opinion form the basis of the request for extradition or where the defendant "would be prejudiced . . . at his trial by reason of his race, religion, nationality or political opinions."
The defense presented by Smyth requires much greater than ordinary investigation, analysis and development of facts. The defense, as outlined by Smyth, requires an intensive investigation of the underlying facts supporting his original conviction for attempted murder, as well as the facts in support of his claims regarding the conditions of his confinement in the Maze. Defense counsel has argued that Smyth's personal assistance is critical in securing the necessary witnesses or documents in preparation for asserting this defense.
The government correctly argues that every defendant has a need to consult with counsel, and that the desire to consult with counsel does not ordinarily constitute a "special circumstance". However, the court views the defense asserted by Smyth as being particularly fact intensive. In contrast, cases in which courts have rejected this argument have involved primarily legal questions which did not require the extensive participation of the defendant. See Messina, 566 F. Supp. at 743 .
Smyth was convicted after a judge trial in the Diplock court in December 1978. The defense argues that a review of the trial judge's order demonstrates substantial questions about whether his conviction meets the minimal standards of due process within a democratic context. The evidence against Smyth was largely circumstantial. Moreover, Smyth has raised questions regarding his treatment while incarcerated in the Maze. While it is unclear how Article 3(a) is to be applied -- for example, whether it is the obligation of this court to review the findings of the Diplock court
-- it is, nonetheless, clear that Smyth has recourse to assert the treaty provision as a defense to extradition. It is well settled that illegal aliens have rights of procedural due process. Mathews v. Diaz, 426 U.S. 67, 77, 48 L. Ed. 2d 478 , 96 S. Ct. 1883 (1976); Doherty v. Thornburg, 943 F.2d 204, 209 (2nd Cir. 1991), cert. dismissed, 112 S. Ct. 1254 (1992). Accordingly, Smyth must be given every opportunity to aid his counsel in the difficult task of amassing evidence, from another part of the world, regarding events which occurred between eight and fifteen years ago. It is highly unlikely that Smyth's counsel will be able to locate key witnesses or evidence without his extensive aid.
If Smyth's claims are to be taken seriously, and surely they must, given the legislative history behind the supplemental treaty between the United States and the United Kingdom, the need to consult freely and openly with counsel, and communicate with individuals in Ireland who may be called upon as witnesses, or at the very least aid in gathering information, is as great a "special circumstance" as the need to Protect one's fortune ( In re Mitchell, 171 F.2d 289); or the need to be free from irritating prison soaps and foods ( U.S. v. Taitz, 130 F.R.D. 442).
Smyth argues that the government has failed to show an urgent need for the warrant for provisional arrest as required by Article VIII(1) of the Extradition Treaty. The government contends that the question of urgency constitutes a nonjusticiable political question. The government also argues that the court should give great deference to the urgency determination made by the countries involved. As the court has held that "special circumstances" do exist which warrant granting bail, the urgency question raised by Smyth need not be decided.
On this record, the court concludes that Smyth has presented significant evidence in support of his claim that he does not present a flight risk. Moreover, the court is persuaded that special circumstances exist which mandate that Smyth be released to enable him to aid in preparing his defense to the extradition matter. The court is mindful of the government's need to ensure compliance with its treaty and present Smyth for extradition should it prevail during the extradition proceedings. However, the court is convinced that Smyth poses no risk of flight. Moreover, to hinder Smyth from fully aiding in his defense to the extradition proceedings would render Article 3(a) meaningless.
Finally, it should be remembered that Smyth has been provisionally arrested. Britain has not yet instituted formal extradition proceedings. In light of the court's finding that Smyth poses no risk of flight, and that "special circumstances" exist which will require his extensive personal aid in preparing his own defense to the extradition proceedings, there does not appear to be any diplomatic necessity to warrant his continued detention at this stage of the proceedings. Taitz, 130 F.R.D. at 446. Accordingly, GOOD CAUSE APPEARING, it is hereby ORDERED that Smyth be released on bail pursuant to the provisions established during the bail proceeding on the passport charge.
IT IS SO ORDERED.
Dated: July 24, 1992
Barbara A. Caulfield
United States District Judge