early hours of 7 August 1998, before any appeal
could be launched. Therefore, any appeal would
have been moot and futile because the very subject
of the proceedings was no longer within Canadian
jurisdiction.
6.9 On the State party’s reference to the
conditions of detention in the Special Handling Unit,
the author submits that this is the only supermaximum facility of its kind in Canada, and that he
was subjected to “abhorrent living conditions”. He
also submits that the National Parole Board’s
decision to hold him for the full 10 years of his
sentence and the subsequent annual reviews
maintaining this decision constituted a form of
reprieve, albeit temporary, from his return to the
United States where he was to be executed. In this
regard, the author refers to the discussion of this
issue in Pratt and Morgan (Privy Council), where
Lord Griffith commented on the anguish attendant
upon condemned prisoners who move from
impending execution to reprieve.
6.5 The author reiterates that the judge of the
Superior Court declined jurisdiction to stay the
deportation because the Federal Court had refused to
intervene. He argues that although the judge went on
to analyse the case on the merits he should not have
done so, having declined jurisdiction and that an
appeal, had it not been moot, would have been
limited to the question of whether he ought to have
declined jurisdiction and not whether he had made a
case that his rights under the Canadian Charter of
Rights and Freedoms had been violated.
6.10 The author argues that to remove him to a
jurisdiction which limits his right to appeal violates
article 14, paragraph 5, of the Covenant, and submits
that article 6 of the Covenant should be read together
with article 14, paragraph 5. On the issue of the
Supreme Court of Pennsylvania’s review of his case,
the author maintains that the Court refused to
entertain any claims of error at trial and, therefore,
reviewed the evidence and decided to uphold the
conviction and sentence. Issues such as the propriety
of jury instructions are excluded from this type of
review.
6.6 The author contests the State party’s argument
on incompatibility and states that the theory that if
the author’s crimes in Canada had gone unpunished
a precedent would have been set whereby those
subject to execution in one State could commit
crimes with impunity in another State, is inherently
flawed. On the contrary, the author argues that if
death row inmates knew that they would be
prosecuted for crimes in Canada this would
encourage them to commit such crimes there in order
to serve a prison sentence in Canada and prolong
their life or indeed commit murder in Canada and
stave off execution in the United States indefinitely.
If the author had been “removed by way of
extradition following apprehension in Canada in
1988, he would have had little in the way of
arguments to put forth.”
6.11 Without wishing the Committee to consider
the transcripts of the murder trial, the author also
refers to alleged errors that occurred during the
course of his trial that could have changed the
outcome of the case. He refers to a question from the
jury which sought to clarify the difference between
1st and 3rd degree murder and manslaughter. The
jury’s request was not answered, as the author’s
attorney could not be located. When the attorney
appeared the next day, the jury was ready to deliver
a verdict without receiving an answer to the request
for clarification. A verdict of 1st degree murder was
then returned.
6.7 The author contests the State party’s
arguments on the merits. He confirms that he has no
authority for the proposition that detention in Canada
for crimes committed in Canada can constitute death
row confinement as there is no such recorded
instance. The author submits that the mental anguish
that characterises death row confinement began with
his apprehension in Canada in 1988 and “will only
end upon his execution in the United States.”
6.12 The author submits that while a mechanism
allowing limited review might be viewed as
acceptable in cases in which non-capital crimes have
been committed, he contends that this is wholly
unacceptable where the defendant’s life hangs in the
balance, and when he is barred from having any
claim of error at trial reviewed.
6.8 The author rejects as misinterpretation, the
State party’s point that the decision in Pratt and
Morgan11 is authority for the proposition that a
prisoner cannot complain where delay is due to his
own fault such as an “escape from custody”. He
concedes that the period when he was at large is not
computed as part of the delay but this period began
from the point of apprehension by the Canadian
authorities. He further submits that he was not
detained in Canada because of his escape but rather
because he was prosecuted and convicted of robbery.
11
6.13 On the possibility of seeking relief under the
PCRA, the author confirms that he did indeed seek
relief by filing such a motion after he was deported
to the United States. This motion was dismissed on
21 July 1999, and by reference to the previous case
of Commonwealth v. Kindler, it was argued that the
author’s fugitive status had disqualified him from
seeking such relief. The author further submits that
as his application for relief under the PCRA was
Pratt and Morgan v. Jamaica, supra..
90
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