After issuance of the governor’s warrant, the only means of challenging extradition further is to file a writ of habeas corpus. In the habeas proceeding, the defendant has the burden of overcoming the presumption by “conclusive evidence” that the warrant is proper. Ex parte Montoya, 170 Or 499, 503 (1943); Naisbitt v. Raichl, 141 Or App 205, 209 (1996). The rules of evidence do not apply at the hearing and hearsay may be admitted. OEC 101(4)(c). The court is able to consider only four issues:
- Whether the extradition documents on their face are in order;
- Whether the petitioner has been “substantially charged” with a crime in the demanding state;
- Whether the petitioner is the person named in the extradition request; and
- Whether the petitioner is a fugitive.
Michigan v. Doran, 439 US 282, 289 (1978). The court may not inquire into the defendant’s guilt or innocence or even the potential for inequity or the denial of rights in the demanding state. Id at 290; New Mexico ex rel Ortiz v. Reed, 524 US 151, 153 (1998) (per curiam); Fisco v. Clark, 243 Or 466, 472 (1966).
Challenging Sufficiency of Documents
A governor’s warrant can be challenged either because a required document is missing or because the documents are not authenticated. If the governor’s warrant states that the documents are authentic, they are presumed to be absent evidence to the contrary. Ex parte Paulson, 168 Or 457, 472–473 (1942); Mays v. Shields, 251 Or 168, 171–172 (1968); Perry v. Brown, 26 Or App 13 (1976). However, when it appears from the record that the documents were not authenticated by the demanding state, extradition is not proper. State ex rel Yarbrough v. Snider, 252 Or 35, 38 (1968).
The governor’s warrant must contain one of the following:
- An indictment and any warrant issued thereon
- An information supported by affidavit and any warrant issued thereon
- An affidavit made before a magistrate and any warrant issued thereon
- Copy of judgment of conviction or sentence with a statement that the person has escaped from confinement or broken terms of release, probation, or parole. ORS 133.753.
Further, the warrant must be signed by the governor or the person designated to do so, usually the governor’s legal counsel. ORS 133.743, 133.773; see Woodard v. Rasmussen, 73 Or App 689, 693 (1985); State ex rel Swann v. Pearce, 69 Or App 475, 476 (1984).
Failure to provide these documents or authenticate them can be corrected on remand or through a subsequent fugitive action as denials of extradition for technical reasons are not res judicata for a subsequent action. State ex rel Yarbrough v. Snider, 2 Or App 97, 99–100 (1970).
Challenging “Substantially Charged” Requirement
The accusatory instrument supplied with the warrant must “substantially charge the person demanded with having committed a crime under the law of [the demanding] state.” ORS 133.753. The sufficiency of the accusatory instrument is governed by the laws of the demanding state, not the asylum state. Pierce v. Creecy, 210 US 387, 403–405 (1908); Fisco v. Clark, 243 Or 466, 469–470 (1966). The fact that the instrument may be subject to a demurrer in the demanding state is not properly considered. California v. Superior Court of California, 482 US 400, 410–411 (1987).
Challenging Identity and Fugitive Status
The defendant can assert that he is not the person sought by the demanding state, though the details provided in the governor’s warrant generally preclude this defense. Identity can be proved by photographs or fingerprints forwarded from the demanding state. Slight variance in names used in the indictment and warrant is not sufficient to overturn the governor’s warrant. See, e.g., Beam v. McKinster, 652 P2d 618, 619 (Colo. 1982).
“Fugitive” does not take its common meaning, but instead refers to someone who commits a crime in a state and afterward leaves that state. No intent to flee justice is needed. See, e.g., Strassheim v. Daily, 221 US 280, 285 (1911); Thomas v. Keeney, 307 Or 526, 530–531 (1989). If the offense is alleged to have occurred in the demanding state, proof that the defendant was never in the demanding state may be sufficient to show that the defendant is not a fugitive and therefore not subject to extradition. See State ex rel Whelan v. Noelle, 326 Or 69 (1997) (Fadeley, J., dissenting from denial of petition for review). When making such an argument, make clear that the evidence is not being offered to show guilt or innocence, but to prove a mistake of identity. See ORS 133.823.