desolate parking lots in southwest Louisiana, badly hit by twin recessions in the US oil and farming industries.

Troy Dugar, Stafford Smith's client, had the dubious distinction of being the youngest person on Death Row in the US, having been convicted and sentenced to death a few days after his 16th birthday. Yet the murder for which he was convicted was like some pulp-fiction fantasy: he and a second black youth, aged 14, steal a gun and car; they hold up a food store and emerge with two cup cakes and a carton of milk; they kidnap a man at gunpoint, bundle him into the boot of the car; and finally, after driving around aimlessly for two hours, they take him out of the boot and shoot him - almost, it seems, for want of a better idea. Then they drive into Texas, where they leave the car in a parking lot, phone Dugar's father and ask him to fetch them home. Having left copious forensic clues, they are arrested a few days later.

From this moment, the odds were monumentally stacked against Dugar. His parents could not afford to hire a lawyer and so he was allocated two members of the Lake Charles public defender's office. These officials handle around 500 cases a year and admit that the only possible strategy, in view of their meagre resources and absurd case load, is "run, hit, run".

Their opponents, who made little secret of their determination to send Dugar to the electric chair, were the local assistant district attorney, Rick Bryant, and the judge, one Arthur Planchard, who can best be described - in view of Louisiana's chosen execution method - as a frying judge. With Planchard's approval, Bryant first struck a deal with Dugar's 14- year-old companion, James Moore, who agreed to testify for the prosecution in return for just six months in juvenile custody.

Moore included a crucial new detail in his testimony, namely that Dugar had taken $3 from the wallet of their kidnap victim. It was an allegation which Dugar adamantly denied. But, once convicted, it ensured that the killing had been committed "in the course of a robbery" and therefore ranked as a capital offence.

Dugar was also tried separately for the theft of the gun - he obligingly agreed to plead guilty. This brought him a prior record for robbery, which proved a decisive issue in the sentencing phase of his murder trial, when the jury decides whether he should receive the death sentence. The jurors appeared not to find it remarkable that they should be asked to send a boy of 16 to the electric chair: such is the climate of opinion in Louisiana that its legislature had recently debated whether to reduce the minimum age for the death sentence from 15 to 13.

Stafford Smith arrived in Lake Charles in a mood of calculated aggression: with 30 or more cases to look after, he says, you have to make the most of your opportunities to strike. This particular opportunity consisted of a hearing at which Judge Planchard was due to present a report that would be submitted to the Louisiana Supreme Court, which reviews all death sentences in the state. Normally, the hearing would be a formality, but Stafford Smith intended that it would be anything but.

Stafford Smith believed that a key issue in Dugar's case was the state of his mental health. Before Dugar's murder trial, a prosecution psychiatrist gave Dugar a reading test from a weight-loss manual. On that evidence, and little more, the psychiatrist declared that there was nothing wrong with Dugar, other than that he seemed "nervous". Stafford Smith had since discovered that, while on Death Row in the state penitentiary in Angola, Dugar had been having hallucinations and fits, was being heavily sedated, and had spent 26 days manacled to a bed in the prison hospital. Stafford Smith commissioned a report on Dugar from an independent clinical psychologist who concluded that Dugar was schizophrenic.

The scene at the Lake Charles court illustrated the casual, almost conversational, manner in which Death Row decisions are made. Stafford Smith and Dugar, a bemused youth wearing orange prison overalls, sat just a few feet along from Rick Bryant, the man who was attempting to send Dugar to his death. The main witness was to be Dugar's probation officer, Albert Honsiger, a pot-bellied man in his forties who had compiled the trial report on the judge's behalf. Even he had found nothing wrong with Dugar, nor had he shown any doubts whether Dugar should be executed.

When writing the report, Honsiger had been asked to consider whether the death penalty was an "appropriate" penalty. Honsiger, unabashed even by his inability to spell, had written: "We feel that the deliberateness and visiciousness [sic] of the attack for no reason whatsoever removes the question of whether the sentence was disproportionate."

By the end of the day, Stafford Smith felt he had won some crucial points, both in undermining the trial report and in extracting errors from Judge Planchard which could serve as ammunition at later hearings. Even so, it was to take a further three years before Dugar was removed from Death Row, after Stafford Smith won an argument to the Louisiana Supreme Court on the issue of proportionality - namely, that the death penalty was entirely inappropriate for a schizophrenic teenager who had committed such an aimless crime. Stafford Smith now hopes to have the conviction itself quashed on the grounds that Dugar was mentally ill at the time of the offence, and has submitted a further appeal to the Louisiana Supreme Court to that effect.

It is a savage irony, of course, that, having won in more than 200 low-profile cases like Dugar's, Stafford Smith should be best known in Britain for two spectacular failures. The first was that of Edward Johnson, depicted both in Fourteen Days in May, and in a sequel, The Journey, when the BBC producer, Paul Hamann, filmed Stafford Smith during a return to Mississippi in a bid to prove that Johnson was innocent.

In retrospect, Stafford Smith agrees that Johnson represented one of his toughest cases and one that touched the most profound fears of white Mississippi. A poor black from rural Mississippi, Johnson stood convicted of murdering the local sheriff while robbing a white woman's home.

Stafford Smith remains morally certain that Johnson was innocent. And although there were damaging details in the case against him, the more important point was that his conviction had been a farce. Identification procedures were a travesty. The judge was so anxious to complete the trial by the weekend that Johnson's attorney was told to limit his closing speech to 30 minutes - and was even cut off in mid-sentence with the words, "Time's up." But Stafford Smith had come into the case so late - three weeks before the execution date - that most possible stratagems had been exhausted by Johnson's previous lawyers.

Ingram, Stafford Smith insists, should have been different. This time, he had been on the case almost from the start, going back to his earliest days at the SPDC in Atlanta, and spanning his move to set up the Louisiana Crisis Assistance Center in New Orleans two years ago. He felt close to Ingram since they were both born, four years apart, in the same hospital in Cambridge. Although the evidence that Ingram had indeed committed a murder during a robbery was strong, Stafford Smith had been convinced that Ingram had an excellent chance of having his sentence commuted to life imprisonment, not least because 11 out of the 12 jurors had later declared that they had voted for the death penalty in the belief that it would never be carried out. Stafford Smith now believes that Ingram fell victim to the new and insensate compulsion in the US to apply the death penalty wherever possible, with New York becoming the latest state to reintroduce executions. (The total now stands at 38 out of 51.)

"Nicky had a better case than most," Stafford Smith says. "But they just ignored us. Clearly, under the legal rules, we should have won, but they just didn't give shit. They wanted to execute him and they just steamrollered it."

In the final days of Ingram's life, he and Stafford Smith forged a remarkable alliance to demonstrate their collective refusal to participate in the rituals which Stafford Smith believes are intended to give the death penalty a veneer of acceptability. It was in this spirit that Ingram declined to order a final meal, and spat at the chief warden when he was invited to make a last statement before being strapped into the chair. "You're standing there waiting to die and those people want you to announce your death," Stafford Smith protests. "Nicky was not very articulate at the best of times. It was all he could do to express his contempt for what was going on."

Stafford Smith was particularly enraged that, in the week before Ingram was finally executed, the New York Times asked Julia Child, the cookery guru, to compose a suitable menu for a pre-electric chair meal - even weighing the merits of rival wines. "It made me want to vomit," he says.

Contempt is also the word Stafford Smith uses to describe his feelings towards John Major for refusing to seek clemency for Ingram. Stafford Smith says that he is utterly certain - he hints at a source in his opponent's camp - that such an appeal would have succeeded. "They were sitting around waiting for the word," he says.

He was doubly enraged that Major should justify his refusal by referring to the "due process" of US law, given the way Death Row prisoners are abandoned by the legal system once their first appeal has been turned down. "Even now he just doesn't get it," Stafford Smith says of Major. "He pissed me off, he really did. He could have saved Nicky's life."

A day or so after the execution, Stafford Smith flew back to England to spend a long weekend with his mother - the family, she says, has a habit of "returning to the nest when something bad happens". Stafford Smith admits that Ingram's execution had left him "more depressed than ever before - it really got through to me".

The following week, he was back in New Orleans. After junking his hate mail, he talked about what could become his next headline case. It concerns another British citizen on Death Row, Krishna Maharaj, a businessman convicted in Florida of shooting two men, who, he claims, were attempting to extort money from him. Stafford Smith intends to take the case to the Florida Supreme Court. "The grounds for conviction look pretty dubious." In view of John Major's misconceived comments on the propriety of the US legal system, Stafford Smith has written to him to argue that the British government should pay for Maharaj's defence in the US, as the Germans and Mexicans already do.

Since arriving in New Orleans, Stafford Smith has been taking up more cases at their initial stage, seeing prevention - in the form of winning acquittals at trial - as preferable to the constant attempts to intervene once the Death Row juggernaut is under way. So far, he has achieved an impressive record, having seen only one defendant convicted of first-degree murder.

He hints that his supply of energy for capital trials may not be inexhaustible. "It takes its toll," he says. "It's really, really wearing." During his long weekend at home, he considered returning to Britain, perhaps giving rein to his undoubted ambition - "the sky's the limit" - by going into politics with the Labour Party. Once back in New Orleans, he seemed to recover his anger and his zest. "I've got plenty of unfinished business. I don't want to leave until I just can't take it any more."

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