• Bryan Perkins

The State as a Criminal; Do as I say, not as I do.



John Adams proclaimed that we are a “nation of laws, not of men.” Theodore Roosevelt believed that “no man is above the law and no man is below it.” These quotes certainly embody the American ideal. Unfortunately, they do not reflect the reality of what happens in American courtrooms on a daily basis. When the State has the ability to pick and choose what laws it abides by, and is arrogant enough to ignore the law whenever it suits its own purpose — then the State is certainly “above the law.” Then, when the system turns a blind eye to everyday citizens, like you and I, who suffer at the hands of a law-breaking state — then we are certainly “below the law.”


The states of Texas and Ohio passed statutes which mandate specific procedures that must be followed before a citizen in one state can be extradited to the other to face criminal prosecution. (Ohio Revised Code 2963.09; Texas Code Crim. Proc. Ann. art. 51.13) Among other requirements, these laws require that prior to extradition, the accused must be brought before a judge, advised of his or her right to counsel, given time to contest their extradition by filing a petition for writ of habeas corpus, and given a pre-transfer hearing. It’s pretty basic stuff, not too complicated in light of the fact that a person is being deprived of their freedom and sent across state lines. The legislatures (representatives of “the People”) of both Texas and Ohio apparently felt that these legal safeguards were pretty important. As such, they provided for the imposition of criminal sanctions against anyone who turned over a citizen to another state without first complying with the law. After all, it is a pretty serious matter to detain a citizen from one state and then turn them over to agents from another state so they can be hauled away and prosecuted.


I represent a client who was detained in Texas for allegedly violating drug possession and trafficking laws in Ohio. This client had never been in Ohio a day in his life. When the client did not “cooperate” with the government and repeatedly refused to waive extradition, the State of Texas simply ignored the law and turned the client over Ohio anyway. No hearing, no attorney, no opportunity to challenge the extradition, no habeas petition — no nothing. Of course, Ohio did nothing to insure that the law had been followed in Texas before taking him back to Ohio. So, against his will, and in blatant violation of the law, the client was whisked off to Ohio to face criminal prosecution as well as the possibility of an extensive prison term.


The client then filed a petition for a writ of habeas corpus in Ohio. He couldn’t file his petition in Texas because he was no longer being detained in Texas. A habeas petition must be filed in the jurisdiction where the person is being wrongfully detained. Ohio argued that he should have filed his petition in Texas as stated by the extradition statute. Of course he was never given the opportunity to file his petition in Texas because the Texas authorities ignored its legal requirements and sent him off to Ohio. So it is the citizen that suffers. He cannot exercise his rights to a habeas petition in Ohio because Texas was so successful in violating the law that it was able to get rid of him before he could assert his rights in Texas. Now, Ohio says “too bad” you should have filed your petition in Texas. Talk about a Catch-22.


After his habeas petition failed, client then filed a motion to dismiss the criminal charges in Ohio. Client argued that his fundamental due process rights would be violated by continuing with the prosecution. After all, the client was brought into the State illegally, and the State should not benefit from its own unlawful conduct. And certainly a “court of law” should not condone or endorse the state’s illegal conduct by allowing the prosecution to proceed — or so it should seem.


Originating from an 1888 and 1952 pair of United States Supreme Court decisions, came what is known as the “Ker-Frisbie Rule.” This rule basically says that — despite being an American citizen with all the rights and privileges appertaining thereto — you cannot succeed in having your criminal charges dismissed, even though the state itself committed a crime (i.e. abduction), to get you into their respective jurisdiction. Not only does the state get away with illegal behavior, it profits from it.


Client then argued that perhaps our notions of fundamental fairness, which are embodied in the due process clause of the 14th amendment, have evolved since 1952. Perhaps in 2014 our courts of law would not be so eager to condone and endorse government agents abducting their own citizens and hauling them off to other states to be prosecuted. Wrong again. Apparently abduction by governmental agents is alive and well in America. The ends justify the means. Of course, if you or I engaged in such behavior we would be serving lengthy prison terms. Do as the state says, not as they do.


Maybe you think that all is not lost — maybe there could be some degree of justice in this case. There is certainly no doubt that Texas authorities (the Sheriff’s Office) violated the law. And a violation of that law expressly calls for the imposition of criminal sanctions against the offenders. If we are really a nation of laws, and nobody is above the law, then the people responsible for this will certainly be charged with a crime. Is the Sheriff going to charge its own agents? Is the district attorney going to charge its own client? Of course not, and to believe otherwise would be the epitome of foolishness. It is the classic problem of the fox (and the fox’s attorney) guarding the hen house.


In 1928, Justice Brandeis warned us of the evils of a government that believes it is above the law. He stated:


“Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of law, existence of the government will be imperiled if it fails to observe the laws scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means — to declare that the government may commit crimes in order to secure the conviction of a private criminal — would bring terrible retribution. Against that pernicious doctrine this Court should resolutely sets its face.”


We all must heed the words of John Adams, Theodore Roosevelt, and Justice Brandeis. We must demand that our government follow the same laws that it demands that you and I follow. Maybe someday that will be the case. But for now, we are in fact a nation of men. Some men must meticulously abide by the law with the boot of the government on their neck. But, other men get to decide what laws to follow, when and if it suits them. Some men are above the law, some are below it. Sadly, I know where I fall. Do you?

Attorney, Bryan Perkins, in Cincinnati, Ohio, has extensive trial and appellate experience in the area of criminal defense law.

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