Case of the Day: Hilton v. Kerry

The case of the day is Hilton v. Kerry (1st Cir. 2014). This is the extradition case I’ve been following. Here are a couple of my prior posts:


To recap, Alexander Hilton was charged with attempted murder in Scotland. The claim is that he tried to poison another student while studying at St. Andrew’s. The UK sought to extradite him. Hilton resisted extradition, arguing that he was mentally ill and that extradition would put him at risk of suicide. Hilton also argued that extradition would be unconstitutional because in Scotland he would face trial by a jury that could convict him on a majority verdict rather than a unanimous verdict.

The magistrate judge issued a certificate of extraditability, and Hilton petitioned for a writ of habeas corpus. The judge denied his petition, and Hilton appealed. Hilton has remained free throughout the proceedings.

On appeal, the First Circuit affirmed. The decision was pretty much as expected. The court emphasized the judiciary’s minimal role in extradition proceedings, limited to determining whether there is an extradition treaty in effect, whether the crime charged falls within the treaty’s scope, and whether the evidence is sufficient to sustain the charge. If so, the magistrate is required to issue a certificate of extraditability, and it is then solely for the Secretary of State to determine whether to extradite. Under the rule of non-inquiry, the courts are not to consider the fairness or humaneness of the foreign legal system; such matters are for the executive.

Hilton’s claims regarding the effect his treatment in Scotland would have on his mental health were, the court reasoned, claims about the humaneness of the Scottish system barred by the rule of non-inquiry. 1 The claim about Scotland’s jury system also failed under the rule of non-inquiry. Hilton also argued that because the Senate was not adequately informed of Scotland’s jury system, its advice and consent to the ratification of the extradition treaty was invalid, but the court treated this as a nonjusticiable political question. Hilton can seek relief, but he must seek it from the Secretary of State, not the courts.

So what’s next? We may now see a petition for panel rehearing and rehearing en banc, and we may also see a petition to the Supreme Court. Ultimately, though, such steps are likely just delaying the inevitable. Hilton simply did not have strong claims against extradition, as far as I can tell. Presumably, Hilton is also petitioning the Secretary of State for relief, and perhaps he will have a better chance of success on that front.

Notes:

  1. Hilton seems also to argue that the United States could not constitutionally take him into custody pending his extradition on account of his mental health problems. This argument seems impossible, since it would suggest that whenever imprisonment would seriously affect a criminal defendant’s mental health it becomes unconstitutional. That can’t be right. Anyway, it seems that Hilton could avoid the need to be taken into custody by simply agreeing to be extradited to face charges in Scotland.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

One thought on “Case of the Day: Hilton v. Kerry

  1. According to a joint status report filed on June 13, it appears that after the First Circuit’s decision, Hilton has been in touch with the State Department, which has indicated that Hilton should file any additional materials he wants the Secretary to consider by June 20. The government has not yet taken a position on whether Hilton should remain free on bail pending the Secretary’s decision on extradition.

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