Last week, British-born Jackie Elliot was executed in Texas for a murder many say he did not commit. Clive Stafford Smith, the British human rights lawyer, fought a desperate battle to save him. Here he recounts the frantic last hours before the execution, as evidence mounted that he was witnessing one of the worst miscarriages of justice he has ever experienced
The Observer (England), Feb. 9, 2003
I never thought they would kill him. How could they?
I think Jackie Elliott was innocent. Surely that should be reason enough not to execute him. Danny Hanson and Ricky Elizondo had been snitches at his trial. The police had suppressed evidence that Hanson raped Joyce Munguia; we found a new witness who said Hanson had confessed to killing her, beating her savagely with a motorbike chain. The police suppressed the fact that Hanson and Elizondo were both members of ‘The Chain Gang’. They ganged up on Jackie, after they had used a chain on Joyce. Elizondo got 10 years, came out, and when he met Joyce’s mother on the street he spat on her. Hanson’s deal was even better: for testifying, he never spent a day in jail. Yet Texas wanted to kill Jackie.
As for our coalition for mercy, in more than 300 capital cases, I’ve never seen anything like it. All 12 jurors signed our petition asking for DNA testing – in the end, none wanted Jackie to die. How could Texas make unwilling jurors vote to kill someone, and then not respect their wishes?
The stars were aligned. Tony Blair was going to be at Camp David, bearing British support to President Bush. Thousands of young British troops were being offered to fight, perhaps to die in Iraq. Jack Straw seemed to be constantly on the phone to Governor Perry, Bush’s former deputy, asking a simple favour: let Jackie’s defence do DNA, let us check the court has got it right; 150 MPs signed on to support the case. How could they refuse?
The execution was set for Tuesday. In the end, there were only six days to stop the execution. It was 510 miles from where I live in New Orleans, and so little time. A cop pulled me over for speeding driving over the state line from Louisiana. But he let me go. I warmed to Texas. They let me off my crime, they would let Jackie off his – at least they would not kill him. That day was the last time I would be able to visit Jackie. Death Row was four hours from the courts in Austin, where I had to find a stay. With only five days left, I could not afford to return.
‘Don’t worry, it’s going to work out,’ I told him with a smile. ‘But it may well come down to the final hours. In Les Martin’s case last year, we came within 25 minutes before the stay. With Larry Lonchar, it was less than a minute before the Supreme Court stopped it. But the final chance is often the best. With moments to go, we can still pull it off.’
‘It’s funny, the people here hate me. The people where I was born in Britain, I’ve never met them, but they’re being so good to me. Thanks to them, nothing’s certain, but I’ve got hope,’ Jackie said.
‘See you next Wednesday,’ I waved, as I left.
Friday was when the family visits began. Eight hours with Jackie, through the plastic screen. I met with Dorothy, his mother, and Kim, his sister, the night before. Don’t worry, I told them. I really believed what I was saying, but I would have said it anyway. You’ve got to give hope, even it you think it’s a lie. Try counting a day in minutes when you’re waiting by the Execution Chamber.
By Saturday evening, there were only three days left. It’s so hard to stop, when there is so little time. In the last 72 hours, I lay down for only three. I was on cardboard on the floor, like a hobo, in an Austin office. The mobile would go off from someone in England who did not know the time. I would look, guilty, at the watch to see how much of Jackie’s life had been lost.
Richard, Eleni, Hugh, Carmella and Gemma – British and Australians, thousands of miles from home, working unceasingly to save Jackie’s life. We were camped in a windowless inner office, lent by some local lawyers. The Xerox machine ached through a few hundred pages, and broke down. The printer was agonisingly slow, the toner ran to streaks. The paper ran out at 2am. Carmella went to the copy shop, only to return with my credit card in her hand, pressed beyond its limit.
The trial judge, Jon Wisser, had written to the Pardon Board before I started on the documents that I hoped would persuade him to grant a stay. ‘I have not had contact with any defendant more deserving of the ultimate penalty than Mr. Elliott,’ Wisser had written. Much later he changed his mind, and got off the case. We had lost precious hours. I received a copy of the email he sent to the District Attorney. ‘Ironically,’ said Wisser, ‘just today I finally read the defence DNA motions and felt that there might be merit to them.’ Ironically, had Wisser waited to hear the evidence before telling the Pardon Board to kill Jackie, he might have ordered the very DNA testing we needed.
It was when the prosecutors turned over another 51 pages of exculpatory statements that I began to worry. It was 10 o’clock on Tuesday morning. We still had not lost in the Pardon Board. We still had not lost in the Texas Court of Criminal Appeals. We still had the federal courts, and the US Supreme Court. We still had the Governor. But I began to worry for the first time.
The prosecutors had waited 16 years, six months and 22 days since Jackie’s arrest to turn the papers over, and there were now only eight hours to go. I was tense, reacting badly to each interruption, preparing an appeal to the Supreme Court from a state decision that had not yet been made. I was angry that the prosecutors would even expect me to read 51 pages of close-printed statements. We had to send the documents out to be copied. Hugh read them, and said that one witness identified Elizondo as ‘Killer’. It was so outrageous, so blatant… I began to see they knew. They knew they could get away with anything.
It’s much easier being in the Execution Chamber. I’ve only ever done the office once before, writing the appeals down to the final moments. I have watched five friends die – Edward and Leo in the gas chamber, Nicky and Larry in the electric chair, and Les by the needle. I feel sick when I think about it. Being away from the prison is worse. It is the antithesis of everything human, the epitome of how we are able to kill people.
I pressed the print key on the last Supreme Court appeal at 5.15pm, with just 45 minutes to go. It had taken 40 minutes to write a petition that should take a week; it was a great issue, but by then I knew it was lost. The Court had ruled last June that people with mental dysfunction could not be executed. We had powerful evidence that Jackie fitted their definition, and the only way they could deny us was to ignore the facts. But I knew they would. I remembered Larry Lonchar’s case where the stay came in the final seconds. But the steamroller was rolling, and I worried now that there was nothing I could do any more to pull Jackie out of the way. Richard had already gone into the prison at Huntsville, with Jackie’s sister Kim, to be there for the killing. He had left his phone outside with Eleni. She was close to tears whenever I would call.
In the end, Caesar turned four thumbs down in rapid succession. The Governor did not even have the decency to tell us: I had to learn that from the British Consulate. The federal appeals court simply wrote ‘denied’, nothing more. The first Supreme Court appeal came back ‘denied’, from all nine Justices. The execution was delayed an hour before the second ruling, but again it was nothing more than ‘denied’. This time one justice did not vote. He must have already gone to dinner.
The clerk at the Supreme Court was a kind man. I know he is on our side. He asked me whether we had anything else to file. I said no. He said we had fought a great fight. As he hung up, he said: ‘Have a good evening.’
Tuesday, 7.09pm. They declared Jackie dead. I learned about it on my mobile phone. I was already in the rental car, driving towards Louisiana. I had to be in hearings in another capital case the next day. It was a 300-mile drive. My wife Emily called, and refused to get off the phone until I stopped at a motel.
Jackie Elliott was executed by lethal injection. Reporters said he died with dignity.