114.3Extradition

Below is a list of frequently asked questions that may arise in extradition cases. Most of these topics were summarized in the preceding entry on Extradition – Overview, but these questions and answers provide more detailed information, as well as citations to additional authority for specific topics.

1. What is the meaning of “fugitive from justice”?

The term “fugitive from justice” is broadly defined as a person who commits a crime in a state and then leaves its jurisdiction. It is unnecessary to show that the person was charged before leaving the state or that the person fled to avoid prosecution. In fact, a person is still a “fugitive” even if he or she left the state with the state’s consent. See 31A Am. Jur. 2d, Extradition § 23; In re Sultan, 115 N.C. 57 (1894); Gee v. State of Kansas, 912 F.2d 414 (10th Cir. 1990) (even if fugitive leaves state with knowledge and consent of state officials, his or her fugitive status is unaffected); Dunn v. Hindman, 836 F. Supp. 750 (D .Kan. 1993).

2. What issues may the Governor consider in deciding whether extradition is proper in a given case?

The United States Supreme Court has ruled that a Governor has a mandatory duty to comply with a proper demand for a fugitive, and a federal court has the authority to compel the Governor to perform this duty. Puerto Rico v. Branstad, 483 U.S. 219 (1987). A Governor may only consider the following issues when deciding whether extradition is proper: (1) whether the extradition documents on their face are in order; (2) whether the accused has been charged with a crime in the demanding state; (3) whether the accused is the person named in the request for extradition; and (4) whether the accused is a fugitive. Michigan v. Doran, 439 U.S. 282 (1978); California v. Superior Court of California, 482 U.S. 400 (1987); New Mexico v. Reed, 524 U.S. 151 (1998) (allegation that extraditing state will deny fugitive due process and fugitive would be physically harmed in prison are not issues that may be raised in extradition hearing); State v. Alabama v. Engler, 85 F.3d 1205 (6th Cir. 1996).

3. Is a fugitive entitled to be released on bail before the Governor’s Warrant is issued?

G.S. 15A-736 states that a magistrate or judge “may admit the person arrested to bail by bond” unless the person is charged with a crime punishable by death or life imprisonment under the laws of the state in which it was committed. The statute mentions release only by bail with sufficient sureties.

4. Does a person held for extradition have a right to be released on bail after a Governor’s Warrant has been issued?

The majority rule is that the Uniform Extradition Law does not grant a right to bail for a person held for extradition after a Governor’s Warrant is issued. See, for example, Emig v. Hayward, 703 P.2d 1043 (Utah 1985); In re Iverson, 376 A.2d 23 (Vt. 1977); In re Ford, 468 N.W.2d 260 (Mich. App. 1991); People v. Superior Court (Ruiz), 234 Cal Rptr. 214 (Cal. Ct. App. 1986); Balasco v. State, 289 So.2d 666 (Ala. App.1974); State ex rel. Howard v. St. Joseph Superior Court, 316 N.E.2d 356 (Ind. 1974). Most courts have also held that judges have no common law or inherent power to grant release on bail in such circumstances. See the cases cited above and Carol Crocca, Right of Extraditee to Bail After Issuance of Governor’s Warrant and Pending Final Disposition of Habeas Corpus Claim, 13 A.L.R.5th 118 (1993).  But see Carino v. Watson, 370 A.2d 950 (Conn. 1976) (releasing fugitive on bail was proper, even after Governor’s Warrant had been served on the fugitive; the opinion was based on the court’s common law power to allow bail “in all cases”); In re Basto, 531 A.2d 355 (N.J. 1987) (allowing bail for fugitive who was not in demanding state when crime committed).

The Office of the Governor of North Carolina has expressed its agreement with the National Association of Extradition Officials’ resolution in 1986 which opposed bail in all cases when a Governor’s Warrant has been issued; the resolution takes the position that a Governor’s Warrant is an executive—not judicial—warrant, and bail is not allowed. See 50 N.C. Op. Atty. Gen. 40 (1980).

5. Must a fugitive be released if the Governor’s Warrant has not been issued when the fugitive has been committed for the maximum time, a total of 90 days, permitted under G.S. 15A-735 (up to 30 days) and G.S. 15A-737 (extension permitted up to 60 days)?

Yes. Brightman v. Withrow, 304 S.E.2d 688 (W. Va.1983) (but fugitive remains subject to rearrest under Governor’s Warrant); Speaks v. McGregor, 355 F. Supp. 1129 (W.D. Va. 1973); People ex rel. Linaris v. Weizenecker, 392 N.Y.S.2d 813 (Putnam Co. Ct. 1977).

6. May a fugitive be rearrested with a Governor’s Warrant after a fugitive warrant has been dismissed?

Yes. Debski v. New Hampshire, 348 A.2d 343 (N.H. 1975); Brightman v. Withrow, 304 S.E.2d 688 (W. Va. 1983); Commonwealth ex rel. Douglass v. Aytch, 310 A.2d 313 (Pa. Super 1973).

7. May a second Governor’s Warrant be issued after the first Governor’s Warrant was dismissed because of technical errors?

Yes. Cain v. Moore, 438 A.2d 723 (Conn. 1980).

8. Is a fugitive entitled to counsel at a habeas corpus hearing to contest the legality of an extradition proceeding?

Yes. Under G.S. 15A-730, an accused is entitled to have counsel present at such hearings. G.S. 7A-451(a)(5) provides appointed counsel for an indigent at an extradition hearing. Appointed counsel is not required at an initial arraignment on a fugitive warrant or at a hearing before the Governor. Rutledge v. Preadmore, 176 N.W.2d 417 (Mich. App. 1970). Most courts have ruled that counsel in such cases is required solely by statute and is not constitutionally required under the Sixth Amendment. McGuigan v. Sheriff, Wahoe County, 669 F. Supp. 1037 (D. Nev. 1987); Wertheimer v. State, 201 N.W.2d 383 (Minn. 1972); Roberts v. Hocker, 456 P.2d 425 (Nev. 1969).

9. On what grounds may a fugitive attack a Governor’s Warrant in a habeas corpus proceeding?

The United States Supreme Court has ruled that a court may only consider the following issues when deciding whether extradition is proper: (1) whether the extradition documents on their face are in order; (2) whether the accused has been charged with a crime in the demanding state; (3) whether the accused is the person named in the request for extradition; and (4) whether the accused is a fugitive. California v. Superior Court of California, 482 U.S. 400 (1987). See also Michigan v. Doran, 439 U.S. 282 (1978); New Mexico v. Reed, 524 U.S. 151 (1998) (allegation that extraditing state will deny fugitive due process and fugitive would be physically harmed in prison are not issues that may be raised in extradition hearing); Dodd v. State, 56 N.C. App. 214 (1982); In re Armstrong, 49 N.C. App. 175 (1980). The defendant’s evidence must be conclusive; mere conflicting testimony as to an accused’s absence from the demanding state at the time of the alleged crime will not support his or her release from custody at a habeas corpus proceeding. People ex rel. Garner v. Clutts, 170 N.E.2d 538 (Ill. 1970); State ex rel. Zack v. Kriss, 174 A.2d 25 (Md. 1952). See also the discussion in 11. below.

10. Must an indictment, information, or warrant from the demanding state be accompanied by affidavits or other documents showing the basis for the probable cause to arrest the fugitive?

An indictment is a sufficient finding of probable cause so that an asylum state may not look behind the document to determine whether probable cause exists. U.S. ex rel. Davis v. Behagen, 436 F.2d 596 (2d Cir. 1970); People v. Jackson, 502 P.2d 1106 (Colo. 1972).

If the documents sent by the demanding state do not include an indictment, they must show that a detached and neutral judicial official in the demanding state has found probable cause. It is not required that an affidavit supporting probable cause must have been executed before the issuance of an arrest warrant. Dunn v. Hindman, 836 F. Supp. 750 (D. Kan. 1993).

If the Governor in the asylum state decides to issue a Governor’s Warrant, the courts of that state may not review the documents to see whether they contain a showing of probable cause. Michigan v. Doran, 439 U.S. 282 (1978); California v. Superior Court of California, 482 U.S. 400 (1987).

11. What is the standard of proof required for a fugitive who is attacking a Governor’s Warrant in a habeas corpus proceeding? Does the state have the burden of producing evidence if the defendant introduces evidence contesting his or her status as a fugitive?

A Governor’s Warrant creates a presumption of regularity in an extradition proceeding, and a fugitive who wishes to attack the warrant must show by clear and convincing evidence that the warrant is invalid. People ex rel. Harris v. Warden, 345 N.Y.S.2d 29 (N.Y. Sup. Ct. 1973); Stolz v. Miller, 543 P.2d 513 (Colo. 1975); McCollough v. Darr, 548 P.2d 1245 (Kan. 1976). Other cases have formulated the standard of proof as requiring “conclusive” evidence, People ex rel. Pirone v. Police Comm’r, 225 N.Y.S.2d 257 (N.Y. Sup. Ct. 1962); or as requiring “clear and satisfactory” evidence, State ex rel. Rhodes v. Omodt, 218 N.W.2d 461 (Minn. 1974).

In Dodd v. State, 56 N.C. App. 214 (1982), the North Carolina Court of Appeals ruled that a fugitive must prove beyond a reasonable doubt that he or she is not the person named in the extradition papers.

States differ on whether the prosecution must present evidence to rebut an alleged fugitive’s evidence. In Rhodes, cited above, the court ruled that the state must present “minimal” evidence rebutting an alleged fugitive’s evidence that he or she was not in the demanding state at the time of the crime. In Stolz, cited above, the court ruled that a statement by an alleged fugitive does not necessarily rebut the presumption of regularity created by the Governor’s Warrant.

12. Does res judicata bar the state from proving in a second extradition hearing that the defendant was in the demanding state when the offense was committed, if the state did not present sufficient evidence to prove that issue at the first extradition hearing?

Res judicata is not a bar to a second extradition hearing if new or additional evidence is presented at the second hearing. State ex rel. Moore v. Conrad, 371 S.E.2d 74 (W.Va. 1988); In re Russell, 524 P.2d 1295 (Cal. 1974); People ex rel. Schank v. Gerace, 661 N.Y.S.2d 403 (N.Y. App. Div. 1997). But see Wells v. Sheriff, Carter County, 442 P.2d 535 (Okla. Crim. App. 1968).

13. Are waivers of extradition by probationers and parolees that are executed as a condition of probation and parole valid when a state later seeks to rely on the waivers in extraditing them?

Yes. Goode v. Nobles, 518 S.E. 2d 122 (Ga. 1999); Tymenski v. State, 816 So.2d 814 (Fla. Dist. Ct. App. 2002); Pierson v. Grant, 527 F.2d 161 (8th Cir. 1975); Commonwealth v. Green, 581 A.2d 544 (Pa. 1990) (citing cases from other jurisdictions); State v. Lingle, 308 N.W.2d 531 (Neb. 1981). These waivers are commonly known as pre-signed waivers of extradition.

For additional information on waivers of extradition under the Interstate Compact for Adult Offender Supervision (G.S. 148-65.5 through -65.9), see Bench Book for Judges and Court Personnel (2012), sections 4.2.1 and 4.2.2, pages 84-87.

You may also call the Division of Adult Correction of the North Carolina Department of Public Safety at 919.716.3160.

14. Is district court a “court of record” so that a district court judge may accept a written waiver of extradition under G.S. 15A-746?

Yes. Per G.S. 15A-746, a fugitive may waive extradition by “executing or subscribing in the presence of a judge of any court of record within this State or a clerk of the superior court a writing which states that he consents to return to the demanding state.” Historically, the term “court of record” meant any court which had the power to impose a fine or imprison someone. See generally Bain v. Hunt, 10 N.C. 572 (1825) (stating that district courts are courts of record: “the erection of a new jurisdiction with power to fine and imprison, makes it instantly a Court of record”). The term may also be understood as referring to a court in which a permanent record is made of all acts and proceedings; district courts in North Carolina can also be a court of record under this interpretation, but the prosecutor should ensure that a permanent record is, in fact, created (e.g., transcribed by a court reporter or electronically recorded). See State v. Clark, 22 N.C. App. 81 (1974) (discussing use of court reporter and availability of transcript from trial in district court); In re Edwards, 18 N.C. App. 469 (1973) (when recording device failed, trial judge should have summarized the evidence in juvenile adjudication hearing and made findings of fact on the record); see also State v. Mead, 235 N.C. App. 221 (2014) (discussing double jeopardy claim, appellate court noted that the “district court was not a court of record,” so it could not be determine when charging instrument was filed); State v. Ward, 127 N.C. App. 115 (1997) (appeal of ruling from district court to superior court required de novo review, because district court was not a court of record).