Canadian officials today will try to deport a Baltimore man wanted in the fatal shooting in February of 20-year-old Anthony Henson in the victim's Brooklyn apartment.
But David A. Gatton, also of Brooklyn, may have stalled the process for up to two years by charging that Maryland's death penalty is so harsh that he deserves protection under United Nations international law.
At today's deportation hearing in Vancouver, British Columbia, Gatton is expected to cite an obscure 1951 United Nations Refugee Convention and the subsequent Torture Convention, which the United States signed in 1997.
United Nations Refugee Convention guidelines instruct nations to offer amnesty to those who fear persecution based on their race, religion, nationality, social group membership or political opinion. The Torture Convention prevents a country from deporting someone to a nation where the person would be persecuted.
Gatton declined to discuss the case, which is pitting Maryland's death penalty and prison crowding against officials' fear that Canadian citizens will react harshly to the freeing of a suspected killer.
Gatton is accused of shooting Henson 10 times in a Feb. 18 argument in the 4200 block of Audrey Ave.
Gatton fled, surfacing June 25, when he strolled along a beach in Washington state and crossed the border into Canada. He called Royal Canadian Mounted Police in a Vancouver suburb from a pay phone and surrendered.
"We will go there and try to bring him back," said Haven H. Kodeck, a Baltimore deputy state's attorney, noting that this is the first time he has heard of a Maryland fugitive seeking asylum in Canada.
Kimberly Prost, a lawyer with the Canadian Justice Department, said a refugee claim from the United States is rare and often unsuccessful. Experts on the law predicted Gatton's legal argument would be hard to sustain.
"I can't think of an instance where someone has succeeded," Prost said, noting that the process can take up to two years. "But it all depends on factors such as a well-founded belief they will face persecution in a nation."
Baltimore immigration attorney Blain L. Gilbert concurred. "To seek refugee status from the United States is great imagination. I have never heard it done before. Could you imagine the political significance of Canada recognizing the United States as a country of torture?"
While laughable to some, Gatton's claim is being taken seriously by the Baltimore state's attorney and Canadian immigration officials.
Since he illegally crossed the Canadian border, immigration officials had hoped to avoid a lengthy extradition process by deporting Gatton. Those attempts, however, have been snagged by his refugee claim, which Canadian officials said he made at a hearing shortly after his arrest.
Initially, the Baltimore state's attorney issued a first-degree-murder arrest warrant for Gatton, calling for a maximum penalty of death by lethal injection.
But on July 7, homicide detective Kevin Buie and state's attorney Sharon Holebeck traveled to Vancouver and assured Canadian officials that Gatton's crime did not fit the profile of a death-penalty case, Buie said.
Gatton apparently is not convinced and plans to take the death-penalty and prison-crowding issues before a Canadian refugee determination committee. Canada banned the death penalty in 1976, and laws there say immigration judges do not have to deport a fugitive who faces the death penalty.
Canadian immigration officials say "a few" Americans have sought protection from the death penalty in Canada, but say the prison-crowding argument is unique.
"Obviously, [Maryland's] death-penalty statements will come into play in our decision to deport him," said Murrey Wilkinson, the administrative judge for Vancouver's Immigration Enforcement Division. "But as far as refugee status goes, we have to wait and see."
After today's deportation hearing, where Wilkinson said Gatton will likely be ordered deported, his case moves to a two-judge panel that reviews and investigates refugee claims. The panel is expected to take six months to rule. Gatton may then appeal the decision.
While awaiting the hearing, Gatton has been held in the Vancouver Pre-trial Center, described by jail officials as maximum security. He would be released from jail if he is granted refugee status, said Lucie Angers, a Canadian Department of Justice extradition lawyer.
That possibility has bewildered some immigration experts.