Apologies for the late reply Kaosium; I am (as always...) catching up! I know the topic has moved on but I did want to reply anyway, as I find it an interesting subject; I'm sure it'll come round again in another hundred pages or so...
I certainly agree with you that governments don't hand over citizens or those in their country automatically, once an extradition request is made. But it doesn't follow from this that the U.S. (or any other country) requires a foreign legal system to be exactly equivalent to their own on matters like double jeopardy for an extradition to go ahead.
After seeing your evidence it would appear you've a compelling argument, however I am unsure whether all of it would apply to this case.
In this case, a strict application of the double jeopardy rule – as the U.S. understands it – would mean that the three stage process of the Italian system is itself in violation of the bar on double jeopardy, given that the second stage is essentially a new trial, with new jurors and a new verdict. Crucially, it's possible for a defendant to be acquitted in the first stage, only to be convicted in the second – something which could never happen in the U.S. Since everyone charged with a criminal offence in Italy (AFAIK) goes through the three trial system, every Italian criminal case would potentially violate the double jeopardy rule. Why would the U.S. have an extradition treaty with Italy at all, if it's basically unenforceable?
I assumed it was rare enough it wouldn't matter. How often do you think this happens? I'd come across a couple of things that suggested that even the prosecution getting a conviction after an acquittal in the Trial of the First Instance was rare, just as it was rare for them to appeal one, the case of that Moldavian was supposedly somewhat unique. (at least as far as murder cases go) However those can also be seen as part of the same whole, both part of the Italian procedure for determining guilt or innocence.
The Supreme Court doesn't do that, it can only rule on matters of law, i.e. technicalities, everything I've come across has suggested that. I'm unfamiliar with them having any powers to decide Amanda and Raffaele are guilty or innocent of their own accord, thus both have been past the 'trier of fact before a jury' element of their trials.
Incidentally, I didn't say that the Italian System
itself would be in violation of the double-jeopardy clause because of potential cases like those above, merely that I'd read rumblings by those in European law that would like to get rid of those prosecution appeals. What I was arguing was that
after the trial of the Second Instance that the prosecution appealing to the Supreme Court of Cassation to strike down the acquittal would constitute in effect double-jeopardy as it would have to go through yet another trial before a jury, or 'lay judges' which amount to the same thing.
As CDHost argued earlier, a case could be made that the simple fact the U.S. has an extradition treaty with Italy implies an acceptance of at least the basic processes of the Italian legal system, especially combined with the fact that the Senate has recognized the Italian system as fully valid. It's not that I think double jeopardy couldn’t be raised as an objection to extradition, nor even that it wouldn't be successful (though I'm inclined to think it wouldn't, looking at some of the other cases where it's been tried). But I do think that this is a really complicated question - it's not as simple as claiming double jeopardy, and extradition then automatically being denied.
Note that as far as I can see neither of the two cases had gone through a jury trial and received an acquittal. The Turkish case was dismissed twice by a 'three judge panel' (no mention of the Court of Azzizes) and the Canadian hash case was also dismissed by the Judge on what seems to be a legal technicality, which was reversed and they were found guilty at the same trial. I wouldn't have thought either would have tripped the double-jeopardy protections I was referring to.
I think it was very obvious to anyone with half a brain that if Amanda was acquitted and released, there's no way she'd be extradited from the United States, whether double jeopardy played a part or not! I credit Comodi with having half a brain.
It is much less obvious now, at least to me. Outside the probable cause clause, what do you see as a bar on extradition? The 'double jeopardy' clause was the obvious one, she'd been through the entire process through the triers of fact and had been acquitted, that would seem to invoke them.
Yes, both the ECHR and the Schengen Agreement (providing for extradition between member states) recognize double jeopardy as applying only when a decision is final and enforceable. Hence it can’t apply to an ongoing case where no final decision has been reached.
I guess that's how they played it in 1974 with Canada, though it's interesting the way it's phrased, though this is pretty convincing:
United States Bloomfield v. Gengler E Ettinger[/quote said:
Appellants' position, to paraphrase the language of the treaty, is that a full application of the laws of the place where the fugitives were found would not justify their apprehension and commitment for trial if the crime had there been committed.2 That is to say, in New York there could have been no conviction after an acquittal and for that reason no grounds for their apprehension. We decline to adopt this rather novel reading of the treaty. We note in passing our agreement with the appellants that, even though no final judgment of acquittal had been entered, there would have been double jeopardy in the United States, United States v. Sisson, 399 U.S. 267, 302-307, 90 S.Ct. 2117, 26 L.Ed.2d 608 (1970); Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962), a rule of federal constitutional law applicable to the states under Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), overruling Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937). See generally Note, Government Appeals of 'Dismissals' in Criminal Cases, 87 Harv.L.Rev. 1822 (1974).
I totally agree that there are serious problems in the Italian legal system, and those problems might well be serious enough for the U.S. to reconsider having an extradition treaty with Italy (just as there are solid reasons why Italy might want to reconsider having an extradition treaty with the U.S. Very few countries can take the moral high ground on this one, IMO). But none of this is relevant to the double jeopardy question.
I guess not, I just posted that as a reminder that the length of proceedings is not the only area in which the Italian Court System is found wanting, you'd mentioned something about that if I recall correctly. As a result it doesn't strike me as unlikely that the procedures of the Italian courts systematically run afoul the ECHR.
I’m still not sure that they can’t (in theory, at least) annul the second Court’s judgment and leave Massei’s verdict as the effective one, without returning the case to an earlier court. They can certainly do this if the outcome is acquittal, so the question is only whether they can do the same when the result is a conviction.
My understanding is they would need to retry the case at the
Corte d'Assise d'Appello level. I don't get how they could just void that acquittal and pretend that means they don't get that level of due process. Where does that come from, that the Court of Cassation can decide that the Hellmann Court is null and void and there is no retrial?
Oh, of course I can't disagree that a prosecution appeal would violate double jeopardy rules in many countries. But how this translates into judgments on extradition is
complicated. I ran across this quote in my Google adventures just now, by Chief Justice Rehnquist: "the decisional law in the area of double jeopardy is a veritable Sargasso Sea which could not fail to challenge the most intrepid judicial navigator". As a confused judicial surfer of a mere hour or two, I can only agree.
I think it's too simplistic to look at the article on double jeopardy in isolation and assume that it's enough in itself to deny extradition; you need to look at the way double jeopardy has been considered
in practice, not simply in US criminal trials but in other extradition cases, with Italy and with other countries. Precedent is important, which is why I asked Bruce if he knew of other cases where the double jeopardy issue had arisen.
My googling turned up
this case which may be relevant, involving extradition to Canada. As you noted, in Canada the prosecution can appeal; in this case drugs charges against the defendants were dismissed initially by the Court, the prosecution appealed and the appellate court convicted. The defendants argued double jeopardy, and the court agreed that this would have constituted double jeopardy in the U.S., but nonetheless rejected it as a defence against extradition.
Yes, I found that quite compelling, I quoted it above. Another thing I can think of is that the treaty with Canada didn't include a double jeopardy clause like the one with
Italy does, I found it interesting that the defense didn't attempt to use a
Non Bis in Idem defense, but tried to sneak it in through the prohibition insisting that it had to be an offense in both states. The treaty with Italy reads:
US/Italy Extradition treaty said:
Articles 5, 6, 8 and 9 state mandatory grounds for refusal of extradition. Article 5 provides that extradition shall be denied when the offense for which extradition is requested is a political or military offense. Article 6 provides that extradition shall be denied when the person sought has been in jeopardy in the requested State for the same offense.
<...>
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.
Here's where the concept is explained by the Congressional Research Service:
Congressional Research Service said:
Double Jeopardy
Depending on the treaty, extradition may also be denied on the basis of a number of procedural considerations. Although the U.S. Constitution’s prohibition against successive prosecutions for the same offense does not extend to prosecutions by different sovereigns, it is common for extradition treaties to contain clauses proscribing extradition when the transferee would face double punishment and/or double jeopardy (also known as non bis in idem). The more historic clauses are likely to bar extradition for a second prosecution of the “same acts” or the “same event” rather than the more narrowly drawn “same offenses.” The new model limits the exemption to fugitives who have been convicted or acquitted of the same offense and specifically denies the exemption where an initial prosecution has simply been abandoned.
Thus double jeopardy is a mandatory grounds for refusing extradition in the treaty with Italy for certain, is that the case with the UK or Canada? The treaty with Italy was 1984, the court case with Canada was 1974, perhaps that clause exists in the Italian treaty because of that court case?
When I was looking for information about that case, I found it had been mentioned during a Senate
hearing in 2006 to discuss the UK-US extradition treaty, in relation to a UK law which allows for re-trial after acquittal in certain circumstances. Paul McNulty and Samuel Witten were asked a question about the possible double jeopardy implications for the U.S. with regard to extradition:
Yes that would seem to seal it...except for one thing. What's all that nonsense about clause six above, if it doesn't matter a whit? If Italy has no double-jeopardy restrictions, despite the ECHR which it categorically and regularly flouts, what is to determine what constitutes double-jeopardy? It doesn't appear there was a clause of this nature in the Canadian case that everything seems to refer to, otherwise they would have mentioned it as opposed to the way they did, wouldn't you think?
Perhaps what clause six above refers to is in treaties such as this then US law does determine what double-jeopardy entails? Canada and the UK do indeed have double-jeopardy restrictions, you might even say they precede US law, thus perhaps in those cases there's no need for it to be determined. However if Italy does not, then what would be the determinant?
The other case mentioned there -
Siddali v Immigration and Naturalization Service - is also worth a look. Siddali was acquitted of rape and murder in Turkey by the first court, the prosecution appealed to the Supreme Court of Appeals (which can only consider points of law), and it annulled the judgment, returning the case to the original court for review and a new judgment. The first court again acquitted, and the decision then went to the General Board for review. This court annulled the acquittal, found him guilty, and then returned the case to the lower court for sentencing. A clear-cut case of double jeopardy by U.S. standards - yet apparently not a bar to extradition from the U.S.
I couldn't translate that case very well, it sounded like he was found guilty eventually by the General Board of the Criminal Panels of the Supreme Court of Appeals, but there was a mistake made and he was allowed to leave the country. Unlike the Italian Supreme Court of Cassation this General Board obviously is deciding on the facts of the case and can make that determination:
Sidali vs. INS said:
Thus, the Court of Appeal did not convict Sidali when it reversed the trial court's first judgment; on remand, the trial court could have insisted (and did insist) on its judgment of acquittal. In contrast, the trial court did not have discretion to insist on its second judgment when that judgment was reversed by the General Board. Decisions of the General Board are therefore final. When the General Board voted to annul the trial court's second acquittal, it did not send the case back for a third trial; instead, its decision on the issue of guilt was final and the case was remanded for sentencing only. In other words, the decision of the General Board constituted a conviction under Turkish law.
Thus he was in fact guilty in his trial, and didn't receive a re-trial:
Sidali vs INS said:
Pursuant to the laws of the Republic of Turkey, Mehmet Semih Sidali has been convicted by the General Board of the Supreme Court of Appeals.... Since the highest Turkish criminal appellate court has ruled in this matter, there is no appeal from that decision. Mr. Sidali will not be entitled to a new trial....
This I can see as all part of the same process, the evidence was heard by two sets of judges and they were overruled by this General board on the basis of the same evidence at the same trial. In the Canadian case they were let off on a technicality that was reversed, thus they would have been found guilty if not for that (temporary) loophole. I'm not sure how those could be applied to a case where the accused were actually found innocent by the court.
Now, I'm sure there are arguments to be made that those cases are different in fundamental ways to the Knox case, and that may well be true. Perhaps there are other cases where judges have made different rulings, and other factors to take into account, as I'm obviously just skimming the surface here. But the more I read, the more I'm convinced that it's not as simple as shouting "double jeopardy! As WE understand it!" and the case ending there (even if none of this matters since
it's never going to happen 
).
You're right, it sure is a whole lot more complicated than I thought it was! It does seem like the Constitutional protections don't apply to extradition as absolutes. However I'm not entirely convinced that the double-jeopardy protection of clause six of the treaty doesn't preclude precisely this eventuality, the Supreme Court itself eliminating an acquittal and then remanding it to another court for a new trial. That clause 6 of the treaty must mean
something and it does say 'mandatory' and all. I guess the question is whether the acquittal by the Trial of the Second Instance constitutes an acquittal under article six of the treaty. Your position is that it does not because the Court of Cassation has not formally approved it, correct?
I remain uncertain, I think those other two cases were more along the lines of the Canadian one reversing a technicality in court that led to an acquittal, and the other one in Turkey being a process of the same case. Both those people were found guilty by the courts they tried (or kinda tried) to invoke double-jeopardy protections from, which isn't what the protection was supposed to inhibit.
Here it appears you're saying that the same standard that allows for reversing a decision where guilty people go free on a technicality (such as in the Canada case) should automatically apply to reversing an acquittal before a jury (or 'lay judges') on technical grounds and require them to stand trial again, without double-jeopardy protections. I dunno about that, it would be interesting to see how it would play out, but I think in essence these are two very different things, and allowing acquittals to be reversed on technicalities is not the same thing at all.
I mentally salute you for allowing them to call you, "Looney John": For me, this would now constitute a gesture of disrespect so uncalled for as to be untenable. A verbis ad verbera would be a real possibility at this juncture.
You are a strong person, and it was largely the desire to interact with you which propelled me to join this forum prior to the acquittals.
