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Was Amanda Knox Subjected to “Double Jeopardy?” Don’t Be So Sure About It

amanda-knox-double-jeopardy-italy

As James Joyner noted last week, Amanda Knox was re-convicted on charges of murdering Meredith Kercher, a British student was was Knox’s roommate while the two were attending college in Italy. Knox’s first trial, for which she was present and which  received a lot of media coverage here in the United States, ended in her conviction back in 2009 despite the vociferous objections of Knox, who continued to assert her innocence even after conviction. Knox was eventually sentenced to 26 years in an Italian prison. The case then began to make its way through Italy’s seemingly labyrinthine legal system until 2011 when an Appellate Court ruled that Knox’s conviction should be set aside due to alleged contamination of DNA evidence by investigators. At that point, Knox was ordered freed from prison and, in a media spectacle, returned to the United States where she gave several media interviews proclaiming her innocence and expressing relief that her ordeal was seemingly behind her. In reality, though, Knox’s legal troubles had just begun. In early 2013, the highest appellate court in Italy’s criminal law system dismissed the 2011 judgment of the appellate court and ordered that Knox be retried by a lower level court. That trial began in September and while Knox did not appear, mostly likely because she feared losing the case and being sent back to prison, she was apparently represented by the same group of attorneys who have been representing her throughout the legal proceedings in this matter. This type of in absentia trial, although not common, has also been known to occur in the United States when a Defendant has put themselves beyond the legal jurisdiction of the Court. That trial lasted some three months before resulting in Knox’s conviction late last week.

As I’ve noted, the Knox case has garnered much attention over the past five years from both the American and the British media, although for different reasons. In the case of the Brits, it’s because the victim was British and it’s fair to say that the coverage of the trial and subsequent proceedings by the British tabloids has been decidedly anti-Knox from the beginning. In the American case, I’d suggest that the fascination is due both to the fact that Knox is an American and that she is attractive young woman, two factors that are guaranteed to draw in viewers, especially for the weekday morning “news” shows on the broadcast networks and the daily coverage of the cable “news” networks. Additionally, it cannot be denied that the Knox family has been very successful in waging a public relations battle on their daughter’s behalf and creating what can only be called incredibly sympathetic coverage from an ordinarily skeptical media. Added into all of this is the fact that much of the American media, and by extension the American public, insisted on judging the legal process in Italy based on American standards without fully understanding the differences between the criminal law systems in the two nations.

Without getting into a long discussion of comparative law, it’s important to understand that the U.S. and Italian legal systems come from completely different roots. Where the American system is based in the Common Law and the legal system that was developed in England from the time of the Magna Carta in 1215 forward, Italy’s system, along with that of many other nations in Western Europe, finds its root in the Code-based system of law that was established under Napoleon when France controlled most of that part of the world. Additionally, like the criminal law system in France and other Code-based nations, the criminal law system in Italy is what is called an Inquisitorial System in which the Judge or Judges presiding over a trial play an important role in investigating the facts of a case. This contrasts with the legal system in the United States and other nations that base their legal system on the British model, where the criminal law system is based on an adversarial model where it is the prosecutor that is solely responsible for presenting the case and the job of the Defense attorney is to create reasonable doubt in the minds of the trier of fact. Additionally, Italy and most other code-based systems differ from the United States in that all criminal cases are tried before a Judge, or in the case of serious offenses like the Knox case, a panel of judges. Finally, there are significant differences between the appellate processes in the two countries, as the Knox case has made very clear. One of those differences is that the prosecution has much more authority to appeal an acquittal than they do in the United States. The existence of these differences, though, doesn’t mean that there’s something inherently unjust about

There’s also been much discussion since the result that was handed down last week about the issue of double jeopardy. Here in the United States, pursuant to the 5th Amendment, no person can be tried again for the same offense after already having been tried once an acquitted. The Knox case seems to show us that the same rule doesn’t apply in Italy, however that may only be because people are not viewing the case properly.It’s not uncommon in the United States for an appellate court to overturn a conviction and order a retrial. This is not a violation of the double jeopardy rule. Additionally, as James notes in his post, a criminal defendant can be acquitted of charges in a state trial court and then charged again for essentially the same events under Federal law, assuming that there is a Federal criminal statute that applies to the situation. This is because U.S. law considers the states and Federal Government ot be two separate sovereign entities, meaning that the double jeopardy rule does not apply. Finally, as we saw in the O.J. Simpson case, someone can be acquitted in a criminal case only to be found civilly liable for something like wrongful death in a civil trial. This isn’t double jeopardy either.

In the Knox case, it’s not at all clear to me that what has happened actually violates what our legal system would consider double jeopardy. Consider the course of events that has unfolded:

  • Knox is convicted at what we would call the trial court level of murdering Kercher in 2009 and sent to prison;
  • In 2011, an Appellate-level court vacates the conviction based on allegedly tainted DNA evidence, Knox is freed;
  • As permitted under Italian law, the prosecution appeals the 2011 decision to Italy’s highest criminal appellate court, which in early 2013 overturns the 2011 decision and remands the case for a new trial;
  • Knox is convicted in absentia, but with competent defense counsel representing her, of Kercher’s murder a second time.

If something like this had happened under the American legal system, I don’t see how a valid double jeopardy claim could be raised. Indeed, as I noted above, similar things happen in the U.S. legal system all the time, although the ability of the prosecution to appeal acquittals is far more circumscribed in this country. Both James Joyner in his post here at OTB, and Jazz Shaw in a piece he posted yesterday at Hot Air make the point that what happened to Knox looks like double jeopardy, but  I have to disagree. True double jeopardy in the U.S., for example, would be a situation where someone was charged, tried, and acquitted of a crime and then rearrested and charged with the same offense, perhaps under a different name (manslaughter instead of murder for example). That didn’t happen here. Knox was never rearrested for Kercher’s murder, she is essentially being tried pursuant to the same indictment (or whatever the term in Italy is or the imposition of criminal proceedings in felony cases) that she was convicted under in 2009. In other words, it’s not even clear that Knox was subjected to what American law would recognize as double jeopardy for purposes of the 5th Amendment. The only difference is that the procedure under which her case has proceeded is fundamentally different from the procedure used in the United States in several significant respects.

The caveat to everything noted above is that I want to make it clear that I am hardly an expert in Italian law  and while I’ve tried to read as much as I can in a short period of time on the matter I have likely over-simplified some aspects of that system. Secondly, I am purposely avoiding discussion about the facts in the case or the nature of Knox’s defense to the charges against her, largely because that is in some sense irrelevant to the ultimate issue that U.S.  Courts will have to deal with here, which is what may be a request for extradition should her final appeals not result in final dismissal of the charges against her. However given that Italy’s legal system and procedures are similar to those utilized in a host of other Western European nations, I think it’s somewhat arrogant for Americans to claim that it is somehow inferior or unjust just because it’s different. While the procedures may be unfamiliar to us, and while there may be valid policy arguments against the kind of inquisitorial system that nations like Italy and France utilize in their criminal courts, that doesn’t mean that the results that come out of such a system are inherently unjust. Indeed, one could point to many examples of injustice in our own legal system so it’s not like we’re paragons of virtue when it comes to criminal law.

In a post that should be up later today, I’ll try to address the complicated topic of extradition in Knox’s case, but at the very least I think it’s clear that the knee jerk American reaction that Knox was unfairly subjected to “Double Jeopardy” doesn’t really  hold up once you start to understand the differences between criminal law in Italy (and much of the rest of Western Europe) and the United States.

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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. Jeff says:

    “Here in the United States, pursuant to the 7th Amendment, no person can be tried again for the same offense after already having been tried once an acquitted.”

    That would be the 5th Amendment. The 7th relates to civil juries. “While it is true our courts have ruled that the double jeopardy rule does not preclude one sovereign from re-trying a defendant after another has tried and failed (or, for that matter succeeded), I’m not sure these rulings are consistent with either the letter or the spirit of “[no] person shall … be subject for the same offence to be twice put in jeopardy of life or limb.”

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  2. James Joyner says:

    It may be a function of the reporting as well. All of the papers had the intermediate appellate court ruling Knox not guilty and the highest court reinstating the conviction rather than sending it down for a trial de novo. That’s my understanding of what happened and it would certainly be double jeopardy in our system.

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  3. @Jeff:

    Yes. My mistake. Typo fixed.

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  4. al-Ameda says:

    There’s also been much discussion since the result that was handed down last week about the issue of double jeopardy. Here in the United States, pursuant to the 5th Amendment, no person can be tried again for the same offense after already having been tried once an acquitted.

    Actually, we Americans do have a kind of double jeopardy in our system – most Americans became somewhat acquainted with it during OJ Simpson’s civil trial. Now, I understand the nuances and differences involved, but to me the Simpson trial was, de facto, double jeopardy.

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  5. Rafer Janders says:

    Off-topic, but not a lot of Chris Christie Bridgegate posts these days, are there? Doesn’t seem to be a popular subject for OTB…..

    Like or Dislike: Thumb up 4 Thumb down 1

  6. James Joyner says:

    @Rafer Janders: It’s a three-week-old local story that got coverage here despite both Doug and myself being out of commission.

    Like or Dislike: Thumb up 0 Thumb down 1

  7. PJ says:

    @James Joyner:

    It’s a three-week-old local story that got coverage here despite both Doug and myself being out of commission.

    Considering that it’s derailing Christie’s plans for 2016, I wouldn’t call it local.
    And it’s an ongoing story, the latest being the Wildstein letter and the email reply from the Christie HQ…

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  8. Rafer Janders says:

    @James Joyner:

    It’s a three-week-old local story that got coverage here despite both Doug and myself being out of commission.

    It’s both (a) an ongoing and developing story that’s getting prominent coverage in much of the press over the last few days regarding the Zimmer and Wildstein allegations, and (b) a national and not local story as it involves the derailing political career of one of the presumptive front-runners for the Republican presidential nomination.

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  9. @Rafer Janders:

    To be honest, I am holding off writing about the story that came out on Friday until there’s, you know, actual evidence instead of just a self-serving unsubstantiated letter from Wildstein’s lawyer that is really aimed at trying to convince the state of NJ to pay Wildstein’s legal bills and the US attorney to grant him immunity.

    If you want round the clock coverage of “Bridgegate,” MSNBC has that for you. For Benghazigate, there’s Fox News Channel. CNN, meanwhile, has spent the weekend running documentaries about The Beatles and Jay Leno.

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  10. Tyrell says:

    Tried twice, acquitted, released. That’s it, it’s over. Enough for anyone. Italy is a great country with beautiful cities, flowing fountains, wonderful food, and nice people. But the judicial system has the logic of the Marx Brothers and the trial procedures similar to those in Russia. They decide things on what ever goes through their mind and suits their fancy, plus a ton of payoffs, bribery, and graft. It is like they throw darts at people’s pictures to determine guilt. A nice place to visit, but watch out. A few years ago a US journalist/writer was arrested for murder in the case of a serial killer in Florence. His bad luck was simply being over there writing a book and the police could not find anyone else to charge. Totally ridiculous and totally corrupt. .
    One of the best portrayals of a judge in a movie was Pat Hingle in the “Hang Em High” movie of the “70’s. I could not get a clip of the trial: the only time I have seen Clint Eastwood get flustered. This clip shows the excellent work that Hingle did in that film: http://www.youtube.com/watch?v=p-am7zFxyGQ
    The worst example of a corrupt trial in the US was of course the infamous “trial” of the Booth conspirators after Lincoln’s assassination.

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  11. PJ says:

    @Tyrell:

    A few years ago a US journalist/writer was arrested for murder in the case of a serial killer in Florence. His bad luck was simply being over there writing a book and the police could not find anyone else to charge. Totally ridiculous and totally corrupt. .

    Actually, the journalist in question, Douglas Preston, wasn’t arrested for the murder(s), he was accused of obstruction of justice, planting evidence, and being an accessory to murder and was arrested and charged with perjury. Also, he wasn’t just writing a book, he was writing a book about the serial killer and the murders.

    Seriously.

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  12. Gustopher says:

    Her defense team has done an excellent job of making people actually question whether she should be extradited. Hats off to them, since the next phase will be far more political than legal.

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  13. Rafer Janders says:

    @Doug Mataconis:

    To be honest, I am holding off writing about the story that came out on Friday until there’s, you know, actual evidence

    I applaud this approach and hope it continues!

    instead of just a self-serving unsubstantiated letter from Wildstein’s lawyer that is really aimed at trying to convince the state of NJ to pay Wildstein’s legal bills and the US attorney to grant him immunity.

    Well, that’s a story and a development in and of itself, as it indicates that Wildstein has separated himself from Christie and is ready to turn. And then there’s the Christie camp’s incredibly ham-handed response to the memo (a sign that it’s clown college over there right now), Christie getting boo’ed at the Super Bowl party yesterday, and the ongoing revelations about the Hoboken land deal and the pressure put on Mayor Zimmer about it.

    If you want round the clock coverage of “Bridgegate,” MSNBC has that for you.

    No, round the clock coverage is way too much, thanks! But an occasional mention would be nice.

    For Benghazigate, there’s Fox News Channel.

    Again, thanks, but I got all the Benghazi news I ever needed from you last year!

    And, you know, your site, you write about what you want. I was just curious why a site that was supposedly about politics was spending more time on the intricacies of Italian law, beer delivery drones, Patrick Stewart and Ian McKellen, and the never-gonna-happen Romney 2016 campaign than on the front-page implosion of one of the few Republican front runners.

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  14. C. Clavin says:

    I am interested on your take re: extradition.
    I’m not sure how the US says no to Italy.

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  15. @Rafer Janders

    Well, to be honest, I’ve been busy getting back into the spin of things after two weeks out of town and kind of exhausted. There are several big stories I had bookmarked over on Feedly to write about that I ended up abandoning due to lack of time.:

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  16. @C. Clavin:

    That’s a big part of the question. In addition to the legal issues, there’s also the diplomatic issues. We’re talking about a U.S. ally, a member of NATO that has provided assistance in several major and minor actions over the years, and a sovereign nation.

    Also, as I note in this post, the suggestion that many people have made that there’s something inherently unjust about Italy’s legal system just because it’s different from our own just doesn’t hold water in my opinion.

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  17. Andre Kenji says:

    @James Joyner:

    It’s a three-week-old local story

    It was the main story on the evening newscasts Friday and Saturday.

    Like or Dislike: Thumb up 3 Thumb down 0

  18. Andre Kenji says:

    @Doug Mataconis:

    Also, as I note in this post, the suggestion that many people have made that there’s something inherently unjust about Italy’s legal system just because it’s different from our own just doesn’t hold water in my opinion.

    No. The problem is that Italy had a serial philanderer as Prime Minister, there are estimates that point out that something like 10% of the Italian GDP comes from organized crime, paying extortion taxes to the Mafia is pretty common in the South of the Country. So, many people have doubts about Italian Institutions.

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  19. Andre Kenji says:

    @C. Clavin:

    I’m not sure how the US says no to Italy.

    Brazil said no to Italy when it gave political asylum to Cesare Battisti, a former member of a far-left militant group of the 70´s that was convicted of two killings in Italy. On the other hand, Italy had refused to extradite Salvatore Cacciola, a Brazilian banker that had Italian citizenship and that was wanted for financial fraud in 2000, alleging that Brazil had refused to extradite a Lebanese that wanted for drug trafficking in Italy.

    These things happens all the time, that what I pointed out during the Snowden affair. By the way, even if the worst terrorist in the world managed to escape to Brazil and to have a child with a local woman, he could not be extradited according to Brazilian law(!). Amanda Knox has the support of at least one senator from Washington(Maria Cantwell), she is not going to be extradited. I only feel really sorry for Solecito.

    By the way, there 22 CIA agents that were convicted in Italy for abducting a Egyptian cleric in Milan. They were not extradited.

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  20. Andre Kenji says:

    By the way, as a Brazilian I supported David Goldman. I love my country, but what the Judicial system of my country did to this poor man was unjustifiable.

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  21. Tillman says:

    @Rafer Janders: @PJ: Way to go inverted-Jenos, guys.

    (I can’t be the only one who remembers his constant harping on the Zimmerman trial in every other thread.)

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  22. PJ says:

    @Tillman:

    Dude, you really need to get your scales calibrated….

    I’m going Inverted-Jenos? Are you serious?

    I’ve never told any OTB writer that he should write more about Christie, I replied to Joyner’s comment about it being local and three weeks old.

    Sooner or later there will be stories about it on OTB, because the story isn’t going to go away. Until then I read and comment about it elsewhere.

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  23. Tillman says:

    @PJ: You also didn’t do it over multiple threads and as annoyingly. I’m not saying you’re a mirror held up to Jenos’s face, I’m saying jacking a thread to discuss what you feel the authors of the blog aren’t discussing enough on their blog is a Jenos kind of move.

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  24. PJ says:

    @Tillman:
    I didn’t jack the thread either, I wrote ONE reply to a comment made by Joyner.

    I’ve now made twice as many comments in this thread due to you accusing me of acting as Jenos and then refusing to admit that you were wrong.

    Dig deeper if you must, but you should try this instead:

    I’m sorry, I was wrong. You didn’t act as Jenos nor did you jack the thread.

    Unless you are going to argue that I’m jacking the thread by refuting your baseless accusation?

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  25. Robbo says:

    “the ability of the prosecution to appeal acquittals is far more circumscribed in [the US]”

    It is also necessary to bear in mind that the defence in a murder case in Italy has an automatic right to appeal, whereas in the US they can only appeal on certain narrow grounds. It is quite likely that under the US system there would have been no appeal at all. The Italian system is different from the US system, but that doesn’t necessarily mean it is less fair. Actually you can say it is more fair in that the majority of criminal defendants in the US don’t get a trial at all, they are plea-bargained straight to jail.

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