In Contempt of Court: from Death Row to Guantanamo

CW: Criminal justice, systemic racism, capital punishment, sexual references.

“What is the most despicable thing you’ve ever done, that you’re most ashamed of?”

“I’m not telling you,” I respond with a smirk.

“But you’ve got it in your mind?”

“Yes.”

“Okay. Now, the interesting thing about Zoom, Jonathan, is that I can see into your heart, and I’m going to tell you what you’re thinking. What you’re thinking is not a criminal offence. It’s just a really nasty betrayal you did to someone you love that was really painful for them.” He’s right. “Now, I’d like you to answer this question: what’s the worst criminal offence that’s ever been done to you?”  

I tell him a story, laughing, about a time I was punched by a drunk teenager on a night out, hurling thoughtless abuse in every direction.

“And so that’s a criminal offence for which he could go to prison. If he was in Alabama- if you did that twice – life without parole. So – if you put in the balance the harm that you did by your non-criminal, nasty act that we don’t tell your readers about because they’ll all despise you, versus the harm that was done to you by the criminal act, which is worse?”

I’d have liked to say the assault, but I really couldn’t justify it. I’d just been laughing about it, after all.

“Of course it’s yours. It’s far worse. The little punch you took is nothing. So, the question you have to ask yourself in the context of what we call criminal justice, is why you and I are not in prison?” Feeling attacked and exposed, I fudge an answer, stumbling through a sentence about ‘the law.’ “There is no reason,” I eventually come to say. “No rational reason,” he agrees, victorious.

Clive Stafford Smith has dedicated his life to fighting for those subjected to the brutality of the law, especially in countries which retain the right to execute. Though born in Cambridgeshire, he trained as an attorney in America during the eighties. By 2002, he had helped win all but six of the three hundred or so capital appeals he’d worked on. In one three-year period, he managed to fully exonerate 126 of the 171 convicts he defended. In “75% of cases they had the wrong guy, and that’s assuming they got the right guy in the other 25%,” he tells me.

He has also represented eighty Guantanamo Bay detainees. The U.S. prison camp remains open today, holding forty men who have never seen trial.

He went on to become co-founder of Reprieve, an NGO which uncovers and investigates human rights abuses, and challenges them in the courtroom.

Our conversation comes as the Trump administration executes more people at a federal level than at any time since 1896. He tells me about the administration’s now-fulfilled desire to see Lisa Montgomery executed, despite a “litany of mental health disorders stretching pages,” and how, the day before our interview, 20% of death row inmates had tested positive for COVID-19. This happened after the court denied her lawyers’ request for a stay-of-execution, fearing exposure to the virus themselves. Inevitably, they went on to catch the disease.

The judicial system, he believes, is broken at all levels. “It’s a frightening thing to deal with the US Supreme Court … they are just mean-spirited people. Even the liberals – they’re so out of touch with the real world.” Later, he tells me that he’s been put on trial for contempt of court several times. “I’ve always been acquitted. But I sometimes think that perhaps I should just admit that I am pretty contemptuous of the way they deal with human beings, because I don’t think they live on the same planet as the people I represent.”

Stafford Smith’s career had an unconventional beginning, motivated by a deep suspicion of the establishment, and a belief that those with privilege should help those without. “One of the highlights of my life was telling this tweed-jacketed twit at Clare College, Cambridge, that I didn’t want to go to Cambridge to study Natural Sciences. And he said: ‘Oh, that’s the worst decision you’ll ever make in your life, my boy.’ And I said – ‘I bet it’s not.’”

Then, as an “arrogant, stupid, young, privileged English person” he went to America to write a book about capital punishment. “It will never see the light of day because it’s such juvenile rubbish, but in doing it I met all these people on death row. And I discovered that in the richest country on Earth, they don’t have lawyers. And even I could see that it was potentially more useful to them to have a lawyer than to have me write some piece of shit about the death penalty. So, I went off to law school to get a law degree, so I could go and help.”

One of his first cases is documented in the film Fourteen Days in May, which follows the final few days before the execution of Edward Earl Johnson, whose guilt has since been widely contested. “I was 27. I knew nothing. And I’m representing Edward, who’s 27, too. It’s one thing that I’ll take with me to my grave, but if I knew then what I know now he’d be alive. And he’d be free. I don’t beat myself up too much about that, because he actually didn’t have any alternative… It’s a horrible condemnation of a system that all of those brilliant people from Columbia were going off to represent corporate law firms, and the people whose lives were at stake had to put up with someone like me.”

I ask about the roots of our attitudes to criminality – why humans have, in countless societies, allowed justice to be guided by contempt, and coloured by cruelty. “It really is the elevation of us over the other. That, somehow, we feel that if there’s someone that we disparage as being so subhuman, that we should put them on an altar, and ritually sacrifice them to some god of deterrence – that somehow, that makes us better people.”

He also blames a corrupt political class. “They say we’ve got a problem with crime. And, you know, we’re not going to recognise that this thing we call crime is rooted in lack of educational opportunity, lack of funding, disparities in society, drugs, guns, all these things, that would actually be quite complicated to change. And instead, we say, well, it’s just a bunch of young black men who are terrorising our society, so let’s kill them. And, you know, that’s not just disgusting. It is obviously just a lie. And a racist lie and a pernicious one as well.”

He gives no more shocking an example of the corruption which has worked its way through the system than when discussing Crime Stoppers (Crimestoppers in the UK) tips. The organisation gives people the opportunity to anonymously provide information, and anonymously receive rewards if their tip leads to arrest. He discusses the case of the now-exonerated Shareef Cousin, a sixteen-year old on death row.

“The Crime Stoppers tip that tipped he’d done the crime said Shareef Cousin was 5ft3 113lbs. And I’m sitting next to him and he’s 5ft11 and 170lbs. And I’m wondering – where did they get this bullshit from? And then I look in the police file, and he’d only ever been arrested once, aged twelve, for the heinous crime of CINS – child in need of supervision. And on the police report it said 5ft3 113lbs so, you know, a little lightbulb goes off and I say – ‘well I think the crime-stopper tip came from someone who had that police report…’ So I went to do what any person should ever do – and I’m revealing a trade secret here if you want to solve a capital case. What you do is go and talk to the soon-to-be ex-spouse of the lead detective and you learn everything.” She confirmed his suspicions. “When there’s a murder happened, they decide which young black guy they’re going to go and arrest, and they call the Crime Stopper tip in, then they go and arrest him, then they call back and collect the cash… And that’s what they were doing in every case.”

The conversation then turns to his work with Guantanamo Bay inmates.  “When I first went down, I thought – because I was told that ‘these are the worst of the worst terrorists in the world’ – I bet we’re going to have some explaining to do.’ And I get there, and I had a hell of a time coming up with an honest to goodness terrorist. And the reason, it turned out, and it took me a while to figure this out, was that the majority of prisoners in Guantanamo had been sold for bounties.”

“In 2002, Ahmed Rabbani was turned over to the US as the notorious terrorist ‘Hassan Ghul.’ And he insists from day one that’s he’s not Hassan Ghul, he’s a taxi driver. And they won’t believe him. So, they ship him off to the prison – they paid good money for him, right? – where they torture him in truly medieval ways. But then, in 2014, he’s still languishing in Guantanamo. The senate published their report on CIA torture and in it they corroborate everything Ahmed said, right down to the fact that he insisted he wasn’t Hassan Ghul. But what we didn’t know is that when he was in the dark prison the Americans captured [the real] Hassan Ghul and brought him to a dark prison. Now, Hassan Ghul was corroborating, by which I assume they mean he said he was Hassan Ghul. As opposed to Rabbani, who said he wasn’t. So they let Hassan Ghul go, and he returned to Pakistan where he went back to his wicked ways. And he was killed in a drone strike in 2012. In the meantime, they send Rabbani to Guantanamo where today he’s still there, after 18 years. And you know, this is just the shocking shocking reality of those places. And it becomes your job to do something about it.”

He refers to an inmate who informed, in one ninety-minute meeting, on ninety-three others. “This guy said that he was helping the Americans because he really wanted help with a little problem he had. And he needed to go to America if he snitched for them. So the interrogator in this report I’m reading says “Oh yeah, what’s that?” And the guy says, well – ‘I’ve got a really small penis. And I need to go to America to have penis enlargement surgery.’ And there’s a silence, and the informant says, ‘Would you like to look?’ And to my great relief the interrogator says, ‘No, thank you.’ And this guy was just making bullsh*t up about hundreds of prisoners because of that. And it becomes intelligence. And this same guy included one of the first mentions of Sadaam Hussein having WMDs that resulted in the Iraq War. And this is the stuff these people really believe. ‘Cause it gets put into a form that says intelligence on it, and then it gets passed up the chain, and everyone forgets that the real issue at stake here is whether this guy can get a bigger penis. And, you know, I see this every day.” He notes that much of what he knows is classified; that he has to fight to be able to tell the public about this.  

How could something like this – something so barbaric as to appear absurd – happen under the supervision of a country which so consciously fashions itself as a bastion of freedom, and international leader? “You put someone in the office doing CIA work who believes all that paranoid bullsh*t, and who genuinely believes torturing people will make the world a better place, then they’re going to believe what they get out of it because otherwise they couldn’t live with themselves.”

And he is keen to emphasise that we are little better – “I’m always resistant to is the idea that America’s somehow different from England. In many ways, England is vastly worse.” He’d rather be put on trial in Mississippi than in London, he tells me.  

It would be easy to dismiss Stafford Smith’s beliefs as fantastical – representative of his self-confessed privilege, or of a life untouched by crime and terrorism. But after our conversation, no part of me felt his beliefs existed in the abstract and were anything but born of conviction and, above all, experience.

Even when discussing the seven times he was held up at gunpoint while living in America, it is with a breezy calm, which speaks to a man who makes the same gestures of forgiveness in private as he demands of public judicial systems. “It got to the point where I knew that this arsehole is going to pull a gun on me. And I would say to him, I said: ‘Look, I’m a defence lawyer. And it looks to me like you’re gonna need me one day. Why don’t you go mug a fucking prosecutor and leave me alone?’ And I got my wallet back every time, without the money, but you know?” 

“I’ve got fascinating number of innocent clients,” he tells me, “but I don’t really like representing innocent people.” Instead, he prefers to save the guilty from a system whose brutality vastly outweighs their own. “I’ve represented four hundred people on death row. And I count among them some of my very closest friends, because of course, all of us are better than our worst fifteen minutes… Even you, Jonathan… Even me, dare I say.”