Previously Posted: The Canadian Supreme Court will decide whether to allow the extradition of a dual Canadian Henry Fischbacher to Arizona on a charge of First Degree Murder. The Court of Appeals previously ruled August 1, 2008. The Court was persuaded that the evidence presented did not support a charge of First Degree Murder. However, it appears unlikely that even if he prevails before the Supreme Court that Mr. Fischbacher would be released; rather that he would be surrendered for trial in the United States on a charge of Second Degree Murder.
" When considering whether surrender on the charge of first degree murder as defined in the Arizona statute was substantively beyond the second degree murder charge supported by the evidence at the committal hearing, it is also helpful to examine the potential penalties for first and second degree murder under Arizona law. Apart from circumstances that have no application here, a person convicted of second degree murder is sentenced to a presumptive term of sixteen calendar years. That term may be mitigated or aggravated by up to six years, depending on the circumstances of the particular case: see Ariz. Rev. Stat. § 13-710 (Lexis 2008).
Setting aside the death penalty, a person convicted of first degree murder in Arizona faces life imprisonment. Under the legislation, life imprisonment can mean “natural life” in which case the convicted person is not ever eligible for parole or any form of release. Life imprisonment may also mean a “life sentence”. A convicted person who receives a “life sentence” is, subject to certain situations that do not apply here, eligible for parole after twenty-five years: see Ariz. Rev. Stat. § 13-703 (Lexis 2008).
I am satisfied that whether first and second degree murder are characterized in Arizona as distinct and separate offences or as branches of the same crime, they are substantively different, just as they are in Canada . Given the absence of any evidence of premeditation at the committal proceeding, the Minister’s decision to surrender the applicant for the clearly more serious allegation of first degree murder is substantively inconsistent with the evidence led at the committal hearing. The Minister’s decision that it would not be unjust in these circumstances to surrender the applicant on the more serious charge is unreasonable.
I would allow the application, quash the surrender order and remit the matter to the Minister for further consideration in accordance with these reasons. "
