Amanda Knox and Double Jeopardy
The American justice system is unique.
Amanda Knox has been found guilty in absentia by an Italian appeals court of a murder for which she was previously acquitted.
CNN (“Amanda Knox found guilty of murder again by Italian court“):
An Italian appeals court convicted former exchange student Amanda Knox and her ex-boyfriend Raffaele Sollecito on murder charges Thursday night.
Prosecutors said the couple had killed Meredith Kercher in November 2007. They were convicted two years later of murder, but those charges were overturned on appeal in 2011.
A judge said Thursday that Knox, also convicted of slander, was sentenced in absentia to 28 1/2 years in prison. Sollecito’s sentence was 25 years.
Knox, who was at home in Seattle, Washington, said her conviction would bring no consolation to the Kercher family.
“I am frightened and saddened by this unjust verdict,” she said in written remarks. “Having been found innocent before, I expected better from the Italian justice system. The evidence and accusatory theory do not justify a verdict of guilt beyond a reasonable doubt. …There has always been a marked lack of evidence.”
She called the legal proceedings a travesty.
“This has gotten out of hand. Most troubling is that it was entirely preventable,” she said. “I beseech those with the knowledge and authority to address and remediate the problems that worked to pervert the course of justice and waste the valuable resources of the system.”
I have no opinion as to the facts of the case, including whether Knox and her boyfriend committed the murder in question. I simply haven’t followed the case with any interest.
What’s interesting to me here is the matter of Knox being subject to what would be considered double jeopardy in the US system. While my instinct is that, even though we have an extradition treaty with Italy and consider them a close ally, we would refuse to extradite Knox on those grounds, there is some debate on that score. AP:
Experts have said it’s unlikely that Italy’s justice ministry would request Knox’s extradition before the verdict is finalized by the country’s high court.
If the conviction is upheld, a lengthy extradition process would likely ensue, with the U.S. State Department ultimately deciding whether to turn Knox back over to Italian authorities to finish serving her sentence.
[…]
Under the terms of the extradition treaty between the U.S. and Italy, the offense must be a crime in each country and punishable by more than one year in prison.
Any request to extradite Knox would go to the U.S. State Department, which would evaluate whether Italy has a sufficient case for seeking Knox’s return. If so, the State Department would transfer the case to the Justice Department, which would represent the interests of the Italian government in seeking her arrest and transfer in U.S. District Court.
American courts have limited ability to review extradition requests from other countries, but rather ensure the extradition request meets basic legal requirements, said Mary Fan, a former U.S. federal prosecutor who teaches law at the University of Washington in Seattle.
“The U.S. courts don’t sit in judgment of another nation’s legal system,” Fan said.
Fan suggested that any decision by the State Department on whether to return Knox to Italy is “a matter of both law and politics.” From an American standpoint, the case at first seems to raise questions about double jeopardy — being tried twice for the same offense, as barred by the U.S. Constitution. Knox was first convicted, then acquitted, then, on Thursday, the initial conviction was reinstated.
Some observers have dismissed the double-jeopardy issue because Knox’s acquittal was not finalized by Italy’s highest court.
That said, creative defense lawyers might make an effort to fight extradition over concerns about the legal process or the validity of the conviction, Fan said, and those arguments could carry political weight too. “Many Americans are quite astonished by the ups and downs in this case, and it’s the U.S. that will ultimately be making the call about whether to extradite,” Fan said.
[…]
Christopher Jenks, a former Army attorney who served as a State Department legal adviser and now teaches at Southern Methodist University’s law school, said Italy has a low bar to clear in compiling a legally sufficient extradition request.
“There would be a political or policy decision to be made by the State Department, but it’s got to be founded in law or in reason,” he said.
Jenks noted that the extradition treaty works both ways.
“If the U.S. ever wants to have any chance of extraditing an Italian murder suspect who has allegedly killed people in the U.S.,” he said, “you have to give to get.”
Well, yes. But no country, much less a superpower, is going to turn over one of its citizens to another government to serve punishment that goes against its own principles of justice. Many very strong American allies, for example, routinely refuse to extradite their citizens for capital crimes because they consider the death penalty abhorrent.
It’s worth noting, though, that the United States is virtually alone in its strict interpretation of the double jeopardy doctrine (with some caveats that I’ll address later). Even though the principle was enshrined in the British Common Law centuries before the colonization of North America, the UK has long recognized exceptions, especially in murder cases. Similarly, while most European Union and Commonwealth countries have basic double jeopardy protections, there has been movement in recent years to grant exceptions in cases where the interests of justice demand it, such as proof that the accused perjured himself in trial or finding of major new evidence that makes guilt clear.
In the United States, while there is an iron-clad rule against a defendant being retried by the same sovereign if he’s found not guilty at any stage, there are loopholes. Most egregiously, a person acquitted by a state court for an offense may be tried a second time in federal court if the offense is also a violation of federal law; the courts have ruled, outrageously in my view, that this does not constitute double jeopardy. Further, and much more reasonably, in the event of a mistrial or other dismissal of a case without finding of fact—or, reversal of conviction on appeal on procedural grounds—subsequent trials are considered de novo. And, of course, as the O.J. Simpson case demonstrated, acquittal (or for that matter, conviction) in a criminal court does not preclude being sued for civil damages over the same set of facts.
Based on my very limited understanding of the Italian judicial system and the facts of this case, I must say that I don’t find the “double jeopardy” here particularly egregious. Knox was in fact convicted by the trial court. In the US system, at least, that’s the level where matters of fact are settled. That conviction was reversed on appeal because, according to press accounts, the six judge panel decided that the DNA evidence used at trial was less than compelling and there were questions about the conduct of police. In the American system, this would almost certainly not have led to an outright acquittal but rather a vacating of the original verdict with prosecutors left to decide whether to retry the case without the evidence thrown out by the higher court.
Given that Knox was in fact acquitted on appeal and is now residing in her home country, it would be inappropriate, in my view, for the United States to extradite her. But the new verdict doesn’t strike me as a damning indictment of the Italian court system. They do things differently there but it’s not obvious that their way is worse than ours.
UPDATE: Doug Mataconis points me to more legal opinions saying we would likely extradite in this case:
“As popular as she is here and as pretty as she is here — because that’s what this is all about, if she was not an attractive woman we wouldn’t have the group love-in — she will be extradited if it’s upheld,” said Harvard law professor Alan Dershowitz.
While Knox has won a great deal of support in the United States where she is seen as the innocent victim of a miscarriage of justice, Dershowitz said there are no legal grounds for preventing extradition.
Nor would it play well diplomatically, given that the United States demands more extraditions than any other nation, he said.
“The Italian legal system, though I don’t love it, is a legitimate legal system and we have a treaty with Italy so I don’t see how we would resist,” he told AFP.
“We’re trying to get Snowden back — how does it look if we want Snowden back and we won’t return someone for murder?” he asked, referring to fugitive intelligence contractor Edward Snowden.
Knox’s supporters argue she should be protected from extradition because the Italian system — which allows prosecutors to appeal a verdict — violates the US legal prohibition on double jeopardy: trying someone twice for the same crime.
Legal experts attach little weight to this argument.
“They always forget she was convicted first,” said Julian Ku, who teaches transnational law at Hofstra University.Knox and her former Italian boyfriend Raffaele Sollecito served four years in prison for the murder before being released after an appeal led to their 2011 acquittal.
The Italian Supreme Court overturned that ruling in 2013, sending the case back for re-trial.
Italy must first file an extradition request with the US State Department, which will then determine if it should ask the Justice Department to detain Knox.
Knox then has the right to challenge her extradition in a US court.
“The chances of her winning that are not high because there has to be some very strong claim she’d have to make to block her extradition,” Ku said in a telephone interview.
Aside from the misreporting—there was no re-trial, merely elevation to the next appellate level—that’s an interesting perspective. Again, I certainly don’t think the Italian system has demonstrated itself any less legitimate than our own in the conduct of this case. But it would strike me as a travesty to send an American citizen overseas in violation of our own fundamental Constitutional precepts.
At least according to the press reports I’ve read so far, it appears that the US may have no legal avenues to justify refusing to honor a proper request for extradition under the treaty.
Even were we to concede that the Sollecito/Knox trial was not a true double jeopardy violation, we still have the issue that, after a superior court decided as a matter of law that particular evidence is unreliable, the new trial court thereafter relied upon that very same evidence to again convict two people of murder. And the problem of the court accepting a guilty plea from another person (Rudy Guede, the victim’s boyfriend) on a theory factually inconsistent with the theory that Sollecito and Knox murdered Ms. Kercher. But I’m not prepared to acquit Italy of wreaking injustice for violating the principle of double jeopardy just because my own country and others also have less-than-solid records on the same subject.
Brazil has laws against double jeopardy. I´m talking about Brazil because I know the country´s legislation, but I imagine that many other countries have similar laws.
http://www.ambito-juridico.com.br/site/?artigo_id=10322&n_link=revista_artigos_leitura
@Doug Mataconis: Thanks. I’ve updated the post with some excerpts from that piece.
@Andre Kenji: It’s a pretty universal principle in civilized countries. It’s just that the United States is more doctrinaire about enforcement. Similarly, few if any other countries have something like the Exclusionary Rule, which frequently allows obviously guilty people go free because of errors by the police.
The way they do things there isn’t just different, but entirely foreign to anything we recognize as jurisprudence. Case in point: Silvio Berlusconi.
Regarding extradition, that´s a very complicated issue, most countries refuses to extradite non-violent offenders all the time. Italy refused to extradite a Italian-Brazilian banker in 2000, arguing that Brazil refused to extradite a Lebanese that had Brazilian Citizenship in 1997.
Remember, James, the law is an ass. It doesn’t matter what rules of justice would apply here but what rules apply in Italy and what the governing statutes and precedents on extradition are here. As Doug pointed out in his comment above, those point towards extradition.
My recommendation is that, if you want to be judged under the laws of the United States, stay here.
@OzarkHillbilly:
I guess he wouldn’t have been tried at all. Case in point: George W. Bush.
A government that plays catch and release shouldn’t harbor regrets.
I don’t know a lot about it, but I do know that the Italian court system has a history of retrying until they get the verdict they want: Maybe the third time’s the charm.
@Dave Schuler:
I agree with that up to a point. I seldom advocate that the US Government involve itself in cases of Americans who get in trouble with the law in foreign countries. The difference here, though, is that Knox is physically inside the United States. It strikes me as odd, indeed, to round her up and send her to another country’s prison when she’d be free and clear here.
From what I’ve read about the case, the conviction in the first place was farcical. (Remember that another man was convicted of the murder, apart from these two.)
I would hope that diplomacy would play a role here – Italy might be convinced it’s not in its best interest to push for extradition.
OTOH, the UK tabloid press seems convinced that Knox is guilty – because they pander to idiots – so I wonder what the UK is up to behind the scenes.
Even beyond the double jeopardy issue, could Knox make some sort of due process claim on the basis that Italy has already convicted someone else for the murder of Meredith Kercher under a complete different theory of the crime?
@Anderson:
Would the US tabloid press have acted differently the murder victim had been an American?
Actually, the prohibition against double jeopardy was developed by the Inquisition under interpretations of Roman Law and Natural Law. (The first one, that was set up to deal with the Cathar heretics.) I don’t know if British Common Law developed the concept independently, or whether it was something that jumped over from Canon Law into Common Law (as a lot did.)
This is why countries even without a Common Law background have prohibitions against double jeopardy.
There’s a lot of stuff that we consider “Common Law” aspects that are actually from the standards developed by the Inquisition: the right to confront your accusers, the right to hear the evidence against you, etc. Some of the rules were “relaxed” as the Inquisition took on more Jacobinist aspects, but the original rules as set up are basically what we now consider legal requirements and the bare minimum for a country’s courts to be considered legitimate.
@James Joyner:
That’s two different subjects—the underlying offense and extradition. If Ms. Knox has been found guilty under Italian law of the underlying offense and our extradition treaties and legal precedent says we need to honor that then whether Ms. Knox would be guilty of the underlying offense under U. S. law isn’t relevant.
@Anderson:
Nancy Grace thinks she’s guilty.
@Anderson: I agree, it’s the same problem we see to often in the US of A – prosecutors and the police more interested in a conviction than justice. Now I don’t know if she is guilty or not but as you said the initial trial was “farcical.”
Where I see they have a problem is that the government has now had her conviction reinstated even though they accepted a guilty plea from someone else for the crime. A confession by someone who committed the murder independent of Knox and her boyfriend. In the U.S., that is reasonable doubt and would get a case thrown out by the judge.
But as the post says, some of this is political. And this has the ability to become an issue of the U.S. government being complicit in a miscarriage of justice (imprisonment for a crime someone else has confessed to) upon an US citizen by forcibly removing her from US territory. It could be made into a presidential issue by Knox supporters. It plays well in the tabloids and tabloidy websites, especially the British papers where many American now turn for news.
@Rick Almeida: Nancy Grace is not a reliable source. I assume this was snark on your part.
@Rick Almeida: I’d expect that HM Government in the UK is influenced by the Sun pronouncing Amanda Knox a slutty murderess — to a degree shockingly similar to the degree that the US government is influenced by Nancy Grace expressing her thoroughly predictable opinion in her drearily shrill trademark style. That is to say, somewhere between “negligible” and “none detected.”
@Rick Almeida: Rick, I rest my case.
Not sure who she is, but wow, she looks beautiful in that picture.
The Italian Court system (loosely applied terms) is based solely on politics and influence, not justice. A reporter from the US was accused of being a serial killer in Florence a while back. Total nonsense.
Italy is still beholden to the US: in WWII the Allies went in there and kicked the Nazis out.
You might want to mention that the federal exception to the double jeopardy rule arose in the context of blatant jury nullification of crimes against Black Americans in the South during the Jim Crow era (at least according to what I remember my crim law professor saying about 25 years ago).
Outrage can cut two ways. Should Klansmen have really walked free?
@Dave Schuler: I think you may be blending a couple of different things. One is whether the underlying conduct is considered criminal under U.S. law (murder definitely is, while offenses like Christianity or homosexuality are not). We would not send someone back to face punishment for being a Christian or homosexual; just as some of our enlightenment brethren will not extradite statutory rapists. OTOH, Americans need to be aware of local laws and not publicly flaunt them since there may be little the U.S. could do in most situations.
The other issue is whether the Italian criminal justice system established the underlying offense. Multiple inconsistent outcomes against her and others raise a question about whether she committed the crime. I think the U.S. should independently review the evidence, if we are going to be complicit in her punishment. (Still not clear why she wasn’t held pending second trial)
This is the same Italy that convicted Scientists for not predicting the future.
@Francis: “Should Klansmen have really walked free?”
Yes.
@ernieyball:
Yeah, any respect due to the Italian “justice” system pretty much evaporated with that bit of prosecution.
@Francis:
I don’t think they file the exact same charges in federal as were acquitted in the state courts. The acquittal is a serious “reasonable doubt” argument that has to be overcome. But they do file other federal charges that derive from the same body of evidence. Such as you can be acquitted of murder but found guilty of violating civil rights in federal court.
Where it gets to appear wrong is when they don’t even consider federal charges until after the state courts acquit. Then it’s suddenly a need to “get” the person.
@PD Shaw:
Since the underlying offense (murder) is considered criminal both in the U. S. and Italy, I elided over the possibility that there can be conflicts as to whether the underlying offense is a crime or not.
My central point is that the question is not “what is just?” but “what is the law?”
@Tyrell:
Which was only after the Italians had been Nazi allies for twelve years. Once it was clear they and the Germans were losing, the Italians switched sides.
@grumpy realist: I did not expect the Spanish Inquisition to make an appearance in this thread.
@Tyrell:
Did you forget the Italian Fascists?
Fascist? You know, the kind of people that was part of the last right wing government in Italy?
I did not expect the Spanish Inquisition to make an appearance in this thread.
http://www.youtube.com/watch?v=jbcyiFt5VEs
Thank You Mel Brooks (again and again)
@ Pinky
This woman is caught up in a nightmare, and “what a babe” is your contribution?
Did we do that because it was a good and necessary thing to do, or did we do it so we could present a bill for services rendered more than half a century later?
@JKB:
So, I’m guessing that you don’t have any respect for the US justice system either? Or any other justice system?
Looking at Knox, I find it hard to believe she’s the same age as my daughter. It’s in the eyes…they just look so old. What a toll this horrible roller-coaster ride has taken.
@James Joyner: “Similarly, few if any other countries have something like the Exclusionary Rule, which frequently allows obviously guilty people go free because of errors by the police.”
And if the Roberts court doesn’t have a change in makeup soon, we won’t have anything like it either.
Since they have that Ivory Coast thing in prison for the murder of the White Lady Ms. Kercher, case closed. Those things always commit murder, robbery and rape.
Amanda should just change her name. And if the cops ask who she is she should answer in Italian, “I donta knowa.” If I were that cop, I’d say, “It’s not her. I can’t find her.”
@TSK:
Wow. I mean, holy shit, wow.
@ernieyball: NOBODY expects the Spanish Inquisition! – Graham Chapman
@PJ: Touche!
The crucial point is not that she was first convicted, or that the verdict is not seen as final during any of the appeals. The problem is that the first appeals court conducted a “trial”. The appeals court heard evidence, reviewed evidence, rendered factual findings and weighed credibility. Jeopardy attaches after an acquittal. In the US, the judgment of sentence is not considered final until the close of all direct appeals. However, jeopardy attaches at the trial court level, upon an acquittal. When a defendant is convicted, and requests a new trial, they waive double jeopardy protections and a second trial is allowed. Even where there is a conviction (let’s say, for example, the defendant is charged with first degree murder, but is convicted of second degree murder), jeopardy attaches. The government cannot obtain a new trial as to degree of guilt. Here, knox is a US citizen. The question will be balancing a treaty against her constitutional protection against double jeopardy. Would extradition violate her protection against double jeopardy. Looking at the case law, while this hasn’t been answered, cases not involving extradition have firmly held that the trial after acquittal violates double jeopardy.
@JKB: “I don’t think they file the exact same charges in federal as were acquitted in the state courts.”
Not always, but some times. Robert Angleton was acquitted of murdering his wife by a Texas state jury and then prosecuted for murdering his wife by the feds. (The federal charge of murder for hire” essentially required the feds to prove that he had murdered his wife under Texas law) The Court of Appeals refused to dismiss the case, holding that
Angleton then fled to the Netherlands, which refused to extradite him for murder charges because he had been acquitted. (I don’t know how that matches up with the treaty mentioned up above) They did extradite him on tax evasion, for which he ended up serving twelve years.
We don’t need some foreign country trying to tell us what to do or kidnapping our citizens. That was settled by the War of 1812.
@Mikey: yeah, hopefully your daughters nothing like her.
@bill: I’ve never met Amanda Knox, so I’ve no idea if they’re alike at all, except they’re both pretty. I think if my daughter were to study abroad, she’d go to Germany anyway.
@Mikey: i’ve never met her either- hopefully she wouldn’t be involved in covering up a murder, let alone participating in one.