Summary of Detention Hearing of Inocente Orlando Montano, Former Salvadoran Vice Minister of Public Security, May 7, 2015
by Carolyn Patty Blum, Senior Legal Advisor, Center for Justice and Accountability
The sun shone radiantly, and a pleasant breeze blew on this beautiful spring day in Greenville, North Carolina, the unexpected site of the extradition case against Inocente Orlando Montano, former Salvadoran colonel and Vice Minister of Public Security, accused as a co-conspirator in the Jesuits Massacre Case pending before the Spanish National Court. Spain seeks Montano’s extradition to stand trial for the murders, and the US has filed an extradition complaint on Spain’s behalf, the first step in initiating the process.
The modest federal courthouse annex, in a lovely old yet well-maintained building, houses the courtroom of Magistrate Judge Kimberly Swank, the judge assigned to the extradition case. Across the street from the annex is the large state courthouse building and, much to my surprise, a monument stands in front of it to memorialize the town’s “Confederate Dead.” As May 7 was the National Day of Prayer, hundreds stood on the courthouse steps singing hymns and praying. And so the incongruity of former colonel Montano’s rendezvous with the Spanish proceeding in this town, on this day was palpable.
Accompanied by US Marshals, Montano arrived in an orange jumpsuit and sandals, issued by the Pitt County Detention Center where he is being held. One of the main items on the court’s agenda was Montano’s request for release from custody during the pendency of the extradition case. In introducing this phase of the proceedings, Magistrate Judge Swank reminded all present of the presumption against release in extradition cases and the inapplicability of federal laws regarding bail. Only in the presence of special circumstances, a burden Montano must meet via clear and convincing evidence, would bail be justified.
James E. Todd, Jr., Montano’s public defender, presented evidence in support of Montano’s release: the decision, in Montano’s criminal case for immigration fraud and perjury, to allow his release pending trial and to self-surrender for imprisonment; Montano’s health; and the availability of a reliable housing alternative. Todd first presented transcripts from the criminal proceedings in Massachusetts, in which Montano ultimately plead guilty and was sentenced to the maximum 21 months in prison. He was free on electronic monitoring during those proceedings, and at sentencing, the court allowed him to self-surrender to the North Carolina federal prison where he was housed for much of his sentence (and the basis for jurisdiction in the Eastern District of North Carolina for the extradition case). Next Todd presented medical records showing the consequences of Montano’s bladder cancer, type 2 Diabetes, and risk of secondary infection. Montano’s younger sister Ana Martinez and her husband Manuel Martinez testified that Montano could live with them in the home they owned in South Carolina and assured the court that Mrs. Martinez could care for her brother as she is an experienced home health aide, and they would report to his probation officer any infractions of the conditions of his release.
Defense counsel argued that the county lock up could not provide proper health care, and his sister’s care was more appropriate – and would save the taxpayers money. In his view, this case was “one of the most unusual [extradition] cases ever seen” and, therefore, litigation would likely be “prolonged.” In touching on the case itself, he noted CJA’s role as popular prosecutors and conceded that there is “universal” agreement that René Emilio Ponce, former chief of Staff of the Salvadoran military, had ordered Col. Guillermo Benavides, the head of the Military Academy, to commit the crime. At that point, Todd argued, the accounts diverge, and, thus, the proceedings necessarily would mean a long incarceration.
Assistant U.S. Attorney Eric Goulian argued against release. He noted that the underlying rationale for the presumption against release was risk of flight. He stressed that the risk of flight was enormous in this case as Montano was charged with terrorist murder, a very serious crime. He clarified for Magistrate Judge Swank that, although Spain had made a request for the extradition of Montano in 2011, an actual extradition complaint was not pending during the criminal proceedings and, therefore, was not a factor in his custody determination. When the judge queried why it had taken so long for Spain to bring a criminal case on the Jesuits killings, Goulian noted Spain has no statute of limitations on terrorist murder, and the inception of the case was irrelevant to the custody determination. Goulian emphasized the US’s obligation under the extradition treaty to turn over Montano for extradition and as a fugitive from Spanish justice.
Magistrate Judge Swank ruled for the continued custody of Montano. She stressed that the presumption against release was premised on the “overriding national interest to comply with our treaty obligations.” The difference between the criminal case and this case was the “seriousness of the charges for extradition” and “[that] difference increases the risk of flight.” While evidence of special circumstances exists, she was not convinced that Montano had met his burden of presenting clear and convincing evidence warranting release. She permitted Montano’s counsel to request release in the future, without prejudice, were the circumstances to change.
Next the court addressed the scheduling of the extradition hearing. First Jon Capin, the prosecutor in the Massachusetts criminal case, presented argument for, at most, a 2-4 week extension. He took the opportunity “to discuss the nature of the proceeding.” In citing applicable Fourth Circuit precedent, Capin emphasized the limited scope of the court’s inquiry in extradition – to answer only four questions: (1) the jurisdiction for the case; (2) the correct identity of the subject of the extradition request; (3) dual criminality under the treaty (whether the conduct constitutes a crime in both countries) and (4) probable cause for the extraditee to stand trial for the alleged crime.
In referring to written filings by Montano, Capin noted that most of the issues Montano raised more appropriately should be addressed in Spain and were inapplicable to the US extradition proceeding, which is not a criminal trial, does not require discovery, and is not an opportunity to prove or disprove the underlying allegations. Capin reiterated the clarity of the US-Spain extradition treaty, the straight-forwardness of the documents submitted by the US government on Spain’s behalf, and the limited number of provisions in the extradition treaty relevant to this particular case. In response to Montano’s claim that Spain is attempting impermissibly to exercise extra-territorial jurisdiction, Capin responded that Art. 3b of the treaty allows for this jurisdiction when the requested state has a similar statute. Like Spain, the US has enacted a statute permitting the prosecution of third country nationals who kill US citizens (the “international terrorism” law). Briefly, in reference to the underlying crime, Capin pointed out that Montano held one of the most powerful positions in the Salvadoran military at the time of the Jesuit Massacre. Montano expressed animus against the priests, who were viewed by the military as connected to “the enemy.” Capin’s statement was interrupted by opposing counsel, and, unfortunately, he was not able to complete his full statement.
Montano’s lawyer argued for at least 8 weeks to a hearing date. He expressed confusion about the exact charges against Montano and, as he had in written filings, questioned whether the five Spanish-born Jesuit priests were Spanish at the time of the commission of the crime. Using the metaphor of an onion, he argued he needed time to peel back the layers of the many documents on the record of the case, He referred, in particular, to the Expert Report of Professor Terry Karl, the testimony of witnesses, the Truth Commission report and, in a bit of theater, brandished a US Department of State declassified document, with the subject “Rumors and Leads,” which, according to Todd, contradicted other sources on highly relevant material. Referring to long-standing rules of extradition – such as the rule of non-inquiry and the prohibition against the extraditee filing “exculpatory” evidence (as opposed to “explanatory evidence”) – as “antiquated,” Todd insisted such rules should be liberalized in this case and violated Montano’s due process rights.
Magistrate Judge Swank cut off further argument and ruled for an extension because the extradition was “not an ordinary case” and contained “a lot of documents.” She suggested June 30. However, due to the personal circumstances of the defense lawyer and the judge, the hearing was deferred to August 12, 2015 and at that time, the parties agreed that they would not present witnesses and would need no more than a full day for the hearing. The prosecution requested pre-hearing filings to clarify the issues in the case; while these were not required, Magistrate Judge Swank encouraged the parties to confer and reconvene in a week for a follow up telephonic conference call with her.