Injustice, by Clive Stafford Smith

This is a wonderful, shocking, compelling book. I have read many legal thrillers, including those by John Grisham (who endorses this book) but it is one thing to read about injustice, legal corruption and police incompetence in a fictional setting, and quite another to see it ruthlessly, thoroughly exposed, in a real case which has led to the British defendant, Kris Maharaj, spending 26 years of his life in an American prison, much of it under the threat of the electric chair; and all of this for a crime which, as the author explains in compelling detail, he almost certainly did not commit. ‘Almost certainly’ is a feeble phrase, but I use it to point out that at the very least there is reasonable doubt here, and that in itself should have been more than enough to set this man free a quarter of a century ago. Any reasonable system would have done just that.

But as the author explains, in well researched, shocking detail, the American legal system just doesn’t work that way. Take just one appalling detail among hundreds: when an appeal is finally arranged before a new jury, that jury is forbidden to hear any suggestions that the man making the appeal might possibly be innocent. That’s right – the word ‘innocent’ cannot be used in court! So when a British MP, Peter Bottomley, tells the jury ‘This is a miscarriage of justice’ his video link is cut off and the defence lawyer threatened with jail!

What has that got to do with justice? Exactly. That is the question that comes up again and again, throughout this terrible story. As I was reading, I often laughed out loud, not because what I read was funny in an amusing way, but because it was totally absurd, unbelievable, like a tale from Alice in Wonderland or a justice system designed by Franz Kafka. All the way through I kept thinking, ‘this is absurd, it’s terrible, it can’t possibly get any worse’. But it does. Why? Because every absurdity, every injustice, has its own logic, its own level of humanity. There are very few really evil people in this story; just a system that with a maze of rules which, as everyone follows them, leads to a result that it totally inhumane.

And Clive Stafford Smith, who has spent much of his life working for pitifully small rewards for clients on Death Row, describes exactly how and why all this happens. He is like the little guy in John Grisham’s stories – the lawyer who cares more about justice than money – but Stafford Smith, and few others like him, are actually real, thank goodness. God send me a lawyer who cares, if I ever get into trouble.

It would be nice to think things are better in Britain; and certainly some things are different. We don’t have the death penalty, or judges and prosecutors who stand for election, campaigning on how harsh they can be. But we’ve had our own scandals: the Birmingham Six, the Guildford Four; the strange business (also involving Stafford Smith) of the courts and Binyam Mohammed.

And on a smaller scale, this book reminded me of another British case, less well known, not quite so cruel or nearly lethal as the injustice suffered by Kris Maharaj, but still similar in the sense of an innocent man trapped in a legal spider’s web which he cannot resist or escape: the case of of John Bartlett, well described in his book Chequered Justice. Here too I kept thinking: ‘this can’t really happen, can’t get any worse.’ But it does.

Read Clive Stafford Smith’s book, ‘superbly written’ as John Grisham says, and then, for a comparison, read John Bartlett’s book too. Both endorsed by Michael Mansfield QC.

A Game of Proof

Three things inspired me to write A Game of Proof – a rapist, a lady in the newspaper, and my daughter.

The rapist was a really nasty piece of work. I’m a teacher of English to foreign university students, and I sometimes take them to court, to see English justice in action. The Crown Court in York, where I live, is a beautiful, imposing building. It was built in the eighteenth century, and has tall Grecian columns, a statue of justice with her spear and scales on the roof, and a museum that used to be a prison right next door – where the highwayman Dick Turpin was kept before he was hanged. The court and the old prison form three sides of a square around a grassy area called the Eye of York. On the fourth side of the square is a castle. So you can see it’s an impressive place to visit.

But the rapist – Les – wasn’t impressive at all. At least not in a good way. He was a very fat, burly man, who filled the dock with his bulk. He dwarfed the two prison guards who sat beside him. From where I sat with my students – in the gallery directly behind him – we had a striking view of his buttocks, where his trousers didn’t come up quite high enough.

Well, we were there for the key moment of the trial – the poor woman, his victim, had to give evidence. It was very sordid and humiliating. She had been out for a drink with Les, came home with him, and he invited her up to his bedroom, where – it happened. She described in graphic detail what he’d done – without her permission – and then his lawyer stood up, in his wig and gown, and made her go through it all over again, suggesting she wasn’t telling the truth. It was awful. All in public, with a load of students – us – watching from the public gallery.

A few days later we heard the verdict – not guilty. Like so many rape trials, it was his word against hers, and the jury had believed him. After all, they’d both had a lot to drink, she’d gone up to his bedroom – what did she expect?

But there was an important detail that the jury didn’t know. Before the trial started, the two barristers had a tense argument before the judge. Les had been charged with two rapes – one against this woman, and one against a completely different woman, on a different day. The prosecutor wanted both women to give evidence in the same trial, but the defence said that wasn’t fair: they were two separate incidents, so there should be two separate trials. And the defence won the argument, so that was what happened. As far as the jury were concerned, he was charged with one rape, not two.

A few weeks later, I was back in court to watch the second trial. This time, it had happened on board a ship. The second woman – who, it has to be said, was not the brightest – was on her honeymoon. She’d stayed up drinking and dancing until after midnight; but, amazingly, not with her new husband. No; he’d gone to bed, and she’d stayed up dancing with Les. You can see why the jury looked at her a bit oddly when this detail came out.

But then, as they wove their way drunkenly back towards the cabins, Les had suddenly opened a door to a cleaning cupboard, and bundled them both inside. Maybe she agreed to this, maybe she didn’t. But she was clear about one thing: she definitely didn’t agree to what happened inside. Because the trouble with Les was, he had a particular style of rape. It involved ropes and gags and things like that. Not nice at all. This woman objected to it strongly.

But as I listened to this I realised a terrible thing. I had heard this story before! The woman in the previous trial had told exactly the same story, with exactly the same perversions, about exactly the same man. I knew this, and so did the judge, and both barristers and the police and the court clerk knew it – but no one told the jury. The jury weren’t allowed to know; after all, he’d been found not guilty in the previous trial. And guess what – he was found not guilty this time too.

I left court thinking that the law and justice were not quite the same thing. If the jury had heard those two women tell their stories together, surely the verdict would have been different.

The second thing that inspired me was an article in the Yorkshire Post. It was a feature about a woman who’d grown up in inner-city Leeds, and left school at sixteen. She seemed destined for work in a shop or a factory or possibly on the streets as a prostitute. But she’d avoided all of these things. She decided to make something better of her life after all. She went to evening classes, passed a few exams, and was smitten by the love of learning. She was so good at it that by the age of thirty – a bit older than most people – she did a law degree, went to the Inns of Court, and qualified as a criminal barrister. That’s not easy, I thought. Not easy at all.

I know how had it is, because my own daughter – who had the benefit of a good education – qualified as a barrister too. I saw how hard she worked. Lots of people don’t make it; they drop out along the way. For those who make it all the way, it’s a triumph; an achievement to be proud of. And even then, you’ve got to compete to find work.

But how would it feel, I wondered, to be the barrister who had defended Les? To read the evidence of those two women, to see how similar, almost identical, their stories were; but for the sake of your client, to persuade the judge that each case should be tried separately? And then to win both cases, and to be congratulated for getting him off? How would that feel?

I asked my daughter about that, and she gave me the title for the book. ‘The law isn’t about justice, Dad,’ she said. ‘It’s just a game. A Game of Proof.’

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How it begins

‘My Lord, I call Sharon Gilbert.’

A gust of small movements disturbed the still air of the courtroom, as people coughed, shuffled papers, and leant forward to get the best view of the witness box. The court usher, a woman in a pink blouse and black robe, opened the door in the panelled wall at the back of the court.

‘Sharon Gilbert, please.’

At the barristers’ table in the well of the court, Sarah Newby leant forward, her fingers laced under her chin. This was the first time she would see the victim, the woman the prosecution said her client had raped. The woman whose evidence she would have to demolish, to keep Gary Harker out of prison. The woman whose reputation she would have to destroy, to continue the steady rise of her own. Sarah had been a qualified barrister for three years and this was her first rape case. A great opportunity, if she did well. The first step on the ladder to becoming a Queen’s Counsel, like the Crown Prosecution barrister, Julian Lloyd-Davies QC, who stood next to her facing the jury.

Lloyd-Davies placed his notes on the portable lectern which he had brought with him, and tapped a silver pencil on it nonchalantly as he waited for his witness to appear. Where Sarah was intent and nervous he appeared calm, relaxed and confident. The lectern, silver pencil, silk gown and expensive tailored suit were all signs of a status that Sarah both coveted and feared. Beside him sat his junior, James Morris, pen poised to take notes. I belong here, all these things said, this is my stage to command. Sarah felt like a novice beside him. Even in her best Marks and Spencer black suit, tight starched wing collar and bands, she was painfully conscious of how the black cotton of her gown marked her out as a junior barrister like James Morris, someone who would normally assist a QC in a case like this rather than lead it herself.

In front of the barristers sat the judge, his lordship Stuart Gray, raised high on his dias under the prancing lion and unicorn of the royal coat of arms. His long cadaverous face surveyed her from under his wig with drooping bloodhound eyes. He had once practised as a QC too, Sarah reflected gloomily, and before that no doubt attended one of England’s best public schools – perhaps the same one as Julian Lloyd-Davies.

Certainly he had not left school at fifteen and spent his teenage years, as Sarah had, bringing up a baby on one of the worst council estates in Leeds.

Sarah drew in a slow, deep breath and let it out again, tensing the muscles of her stomach as the butterflies danced within. ‘I’ve earned the right to do this and here I am,’ she thought. ‘They didn’t have to fight to get here, but I did. And if I win this time, it will be the best ever.’

A woman came through the door in the back of the court and looked about her uncertainly. She was a tall, slim woman in her late twenties, smartly dressed in a green suit with three quarter length sleeves. The waves in her long, bleached shoulder-length hair suggested hours of careful attention in front of the mirror. She entered the witness box and took the testament and card from the usher.

‘Take the book in your right hand and read the words on the card.’

‘I swear by Almighty God that the evidence I shall give shall be the truth, the whole truth, and nothing but the truth.’

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