USA – MA – WALSH – 1999

USA – MA – WALSH – 1999
WALSH v WALSH. The court stayed its order to return the children to Ireland in order to determine the applicability of the fugitive disentitlement doctrine. The court, for reasons stated, denied the motion to dismiss. However, they stayed the order to return the children pending appeal.


In re the Application of John Walsh (D.Mass. 1999)8 International Abduction [USA 1999]


In re the Application of



No. 98-11638-WGY



June 11, 1999

A. Introduction

001 On December 18, 1998, this Court entered a Judgment
and Findings of Fact and Conclusions of Law (collectively,
“the Order”) granting the petition of John Walsh under the
International Abduction Remedies Act (the “Act”), 42 U.S.C.
 11601-11610 (1998), thereby requiring the return of his
two young children, Eoghain and Mary Kate Walsh, to Ireland,
their country of habitual residence. See In re the
Application of John Walsh, 31 F.Supp.2d 200 (D. Mass. 1998).
In significant measure, this Order vindicates the dignity of
the courts of Ireland. See id. at 207. While preparations
were being made for the children’s return, the children’s
mother, Jacqueline Walsh (“JacquelIne”), and their aunt,
Martha Miller, filed a Motion to Dismiss or Vacate the Order
on the basis of the “fugitive disentitlement” doctrine.

002 Under certain circumstances, the doctrine of fugitive
disentitlement permits a court to dismiss proceedings
brought before it by an individual who has challenged a
court’s dignity by fleeing its jurisdiction. This doctrine
is potentially relevant to this action because the
petitioner, John Walsh, fled the United States after he
became the subject of a default warrant for assault with
intent to murder in the Commonwealth of Massachusetts. While
the Findings of Fact underlying this Court’s Order have been
determined and will not be reconsidered or disturbed, this
Court stayed its Order for thirty days to consider the
applicability of the fugitive disentitlement doctrine to the
established record even though this legal challenge to the
petition was not raised at trial.

B. Background

003 The facts of this case are described in great detail
in the Order and will only briefly be recounted here. In
1993, John Walsh was arrested by the police in Malden,
Massachusetts for assault with intent to murder a neighbor
who he believed “had dealt the drugs that caused the death
of another Malden youth from an overdose.” Id. at 202. After
his arraignment in 1994, but prior to trial, John fled to
his homeland of Ireland. See id. Jacqueline, John’s American
wife, was “[p]regnant with their second child [and]
followed” with their daughter Mary Kate. Id. A default
warrant for the arrest of John Walsh issued thereafter in
Massachusetts. See Id.

004 After a few years of drinking, violence, and legal
skirmishing, Jacqueline violated an Irish court order by
absconding with the two children to Massachusetts. See id.
Taking a sudden interest in his family, John Walsh filed a
petition under the Act seeking the return of the children to
Ireland. See Id. As described above, this Court granted the
petition but required John Walsh to make certain
preparations before the children were to be returned. See
Id. Just as those preparations neared completion, Jacqueline
and the children’s aunt, as an intervenor, brought the
instant Motion to Dismiss or Vacate.

005 John Walsh has conducted all of the described
litigation from his distant home in Tramore, Ireland and has
yet to make a personal appearance. This Court recently asked
the Attorney General of the Commonwealth of Massachusetts
whether he intended to “seek extradition of John Walsh under
the Treaty of Extradition Between the United States of
America and Ireland, T.I.A.S.. No. 108 13.” See Letter from
Young, C.J., to Massachusetts Attorney General Thomas Riley
of January 21, 1999, at 1. To date, the Attorney General has
not initiated any extradition proceedings.

C. Fugitive Disentitlement

006 The equitable doctrine of fugitive disentitlement
“limits access to courts by a fugitive who has fled a
criminal conviction in a court in the United States.”
Magluta v. Samples, 162 F.3d 662, 664 (11th Cit. 19-98). In
essence, this doctrine, were it to be applied in this case,
seeks to vindicate the dignity of the orders of the Maiden
District Court. Under the doctrine, courts can “sanction
parties where their fugitive status has some connection to
the proceeding.” Pharaon v. Board of Governors of Fed
Reserve Sys, 135 F.3d 148, 151 (D.C. Cir. 1998), cert.
denied, 119 S.Ct. 371 (1998) (emphasis added) (internal
quotations omitted). The Supreme Court has emphasized the
importance of this “nexus” requirement. See Ortega-Rodriquez
v. United States, 507 U.S. 234, 246 (1993) (refusing to
expand fugitive disentitlement doctrine and dismiss
proceedings for, “any conduct that exhibited disrespect for
any aspect of the judicial system” because “[s]uch a rule
would sweep far too broadly . . .”

007 Recently, under circumstances similar to the present
case, the Sixth Circuit invoked the doctrine of fugitive
disentitlement to dismiss a petition under the Act. See
Prevot v. Prevot, 59 F.3d 556, 566-67 (6th Cir. 1995). Even
though fugitive disentitlement is not contemplated by the
Act, the Prevot court held “nothing in the Convention or the
Act [] purports to strip an American court of the powers
inherent to it as a court.” Id. at 566. Since the
respondents essentially rest their entire argument on
Prevot, a careful comparison of the factual underpinnings of
Prevot to the record in this case is required. Such
comparison, coupled with recent Supreme Court teachings and
the absence of any active extradition proceedings against
John Walsh, counsel this Court to deny the Motion to Dismiss
or Vacate.

II. Prevot v Prevot

008 In Prevot, Jean-Claude Prevot brought a petition
under the Act to obtain the return of his two children to
France after his wife, Debra, had removed them to the United
States. See Id. at 558. Several years earlier, Jean-Claude
had fled the United States with Debra and the children to
avoid court ordered restitution payments that were part of a
plea arrangement entered in a theft charge against him in a
Texas state court. See id. at 558-559. By fleeing the United
States, Jean-Claude violated his probation and would have
faced a ten-year prison term were he to return to the United
States. See Id. at 559. Despite Mr. Prevot’s fugitive
status, the District Court granted the petition and ordered
the children returned to France. See Prevot v. Prevot, 855
F.Supp. 915, 922 (W.D. Tenn. 1994). On appeal, the Sixth
Circuit reversed and remanded with instructions to dismiss.
See Prevot, 59 F.3d at 567.

009 After exhaustively discussing the history of and
various rationales for the fugitive disentitlement doctrine,
and recognizing that its application to the Act was a matter
of first impression, the Sixth Circuit reasoned that the
petition should have been dismissed on the grounds that the
petitioner’s “fugitivity, and his actions, constitute abuses
to which a court should not accede.” Id. at 567. As for the
requisite nexus, the court stated:

010 Mr. Prevot’s flight and his subsequent
invocation of [the Act] were … “related
components of a general scheme.” He fled to
escape his criminal conviction and other
responsibilities to court, probation officers,
victim and government, and to assemble and
hold his family in a refuge beyond the reach
of American courts and American
responsibilities. In Mr. Prevot’s hands [the
Act] is a tool used to permit him to escape
American justice and responsibilities while
holding his children with him. Flight was but
one step, and [a claim under the Act] the
latest link, in a chain of proximately related
events that began with the Texas conviction
and ended in the district court proceedings in
this case. It is obvious that if Mr. Prevot
returned to the United States and was
imprisoned he could not successfully maintain
[a claim under the Act.] Either the habitual
residence of the children would have changed,
or they would no longer be in his custody, or
the exceptions relating to risk of harm to the
children would apply.


011 Respectfully, this Court cannot endorse the Sixth
Circuit’s reliance on Prevot’s tenuous chain-of-events
analysis to support application of the fugitive
disentitlement doctrine. The Prevot court merely glamorizes
an unrelated act of “judicial defiance” in contravention of
the Supreme Court’s teachings in Ortega-Rodriguez See
Ortega-Rodriguez, 507 U.S. at 246, n. 17. The reasoning in
Prevot renders the nexus requirement meaningless — any
flight from justice and later attempt to reunite family
could easily be dubbed a “chain of proximately related
events” and automatically disentitle a fugitive from
proceeding under the Act. FN01

012 Even if this Court chose to follow Prevot and
essentially abandon the nexus requirement, the fact that
John Walsh merely eluded a criminal allegation, rather than
a conviction, prevents this Court from extending the Prevot
holding to the facts of this case. As recounted above, the
Sixth Circuit emphasized that Mr. Prevot could not
“successfully maintain” a claim under the Act if he were to
return to the United States because he faced certain
imprisonment. Prevot, 59 F.3d at 567. Without a waiting
caretaker, the court could not have ordered the return of
the Prevot children to France. See id. Here, however, John
Walsh would return to face a fair trial with the
corresponding presumption of innocence. He might very well
return to Ireland after resolution of his case and
“successfully maintain” his petition. Accordingly, this
Court refuses to apply the fugitive disentitlement doctrine
in the absence of stronger precedent. FN02

E. EXtradition

013 As a final matter, although John Walsh has
participated in this litigation from his “hide-out” in
Ireland, see Intervenor Rep. Mem. at 1, he has never
actually been outside the reach of the Massachusetts
authorities. Under the Treaty of Extradition Between the
United States of America and Ireland, Jan. 3, 1985, T.I.A.S.
No. 10813, the United States and Ireland “agree[] to
extradite other, . . . any persons, including its citizens
or nationals, who are wanted for prosecution or imposition
or enforcement of a sentence in the Requesting State for an
extraditable offense.” art. 1. While this Court fully
recognizes that extradition is neither a straightforward nor
simple legal device, the failure of Massachusetts
authorities even to initiate extradition proceedings after
years and a direct inquiry by this Court suggests that,
given the array of other pressing issues confronting the
Massachusetts Attorney General, vindication of the warrant
of the Malden D Court is not particularly high on his list.
But see Cellucci Targets Backlog of Outstanding Warrants,
Boston Globe, Jan. 21, 1999, at F8 (discussing Massachusetts
Governor Paul Cellucci’s newly announced plan to make
fugitives more accountable to the courts in wake of recent
report of Senator Cheryl Jacques detailing backlog of
275,000 outstanding warrants). Thus, even if this court were
empowered to apply the doctrine of fugitive disentitlement
to this case, which it is not, it would be reluctant to
apply a protectionist doctrine in order itself to champion
the Commonwealth’s judicial system when the Commonwealth’s
own chief law enforcement officer appears unwilling to
devote enforcement resources to the same issue. Cf.
Ortega-Rodriguez, 507 U.S. at 246 (holding that Court of
Appeals should not have applied fugitive disentitlement
doctrine when fugitive had been recaptured because District
Court had “authority to defend its own dignity, by
sanctioning an act of defiance that occurred solely within
its domain”) (emphasis added).

F. Conclusion

014 For the foregoing reasons, the Motion to Dismiss or
Vacate is DENIED. However, in view of the fact that the
issues addressed in the Court’s December 18, 1998 Order and
the present Memorandum and Order concern matters of first
impression in the First Circuit, execution of the Order is
STAYED pending appeal.




1. The intervenor similarly attempts to elevate the
chain-of-events in this case to the level of a nexus
by stating that John Walsh “[set t]he international
stage.” Intervenor Rep. Mem. at 1; Jan, 20 Sess. Tr.
at 3. No matter what the chain of events is called,
it still does not constitute a nexus.

2. Counsel for John Walsh also argue that Prevot was
implicitly overruled by Degen v. United States, 517
U.S. 820 (1996), wherein the Supreme Court held that
striking a fugitive defendant’s pleadings in a civil
forfeiture action, and subsequently entering summary
judgment against him, was “too blunt an instrument
for advancing” the need to redress indignity visited
upon the District Court. Id. at While Degen certainly
is in tension with Prevot, it does not overrule
Prevot. The key distinction between Degen and Prevot
is the manner in which fugitive disentitlement was
asserted. In Prevot fugitive disentitlement was used
as a shield to prevent a fugitive from bringing
claims in an American court. In Degen, on the other
hand, the government attempted to use fugitive
disentitlement as a sword to prevent a fugitive from
responding to claims brought against him in an
American court. Degen also does not control the
outcome of the present case because the Supreme Court
acknowledge [d] disquiet” in the fact that the
fugitive in that case conducted his litigation from
Switzerland where he was not subject to extradition.
Id at 828. In this case, however, the fugitive in
question is subject to extradition. See infra Part E.

3. A review of the treaty clearly indicates that the
charge pending against John Walsh in Massachusetts is
an “extraditable offense.” See id. at art. 2.