Docket No. 22,749
STATE OF NEW MEXICO, ex rel., MANUEL ORTIZ,
Director, Taos County Adult Detention Center,
SUPREME COURT OF NEW MEXICO FILED SEP - 9 1997
Hon. Tom Udall, Attorney General Anthony Tupler, Assistant Attorney General
Santa Fe, NM
T. Glenn Ellington, Chief Public Defender Sue Anne Herrmann, Assistant Public Defenders
Santa Fe, NM
Richard D. Weiner
for Amicus Curiae
New Mexico Chapter of the National Lawyer's Guild
O P I N I O N
FRANCHINI, Chief Justice.
Timothy Reed filed a petition for writ of habeas corpus to challenge his extradition trom New Mexico to Ohio. The district court granted his writ on the grounds that the extradition documents were not in order and Reed was not a fugitive from justice. This case is distinguished from other extradition cases by a unique fact pattern that is supported by compelling evidence. We conclude that the extradition documents are in order. However, we agree with the district court that the conduct of the State of Ohio forced Reed to flee the state under duress, in fear of death or great bodily harm at the hands of government officials. We hold that Reed is not a fugitive from justice and affirm the writ of habeas corpus.
2 Timothy Reed—also known as Little Rock Reed—is part Lakota Sioux. In 1982 and 1983 Reed pleaded guilty to one charge of theft of drugs and two charges of aggravated robbery. He was sentenced to concurrent terms of up to 25 years imprisonment. Most of that prison time was spent at the Southern Ohio Correctional Facility, known as "Lucasville" after the name of the Ohio town where the prison is located.
3 In Lucasville, Reed became a jailhouse lawyer and "writ writer" who helped other inmates prepare petitions for writs of habeas corpus. He also was an advocate tor the rights of incarcerated Native Americans to practice traditional religious beliefs while in prison. The undisputed evidence shows that this advocacy incurred the animosity of prison officials.
4 While in Lucasville Reed wrote several articles on Native American religious rights and other Indian issues. These were published in national periodicals. See. e.a.. Little Rock Reed, The American Indian in the White Man's Prison: A Story of Genocide. 9(l) J. of Prisoners on Prisons, Fall 1989; Little Rock Reed, Native Amerlcan -vs.- Anglo Rehabilitation: Contrasting Cultural Perspectives 2(2) J. of Prisoners on Prisons, Spring 1990. These articles contained strong criticisms of the treatment of American Indian prisoners by the Ohio Adult Parole Authority (Parole Authority) and the Ohio Department of Rehabilitation and Correction (Ohio Department of Corrections). Though incarcerated in Lucasville, Reed acquired a national reputation as a spokesperson for the rights of American Indian prisoners. He was contacted by scholars and other advocates and was asked to provide materials regarding Native American issues for various conferences.
5 The record shows that Reed was a source of aggravation to Ohio prison officials because of his criticisms of the Ohio prison system. Reed states that he was mistreated in prison and was denied parole in retaliation for his speech activities.
6 Reed's supporters petitioned the Parole Authority, urging that he be given parole. In October 1990, Reed was finally granted parole and transferred from Lucasville to a six-week reintegration program at a minimum security prison in Orient, Ohio. Shortly before his scheduled release from Orient, Reed was asked to sign a "contract" which was required of all parolees. Reed felt the contract compelled him to waive his constitutional rights so he altered the wording and then signed it.
7 On December 5, 1990, Reed met with the Chairman of the Parole Authority. Reed was informed that his parole was being rescinded because of his refusal to sign the contract as written. Reed testified that at this meeting the Chairman cursed him and said "that I was his property, and that I was going to serve twenty-five actual years in maximum security if he [the Chairmanl lives that long to ensure it." The Chairman also stated he did not give a damn about Reed's so-called constitutional rights. Reed was returned to Lucasville.
8 Reed filed a habeas corpus petition in state court challenging the recision of his parole. The district court dismissed the petition and the Ohio Court of Appeals affirmed. See Reed v. Tate, 1992 WL 129404 (Ohio ct. App. June l0, 1992), fig Reed v. Tate, No. 9l Cl-122 (Scioto County, Ohio C.P. Ct. Sept. 18, 1991).
Aproximately a year and half after his first parole, Reed agreed to sign the parole contract, intending to challenge it later in court. He was released from Lucasville on May 5, 1992 to serve a one-year parole term. Shortly after his release, Reed received permission from his parole officer to travel to South Dakota to participate in the Sun Dance, a Lakota Sioux religious ceremony. Reed took up residence with his mother in Cincinnati, working as director of the Native American Prisoners' Research and Rehabilitation Project (Native American Project) while studying full-time towards a bachelor's degree in criminal justice and Indian affairs.
During the time he was on parole, Reed published articles and made speeches about such matters as American Indian religious freedom and alleged offenses by the Ohio prison system. See. e.g., Little Rock Reed, Todav's Prison Administrators Were Trained bv Fascists: And What About Tomorrow?, Iron House Drum (Native American Prisoners' Rehabilitation Research Project, Villa Hills, Ky.), 2d ed. 1992, at 7.
ll Reed also actively corresponded with various officials of the Ohio Department of Corrections including Arthur Tate, Jr., the warden at Lucasville. In these letters he criticized the void of religious services for Native American prisoners. Reed offered to mediate between the Department and religious organizations who were attempting to fill this void. Some of this correspondence was published in such a way as to favor Reed's point of view at the expense of the integrity of the prison officials. See. e.g., Little Rock Reed, An Exchange Between the NAPRRP and an Ethnocentric Prisoncrat: Three Letters, Iron House Drum (Native American Prisoners' Rehabilitation Research Project, Villa Hills, Ky.), 2d ed. 1992, at 3-4 (correspondence between Reed and Tate).
I2In his letters, Reed suggested that warden Tate was unresponsive and insensitive. Tate wrote an angry response to Reed, in a letter dated October 16, 1992. He stated, "I personally resent your continued attacks and attempts to dictate to me the 'specifics' of how [Lucasville's] Native American program must operate." Letter from Arthur Tate, Jr., Warden, Southern Ohio Correctional Facility, to Timothy Reed (Oct. 16, 1992). Reed became concerned that Tate or other officials of the Department of Corrections and the Parole Authority might try to violate his parole because of their objections to his speech activities.
13 With his parole officer's permission, Reed made presentations at various conferences such as the 43rd Annual Conference of the Governors' Interstate Indian Council in Utah. At a state-wide gathering of Ohio Indian organizations at Ohio State University,. he spoke about the deprivation of religious expression for Native Americans by U.S. prisons in general and by the Ohio Department of Corrections in particular.
14 In September or October 1992, shortly after this last mentioned conference. Reed was summoned to a meeting with his parole officer, Ron Mitchell. According to Reed's uncontradicted testimony, Mitchell said that for the first time in his thirteen-year career he had been personally contacted by the chief of the Parole Authority. As Reed testified:
He told me that the chief directed him to give me an order not to speak in public again about anything relating to the Ohio Department of Corrections or Parole Authority, and he told me that if I wrote any more articles about the Adult Parole Authority or the Department of Corrections, and if I wrote any more letters to any prison officials in Ohio, my parole would be revoked and I would be returned to the penitentiary.
Reed responded that he would no longer travel or write to prison officials. However, he would continue to speak and publish his writings, and when invited to out-ot-town conferences, he would send video-taped presentations.
15 Reed was forced to cancel speaking engagements at several religious conferences including the Annual Conference of the Catholic Committee of Appalachia. He had to forego plans to testify before the United States Senate Select Committee on Indian Affairs. Reed stated that. if he felt concern after warden Tate's expression of personal resentment. he now felt real fear of retaliation after the chief of the Parole Authority suppressed his speech.
16 Reed maintained contact with inmates inside Lucasville. They warned him that corrections officials were greatly displeased with Reed's criticism of the prison management. It was from these contacts, according to Reed's uncontroverted testimony, that he learned that prison personnel had expressed an intention to cause him death or great bodily harm if he were ever returned to Lucasville. This further corroborated Reed's fear that he could be subject to retaliation because of his speech activities.
17 Reed asserts that the opportunity for this retaliation arose from a chain of events beginning with a minor traffic incident on February 16, 1993. In order to keep an appointment with his counselor, Reed had borrowed a car from Dinah Devoto. a volunteer at the Native American Project where Reed worked. Devoto was a city council member in Villa Hills. Kentucky, just across the border from Cincinnati. Reed bumped into another car on an icy road and was fined $105 by Ohio police. Reed's grandmother paid the fine on April 2, 1993.
18 The accident was minor, but the incident fueled the anger of Dinah Devoto's husband Steve, who apparently begrudged his wife's volunteer work with Native American Project. Steve Devoto had remarked to other people that he would like to severely hurt Reed. The record shows that, in an argument over the phone, Steve Devoto told Reed to stay away from his family and threatened to blow off Reed's head. This statement was witnessed by Devoto's six year old daughter. This argument occurred on March 12, 1993, six weeks before Reed's parole term expired.
19 On the evening of Thursday, March 18, 1993, Reed was served with a summons and complaint. As a result of the telephone argument, Steve Devoto charged Reed with the misdemeanor of "terroristic threatening" in violation of Kentucky law. see Ky. Rev. Stat. Ann. § 508.080(a) (Banks-Baldwin Supp. 1990) (proscribing a threat "to commit any crime likely to result in death or serious physical injury to another person").
2o Reed immediately contacted the Devotos. Dinah prepared an affidavit in which she swore that the misdemeanor charge her husband had filed against Reed was false. She stated that she and Steve had discussed the matter and offered to meet with Reed's parole officer to confirm that the charge was false and that Steve intended to drop the charge. Reed's brother. Matthew Scull, picked up the affidavit from the Devotos early the next morning.
21MReed called Mitchell on Friday, March, 19, 1993. when the parole office opened at 9:00 a.m. Scull witnessed the call and later prepared an affidavit which corroborates Reed's account of the conversation. Reed explained that he had been served the misdemeanor summons and complaint for threatening Steve Devoto's life. He told Mitchell that Steve and Dinah Devoto would verify that the charge was false, that it was actually Steve who had threatened Reed's life, and that Steve intended to withdraw his complaint.
22 Mitchell responded that Reed must report to the parole office on the following Monday morning, March 22, 1993, at 9:00 A.M., at which time he would be arrested. As Reed testified at trial: I said, "Look, Dinah Devoto and Steve Devoto are ready to come into your office with me. Can we visit you this morning?" He said, "No. I want you to come in Monday morning. You know, I like you, but there's nothing I can do for you. You say your goodbyes to your family and friends. Report here at 9:00 am Monday morning. You're going back to Lucasville."
Reed implored Mitchell to allow him to show evidence of his innocence before deciding to revoke his parole. Reed attempted to read Dinah Devoto's affidavit to Mitchell, but Mitchell refused to hear it. Mitchell told Reed he would have to wait until after he was back in prison before he could present evidence of his innocence to the Ohio Parole Board. As Reed testified, Mitchell "assured me that I was going to have no hearing whatsoever. I was going back to Lucasville without any due process." This last remark is significant because in Morrissey v. Brewer, the United States Supreme Court concluded that before parole can be revoked, due process requires a preliminary hearing to establish whether there is probable cause for revocation. If probable cause is established, a second final hearing is required. See Morrissey v. Brewer, 408 U.S. 471, 485-89 (1972). Ohio adopted these due process requirements in Parker v. Cardwell, 289 N.E.2d 382, 385 (Ohio ct. App. 1972).
23 Under Reed's undisputed testimony, Mitchell specifically remarked that there would be no preliminary hearing and that Reed would have to see the Parole Board after he was back in Lucasville. Reed indicated that, as a jailhouse lawyer, he was familiar with the parole revocation process, and implies that he would not have misunderstood Mitchell's comments. Reed believed the Ohio parole officials had no intention of respecting his due process rights because they wanted to suppress his speech activities by returning him to prison as soon as possible.
End of Part 1