“Affirmed” – Kris Maharaj’s appeal denied by Florida court
By Clive Stafford Smith
I phoned Marita Maharaj. It’s been 29 years, 8 months and 28 days, and the latest appeal I filed for her husband, Kris, just got denied. The Florida Court of Appeal did not put much effort into it. It took them a month to write just one word: “Affirmed.”
Poor Marita sobbed on the telephone. It’s hardly surprising. She had pinned all her hopes on achieving justice at long last. Kris had his 77th birthday earlier this year, and Marita will pass the same milestone in November. They have both suffered increasing ill-health: Kris because he is in the sweltering Florida summer, in a prison ill served by a contract health company; Marita, because she is in America and has a hard time getting health care at all. She has supported him through all these years, visiting him in prison once a week from his time on death row in 1986, through to today. She is obviously convinced of his innocence: she was, after all, with him at the time of the crime.
I did not want her to learn the bad news from the media. And since she would be able to get Kris on the phone in the evening, perhaps she could save him from the same fate. It was an ugly duty to put on her, but better that he should hear it from her than from the Miami Herald.
Indeed, the journalist from the Miami paper had already penned a fantastically biased article in which he suggested that “[w]itnesses … told jurors that Maharaj, at a Denny’s diner after the homicides, tried to get them to concoct an alibi.” This is simply untrue. Beyond Marita, six alibi witnesses who the jury never heard confirmed to me that they had been with Kris at the time of the crimes. Nobody tried to concoct the alibi – it was the simple truth, but Kris’ trial lawyer did not call them.
The journalist wrote that “two former cartel associates from Miami’s infamous ‘Cocaine Cowboys’ era testified that now-dead kingpin Pablo Escobar might have ordered the murders, although neither man could positively identify the Moo Youngs as the supposed targets of his anger.” That is not true either. Rather, four people associated with the cartels testified to their incredulity that Kris should be convicted for two murders that they did. One of the four was a federal informant, who was astonished to learn that Kris was in prison for the crimes. He testified that the Colombian man who was registered in the room across the hall from the murder scene had said specifically that they had killed Derrick and Duane Moo Young, because they had ripped off drug money. Another had testified in fifteen federal trials, putting many drug dealers in prison for their crimes, and came to court to exonerate Kris, despite the danger that it posed to his own life and that of his family. He testified clearly and specifically that Pablo Escobar personally said he had ordered the Moo Young murders.
Yet while these witnesses, and two others, were reliable enough to put people into prison, their testimony is apparently deemed insufficient to correct the rank injustice that keeps my septuagenarian client in prison after nearly 30 years of torment.
The journalist found it compelling that “Maharaj’s fingerprints were found all over the hotel…” Why? To be sure, the lead detective lied when he said Kris denied being in the room, but his partner gave a statement saying the opposite. Kris said all along that he was in the room earlier that day, lured there by a man called Neville Butler, on the pretext of a business meeting that never happened. So his fingerprints were proof of nothing.
“And perhaps most damning of all was the testimony of an associate who saw and described the killings in detail.” The Miami Herald does not see fit to point out that this was the selfsame Neville Butler – the man who was forced to admit at trial that he had repeatedly committed perjury in this very case, and who had (contrary to the prosecutor’s assurance to the judge) failed a lie detector on his testimony.
Since I took the case on 22 years ago, I have beaten my head against the concrete wall of the courts for a long time now – my own experience paling alongside that of Kris and Marita, but deeply depressing nevertheless. There is nothing for it but to take the next step forward, but the path to justice gets increasingly difficult. In the arcane world of American law, the fact that the Florida court of appeals did not bother to write an opinion means that we are barred from seeking review from the Florida Supreme Court. The fact that we are now on a “successor” habeas means we cannot even ask the federal district court for redress, but must travel to Atlanta to ask the Eleventh Circuit Court of Appeals for permission to file a petition.
Since I took the case on 22 years ago, I have beaten my head against the concrete wall of the courts for a long time now – my own experience paling alongside that of Kris and Marita, but deeply depressing nevertheless.
All kinds of convoluted legal nonsense now stands between Kris and liberty: he can only appeal further if he can prove innocence, yet innocence will not set him free – it will merely open the gateway to his proving that his wrongful conviction came about due to a violation of a legal technicality. (In the infamous opinion of the late Justice Antonin Scalia, the mere fact of newly-discovered evidence of innocence is no reason to halt a death sentence imposed with proper procedures.) Further, even innocence will not open this door to freedom if the state court reasonably (yet mistakenly) concluded either that he is guilty, or that his trial was fair.
I only hope that Kris remains alive, and that Marita does not despair. We will follow their rules, because there are no other rules to follow. But it must be said: the law is an ass, wholly unfit for purpose.