Amicus Curiae Brief — California v. Superior Court of Cal., San Bernardino Cty.

. Supreme

ne Y EILE D

VY) FEB 99 1967

No. 86-381

aa weirs a CLERK

In the Supreme Court

OF THE

United States

OcToOBER TERM, 1986

PEOPLE OF THE STATE OF CALIFORNIA

Petitioner,

VS.

SUPERIOR COURT OF THE STATE OF CALIFORNIA,

FoR THE COUNTY OF SAN BERNARDINO,

Respondent,

RICHARD SMOLIN AND GERARD SMOLIN,

Real Parties in Interest.

BRIEF FOR AMICI CURIAE

CALIFORNIA ATTORNEYS FOR CRIMINAL JUSTICE

and

NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS

EPHRAIM MARGOLIN

240 Stockton Ave.

San Francisco, CA 94108

(415) 521-4347

Attorney for

Amici Curiae

‘

Uy

TABLE OF CONTENTS

Table of Authorities .......6-ee+-e+++ iii

Interest Of AMICi .. cece eseeeecccees 1

Summary of Argument ......eeeeeeeees 3

Argument:

PERMITTING AN ASYLUM COURT TO TAKE

JUDICIAL NOTICE OF ITS OWN RECORDS TO

DETERMINE WHETHER AN ACCUSED PERSON IS

SUBSTANTIALLY CHARGED WITH A CRIME UNDER

THE DEMANDING STATE'S LAWS IS

CONSTITUTIONAL AND THE RESULTING BURDENS

ON THE PROCESS OF INTERSTATE EXTRADITION

ARE VERY LIGHT ...ceecseeccsvvssesees .

A. NO VALID CONSTITUTIONAL AUTHORITY

COMPELS AN ASYLUM COURT TO CONFINE

ITSELF EXCLUSIVELY TO THE FACE OF

THE EXTRADITION DOCUMENTS IN

ASCERTAINING THE SUBSTANTIALITY OF

THE DEMANDING STATE'S CHARGE ... 8

SEVERAL STATES’ TRIBUNALS HAVE

AUTHORIZED ACCEPTING SIMPLE

FACTUAL EVIDENCE ON THE ISSUE OF

WHETHER A PERSON IS SUBSTANTIALLY

CHARGED WITH A CRIME .....-++-- 13

PERMITTING AN ASYLUM COURT ON

HABEAS CORPUS TO JUDICIALLY NOTICE

ITS OWN RECORDS DOES NOT DISTURB

THE SWIFT RENDITION OF FUGITIVES

AND PREVENTS THE HARDSHIP AND

SIGNIFICANT RESTRAINT ON LIBERTY

WHICH RESULTS FROM ERRONEOUS

-ii-

TABLE OF AUTHORITIES

Cases:

Biddinger v. Commissioner

of Police, 245 U.S. 128 (1917) 8, 11

Carpenter v. Jamerson,

432 N.E.2d 177 (Ohio 1982) 17

Drew v. Thaw, 235 U.S. 432 (1914) 5, 11

Hopper v. State ex rel. Schiff,

678 P.2d 699 (N.M. 1984) | 13

Hyatt v. People ex rel. Corkran,

188 U.S. 691 (1903) 6

In re Rowe, 423 N.E.2d 167

(Ohio 1981) 21

Michigan v. Doran,

439 U.S. 278 (1978) passim

Pacileo v. Walker,

449 U.S. 86 (1980) 12

People v. Superior Court (Smolin),

41 Cal.3d 758 (1986) passim

People ex rel. Lewis v. Commissioner

of Correction, 417 N.Y.S.2d 377

(1979) 11

Roberts v. Reilly,

-iii-

116 U.S. 80 (1885) 7, 9 ia

South Carolina v. Bailey,

289 U.S. 412 (1933) 12

State v. Gale,

312 S.W.2d 824 (Fla. App. 1975) 15, 16

State v. Ritter,

246 N.W.2d 552 (Wis. 1976) 13, 14, 15

State ex rel. Gilpin v. Stokes,

483 N.E.2d 179 (Ohio App. 1984) 17

State ex rel. Reddin v. Meekma,

306 N.W.2d 664 (Wis. 1981) 15

State ex rel. Walker v. Ramsey County

District Court, 368 N.W.2d 28

(Minn. App. 1985) 17

Strassheim v. Dailey,

221 U.S. 280 (1911) 12, 25

United States v. Flood,

374 U.S. 554 (2nd Cir. 1967) 13

-iv-

VOL ee me a

i oe ee

hee ete hee Bete be ete ae Bie ee oc avec 8

~ eens

Statutes, Codes and Other Authorities

Title 18 U.S.C. { 3182 4

Fed. R. Evid. 201 19

Uniform Criminal Extradition Act 4, 5

O. Holmes, COLLECTED LEGAL PAPERS

(1920) 26

Murphy, Revising Domestic Extradition

Law, 131 U. Pa. L. Rev. 1063 (1983) 20

INTEREST OF AMICI CURIAE

California Attorneys for Criminal

Justice (hereinafter CACJ) is a

California criminal defense bar

comprised of 1,800 lawyers active in

criminal defense and dedicated to the

preservation and improvement of a fair

criminal justice system within our

country.

The National Association of

Criminal Defense Lawyers (hereinafter

NACDL) is a District of Columbia non-

profit corporation whose membership is

comprised of more than 4,000 lawyers who

are citizens of every state. The NACDL

is dedicated to the preservation and

improvement of our adversary system of

justice.

The Supreme Court of California in

People v. Superior Court (Smolin), 41

Cal.3d .358 (1986), approved of a habeas

corpus court in an asylum state taking

judicial notice of its own court records

ote

to ascertain whether a person sought to

be extradited by a sister state had been

substantially charged with having

committed a crime against her laws. In

the case, the habeas court, by

judicially noticing the existence of a

valid custody decree granting respondent

custody over his two children,

determined that under the laws of the

demanding state he could not properly be

charged with kidnapping the two

children, and granted respondent's

request to halt his extradition.

CACJ and the NACDL, believing this to

be a just result consistent with

judicial precedent and the orderly

prosecution of interstate crime, join

respondents as amici to respectfully

urge this Court to affirm the judgment

of the Supreme Court of Califernia.

ete ee ——————

ee

SUMMARY OF ARGUMENT

This brief will assess the

constitutionality of allowing an asylum

court in extradition habeas corpus to go

beyond the extradition documents by

judicially noticing its own records

in determining whether a person has been

substantially charged with having

committed a crime against the laws of

the demanding state. The brief will

‘Yow that this narrow inquiry has never

been expressly forbidden by this Court

and that the tribunals of several states

have chosen to engage in similar

analyses when confronted by like

Situations. It is the conclusion of

amici that the inquiry is

constitutional; the insignificant

burdens on the swift rendition of

fugitives resulting from engaging in it

are outweighed by the benefits to be

reaped from it.

ARGUMENT

PERMITTING AN ASYLUM COURT TO TAKE

JUDICIAL NOTICE OF ITS OWN RECORDS TO

DETERMINE WHETHER AN ACCUSED PERSON IS

SUBSTANTIALLY CHARGED A CRIME AGAINST

THE DEMANDING STATE'S LAWS IS

CONSTITUTIONAL AND THE RESULTING BURDENS

ON THE PROCESS OF INTERSTATE EXTRADITION

ARE VERY LIGHT

The Extradition Clause in the United

States Constitution, art. IV, { 2, cl.

2, aS implemented by Congress in Title

18 U.S.C. { 3182, and the Uniform

Criminal Extradition Act, 11 U.L.A. 59

(1974), where enacted, have secured the

states the absolute right to oring to

trial within their boundaries persons

charged with having committed a crime

against their laws. A corollary to this

right is the prohibition on an asylum

state to conduct a trial on the merits

ais

of the accused person's case and attempt

to ascertain his or her guilt or

innocence of the underlying offense.

Drew v. Thaw, 235 U.S. 432, 439-40

(1914); Uniform Criminal Extradition Act

{ 20.

This Court in Michigan v. Doran, 439

U.S. 278 (1978), reiterated these

salutary fundamental principles and

delineated the limited scope of inquiry

permissible by an asylum court when an

alleged fugitive challenges her

extradition in a habeas corpus

proceeding:

[A] court considering release

on habeas corpus can do no

more than decii2 (a) whether

the extradition documents on

their face are in order; (b)

whether the petitioner has

been charged with a crime in

the demanding state; (c)

whether the petitioner is the

ofe

person named in the request

for extradition; and (d)

whether the petitioner is a

fugitive.

Id., 439 U.S. at 289.

The prohibition against passing on the

merits of the alleged fugitive's case is

thus qualified by these four issues open

to inquiry. Should a habeas court

ascertain that the accused has

established the absence of at least one

of these four requirements, such as

identity or fugitiviness, the fact that

the court may also collaterally

determine that the person is not guilty

of the underlying charge is not a bar to

preventing extradition. See, e.g.,

Hyatt v. People ex rel. Corkran,

188 U.S. 691 (1903) (approving state

court determination that extradition

should be blocked as petitioner

demonstrated that he was not in

demanding state at time alleged crime

abe

occurred).

Regarding inquiry into the

substantiality of the demanding state's

charge, there will also invariably be

instances when a determination that the

accused person was not charged with a

crime involves passing on issues close

to the merits of his case. Ordinarily

this would not be a valid objection to a

refusal to extradite. Roberts v.

Reilly, 116 U.S. 80, 95 (1885). The

guestion presently before this Court is

whether simple factual evidence may be

admitted through judicial notice of the

asylum court's records in ascertaining

the substantiality of the demanding

state's charge. While no United States

Supreme Court cases have directly

addressed this issue, we urge this Court

to answer the question in the

affirmative.

A. NO VALID CONSTITUTIONAL AUTHORITY

COMPELS AN ASYLUM COURT TO CONFINE

ITSELF EXCLUSIVELY TO THE FACE OF

THE EXTRADITION DOCUMENTS

ASCERTAINING THE

SUBSTANTIALITY OF THE DEMANDING

STATE'S CHARGE

In extradition habeas corpus the issues

of identity and fugitiveness are ones of

fact and thus evidence beyond the four

corners of the extradition documents is

admissible to attempt to prevent

erroneous extraditions. Biddin Vv.

Commissioner of Police, 245 U.S. 128,

135 (1917). Contrary to the position of

the State of California as petitioner in

the present case, no persuasive

authority supports its assertion that an

asylum court must absolutely confine

itself to the face of the extradition

papers in determining the substantiality

of the charge of the demanding state.

The only United States Supreme Court

case which passed on the question as to

what evidence is admissible on this

issue is both ambiguous and of

questionable continuing validity. In

Roberts v. Reilly, 116 U.S. 80 (1885),

the Court stated that the question

whether a person is substantially

charged with a crime is a question of

law which is “always open upon the face

of the [extradition] papers to judicial

inguiry." Roberts, 116 U.S. at 95. In

Giscussing the merits of the case, the

Court rejected petitioner's claim that

the indictment did not substantially

charge larceny because it did not state

that the corporation from whose

possession the property was taken was

capable of ownership under the law of

the demanding state. This issue, the

Court held

is not a matter of law

arising upon the face of the

-9-

indictment, but can arise

only at the trial upon the

evidence, if the question

should then be made. The

averment in the indictment

is the allegation of a fact

which does not seem to be

impossible in law, and is,

therefore, traversable.

Id. at 96.

As the Supreme Court of California

concluded, this holding appears to mean

that the courts of the asylum state are

foreclsed from inquiring whether the law

of the demanding state renders the

actions alleged in the indictment a

crime. People v. Superior Court

(Smolin), 41 Cal.3d 758, 769 n.12

(1986). Even the petitioner recognizes

that this is not the law today. Brief

for Petitioner at 36-38. Without the

ability to engage in an inquiry into the

demanding state's laws, a habeas court

-10-

would have no frame of reference in

ascertaining whether the accused stands

charged with a crime. See People ex

rel. Lewis v. Commissioner of

Correction, 417 N.¥.S.2d 377, 380 (1979)

("It is this court's opinion that it has

the power and obligation to make an

inquiry [as to whether the acts charged

constitute a crime] if properly

raised."). The Roberts case, therefore,

was decided under a principle of law no

longer valid and its appellation

regarding making a determination

confined to the "face of the papers"

must be considered only dictum.

No other case from this Court has

addressed the precise issue before this

court. Biddinger v. Commissioner of

Police, 245 U.S. 432 (1914), for

example, only dealt with evidence which

may be considered on the issue of

fugitiveness, while cases such as Drew

v. Thaw, 235 U.S. 432 (1914), Strassheim

afte

v. Dailey, 221 U.S. 280 (1911) and South

Carolina v. Bailey, 289 U.S. 412 (1933),

merely reaffirmed the truism that the

asylum state is not the locus to conduct

a trial on the merits of the accused

person's case.

This Court's latest cases on

extradition law have also not passed

upon the propriety of the inquiry in

question here. Michigan v. Doran, 439

U.S. 282 (1978), held only that an

asylum court may not re-examine a sister

state's judicial determination of

probable cause in the habeas proceeding;

while in Pacileo v. Walker, 449 U.S. 86

(1980), the Court prohibited inquiring

into the constitutionality of the

demanding state's penal system as a

ground for barring extradition.

Other lower court cases cited by

petitioner for the proposition that an

asylum court is strictly confined to the

extradition papers are inapposite. See,

o12-

e.g., United States v. Flood, 374 U.S.

554 (2nd Cir. 1967) (pursuasiveness of

affidavit accompanying extradition

warrant not proper subject for asylum

court's determination).

B. TRIBUNALS IN SEVERAL STATES HAVE

AUTHORIZED ACCEPTING SIMPLE FACTUAL

EVIDENCE ON THE ISSUE OF WHETHER A

PERSON IS SUBSTANTIALLY CHARGED

WITH A CRIME.

While some states which have considered

whether to go beyond the face of the

extraditon papers have refused to do

so, see, e.g., Hopper v. State ex rel.

Schiff, 678 P.2d 699 (N.M. 1984), others

have permitted such inguries, finding

that doing so neither violated the

Extradition Clause nor disrupted the

summary nature of the rendition process.

The Supreme Court of Wisconsin, for

example, in State v. Ritter, 246 N.W.2d

af%e

552 (Wis. 1976), analyzed the role of an

asylum court when the alleged fugitive

was charged with having committed a

crime which, under the demanding state's

laws, could only be charged if he was

over 18 years old or if a demanding

state juvenile court had first referred

the case for adult prosecution. The

petitioner sought to prove that the

referral which had occurred was invalid

and that he was under 18 years old and

hence had not been properly charged with

a crime. The Ritter court refused to

assess the validity of the referral,

believing it could not confidently

resolve this difficult issue. The court

did, however, expressly approve of going

"beyond the face of the [extradition]

documents and allow[{ing] .. . evidence

on a simple factual issue--age." Id. at

557. The court did not perceive that

this narrow inquiry, which would aid its

determination of the substantiality of

ofthe

the charge, would in any manner disrupt

the extradition process. The analysis

permitted by Ritter was specifically

approved by the Wisconsin Supreme Court

under the strictures of this Court's

opinion Michigan v. Doran in the case of

State ex rel. Reddin v. Meekma, 306

N.W.2d 664 (Wis. 1981).

In State v. Gale, 312 S.W.2d 824 (Fla.

App. 1975), a Florida appellate court

analyzed a situation very similar to the

one at bar and concluded that

considering indisputable evidence beyond

the face of the extradition papers was

constitutional. The petitioner was

sought by the demanding state for

kidnapping children in violation of a

custody order entered after his divorce.

He attempted to show that he had not

been substantially charged with a crime

beause he had remarried his wife

subsequent to the decree and, in so

doing, had invalidated the prior custody

efte

order. The court rejected his argument,

finding that he had not established that

under the demanding state's laws

remarriage vitiates a custody decree.

Nonetheless, the court approved of

petitioner's introduction of evidence

regarding his remarriage. It is clear

under the rubric of Gale that had the

law of the demanding state been clear on

the subject, as the law of Louisiana is

in the present case, neither the

tradicional bar on inquiring into the

merits of a case nor the limitation,

argued by petitioner, of not going

beyond the extradition papers, would

have prevented the court from halting an

erroneous rendition.

Further examples of cases, decided in

modern times, in which courts have

authorized the introduction of extrinsic

evidence on the substantial charge issue

can be found in Ohio and Minnesota.

These states allow a petitioner to

x"

introduce proof to show that he or she

is not substantially charged because the

underlying criminal charge is merely a

subterfuge to enforce a civil liability.

See State ex rel. Gilpin v. Stokes, 483

N.E.2d 179 (Ohio App. 1984), elaborating

on the Ohio Supreme Court's announcement

of the principle in Carpenter v.

Jamerson, 432 N.E.2d 177 (Ohio 1982),

and State ex rel. Walker v.

County District Court, 368 N.W.2d 28

(Minn. App. 1985).

Tribunals in Wisconsin, Florida, Ohio

and Minnesota have all concluded that

accepting simple factual evidence on the

issue of substantiality of a charge does

not offend either the well-known

prohibition against passing on the guilt

or innocence of the accused person's

case or interstate harmony. The Supreme

Court of California thus proceeded upon

ground already charted by several courts

in sanctioning judicial notice of a

-17-

court's own records in extradition

habeas corpus.

C. PERMITTING AN ASYLUM COURT ON HABEAS

CORPUS TO JUDICIALLY NOTICE ITS OWN

RECORDS DOES NOT DISTURB THE SWIFT

RENDITION OF FUGITIVES AND PREVENTS

THE HARDSHIP AND SIGNIFICANT

RESTRAINT ON LIBERTY WHICH RESULTS

FROM ERRONEOUS EXTRADITION

No decision by this Court has directly

prohibited the inguiry in question and

several states have permitted it. The

only question that remains is thus

whether the California Supreme Court's

decision is constitutionally infirm

under the caveats regarding the

potential “balkanization” of the

administration of interstate criminal

justice articulated by this Court's

opinion in Michigan v. Doran, 439 U.S.

530 (1978).

-18-

The Doran court, in forbidding re-

examination of a demanding state's

probable cause determination, was driven

by concerns that the individual states

not become sanctuaries for fugitives

from justice and that they not engage in

inguiries which may unduly delay the

summary rendition process. The

California Supreme Court's opinion in

Smolin avoids both these pitfalls.

Doran's first concern can be succinctly

capsulized as the fear that asylum

states may make errors in assessing a

person's case, thus becoming unwitting

sanctuaries. Smolin's inquiry would not

result in these errors. In order for a

court to judicially notice its own

records, the high standards of certainty

and indisputability contained in the

state's rules for judicial notice must

first be met. See, e.g., Fed. R. Evid.

201, from which many states' rules on

judicial notice are derived (fact to be

-19-

noticed must be “capable of accurate and

ready determination by resort to sources

whose accuracy cannot reasonably be

questioned") While the congruence

between Doran's statement that the four

issues which may be inquired into are

"historic facts readily verifiable,”

Doran, 439 U.S. at 289, and the language

of many statutes on judicial notice may

be coincidental, there can be no doubt

that the result of both is the same:

only facts which will not result in

error can be considered.

Errors in the proceeding are also

minimized by the extremely high burden

of proof imposed on the suspect in

extradition habeas corpus. The burden

is usually set at “clear and convincing”

or “beyond reasonable doubt.” See

Murphy, Revising Domestic Extradition

Law, 131 U. Pa. L. Rev. 1063, 1115-17 &

n.268 (1983), for a comprehensive list

of standards adopted by states.

-20-

The concerns regarding delay of

extradition proceedings are also met by

the Smolin inquiry. The very purpose of

judicial notice is to expedite factual

determinations where the particular fact

to be proved is outside the subject of

reasonable controversy. Accepting

evidence of this simple nature, and only

in the form of readily accessible

records of the habeas court, is far less

susceptible to delay than other

inquiries expressly permitted by Doran.

For example, the inquiry into & person's

fugitiveness carries the potential for

dilatory tactics by the accused. See,

e.g., In re Rowe, 423 N.E.2¢ 167 (Ohio

1981) (petitioner on extradition habeas

corpus allowed to examine fourteen

witnesses and cross-examine two others

to show non-fugitiveness). The Doran

Court was cognizant of the potential for

Gelay inherent in these inguiries but

concluded that "(t]jhere is nothing to

eZie<

indicate that this type of routine and

basic inquiry has led to the frustration

of the extradition process." Doran, 439

U.S. at 297 n.7 (Blackmun, J.,

concurring).

The combination of the strictures of

judicial notice and the high burden of

proof will operate to screen out of the

system only a minute number of cases

where, as in the present case, it is

Clear beyond question that an accused

person has not been substantially

charged with a crime. The only inquiry

permissible is into the judicial act in

the court record noticed, not the

hearsay statements within it or other

legal papers such as motor vehicle

ownership certificates. Furthermore,

the inquiry does not result in any

appreciable delay in the extradition

process as judicial notice by its nature

involves a minimum of time and court

resources. Doran's “balkanization"

-22-

concerns are avoided by the California

Supreme Court's decision and hence, it

is consistent with that opinion.

A comparison of the scanty interference

caused by the judicial notice inquiry

with the benefits to be reaped from it

also compels the conclusion that

permitting it is consistent with public

policy. As delineated before, the swift

rendition of fugitives will not be

hindered and the benefits of the inquiry

are substantial.

As extraditions considerably tax a

state's resources, interstate harmony

will probably be promoted by allowing

the inguiry, since it is probable that

if the demanding state had known of the

insubstantiality of its charge it would

place its resources in prosecuting

meritorious cases. In this regard, the

asylum courts operate as a valuable

adjunct to the screening function of the

executive officials in charge of the

-23-

bulk of the extradition process.

Allowing extraditions in situations

such as Smolin is to condone and

perpetuate the perpetration of fraud on

the judicial system. Persons should not

be allowed to abuse the criminal system

by improperly prosecuting private

grievances as in the present case. To

allow them to do so would be to supply

civil litigants with an unfair weapon in

their disputes to the detriment of the

efficient allocation of scarce

prosecutorial and judicial resources.

While an unlimited fraud exception to

extradition would be neither practical

nor wise, allowing a court to prevent

extradition where its own records

Clearly indicate the underlying fraud is

a salutary outcome.

The greatest benefit of allowing the

judicial notice inguiry is that it

prevents individuals from suffering the

enormous financial and emotional burden

afte

which can result from an erroneous

extradition. It is no answer to this

consideration that persons in the

Smolins' shoes may avoid this detriment

by simply waiving extradition and

presenting their case in the demanding

state; persons should no more have to

waive the procedural protections of

extradition than any other right in our

constitutional system.

CONCLUSION

This Court is here faced with a

situation not previously addressed in

its previous articulation of the

extradition system. The inquiry in

question, rather than allowing "(t]he

case to... be tried on habeas corpus, "

Strassheim v. Daily, 221 U.S. 280, 286

(1911) (Holmes, J.), only permits an

asylum court to screen cases out of the

system where, through the simple

expedient of judicial notice of its own

-2$-

records, it can confidently ascertain

that the accused person has not been

substantially charged with a crime.

The only real argument against this

narrow inquiry is that, in assessing

issues closely related to the merits of

the alleged fugutive's case, it appears

to run afoul of the historical taboo

against an asylum court determining

guilt or innocence. The notion that a

"rule simply persists from blind

imitation of the past,"(0O. Holmes,

Collected Legal Papers 187 (1920)), has

no place in this nation's criminal

jurisprudence, and should not prevent

this Court from permitting an inquiry

salutorious to the control of interstate

crime.

Respectfully Submitted,

alt (.

Ephra Margplin

February 17, 1987

o26-