West Virginia district court denies request from Ireland
for the extradition of a U.S. citizen accused of assisting in suicide; dual
criminality requirement of the U.S.–Ireland extradition treaty was not met;
although the court recognizes that dual criminality could potentially be
satisfied by the existence of substantially comparable laws in a
“preponderance” of the states, there was no consensus in the laws of the U.S.
states as to assisted suicide
The following district court case concerns Ireland’s request
for the extradition of the Reverend George Exoo of the “Compassionate
Chaplaincy Foundation,” an organization that assists people who wish to commit
suicide. Such has been termed “suicide tourism” by critics. More information
about the background of this matter is available at www.compassionate‑chaplaincy.com.
The United States initiated an action for the extradition of
American citizen George Exoo to Ireland. The Dublin Metropolitan District Court
issued a Warrant to Arrest Exoo on May 21, 2004, based upon information
provided by a police detective that Exoo (1) aided and abetted and (2)
counseled the suicide of an Irish woman, Ms. Toole, in violation of Irish law.
That law provides that “a person who aids, abets, counsels or procures the
suicide of another . . . shall be guilty of an offense and shall be liable on
conviction on indictment to imprisonment for a term not exceeding fourteen
years.” Section 2(2) of Ireland’s Criminal Law (Suicide) Act, 1993.
Exoo was affiliated with an organization known as the
Compassionate Chaplaincy Foundation which provided assistance to dying people.
Exoo, in his position as a minister, provided instruction and spiritual support
for people seeking to end their own lives. In 2002, Exoo traveled to Ireland
after some correspondence with Ms. Toole, a woman suffering health problems who
had attempted and failed at suicide once before. Ms. Toole paid for Exoo’s
traveling expenses. On January 25, he was with Ms. Toole when she took
unspecific pills and out on a mask that supplied her with helium, not oxygen. She
soon asphyxiated, and Exoo left the country without notifying authorities of
her death. In 2007, a warrant was issued in the U.S. and Exoo was arrested. The
court subsequently held a hearing to determine where extradition of Exoo to
Ireland was permissible.
Under the 1983 extradition treaty between the United States
and Ireland, “An offense shall be an extraditable offense only if it is
punishable under the law of both Contracting Parties by imprisonment for a
period of more than one year, or by a more severe penalty. Extradition shall also be
granted for attempt and conspiracy to commit, aiding, abetting, counseling,
procuring, inciting, or otherwise being an accessory to the commission of [such
an offense that is punishable under the law of both states].” The treaty
further stipulated that it “adopts the modern practice of permitting
extradition for any crime punishable under the laws of both contracting Parties
for a minimum period,” and that the doctrine of dual criminality should be
interpreted liberally under it.
To extradite Exoo, the Court would have to determine, among
other things, whether “in consideration of the offenses with which he is
charged in Ireland, [Exoo] is extraditable under the ‘dual criminality’
provision contained in Article II of the Treaty. Under this provision, the
Court must determine whether the offenses with which [Exoo] is charged in
Ireland are also punishable under the law of the United States by imprisonment
for a period of more than one year or by a more severe penalty.” [pg. 5]
“To determine whether dual criminality exists as between the
law of Ireland and the law of the United States, the Court must look to federal
law first. If there is no corresponding federal law, then the Court must look
to the law of the State where [Exoo] is found. If there is no corresponding law
in the State where [Exoo] is found, then the Court must look to the law of the
preponderance or majority of States.” [pg. 5–6] These laws need not be
identical between states, merely similar. In Exoo’s case, the proper inquiry
was first into Federal and West Virginia law, neither of which possessed laws
that would satisfy the duality requirement. However, the United States in its
memorandum maintained that a preponderance of the States criminalize assisted suicide,
and alleged that 39 have statutes forbidding such acts and 29 of those attach
aiding and abetting liability to providing assistance in any form to the
suicide of another.
In June 2007, the Court held an Extradition Hearing.
“Essentially, the question presented was¼
whether the [Extradition Treaty between the US and Ireland] permitted dual
criminality to be assessed in consideration of the law of a preponderance of
the States and, if so, [did] it appeared probable that dual criminality does
not exist as between the law of Ireland and the law of a preponderance of the
States¼ [L]egal research
indicated that several Courts have stated that, absent duality as between the
law of the requesting State and federal law and the State where the relator is
found, the Treaty language would permit an assessment of dual criminality in
view of the law of a preponderance of the States.” [pg. 8]
At the hearing, both sides presented evidence on the
differing assisted suicide laws of various states and the status of assisted
suicide at common law where no statute existed. While the Government maintained
that a majority of states had statutes criminalizing assisted suicide and also
recognized aider and abettor liability for such acts, Exoo argued that not only
had the Government failed to show a majority trend among the various states,
even if it had, majority alone was not enough. Instead, the requisite for a
finding of duality under a “preponderance” of state laws was “consensus” among
them.
At the hearing, the court emphasized that extradition
treaties were to be interpreted liberally, and this applied as well when
determining if dual criminality exists when there is no comparable federal or
State of asylum enactment. In order to make such a determination, it stated,
the court must compare the laws of the country requesting extradition and the
fifty States to determine if the conduct charged in the requesting country is
punishable in a preponderance of the States. [pg. 17]
In the court’s determination of the meaning of applicable
laws, it noted that, in general, the law of the United States and Ireland are
conceptually consistent in defining aiding and abetting. In then turned to a
comparison of the assisted suicide laws of Ireland and the 50 states, in order
to determine “the extent to which the States’ laws are ‘substantially
analogous’, ‘relate to the same general offense’ or involve conduct which is
criminal in both countries.” [pg. 21]
After conducting this comparison, the court found there was
no dual criminality under the “preponderance of the states” standard, and
extradition was not permissible. The State Court decisions analyzed by the
court in making its comparison indicated that the strong majority of the
States’ statutes would not be “substantially analogous” for duality purposes.
“Utilizing as broad a notion as possible of what legally constitutes ‘aiding’
and ‘causing’ in order to conform to the liberality requirements of the Treaty
and the law, the Court [found] that the laws of the 25 States set forth in the
first category incorporate both aiding and causing suicide and therefore
included conduct such as Exoo’s indirect, secondary participation in Ms.
Toole’s suicide.” [pg. 30]
However, the Court also finds that 25 States did not have
laws which were “substantially analogous,” and as such, the Court could not
find that aiding and abetting and counseling suicide as charged in Ireland are
generally recognized as criminal in the laws of the States, and extradition was
denied.
Citation: In the Matter of the Extradition of George
David Exoo, 5:07‑0059 (S.D.Wv. 11/26/2007).
**** Patrick Michael Megaro is a partner at Halscott Megaro PA. His primary areas of practice are criminal defense, criminal appeals, post-conviction relief, civil appeals, and civil rights litigation. Attorney Profile at: https://solomonlawguild.com/patrick-michael-megaro; Attorney News at: https://attorneygazette.com/patrick-megaro%2C-esq#ab17a387-a757-4c0f-bc37-81f556fd15ea
