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How Does Extradition Work?

A writer is spinning a plot with an American involved in questionable doings in France who then escapes to China. Will the character be returned to France to face trial?

Short answer: not if she stays in China.

A key principle of international law is that a country has legal authority over persons within its borders, regardless of their citizenship. The suspect could be tried and convicted in China only for an offense committed in China. Another country wanting to try a suspect would have to make a formal request through legal and diplomatic channels that the suspect be turned over to representatives of the second country. That can happen only if the two countries have an extradition treaty. But France – like the U.S. – has no treaty with China, leaving France no legal mechanism to request the suspect’s return.

But what happens if the fictional suspect returns home to America, which has an extradition treaty with France? Treaties between countries vary widely, but requests typically trigger an analysis of the crime charged and factors like these:
            – Is the crime serious? Murder, bombing, rape – yes. A minor theft charge – no.
            – Has the country requesting extradition shown a “prima facie” case against the person sought,.e.g., facts establishing the elements of the crime charged?
            – Do the facts constitute a crime in both countries?
            – Can the suspect reasonably expect a fair trial?
            – Is the potential sentence proportionate to the crime? This factor often blocks extradition to countries with extreme punishments for drug offenses. Countries without the death penalty – e.g., Canada, Mexico, and many European countries – regularly refuse to extradite to the U.S. if the suspect would face the death penalty; as a result, American prosecutors frequently agree not to request the death penalty in exchange for extradition.
            – Is the suspect a citizen of the country making or receiving the request? France, for example, is one of many countries prohibited by law from extraditing its own nationals, so it won’t return film director Roman Polanski, a French citizen, to the U.S. to face child molestation charges. When Polanski brought a libel case in British courts, he testified by video hookup from France rather than travel and risk arrest and extradition. The U.S. has no blanket ban on extraditing its nationals.
            – Are the motivations – and the crime – political? Are charges brought to damage a government’s political opponents or retaliate for good-faith decisions that turn out badly? This does not immunize former officials from genuine investigations of wrongdoing – as in the cases of former Chilean president Augusto Pinochet and former Panamanian dictator Manuel Noriega.
            – Are the motivations – and the crime – military? In 2007, Germany decided not to formally request extradition of alleged CIA operatives on kidnaping allegations because the treaty between Germany and the U.S. prohibits extradition for purely military matters and the request was likely to be denied.

In the U.S., the Department of State makes the ultimate decision whether to request extradition or grant a request. This often involves coordination with individual states’ attorneys general. Requests for extradition may be reviewed by the courts – as in the American review of France’s request for Noriega and the Mexican review of a Mexican prosecutor’s request to extradite Duane “Dog the Bounty Hunter” Chapman from the U.S. If Mexican courts had allowed the prosecutor to request Chapman’s extradition, the Mexican government would have had to make a formal request to the U.S. government, triggering a State Department review of the case. Consensus seems to be that the request would likely have been denied, because the crime charged was relatively minor in Mexico.

Corporate crime can also involve extradition. In a case currently in the news, prosecutors in Kansas City recently indicted Chinese pet food manufacturers on charges related to deliberate product contamination. The lack of treaties means the defendants can’t be brought to the U.S. for trials, so why bother? Because of the long-term potential impact of the case, which can influence international courts and markets. The charges can also put pressure on co-defendants who are within the court’s reach, i.e., American importers and Chinese distributors who do business in the U.S. And the charges send a message to everyone in the manufacturing and distribution chain, and to consumers, that food contamination will be treated seriously.

Another hot issue is whether employees of Blackwater, a private American security firm with contracts in Iraq, can be extradited to Iraq to face charges for the alleged shooting of civilians. As in that case, a lack of extradition may not mean the end of judicial proceedings – civil claims, and sometimes even criminal charges, may be possible in the suspects’ home country.

Extradition and its complications are key to writers of international thrillers and suspense novels – plots involving terrorism, drug running and money laundering, art theft, and trafficking in weapons or other stolen or illegal goods. But extradition may help you deepen the plot of any story with a character from a foreign country. It offers rich potential for emotion and conflict in cases of crimes against family and child abduction, especially if the suspect returns to a country that refuses to extradite its own nationals. See the State Department’s web page on International Child Abduction for more details. http://travel.state.gov/family/abduction/resources/resources_552.html.

Another useful resource is the website of a law firm specializing in international criminal defense, http://www.internationalextradition.com/firm.htm , particularly its International Extradition blog with reports of cases in the news.

What does pro se mean?

This month, we’re back to discussing common legal terms and how they might be used in crime fiction.

Pro se literally means “for one’s self,” and it means to represent yourself. Only lawyers can represent other people in judicial proceedings, although some tribal courts allow trained advocates in specified types of cases. But civil plaintiffs and civil or criminal defendants can always represent themselves. Alternate terms: pro per (used in Oregon and elsewhere) and in propria persona.

Why do it? In civil cases, the motive is usually lack of money – or the unwillingness to part with it. Sometimes a pro se plaintiff has not been able to find a lawyer who believes in the case – and the cause it espouses – as much as he does.

In criminal cases, a defendant who can’t afford a lawyer is entitled to a public defender. But some choose to represent themselves for philosophical reasons. This occurred with some frequency in the late 1980s and early 1990s in states like Montana, Washington, and Michigan where anti-government types and militia members charged with crimes ground their axes by refusing to “cooperate” with a system they opposed.

In civil cases with a low dollar value, as in small claims court, self-representation makes sense. Judges in those courts are used to dealing with the parties directly. Think of Judge Judy’s court room, without the cameras and melodrama.

But in larger value disputes and criminal cases, self-representation can be a minefield. The biggest drawback is that lay people often don’t understand important legal points or some of the law’s finer distinctions. As a result, making cogent arguments can be tough. Pro se parties get more emotional than lawyers – a good potential source of drama for writers. Imagine a custody dispute where the parent pleading for a change of custody makes his own case, or a child welfare proceeding where a pro se mother argues that she’s conquered her drug addiction and is now rehabilitated and should get her children back.

Widespread cutbacks in county law libraries make research difficult, and official on-line sources can be hard to navigate. Non-official on-line sources abound, but are not always reliable. Some sources aimed at adherents of a particular philosophy perpetuate misinformation that resurfaces over and over. Persons representing themselves often don’t recognize the differences between states’ laws. They may not understand that a 1937 Vermont decision interpreting a then-current statute is virtually meaningless to a modern day court in, say, California or Florida, because the law has evolved and state statutes and precedents differ. Some state bars and law libraries now have staff who help guide pro se litigants to the resources they need, or provide information on line. One example is the self-help page of the State Bar of Montana website, http://www.montanabar.org/displaycommon.cfm?an=1&subarticlenbr=179.

Pro se briefs tend to be ramble, though they can be entertaining. My favorite remains a brief I read while clerking for the Washington State Court of Appeals. The case involved an easement and boundary line dispute. The only authorities cited were definitions from an antiquated edition of Black’s Law Dictionary and the Bible. Of course, many do consider Ezekial an authoritative source – but before a different judge.

Most judges will give pro se parties some leeway and guidance with procedural aspects of trial and pretrial procedure, but the substantive law is applied evenly. For example, the judge may point out that the questions a pro se defendant is asking his own witness are leading – which is not permissible – and suggest another way to phrase the question. But the judge won’t say “you probably don’t want to ask that,” or suggest a line of questioning the defendant hadn’t considered. I have seen judges suggest to a plaintiff or defendant that the case may be more complicated than he or she thinks, and that he or she really ought to consult with a lawyer; judges may continue – that is, postpone or reschedule – a hearing to give a party time to find representation.

But no judge will ever tolerate a pro se party obstructing the proceedings. If your pro se story defendant disobeys a judge’s order and asks prohibited questions, raises his voice once too often, or blatantly violates decorum, a warning is likely, with a threat of contempt proceedings.

Most pro se defendants are well-behaved, though nervous and worried about missteps. Lawyers should take extra care communicating with pro se parties, and most do – but the seriously hard-nosed and the ill-intentioned could take unfair advantage of an unrepresented opponent. In a suit a pro se backhoe operator brought against our client, a homeowner who had refused to pay all of a bill triple the written estimate, I sat on a bench in the hallway outside the courtroom after a hearing explaining the details of the judge’s ruling. I wanted the man to understand why he had lost – and not attribute it to “a stacked system” or say “well, they had a slick lawyer.” The next time I saw him in town, in a coffee shop, he insisted on paying for my coffee.

In felony defenses, especially death penalty cases, courts often appoint defense lawyers to assist the pro se defendant. In U.S. v. Massoui, the defendant – better known as the 20th hijacker – initially accepted defense at public expense, then fired his attorneys. The judge held that Massoui was competent to represent himself – that is, he was mentally competent and of sufficient intelligence, understanding, and language skills – and appointed his former counsel to assist him. The lawyers could help him outside the courtroom with writing briefs and planning arguments and witness examination, but their role inside the courtroom was strictly limited. They sat behind him, not at counsel table. Hence the term “standby counsel.”

Ted Kaczynski, the Unabomber, also accepted public defense initially, but fired his counsel when they insisted on presenting an insanity defense. Kaczynski insisted he was perfectly sane when he manufactured and sent his bombs. The judge found that he had the requisite intelligence and understanding, but based on several psychiatric exams, was not mentally competent to represent himself. The judge’s refusal to allow Kaczynski to fire his counsel and represent himself led directly to his agreement to plead guilty in exchange for not receiving the death penalty.

You’ve heard the old saw “a lawyer who represents himself has a fool for a client.” Does the same hold true for a non-lawyer? Your story, your call. But what possibilities!

Jurisdiction -- Who's the Law Where?

A writer asks for clarification of the jurisdiction – that is, the authority – of city, county, and state law enforcement agencies. Variations abound, but a few general definitions apply:

city law enforcement agencies, usually called the Name-the-City Police Department, have authority within the city limits. In larger cities, police departments run their own jails, while in others, detention services are contracted to the county. A very small town may contract with the county sheriff for full-time or part-time services, e.g., for weekend or vacation shifts.
county agencies, typically called Name-the-County Sheriff’s Department or Office, have jurisdiction in the unincorporated areas of the county – that is, everywhere except the incorporated cities and towns. The term sheriff derives from the medieval English shire, or county, and reeve, or official, meaning a local official responsible for executing legal processes and court orders.
state agencies, home to most variation. Some states have state police departments with broad investigative authority; others have highway patrol agencies, whose authority is generally limited to traffic investigations and violations. Most states also have some kind of criminal investigation agency that assists local agencies, especially those in smaller towns, or when a key member of a department has a conflict of interest.

Another option – a consolidated city-county department – works well when a city occupies the bulk of a county, leaving the county with a law enforcement obligation, often over widely scattered areas, but a limited tax base to support its budget.

In many areas, 911 and dispatch services are consolidated to avoid duplication and improve coordination of law enforcement, emergency medical services, and fire protection.

Inter-agency cooperation is a must, and takes many forms. When a chase approaches jurisdictional limits, nearby agencies are notified and asked to stand ready to assist; a suspect may be arrested in one community but turned over to another where he will be held and tried. Major case investigations often cross city or county lines. While a Seattle police officer, for example, could legally question a suspect in Bellevue, professional courtesy dictates that local law enforcement be notified – particularly helpful if the situation deteriorates into violence or requires an arrest. Other interagency cooperation is more formal, via written agreement.

Joint task forces are formed to address shared problems. Several counties in northwest Montana formed a Joint Drug Task Force to deal with regional drug manufacturing and distribution; it also includes representatives of ICE, the U.S. Customs and Immigration Enforcement agency, and tribal police.

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