The opinion of the court was delivered by: BARRY
After a delay of Rip Van Winkle-like proportions, the United States sought petitioner's extradition to the Republic of Turkey even though he had been twice acquitted at trial before Turkish courts of the crime as to which extradition was sought and even though he may now face the death sentence. The only reason apparent from the record to explain why petitioner was plucked up almost twenty years after he legally entered the United States and more than twelve years after Turkey first requested his extradition was because Turkey had recently extradited, at the United States' request, a convicted drug dealer who had escaped from the Cook County (Chicago) jail and fled to Turkey. It appears, as well, that this is the first time that the United States has sought extradition of one found not guilty at two separate trials, and the first time since the Treaty between the United States and Turkey was entered into in 1979 that the United States has attempted to extradite anyone at all to Turkey.
The Magistrate Judge who handled the extradition request believed, correctly, that his review was constrained to answering certain discrete questions. The answers to those questions warranted, in his view, granting the certificate of extradition. He believed, as well, and again correctly, that it was only the Secretary of State who could review all of the circumstances of the case and, for humanitarian reasons, deny extradition. He urged, in two opinions, that the most careful review be undertaken by the Secretary. Indeed, one cannot read the record of the proceedings before the Magistrate Judge and come away with any conclusion other than that he expected that the Secretary's review would result in the denial of extradition. The Magistrate Judge asked the United States, for example, "Doesn't it strike you as unfair that someone has been acquitted twice at trials, has lived openly and apparently with an unblemished record in this country for ... almost twenty years [?]". Tr., Sept. 20, 1995 at 164. The United States responded "No", and the Secretary has again responded "No" by ordering that petitioner be extradited. Thus, the petition for habeas corpus, now before this court, is most likely petitioner's last hope of remaining in this country, which he legally entered on January 2, 1977 with a Turkish passport after Turkish authorities had concluded that he had been acquitted and where he has openly lived a law abiding life since that time.
Some preliminary observations must be made. This court, on habeas review, is reviewing, under the appropriate standard of review, what the Magistrate Judge has determined and not issues such as whether petitioner, if extradited, will be granted due process and treated humanely in Turkey or whether all of the circumstances of the case warrant relief on humanitarian grounds. Those issues are for the Executive Branch, which possibly considered them and certainly determined them against petitioner. A habeas court is and must be concerned only with whether the alleged offense fell within the terms of an extradition treaty and whether an official with jurisdiction was presented with sufficient evidence to warrant a finding that there was a reasonable ground to believe that petitioner was guilty. Ahmad v. Wigen, 910 F.2d 1063 (2d Cir. 1990). The Ahmad court was confident that this well understood and fairly narrow scope of review was all that was necessary because "so far as we know, the Secretary never has directed extradition in the face of proof that the extraditee would be subjected to procedures or punishment antipathetic to a federal court's sense of decency [citation omitted]. Indeed, it is difficult to conceive of a situation in which a Secretary of State would do so." Id. at 1067.
This court will not determine because it need not determine -- even if it were empowered to determine -- whether this case presents such a situation and, if so, whether this court would be required to trample on the oath it took which, most assuredly, it would not do. Neither will this court determine because it need not determine whether, aside from the possible or probable or certain "procedures or punishment" petitioner will face, this saga -- which began more than twenty-five years ago -- warrants relief as a matter of fundamental fairness. These issues need not be reached because the Magistrate Judge erred in finding that the United States proved that petitioner is under a judgment of conviction in Turkey and, in the alternative, that there was probable cause that petitioner committed the crime as to which extradition was sought. And so, while the parties have various motions and cross-motions now before this court, motions which will be briefly addressed and disposed of infra, the critical issue is whether the petition for a writ of habeas corpus should be granted. The answer to that question is a ringing "Yes."
A. The Crime and Investigation in Turkey1
In 1970, petitioner Mehmet Semih Sidali lived with his family in a two-story house in Mersin, Turkey. Petitioner's father and mother lived on the upper floor, while petitioner and his family lived on the first floor. Id. Dursun Eskin, a fifteen year old girl whose mother was the adopted child of the family, also lived on the first floor. On the morning of April 18, 1970, Dursun was found dead in her bedroom. The autopsy report indicated that she had been raped and, thereafter, killed by strangulation.
The day before the rape and murder, petitioner's father, daughter, and wife had gone to Ankara so that the father could receive medical treatment. While they were away, petitioner's aunt came to keep his mother company. Thus, Dursun aside, the people in the house on the night the murder was committed were petitioner, his mother, and his aunt, and they all slept upstairs.
On the night of the murder, petitioner came home at about 9:20 p.m., changed into his pajamas, and went upstairs to bed. The next morning, petitioner came downstairs at 7:30 a.m. and noticed that the key to a safe that had been in his jacket pocket was missing. He called his place of business, but nothing had been disturbed. In the meantime, petitioner's mother came downstairs, opened Dursun's bedroom door, and found that she was dead. Dursun had last been seen alive early on the evening of the murder when the family's dog barked loudly and continuously, and before petitioner returned home.
When the police arrived, petitioner suggested that a thief had broken into the house. He told them that the key to his safe had been taken but that no money was missing. He also pointed them to the balcony door of the living room, from which he believed an intruder had entered the house. An examination of the door revealed that there were two points at which force had been applied with an old screwdriver between the door and the frame. Inspection Report, April 19, 1970 (attached at Pet.'s Br., Exh. F. Moreover, there was a red iron sliding bar attached to the glass, but the frame into which it should have fit was not in place and could not be found. The four screws which held the sliding bar were loosened as a result of having been forced. Id. The investigation determined, however, that there was nothing missing from the house, that nothing in the house had been disturbed, and that there were no fingerprints on the door, the locks of the windows, or the buckle of the belt which was used to strangle Dursun. Interestingly, the same officer who made the report on the day of the murder found, two days later and with no explanation for the switch in stories, "not any attempt that proved intrusion ... using any tools like screwdrivers...." High Criminal Court of Mersin, Republic of Turkey, July 6, 1972 ("First Trial Ruling") at 18, attached at Pet. Br., Exh. D; Resp. App., Ex. 2.
B. Legal Proceedings in Turkey
On April 20, 1970, petitioner was arrested in connection with Dursun's death, detained for two months, and released in June 1970. In May 1971, he was charged with rape and murder and was again arrested and taken into custody. He was tried for nine months before the First High Criminal Court of Mersin, a three-judge panel. In a decision dated July 6, 1972, the court found that the evidence was neither sufficient nor concrete enough to convict petitioner, there were no witnesses to the crime, and blood and semen samples could not be accurately tested. First Trial Ruling at 25-26. Thus, by a vote of two to one, petitioner was found not guilty of murdering Dursun and was released.
Pursuant to Section 289 of the Turkish Code of Criminal Procedure ("TCCP"), the trial court's decision was appealed. The appeal was heard and decided by the First Criminal Panel of the Supreme Court of Appeals on February 5, 1973. Supreme Court of Appeals, Feb. 5, 1973 ("Court of Appeals Decree") (attached at Pet.'s Br., Exh. H; Resp. App., Ex. 2). The court found that the judgment of acquittal was based on written evidence which was "not in line with the existing quality of evidence". Id. at 3. In addition, the court found that the majority below did not disprove the evidence raised by the dissenting opinion. Id. Because this was "contrary to the law", the court reversed the judgment, pursuant to Article 321 of the TCCP.
After the reversal by the Court of Appeals, the First High Criminal Court of Mersin was obligated to conduct a retrial, which it did. A panel of three judges, with only the Chairman the same as at the first trial, reviewed the evidence and, on July 16, 1976, voted unanimously to acquit petitioner. First High Criminal Court of Mersin, Republic of Turkey, Judgment, July 16, 1976, ("Second Trial Ruling"), at 36 (attached at Pet.'s Br., Exh. I; Resp. App., Exh. 2). The court was persuaded by the fact that petitioner's body showed no sign of a struggle and that it would not have been impossible for an intruder to have gotten into petitioner's home to commit the offense. Id. at 31, 33. The court did not believe that petitioner had a motive to kill Dursun and conjectured that if he had committed the offense, he would have had time to get rid of any incriminating evidence. Id. at 23-25. For these reasons, the trial court persisted in its original verdict.
Decisions to persist are reviewed by the Court of Appeals' General Board of Criminal Panels (the "General Board"). The General Board is composed of the Heads of Departments and members of the Criminal Panels of the Court of Appeals. By a vote of 24 to 8 on December 13, 1976, the General Board found that the reasons cited by the trial court were insufficient to insist on the previous judgment. General Board of the Criminal Panels of the Supreme Court of Appeals, Judgment of the Supreme Court of Appeals, Dec. 13, 1976 ("General Board Judgment"), at 6 (attached at Pet.'s Br., Exh. J; Resp. App., Exh. 2). Finding sufficient evidence that "the accused transgressed the ...