After conversations with some of the city’s top criminal attorneys and having invested a decent amount of time in reading stuff on the Internet, I have rendered myself qualified, in my own opinion, to offer the following non-legal and inexpert advice: Persons accused of capital crimes in Texas who may be thinking of skedaddling south of the border, or north, should weigh the following factors carefully:
Upside: It’s a good way to escape getting executed.
Downside: It’s a good way to guarantee getting convicted.
Two key concepts are at work. The first is extradition: Mexico, Canada and most other countries that do not support the death penalty won’t extradite to a country that does have the death penalty unless the receiving country agrees to take death off the table for the person to be sent back. So if you are that person and you flee, you’ve got a whole country as a free law firm jaw-boning the U.S. to promise not to kill you or they won’t extradite.
The second factor, however, is more ancient and possibly more fundamental. The key concept there is fleeing. Generally speaking, fleeing is taken as a strong indication of guilt. Tom Mills, a top Texas criminal defense lawyer, said, “I think there may even be passages in the Bible about that.”
So the law is fairly clear on nations without death penalties not extraditing to countries with death penalties. The downside would be the thing about the Bible and also that all of that extradition business is international law, which we might think of as semi-foreign law, as opposed to Texas law. As with everything, even the hat you bought in France, let alone a murder case, things can get sticky once you get back to Texas.
If you agree at some point to be extradited, then Mexico or Canada may lose its leverage to make the U.S promise not to execute you. Even if you don’t agree and Mexico or Canada does make the U.S. promise, there have been cases in which defendants got back here and American authorities said all of a sudden they found new capital charges to bring that were not covered by the international agreement.
Sure, you can say that’s cheating. But, remember most murder is a state crime, so you will have to make your no-fair argument in a Texas court. You better make sure you’ve got your international deal in writing. In English. Don’t show up in a Texas court with some document written in Canadian.
David Finn, another top criminal defense lawyer who has worked with extradition, told me that the skedaddle to Mexico begins to look a whole lot less smart when you make two mistakes: 1) Ask your mom and dad for help (Ethan Couch), or 2) Are not a Mexican yourself.
Couch, the affluenza teen who got drunk and killed four people in a traffic accident, had his mom take him to Mexico. Note that the kid stopped fighting extradition and agreed to come back voluntarily, possibly to help out his mother. She, you will recall, ended up in worse criminal trouble than he was, on charges of aiding a fugitive and obstructing justice.
Responsible for multiple deaths in a drunk driving incident, he was never charged with a capital offense. But had he been, Mexico’s ability to bargain away a death penalty for him would have become null the moment he agreed to come home on his own.
His ability to stick it out and fight extradition to the bitter end may well have been eroded by his mother’s legal peril, which is why you don’t really want your mom along when you become an international fugitive. Think of it this way: The one thing Jason Bourne never did in all those movies was ask his mom for help. He must have had his reasons.
In the ongoing case of Brenda Delgado, arrested in Mexico last weekend on charges she masterminded the murder of Dallas dentist Kendra Hatcher, Finn said she may plausibly argue in court that she fled because she was frightened and was going home.
The going home to Mexico case gets harder to make when you’re a rich Anglo-American kid who can’t order a pizza in Spanish. About the best you could say is that you were under stress so you experienced an intense need to visit an expensive beach resort.
Mills pointed out that fleeing, if you really mean to flee and stay fled, generally is just much harder to do than it looks in the movies. “You would have to be extremely sophisticated to know how to get a fake passport and handle money, almost like someone who had been in the CIA or the Mossad. I just don’t know where you would even begin to look.”
If you have money here and can hire someone to do all of those things for you, Mills said, then in doing so you will acquire a new daddy for life: The person who helped you get it all done pretty much owns you until one of you dies.
Mills also said people sophisticated enough to make all of those connections and make all of that work out logistically often are sophisticated enough to get what they want without breaking the law. “Most crime just isn’t very smart,” he said.
People don’t always see themselves as fleeing when they go home. George Milner, who represents Delgado, said sometimes it’s more like getting back to familiar soil in a time of peril. Milner said he doesn’t know exactly when his client went to Mexico, so he doesn’t know if she had been charged with a crime yet when she did.
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“But she’s a Mexican citizen. She has family and friends down there. That’s where she’s from. I kind of liken it to if I’m living in France and I was charged with something very severe under French law. If I’m innocent, I might say, ‘You know what, I’m a U.S. citizen. I think I just need to get the hell out of here.’”
So I think it boils down to this. If you did it and you’re facing the death penalty and you know they’ve got you nailed anyway, go to Mexico, or Canada, I guess, but Mexico has the beaches. That way you can get a few weeks on the beach and then life imprisonment. Just hope the Americans want to extradite you, or you’ll do it all in Mexico.
If you flee to Mexico and you have some hope of hiding out, learn how to ask for a pizza in Spanish. Don’t run up any bar tabs equivalent to or in excess of the local average annual income. Do not take your mom.
All of this advice is free. It is not legal advice. In fact it’s not really even legal. Call a lawyer.