Let’s look at the allegations first.  Victor Barnard was a charismatic minister who led many of his congregation to north-central Minnesota.  They built a compound and lived there.  In addition, several young girls also moved there without their families but with their parents’ permission.  Victor Barnard was supposed to educate and lead the girls.  Recently, some of the girls have come forward with allegations that Victor Barnard had repeatedly sexually assaulted many of them over a long period.

When the allegations came out, Victor Barnard fled—missing until he was found in Brazil.

Why can’t the authorities in Minnesota simply pick up Victor Barnard and bring him back?  What process must they use?

They lack any jurisdiction in Brazil and don’t have any right to enter a foreign country and grab someone.  Instead,they  must use a legal process called extradition.  Here’s how it would work:

1.  The U.S. State Dept. would file a formal request for Victor Barnard through the president of Brazil.  She could either say yes or no.  In turn, she’d pass it on to a judicial body.

2.  The Federal Tribunal of Brazil would also review the request.  Although the U.S. has an extradition treaty with Brazil, they will not release prisoners to a jurisdiction that has either the death penalty or life imprisonment.  Minnesota doesn’t have the death penalty, but if Victor Barnard is convicted of the crimes alleged he may go to prison for life—which may cause Brazil to not allow Minnesota to grab Victor Barnard.

3.  The request goes back to the president with recommendations from the judicial tribunal.  Again, the president may not release Victor Barnard.  But if they all agree to let him go, officials from the U.S. would pick him up and return to Minnesota.

So far, Victor Barnard has a lawyer in Brazil and is fighting extradition—considering the allegations here in Minnesota, I don’t blame him.  But if Brazil won’t give him up to the U.S., they would release him from their local jail—he may go free in Brazil.  But, in the meantime, would you want to spend any time waiting in a Brazilian jail?

No thanks.  I think I’d want to get out of there as soon as possible.  What would you do?

The post Can Minnesota Get Victor Barnard Back? appeared first on Colin T. Nelson.

I’ve been a criminal lawyer for over 30 years and have followed Amanda Knox’s case.  As you may know, she was convicted in 2009 in Italy of murdering her roommate and faces 28 years in prison.   She spent four years in prison there until an appellate court over-turned her conviction in 2011.  She took-off for the U.S. and remains here now.  However, Italy’s highest court reversed yet again—this time she’s guilty.

What will happen to her?

As a criminal lawyer, I see three interesting points:

1.  Appellate Court’s Decision

Although I don’t know the Italian legal system, it’s probably similar to our system.  When a person appeals a conviction, they are actually telling the higher court they think the original judge made a mistake in legal rulings—not the jury’s decision.  And further,  the rulings were so mistaken that the defendant couldn’t receive a fair trial.  Even if the higher court intervenes (in the majority of cases they don’t) a reversal can mean many different things—only one gives the accused person a new trial.

In Amanda Knox’s case the first appellate court found her not guilty.  Does that mean they thought the first trial judge’s rulings were so bad that she deserved to be found not guilty?  The prosecutors appealed that decision and the highest court found her guilty—again.

2.  DNA Evidence

Amanda Knox’s conviction turned on questionable DNA evidence.  The public assumes (after watching years of CSI Miami on TV) that DNA identification evidence is never mistaken.  You should talk to some forensic scientists!  Here are some problems with DNA:

—Is the sample (blood, saliva, etc) collected in an uncontaminated manner?

—Is the lab testing done in an accurate and uncontaminated way with up-to-date equipment?

—Is the data base the sample is compared to large enough to be accurate?

If any of these issues has been blown by law enforcement, the DNA identification may be suspect or false.

3.  Extradition

Extradition means that between governments of different countries, by international treaty, they will return a person to the other country.  The U.S. and Italy have such treaties.  But there are some protections for people like Amanda Knox.  If the italian courts ask for her extradition, she would appear in a federal court in the U.S. first.  Italy would have to appear through a lawyer.  The U.S. government would have to prove four things before Amanda Knox could be released to Italy:

1.  Is the legal document filed by Italy in proper order?

2.  Is the person, Amanda Knox, the same exact person sought by Italy?

3.  Has she been charged or convicted of a crime that falls within the treaty?

4.  Can the government show “probable cause?”  This means can the U.S. government show that Knox has either been charged or convicted of a crime.

End result— If Italy seeks her extradition, she’s going to be forced to take an unwanted vacation.

The post Amanda Knox—A Vacation in Italy?? appeared first on Colin T. Nelson.

Between every state in the U.S. and among hundreds of countries in the world, there exist extradition treaties.  (Between the states they are called extradition statutes.)  Normally, each state, each country has exclusive authority on how to operate their court system and a defendant caught-up in that system is subject only to the jurisdiction of the system. One state cannot tell another state what to do or one country cannot force another country to do something. 

Unless another state or country want jurisdiction or “possession” of the defendant.  The statutes and treaties make it legally possible to transfer accused people from one system to the other.  Let’s say someone is accused or murder in Minnesota but boogies to South Dakota and remains there.  If the authorities in Minnesota discover the accused murderer in S.D., they can request that South Dakota hold the accused until Minnesota comes to pick him up–and South Dakota will agree to release the man to Minnesota authorities.  Normally, South Dakota could ignore Minnesota’s request except for the statutes that give each state the right to come into the state in order to take an accused back to the first state.

What defenses does an accused person have?  Each state and country has a minimal procedure that must be followed.  In Minnesota, for instance, the accused, wanted by another state, is entitled to a hearing in a Minnesota court.  He may “fight extradition” under a few rules.  If they have arrested the wrong man in Minnesota and he can prove it, Minnesota would let him go free.  If the paperwork from the requesting state is in improper legal form, Minnesota may release him.  Otherwise, there are few defenses to avoid being sent back to the requesting state.

When it comes to countries, things get more complicated.  The treaties between countries may be different.  The country being asked to hold the accused may view such proceedings differently.  In the case of Abu Hamza, the laws in Great Britain offer several layers of appeals and delays–Abu Hamza and his lawyers took full advantage of them all.

Why would Abu Hamza try to delay, knowing in the end he’d probably lose and have to go to the U.S. anyway?

Consider this:  His delay of fourteen years means that many or all of the witnesses against him may have disappeared or died.  Much of the evidence will have gone “stale”, may be lost, unavailable, or has also disappeared.  The problem the prosecutor against him faces is that he must prove to the jury “beyond a reasonable doubt,” the guilt of Abu Hamza–how will the prosecutor do it with faulty or missing evidence?

So, the best defense Abu Hamza had was to delay the extradition process as long as he could–which he did.

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