Matter of Requested Extradition of Smyth

• Citation: 863 F. Supp. 1137
• Decision Date: 15 September 1994
• Docket Number: No. CR 92-0152 MISC BAC.,CR 92-0152 MISC BAC.
• Court: U.S. District Court — Northern District of California
• Parties: In the Matter of The REQUESTED EXTRADITION OF James Joseph SMYTH.

863 F. Supp. 1137

In the Matter of The REQUESTED EXTRADITION OF James Joseph SMYTH.

No. CR 92-0152 MISC BAC.

United States District Court, N.D. California.

September 15, 1994.

Mark N. Zanides, Asst. U.S. Atty., San Francisco, CA, for U.S.

Karen Snell, Asst. Federal Public Defender, San Francisco, CA, for James Joseph Smyth.

ORDER

CAULFIELD, District Judge.

This matter comes before the court for consideration of the request for the extradition of James Joseph Smyth to the United Kingdom of Great Britain and Northern Ireland. The court denies the request to certify Mr. Smyth for extradition for the reasons set forth below.

I. PROCEDURAL HISTORY.

James Joseph Smyth was convicted of attempted murder and sentenced to twenty years' imprisonment in Belfast, Northern Ireland in 1978. In September 1983, 38 prisoners, including Smyth, escaped from the Maze Prison in Belfast. Smyth arrived in San Francisco, California in 1984. Since that time he has lived and worked peacefully in the community.

On April 30, 1992, the United States Attorney filed a Complaint seeking a warrant for the provisional arrest of James Joseph Smyth for extradition to the United Kingdom of Great Britain and Northern Ireland ("U.K."). On May 27, 1992, the U.S. Attorney filed an Indictment in this District charging Smyth with making a false statement in a passport application in violation of 18 U.S.C. Section 1542. Smyth was arrested on the passport charge in San Francisco and taken into custody on June 3, 1992. The U.S. Attorney withheld execution of the provisional arrest warrant issued on April 30th. Smyth was arraigned on June 9, 1992. Judge Claudia Wilken heard arguments on Smyth's request to be released on bail pending trial on the passport charge, and ordered that Smyth be detained pending trial on the passport charge. On July 14, 1992, this court granted Smyth's request for release pending trial.

One day after this court granted Smyth's request for bail, the government executed the provisional arrest warrant and requested that Smyth be detained pending extradition to Great Britain. On September 14, 1992, the United Kingdom filed a formal request for the extradition of James Joseph Smyth to serve the remainder of his sentence for the 1978 attempted murder conviction. This court granted Smyth's request for bail under the requirement of special circumstances, a decision later reversed by the Ninth Circuit Court of Appeals.

Extradition of Mr. Smyth is sought pursuant to the Supplementary Extradition Treaty between the Government of the United States and the Government of the United Kingdom of Great Britain and Northern Ireland, which went into effect on December 23, 1986 ("Supplementary Treaty"). Mr. Smyth seeks to avoid extradition by raising a defense under Article 3(a) of the Supplementary Treaty: that he would, if surrendered, be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality or political opinions.

Several months before the extradition hearing, this court ruled that Article 3(a) created an exception to the traditional rule of non-inquiry in extradition matters, permitting the person being sought the right to establish that he individually would be prejudiced as a result of discriminatory treatment within the requesting country's criminal justice system.¹

Smyth sought discovery of several documents which he contends support his claim that he would be "punished, detained or restricted in his personal liberty by reason of his race, religion, nationality or political opinions" if surrendered. The documents Smyth sought included the Stalker-Sampson Reports, the Kelly Report, documents regarding the Stevens inquiry and a statement of information on ex-prisoners available to security forces on the streets of Northern Ireland. The Stalker-Sampson Reports documented the investigation of members of the Royal Ulster Constabulary for the shooting deaths of six people in 1982 whom the officers suspected of being members of the Provisional Irish Republican Army. The purpose of the inquiry was to determine whether or not criminal offenses involving, inter alia, the giving of false or misleading evidence and conspiracy to pervert the course of justice had been committed. The Kelly Report memorialized the review of Charles Kelly, the chief constable in Staffordshire, England, who was appointed in 1988 to consider whether disciplinary charges should be brought against constables who had been identified by Stalker and Sampson as having committed murder and other criminal offenses. The Stevens inquiry investigated allegations of collusion between members of the security forces and loyalist paramilitaries.

The U.K. objected to producing the documents, claiming that they were irrelevant and were protected from disclosure by the state secrets privilege, deliberative process privilege, and investigatory files privilege.

After a review of the description of the documents in question, the court found that the documents were relevant for discovery purposes. In light of Smyth's strong showing of need for the documents and the vagueness of the U.K.'s declarations invoking privileges from production, the court determined that an in camera review of the documents was necessary. Suggestions from the U.K. regarding the redaction of particularly sensitive information pertaining to the identity or activities of security forces personnel were invited. The U.K. responded that it would not be possible to redact the documents and declined to submit the documents for any in camera review by the court.

The U.K.'s refusal to produce the documents led this court to grant the following rebuttable presumptions to Smyth as a remedy to balance the competing interests:

(1) Catholic Irish nationals accused or found guilty of offenses against members of the security forces or prison officials are subjected systematically to retaliatory harm, physical intimidation and death in Northern Ireland.

(2) Members of the security forces in Northern Ireland either participate directly or tacitly endorse these actions.

The court intended the presumptions to balance the refusal to produce the relevant documents with Smyth's right to review those documents to aid his defense. The presumption granted by the court shifted the burden of production to the U.K., but Smyth retained the ultimate burden of proof in establishing his defense to extradition. The court later ruled that the presumption must be rebutted by the U.K. by a preponderance of the evidence.

The parties to the proceedings agreed that the Federal Rules of Evidence do not apply in extradition proceedings. Fed.R.Evid. 1101(d)(3). The court received all evidence introduced. The government and Smyth introduced statistical reports. Witnesses interpreted many of the statistical reports. The court considered appointing an expert under Federal Rule of Evidence 706(a) but declined to make the appointment. The review of the statistical evidence by the court and the testimony of the witnesses interpreting the evidence demonstrates the inability to draw any logical conclusion from the statistical evidence. The statistical evidence regarding a pattern of arrests, detentions, or treatment of individuals in Northern Ireland is flawed by the lack of scientific record-keeping or collection techniques. Therefore, the court declines to rely upon statistics collected for the purpose of the Smyth case by either the U.K. or Mr. Smyth. The court instead will evaluate the evidence of witnesses testifying at trial on the issues presented to the court.

II. FINDINGS OF FACT.

A. Background on the Political Violence in Northern Ireland.

1. Northern Ireland has a population of about 1,500,000. The population is approximately 62% Protestant and 38% Roman Catholic. The largest city in Northern Ireland is Belfast. Within Belfast is the Ardoyne neighborhood, a Catholic nationalist area with a population of 15,000-20,000. James Smyth is from the Ardoyne neighborhood.

2. There are two main ideological combinations in Northern Ireland: people who wish Northern Ireland to unite with the Republic of Ireland and people who wish it to remain part of the United Kingdom. "Nationalists" are those people who desire a united political entity encompassing Northern Ireland and the Republic of Ireland. Within the nationalist combination exist the "republicans," who believe that the use of violence is a legitimate means of pursuing that goal. A subset of the republicans actually take up arms in pursuit of that goal. "Unionists" are those people who desire Northern Ireland to remain a part of the United Kingdom. Within the unionist combination exist the "loyalists," who believe that the use of violence is a legitimate means of pursuing that goal. A subset of the loyalists actually take up arms in pursuit of their goal. Nationalists are from the Catholic community and unionists are drawn from the Protestant community.

3. Sinn Fein is a minority political party in Northern Ireland, capturing about ten percent of the popular vote. Sinn Fein's political aim is generally aligned with the republican ideology and seeks to establish a socialist republic for the Republic of Ireland and Northern Ireland.

4. The current chapter in the civil unrest in Northern Ireland began in August 1969, when Protestant unionists attacked Catholic nationalist neighborhoods. People were shot and stoned; homes and cars were burned. The local constabulary was unable to control the situation and British Army troops arrived. Twenty-five years later, the British Army remains in Northern Ireland.

5. On the republican side, the main paramilitary organizations are the Provisional Irish Republican Army ("IRA") and the Irish National Liberation Army. There are roughly 400 active service members (i.e., those actively involved in carrying out violent acts) in the IRA. The IRA has publicly announced that the British Army...