David Drumm 's lawyers will have to prove that he is not a flight risk if he is to avoid custody during what could be a lengthy extradition process.
In such cases in the US individuals are not entitled to a presumption that they will be granted bail.
David Drumm will appear before a magistrate judge in the extradition proceedings on Tuesday. The Boston Herald reported that Mr Drumm would appear before magistrate judge Marianne Bowler at the Moakley Courthouse in Boston on Tuesday morning.
A spokeswoman for the US Attorney’s office in Boston declined to confirm the name of the judge that Mr Drumm would appear before, saying that she would know the judge before Tuesday’s appearance.
The hearing will not be a trial on the merits of Mr Drumm's extradition back to Ireland to face criminal charges but will instead be a probable cause hearing. This will limit what his lawyers can present in evidence. The Magistrate Judge can seek a pre-hearing memorandum if they are unfamiliar with extradition proceedings.
In extradition cases, individuals are not entitled to a presumption that they will be granted bail. Mr Drumm’s lawyers will have to prove special circumstances and that he is not a flight risk, which could be difficult for the former Anglo banker if the opposing lawyers argue that he has refused to return to Ireland for years and declined to cooperate with the Garda investigations into the bank.
The special circumstances permitting bail could be that the extradition proceedings could be unusually long and complex, particularly if Mr Drumm is intent on fighting the extradition.
His lawyers can defend him against extradition before the federal magistrate or judge by filing habeas corpus relief in court. This would bring him before a judge and seek his release unless the government’s lawyers can show there are lawful grounds for his detention.
An order of extradition cannot be directly appealed but it can be challenged on the habeas corpus petition to the US District Court and, if needs be, to a federal appeals court. In the case of Massachusetts, this would be the US Court of Appeals for the First Circuit.
Failing in the courts, Mr Drumm can seek relief from an order of extradition by making a direct appeal to the US Secretary of State.
Challenging extradition through the US courts can take years, as the extradition of IRA man Joseph Doherty from the US to Ireland, which lasted eight years, showed in the 1980s and early 1990s.
“It depends on whether he has real issues on whether he can fight,” said one Boston lawyer who has defended clients against extradition of Drumm’s chances of challenging his extradition.
“With extradition cases federal courts are pretty cognisant of the fact that these cases should move quickly. There is an unwritten rule that the cases be moved along.”
