Little Rock Flees Ohio for His Safety</TITKE> </HEAD> <BODY>   <H4>I. Futile Attempts to Forestall Arrest and Arrange a Preliminary Revocation Hearing</H4> <P>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: <I>"[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."</I> Dinah Devoto Aff. 12 (Sept. 28, 1994). Steve Devoto called the regional supervisor of the Parole Authority and, expressing remorse, admitted his misdemeanor complaint was false. <P>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 Lucasville. 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.<BR> <P><I>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. Brewerl 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.</I> <P>Pepinsky Aff. S 7 (Sept, 27, 1994). in his efforts to forestall Reed's return to Lucasville. 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. <H4>J. Reed Fears for His Life; Riot at Lucasville</H4> <P>26 Reed states that he knew by this time that his life was in danger. As he testified, <I>"Lucasville is my coffin."</I> 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. <P>27 Reed also testified, <I>"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."</I> 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. <P>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 davs. 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. <H4>K. Reed Flees under Duress; Continued Advocacy</H4> <P>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. " <P>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. <U>See. e.g., The American Indian in the White Man's Prisons: A Storv of Genocide</U> (Little Rock Reed ed., 1993) (an anthology of essays by Reed and others); Little Rock Reed, <U>Some evidence relating to the Lucasville riot</U>, Prison News Serv., Sept/Oct. 1994, at 3. <H4>L. Resolution of Devoto Complaint</H4> <P>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. <U>Commonwealth v. Reed</U>, No. 93-M01300 (Ky. Dist. Ct. June 29, 1993). <H4>M. Affidavits Describing Threat's Against Reed by Prison Officials</H4> <P>32 Reed continued to correspond with inmates inside Lucasville including John Perotti. 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:<BR> 2. <I>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.</I> <P>Perotti Aff. fit 2-3 (Oct. 3, 1994). <P>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:<BR> <I>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."</I> <P>Cahill Aff. (Oct. 28, 1994). <P>Another prisoner, Ahmad 'Abdul-Muqsil. provided a similar affidavit.<BR> <I>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 [sicl and unknown administrative officals [sicl 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.</I> <P>Abdul-Muqsit Aff. 5 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." <H4>N. Reed is Arrested in New Mexico</H4> <P>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. <P>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 Dislrict 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. <H4>O. Reed Seeks FederalRelief</H4> <P>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 recision 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. <U>See Reed v. King</U>, No. CIV-94-1267 MV/LFG, slip op. (D. NM Nov. 10. 1994). <H4>P. Crucial Extradition Documents are Missing</H4> <P>37 Extradition laws require specific documentation before an out-of-state extradition request will be honored. <U>See</U> 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. <P>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. <H4>Q. State Habeas Corpus Hearing</H4> <P>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. <P>40 During the hearings. the State emphasized that under the United States Supreme Court opinion <U>Michigan v. Doran</U> the court was limited to considering only four questions: (I) 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 hl the extradition request: and (4) whether the defendant is a fugitive. <U>See Michigan v. Doran</U>, 439 U.S. '82. '89 (1978). The State contended that, under this rule, virtually all Reed's evidence and arguments were beyond the scope of permissible inquiry at an extradition hearing. <P>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. <P>42 Applying the four-part <U>Michigan v. Doran</U> 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. <U>Reed v. Ortiz</U>, No. 94-1 CR Misc., 1995 WL 118952, at *4-5 (NM Dist. Ct. Jan. 90~ 1995). (b) The extradition documents did show that Reed had been charged with a crime in the demanding state. <U>Id.</U> at *4. (c) Reed is the same person named in the request for requisition and the Governor's warrant. <U>Id.</U> (d) Reed was not a fugitive from justice because the uncontroverted evidence shows that he left Ohio "under duress and under a reasonable fear for his safety and his life." <U>Id.</U> at *5-8. <P>43 On January 90, 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. <U>See</U> Rule 5 802(G)(1) NMRA 1997 (State's right to appeal grants of habeas); Kule 12-102(A)(4) NMRA 1997 (Supreme Court takes appeals from grants of habeas). <P>44 We now conclude, under the four <U>Doran</U> 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. <P>This marks the end of the opening facts of the Little Rock Reed case. The last ten pages of the decision will be posted in the near future. 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