~ Posted by Simon Willis, August 30th 2012

Today we published online Clive Stafford Smith’s answer to our latest Big Question, “What’s the worst that could happen?” For many years, Stafford Smith has been representing defendants on Death Row in America, and has also worked on behalf of 80 prisoners in Guantánamo Bay. But his piece for Intelligent Life turns inwards. For him, the worst that can happen is fear itself, which “prevents sensible action, and never inspires it,” and “escalates in inverse proportion to experience”.

In his eye-opening new book, “Injustice: Life and Death in the Courtrooms of America”, Stafford Smith offers a brief but telling example of his point. In 1985 he represented his first client, a man called John Pope, whom Stafford Smith describes as “a rather hapless 42-year-old armed robber, who had held up a pharmacy to feed his drug habit”. During the time he spent with Pope, it became clear to Stafford Smith that he “never meant to kill anyone”, and that the prosecutor in Georgia, where the case was being tried, might take a more sympathetic view of Pope if he spent some time with him. The prosecutor, Bill Foster, refused to talk to Pope. “It was apparent to me,” Stafford Smith writes, “that he feared what it would do to his resolve.”

This is part of a longer thread running through “Injustice” about the battle between certainty and doubt in the American justice system. In his chapter on prosecutors, he notes that in almost every US state they are elected officials. “It is a very rare prosecutor,” he writes, “who runs for election on a platform of ‘doing justice’, whereas candidates regularly boast about how they will convict more criminals or send more prisoners to Death Row.” In his chapter on the police, he says that “law-enforcement agencies seek to hire people with ‘police-oriented’ attitudes”, and that psychological studies tend to define police officers as suspicious and cynical, which “does not imply self-doubt”.

Stafford Smith appeared, when he was a young lawyer, in a 1987 documentary called “Fourteen Days in May” by the British film-maker Paul Hamann (available on YouTube here). It followed the final two weeks in the life of Edward Earl Johnson, who in May 1987 was executed in Mississippi’s gas chamber. The film includes interviews with prison wardens at the Mississippi State Penitentiary, where Johnson was held. Hamann asks one of them:

“Do you think he did it?”
“He been around me now six and a half years,” the warden replies, “and I don’t believe it.”
“Do you think an innocent man might be going to his death?”

In the final few seconds of the film, a text appears on screen:

“Since Edward Johnson was executed, his lawyers have located a black woman who was with Edward Johnson in a pool hall throughout the time of the crime. At that time, she went to the courthouse to volunteer her testimony, but was told by a white law enforcement officer to go home and mind her own business.”