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Amanda Knox And Extradition: More Likely Than You Might Think

Amanda Knox

In my post yesterday, I discussed the supposed double jeopardy issues raised by the legal proceedings against Amanda Knox in Italy and her re-conviction for the murder of British student Meredith Kercher last week. As I noted there, much of the analysis asserting that what happened to Knox would amount to double jeopardy under American law is based on two errors. First, there seems to be a misunderstanding of what actual double jeopardy is under American law. Additionally, people are making evaluations about the Italian justice system that don’t seem to take into account the fact that, like many European countries, Italy has a legal system that differs from our own in several important respects. To a large degree, those two errors are influencing much of the discussion I’ve seen regarding the one issue in this case that actually matters when it comes to American law in this case, the question of whether Knox might ultimately be extradited back to Italy if her final appeal fails to result in dismissal of the charges and Italy requests extradition.

While there’s been much commentary that, because of the alleged “unfair” nature of Knox’s conviction and the way the matter has been handled on appeal, the United States might actually oppose an extradition request by Italy, or that an American Court might turn down the request should, as expected, Knox’s lawyers challenge it if it is made. On the first point, it’s important to note that, based on what I’ve read, it seems to be quite rare for the United States, via either the State or Justice Departments, to refuse an extradition request that is otherwise proper under an applicable treaty unless there’s a clear exception under the terms of the treaty or we’re talking about a nation or a proceeding that clearly violated fundamental standards of justice.

As a preliminary point, it’s important to note that the United States has an Extradition Treaty with Italy. The current version, which I’ve embedded below, has been in place since it was ratified by the Senate back in the early 1980s.  While the ultimate decision on the issue of whether or not Knox should be extradited will likely rest with the Federal Courts, most legal experts seem to agree that the odds of Knox being able to avoid return to Italy are low assuming that the Italians make the proper requests under the treaty:

The Knox case is special because it raises the question of whether the U.S. government would send one of its own citizens to a foreign country to face a long prison term.

The answer: It’s been done before, though in less high-profile cases involving the governments of Canada, Mexico and other nations.

The U.S. has extradition treaties with more than 100 countries, including Italy, providing what would appear to be a strong legal foundation in favor of a request for Knox’s return to Italy.

“It’s absolutely not the case that an individual will not be extradited just because they are a U.S. citizen,” says Douglas McNabb, an international criminal defense attorney and an expert in international extradition law.

(…)

Mary Fan, a former federal prosecutor, suggested that any decision by the State Department on whether to return Knox to Italy is “a matter of both law and politics.” From a U.S. standpoint, the case at first seems to raise questions about double jeopardy — being tried twice for the same offense, something that’s barred by the U.S. Constitution. Knox was first convicted, then acquitted, then, on Thursday, the initial conviction was reinstated.

Some observers dismiss the double-jeopardy argument because Knox’s acquittal was not finalized by Italy’s highest court.

Questions also have been raised about whether the State Department might conduct a review of the evidence and ultimately decide it doesn’t support extradition. The treaty says the country requesting extradition shall provide a summary of the facts and evidence in the case that establish “a reasonable basis to believe that the person sought committed the offense.”

But 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 that’s a low bar, and that there’s “no reason why Italy wouldn’t be able to put together a sufficient extradition request.”

He also noted that although any request would wind up before a U.S. federal judge, the court’s role would largely be to ensure the paperwork is in order and that basic requirements are met.

“She’s not going to be able to relitigate ‘did she do it’ in a federal court,” he said. “Your chances of anything coming of that are slim to none.”

Harvard’s Alan Dershowitz and other legal experts agree:

“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.

Ultimately, though, it seems clear to me that this is going to come down to the question of what position the United States Government wishes to take on any extradition request. If the Obama Administration decided for some reason to deny the request, then its unlikely that Knox would ever be extradited as long as she stayed in the United States or only visited nations with no extradition treaty with Italy. This strikes me as unlikely, though. As noted both in the articles posted here and my post yesterday, the proceedings against Knox appear to have complied fully with Italian law and procedure, and while those laws and procedures are different in many ways from our own it seems like an incredible stretch to argue that those differences are so extreme that they violate fundamental rights. After all, throughout these proceedings Knox has been represented by counsel, she has been granted the same protections under Italian law that a citizen of Italy would receive, she has had, and continues to have, access to the full range of appeals that any other defendant in that system would have, and all of the proceedings have been as open to the public as any other proceeding in the criminal courts of Italy. The fact that she’s an American citizen and that her family has managed to put on a good PR campaign on her behalf really shouldn’t matter. Finally, if the U.S. Government really did try to oppose a proper request by the Italian Government under the treaty, it would likely create a serious diplomatic crisis with an ally of long standing.

In the far more likely scenario where the Federal Government backs the extradition request, the odds that Knox and her attorneys will be successful in their effort to convince a Federal Judge to deny  proper request or extradition seem to be pretty low, for the reasons noted above.

All of this remains off in the future, of course. Knox has at least one more round of appeals that she can take advantage of, and it seems unlikely  that the Italians will request extradition before those  appeals are resolved. Assuming she loses those appeals, though, Once the matter comes to the courts in the U.S. she would have the ability to have the matter heard by a Federal District Court Judge, a panel of the appropriate Circuit Court of Appeals, and potentially even the Supreme Court itself. In the end, though, I’d put my money on Knox eventually being extradited if her new conviction is upheld

Here’s a copy of the U.S.-Italy Extradition Treaty for those interested:

Italy International Extradition Treaty With the United States by Doug Mataconis

Related Posts:

About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Andre Kenji says:
  2. Jeremy R says:

    Politically, this has all the makings of another Elián González episode, though I imagine the domestic freak-out will be exponentially greater.

    Like or Dislike: Thumb up 2 Thumb down 3

  3. C. Clavin says:

    If my name were Amanda Knox I would be leaving for the nearest tropical island that does not have an extradition treaty with Italy.
    Or…maybe trying to crowd-finance the bribery of an Italian official.
    She appears to be f’ed.

    I feel bad for her…but the truth is that many Americans get caught up in foreign kafka-esque legal systems. She’s not unique.

    Like or Dislike: Thumb up 9 Thumb down 9

  4. C. Clavin says:

    Attractive, white, American woman…Fox will be ginning up the outrage machine any minute now.

    Like or Dislike: Thumb up 9 Thumb down 4

  5. Ron Beasley says:

    My problem isn’t with extradition but with the police and prosecutor sloppiness in the investigation. Most of the evidence was thrown out during the initial appeal and they presented no new evidence during the retrial.

    Hot debate. What do you think? Thumb up 8 Thumb down 13

  6. PD Shaw says:

    But pretty people need our love too sometimes.

    In the days and weeks following the discovery of Meredith Kercher’s body, Italian police found no physical evidence linking Amanda Knox to the murder. But then, they didn’t need it: they could tell Knox was guilty just by looking at her. “We were able to establish guilt,” said Edgardo Giobbi, the lead investigator, “by closely observing the suspect’s psychological and behavioural reaction during the interrogation. We don’t need to rely on other kinds of investigation.” Giobbi said that his suspicions were first raised just hours after the murder, at the crime scene, when he watched Knox execute a provocative swivel of her hips as she put on a pair of shoe covers.

    Convicted for a killer bod.

    Hot debate. What do you think? Thumb up 17 Thumb down 11

  7. PD Shaw says:

    My partner and I began knocking her notes to the ground or throwing pens on the floor for her to pick up. It was most informative.

    Like or Dislike: Thumb up 6 Thumb down 3

  8. rudderpedals says:

    There’s already another guy in prison convicted and sentenced to 16 years for the young lady’s murder. The way I understand it is there was plenty of unequivocal physical evidence placing that guy at the murder scene. OTOH Knox did herself no favors by blaming some unrelated 3rd party for the thing. Whatamess

    Like or Dislike: Thumb up 10 Thumb down 7

  9. Tyrell says:

    We don’t need and should not allow a foreign country to tell us what to do or to kidnap a US citizen.
    Britain used to do this and this country put a stop to it.
    “Don’t mess with the U.S. ! “

    Poorly-rated. Helpful or Unhelpful: Thumb up 4 Thumb down 26

  10. C. Clavin says:

    @Tyrell:
    I am quite sure if the situation were reversed…if an Italian had killed someone in America…you would expect Italy to extradite her back to the US.
    Of course that’s different….

    Highly-rated. Helpful or Unhelpful: Thumb up 27 Thumb down 5

  11. PJ says:

    @Tyrell:
    You do understand the concept of treaties, don’t you?

    Highly-rated. Helpful or Unhelpful: Thumb up 17 Thumb down 2

  12. PD Shaw says:

    @rudderpedals: From what I have gathered, the evidence against her pretty much comes down to self-incrimination. Probably more questions from a U.S.standpoint about the length of the interrogation, whether a defense attorney was made available, or whether she was told requesting one would be incriminating. In the U.S. there would have been a mini-trial on the interrogation itself.

    Like or Dislike: Thumb up 3 Thumb down 6

  13. Andre Kenji says:

    @C. Clavin: One of the reasons that many Brazilians supported granting political asylum to Cesare Battisti was precisely what Tyrell is saying.

    Like or Dislike: Thumb up 3 Thumb down 1

  14. C. Clavin says:

    @Andre Kenji:
    But as PJ points out above…it’s contrary to the concept of treaties.
    Like principles…you don’t get to ignore them just because it might be easier or popular to do so.
    Bush and Company did that. I’d like to see them extradited (to the Hague) as well.

    Like or Dislike: Thumb up 12 Thumb down 2

  15. PJ says:

    @Tyrell:

    We don’t need and should not allow a foreign country to tell us what to do or to kidnap a US citizen.

    Did you read the U.S.-Italy Extradition Treaty that Doug uploaded?
    Which allows a foreign country to “kidnap a US citizen”…
    Did you happen to notice the name of the President who signed it?
    He sure must have hated America to sign such a document…
    Don’t you think?

    Like or Dislike: Thumb up 9 Thumb down 0

  16. Matt says:

    @Ron Beasley: I don’t know maybe the fact that they already have a guilty plea and conviction of another unrelated dude for the crime kind of sours me…

    Like or Dislike: Thumb up 3 Thumb down 3

  17. gVOR08 says:

    It’s easy to criticize the Italian criminal justice system as prone to abuse by police and prosecutors. However: 1) irrelevant and 2) glass houses.

    Like or Dislike: Thumb up 13 Thumb down 6

  18. rudderpedals says:

    The U.S. has had an extradition treaty with Italy since 1984 and has denied at least several requests since then.

    — tantalizingly buried wapo lede

    More information about the denials over 30 years is relevant to my interests. Thanks, wapo!

    Like or Dislike: Thumb up 3 Thumb down 2

  19. rudderpedals says:

    @PD Shaw: Add coercive detention to pile. At some point the process looks more like a vendetta than a criminal prosecution.

    Like or Dislike: Thumb up 5 Thumb down 7

  20. Tyrell says:

    @rudderpedals: I certainly agree. Italy’s “system of justice” obviously has some sort of vendetta with the US and its citizens. This, after all we did for them during WWII.

    Like or Dislike: Thumb up 1 Thumb down 12

  21. PJ says:

    @Tyrell:
    Please take your medication at the intervals specified by your doctor.

    Like or Dislike: Thumb up 10 Thumb down 1

  22. Raoul says:

    As likely as the House of Delegates in Virginia overturning the Attorney General’s race just held. /snark.

    Like or Dislike: Thumb up 0 Thumb down 0

  23. wr says:

    I think there’s a third alternative, which is the Italy asks for extradition and the US stalls. She’s pretty, she’s young, she’s white, and if her lawyers do their jobs well she could become very popular. An administration could find lots of legal ways to delay and delay and delay…

    Like or Dislike: Thumb up 1 Thumb down 6

  24. PD Shaw says:

    From Julian Ku, who is one of the legal authorities cited above, for the proposition that its not double jeopardy:

    One final note: the only way this “double jeopardy” argument matters is if this gets to the US Secretary of State, who has final say on whether to extradite. He might conclude that the trial here was so unfair (because it dragged out so long) that he will exercise his discretion not to extradite. But this would be a political judgment, not a legal one, more akin to giving Knox a form of clemency than an acquittal.

    If the U.S. decides to deny extradition, the treaty requires a reason to be given (and it requires Italy to provide “a reasonable basis to believe that the person sought committed the offense”).

    But basically international law is like the Pirate Code, more what you’d call “guidelines” than actual rules. The reason articulated by a state in rejecting extradition can and will be used against it.

    Like or Dislike: Thumb up 6 Thumb down 0

  25. bill says:

    @C. Clavin: nah, they read the report about all the lies she spewed and figured she was at least an accessory if not actually a participant.
    dershowitz is right about this one, i don’t always agree with him.

    Like or Dislike: Thumb up 8 Thumb down 2

  26. Andre Kenji says:

    @C. Clavin:

    1-) Extradition treaties generally have dozens of loopholes and exceptions.

    2-) Countries refuses to extradite people that committed perfectly extraditable offenses all the time.

    3-) Extradition, specially of non-violent offenders, is extremely complicated(That´s why judges does not grant bail when there is a flight risk) and it´s a political, not a judicial process.

    4-) I don´t know why people talks about Amanda Knox, but not about these 22 CIA agents convicted of abducting a Iman in Milan.

    5-) The same people that are guaranteeing to you that the extradition of Amanda Knox is likely are the same people that thought that Hong Kong would deliver Edward Snowden in a silverplate to the US.

    Like or Dislike: Thumb up 4 Thumb down 3

  27. PD Shaw says:

    @Andre Kenji: Nobody wants to be the bad boy of the international community by ignoring extradition obligations; the next thing you know the world community will block your bid to host the Olympic Games. /joke

    I think the important thing is not the outcome so must as the reason given for refusing extradition, and the assumption that a reason given is the sound judgment of the refusing state is its own control. If Russia wants to keep Snowden under its protection because “information wants to be free” or because every citizen has a right to release its state’s secrets, so be it. That’s a position that I’m sure the United States can get behind in the right circumstances (another country’s circumstances that is).

    Like or Dislike: Thumb up 1 Thumb down 2

  28. Andre Kenji says:

    @PD Shaw:

    Nobody wants to be the bad boy of the international community by ignoring extradition obligations

    Everyone does that: even Britain refused to extradite Gary McKinnon,

    I think the important thing is not the outcome so must as the reason given for refusing extradition,

    There are various reasons why countries refuses extradition, but many of them are political in nature. National pride is a huge part of it, but, again, very few countries would extradite Snowden. Even David Cameron would face enormous political pressure if he decided to do it.

    Like or Dislike: Thumb up 2 Thumb down 1

  29. rudderpedals says:

    @Tyrell: I do agree something here stinks, but I don’t think the broad brush against Italian law is justified yet. Italy hasn’t requested extradition and may never request it.

    Like or Dislike: Thumb up 0 Thumb down 3

  30. rudderpedals says:

    @PD Shaw: Thanks for linking Julian Ku’s excellent piece. Commenter majorajam’s response is also compelling.

    Like or Dislike: Thumb up 0 Thumb down 0

  31. C. Clavin says:

    @Andre Kenji:
    If you don’t understand the difference between 22 CIA agents…fighting our now perpetual War on Terror…some with diplomatic immunity…acting in concert with Italian Intelligence…and then indicted for political reasons…and a 26 year old girl from Seattle…then it’ll take more than this comment to explain it.
    I’d just as soon the 22 Cia agents were extradited.
    I’d just as soon Bush and Cheney were tried for War Crimes.
    I think David Vitter should be thrown out of Congress.
    I think Jamie Dimon and the rest of the Wall Street Bankers responsible for the banking crisis should be in prison.
    But it ain’t ever going to happen.
    Amanda Knox, however, is f’ed.
    That’s the way the world works.
    It ain’t right. But it’s true.

    Like or Dislike: Thumb up 2 Thumb down 2

  32. Gustopher says:

    I just don’t think the Obama administration is going to extradite a pretty white women while there is someone else in jail convicted for the same crime under a different theory.

    It’s not that I think they are noble and perfect, I just don’t think they want the headache of the media coverage — and the pretty white woman has a decent media team. It would be Benghazi With A Pretty White Woman.

    So, she’s probably safe until 2017. If a Republican is elected, they might ship her off just to spite Obama or something.

    Like or Dislike: Thumb up 0 Thumb down 7

  33. Matt says:

    Did these same courts somewhat recently throw some scientists in jail for failing to predict an earthquake? Hard to take that kind of justice system seriously…

    @Gustopher: Could you imagine the rage of Obama hating white people so much he sends one to a third world country to be savaged?? The right wing outrage machine could have weeks straight of outrage.

    Like or Dislike: Thumb up 2 Thumb down 6

  34. Dean says:

    @Gustopher: Ok, so your theory is that Obama cares about what ANY Americans think? Not just white Americans, but ANY Americans?

    How do you say that when the vast majority of Americans don’t want the travesty of Obamacare rammed down our throats? If Obama gave a stale fart for what we think he would admit that he failed to get a viable health reform bill passed and just call off the disaster now before any more damage is done.

    But the Chosen One won’t admit to a failure. So that won’t happen. And Knox will be extradited. I don’t know whether she had anything to do with the murder. She WILL be sent back to Italy, though.

    Like or Dislike: Thumb up 1 Thumb down 4