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, 321 N.E.2d 205, 206 (Ind. 1975). we find nothing that rnaterially challenges tlle sufficiency of the evidence supporting Reed's version of the facts. Many courts have considered claims similar to Reed's, but few have been faced, as we have, with such a singular fact pattern and such compelling evidence.(emphasis mine) See e.g., Commonwealth ex rel. Mills v. Baldi, 70 A.2d 439. 442 (Pa. Super. Ct. 1950) ("There is absolutely no evidence in the case at bar. except relator's own self-serving declarations, that he would be subjected to mob violence or that he would not receive a fair and impartial trial in Tuscallosa County.").
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, 264 N.E.2d 151, 152-53 (111. 1970) (stating that unusual facts established by the accused require closer scrutiny by the court). The court did not abuse its discretion by admitting evidence that tended to make "more probable" Reed's contention that he is a refugee from injustice. i, . See Rule 11-401.
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, 483 U.S. 219, 227 (1987). The purposes of the Clause are to preclude "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" and to enable "each state to bring offenders to trial as swiftly as possible in the state where the alleged offense was committed." Doran. 439 U.S.
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, 687 F. Supp. 84, 86 n.2 (S.D.N.Y.) ("While flight is generally considered one of the means of reasonably avoiding coerced criminal activity, in the present case the flight itself was alleged the crime."), aff'd mem., 868 F.'d 1268 (2d Cir. 1988).
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 (emphasis mine). 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, 91 NM at 502, 576 P.2d at 1133. A more precise resolution of this immediacy condition is provided by another of the factors discussed below which requires proof that the accused had no relief in the demanding state. See id. at 499-S00, 576 P.2d at 1130-31 (stating "opportunity to avoid" is alternative expression to "present, imminent, and impending"). The showing of harm in this case is similar to the showing of a "well-founded fear of persecution" found in cases of asylum from foreign nations(emphasis mine). See Immigration & Naturalization Serves v. Cardoza-Fonseca. 480 U.S. 421, 423 (1987) (quoting 8 U.S.C. § 1101(a)(42) (1982)). Additionally, it would be impossible tor a defendant to predict the future and prove absolutely that he or she would be killed or beaten upon return to prison. United States v. Dagnachew, 808 1:. Supp. 1517, 1522 (D. Colo. 1992) (no need to absolutely prove harm). The constitutional rights at stake are so important that we believe it is sufficient to show, as Reed has, that the fear was reasonable .
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.
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, 860 F.2d 963, 966 (9th Cir. 1988) (discussing "opportunities to avoid the perceived danger"), overruled on other grounds bv United States v. Brackeen, 969 F.2d 827, 829 (9th Cir. 1992).
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(emphasis mine). 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 liable 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, 401 U.S. 37, 43 (1971) (discussing limited circumstances in which court in equity can interfere with a criminal prosecution). Under the undisputed facts, Reed "did not have time to complain to or seek reprieve from governmental authorities." See United States v. Agard, 605 F.2d 665, 667 (2d Cir. 1979) (discussing the lack of reasonable opportunity to escape other than by engaging in the otherwise unlawful activity").
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, 444 U.S. at 410 (quoting Wayne R. LaFave & Austin W. Scott, Handbook on Criminal Law 379 (1972)). Reed did not have such an alternative.
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(emphasis mine). 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 NMMiC 067, 55 18-48, 122 NM 655, 666-70, 930 P.'d 792, 803-07 (prosecutorial misconduct); State v. Smith, 470 N.E.2d 883. 885-86 (Ohio 1984) (same); State v. Gutierrez, 1993 NMSC 062, 116 NM 431, 445-47, 863 P.2d 1052, 1066-68 (unreasonable search and seizure); State v. Pi Kappa Alpha Fraternity, 491 N. E. 'd 1129, 1131-33 (Ohio 1986) (same). We see no reason why extradition should be exempt from this constitutional principle. "If the Government becomes a lawbreaker, it breeds contempt for law, it invites every man to become a law unto himself; it invites anarchy." Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting), overruled on other grounds bv Berger v. New York, 388 U.S. 41, 50-54 (1967); see also Galloway, 507 so. 2d at 594-95 ("[The constitution forbids a state from exercising its extradition powers based on false accusations, simple ignorance of the law or wanton abuse of process.").
119 The fact that a state is prohibited from taking advantage of its own unlawful conduct brings this case 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, 836 F. Supp. 750, 755-56 (D. Kan. 1993); see. e.g., Mozingo v. State, 562 so. 2d 300, 303-05 (Ala. Crim. App. 1990) (prisoner arrested for crime in demanding state, transferred legally to prison in another state, is fugitive upon parole from prison); Ex parte Polvi, 290 S.W. 170, 173 (Tex. Crim. App. 1926) (defendant allegedly kidnapped in one state and brought into asylum state). We hold that, in extradition cases, duress may be raised as a defense to the fugitivity element if the individual was incited to cross state lines—and would otherwise never have done so—by the illegal actions of the demanding state. A state cannot now exploit its own unlawful conduct.
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 alter 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, 203 U.S. 222, 227 (1906). it has even been held that a defendant's "fear for his personal safety was not sufficient to justify his flight from justice. " Dunn, 836 F. Supp. at 756. Thus, there are several disturbing cases in which there was no defense for those who feared being Iynched. See. e.g., People ex rel. Heard v. Babb, 107 N.E.2d 740, 742 (111. 1952) ("His fear of Iynching does not change the nature of the act, but merely constitutes the motive therefor."). This case is of an entirely different order because the demanding state itself threatened the defendant's safety, and then attempted to extradite him for a violation that never would have occurred had the demanding state followed its own laws. Our holding is in accord with those few cases that granted writs of habeas corpus to defendants who proved they would find no governmental protection from being Iynched upon extradition to the demanding state. See, e.g., Commonwealth ex rel. Mattox v. Superintendent of Countv Prison, 31 A.2d 576, 577 (Pa. Super. Ct. 1943) (refusal to extradite upon showing of competent evidence that officials in the demanding state would not protect defendant from Iynching); in re Hampton, 13 Ohio Dec. 579, 579 (Hamilton County C.P. 1895) (judge, who previously extradited prisoner into the hands of a Iynch mob in Kentucky, refused to extradite another prisoner to Kentucky).
122 Additionally, 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, 110 U.S. 516, 536 (1884) ("Arbitrary power, enforcing its edicts to the injury of the persons and property of its subjects, is not law, whether manifested as the decree of a personal monarch or of an impersonal multitude."). Conduct that was valid in the eyes of the law at the time it occurred, cannot after the fact—ex post facto—be rendered invalid. See State v. Alderette, 111 NM 297, 300, 804 P.2d 1116, 1119 (Ct. App. 1990) . Administrative bodies—like the Parole Authority—"cannot change innocence into guilt; or punish innocence as a crime," any more than can legislative bodies(emphasis mine). Calder v. Bull, 3 U.S. (3 Dall.) 386. 388 (1798) (discussing ex post facto laws passed by legislative bodies).
I23 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, 277 U.S. at 483-84 (Brandeis, J. dissenting) ("[A] court will not redress a wrong when he who invokes its aid has unclean hands.... Where the government is the actor, the reasons for applying [the doctrine of unclean handsl are even more persuasive."). Nor, as the amicus posits, do we explore a "presumption of vindictiveness' on the part of Ohio. Dunn, 836 F. Supp. at 754. Rather, the question before us is whether, in light of Ohio's actions—however legal and constitutional they may or may not be—Reed should be considered a fugitive. We conclude that no offer of a hearing could turn Reed into a fugitive once it was established he was never a fugitive in the first place.
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(emphasis mine).
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, 444 U.S. at 410 (defining the defense of necessity as "choice of evils" in which "physical forces beyond the actor's control rendered illegal conduct the lesser of two evils"). A reasonable person in Reed's situation would choose escape above the probability of death or bodily injury.
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, 13 Ohio Dec. at 579 (refusing to extradite defendant who was in proven danger of being lynched). Habeas extradition proceedings are not exempted from the exercise of this power. For the foregoing reasons we conclude that, under the uncontroverted facts of this case, Reed is not a fugitive from justice. We affirm the district court in granting his writ of habeas corpus.
127 IT IS SO ORDERED.
GENE E. Franchini, Chief Justice
WE CONCUR:
PATRICIA M. SERNA, Justice
DAN A. MCKINNON, III, Justice
JOSEPH F. BACA, Justice (dissenting)
PAMELA B. MINZNER, Justice (specially concurring)
This concludes Little Rock Reed's travail and toil for justice. He had to leave the State of Ohio in order to find a court that was willing to call into proper check the abuses of APA power and the State of Ohio's refusal to hold a tax-supported state agency to the boundaries of its own written laws. Congratulations, Little Rock Reed. Your triumph gives us HOPE.