Clive Stafford Smith (2017)

I am not sure I have ever had an intimidating prisoner, but I have had one occasion when I have been attacked in the visitors room. That was by a very mentally ill person, and it was very sad as it gave the rather nasty warden of the Georgia Diagnostic and Classification Center the excuse to kick me out of the prison.

Privilege depends on what the client wants. With many issues, the client wants me to advocate for him or her in court and also in the court of public opinion, so that is easy. Sometimes that is not the case. For example, in the US it is often not at all in the client’s interest to be public about anything and then I’d be a fool to say much. But it is ultimately all up to the person involved. I can’t say I have ever found it much of an issue…

That is a good question. In theory, I have been involved in about 400 cases now, and have lost 6 of my own clients. But others have died when I have been helping on the case too, so that would take it up to maybe 12. That might still sound like a good success rate (388 out of 400), but that is misleading. I used in the past to agree to sentences that were horribly long for people in order to avoid the death sentence, and I now view that as a death sentence carried out in a slower way. And one person I represented at trial was innocent yet he got convicted even if he got life rather than death (thankfully he is out now). Then there are people like Kris who I got off death row, but he is clearly innocent, so that is a dreadful loss. And so forth.

I feel sorry for your boyfriend going to Gitmo. I will say I have found a lot of the soldiers there delightful and most have been really nice to me. They get filled up with nonsense about the prisoners though. One woman there had been told that my client, Moazzam Begg, was Hannibal the Cannibal Lecter, and would bite his way through the bars. He ended up making friends with her, and they are still in touch now that he is home safe in England. Anyway, I hope to meet your boyfriend when he is down there and I visit. But be kind of him and send him lots of care packages, get him on Skype every day, and make sure he has something interesting to do in his spare time - it is a dull place for the soldiers, though I kind of enjoy it now that I only go for a week at a time.

In response to how many Muslim men are thrown into Gitmo with no evidence - sad to say a huge number. There have been 779 people there and now we have 41, so that means 738 (95% or so) have been released, and in each case there have been a number of US intel agencies who have found the person to be “no threat to the US or its allies.” So in that sense there was no evidence against any of them in any sensible sense. But mostly there as “evidence” in the form of tortured statements or “snitches” who would make up stories in exchange for benefits (often in the so-called Love Shack that is being closed in Gitmo now, though they are not being too open about that!)

You are right. The British are not being very helpful to some of our British clients, though I do think they will intervene legally, if not financially, for Kris Maharaj. It does make you think though. Kris was a millionaire back in the day, and paid lots of taxes, and now that he is destitute and was facing the electric chair, you might think the Brits would do what the Germans, the Spanish, the Italians, the Mexicans, and others do, and help prisoners get meaningful representation. They should not leave it just to do-gooders like us!

Sadly there are many other stories like that. If ever there were proof that someone was disabled, it would be with Jerome Bowden who was told that he would avoid execution if he scored below 65 on the test, so he tried, got just above it, felt great that he had passed the test, and then said of his final meal that he would save his pecan pie dessert for later.

There was also Jerome Holloway, who was tormented by one unpleasant guard who would repeat over and over how the electrocution would go, so that he would be able to answer all the questions and be found competent to be executed. Fortunately, after describing how he would be shaved, strapped in the electric chair, have 2500 volts put through him three times, and so forth, he was asked what would happen next, and he said “I guess that is when they would let me go home.” We did get him off death row.

I learned about Kris’ case from the British consulate in Atlanta. It is a rather sore point, as the nice chap there asked me to help Kris. I went to do that, and naturally said yes, as it is always so hard to say no. And then when we needed financial help to get experts and witnesses, the British government denied that they had asked me to help him. So Reprieve ends up in a big financial hole on it all, and I am a tiny bit pissed off at the Government for reneging on a promise they made at one time to help him by giving him a loan to get his witnesses.

The government had to know about the cartel connection in Kris’s case as the Feds had an indictment out on the guy in Room 1214 (across the hall from the murders, with blood on the door) which was returned just before Kris’ trial. I suspected it when I saw that a guy from Colombia was across the hall, and when I learned the victims were laundering FIVE BILLION dollars around the Caribbean - I learned that in 1995. But I did not find out what the government knew until around 2012. And I know they are still hiding a lot, which we are trying to get now in court.

Yes, I have naturally heard of poor Joe Arridy, who was a mentally disabled 23 year old with an IQ allegedly 46. With most of the tests we used to use in the US, you get 45 for taking the test, so that is really only one point above the table on which you are working. Such instances are terribly sad. I had a series of seriously mentally disabled people facing execution and in more than one case the guy was IQ 49. Getting across what kind of limitation that was was hard. The judge said 49 is half 100 so he is half as intelligent as an average person. In the end, I had to get him to confess to assassinating (a word he did not understand) Presidents Lincoln, Kennedy and Reagan to show how limited he was. And the one thing he did understand was that people were laughing at him, which was dreadfully sad. The legal system is not a good way to deal with disabled people or, indeed, all kinds of unique individuals.

The Love Shack is where prisoners who were willing to inform on other prisoners would be allowed to have cigarettes and porn movies. I suppose it is understandable that a small number of prisoners would say anything to get a benefit - there was one person who informed on literally hundreds of his co-prisoners, making things up that were patently false, but that led to people being held for months and years without trial. The guy said, for example, of one detainee that he had seen the man in Al Farouq Training Camp in Afghanistan and one honest solider investigated all the classified (then, not now!) evidence and figured out that of the 16 people the man said he’d seen there, none had even been in Afghanistan at the time…

I went to the US to do death penalty work as when I was 16. I was so shocked that it was still being used, so I thought (in the arrogant way of youth!) that I could persuade everyone it was wrong… But I do think my mother’s advice was very good - that if we all work to help those less fortunate than ourselves, then everyone is better off. So I decided at some point that if you look around the world at the people who are most hated, and have least power on their side in a dispute with the government, and get between them and the ones doing the hatred, you can’t really go wrong. And believe me there is no moment, I think, when the imbalance of power between the Government and the individual is more stark than when the Government wants to kill you (and sacrifice you to some mythical god of deterrence).

In terms of the cases that really hurt, yes that is hard. When they killed Nicky Ingram in 1995, it really effected me. I had known him for years, and I liked Nicky. He was tortured to death in front of me in the Electric Chair. Long story. But if I close my eyes now, 22 years later, I can see the black and white negative of Nicky on the electric chair. It is a bit of PTSD I suppose. Though I do try to keep the focus on the fact that it was Nicky being killed, not me. And one thing he said to me just before they did it has always stayed with me - he said thanks for working for him, but that I had to keep on fighting for all the other guys, and not be too broken up about him. So I guess I took that to heart.

It is very unlikely that Kris will get compensated if he is exonerated. Frankly, I just want to get him out of there. My bet is that no matter what we come up with, the State is not going to back down, and even when we prove him totally innocent they will come to us with a deal where they do not want Kris totally exonerated. That is going to be tough, as Kris does not want it, but I don’t want him to die there (and at 78 years old he does not have long to live if treated the way he is treated). And there is his wife Marita, who is 77 herself and who needs to get home. But we will have to cross that bridge when we reach it.

I try to talk to the victim’s family always. There are very very few cases where that has not been the case, as I hate the pain they go through, and often the lies they are told. Kris’ case is one of the very few where the (sad to say, nasty) prosecutor at the time of the hearing in 1995 said she would have me prosecuted if I tried to talk to the victims, which was very sad, and I am sure they hate me for not talking to them. I wish I could share things with them. More often than not, though, I have had a really good relationship with the victim’s family, and I hope sometimes have been able to help them with their suffering. It is really important to help people understand (where possible) why someone they loved got senselessly killed.

I have often represented people who are guilty. I much prefer it. I don’t really like defending innocent people. To me, the essence of the human condition is that we are all better than the worst 15 minutes of our lives, and the most important questions are to understand why bad things happen, and then try to deal with them in a compassionate way.

Drop me an email! clive@reprieve.org.uk

Hey, I would have a TGIM sign if I had anything (Thank God Its Monday!). But I don’t really believe in that. I only wish the day had 72 hours. I keep time sheets for everything for years and years, because I am a nerd. So I can tell you I used to average about 100 hours a week, and am now down to about 75 of what we call work. But I don’t think of it as work because I love it. At the same time, it has always been a principle of mine that we should work hard and play hard, so I used to insist in the US that people took at least 6 weeks holiday a year, as compared to most people in the US getting a few days. Myself, I adore the cricket season (big win for my team, the Mapperton Marauders, last night and I am going on a cricket tour of Pakistan in September where we will be thrashed by much younger and fitter players). I also love building, though this week has involved digging a hole - that involved shifting 18 tonnes of earth - with a single spade, for a secret present for my lad Wilf, who is aged 9 tomorrow.

I’ve not seen a decent documentary on Gitmo. You should do one. The real problem is when people think they are going to see anything useful when there. The key to Gitmo is that they only show you the propaganda tour (I got in trouble for coining that phrase!) and nothing about the reality. So the real documentary of Gitmo will be the one where they go and ask to do all the things they cannot do - interview prisoners, see a force feeding, etc. - and make a film about what they are not allowed to do.

If you are a law student, I would say why on earth would you do anything but the kind of work I get to do? Working in corporate law is just soul destroying, and the main part of your work is just pretty pointless. Working for those who really need it is incredibly rewarding and I love almost every minute of it!

In terms of the most interesting case I have ever had, I would have to decline to answer in a sentence. I have had so many, so varied, so fascinating. I could list thirty that would tie for the top one. I guess one day I need to describe all of them in a book.

Send me an email and we’ll talk: clive@reprieve.org.uk. I do have a talk (a rant!) that I give on how to create the job that you really want to do for the next 50 years. It is more than I can say in a brief thing here, but glad to talk about it…

Again, get in touch! My email is clive@reprieve.org.uk

The force feeding is pretty horrid. General Branz Craddock did not like the fact that the hunger strikers were getting publicity, so he said (in the NY Times) that he would make it “less convenient” for them to do it. So they use tubes that are too big (painful!) and instead of leaving the 110 cm tube in after a feeding, they pull it out each time and force it back in. They force the liquid in too fast. And they have done it to Ahmed Rabbani, for example, every day for the past four and a half years. It is illegal (you are not allowed to force feed a competent hunger striker) but there is no legal system that will stop it…

In terms of Kris being framed, there was just a system for it back then. A former police officer told me, and then testified under oath, that they had a deal with the Cartel that when the Cartel wanted to kill someone they would have a cop on duty at the scene to make sure they did not get into trouble. The officer gave me a list of 17 homicides where a corrupt element of the police had been involved. I tried to get the FBI to do something about this, but they showed no interest. Sadly, there was so much drug money around that a cop could make a year’s salary by turning a blind eye, and that was a big temptation. In 1985, fully ten percent of the whole police force there was arrested or fired for corruption!

I have always attended the executions of my clients. It is (in my view, but not in the view of everyone) the last duty I have for people I represent. There are two reasons: one, sometimes you can get a stay even in the middle of the process. Larry Lonchar got a stay with 58 seconds left before his execution. Another person (who I was not representing) got a stay a year back during the execution, as it was botched. But equally, I want to be there so there is someone who gives a damn for the person being killed. It would be very lonely to be all alone. With one of my guys, for example, he had a running joke with me that he would fire me if I did not get his case stopped. And when he was on the gurney he turned to me, smiled goodbye, and mouthed, “You’re fired!”

In terms of “victimless crimes” - look I am not a fan of the so-called justice system in any way. Certainly there are things that should not be prosecuted under any circumstances. Drugs are one good example. Criminalising them is just stupid. But I have a bigger problem with the whole definition of crime. I do like to ask people what the most dreadful thing that they have ever done is (we have all done something of which we are greatly ashamed - I am writing a book that includes something terrible I said about my Dad); what the pain was that this caused; how that almost certainly is not something that is criminalised under our strange system; and yet how much more pain we caused than was inflicted on us by the worse crime committed against us. A long conversation, and not always true, of course, but more often than not it is. So the whole justice system is riddled with problems.

Over the years, about 70% of the people I have represented have been non-white. On death row in the US, for example, while the general population is 13% black, the death row population is 42% black. In Guantanamo, the non-white Muslim population was 777/778 (I guess the exception would have been David Hicks from Australia), so all of my clients have been non-white.

In terms of how many of my clients are free - actually an amazing number. Not all of them made it as far as death row, but the state was trying to send them there. One astounding sequence involved 171 capital cases in Orleans Parish (New Orleans) back in 1999-2003, where we managed to free 126 of the people. The conservative story here is that they had the wrong person in 74.9% of the time, so that the real killer was still out there. The liberal story was that the whole police system was profoundly dysfunctional if they were arresting the wrong person that often.

Tell your dad to get in touch! (I should add that I am not a fan of private schooling, but neither you nor I had the choice!) In response to your question, though, yes I am certain that Diego Garcia was used for torture flights and so forth, the evidence is very strong. It is pathetic that the UK has not come clean on it. But it is far worse that we would kick all the people off their islands and not allow them back, so the US could have a military base. That is colonialism of the very worst kind, and I cannot believe there is not more of a fuss made about it.

Shutting Gitmo is a no brainer. There are 41 people in it. Perhaps 10 would face trial - and they can, as someone like Khalid Sheikh Mohammed boasted on video that he was behind 9/11 so why not just put him on trial. The ones who cannot be tried should not be tried - that has been the rule since 1215, just 802 years ago, when we decided we should give people trials. Why should we change it now?

There is a lot of interesting stuff about innocence. One thing to bear in mind is how self-destructive innocent people are in the legal system. One, they are no help to me (who did it? I don’t know anything about it!). Two, they make terrible decisions. They are 110% sure they did not do it, so they cannot fathom how a jury of 12 people can find them guilty beyond a reasonable doubt. Kris is an example here. He knows nothing about who did the crime. He hired the lawyer who said he would do it for $20K rather than $250K as he felt it would be easy to find him not guilty. He wanted to rush to trial. He agreed to his (dreadful) lawyer’s (dreadful) advice not to put on his 6 alibi witnesses, or to testify. Etc. Etc. I am not blaming him, but the system does not realise the true impact of innocent clients.

Yes, there is a town around Guantanamo. It is a bit of an irony free zone. There is Recreation Road, that leads down past the Guantanamo Golf Course to the cells. There is McDonalds, where I first encountered the bizarre rule that soldiers had to salute officers, and say “Honor Bound, Sir!” The officer saluted back and said, “To Defend Freedom, soldier!” I thought it was a joke, when first I heard it, and I laughed. But they were serious. I wrote about all this in “Bad Men”, there is rather a lot to tell!

On death versus life without parole: I wrote something on this in the TLS a couple of months back or three. I hate LWOP. It is a slow death penalty. Yet I am partly responsible for the number of people who face this nightmare, and it is perhaps the thing I feel the most guilty about. Back in the 1980s, we were trying to stop the death penalty, and I figured out that jurors were only voting for it because they did not believe life meant life. So I wrote what was, sadly, a rather influential law review article on how we should make life mean life. It may have saved a few people from death, but it earned a lot more people LWOP. I hate that I did that and I apologise unreservedly for my error. I did a not-too-scientific study and figured out that this has perhaps meant that people have spent 2 BILLION extra days in prison in the last 30 years in the US…

Why do I include my middle name? I don’t! It is Adrian, and I hate it. My last name is Stafford Smith, without a hyphen, because my Dad changed it way back when, and was too cheap to pay the extra £3 to put a hyphen in. He wanted to call me Adrian, whereupon the initials would have been ASS, entirely appropriate perhaps, but not nice for me. So my Mum noticed, and now I am just Clive ASS…

Gitmo has only not closed because Obama did not force the issue. The Republicans have no more interest in justice there, than they have in the past justice for people on death row. It is all a political issue, designed to be divisive, and make the Democrats look weak. Very sad.

I’ve not got just one case, there are lots going on. But Kris is taking up a lot of my time. I’ve never really “chosen” cases. It used to be just the next guy facing execution. Nowadays, it tends to be someone who is caught up in something really terrible. So one thing we recently brought against Trump was his current effort to assassinate two journalists. He has an assassination list, started by Obama. Lots of people on it. It is mad. It is like we are in the time of the Borgias. Another demented policy decision in response to the “War of Terror” (as Borat calls it).

No lawyer holds back issues on appeal, that is just silly. On the other hand, the first appeal may take ten years, and by then the world has changed, and we have all learned a lot, so there is never a time when I have worked on a case and lost the first round and cannot come up with new issues for the second round of appeals. But it is getting very very hard now, under the “Antiterrorism and Effective Death Penalty Act” (which is not effective!). Kris Maharaj’s recent victory, being allowed a hearing in federal court on a successive appeal, is a very rare event.

I’m not really going to get into better or worse. There are many great things about the US (the US Constitution is a fantastic document). There are many decent people in the US. The current president of the US should never have been elected. There are many things about the policies of the US that are simply despicable and I, as an American, strongly disapprove of them and spend my life trying to right them. But I don’t pass judgment against a country any more than I do against a person.

I have never refused a case because the facts were too bad. Indeed, the worse the facts, normally the more compelling the reason why it happened. But I have refused a case where the individual had money. So I was asked to take on Saddam Hussein’s case and I have no problem with him getting effective representation - his hanging was a sorry reflection on humanity no matter what he did. But he had money and could get others to do it, so I would rather focus on those who have no money.

I met Omar Khadr in Gitmo and he was originally just 15 when taken there. He was abused horribly and the things he was said to have said were all abused out of him. What would any of us want to be paid to have our youth taken away from us from 15-25, and to be tortured? I don’t know. I never think money is the answer to these things, the real answer is to stop people doing them. But I don’t have a problem people being compensated.

Reprieve helped organise that - you can find it on our youtube: https://www.youtube.com/watch?v=4hQ5xz_5to4

I worked in the Deep South because that was the Death Belt. Sadly, it is not possible to do death penalty trials in Paris, much as I would have liked to…

I must add I loved working in Mississippi and Louisiana. Trying a capital case is fascinating. All 12 jurors have to have sworn that they would execute someone if the facts merit it, which means that 52% of all British people would not even make it to jury selection. So you are faced with 12 people who have said they will do it, and you have to get them not to. It is not hard. There is good in everyone, and in the jury selection process you get to know the jurors a lot. So it mostly comes down to the jurors’ religion. I always ask them what their favourite bible verse is, or whatever, and it comes down to Matthew Chapter 5 verse 7, “Blessed are the merciful for they shall obtain mercy.” If you do what the prosecution wants (don’t show mercy) you go to hell; if you show mercy you don’t. Pretty simple really.

This is a BIG question and I can’t do justice here. But if you want to think about being a lawyer, come and volunteer at Reprieve and you will see what it is like. I like to think you will come away from it wanting to do something like that for the next 50 years or so!

Answered this here -https://www.reddit.com/r/IAmA/comments/6n2gw5/i_am_clive_stafford_smith_a_lawyer_who_has/dk6dcoh/

Well yes, I have helped on such a case. I am loath to name names, as it was someone you would have heard of so I am not going to say who. But he was frankly totally mentally ill. He really didn’t even understand that he was on death row. I always think that being a serial killer has to be prima facie evidence that someone is deeply mentally ill, don’t you? Why would someone do that?

It is not true to say that the management staff at Reprieve are all white women. As founder, I dare say I am not one! More to the point, our Casework Director is non-white. 32% of Reprieve staff are from BAME communities and we're really proud of the diversity of our staff.

It is true to say that there are many more women than men at Reprieve, which many would celebrate. I tend to wonder why men are so much less willing to devote themselves to a charity cause than (it seems) women…

With respect you are wrong here. To be sure, some (a very small number) have committed bad acts upon release (interestingly far lower numbers than the recidivists - genuine recidivists - in US prisons). But that does not mean they “returned” to terror from Gitmo. There was no evidence those people had been involve in it before. Because I have sadly talked to so many people who have been tortured by my government, I am actually amazed that more have not done dreadful things upon release.

I’m not sure how our Finance and Governance Deputy Director would feel about being told he’s not a man.