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  #1  
Old 11-15-2005, 05:26 PM
Nars Glinley Nars Glinley is offline
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Why would one waive extradition?

The tragic case of the girl whose parents were shot (allegedly) by her boyfriend got me to wonder: What does it benefit the accused to waive extradition? It seems unlikely to me that Pennsylvania will go easier on him because of the waiver. Assuming that he has a public defender in Indiana, it wouldn't cost him anything (monetarily anyway) to fight extradition. Why do people in these situations waive?
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  #2  
Old 11-15-2005, 05:38 PM
Random Random is offline
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Quote:
Originally Posted by KRM
The tragic case of the girl whose parents were shot (allegedly) by her boyfriend got me to wonder: What does it benefit the accused to waive extradition? It seems unlikely to me that Pennsylvania will go easier on him because of the waiver. Assuming that he has a public defender in Indiana, it wouldn't cost him anything (monetarily anyway) to fight extradition. Why do people in these situations waive?
Extradition is, in 99.9% of cases, automatic. (There are some rare exceptions that'll let one of the crim law guys explain, as they can do it better than I can.)
So what's the point of fighting it? It just adds to the overall time you spend in jail.
  #3  
Old 11-15-2005, 06:34 PM
groman groman is offline
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Being farther from the location of the crime gives you better chances with a jury. No cite, but there have been studies on this, my business law professor cited them a few years ago.
  #4  
Old 11-15-2005, 06:40 PM
Xema Xema is online now
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Quote:
Originally Posted by KRM
Why would one waive extradition?
Perhaps because one is innocent and confident of being able to prove it?
  #5  
Old 11-15-2005, 08:36 PM
Nars Glinley Nars Glinley is offline
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Originally Posted by groman
Being farther from the location of the crime gives you better chances with a jury. No cite, but there have been studies on this, my business law professor cited them a few years ago.
I'm not sure I follow you groman. "Being farther" at what point? How would waiving extradition help?
  #6  
Old 11-15-2005, 08:41 PM
groman groman is offline
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Quote:
Originally Posted by KRM
I'm not sure I follow you groman. "Being farther" at what point? How would waiving extradition help?
I believe the argument goes like this.

You commit a crime in point A.
You get caught in point B, in another state.
The farther your jury trial is from point A geographically the more likely you are to get acquited, to a point. So if you can fight extradiction from point B back to point A, you can have a trial at point B instead.

Now that I think about it, I'd love to see a study on this, I'll look around when I get home. It makes sense using common sense though, i.e. the location of the crime will certainly play a part in the trial. The witnesses will have to travel, the jury will think of the location as far away and remote, less close to heart, all sorts of factors.
  #7  
Old 11-15-2005, 09:41 PM
Gary T Gary T is online now
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Quote:
Originally Posted by groman
I believe the argument goes like this.

You commit a crime in point A.
You get caught in point B, in another state.
The farther your jury trial is from point A geographically the more likely you are to get acquited, to a point. So if you can fight extradiction from point B back to point A, you can have a trial at point B instead.
While I can see the advantage in being distanced from a locale where emotional reaction to the crime is high (which sometimes figures into change of venue), nothing else you say makes sense to me. The whole point of extradition is that the crime was committed in jurisdiction A, and therefore cannot be tried in jurisdiction B.
  #8  
Old 11-15-2005, 09:48 PM
groman groman is offline
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Quote:
Originally Posted by Gary T
While I can see the advantage in being distanced from a locale where emotional reaction to the crime is high (which sometimes figures into change of venue), nothing else you say makes sense to me. The whole point of extradition is that the crime was committed in jurisdiction A, and therefore cannot be tried in jurisdiction B.
I am not a lawyer (and for all I know you might be) but the way I understand it is that extradition is a question of most favourable locale for a trial. Basically if you commit a crime in say the US and flee to Canada, it's not that you cannot be tried in canada for your crime, it's that it's a lot easier to try you in the US and it seems "more fair" that way for everybody. Same thing with interstate, I believe, where it's not that he won't go on trial for murder if he beats his extradition, it's that he will go on trial for murder far away from the original location (reaping the benefits thereof).
  #9  
Old 11-15-2005, 09:52 PM
David Simmons David Simmons is offline
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Quote:
Originally Posted by groman
I believe the argument goes like this.

You commit a crime in point A.
You get caught in point B, in another state.
The farther your jury trial is from point A geographically the more likely you are to get acquited, to a point. So if you can fight extradiction from point B back to point A, you can have a trial at point B instead.

Now that I think about it, I'd love to see a study on this, I'll look around when I get home. It makes sense using common sense though, i.e. the location of the crime will certainly play a part in the trial. The witnesses will have to travel, the jury will think of the location as far away and remote, less close to heart, all sorts of factors.
Sorry. You can't be tried in B for a crime committed in A unless you can show that you couldn't bet a fair trial in A. And our many lawyers can answer whether or not you can be tried in one state for a crime committed in another under any circumstances. I'm fairly sure that if a crime is commited in a state and you do get a change of venue, the new location is still in the same state. How can one state enforce the laws of another?
  #10  
Old 11-15-2005, 09:56 PM
groman groman is offline
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Originally Posted by David Simmons
Sorry. You can't be tried in B for a crime committed in A unless you can show that you couldn't bet a fair trial in A.
Which I believe is the entire point of fighting extradition.

As for locales, I know Mexico will not extradite anybody facing the death penalty. I don't know if it ever comes up, but I would imagine they won't just let you go and live in Mexico freely, but try you and give you life in prison in Mexico.
  #11  
Old 11-15-2005, 09:58 PM
F. U. Shakespeare F. U. Shakespeare is offline
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IANAL, but if you were to commit a murder in, say, Minnesota (where I don't think they have the death penalty), but were captured in Texas or Florida, I could see the point of waiving extradiction.

Sort of in reverse, 1957-58 spree killer Charles Starkweather waived extradiction back to Nebraska from Wyoming because Wyoming executed by gas chamber (vice Nebraska's electric chair) and Charlie "hate(d) the smell of gas". Oh for the days when crooks took their damn medicine.
  #12  
Old 11-15-2005, 09:58 PM
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Quote:
Originally Posted by groman
I am not a lawyer (and for all I know you might be) but the way I understand it is that extradition is a question of most favourable locale for a trial. Basically if you commit a crime in say the US and flee to Canada, it's not that you cannot be tried in canada for your crime, it's that it's a lot easier to try you in the US and it seems "more fair" that way for everybody. Same thing with interstate, I believe, where it's not that he won't go on trial for murder if he beats his extradition, it's that he will go on trial for murder far away from the original location (reaping the benefits thereof).

You're not making any sense. Read [/b]Gary's[/b] response again.

Apparently, you have this idea that if a person arrested in state B for a crime in state A refuses to waive an extradition hearing, he's tried for the crime in state B.
No. All it means is that the arrested person sits in jail in state B until there is an extradition hearing in state B. Barring something amazing, the arrested person will be extradited to state A after the hearing, where he will be tried.

It is not possible for state B to try a defendant for a crime committed in state A. State B has no jurisdiction. One of the elements a prosecutor has to prove is that the crime took place in his jurisdiction.
  #13  
Old 11-15-2005, 10:01 PM
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Quote:
Originally Posted by groman
I would imagine they won't just let you go and live in Mexico freely, but try you and give you life in prison in Mexico.
The product of your imagination is not a valid basis for a GQ post.
  #14  
Old 11-15-2005, 10:02 PM
groman groman is offline
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Originally Posted by Random
Apparently, you have this idea that if a person arrested in state B for a crime in state A refuses to waive an extradition hearing, he's tried for the crime in state B.

It is not possible for state B to try a defendant for a crime committed in state A. State B has no jurisdiction. One of the elements a prosecutor has to prove is that the crime took place in his jurisdiction.
I have this idea that if a person arrested in state B for a crime in state A refuses to waive an extradition hearing they get an extradition hearing. If they win (prove, for example, that they can't get a fair trial in state A), they will not be extradited, if they lose they will be.

Now, honestly I don't know what happens if you win an extradition hearing. I suppose you're not extradited, so you have to be tried locally or let go. I'm guessing it's "tried locally".
  #15  
Old 11-15-2005, 10:03 PM
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Note: I'm focusing on state-to-state extradition here, as that was the circumstance raised by the OP. Foreign state extradition is a matter of treaty, and not relevant to the question posed.
  #16  
Old 11-15-2005, 10:04 PM
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Originally Posted by groman
I'm guessing it's "tried locally".
Your guess is wrong. Go away and play in IMHO.
  #17  
Old 11-15-2005, 10:06 PM
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Quote:
Originally Posted by groman
I am not a lawyer (and for all I know you might be) but the way I understand it is that extradition is a question of most favourable locale for a trial. Basically if you commit a crime in say the US and flee to Canada, it's not that you cannot be tried in canada for your crime, it's that it's a lot easier to try you in the US and it seems "more fair" that way for everybody. Same thing with interstate, I believe, where it's not that he won't go on trial for murder if he beats his extradition, it's that he will go on trial for murder far away from the original location (reaping the benefits thereof).
He has to be tried for the murder in the jurisdiction where it happened. If he doesn't waive extradition, he will probably be extradicted ,anyway. Just after a few weeks of hearing and other assorted paperwork instead of right away. The benefit to fighting extradition is that if you win, State B, where you are physically in custody, will not turn you over to State A. State A will have to find you again in a jurisdiction which will turn you over.
  #18  
Old 11-15-2005, 10:10 PM
Gfactor Gfactor is offline
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Quote:
Originally Posted by groman
I am not a lawyer (and for all I know you might be) but the way I understand it is that extradition is a question of most favourable locale for a trial. Basically if you commit a crime in say the US and flee to Canada, it's not that you cannot be tried in canada for your crime, it's that it's a lot easier to try you in the US and it seems "more fair" that way for everybody. Same thing with interstate, I believe, where it's not that he won't go on trial for murder if he beats his extradition, it's that he will go on trial for murder far away from the original location (reaping the benefits thereof).
No. No. No. First of all, in this case, the extradition is from Indiana to Pennsylvania. http://abclocal.go.com/wjrt/story?se...rld&id=3633160 Interstateextradition is tough to beat. Basically, it's a formality. Second, Pennsylvania has prescriptive jurisdiction over acts committed there. That means that Pennsylvania law was broken. Pennsylvania has the authority to enforce Pennsylvania criminal law--Indiana doesn't. If he were somehow able to defeat extradition, Indian could not try him for the Pennsylvania murder. Indiana could prosecute him for violations of Indiana law, though.

Here is the Indiana extradition statute's requirement:

Quote:
(5) A warrant of extradition shall not be issued unless the documents presented by the executive authority making the demand show that:
(a) except in cases arising under subsection 7 of this section, the accused was present in the demanding state at the time of the commission of the alleged crime, and thereafter fled from the state;
(b) the accused is now in this state; and
(c) he is lawfully charged by indictment found or by information filed by a prosecuting officer and supported by affidavit to the facts, or by affidavit made before a magistrate in that state, with having committed a crime under the laws of

that state, or that he has been convicted of a crime in that state and has escaped from confinement or has broken the terms of his bail, probation, or parole, or that the sentence or some portion of it otherwise remains unexecuted and that the person claimed has not been discharged or otherwise released from the sentence.
http://www.in.gov/legislative/ic/cod...ar33/ch10.html
  #19  
Old 11-15-2005, 10:11 PM
Bricker Bricker is offline
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There are two types of extradition: between states in the United States, and between countries.

There are circumstances in which fighting international extradition may make sense.

This is, I think, what groman is picturing.

However, the OP asks about interstate extradition, which does not have anything to do with where one is ultimately tried. Interstate extradition is largely automatic; the only thing the state seeking the prisoner must show is the governor's certification that the prisoner is under indictment or is a fugitive from justice.

Sometimes fighting exradition will force the prosecution to expose some part of their case, since the fugitive declaration must be based on some set of facts. It would be very unusual, however, since it's very seldom that this particular aspect of the prosecutor's case is unclear.
  #20  
Old 11-15-2005, 10:14 PM
groman groman is offline
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Ok, I looked it up:

According to this , in cases of international extradition, the procedure of what to do in case the subject is non-extraditable is not specified.

And according to a bunch of state extradition laws I just read, basically if you win you go free in that state, unless the locals find something to charge you with.
  #21  
Old 11-15-2005, 10:15 PM
Bricker Bricker is offline
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Quote:
Originally Posted by groman
I have this idea that if a person arrested in state B for a crime in state A refuses to waive an extradition hearing they get an extradition hearing. If they win (prove, for example, that they can't get a fair trial in state A), they will not be extradited, if they lose they will be.

Now, honestly I don't know what happens if you win an extradition hearing. I suppose you're not extradited, so you have to be tried locally or let go. I'm guessing it's "tried locally".
Stop offering your ideas as fodder for GQ answers.

"I can't get a fair trial in state A," is not a permissible reason to oppose interstate extradition.
  #22  
Old 11-15-2005, 10:19 PM
Bricker Bricker is offline
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Quote:
Originally Posted by groman
Ok, I looked it up:

According to this , in cases of international extradition, the procedure of what to do in case the subject is non-extraditable is not specified.
Yes. Which has nothing to do with the OP, but it sure is interesting.

Quote:
And according to a bunch of state extradition laws I just read, basically if you win you go free in that state, unless the locals find something to charge you with.
Also true. But pretty damn rare, since the requirements for a successful extradition are simply the showing that the governor of the state that wants you has certified that you're under indictment or information or a fugitive in his state. The only way to win an extradition hearing is to show that the governor HASN'T certified that status, or that you are not the person named in the governor's petition.
  #23  
Old 11-15-2005, 10:22 PM
samclem samclem is online now
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Originally Posted by Random
Your guess is wrong. Go away and play in IMHO.
Random. If you have a problem, take it to the appropriate forum. You can say that here, but you need to make it less confrontational. Civility, man!

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  #24  
Old 11-15-2005, 10:25 PM
Gfactor Gfactor is offline
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Oh, yeah, and there is this:

Quote:
Originally Posted by US Constitution Art. IV, Section 2
A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.
  #25  
Old 11-15-2005, 10:26 PM
groman groman is offline
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Quote:
Originally Posted by Bricker
"I can't get a fair trial in state A," is not a permissible reason to oppose interstate extradition.
It would be an interesting case, I can't find precedent, and I'm not sure one exists, but you can't argue that it doesn't make sense at all. Since the question is about law, and US is mostly under common and codified law which is subject to judicial interpretation.

For example, Virginia Law allows you (according to this
) use "cruel and unusual punishment" as a reason to avoid extradition. Now, that shows that a potential for violation of your civil rights under the Bill of Rights in the target state can prevent extradition, a good defense attorney might at least attempt the "fair trial" defense.

Laws aren't fixed y'know.
  #26  
Old 11-15-2005, 10:38 PM
Gfactor Gfactor is offline
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Quote:
Originally Posted by groman
It would be an interesting case, I can't find precedent, and I'm not sure one exists, but you can't argue that it doesn't make sense at all. Since the question is about law, and US is mostly under common and codified law which is subject to judicial interpretation.
No. It's part of the constitution and there is a federal statute on the issue. The state cannot entertain an argument like that.
  #27  
Old 11-15-2005, 10:43 PM
groman groman is offline
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Originally Posted by Gfactor
No. It's part of the constitution and there is a federal statute on the issue. The state cannot entertain an argument like that.
Can you cite the federal statute in question that allows the "Cruel and Unusual Punishment" defense but disallows "Unfair Trial" defense, as per the Virginia Extradition Guide I cited above (I know it's not law, but it's a government document, would they really make such a glaring error)? Because I do not believe that is in the constitution.
  #28  
Old 11-15-2005, 10:46 PM
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A couple of questions for American criminal lawyers or one-time American criminal lawyers (but not for Groman): do states give extra credit for time served prior to conviction, and if so, would time spent in state B fighting extradition to state A be so credited?
  #29  
Old 11-15-2005, 10:52 PM
Gfactor Gfactor is offline
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Quote:
Originally Posted by Indiana State Constitution, Art. 1
Section 13. (a) In all criminal prosecutions, the accused shall have the right to a public trial, by an impartial jury, in the county in which the offense shall have been committed
Quote:
Originally Posted by Pennsylvania State Constitution, Art. 1, Section 9
In all criminal prosecutions the accused hath a right to be heard by himself and his counsel, to demand the nature and cause of the accusation against him, to meet the witnesses face to face, to have compulsory process for obtaining witnesses in his favor, and in prosecutions by indictment or information, a speedy public trial by an impartial jury of the vicinage;
Even if Indiana had jurisdiction to adjudicate violations of Pennsylvania criminal law, these provisions both seem to require that the jury be drawn from Pennsylvania, which would be very complicated, to say the least.
  #30  
Old 11-15-2005, 10:54 PM
Blalron Blalron is offline
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Theoretically, couldn't a sympathetic governor refuse to let you be extradited?
  #31  
Old 11-15-2005, 10:55 PM
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groman, I don't fully understand your argument (and I've skimmed the 158 page pdf you link to), but permit me, if I may.

"I can't get a fair trial in State A" won't work because it isn't State B's decision to make. (On preview, I adopt Gfactor's citations here.) The federal law on point (and what you cited to from Virginia doesn't change the analysis) says that if the requisites for extradition are met, the fugitive will be extradited.

Your concern -- about lack of a fair trial -- could then be raised by the fugitive in State A. If you will recall, Scott Peterson raised that as an issue in his trial, and his trial was in fact moved out of Modesto, where the crime occurred, and to San Jose. The San Francisco lawyers whose dogs killed a woman (their names escape me) also claimed that they could not get a fair trial in SF and sought a change of venue. But all of that would be decided pursuant to State A's laws by the State A judge.

Your second point, that "cruel and unusual punishment" could be a basis to avoid extradition from State A to State B is also problematic. Here is the section you cited (page 39 from the pdf):
Quote:
The only other justification for gaining release through habeas corpus is by demonstrating that his or her acts, according to relevant statutes of the state in question, do not constitute a crime. Again, the burden is on the defendant to refute the allegation in the Governorís Warrant. It is not appropriate in this situation to consider guilt or innocence of the fugitive, motives of the demanding state, constitutional issues related to the ability of the defendant to receive a fair trial in the demanding state, prison conditions, etc. In fact, the only other justification that might apply would be the defendantís ability to show great likelihood of being subject to cruel and unusual punishment in the demanding state.
Emphasis added. As you see, the manual you cite explicitly rejects your first argument. As to the second, you need to understand that "cruel and unusual punishment" is pretty severe -- the death penalty currently is not considered cruel and unusual punishment. So the mere fact that a fugitive might have to face death won't get you there -- even if the law permitted him to make that argument. And that's the other issue. The section is talking about seeking habeas relief; it's not about extradition per se. A habeas petition is different from extradition, as the manual you cite makes plain.
  #32  
Old 11-15-2005, 11:04 PM
Gfactor Gfactor is offline
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Quote:
Originally Posted by groman
Can you cite the federal statute in question that allows the "Cruel and Unusual Punishment" defense but disallows "Unfair Trial" defense, as per the Virginia Extradition Guide I cited above (I know it's not law, but it's a government document, would they really make such a glaring error)? Because I do not believe that is in the constitution.
Ok. I've already shown you the part of the Constitution that rules this out, are you suggesting that Virginia can amend the Constitution? Are you suggesting that Congress can do so by passing a statute? You are sezing on a single sentence in a manual, which is not law, and trying to read it like a statute. And that single sentence says not that the argument would be grounds for refusal of extradition, but instead that it might be grounds for habeas corpus. That's not gonna work.

It is unlikely that the cruel and unusual punishment theory would fly because:

1. Assuming the defendant has not been convicted yet (as in all of your hypotheticals), he might be acquitted, which would moot the issue. So the issue is not ripe.

2. The defendant would have access to federal courts in the prosecuting state, and cruel and unusual punishment is unconstitutional, so the federal courts would guarantee that right irrespective of the state of prosecution.

By they way, where in Virginia law (aside from the single sentence to which you have alluded) do we find th cruel and unusual exception to extradition?

::High-five to Campion on preview::
  #33  
Old 11-15-2005, 11:08 PM
groman groman is offline
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Basically my example is an extreme hypothetical. Suppose the very nature of State A prevents the fugitive from getting a fair trial there. Now, internal issues of State A and it's statehood and all fun stuff like that are not really of interest to an extradition hearing in state B, however, if it is obvious that for example, upon return to state A the fugitive will be summarily executed without a trial. Clearly unconstitutional for state A, but nonetheless the case in this hypothetical. Then, clearly "fair trial" SHOULD be a valid defense. I'd still like to see something that says it would be somehow against the law for a court to even entertain such a defense.

After all any court decision that violates your constitutional rights is unconstitutional, but I don't know if you can appeal extradition hearings all the way to the supremes.
  #34  
Old 11-15-2005, 11:10 PM
Gfactor Gfactor is offline
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Quote:
Originally Posted by groman
I don't know if you can appeal extradition hearings all the way to the supremes.
You can
  #35  
Old 11-15-2005, 11:20 PM
groman groman is offline
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If anybody is interested, here's an attempted 8th amendment defense to extradition that failed. It also states that

Quote:
Once the Governor of California issued the warrant, claims as to constitutional defects in the Arkansas penal system should be heard in the courts of Arkansas, not those of California.
which to me sounds like it would be sufficient to prove that if "constitutional defects" in state A's legal system would in of themselves prevent "claims as to constitutional defects" as they pertain to this particular case. Now, could a courtrelease you to another jurisdiction if that jurisdiction itself was violating the 6th amendment and would not allow you to challenge it from the inside?
  #36  
Old 11-15-2005, 11:52 PM
samclem samclem is online now
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groman. While I warned Random about his tone in that one response to your inane posts in this thread, I'm now warning you.

If you try to come in and hijack a General Question thread with your personal opinions, and after being told by posters with legal qualifications that your posts are nothing but your unfounded opinions, and you continue your line of drivel, then I'll issue you a formal warning.

If you want to debate your opinions, take them to GD. If you merely wish to offer them, take them to IMHO. But keep them OUT of GQ.


I hope this is clear.

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  #37  
Old 11-16-2005, 07:14 AM
samclem samclem is online now
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groman. I want to apologize for calling your statements "drivel." That was impolite on my part. But I'm tired of people(not just you) offering their opinions in General Questions. I know it will never change, but let's try to do the research before you offer your first post.

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