Lead Opinion
OPINION
1 Timothy Reed filed a petition for writ of habeas corpus to challenge his extradition from 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.
I. FACTS
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 “Lueasville” after the name of the Ohio town where the prison is located.
A. Reed’s Growing National Reputation; Animosity of Prison Officials
3 In Lueasville, Reed became a jailhouse lawyer and “writ writer” who helped other inmates prepare petitions for writs of habeas corpus. He also was an advocate for 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 Lueasville Reed wrote several articles on Native American religious rights and other Indian issues. These were published in national periodicals. See, e.eg., Little Rock Reed, The American Indian in the White Man’s Prison: A Story of Genocide, 2(1) J. of Prisoners on Prisons, Fall 1989; Little Rock Reed, Native American -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 Lueasville, 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.
B. First Parole Rescinded; Threat by Chairman of Parole Authority
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 Lueasville 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 Chairman] 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 Lueasville.
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,
C. Second Parole
9 Approximately 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 Lueasville 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.
D. Continued Advocacy; Warden’s Personal Resentment
10 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, Today’s Prison Administrators Were Trained by Fascists: And What About Tomorrow?, Iron House Drum (Native American Prisoners’ Rehabilitation Research Project, Villa Hills, Ky.), 2d ed. 1992, at 7.
11 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 S-4 (correspondence between Reed and Tate).
12 In 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.
E.Suppression of Reed’s Speech Activities by Parole Authority
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 uneontradicted 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-of-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.
F. Threats by Prison Officials
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.
G. Dispute with Devoto
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”).
20 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.
H. Parole Authority Refuses to Arrange a Preliminary Parole Revocation Hearing
21 Reed 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.
22Mitchell 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 Lucas-ville.”
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,
28 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.
I. Futile Attempts to Forestall Arrest and Arrange a Preliminary Revocation Hearing
24 Between Friday, March 19 and Sunday, March 21 Reed and his supporters made many phone calls in an effort to prevent the revocation of his parole without a proper hearing. Reed asked Dinah Devoto to fax her affidavit to Mitchell and to phone him. In a later affidavit, Devoto recounted her conversation with Mitchell: “[Mitchell] told me that high ranking officials in the adult parole authority hold contempt for Reed because of his writings ... and that for this reason Reed would serve the remaining 7-to-25-year sentence in prison.” Dinah Devoto Aff. ¶2 (Sept. 28, 1994). Steve Devoto called the regional supervisor of the Parole Authority and, expressing remorse, admitted his misdemeanor complaint was false.
25 On Sunday, March 21, 1993, Reed went to visit Professor Harold E. Pepinsky, a scholarly associate and advisor with whom he had corresponded since his days in Lucas-ville. Pepinsky holds a law degree from Harvard and is a professor of Criminal Justice at Indiana University. Pepinsky called Mitchell, reaching him at home. He asked what would happen if Reed did show up to be arrested on Monday morning.
Mr. Mitchell told me that while he kept Rock waiting outside, he would “call Columbus for instructions.” He denied any knowledge of what those instructions would be. Legally, I cannot see what difference that makes. When he told me he would get instructions from Columbus, he effectively promised me that the entire statutory [Morrissey v. Brewer] appeal process for Rock on revocation would be bypassed by one phone call, before Rock even had a chance to say anything for himself to the officer.
Pepinsky Aff. ¶7 (Sept. 27, 1994). In his efforts to forestall Reed’s return to Lucas-ville, Pepinsky had attempted to contact the governor of Ohio, Ohio legislators, the President of the United States, the U.S. Department of Justice, the F.B.I., and the U.S. Attorney General. All told him that they had no jurisdiction to review the case. He was told that his only recourse was to petition the Parole Authority even though the Authority was the very agency denying Reed’s right to due process.
J. Reed Fears for His Life; Riot at Lucasville
26 Reed states that he knew by this time that his life was in danger. As he testified, “Lucasville is my coffin.” Reed was already aware from his contacts with inmates inside Lucasville that prison officials had made statements that he would receive bodily harm if he were returned to Lucasville.
27 Reed also testified, “I knew then that I was in serious danger, ah particularly because I also had knowledge of the riot that was about to take place in Lucasville.” Through his inmate contacts, Reed had been presented with evidence that warden Tate’s policies in Lucasville were fomenting great tension and violence. Reed’s contacts told him that Tate had imposed forced integration, placing members of the Black Panthers in the same cell with members of the Aryan Brotherhood. In the past Reed had written to Tate about the increasingly dangerous situation at Lucasville, predicting that the warden’s policies would result in a riot. Reed felt certain that if he reported to be arrested by Mitchell he would be returned to Lucasville only to find himself in the middle of a riot.
28 It appears that Reed had been well informed because a bloody riot occurred at Lucasville on Easter Sunday, April 11, 1993, about three weeks after he was supposed to report to Mitchell. Hostages were taken in a siege that lasted for eleven days. When it was over eight people were dead, including Dennis Weaver, who, like Reed, was a Native American writ writer and supporter of prisoners’ rights.
K. Reed Flees under Duress; Continued Advocacy
29 Reed did not show up to be arrested at Mitchell’s office at 9:00 a.m. on Monday, March 22, 1993. Claiming he was forced to choose between violating parole and being beaten or killed at Lucasville, he fled Ohio. The following day he was declared “a Parole Violator-at-Large. ”
30 He eventually ended up in Taos, New Mexico, where he found work as a paralegal, writer, and secretary for the Center for Advocacy of Human Rights. Even while avoiding the Ohio authorities, Reed continued to publish and speak out on prison and Native American issues. See, e.g., The American Indian in the White Man’s Prisons: A Story of Genocide (Little Rock Reed ed., 1993) (an anthology of essays by Reed and others); Little Rock Reed, Some evidence relating to the Lucasville riot, Prison News Serv., Sep/Oct. 1994, at 3.
L. Resolution of Devoto Complaint
31 Steve Devoto did not drop his “terroristic threatening” complaint. On June 29, 1993, about four months after Devoto filed the complaint and Reed left Ohio, Reed was tried in absentia and received a 30-day suspended sentence. Commonwealth v. Reed, No. 93-M-01300 (Ky.Dist.Ct. June 29, 1993).
M. Affidavits Describing Threats Against Reed by Prison Officials
32 Reed continued to correspond with inmates inside Lucasville including John Perot-ti, another jailhouse lawyer. Perotti, at his own initiative, sent a letter to the Center for Advocacy of Human Rights describing threats by prison officials to cause Reed death or great bodily harm. After Reed was arrested to be extradited, he asked Perotti to memorialize these allegations in a sworn statement. Perotti responded with an affidavit that included the following:
2. On [August 6,1994], I was assaulted by prison guards in retaliation for attempting to distribute an article written by Little Rock (aka Timothy) Reed in which he presented evidence that the prison officials at Lucasville orchestrated the riot in which a number of people were killed in the spring of 1993----
3. When the prison guards assaulted me as set forth above, they told me that my beating was nothing compared to what Little Rock (aka Timothy) Reed could expect if and when he is returned to the Southern Ohio Correctional Facility.
Perotti Aff. ¶¶ 2-3 (Oct. 3,1994).
33 Reed obtained similar affidavits from other prisoners. A prisoner named Daniel Cahill, who was being investigated for gang activity, described a conversation with the investigating officer.
On January 12, 1994, the Investigating officer, Mr. Flick, after reading newspaper articles in my possession, noticed an article pertaining to Timothy Reed (A.K.A. Little Rock). Mr. Flick stated: ... “Reed would not be lucky enough to get out of prison alive if he was returned to the Ohio prison system.”
Cahill Aff. (Oct. 28,1994). Another prisoner, Ahmad ‘Abdul-Muqsit, provided a similar affidavit.
That on at least two (2) separate occasions during the course of the earlier part of this year (i.e. approximately April and May, 1994) I had over heard several know [sic] and unknown administrative officals [sic] of this facility [Lucasville] allude to the fact of Little Rock [sic] life being in jeopardy if he was ever returned to the State of Ohio and custody of the Ohio Department of Rehabilitation and Corrections.
Abdul-Muqsit Aff. ¶ 4 (Oct. 20, 1994). Reed testified that these affidavits “merely confirmed what I already know---- That the prison officials intend to do serious bodily injury or to kill me when I’m returned to Ohio.”
N.Reed is Arrested in New Mexico
34 In late September 1994, the State of Ohio initiated procedures to extradite Reed. On September 27, 1994, Jill Goldhart, acting chief of the Ohio Parole Authority, executed an Ohio State warrant for the arrest of Reed for violating parole. On the same day she also executed a “Request for Extradition Requisition” asking the Governor of Ohio to petition for the extradition of Reed from New Mexico.
35 The Governor of Ohio, on October 12, 1994, signed a “Request for Interstate Rendition” asking the Governor of New Mexico to issue a warrant on behalf of the State of Ohio for Reed’s arrest and return to Ohio. On October 26,1994, the Governor of New Mexico issued the warrant, and the following day Reed was arrested as a fugitive from justice. A copy of the Governor’s warrant was filed in the Taos County District Court on October 28. Three days later Reed appeared in the Taos District Court and informed the court that he wished to challenge the constitutionality of his arrest and would file a petition for writ of habeas corpus.
O. Reed Seeks Federal Relief
36 While pursuing his habeas corpus petition in the state court, Reed also filed, on November 4, 1994, a pro se civil rights lawsuit in federal district court. Invoking 42 U.S.C. § 1983 (1994), he sought reeision of the extradition warrant pending an investigation of his claims that Ohio prison officials intend to cause him death or great bodily harm. The federal court denied Reed’s claim, stating that, if Reed’s allegations were true, his sole federal remedy was a habeas corpus petition, and this could be pursued only after he had exhausted all his state remedies. See Reed v. King, No. CIV-94-1267 MV/LFG, slip op. (D.N.M. Nov. 10, 1994).
P. Crucial Extradition Documents are Missing
37 Extradition laws require specific documentation before an out-of-state extradition request will be honored. See NMSA 1978, § 31—4-3 (1937); 18 U.S.C. § 3182 (1994). Though the record is somewhat muddled on this point, it appears that certain crucial documents were not attached to the Governor’s warrant when it was issued on October 26, when it was served on Reed on October 27, and when it was filed in the Taos District Court on October 28. The latest date by which the documents in question could have appeared was November 16, 1994, about two weeks after Reed had been arrested on the Governor’s warrant.
38 The missing documents proved that Reed was convicted in 1982 and 1983, was paroled in 1992, and was declared a parole violator-at-large in 1993. Implicit in this controversy is the possibility that these crucial documents may not have been in the possession of the Governor of New Mexico when he issued his warrant for Reed’s arrest. He thus could not have relied upon them as the legal justification for his warrant.
Q.State Habeas Corpus Hearing
39 On November 11, 1994, Reed filed his petition for a 'writ of habeas corpus raising numerous challenges to the Governor’s warrant. Three hearings were held, on December 9 and 23, 1994, and January 4, 1995.
40 During the hearings, the State emphasized that under the United States Supreme Court opinion Michigan v. Doran the court was limited to considering only four questions: (1) whether the extradition documents are in order; (2) whether the demanding state has charged the defendant with a crime; (3) whether the defendant is the person named in the extradition request; and (4) whether the defendant is a fugitive. See Michigan v. Doran,
41 Relying on its legal argument that most of Reed’s evidence was irrelevant, the State did not dispute any facts that Reed’s evidence purported to support, nor did it introduce any contrary evidence of its own. The State produced no statement by anyone associated with the Ohio prison system to undermine Reed’s claim that Ohio prison officials intended to kill him or cause him great bodily harm. The State presented no witnesses of its own and cross examined only one of Reed’s witnesses, Manuel Ortiz, Director of Taos Adult Detention Center, asking him only to identify Reed and to review each of the extradition documents. There were no challenges to the credibility of any witness or any exhibit. In its proposed findings of fact and conclusions of law, the State offered no findings of fact whatsoever to counter Reed’s version of the facts. On appeal, the State specifically declined to refute the arguments of the amicus brief filed by the New Mexico Chapter of the National Lawyer’s Guild. In short, no evidence of any kind and no argument whatsoever was offered to contradict Reed’s claim that his life would be endangered if he were extradited to Ohio.
42 Applying the four-part Michigan v. Doran analysis, the district court found: (a) The extradition documents, on their face, were not in order, because, without the missing crucial documents, there was insufficient legal support for issuing the Governor’s warrant. Reed v. Ortiz, No. 94-1 CR Misc.,
43 On January 20,1995, the district court granted habeas corpus to Reed and ordered his immediate release. The State timely filed a notice of appeal to this Court. See Rule 5-802(G)(l) NMRA 1997 (State’s right to appeal grants of habeas); Rule 12-102(A)(4) NMRA 1997 (Supreme Court takes appeals from grants of habeas).
44 We now conclude, under the four Do-ran factors, that the extradition documents are in order, that Reed was charged with a crime in Ohio, and that Reed is the person named in the extradition request. However, we affirm the district court’s grant of habeas corpus because Reed is not a fugitive from justice.
II. STANDARDS OF REVIEW
A. Abuse of Discretion
45On appeal, we must determine whether the district court abused its discretion, first, by admitting the challenged evidence, and then by granting Reed’s writ of habeas corpus based upon that evidence. The main issues in this case turn on the interplay between law and fact. We must ascertain whether the challenged evidence was properly considered as a matter of law. If we answer that question in the affirmative, then we must assess whether the district court properly applied extradition law to those facts, and whether there is sufficient evidence to logically support the court’s legal and factual conclusions.
46 In this case, the district court will have abused its discretion if it admitted improper evidence, if it misinterprets the legal effect of that evidence, or if its conclusions are clearly illogical in light of the evidence. See State v. Lucero,
B. De Novo
47 Questions of law or questions of mixed fact and law are generally reviewed de novo by appellate courts. State v. Attaway, 1994 NMSC Oil,
C. Burden of Proof
48 The grant of extradition by the governor of the asylum state “is prima facie evidence that the constitutional and statutory requirements have been met.” Doran,
D. Credibility of Evidence
49 The rules of evidence do not apply in “[proceedings for extradition or rendition.” Rule 11-1101(D)(2) NMRA1997. Extradition hearings are not criminal trials in which the guilt or innocence of the defendant is adjudicated. Simmons v. Braun,
50 In this case, the State has not in any way impeached or contradicted Reed’s version of the facts. In fact, in its Brief in Chief, the State appears to accept the veracity, if not the relevance, of Reed’s evidence: “The court’s findings on the fugitivity question are supported by considerable, although improper and irrelevant evidence.” Resp’t’s Br. in Chief at 7.
51 “As a general proposition, unimpeached and uncontradicted sworn testimony must be accepted as true.” State v. Chavez,
52 The State appears to be arguing that the extradition documents, buttressed by the presumption of their validity, are sufficient to controvert Reed’s evidence. See Walton,
53 The only challenge the State has brought against Reed’s evidence is to its admissibility and relevance, not to its veracity or sufficiency. By relying exclusively on its legal argument that the evidence is inadmissible, the State has abdicated any objection to the credibility of the evidence. The court below found Reed’s testimony, witnesses, and exhibits entirely credible. We have exhaustively examined the sufficiency, as opposed to the relevance, of the evidence in a light most favorable to the extradition of Reed. See Meek v. State,
54 We also disagree with the state that the evidence should be excluded on the grounds that it is irrelevant. Our rules of evidence define “Relevant evidence” as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Rule 11-401 NMRA 1997. Reed made a prima facie showing that he fled Ohio in fear of death or great bodily harm. As we explain below, this showing is a direct response to the question of whether Reed is a fugitive from justice. Any evidence that illuminated this issue was appropriately admitted by the district court. See People ex rel. Bowman v. Woods,
III. LAWS IN QUESTION
55 Extradition law is founded on the Extradition Clause of the U.S. Constitution:
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.
U.S. Const. art. IV, § 2. The language of the Clause is imperative and limits the discretion that the sovereign states might wish to exercise. Puerto Rico v. Branstad,
56 The Extradition Clause, however, does not set forth a specific procedure by which interstate extradition is to be accomplished. The Extradition Act specifies the extradition process. See § 3182. It has been little changed since it was first approved in 1793. California v. Superior Court,
57 The Act describes the documentation required when one state demands a fugitive be returned from another state in which he or she has found asylum. Upon being presented with the proper documents, the executive of the asylum state is required to have the fugitive arrested. The demanding state has thirty days in which to provide an agent to whom the fugitive is to be delivered. Section 3182. Section 3182 is often interpreted as prescribing a “summary” executive procedure. See Doran,
58 Further requirements in the extradition process are found in the Uniform Criminal Extradition Act. 11 U.L.A. 97 (1995). Forty-eight states, including New Mexico and Ohio, have adopted the Uniform Act. See NMSA 1978, §§ 31-4-1 to -30 (1937, as amended through 1981); Ohio Rev.Code Ann. §§ 2963.01 to -.29 (Banks-Baldwin 1994 & Supp.1996); 11 U.L.A. 97 (table, Mississippi and South Carolina not listed). This Uniform Act was designed to supplement and conform to the overriding federal constitutional and statutory mandates. See Coungeris v. Sheahan,
59 The imperative nature of the extradition process is reiterated by the New Mexico Uniform Criminal Extradition Act:
[I]t is the duty of the governor of this state to have arrested and delivered up to the executive authority of any other state of the United States any person charged in that state with treason, felony or other crime, who has fled from justice and is found in this state.
Section 31-4-2. Our Uniform Act sets forth in greater detail than the Federal Act the processes and documents necessary in an extradition proceeding. Compare § 31 — 1-3 (form of demand), with § 3182 (procedural and documentation requirements).
60 The restrictive nature of the federal laws is somewhat moderated by the Uniform Act which gives the executive some latitude in evaluating the extradition demand. Discretionary language is included in the provision that permits the governor to seek investigative assistance from a prosecuting officer who will report “the situation and circumstances of the person so demanded” and whether that person “ought to be surrendered.” Section 31-4-4. Similarly, the governor “shall sign a warrant of arrest” upon determining whether “the demand should be complied with.” Section 31-4-7. Executive discretion is also suggested by the rule that “[t]he governor of this state may also surrender [any person whose extradition is demanded] even though such person left the demanding state involuntarily.” Section 31-4-5 (emphasis added).
61 Furthermore, unlike the federal laws, our Uniform Act provides for the due process and habeas corpus rights of the defendant.
No person arrested upon such warrant shall be delivered over to the agent whom the executive authority demanding him shall have appointed to receive him unless he shall first be taken forthwith before a judge of a court of record in this state, who shall inform him of the demand made for his surrender and of the crime with which he is charged, and that he has the right to demand and procure legal counsel; and if the prisoner or his counsel shall state that he or they desire to test the legality of his arrest, the judge of such court of record shall fix a reasonable time to be allowed him within which to apply for a writ of habeas corpus. When such writ is applied for, notice thereof, and of the time and place of hearing thereon, shall be given to the prosecuting officer of the county in which the arrest is made and in which the accused is in custody, and to the said agent of the demanding state.
Section 31-4-10.
62 The implicit executive discretion and the habeas corpus hearing are not without limits. For example, “[t]he guilt or innocence of the accused as to the crime of which he is charged may not be inquired into by the governor or in any proceeding after the demand for extradition [has] been presented to the governor.” Section 31 — 4-20. These limitations have been further specified by decisions of the United States Supreme Court.
63 While Michigan v. Doran expressly describes the executive extradition procedure as “summary,” it does not explicitly make a similar pronouncement regarding the judicial habeas corpus evaluation of an extradition demand. See Doran,
64 This, in part, is because of the essential nature of a habeas proceeding. While extradition is given mandatory status by the U.S. Constitution, habeas corpus is virtually inviolate: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” U.S. Const, art. I, § 9. The New Mexico and Ohio Constitutions accord the same deference to habeas corpus. See NM Const. art. II, § 7; Ohio Const. art. I, § 8 (Banks-Baldwin 1994). Habeas corpus is one of the most ancient and venerated principles of law, described by Blackstone as “the great and efficacious writ.” 3 William Blackstone, Commentaries *131. Thus, the U.S. Supreme Court stated that “[i]t must never be forgotten that the writ of habeas corpus is the precious safeguard of personal liberty and there is no higher duty than to maintain it unimpaired.” Bowen v. Johnston,
65 The right to habeas corpus and the mandatory nature of extradition do not inherently conflict. “The extradition clause is a procedural provision. It does not impinge upon any substantive right of any individual and does not affect any provision of the Constitution or its Amendments protecting such rights.” Johnson v. Matthews,
IV. LIMITS TO JURISDICTION OF COURTS OF ASYLUM STATE
A. Michigan v. Doran: Courts May Review Only Four Questions
66 As we have already mentioned, the scope of judicial review in an extradition habeas hearing was drawn by the United States Supreme Court in Michigan v. Doran:
Once the governor has granted extradition, a court considering release on habeas corpus can do no more than decide (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 person named in the request for extradition; and (d) whether the petitioner is a fugitive. These are historic facts readily verifiable.
67 The asylum state has a duty to deliver a properly extradited fugitive to the demanding state. The effect of the four Doran criteria is to assure that this duty allows for only limited discretion on the part of the asylum state. Branstad,
B. Despite the Restrictions of Michigan v. Doran, Some Review is Contemplated
68 It is simply impossible to make a determination of the four Doran factors without making factual findings. The Doran court itself stated the four factors “are historic facts readily verifiable.”
69Thus, despite proclamations that “the commands of the Extradition Clause are mandatory, and afford no discretion to the executive officers or courts of the asylum State,” the U.S. Supreme Court must have intended some sort of inquiry when it required courts to verify the four historic facts. See Branstad,
70 The role of the court in the asylum state, though limited, is not merely clerical or perfunctory, restricted to woodenly and superficially noting whether the proper statements and pieces of paper have been provided. “Since individual circumstances surrounding extradition demands are varied and diverse, the mechanical application of fixed and absolute rules is inappropriate if justice is to be achieved in a particular case.” Wright,
71 The Governor’s warrant is accorded presumptive validity. Doran,
72 With the foregoing principles in mind, we shall apply the Doran analysis to the facts of this case. Reed does not dispute that he “is the person named in the request for extradition.” Doran,
V. EXTRADITION DOCUMENTS ON THEIR FACE ARE IN ORDER
73 The executive of the asylum state need not recognize a demand for extradition unless specific documents are provided by the executive of the demanding state. The federal Extradition Act, § 3182, and our Uniform Criminal Extradition Act, § 31-4-3, itemize the required documents. In evaluating whether the documents comply with these statutes, Doran directs the court of the asylum state to verify that the extradition documents are in order “on their face.”
74 When entered into evidence at Reed’s habeas hearing, the extradition documents were divided into two groups. The first consisted of the seven pages that were originally served on Reed and filed in Taos District Court in the last days of October 1994. The second group — totaling nine pages — were the missing crucial documents whose whereabouts were uncertain until November 16,1994.
75We have meticulously examined Reed’s extradition documents in light of the pertinent statutes and conclude that, between the two groups of papers, no statutorily required items were missing. See generally § 3182 (listing required documentation); § 31-4-3 (same). Once a Governor’s warrant is issued, there is a strong presumption that all the constitutional and statutory requirements have been met. Bazaldua,
76 We also find no harm in the fact that the parties may have been served with incomplete documentation. The missing documents were eventually provided, albeit about two weeks after Reed was arrested. Though this may have caused some inconvenience, it does not seem to have impaired Reed’s petition for habeas corpus. See People v. DeSpain,
77 We hold, therefore, that the district court abused its discretion when it concluded that the extradition documents were not in order on their face.
VI. CHARGED WITH A CRIME IN DEMANDING STATE
78 Several of the extradition documents are copies of official state records showing that Reed was charged with a crime in Ohio and specifying the statutes under which he was charged. They establish that in 1982 Reed was charged with, pleaded guilty to, and was convicted for Aggravated Robbery in violation of Ohio Rev.Code Ann. § 2911.01 (Page 1982), and Theft of Drugs in violation of Ohio Rev.Code Ann. § 2925.21 (Page 1982) (repealed 1990). Similar statements are made regarding his conviction for Aggravated Robbery in 1983. Copies of official state documents also show that, under Ohio Rev.Code Ann. § 2967.15(C) (Banks-Baldwin 1994), Reed was declared to be a parole violator-at-large. There is no express mention of the Kentucky complaint by Steve Devoto, because it did not concern an offense against the laws of Ohio.
79 Thus, the Governor of New Mexico based his warrant upon the naming of an Ohio law and official documents showing Reed was charged with violating that law. For the purposes of an extradition inquiry, this settles the question of whether Reed has been charged with a crime in the demanding state. California v. Superior Court,
80 Reed challenges the extradition documents claiming that he can demonstrate the complaint by Steve Devoto was fraudulent and a miscarriage of justice. Given his earlier convictions, this argument is irrelevant. The “charged with a crime” question does not turn on whether the defendant has committed a new crime while on parole. The inquiry is whether the extradition documents show that the defendant has been charged with any crime whatsoever under the laws of the demanding state.
Taking the broad definition of “charged with crime” as including the responsibility for crime, the charge would not cease or be merged in the conviction, but would stand until the judgment is satisfied. It would include every person accused, until he should be acquitted, or until the judgment inflicted should be satisfied.
Hughes v. Pflanz,
VII. FUGITIVITY AND DURESS
A. Fugitivity Defined
81 “Fugitive from justice” has been defined as a person who is charged with a crime against the laws of a state, and who, upon being sought to answer for the crime, leaves that state. See Nabors,
82 This definition seems to require nothing more than the presence within the asylum state of a person who has been charged with a crime in the demanding state. However, if the courts of the asylum state are limited to so narrow a definition of “fugitive from justice,” then any argument on the fugitivity element would be meaningless. Such a definition would require nothing more than a simple two-pronged evaluation: a determination that (1) the defendant is charged with a crime in the demanding state, and (2) is present within the asylum state. See 1 Charles E. Torcía, Wharton’s Criminal Procedure § 97, at 385 (13th ed. 1989) (“[A] fugitive is defined as a person who commits a crime within a state and thereafter leaves the jurisdiction.”).
83 The first prong is already addressed by part (b) of the Doran analysis which inquires whether the defendant “has been charged with a crime in the demanding state.” Doran,
84 The U.S. Supreme Court stated long ago:
One arrested and held as a fugitive from justice is entitled, of right, upon habeas corpus, to question the lawfulness of his arrest and imprisonment, showing by competent evidence, as a ground for his release, that he was not, within the meaning of the Constitution and laws of the United States, a fugitive from the justice of the demanding state, and thereby overcoming the presumption to the contrary arising from the face of an extradition warrant.
Illinois ex rel. McNichols v. Pease,
85One of the few defenses to the fugitivity element that has been successful is proof that the accused was not “present in the demanding state at the time of the commission of the alleged crime.” Section 31^4-3; see Galloway,
86 The focus of our analysis is whether Reed is a “fugitive from justice”; in other words, whether he seeks to avoid the maintenance and administration of what is just. The facts demonstrate conclusively that Ohio’s conduct toward Reed was not just. Reed is thus not a fugitive from justice. Rather, he is a refugee from injustice.
B. The Revocation of Reed’s Parole
87 The most troubling aspect of this entire case is that Ohio seeks Reed’s return for a violation that Ohio, through its agents, provoked by its own actions. The reason Ohio seeks Reed’s extradition is because he is a parole violator-at-large. Reed violated parole by choosing to flee Ohio rather than face death or great bodily harm upon the revocation of his parole without due process. Had Ohio’s agents obeyed their own laws, Reed would not have been forced to flee.
88 Nearly twenty years before Reed was denied a parole revocation hearing, the United States Supreme Court in Morrissey v. Brewer set forth minimal due process requirements for parole revocation. See
89 The preliminary hearing — or on-site hearing as it is sometimes called— should be “conducted at or reasonably near the place of the alleged parole violation or arrest and as promptly as convenient after arrest while information is fresh and sources are available.” Moreover, the hearing should be supervised by a hearing officer who is “not directly involved in the ease.” Morrissey,
90Though we do not base our determination on the illegality of Ohio’s conduct, it is apparent that the attempt by agents of the Ohio Parole Authority to revoke Reed’s parole without a preliminary on-site hearing was unconstitutional. Under the uncontradicted evidence, no other conclusion is possible. See id. at 484,
91 This conclusion is not binding on any subsequent adjudication, any more than a finding of liability in a civil trial for a particular cause of action is binding on a determination of guilt in a criminal trial for the same cause of action. See State v. Hoeffel,
92 From our standpoint, it is immaterial whether the actions of the State of Ohio are ultimately vindicated or condemned. Because of those actions — whatever their legal posture — the district court was faced with the choices of invoking a virtually sui generis remedy to the rigid precepts of extradition law or of returning Reed to possible death or great bodily harm. Reed has demonstrated beyond a reasonable doubt that, if not for the actions of the State of Ohio, New Mexico courts would not be faced with this choice. Cf. Morrison v. Stepanski,
93' Furthermore, because Ohio’s conduct has placed this problem under our jurisdiction, we will seek resolution in our own laws and Constitution. While Doran forms the framework of our analysis, New Mexico is the state to which Ohio forced Reed to flee. In applying the Doran framework, we do not believe we are required by Ohio’s actions to cast aside the jurisprudence that is unique to this state. The New Mexico Constitution guarantees rights that no law can abrogate. In addition to our own Bill of Rights, the New Mexico Constitution offers unique protections that are not duplicated by its federal counterpart. We do not construe any provision of the federal constitution to require a New Mexico court to ignore its own constitutional guarantees of life and liberty and safety.
94 With these factors in mind, we will explain why Reed, in seeking refuge from injustice, is not a fugitive from justice.
C. Duress
1. Duress defined
95 Among the oldest principles of criminal law is that “it is not reasonable to punish conduct, however criminal it may be, if that conduct was not the product of the actor’s own, unimpeded will.” 2 Gene P. Schultz, Proving Criminal Defenses ¶ 9.01 (1994); see 4 Blackstone, supra, at *27. (“[A] man should be excused for those acts which are done through unavoidable force and compulsion.”). Duress and necessity are two forms of compulsion that may be raised as valid defenses in criminal law. Though we will refer to the defense raised by Reed as “duress,” some of his claims might be categorized as necessity. This is immaterial because the distinction between duress and necessity has been blurred by modern case law and is no longer deemed decisive. See United States v. Bailey,
96Many extradition eases establish rules that tend to limit duress as a defense to the Doran fugitivity requirement. We find that none of these eases apply to the distinctive facts of Reed’s case. For example, many courts have noted that the motives of the demanding state are beyond review. It is irrelevant that the defendant could show that, notwithstanding the express language of the extradition documents, the demanding state’s unspoken motives are vindictive, illegal, or dishonest. See Golden v. Dupnik,
97 The courts of the asylum state may not prognosticate about the fairness or anticipated result of judicial proceedings in the demanding state. Drew v. Thaw,
98 The Uniform Criminal Extradition Act states that the asylum state’s courts may not question the guilt or innocence of the defendant for any crimes charged in the demanding state. Section 31-4-20. We do not consider whether Reed was legitimately found guilty of the complaint made by Steve Devo-. to, whether under Ohio law he could be found guilty of violating parole, or whether his original convictions for aggravated robbery and theft of drugs were valid. Under the Doran analysis, the question of criminal charges is considered separately from the fugitive question. A person may not be a fugitive even though legitimately charged with a crime in the demanding state. We consider only whether, regardless of the various charges, Reed may be considered a fugitive from justice. His guilt or innocence for these crimes is irrelevant to the novel circumstances that caused him to flee Ohio under duress.
99 The courts of the asylum state have no authority to investigate prison conditions in the demanding state. Pacileo v. Walker,
100 Also beyond the scope of review is the defendant’s fear of being confined with other inmates who have threatened him or who may have reason to injure him. Thus, a defendant cannot avoid extradition because he will be incarcerated in the same prison as a co-defendant against whom he testified. Chamberlain v. Celeste,
2. Fundamental constitutional rights
101 Reed has shown beyond a reasonable doubt, with persuasive and uncontroverted evidence, that he left Ohio because he risked death or great bodily harm at the hands of prison officials if he had reported to be arrested by his parole officer. Reed was not threatened with the deprivation of any ordinary civil right — not merely liberty or freedom of speech — but with the deprivation of life itself. There is no right more fundamental than the right to one’s own life.
102 The New Mexico Constitution decrees that the government may deprive no person of life “without due process of law.” NM Const, art. II, § 18 (as amended 1972). Moreover, the New Mexico Constitution guarantees that the enjoyment of “life and liberty” is a “natural, inherent and inalienable” right. NM Const, art. II, § 4. The same provision of our Constitution also accords the same value to the right “of seeking and obtaining safety and happiness.” Id. The Ohio Constitution contains similar provisions. See Ohio Const, art. I, § 1 (“All men ... have certain inalienable rights, among which are those of enjoying and defending life and liberty ... and seeking and obtaining happiness and safety.”); Ohio Const. art. I, § 16 (due course of law).
103 When a person’s life is jeopardized by the actions of the state without due process, no constitutional interest is of greater consequence. See Tennessee v. Garner,
From the popular hatred and abhorrence of illegal confinement, torture and extortion of confessions of violations of the ‘law of the land’ evolved the fundamental idea that no man’s life, liberty or property be forfeited as criminal punishment for violation of that law until there had been a charge fairly made and fairly tried in a public tribunal free of prejudice, passion, excitement and tyrannical power. Thus, as assurance against ancient evils, our country, in order to preserve ‘the blessings of liberty’, wrote into its basic law the requirement, among others, that the forfeiture of the lives, liberties or property of people accused of crime can only follow if procedural safeguards of due process have been obeyed.
Chambers v. Florida,
104 The Doran court relied upon the early ease, In re Strauss, which acknowledged that the extradition process may be tainted by official corruption. However Strauss went on to say that extradition “is but one step in securing the presence of the defendant in the court in which he may be tried, and in no manner determines the question of guilt.” In re Strauss,
105 We hold that the extradition process was not meant to abrogate the New Mexico Constitution which regards “seeking and obtaining safety” as a “natural, inherent and inalienable” right. See NM Const. art. II, § 4. Reed came to New Mexico explicitly for the purpose of “seeking and obtaining safety.” Our courts have not fully defined the scope of this constitutional provision. See State v. Sutton,
3. Factors that make this case unique in extradition law
106 Throughout this opinion we have emphasized that, in the context of extradition law, Reed’s situation is unique. There is no controlling authority that addresses all of the peculiar circumstances of this case. We have closely studied and sought guidance from the many judicial opinions and accepted canons of extradition law. Nevertheless, a mechanical reading of this precedent would overlook important elements of Reed’s case and militate the intolerable result of sending him back to face death or great bodily harm. Whatever a court’s mandate may be under extradition law, it is clearly not to send a defendant back to face such a fate.
107 Several factors bring this case outside the ordinary tenets of extradition law. In defining these factors we have looked to • New Mexico jury instructions and judicial opinions that set forth the elements necessary for a successful duress defense. See UJI 14-5130 NMRA 1997 (stating duress requires that defendant feared immediate great bodily harm if he or she did not commit the crime and if a reasonable person would have acted in the same way); Esquibel,
a. Reed was properly and legally released from imprisonment
108 The record shows that Reed began his one-year parole term on May 5, 1992. No legal actions were taken to revoke his parole up to March 22, 1993, the likely date he fled from Ohio. Nor was he arrested because of Steve Devoto’s complaint or for any other reason. Thus, up to the moment he fled, his release from prison was entirely legal. He was not, for example, an escaped convict, nor was there any warrant for his arrest. In this regard, the only question before us is the legality of the flight itself. See United States v. Corona,
b. Reed reasonably feared death or great bodily harm from state officials
109 Reed has proven beyond a reasonable doubt that prison officials expressed an intention to cause him death or great bodily harm if he were ever returned to Lucasville. Moreover, we accept his. conclusion that his parole was about to be revoked without a due process hearing. His parole officer told him to “say your goodbyes to your family and friends,” and assured Reed he would have no preliminary on-site hearing before revocation. Reed knew the workings of the parole revocation process. He was sufficiently knowledgeable to understand that the parole officer’s words signified he was being denied his due process rights. He reasonably feared that his parole was going to be revoked and that he would be returned to Lucasville where prison officials could carry out their threats to kill him or cause him bodily harm.
110 We do not believe that in this situation it is logical to require that the death or great bodily harm be “impending,” “immediate,” “present,” or “imminent.” In this case, such terminology would be misleading. “What constitutes present, immediate and impending compulsion depends on the circumstances of each case.” Esquibel,
c. Reed used no force or violence during or after flight from the demanding state
111 There is no contention that Reed committed any act of force or violence in prison, on parole, or after his flight from Ohio. The undisputed record proves that Steve Devoto’s “terroristic threatening” complaint involved no actual force or violence.
d. There was no relief or protection in the demanding state
112 The circumstances of a parolee who leaves his or her home state under duress are analogous to those of a convict who escapes prison under duress. In determining whether Reed had an adequate remedy in Ohio, it is useful to look at the comparable requirement that escaped prisoners must prove. The escapee must show, either that there was no time to complain to or seek reprieve from governmental authorities, or that, under the circumstances, it would have been futile for him or her to complain to or seek reprieve from governmental authorities. See UJI 14-5132; United States v. Kinslow,
113 It is apparent from the record that the Parole Authority was intractable in its resolve to return Reed to Lucasville as quickly as possible. Direct appeals to the Parole Authority and other Ohio officials proved futile. It would surely have forestalled Reed’s flight from Ohio if he could have filed a petition in state or federal court seeking equitable relief enjoining the Parole Authority from revoking his parole without an on-site preliminary hearing.
114 However, Reed learned of Steve Devoto’s complaint on a Thursday evening. He called his parole officer the next day, Friday morning. He was instructed to report to be arrested at 9:00 a.m. the following Monday morning. Friday, after his phone call to the parole officer, was Reed’s only opportunity to fully appreciate his options, find legal representation, compose the proper documents, gather any necessary fees, file a petition, and receive a judicial remedy before the courts closed Friday evening. Reed cannot be held hable for his inability to initiate a legal action within the last few business hours before his arrest. Moreover, it is not certain what judicial remedy he could seek before actually being arrested. Cf. Younger v. Harris,
115 The futility of seeking reprieve from Ohio governmental officials was underscored by the inflexibility of Reed’s parole officer, the history of seemingly conspiratorial animosity from officials at the Ohio Department of Corrections and the Parole Authority, and the frantic ineffectual phone calls initiated on Reed’s behalf by Pepinsky. To borrow the words of the U.S. Supreme Court, “if there was a reasonable, legal alternative to violating the law, ‘a chance both to refuse to do the criminal act and also to avoid the threatened harm,’” the defense of duress will fail. United States v. Bailey,
e. Reed’s allegedly unlawful behavior was provoked by the demanding state
116 Most significant in this case is that the State of Ohio provoked the very parole violation upon which it now bases its demand for extradition. Reed’s predicament was caused by state officials acting under color of state law. He had no reasonable recourse other than flight. Normally we trust the state to control those who threaten to deprive a person of life without due process. But when the state itself is the one posing the threat — and when, as in this case, federal remedies have been refused — the only one who can protect the individual from the threat is a sister state.
117 The uncontroverted evidence is that the original extradition petition is the direct result of a concerted effort by the agents of Ohio to deny Reed of his most basic rights without due process. Furthermore, Reed steadfastly asserts he would never have left Ohio if he had been promised a due process hearing. Using these facts to illuminate the legitimacy of the extradition demand, we are immediately faced with the question of whether a state by clearly inappropriate, if not unconstitutional, misconduct can create a fugitive from justice where otherwise none would exist.
118 The law is replete with examples in which a state is prohibited from taking advantage of its affirmative acts that deny due process to a defendant. See, e.g., State v. Breit, 1996 NMSC 067, ¶¶ 18-48,
119 The fact that a state is prohibited from taking advantage of its own unlawful conduct brings this ease outside the traditional holding that “[a]n individual brought into the asylum state involuntarily, unlawfully, or under compulsion is still a fugitive from justice.” Dunn v. Hindman,
120 It has been suggested that Ohio had no constitutional obligation to provide Reed a preliminary hearing prior to taking him into custody. This suggestion seriously misconstrues Reed’s circumstances. This implies that Reed should have allowed himself to be arrested so as to test the reliability of his parole officer’s threat that he would be returned to Lucasville without a hearing. The question in this case is not whether Reed should receive a hearing after being taken into custody. Rather, it is whether Reed was promised a hearing before he was taken into custody. The fact is, he was promised he would not receive a hearing upon being arrested. Moreover, he reasonably believed, upon being returned to Lucasville without a hearing, he would be subject to death or great bodily harm. It is not reasonable to require a defendant to stake his life on the likelihood that the state will follow the dictates of due process after it has threatened not to do so.
121 Similarly, we distinguish this case from those that dismiss, in an extradition proceeding, consideration of the defendant’s motives or reasons for leaving the demanding state. See Appleyard v. Massachusetts,
122Additionally, it makes no difference that Reed might be provided a hearing in Ohio in which he could answer for fleeing the state. Ohio’s delayed offer of due process has no bearing on Reed’s status as a fugitive in the State of New Mexico. Doran requires that we determine .whether Reed is a fugitive and it violates basic justice to presume under the undisputed facts that Reed was ever at any time a fugitive. The State of Ohio cannot now use the offer of a belated hearing to transform Reed into a fugitive from justice. Cf. Hurtado v. California,
123 In raising these issues, we are not, despite the concerns of the State, deciding whether Ohio can now rightfully pursue a hearing process that it originally seems to have waived. Nor will we consider the “unclean hands” with which Ohio offers a belated parole revocation hearing. Olmstead,
f. Reed’s circumstances invoke protections in the New Mexico Constitution
124 The New Mexico Constitution requires that we grant Reed’s writ of habeas corpus. Reed faced the deprivation of his life without due process of law if he had remained in Ohio. The New Mexico Constitution cannot tolerate such an outcome. NM Const, art. II, §§ 4 & 18. Moreover, Reed was precluded from seeking safety in Ohio. The deprivation of his life would have been carried out under color of state law and Reed was denied any legal recourse against this deprivation. He fled to New Mexico for the express purpose of finding safety. For this reason, Reed properly comes under the protection of Article II, Section 4 of the New Mexico Constitution which guarantees the right “of seeking and obtaining safety.” Reed did not flee from justice. He sought refuge from injustice.
g. A reasonable person under similar circumstances would have acted as did Reed
125 The State presented no evidence to undermine Reed’s contention that he was faced with a choice of evils: either being killed at Lucasville or flight from Ohio. See United States v. Bailey,
VIII. CONCLUSION
126 Extradition laws are intended to bring offenders to justice. They are not intended to be — and we cannot suffer them to be — a vehicle for the suppression of constitutional rights. Courts in this nation have always been empowered to prevent injustice. See Hampton,
127 IT IS SO ORDERED.
Concurrence Opinion
(specially concurring).
128. While I concur in the result reached by the majority, I respectfully disagree with the fugitivity analysis relied upon by the majority. The circumstances of this case require us to consider the respective roles of the courts of this State and those of Ohio, but I believe the analysis on which the majority opinion relies expands the role of an asylum state beyond acceptable limits. Both the Supremacy Clause of the United States Constitution, U.S. Const, art. VI, cl. 2, and the Supreme Law of the Land Clause of the New Mexico Constitution, NM Const, art. II, § 1, compel us to recognize limits on the power and authority of an asylum state. The analysis on which the majority opinion relies would take this Court, and other courts, beyond those limits. Nevertheless, I agree with the majority that, on these facts, the district court’s decision should be affirmed. Ohio has not demonstrated the requisite probable cause necessary for justifying the restraint of Reed’s conditional liberty as a parolee involved in extradition. As a result, I would affirm the grant of the writ of habeas corpus for Ohio’s failure to substantially charge Reed with a parole violation.
I.
129. As the majority opinion explains, the U.S. Constitution explicitly mandates the extradition of a fugitive upon the “Demand of the- executive Authority of the State from which he fled....” U.S. Const. Art. IV, § 2. The United States Supreme Court has specifically limited the scope of inquiry available to courts in an asylum state in the context of a request for extradition. California v. Superior Court,
130. In Michigan v. Doran, the Supreme. Court limited the scope of habeas review in order to protect the principle, embodied in the Extradition Clause, of preventing “any state from becoming a sanctuary for fugitives from justice of another state and thus ‘balkanize’ the administration of criminal justice among the several states.” Doran,
131. The majority opinion relies heavily on the issue of “fugitivity,” a permissible ground of review under Doran. However, the issue of fugitivity is a narrow one. “[T]o be a fugitive from justice it is necessary ‘that having within a state committed that which by its laws constitutes a crime, when he is sought to be subjected to its criminal process to answer for his offence [sic], he has left its jurisdiction and is found within the territory of another.’” California,
132. As a result, the U.S. Supreme Court has found it sufficient that the accused meet “the technical definition of a ‘fugitive.’ ” California,
138. In Sweeney v. Woodall,
134. In Pacileo v. Walker,
135. Finally, in California v. Superior Court, the Supreme Court reversed a writ of habeas corpus granted by the California Supreme Court based on a finding that a valid California custody decree precluded a valid charge of kidnapping against the legal custodian under the law of Louisiana, the demanding state. California,
136. Throughout each of these cases, the U.S. Supreme Court has maintained that issues of the type involved here, such as alleged constitutional violations by officials of the demanding state, are to be addressed in the demanding state or, after exhaustion of remedies, in federal court. Duress is a substantive defense to a criminal act and touches on both the mens rea and the actus reus of the crime. Cf. United States v. Micklus,
137. A parolee is certainly entitled to a preliminary hearing to determine whether probable cause exists for believing the parolee has violated the conditions of parole. Morrissey v. Brewer,
138. I do not mean to suggest that conclusive proof of a constitutional violation by a demanding state would be sufficient to create authority in the asylum state to deny extradition. Rather, I believe the ambiguous showing by Reed of a constitutional violation and the unavailability of remedies in Ohio illustrates the troublesome nature of investigating Ohio’s conduct without giving Ohio an opportunity to respond. See Sweeney,
139. New Mexico simply lacks authority in our federal system of government to intercede on Reed’s behalf in an extradition proceeding for alleged potential violations of his right to due process of law by another state. The Supremacy Clause prevents us from applying New Mexico constitutional protections of due process and of seeking safety in violation of the U.S. Supreme Court’s interpretation of the Extradition Clause and its implementing legislation. U.S. Const. art. VI, cl. 2 (“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”). Thus, the majority’s reliance on New Mexico’s protection of “seeking and obtaining safety,” NM Const, art. II, § 4, even if this provision contains a substantive protection, is misplaced in an extradition proceeding. The majority states that “Reed came to New Mexico explicitly for the purpose of ‘seeking and obtaining safety,’ ” Majority Opinion, ¶ 105, and the district court noted that Reed “wanted to seek sanctuary” in New Mexico. Reed v. Ortiz, No. 94-1 CR Misc.,
140. As “Great” a writ as habeas corpus is, we may not issue the writ in excess of our authority. See Sweeney,
II.
141. Nonetheless, under the facts presented, I would not allow Reed to be extradited to Ohio. Under Doran, the demanding state must demonstrate to the asylum state that there is probable cause for the arrest of the accused.
The magistrate or justice of the peace before whom the criminal charge is filed must issue an arrest warrant if it is determined that there is reasonable cause to believe that an offense has been committed. The inquiry the judicial officer is required to make is directed at the traditional determination of reasonable grounds or probable cause.
Doran,
142. The usage of “probable cause” clearly suggests the influence of the Fourth Amendment in the Supreme Court’s analysis. Doran,
143. Although parolees do not enjoy the absolute liberty of a criminal defendant not yet convicted, the U.S. Supreme Court has found a conditional liberty not to be re-institutionalized unless the parolee violates the conditions of parole. See Morrissey,
144. While a parolee may be temporarily detained prior to the preliminary hearing, see Moody,
145. Unlike the factual issue of fugitivity, Parks v. Bourbeau,
146. Ohio has not carried its burden of demonstrating that it made a determination that probable cause existed to believe that Reed violated the conditions of his parole. According to the record, “[t]he Superintendent of Parole Supervision ... brought information to the attention of the Adult Parole Authority that [Reed] has violated the terms and conditions of his parole____” Special Minutes of the State of Ohio Adult Parole Authority, March 23, 1993. In addition, Reed “will be charged with absconding supervision, failing to follow instructions of parole officer, leaving the state without prior written permission, failing to report his arrest, and involving himself in further criminal activity.” Jill D. Goldhart Aff. (October 3, 1994) (emphasis added). There is neither an explicit finding of probable cause nor sufficient information provided to show that a probable cause determination has been made.
HI.
147. In response to Ohio’s failure to make a probable cause determination, I would normally favor a remand to the district court to make this determination independently before allowing the extradition of a parolee, see Ex Parte Sanchez,
148. Many courts have interpreted the promptness requirement contained in Morrissey, including the courts of Ohio. Some courts have interpreted Morrissey as setting a maximum number of days within which the hearing must be held. See, e.g., Luther v. Molina,
149. According to the record, Reed was arrested on October 27, 1994, and he was incarcerated in New Mexico without a preliminary hearing until the district court’s ruling on January 20, 1995, a period of almost three months. While a delay during the period of three days before Reed asserted his habeas corpus rights may have been reasonable in anticipation of a voluntary return, Ohio did not have a justifiable reason for keeping Reed incarcerated for two and one half months without a preliminary hearing during the habeas proceeding. Ohio could easily have provided notice to Reed of a hearing in Ohio and counsel at the hearing on his behalf. In addition, Reed asserted in the district court that Ohio had refused to give him a preliminary hearing, thereby notifying Ohio of his request for such a proceeding. It is doubtful that a delay damaged Reed’s defense considering the much more lengthy delay attributable to his voluntary behavior of leaving Ohio. However, Reed still suffered prejudice in such a lengthy, oppressive prehearing incarceration and from the heightened anxiety due to the alleged misconduct of the Ohio officials and his concern about future physical abuse. In Reed’s case, this delay was both unreasonable and prejudicial. Thus, Ohio could not now constitutionally hold a preliminary hearing for a probable cause determination. See Flenoy v. Ohio Adult Parole Authority,
IV.
150. I believe the analysis on which the majority opinion relies exceeds the limits imposed on our powers as an asylum state under the Extradition Clause of the U.S. Constitution. The U.S. Supreme Court has limited habeas corpus review in extradition proceedings to a narrow inquiry which includes neither substantive defenses nor a broad definition of fugitivity. Nonetheless, Reed, as a parolee, has a conditional liberty not to be incarcerated without probable cause, and Ohio must demonstrate a finding of probable cause in order to justify the extended restraint on Reed’s liberty involved in the extradition process. Because Ohio has not demonstrated a finding of probable cause and could not now hold a preliminary hearing, I would affirm the district court’s grant' of the writ of habeas corpus.
Notes
. It might be suggested that there should be a presumptive inference of probable cause based on the subsequent conviction of a parolee or the presence alone of a parolee in the asylum state without permission. See Morrissey,
Under the conditional liberty addressed in Morrissey, this position has merit. However, Ohio requires a preliminary hearing to determine probable cause in Reed's situation. Ohio Admin. Code § 5120:1-1-18 (1979, prior to 1995 amendment). Further, in this hearing, Reed would be entitled to present relevant witnesses and documentary evidence, to be represented by counsel, to confront witnesses, and to present mitigating factors. See Section 5120:1-1-18(A); § 5120:1-1 — 18(H). Because Ohio would not presume probable cause and would grant a hearing on the merits for a determination of probable cause, Reed's increased level of conditional liberty as established by Ohio constitutionally may require a preliminary hearing for a determination of probable cause. Cf. Sandin v. Conner,
This result is not changed by Ohio Rev. Code Ann., Section 2967.15(B) (Banks-Baldwin 1994). Under Section 2967.15(B), a parolee who is convicted of a crime while on parole is not entitled to a preliminary hearing. However, Reed’s Kentucky conviction is not controlled by this statute for two reasons. First, although the Ohio statute is substantially similar to provisions held to be constitutional, see Kellogg v. Shoemaker,
. Because the documents neither explicitly nor implicitly demonstrate a finding of probable cause, the question of whether the documents must facially show a finding of probable cause need not be addressed. See Doran,
Dissenting Opinion
(Dissenting).
While I am mindful of Appellee Reed’s situation, I must respectfully dissent from the majority’s decision upholding the actions of the district court. The analysis employed by the majority expands the powers of an asylum state beyond permissible boundaries in violation of the limitations established by the Supremacy Clause of the United States Constitution, U.S. Const, art. VI, cl. 2, and the Supreme Law of the Land Clause in the New Mexico Constitution, NM Const. Art. II, § 2.
The United States Supreme Court has minimized the scope of inquiry available to asylum states in the context of a request for extradition. California v. Superior Court,
The majority opinion focuses on the notion of “fugitivity from justice,” see Doran,
The majority ignores the policy dangers inherent in its holding. In Doran, the U.S. Supreme Court narrowed the scope of habeas corpus review so that the principles embodied in the Extradition Clause would be protected. In that case, the Court held that it wished to prevent “any state from becoming a sanctuary for fugitives from justice of another state and thus ‘balkaniz[ing]’ the administration of criminal justice among the several states.” Doran,
Furthermore, this Court’s holding will make New Mexico a haven for those seeking asylum and fleeing from what they deem as unjust treatment by other states’ courts. Such a scenario is troubling first because it leaves New Mexico courts in the awkward position of construing another state’s law, requiring New Mexico courts to analyze statutes and procedures with which they are unfamiliar. In addition, the majority’s holding invites adjudication of the merits of a demanding state’s actions in an asylum state’s forum where often there is no one available to answer on behalf of the demanding state. See Sweeney v. Woodall,
While noting the aforementioned arguments in her special concurrence, Justice Minzner points out that Ohio failed to grant Reed a hearing on probable cause, suggesting that Reed’s due process concerns might have been cured had a hearing been granted in Ohio. However, the fact that Ohio could have set such a hearing does not provide a basis for upholding the actions of the trial court. First and foremost, as noted by a substantial body of U.S. Supreme Court precedent, New Mexico does not have the authority to adjudicate whether or not Ohio provided Reed with fair proceedings in this ease. That is a question for the courts of Ohio or for the federal appellate avenues available to Reed upon exhaustion of his remedies in Ohio. Furthermore, I question the practicality of asserting that Ohio might have handled the situation by setting a probable cause hearing. It is clear that even if such a hearing had been set, Reed would have been unwilling to submit himself to the laws of Ohio voluntarily for the purposes of representing himself.
For these reasons, I respectfully DISSENT.