By Raychel Lean, Daily Business Review
It’s been 27 years since Miami lawyer Benedict Kuehne and U.K. attorney Clive Stafford Smith began fighting for the release of a British citizen and former millionaire, jailed for a double murder he claims drug lord Pablo Escobar ordered back in Miami’s infamous ”cocaine cowboys” era.
And now, a glimmer of hope, as a federal magistrate judge is poised to decide whether to grant an evidentiary hearing reexamining his trial.
Krishna Maharaj was convicted in 1986 of killing father-and-son businessmen Derrick and Duane Moo Young in Room 1215 of Miami’s DuPont Plaza hotel. But Maharaj has always maintained his innocence.
Long trek
When Kuehne and Stafford Smith joined forces to represent Maharaj in 1993, the attorneys say they never expected they would still be filing motions in 2020.
But here they are, still working on a case that’s been fraught with intrigue and drama as it’s flip-flopped through state and federal courts, and involved most of the characters featured in the Netflix show “Narcos.”
But most crucially, the attorneys say, it’s a case that demonstrates how failings in Florida’s criminal justice system have created a personal tragedy for Maharaj, who’s now 81 and suffering from declining health.
“Kris Maharaj passed a lie detector test saying he was innocent with one of the most respected polygraphers in America, and when the jury found him guilty he passed out, he fainted, because he was so shocked,” Stafford Smith said. “I don’t think your client passes out in shock unless he genuinely is innocent.”
The most recent twist stemmed from two trips to Colombia, where Stafford Smith obtained statements from six Colombian cartel members who admitted to the murders and said Maharaj had no involvement. They claimed the men were killed for stealing money it were supposed to launder.
But although U.S Magistrate Judge Alicia Otazo Reyes in the Southern District of Florida has ruled that Kuehne and Stafford Smith met the standard of proving Maharaj is innocent by clear and convincing evidence, it will take more than that to free him.
That’s thanks to U.S. legal standard established in Herrera v. Collins, which Stafford Smith says is “interesting intellectually, but actually mad practically,” as Otazo Reyes will also have to find Maharaj didn’t receive a fair trial.
“It’s plausible in our mad world that we could prove by compelling, overwhelming evidence that he’s innocent, but that you can apparently have a fair trial that reaches the wrong result, which is just deranged,” Stafford Smith said.
Also concerned that Maharaj will contract COVID-19, the attorneys have moved for conditional medical release. But the Florida Department of Corrections found he isn’t eligible.
“Should a client whose penalty does not include death at the hands of the state be required to essentially die in prison, where that person is in very poor physical medical shape?” Kuehne said.
The Florida Department of Corrections said it’s prohibited from discussing inmate’s personal health information.
“FDC takes this responsibility seriously. Information about an inmate’s health status released by attorneys or other parties cannot be acknowledged, explained, corrected or even addressed by FDC. This would include whether or not any inmate was recommended for conditional medical release by FDC,” the FDC said. “Ensuring inmates incarcerated in Florida’s prisons receive the appropriate level of medical and behavioral treatment is one of FDC’s core constitutional responsibilities.”
‘I’d already written the op-ed’
Maharaj was originally sentenced to death and secured a resentencing trial 10 years later.
But a unique Florida rule meant there was one catch: Kuehne and Stafford Smith couldn’t argue Maharaj was innocent unless they wanted to go to prison for contempt.
“Every other state in the union that has the death penalty disagrees with Florida,” Stafford Smith said. “Where Florida has a position that says that if you’ve been convicted and you’re facing a resentencing trial, you’re not allowed to contest whether you’re actually guilty or not.”
This time around, Maharaj received a life sentence and will be eligible for parole when he’s 101. It’s a result Kuehne and Stafford Smith say is an alarming indictment of Florida’s criminal justice system.
Despite new evidence, including testimony from a former DEA agent and an ex-hitman that pointed to Escobar, Miami-Dade Circuit Judge William Thomas upheld Maharaj’s conviction in 2015.
“I’d already written the op-ed congratulating Judge Thomas for granting a new trial because it was so obvious that he ought to do that,” Stafford Smith said. “And it just about made me pass out when he ruled against us.”
Now, they argue Maharaj’s trial was unfair because the government covered up exculpatory evidence from the defense, allegedly failing to disclose information that a cartel hitman was in the room across the hall from the murders, and that the victims were found with documents linking them to money laundering.
“Had those two things been disclosed to the defense, the case of Kris Maharaj would have taken back in 1986, a completely different form,” Kuehne said.
Getting evidence wasn’t easy, according to Stafford Smith, as two witnesses were kidnapped in Colombia while trying to find out the truth, only just managing to escape.
‘We’ve failed him’
It’s a pro bono case for Kuehne, who said it’s also his go-to example for seminars about the importance of perseverance in criminal defense.
“We have looked under ever rock, pored through every nook and cranny to find evidence to satisfy the legal claims for actual innocence,” Kuehne said. “Without perseverance, without an unerring sense of justice, Kris’s case would have long been abandoned, and he would have been one of those many actual innocents whose case never sees the light of day.”
And of the more than 400 death penalty cases Stafford Smith has handled through his civil rights organization Reprieve, Maharaj’s was the one he wrote a book about.
“It’s the one that I’m most perplexed about,” Stafford Smith said. “Because I’ve won lots of cases on technical legal issues, and yet here’s someone who is utterly patently innocent and thus far we’ve failed him.”
Maharaj has remained uninterested in cutting a deal with the government, according to his lawyers, and his 80-year-old wife, Marita, is still living in Florida, waiting for him to come home.
“He’s amazing in the sense that he continues to be absolutely certain that he’s going to be exonerated,” Stafford Smith said. “Every time we have a hearing, he expects it to be the last hearing that finally brings justice to him. And I don’t know how, after all these years. … He’s promised me he’s going to stay alive, both for his wife and so that Ben and I can exonerate him.”
Src: https://www.law.com/dailybusinessreview/2020/07/01/south-florida-lawyer-works-to-free-british-man-who-claimed-pablo-escobars-cartel-framed-him/