Alabama politics overturns no death penalty agreement for killer

FOR criminal lawyer Adrian Braithwaite and his client, Gabe Watson, a meeting with immigration a fortnight ago was meant to be a formality.

FOR criminal lawyer Adrian Braithwaite and his client, Gabe Watson, a meeting with immigration a fortnight ago was meant to be a formality.

Watson is a citizen of the US. He calls Alabama home. After the death of his wife, Tina, during a scuba dive while on their honeymoon in Queensland in 2003, he was the subject of an exhaustive police investigation to determine whether something initially written off as a tragic accident might in fact have been a case of cold-blooded murder.

As Tina's parents campaigned relentlessly in Australia and the US because of their unshakable belief their daughter had been killed by her new husband, Queensland police were spurred into action. The public clamour for justice has been loud and unending.

The short summary is that Queensland police painstakingly developed a brief of evidence they believed would support a murder prosecution, but the Office of the Director of Public Prosecutions had doubts whether it would succeed.

A deal was hatched. Watson returned to Australia voluntarily in May 2009 -- waiving his right to force an extradition battle that could have prolonged the matter several years -- and agreed to plead guilty to the lesser charge of manslaughter by criminal negligence. He was sentenced to effective prison time of 12 months and this was increased to 18 months after an appeal by Queensland's Attorney-General, Cameron Dick.

But Watson knew he was still a wanted man.

Alabama's electioneering lawmakers, highly critical of the plea deal and scathing of the length of the prison sentence in Queensland, had been engaging in a public debate for months about his fate back home.

The Alabama authorities had pledged he would be indicted for murder on his return home -- where murder attracts the death penalty.

After months of wrangling with Queensland, however, Alabama also pledged he would not be executed if found guilty.

On October 28, with Watson's scheduled release from the Brisbane prison looming (he was freed yesterday), Braithwaite went to see him. His intention was to give Watson some personal effects -- a mobile phone to call his second wife, a Rabbitohs jersey, and cash to buy soft drinks and snacks for the deportation flight to Alabama.

"I was just going out there to say 'goodbye, good luck, and here's your stuff'," Braithwaite told The Australian.

The timing of the Brisbane solicitor's last visit to see Watson in the prison would coincide with a meeting that two Immigration Department officers had asked Watson to attend.

And this is where the unusual case of the man dubbed the honeymoon killer took a strange and controversial turn.

Braithwaite: "The first time I became aware that something was seriously amiss was when we were in the interview room at the jail and the immigration officer said, 'Gabe, as you know, we came out to see you a short while ago, we showed you some paperwork and you signed it, and the lawyers in Canberra have said that the paperwork was not really satisfactory'.

"Then they slid over a single page. I read it and when I got to the sixth dot point I nearly fell off my chair."

The document, stamped with the Immigration Department's insignia, is headed "Informed Request for Removal Statement", dated October 28.

It says near the foot of the page: "I acknowledge that I may be charged with capital murder or other serious offences upon my return to the USA, and the implications of the possible court processes in the US have been explained to me. I am aware that these charges may result in my execution if I am convicted."

The statement that Watson faced the death penalty was contrary to all the assurances given in the preceding months. At the 11th hour, it seemed the public statements by Dick -- Queensland's Attorney-General -- that Watson would not be executed in Alabama over Tina's death were worthless. Dick had received these assurances in writing from Alabama's then Attorney-General, Troy King.

"Until we received that document, Gabe was going back to the United States voluntarily. The plans were well advanced for him to be deported," says Braithwaite.

"He was looking forward to going home and he knew he would have another fight. He knew he faced a murder indictment when he stepped off the plane in Alabama -- but we had been assured that the death penalty was definitely, absolutely, off the table. And then at this meeting in the jail he's asked to sign the Immigration Department's piece of paper that says the death penalty is possible. I was speechless, I almost fell off the chair."

Braithwaite ran his pen through the line about the death penalty and made it clear Watson would acknowledge nothing of the sort. His plan to return voluntarily was terminated. Watson wrote on the document: "Based on the acceptance of undertakings from Troy King to the Queensland (Attorney-General), I assume execution is not a possibility if convicted."

Braithwaite went back through all the public statements and correspondence released by Dick, who was concerned to ensure -- during the public clamour for Watson to be dealt with again in Alabama -- that Australia's international and domestic legal obligations were followed. In short, Australia cannot deport people to countries in circumstances where they face the death penalty.

Dick had rejected increasingly vociferous demands that he hand over Queensland's evidence because he wanted an iron-clad undertaking there would be no prospect of a death penalty. This changed on September 6 when the Attorney-general said he had authorised the release of further evidence "after Alabama authorities provided a binding undertaking to not pursue the death penalty".

Dick confirmed to The Australian yesterday that he had been advised, and assured, of the binding nature of the Alabama undertaking by Queensland lawyers as well as lawyers from federal Attorney-General Robert McClelland's department.

"I have a duty to act according to the law, not public demands. We were determined to uphold opposition to the death penalty," Dick said. Dick was at a loss, however, to explain the about-face by the Immigration Department with its document spelling out Watson's potential fate.

Braithwaite is in no doubt that had Watson signed it, and had he been executed, the Australian government would have been able to rely on the document to say Watson knew what he was facing.

According to Braithwaite, he returned to his office after the prison visit a fortnight ago still staggered by the turn of events. Then he received a telephone call that day from a senior immigration officer, Deirdre Russack. He said he asked her why the line about Watson facing the death penalty had been written into the document. Why were the goal posts suddenly being moved?

Braithwaite set out the conversation with Russack in his eight-page letter the next day to federal Attorney-General McClelland. Braithwaite says Russack told him McClelland "did not believe that it was safe to rely upon the assurances" of Alabama that Watson would not be executed, and that the department encouraged him to seek specialist criminal law counsel in the US.

Braithwaite told McClelland that Russack advised that it was not safe to rely upon the assurances because the agreement had been reached between the states of Alabama and Queensland only, rather than federal agencies; that the undertaking was "provisional" and for that reason not binding; and that McClelland was not satisfied that any undertakings would be binding on King's successor as Attorney-General of Alabama.

Braithwaite was told that if Watson did not sign the acknowledgment document, the Immigration Department would have to get an undertaking from the US federal Attorney-General to satisfy itself that Watson could not be executed if convicted of murder in Alabama. This would stall the deportation for weeks and possibly months.

Braithwaite's letter to McClelland pulls no punches. It states that if Watson's solicitor had not been present, Watson would have "unwittingly signed a document which served only to absolve yourself and your department of blame, and 'backdoor' your local and international legal obligations, should he in due course be tried and executed. It would have been a document that the government could have held up in justification for the deportation and said 'he acknowledged execution was a possibility . . . he went voluntarily'."

According to Braithwaite's letter, Russack said McClelland's "pessimism as to the legality and validity" of the Alabama undertaking should be kept confidential "due to the potential implications to international diplomacy".

McClelland did not reply to Braithwaite's letter and his spokesman did not dispute the assertions when contacted by The Australian, but yesterday -- after their publication -- he described the claims as wrong and defamatory. However, he said he would not be releasing the relevant documentation.

"I have never adopted the position, nor has my department provided advice to the effect, that the assurances provided by the Alabama Attorney-General to the Queensland Attorney-General are 'not safe'," McClelland said in a written statement.

A key part of McClelland's rebuttal is that the assurances from the Alabama Attorney-General to Dick were given in the particular context of Queensland providing evidence to Alabama, distinct from assurances sought for immigration purposes.

"The Australian government consults with foreign national governments in relation to any such assurances," McClelland said.

McClelland's statement means that the same assurance -- that Watson would not face the death penalty -- was acceptable for a state Attorney-General to rely on to provide Alabama with boxes of evidence, but not acceptable for the federal government to rely on when it came to Watson being returned to the deep south.

"No issue of the 'importance of maintaining international relationships' has been a relevant consideration in this matter in terms of the involvement of my department," McClelland said.

"The government is committed to complying with our obligations under international law in this case and that is why the government is taking active steps to ensure Mr Watson does not face a real risk of the death penalty upon his return to the United States."

Donald Rothwell, professor of international law, ANU College of Law, said it was a remarkable and unique case complicated by Queensland's "naive" view that it could accept on face value the death penalty assurances from Alabama.

"The only way that legally binding assurances could be given would be at a US government level to the commonwealth. One of the great ironies is that if Gabe Watson had been subject to extradition to the US, he would have enjoyed enormous legal rights. Instead, this case has fallen into a black hole because of its particular circumstances."