Over the centuries, there have been many occasions where a notion was adopted by the majority, and imposed suffering on innocent citizens, only to be debunked later. The Salem witch trials provided an early instance of this. We chuckle at the folly of these bygone beliefs, albeit with a tinge of sadness for those dragged to the gallows.
More difficult to identify are the false theories to which we cling today. Take the object of my own life’s work: the justice system itself. Simply put, it is not fit for purpose. I came to this realization, belatedly, when trying to understand how I could have failed Krishna Maharaj for more than two decades. Maharaj is a British national who was sentenced to death for the murder of Derrick and Duane Moo Young, in Miami on October 16, 1986. I took on his case in 1993 and my team’s investigation has proved beyond any doubt that he is innocent. And yet he remains in jail.
There is a dictum in criminal law, from around 1769, when the jurist Sir William Blackstone said that “it is better to let ten guilty persons go free than (let) one innocent suffer”. If we took this seriously, there are various rules that could guide the structure of a system geared towards upholding this, beginning with how we choose the players suited to each role. Instead, the wrong people find themselves appointed to almost all the relevant positions.
Consider the police. Maharaj was having dinner with his wife and friends when Detective John Buhrmaster came into the restaurant, slapped handcuffs on him and forced him into the squad car. That is one kind of power. Given this police potency, the designer of the justice system should look for recruits who are sceptical and wary of mistakes. Yet the converse is true. A case in point: some time ago two Metropolitan Police officers came to my home to explore the possibility of prosecuting some politicians for involvement in torture. I asked them how often, in their fifty-four years of cumulative experience, they thought they might have arrested the wrong person, albeit by mistake. “Never!” they said. If they are as fallible as I am, they make mistakes daily, yet their confidence is encouraged from the top.
Next is the prosecutor. Those selected to prosecute should be the people most intimidated by their own power; we should ensure the disclosure of all evidence, whether it implicates the accused or someone else. Instead, we often select people who strongly believe in punishment and make them the ones to decide what evidence should be admitted to court. At Maharaj’s initial trial, Derrick Moo Young appeared to the court to be a disabled businessman living. The only thing he had to fear, the jury heard, was a homicidal Maharaj, who had allegedly defrauded the Moo Youngs. Florida is one of a majority of states with the bizarre rule that the defence may only have access to the police or prosecution file after conviction. I took advantage of the rule to review what prosecutors had not shared with Maharaj’s original defence lawyer. I thought Christmas had come early. Moo Young’s briefcase contained notes showing that he had stolen money from Maharaj, rather than the converse. The Moo Youngs were offering loans around the Caribbean, from $100 million to $5 billion, leading to all sorts of other evidence that they were laundering drug money. The police notes showed that Maharaj had reported his gun – presumed to be the murder weapon – as stolen.
Which brings us to the defence lawyer. Maharaj was not poor. Indeed, he was a wealthy businessman. But he surveyed the lawyers willing to take on his case and chose the lowest bidder. He knew he was innocent, so who would pay a quarter of a million when he could walk free for $20,000? With a set fee, inevitably his lawyer was under pressure to get the case over as soon as possible. The trial included one of the most extraordinary events I have encountered: on day three, Judge Howard Gross was arrested by the Florida Department of Law Enforcement. When the judge was led away in shackles, Maharaj had the right to start the case again – but his lawyer advised him to plough on, with a new judge who had missed crucial evidence. There was no excuse for this, but did a limited flat fee encourage the lawyer to conclude the trial quickly?
Perhaps the most underrated flaw in the judicial process is the role of the “expert witness”. While law enforcement has a strong interest in developing forensic “sciences” to capture “criminals”, there is no parallel interest group whose role is to debunk the government’s tools. Hardly any of the science used in the courtroom stacks up. In the Maharaj case, the prosecution ballistics expert testified that in his opinion the bullets that killed the victims were probably fired from a Smith & Wesson 9mm of the type allegedly in the possession of the defendant at the time of the murder. There was no scientific basis for this opinion. “Whatever else ballistics could be called”, concluded a federal judge in another case, “it could not fairly be called ‘science’”.
Finally, we must consider the judge and jury. Here, the issues echo some of those already discussed. For example, in the US, judges tend to be pro-prosecutor, because they were career prosecutors before running for election on a tough-on-crime platform. In Maharaj’s case, Judge Gross was venal, and was arrested mid-trial. His replacement, Judge Solomon, asked the prosecutors to write an order sentencing the defendant to death before he had listened to the evidence. Why? Was he biased, or was he concerned that he would lose an election if he was not tough enough?
Surely, if all else fails, the common sense of twelve impartial jurors will prevail? Before one can be seated on an American capital jury, one must first swear under oath that one will (under the right circumstances) impose a death sentence. This suggests that at least 52 per cent of people in Britain – the pro- portion of people found in the NatCen British Social Attitudes Report (2015) to be opposed to the death penalty – would be excluded from such a jury.
At least one knows what one is getting in the US. There is a selection process whereby one can learn the jurors’ views; after trial, one can talk to jurors to understand what moved them. (It may be frightening – I have found that many jurors believed the burden of proof rested with the accused.) Not so in the UK, where there is little or no selection process and no way to determine how a verdict was reached. Indeed, the government website admonishes: “After the trial you mustn’t talk about what happened in the deliberation room”. Caught disobeying the rules, a juror “can be fined or sent to prison”. If the experience is upsetting, the juror is advised to “contact the Samaritans”.
For many years my mother volunteered with the Samaritans, an admirable group with a kind message: “We offer a safe place for you to talk any time you like, in your own way – about whatever’s getting to you. You don’t have to be suicidal”. Anyone who faces the criminal justice system, and recognizes its profound flaws, has every right to be depressed, and may well wish to call them immediately. After thirty-one years, Krishna Maharaj has more reason than most.