Back in June I posted about how RI Gov. Linc Chafee was refusing to turn Jason Wayne Pleau over to the feds because Pleau potentially was subject to the death penalty in connection with a murder committed on the steps of a federal bank.  The feds never indicated whether or not they would actually seek the death penalty, but the mere possibility was enough for Chafee want to hold onto Pleau.

Pleau attempted to plead guilty to the murder in state court so as to avoid federal charges, but that maneuver failed initially when a RI federal judge ruled against Pleau and ordered him handed over.

Quite incredibly, the First Circuit Court of Appeals has ruled in favor of Pleau, and upheld Chafee’s right to refuse to turn him over under the Interstate Agreement on Detainers (IAD), which gives a Governor the right to refuse to turn over a prisoner.  As the court noted, Chafee is the first Governor ever to invoke such a right.

Recognizing the dilemma Chafee created, the feds alternatively sought to a writ of habeas corpus ad prosequendum, a longstanding procedure for the feds to obtain custody of a prisoner.  The First Circuit, however, ruled that the feds could not use this procedure because having chosen initially to invoke the IAD, the feds were bound by its terms.

The decision was 2-1, with the decision written by Judge Juan Torruella (a Reagan appointee) joined by recent Obama appointee O. Rogeriee Thompson (formerly a RI state court judge, someone I appeared before on a few occasions).  In reading the opinion, I could not help but get the sense that the prevailing judges were influenced by their own views of the death penalty, such as in this footnote (no. 3):

We pause to note that the crimes Pleau is alleged to have committed — armed robbery and murder — are quintessential state crimes, and betray on their face no hint of any uniquely federal interest. See United States v. Jiménez-Torres, 435 F.3d 3, 14-15 (1st Cir. 2006) (Torruella, J., concurring) (objecting to unwarranted extension of federal criminal jurisdiction over traditionally state crimes). Moreover, given that Pleau has already agreed to plead guilty to state charges and accept a life sentence without the possibility of parole, it is frankly unclear what is to be gained from pursuing federal charges in this case, particularly in light of the truly extraordinary costs of capital litigation.

Judge Michael Boudin (George H.W. Bush appointee), possibly the most respected jurist on the First Circuit (sidenote, son of well known radical lawyer Leonard Boudin and brother of Weather Underground member Kathy Boudin), wrote a blistering dissent, predicting that the Supreme Court would overturn the decision:

Congress would surely be surprised to be told that it had empowered a state governor to veto a federal court habeas writ–designed to bring a federally indicted prisoner to federal court for trial on federal charges — because the governor opposed the penalty that might be imposed if a federal conviction resulted. Of course, Congress has not provided states with any such veto power, and the Supreme Court has already made this clear in United States v. Mauro, 436 U.S. 340 (1978)….

Here, a valid writ has been approved by a federal district court but is now effectively dishonored by the state and by the panel majority’s writ of prohibition declaring that the governor is entitled to disregard the writ. Mauro is plainly to the contrary, and the panel majority’s action cannot survive the inevitable further review now fated for it.

For now, Chafee’s ploy stands.  Hopefully the Supreme Court will take the case.

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