By Lloyd Williams, Senior Associate Editor
OVER THE last 12 years, Jamaica has been one of the United States Government's most active extradition partners since the two nations signed the treaty in 1991.
Indeed, the level of co-operation has been such over the years, that at one stage in 1997, there was no extradition detainee in custody or on bail awaiting first-instance hearing before a Resident Magistrate's Court, the court of committal which can order extradition.
Ten fugitives were extradited from Jamaica to the United States in 2003.
According to the March 2004 International Narcotics Control Strategy Report, published by the U.S. Department of State, "Jamaican authorities are receptive to and co-operative with U.S. requests for extradition, and are working with U.S. authorities to accelerate the extradition process."
It observed, however, that an "overburdened court system combined with the appeals process available to ... defendants means that contested extradition requests can take two to five years to litigate fully".
It said the U.S. Government supported the highly effective Jamaica Fugitive Apprehension Team (JFAT), with guidance from U.S. Marshals, specialised training, equipment and operational support. JFAT, it said, was actively working on more than 200 extradition cases, the majority involving drug or homicide charges.
Extradition to the United States which had been going on for several years, was energized in 1999 when the Jamaican Government, with the assistance of the United States Govern-ment, formed a special Jamaican Fugitive Apprehen-sion Team (JFAT), to target and apprehend fugitives from the law in the USA. In 2000 JFAT, aided by officers of the U.S. Marshals Service, made more than 20 arrests.
In 1994, Jamaica extradited one person to the United States; in 1995 it was six; in 1996, one, but eight US-citizen fugitives were expelled or deported. In 1997 it extradited three; in 1998, four; in 1999, four; in 2000, ten; in 2001, nil, but nine in 2002.
Jamaica has extradition treaties with the United Kingdom, Canada, and other countries.
The extradition treaty between the governments of Jamaica and the United States was formally implemented on June 7, 1991, when Jamaica and the United States exchanged instruments of ratification at a ceremony at the U.S. State Department in Washington, D.C.
However, the treaty has not always operated smoothly. It was reviewed in 1992 after incidents involving two Americans who came here in July 1992 to take back to the States with them, two resident aliens who were wanted in the USA. In one case, Frank Santana, who worked for an American bonding agency, got the assistance of a Jamaican policeman to take Haniff Ishmael, a Guyanese national who was wanted in the USA on cocaine charges, to Sangster International Airport, Montego Bay, with a view to taking him back to the United States. However, a Jamaican immigration officer prevented Santana from taking Ishmael back with him.
In the second case, Randy Fenster, an American private investigator, came under suspicion when he enquired about taking back with him to the United States, Fitzroy Riley, a Jamaican resident of the United States who was wanted in Larimer, Colorado, on fraud charges.
And in August 1992 Norris Barnes, a Montego Bay businessman, filed suit in the Supreme Court against Frank Saren and Jose Torres, two agents of the U.S. Drug Enforcement Admini-stration, and Mel Spence, a former Jamaican policeman, claiming that they had lured him to a yacht in Montego Bay, kidnapped him and taken him to the United States where he served two years on drug trafficking charges.
But the most celebrated case involved Richard Orville 'Storyteller' Morrison, then 40, a crony of Lester Lloyd Coke, better known as 'Jim Brown', who was then the ranking don in Tivoli Gardens, west Kingston and who had been on remand at the General Penitentiary awaiting appeal of an order to extradite him to South Florida, where they were both accused of being leaders of the Shower Posse.
Both were seeking leave to appeal their extradition orders to the Judicial Committee of the Privy Council of the United Kingdom.
Morrison had been ordered extradited to Tampa, Florida, for trial.
Jim Brown perished in a mystery fire which gutted his prison cell on February 23, 1991.
On June 12, 1991, an administrative error in the Registry of the Jamaican Court of Appeal - the misplacing of a document confirming Morrison's intention to appeal - led to Morrison being surrendered prematurely to U.S. law enforcement agents who extradited him to the USA.
The Jamaican Government made diplomatic and legal efforts to have the Americans return him, since he had not been legally extradited, but these failed.
In April 1992 he was tried in the Middle District Court, Fort Myers, Florida, and sentenced to 24 1/2 years' imprisonment without parole, on cocaine charges.
At the time, the Morrison case generated a lot of discussion in Jamaica and in the United States and escalated into an international dispute of sorts between the two countries, with the Jamaican government complaining that there had been a breach of its Extradition Treaty with the United States. Indeed extraditions from Jamaica to the United States were suspended for a time.
The stance of the United States authorities then, was that once an accused person was in whether he had an appeal pending elsewhere, or how he had got to the United States in the first place.
In June 1995 K.D. Knight, then Minister of National Security and Justice, explained to Parliament, Jamaica's position on the Morrison case and on the extradition treaty in general.
He said that on the instructions of Cabinet, the Ministry of Foreign Affairs had sent two Diplomatic Notes to the U.S. Government.
The first note brought to the attention of the U.S.A. the fact that Morrison had been tried in the United States for an offence other than the offence for which he had been extradited in circumstances which constituted a breach of Article XIV of the Extradition Treaty.
The note made it clear that Jamaica protested the breach, and required assurance from the U.S.A. in respect of each and every extradition request, that all the necessary steps would be taken by the U.S.A. to ensure that the provisions of the Speciality Rule set out in article XIV of the treaty would be observed by the U.S.A., and there would be no recurrence of this breach.
The second Diplomatic Note proposed negotiations with the U.S.A. to amend the Extradition Treaty in such a manner that would:
First, prohibit the trial of a person brought to the territory of the other party in circumstances similar to those in which Dr. Humberto Alvarez-Machin, a Mexican national, had been abducted in 1990 from Mexico and taken to the U.S.A, and, second, ensure that the procedure in the Extradition Treaty would constitute the only means for securing the removal of a person from the territory of one party to the territory of another party, for trial.
In the Alvarez-Machain case, the U.S. Supreme Court ruled, 6-3, on June 15, 1992 that the U.S. government may kidnap people from a foreign country and prosecute them over that nation's objection.
ABDUCTED IN MEXICO
Dr. Alvarez-Machain was abducted from his office in Guadalajara, Mexico, in 1990 and forced aboard a plane bound for El Paso, Texas, where he was arrested by U.S. officials and taken to California. He was charged with using his medical skills to keep Enrique Camerana alive while the U.S. Drug Enforcement Administration agent was tortured and interrogated in Mexico in 1985.
Many lawyers in private practice are strongly of the view that the Jamaica-U.S.A. Extradition Treaty is weighted against Jamaican extradition accused and should be re-negotiated.
The late eminent Ian Ramsay, Q.C., explained to this reporter in December 1997, 'The Rule of Speciality', which he described as a deficiency of the extradition treaty:
"When the person is sent abroad extradited - the rule under our law, the Extradition Act, says that he should not be tried or punished for any offence but the one for which he was extradited.
"As a matter of fact, the rule that we have merely beats the air because America is a federal state and the federal government cannot curtail state rights. Hence, once the person gets to America, the particular state in which he is, can try him for any crime and cannot be stopped, as a matter of law, by the federal government. They may, of course, as a matter of courtesy, decide no to, but that's not law, that's courtesy."
Government prosecutors in Jamaica who represent requesting states, tend to believe that, if anything, the Jamaica-U.S. Extradition Treaty puts the Jamaican national at an advantage.
In the last 10 years at least four persons who the U.S. Government sought to extradite, have walked free.
Article X of the Jamaica-U.S. Extradition Treaty, provides for provisional arrest. It states: "In case of urgency either Contracting Party may request the provisional arrest in accordance with the law of the Requested State of any accused or convicted persons pending the request for extradition. Application for provisional arrest shall be made through the diplomatic channel or directly between the Minister responsible for extradition in Jamaica and the Department of Justice in the United States.
It states that the application shall contain: a description of the person sought; the location of that person if known; such information as would be necessary to justify the issuance of a warrant of arrest had the offence been committed, or the person sought been convicted, in the territory of the Requested State; and a statement that a request for extradition of the person sought will follow.
On receipt of such an application, the Requested State shall take the appropriate steps to secure the arrest of the person sought. The Requesting State shall be promptly notified of the result of its application.
For how long can a person who is provisionally arrested be kept in custody?
Section X (4) states: "A person who is provisionally arrested shall be discharged from custody upon the expiration of sixty (60) days from the date of arrest, pursuant to the application for provisional arrest if the executive authority of the Requested State has not received the formal request for extradition and the supporting documents required by Article VIII."
A person whose extradition is being sought may waive his right to an extradition hearing, surrender himself to the authorities and agree to return to the Requesting State, as it were voluntarily, but of course in the custody of representatives of the Requesting State.
Article XV states:
"If the person sought agrees in writing to extradition after personally being advised by a Judge or competent Magistrate of his right to further extradition proceedings, the Requested State may grant extradition without formal proceedings."
The treaty, at Article VIII, sets out the procedures and documents required for an extradition hearing:
1. The request for extradition shall be made through the diplomatic channel.
2. The request for extradition shall be supported by: (a) documents, statements, or other evidence which describe the identity and probable location of the person sought;
(b) a statement of the facts of the case, including, if possible, the time and location of the offence;
(c) a statement of the provisions of the law describing the essential elements and the designation of the offence for which extradition is requested;
(d) a statement of the provisions of the law prescribing the punishment for the offence and
(e) a statement of the provision of the law prescribing any time limit on the prosecution or the execution of punishment for the offence.
3. A request for extradition relating to a person who is sought for prosecution shall also be supported by: (a) a copy of the warrant of arrest issued by a judge or other judicial authority in the Requesting State; and (b) such evidence as would justify the committal for trial of that person if the offence had been committed in the Requested State.
When the request for extradition relates to a convicted person, in addition to those items required by paragraph two, it shall be supported by a certificate of conviction, or copy of the judgement of conviction rendered by a court in the Requesting State. If the person has been convicted and sentenced, the request for extradition shall also be supported by a statement showing to what extent the sentence has been carried out. If the person has been convicted but not sentenced, the request for extradition shall also be supported by a statement to that effect.
Statements, depositions and other documents transmitted in support of the request for extradition shall be transmitted through the diplomatic channel and shall be admissible if certified or authenticated in such manner as may be required by the law of the Requested State.