Continuation Part 13: Amanda Knox/Raffaele Sollecito

[NotEvenWrong]

Re-read a couple websites and it refreshed my memory on some of this:

It looks like the extradition treaty doesn't specifically mean double jeopardy as it's referred to in the Constitution. It excludes situations where the defendant has been put in jeopardy for the crime in the country from which extradition is being requested. So extradition could not be denied on these grounds, as Knox wasn't tried in the U.S.

I guess a related question would be: Will the U.S. extradite a citizen if the foreign country did something which would have violated the citizen's Constitutional rights if done in the U.S.; i.e. is the U.S. government obligated to protect a U.S. citizen from a foreign government through reasonable means, or must they "obey" the foreign country's process even if common sense says it got the result wrong? I guess the treaty does not explicitly disallow this, but wtf? Wouldn't something like this be a clear case where the letter of the treaty is inadequate?

 

[Diocletus]

Dougm,
I agree completely. It seems dubious at best to say it's not double jeopardy simply because that's the way it's done in Italy. It's double jeopardy because that's the definition of double jeopardy. We're talking about extradition here, and IIRC it explicitly states in the extradition treaty that extradition will be denied if double jeopardy is violated since that is prohibited by the U.S. Constitution.

I'm struggling to understand how legal scholars have argued the opposite on the matter -- what are we missing?

There is a double jeopardy provision in the extradition treaty, but it doesn't apply to the facts of this case. There is some case law that says that you can be retried after acquittal if national law permits it, and that doesn't preclude extradition on double jeopardy grounds. However, none of these cases involved a situation where the foreign country had established that its core human rights values trump the extradition treaty. Since Italy has done this (as to the death penalty), there is no principaled reason why a US court cannot similarly say that it refuses to extradite to a country that has convicted a person after acquitting her.

 

[Dougm]

I agree that the Italian process is double jeopardy as far as the US is concerned, and that the US Government cannot rightfully, Constitutionally, extradite Amanda Knox on that basis alone. But that is my opinion, and there isn't case law to back that opinion. In fact, it's a bit of uncertain legal territory.

There are many other instances of unfairness in her trials that were even more fundamentally wrong, such as lack of discovery, presumption of guilt, denial of the right to cross-examine a witness or examine a proceeding from an unexamined person that was used against her, and the use of unreliable and apparently fraudulent evidence by the prosecution.

I believe some lawyers who have spoken about the case were confused, because they had not bothered to do enough background reading, what the Hellmann court did. The Hellmann court was called an "appeal court" in the media, and indeed it responded to appeals. However, it did not function the way a US appeal court would, which would be to solely review the legal and procedural aspects of the first-instance trial. In the US, if the first-instance court convicted, and the second-instance court found only an alleged error in law, a third-instance court (such as a State Supreme Court) could overrule the second-instance court on the point of law, if I understand correctly (and I'm not a lawyer). But the Hellmann court reviewed the case de novo, hearing relevant parts of the case over entirely, and getting new evidence (from court-appointed DNA experts). And the Hellmann acquittal was on the evidence, not on a legal technicality. So in the US, that acquittal could not be overturned because of the 5th Amendment.

As far as I know, no US citizen has ever been in Amanda's situation: convicted provisionally (and wrongfully) in a foreign country, then acquitted in a second-level court and allowed to return to the US, then having the acquittal being quashed (arbitrarily and maliciously) by the foreign Supreme Court of Cassation, and then again (wrongfully) provisionally convicted in a second second-level court.

In my opinion, the biggest no no in Amanda's (and RS's) conviction is the use of things found in Guede's trial as part of the rationale for their conviction. Using conclusions found in a trial where they were not represented, did not get to present evidence and testify, is a huge violation of the US concept of justice. Combine that with the fact that Guede was a witness at their trial but was not allowed to be questioned about what he presented (don't get me going on him not even testifying, just having a letter read in court).

 

[Bill Williams]

Dougm,
I agree completely. It seems dubious at best to say it's not double jeopardy simply because that's the way it's done in Italy. It's double jeopardy because that's the definition of double jeopardy. We're talking about extradition here, and IIRC it explicitly states in the extradition treaty that extradition will be denied if double jeopardy is violated since that is prohibited by the U.S. Constitution.

I'm struggling to understand how legal scholars have argued the opposite on the matter -- what are we missing?

What I am having a bit of an issue getting my mind around is this:

* Yes, the Italian way of doing things seems to be clearly "Double Jeopardy" as defined in the US Constitution
* However, US accepts as valid systems of law that have provisions that are not the same as US law. For example, calunnia is not a criminal law that exists in the US, but if an American is convicted of that crime in Italy, US does not object (although an attempted extradition for it might be interesting)

So, in what case does the US object and assert that the law of that country is not acceptable, and will not allow an extradition?

Is this not "overthinking" this?

The issue of "double jeopardy" is a legal one, and the issue of extradition is first and foremost a political one.

My view is that it has already been decided **politically** that the US is not going to give up one of its own citizens in this kind of scenario, as unique as it perhaps is. Measuring the "political fallout" of this is all that matters, and one thing is clear is that there's going to be **fallout** somewhere in Italy, depending on which side, internal to Italy, regards a refusal to extradite as an internal "political loss".

Point being, that once the political win/loss calculation is made, it will be then and only then that something like double jeopardy will be brought to the conversation either to justify denying extradition, or to negate it to justify doing it.

My bet is that the US State Department will know that at least one powerful force within Italy will be unhappy with a refusal to extradite, but other forces within Italy will see it as an understandable & just foreign action, to correct an internal injustice - an injustice that these folk within Italy have already gone public about.

It'll be a political calculation, once made some lawyer at State will draw the task of writing up the legalese to support that calculation.... not the other way around.

 

[carbonjam72]

What I am having a bit of an issue getting my mind around is this:

* Yes, the Italian way of doing things seems to be clearly "Double Jeopardy" as defined in the US Constitution
* However, US accepts as valid systems of law that have provisions that are not the same as US law. For example, calunnia is not a criminal law that exists in the US, but if an American is convicted of that crime in Italy, US does not object (although an attempted extradition for it might be interesting)

So, in what case does the US object and assert that the law of that country is not acceptable, and will not allow an extradition?

Hi Dougm, Numbers, NotEvenWrong;

Here's an article from a leading expert in extradition law, Cherif Bassiouni, who concludes Amanda Knox is unlikely to be extradited if such a request were made, precisely because of the Hellman acquittal. Appafntly there is a clause in the extradition treaty that reflects the US prohibition against double jeopardy, as a practical matter, even if not considered exactly so by the country engaing in it:

Here's the link:

http://blog.oup.com/2014/04/is-amanda-knox-extraditable-from-the-united-states-to-italy/

And he's a few paragraphs from the article, worth a read if you have a chance.

Extradition from the United States to Italy

Italy is one of the few countries with this complex procedure, which it does not consider to be in violation of the constitutional prohibition of ne bis in idem (double jeopardy) reflected in article 649 of the Italian Code of Criminal procedure. The prohibition of ne bis in idem is included in the European Convention for the Protection of Human Rights and Fundamental Freedoms, but, so far, the European Court for Human Rights (ECHR) has not interpreted Italian law as violating the European Convention. Thus, the procedure described above has not been found to be in violation of ne bis in idem under the ECHR.
The 1983 U.S.–Italy Extradition Treaty states in article VI that extradition is not available in cases where the requested person has been acquitted or convicted of the “same acts” (in the English text) and the “same facts” (in the Italian text). Treaty interpretation needs to ascertain the intentions of the parties by relying on the plain language and meaning of the words. Italy’s law prohibiting ne bis in idem specifically uses the words stessi fatti, which are the same words used in the Italian version of article VI, meaning “same facts.” Because fatti, or “facts,” may include multiple acts, the Second Circuit Court of Appeals applied the test of “same conduct” in Sindona v. Grant, citing international extradition in US law and practice, based on this writer’s analysis.

Whatever the interpretation of article VI may be—“same act,” “same facts,” or the broader “same conduct”—Amanda Knox would not be extraditable to Italy should Italy seek her extradition because she was retried for the same acts, the same facts, and the same conduct. Her case was reviewed three times with different outcomes even though she was not actually tried three times. In light of the jurisprudence of the various circuits on this issue, it is unlikely that extradition would be granted.
The US Supreme Court can also make a constitutional determination under the Fifth Amendment of the applicability of double jeopardy to extradition cases, particularly with respect to a requesting state’s right to keep on reviewing its request for the same acts or facts in the hope of obtaining a conviction. But, no such interpretation was given to the Fifth Amendment in any extradition case to date. Surprising as it may be, neither the Supreme Court nor any Circuit Court has yet held that the Fifth Amendment’s “double jeopardy” provision applies to extradition. So far, double jeopardy defenses have been dealt with as they arise under the applicable treaty.

Conclusion: Amanda Knox’s extradition from the United States to Italy under existing jurisprudence is not likely.


* M. Cherif Bassiouni is Emeritus Professor of Law at DePaul University where he taught from 1964-2012, where he was a founding member of the International Human Rights Law Institute (established in 1990), and served as President from 1990-2007, and then President Emeritus. He is also President, International Institute of Higher Studies in Criminal Sciences, Siracusa, Italy since 1989. He is the author of International Extradition: United States Law and Practice, Sixth Edition.

 

[NotEvenWrong]

What I am having a bit of an issue getting my mind around is this:

* Yes, the Italian way of doing things seems to be clearly "Double Jeopardy" as defined in the US Constitution
* However, US accepts as valid systems of law that have provisions that are not the same as US law. For example, calunnia is not a criminal law that exists in the US, but if an American is convicted of that crime in Italy, US does not object (although an attempted extradition for it might be interesting)

So, in what case does the US object and assert that the law of that country is not acceptable, and will not allow an extradition?

One stipulation is that the offense must be punishable by law in both states. Since calunnia is not a criminal law in the U.S., Knox could not be extradited for calunnia under the treaty.

There is no wording in the treaty stipulating that extradition can be denied if the rights of the defendant were violated in the requesting country, which seems like a large omission and is basically trusting the foreign country to get it right (i.e. no human rights abuses and they follow their own rules). The implication is that if the U.S. follows the letter of the treaty then they should extradite Knox. The wording sucks though and I don't know if the U.S. government has an obligation to protect its citizens from this kind of thing. Seems a bit absurd if not, but who knows how international politics works at this level.

 

[Dougm]

One stipulation is that the offense must be punishable by law in both states. Since calunnia is not a criminal law in the U.S., Knox could not be extradited for calunnia under the treaty.

There is no wording in the treaty stipulating that extradition can be denied if the rights of the defendant were violated in the requesting country, which seems like a large omission and is basically trusting the foreign country to get it right (i.e. no human rights abuses and they follow their own rules). The implication is that if the U.S. follows the letter of the treaty then they should extradite Knox. The wording sucks though and I don't know if the U.S. government has an obligation to protect its citizens from this kind of thing. Seems a bit absurd if not, but who knows how international politics works at this level.

Right, and since it appears that Italy routinely violates the rights of people per US standards, and the US has not been objecting before this, it is hard to say how this would turn out. I suspect it is just too high profile for them to ignore the violations, however.

 

[Samson]

In my opinion, the biggest no no in Amanda's (and RS's) conviction is the use of things found in Guede's trial as part of the rationale for their conviction. Using conclusions found in a trial where they were not represented, did not get to present evidence and testify, is a huge violation of the US concept of justice. Combine that with the fact that Guede was a witness at their trial but was not allowed to be questioned about what he presented (don't get me going on him not even testifying, just having a letter read in court).

My understanding is that in America an accused, Knox, would have an inviolable right to interrogate her accuser, Guede, under any and all circumstances. The sleight of hand allowing Mignini to keep Guede silent in Italy, could not happen in America. Any thoughts?

 

[Dougm]

My understanding is that in America an accused, Knox, would have an inviolable right to interrogate her accuser, Guede, under any and all circumstances. The sleight of hand allowing Mignini to keep Guede silent in Italy, could not happen in America. Any thoughts?

I can't imagine. It is a fundamental right of US law that an accused must be able to face his/her accuser. The idea that there are witnesses that cannot be cross examined is anathema to US justice.

Amanda and Raffaele were not even allowed to ask any questions of Guede themselves during his appearance. The idea that a witness would come into court, have the prosecutor read a letter that serves as a stand in for testimony, then not allow cross examination??? Yikes.

Of course, there are many other violations that the good people here have pointed out. That one just blows my mind.

 

[NotEvenWrong]

Hi Dougm, Numbers, NotEvenWrong;

Here's an article from a leading expert in extradition law, Cherif Bassiouni, who concludes Amanda Knox is unlikely to be extradited if such a request were made, precisely because of the Hellman acquittal. Appafntly there is a clause in the extradition treaty that reflects the US prohibition against double jeopardy, as a practical matter, even if not considered exactly so by the country engaing in it:

Here's the link:

http://blog.oup.com/2014/04/is-amanda-knox-extraditable-from-the-united-states-to-italy/

And he's a few paragraphs from the article, worth a read if you have a chance.

I don't understand his analysis at all. Article 6 states:

"Extradition shall not be granted when the person sought has been convicted, acquitted or pardoned, or has served the sentence imposed, by the Requested Party for the same acts for which extradition is requested."

"The Requested Party" is the U.S. in this case, right? How does his reasoning apply?

 

[Numbers]

Hi Dougm, Numbers, NotEvenWrong;

Here's an article from a leading expert in extradition law, Cherif Bassiouni, who concludes Amanda Knox is unlikely to be extradited if such a request were made, precisely because of the Hellman acquittal. Appafntly there is a clause in the extradition treaty that reflects the US prohibition against double jeopardy, as a practical matter, even if not considered exactly so by the country engaing in it:

Here's the link:

http://blog.oup.com/2014/04/is-amanda-knox-extraditable-from-the-united-states-to-italy/

And he's a few paragraphs from the article, worth a read if you have a chance.

Yes, thanks for pointing this out. I understand that Professor Bassiouni is a highly-regarded expert in the field of international law.

I am not really clear on what he is saying in this article, though. The actual treaty text has, in Article VI:

Article VI

Non Bis in Idem

Extradition shall not be granted when the person sought has been convicted, acquitted or pardoned, or has served the sentence imposed, by the Requested Party for the same acts for which extradition is requested.

For Amanda Knox, Italy would be the Requesting Party and the US would be the Requested Party. Amanda has not been convicted, acquitted or pardoned by any court in the US for the crimes against Meredith Kercher alleged to have been committed by Amanda in Italy. From my reading, I simply don't understand how Professor Bassiouni is reading the text.

 

[Samson]

Yes, thanks for pointing this out. I understand that Professor Bassiouni is a highly-regarded expert in the field of international law.

I am not really clear on what he is saying in this article, though. The actual treaty text has, in Article VI:



For Amanda Knox, Italy would be the Requesting Party and the US would be the Requested Party. Amanda has not been convicted, acquitted or pardoned by any court in the US for the crimes against Meredith Kercher alleged to have been committed by Amanda in Italy. From my reading, I simply don't understand how Professor Bassiouni is reading the text.

I read that some time ago, and it has always been reasonably obvious that Bassiouni was simply mistaken, and this may serve best as a lesson to never rely on one opinion as the final word, but to go to source documents where possible.

 

[carbonjam72]

Yes, thanks for pointing this out. I understand that Professor Bassiouni is a highly-regarded expert in the field of international law.

I am not really clear on what he is saying in this article, though. The actual treaty text has, in Article VI:



For Amanda Knox, Italy would be the Requesting Party and the US would be the Requested Party. Amanda has not been convicted, acquitted or pardoned by any court in the US for the crimes against Meredith Kercher alleged to have been committed by Amanda in Italy. From my reading, I simply don't understand how Professor Bassiouni is reading the text.

IIUC, he's saying that the Hellman acquittal, as well as the two other convictions, amount to distinct "court trials" as a matter of law, regardless of how Italy may wish to describe them as part of an on-going process with multiple stages and a single as yet undetermined outcome. Each trial counts as a trial on the same acts, facts or conduct, reaching different conclusions.

In other words, double jeopardy is barred by the US-Italy extradition treaty provision itself, even though the ECHR case law has not yet ruled Italy's process to violate ECHR convention against double jeopardy, nor has the US supreme court raised the constitutional issue in regard to double jeopardy, IIUC.

I'm surprised this is causing confusion, I'm not sure I see what the disclarity is here?

Everybody has been arguing over whether double jeopardy would apply because of Hellman's acquittal. Prof Bassioumi seems to be saying yes, but in accordance with the extradition treaty itself, rather than direct recourse to the US constitution, or ECHR case law, or Italian constitutional law (which also bars double jeopardy - and I believe was raised by Carlo Della Venova as an appeal issue for Amanda to cassation in March).

 

[Numbers]

IIUC, he's saying that the Hellman acquittal, as well as the two other convictions, amount to distinct "court trials" as a matter of law, regardless of how Italy may wish to describe them as part of an on-going process with multiple stages and a single as yet undetermined outcome. Each trial counts as a trial on the same acts, facts or conduct, reaching different conclusions.

In other words, double jeopardy is barred by the US-Italy extradition treaty provision itself, even though the ECHR case law has not yet ruled Italy's process to violate ECHR convention against double jeopardy, nor has the US supreme court raised the constitutional issue in regard to double jeopardy, IIUC.

I'm surprised this is causing confusion, I'm not sure I see what the disclarity is here?

Everybody has been arguing over whether double jeopardy would apply because of Hellman's acquittal. Prof Bassioumi seems to be saying yes, but in accordance with the extradition treaty itself, rather than direct recourse to the US constitution, or ECHR case law, or Italian constitutional law (which also bars double jeopardy - and I believe was raised by Carlo Della Venova as an appeal issue for Amanda to cassation in March).

Well, I can only say, read Article Vi of the treaty carefully, and judge whether or not you believe those words exclude double jeopardy as practiced in Italy (or any Requesting Party), or whether it merely prevents one of the countries from seeking to extradite and prosecute for the same crimes someone who has been already been prosecuted or pardoned for those crimes in the other country.

This wording of Article VI actually has no bearing on the US Government not extraditing someone in Amanda Knox's position to protect her US Constitutional rights with respect to not being subject to double jeapordy, IMO. There is a US Supreme Court decision that no treaty signed by the US Government can override the US Constitution and the rights it gives US persons. That decision has not, however, been applied to this specific situation.

ETA: And the double jeopardy issue is almost minor compared to the other issues in this case, including actual innocence (meaning no probable cause); if someone actually innocent is extradited, it violates that person's 4th Amendment rights. The denial of discovery and the denials of confronting a witness and of the examination of related proceedings (Guede's fast-track trial results used in the AK-RS trial) is a violation of 6th Amendment rights.

 

[Numbers]

Regarding double jeopardy and the ECHR, as Diocletus has pointed out the ECHR does not like to see convictions on appeal which follow acquittals where the same evidence is used for both trials.

I have earlier posted several ECHR cases where such convictions were judged unfair, a violation of Convention Article 6. In particular, in those cases the ECHR objected to the fact that the convicting court did not hear witnesses or the defendant, but merely did a review of the lower court's records, while of course the lower court had conducted a trial de novo. This describes the situation with the Nencini court provisional conviction and the Hellmann court acquittal.

 

[Desert Fox]

I think it might be important to think about what the framers of the original treaty meant by it. The US is not allowed to seek the death penalty from people extradited from Italy and that the reverse is that Italy is not to subject Americans to double jeopardy. Granted, I might be going a bit far in my opinion.

 

[Desert Fox]

They do? I can't help thinking about poor Debra Milke, where the Prosecution and Judge blocked evidence of past lying and inventing evidence by the key witness against her. Who happened to be a cop -- a cop who repeatedly broke the law, then lied about it. I am sure there are others.

I agree this case probably breaks a record for number of Italian laws simply ignored and not followed. In the US, when they wrongfully convict someone, at least they try to claim they followed the law.

Trying to get my wording right here. . . .Of course US police, prosecutors, and judges bend the truth all the time. Cops claim that they do not threaten the defendant while they do.

What I have seen on a number of cases where the defendant either states that they do not wish to speak and/or that they wish for a lawyer then there is an immediate problem. If the interrogation continues and the person implicates themselves, the evidence gets tossed or if it does go on, the trial almost always gets quickly overturned.

Italian law seems clear that if you state anything that implicates yourself, you are suppose to be given immediate access to a lawyer before such testimony is accepted. I also think that any judge that states that the defense has to prove contamination would get fried in a higher court.

 

[Numbers]

....

This wording of Article VI actually has no bearing on the US Government not extraditing someone in Amanda Knox's position to protect her US Constitutional rights with respect to not being subject to double jeapordy, IMO. There is a US Supreme Court decision that no treaty signed by the US Government can override the US Constitution and the rights it gives US persons. That decision has not, however, been applied to this specific situation.

...

From US Senate Committee on Foreign Relations
Executive Report 109-19 (Relating to a new extradition treaty with the UK)
http://www.gpo.gov/fdsys/pkg/CRPT-109erpt19/html/CRPT-109erpt19.htm

{Bold emphasis added.}

....Although Article VI of the U.S. Constitution provides that all treaties made
shall be the ``supreme Law of the Land,'' the Supreme Court has made clear that a treaty cannot violate the Constitution. ``It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights--let alone alien to our entire
constitutional history and tradition--to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions.'' Reid v. Covert, 354 U.S. 1, 17 (1957).

....The second proviso addresses a provision of recently enacted United Kingdom domestic law that may allow for the retrial in the United Kingdom, in certain limited circumstances, of an individual who has been previously tried and acquitted in that country in a manner that would not be
permitted in the United States under the Double Jeopardy clause of the U.S. Constitution. Although U.S. courts have indicated that extradition in such contexts is not barred, and although retrial or prosecution appeal after acquittal is often permitted in European countries with civil law traditions, it
is uncommon in the Anglo-American system. Accordingly, the committee sought to call attention to the provision. The proviso notes that, although the Treaty does not address this situation, it is the understanding of the Senate that under U.S. law and practice a person sought for extradition can
present a claim to the Secretary of State that an aspect of foreign law that may permit retrial may result in an unfairness that the Secretary could conclude warrants denial of the extradition request. It urges the Secretary to carefully review any such claims involving a request for extradition in the rare case where this provision of United Kingdom domestic law is implicated.

 

[Samson]

I think it might be important to think about what the framers of the original treaty meant by it. The US is not allowed to seek the death penalty from people extradited from Italy and that the reverse is that Italy is not to subject Americans to double jeopardy. Granted, I might be going a bit far in my opinion.

If the state department are persuaded that AK is innocent, and it certainly seems some within the department probably are, I would hope they would seize the Hellmann judgement as the last one that could apply under American process, and use that chapter and verse to tell the Italians to "take a running jump".
This would also serve to make the PMFers and their British allies self destruct in apoplectic rage. That would be sublime.
Let us not forget the state department thought the file was closed in 2011.

 

[AmyStrange]

-

I realize there has been much discussion over whether the Nencini trial amounts to "double jeopardy" for Knox and Sollecito, and it seemed like the consensus opinion (or at least a common opinion) was that since the Italian trials are a 3 stage process with appeals that Knox/Raf aren't formally acquitted until all 3 phases are exhausted.

But, here's the thing -- it seems like all this is doing is re-defining what double jeopardy means so that we can explain away the process used in Italy. Double jeopardy is the re-trial of someone under the same or similar charges. Hellman acquitted Knox and Sollecito by any reasonable definition of acquittal. The word "acquit" is actually used in his report. That decision was appealed by the prosecution. In the U.S. this is the exact thing that is not allowed because of double jeopardy prohibitions in the Constitution. The only exception to this is if the defendant was never in jeopardy in the first place (clearly not the case here).

So the explanation seems to be that Knox/Sollecito were never actually "acquitted" because the appeals process hadn't been exhausted. This is simply re-defining acquittal and double jeopardy so that Italy can potentially skirt the part of the treaty not allowing double jeopardy. Surely Italy can't simply redefine "acquittal" or "double jeopardy" to suit their own purposes in this case. The entire point of double jeopardy prohibitions is to not allow appeals of acquittals. Just because double jeopardy (as defined by the U.S. constitution) is a part of the process in Italy does not make it no longer double jeopardy for purposes of extradition. What am I missing? Is the argument that this isn't "actually" double jeopardy simply political wrangling?

-

What I don't understand is why did they let Amanda leave the country if the whole trial process wasn't done?

d

-