Emotion Colors Legal, Political Issue : High Court Blocks Deukmejian’s Order in Child Abduction Case

SAN FRANCISCO —  To all appearances, the extradition case of Richard Smolin was routine, one of thousands of such cases that Gov. George Deukmejian’s office processes each year.

There was no need even to study the facts. Smolin never denied that he and his father, Gerard, took Smolin’s two children from a street corner near his former wife’s home outside New Orleans and brought them home to Yucaipa in San Bernardino County.

But two years after Deukmejian ordered the Smolins returned to Louisiana, where they are charged with kidnaping, the case is far from over. In fact, it has taken on a new and complicated life.

In May, the state Supreme Court blocked their extradition, because Richard Smolin had a California court order granting him custody. Therefore, he had a right to get his children and had committed no crime, the court said.

Appeal Considered

The ruling brought sharp criticism from aides to Deukmejian and Atty. Gen. John Van de Kamp. Those aides say it undermines the governor’s constitutional authority to extradite and raises the possibility that courts will intervene. Van de Kamp is considering an appeal to the U.S. Supreme Court, a move that the Deukmejian Administration advocates.

The case has become not only a constitutional question but a political issue. Smolin has won support from several politicians and an evangelist, all of whom want Deukmejian to drop the case.

Beyond law and politics there is emotion. In a letter to Deukmejian, Smolin’s daughter, Jennifer, wrote: “Do you realize what this is doing to my family? I’m only 13, but I can tell when a family is being ripped apart.”

The high court, she pointed out, said her father is innocent.

“So if there was no crime committed, why do you still want my dad and grandpa in jail?” Jennifer demanded. She and her brother, Jamie, 11, said in phone interviews that they want to remain with their father, a San Bernardino County deputy public defender.

The case began as a custody dispute. Smolin’s former wife, Judith, initially had custody of the children, and Smolin had visiting rights. But then she remarried and moved from San Bernardino County, first to Oregon, next to Texas and finally to Louisiana, where, now Judith Pope, she became a paralegal for a New Orleans law firm.

Smolin had trouble following her moves. Worried that he would lose contact with his children, he won a court order in 1981 in San Bernardino giving him sole custody. He did not act until March, 1984, when he and his father arrived in Louisiana and took the children from a bus stop.

Kidnaping Charges

But as a result, the district attorney in St. Tammany Parish, La., where the incident took place, filed kidnaping charges and asked California to return the Smolins.

Pope said she believes that her ex-husband should be prosecuted, but should not serve prison time. “It has to be wrong for anybody, regardless of what kind of paper they have, to snatch children off the street,” she said. “There is something very wrong about what he did.”

She said she knows the situation is difficult for her children, but added: “I can’t just stand by and let something that is so wrong happen. . . . He knew the game was dangerous when he played it.”

The Smolin custody dispute ballooned into a conflict over extradition law in 1984 when Deukmejian tried to honor Louisiana’s request for Smolin’s return. Smolin appealed to San Bernardino County Superior Court Judge William P. Hyde. The judge, citing the 1981 custody order, ruled Smolin could not be extradited because he had legal custody.

In upholding that decision in May, the state Supreme Court fashioned an exception to the law that had given the governor sole authority to extradite. In the 6-1 ruling, the justices said people who can prove that they are innocent by producing a California court’s documents are not “substantially” charged with a crime--and only people who are substantially charged with a crime can be extradited.

Dennis Riordan, the Smolins’ San Francisco lawyer, said the ruling is so narrow that he doubts it will apply to more than one case a year.

“And if there is an instance once a year . . . then so be it. That is one miscarriage of justice a year that will be avoided,” Riordan said.

Aides to Van de Kamp and Deukmejian said the ruling means that any target of an extradition could get a court hearing by claiming innocence.

“If that decision stands, it represents very significant reduction in the governor’s extradition powers,” said Assistant Atty. Gen. Steve White, who is in charge of Van de Kamp’s criminal division.

‘Two Full-Blown Trials’

White said the ruling could greatly complicate extradition proceedings, leading to “two full-blown trials”--one to decide extradition and one for the crime.

“What is at stake here is a principle of law,” said Vance Raye, the governor’s legal affairs secretary. “The legal principles are of utmost importance. . . . It would be nice if there were some informal way of resolving this case, but that is not happening.”

Harry Pastuszek, a prosecutor in St. Tammany Parish, said he hopes that Van de Kamp does file the appeal. As it is, Louisiana authorities can do nothing more about Smolin unless the state court ruling is overturned by the U.S. Supreme Court.

“What is boils down to is this: Are we going to allow people to swoop down and pick up children?” Pastuszek said.

In the midst of the legal wrangles, Jennifer Smolin stepped in by writing to the governor and asking for a meeting. She said she and her brother would be out of school in mid-June and would be available any time after that. Raye declined.

Van de Kamp, who also received a letter from Jennifer, did agree to a meeting--but only with Riordan and not with the children.

“This is not the kind of thing that ought to be handled in an emotionally charged atmosphere,” White said. He added, however, that the case raises “important issues, and we think the issues involved warrant the opportunity to sit down with Mr. Riordan.” White also noted that even though Van de Kamp will meet with Riordan on Aug. 28, the appeal to the U.S. Supreme Court is still being prepared.

Smolin, meanwhile, fears that if he returns to Louisiana, he might go to jail, at least for a short time. That might allow his wife to seek custody of the children.

Politicians’ Support

Smolin is pressing his efforts outside the court system and has won letters of support from some politicians, among them Sen. Ed Davis (R-Valencia), Rep. George E. Brown Jr. (D-Colton), Sen. Nicholas C. Petris (D-Oakland) and Assemblyman Bill Bradley (R-San Marcos).

Smolin also mentioned the situation to a friend who contacted an Escondido pastor, Harold Bredesen, who long has been involved in politics and is on the board of directors of the Christian Broadcasting Network.

Bredesen in turn phoned Jim Spillers, a Louisiana oilman who is involved in the Bredesen-founded Christian Oilmens’ Assn. Spillers said he is asking Louisiana officials to take a second look at the matter.

“It is just the Christian thing to do,” Spillers said.