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.
I haven't seen anything to suggest an acquittal at first stage followed by a conviction at second stage would be exceptional, and I can't really see any reason it should be less common than an acquittal following a conviction. I'd guess a confirmation of the first verdict is the most common outcome, but that a reversal in either direction isn't unusual.
The first two stages of the trial could certainly be seen as part of the same whole, as you say; or all three stages could be seen as part of the same whole; or each stage could be seen individually. Any way you slice it, the fact the prosecution can appeal counts as double jeopardy, as the U.S. understands it.
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.
Sure, I understand you weren't arguing that the Italian system itself violates the double jeopardy clause. But my point was that - taking your argument to its logical conclusion, and applying U.S. standards of double jeopardy to the Italian system - it
is in violation of that clause. Hence the problem with strictly applying U.S. concepts of double jeopardy to a foreign legal system.
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, actually I agree with you that the grounds for denying extradition are quite limited, certainly much more so than I’d thought before learning more about it. What made this hit home for me was reading about the Turkish case: the court basically acknowledged that the evidence may well not prove guilt beyond a reasonable doubt, but noted that since an extradition hearing isn’t a trial, the court only needed to find sufficient evidence to show probable cause. Hence despite a possible lack of evidence, and despite a legal process which clearly violates U.S. standards of double jeopardy, it allowed extradition.
So I guess my conviction that extradition wouldn’t go ahead in the Knox case really has no legal grounds, it’s only based on my perhaps cynical belief that
a reason would be found to prevent it happening – even if that were quibbling over spelling errors!
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?
As I understand it, there are various options open to the Supreme Court, one of which is overturning the verdict without returning the case to a previous court for re-trial. For example, in
this case the Supreme Court acquitted a defendant who'd been convicted in the first two stages because "il fatto non sussiste".
At this point I don't think it matters either way though, since I think the 're-trial' aspect is a bit of a red herring.
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.
[...]
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?
However, look at the wording of the extradition treaty: the clause only applies when the person has been convicted, acquitted or pardoned
by the Requested Party - that is, in this case, the United States. The article doesn't apply to double jeopardy in Italy, if Italy is the party requesting extradition.
Apparently the current US-Canada treaty is the same, only providing protection from double jeopardy in the territory of the requested state. Hence in
Canada v Schmidt, another extradition case, the judge ruled that the double jeopardy article in the treaty didn’t apply:
Canada v Schmidt said:
Article 4(1)(i) expressly provides that extradition shall not be granted "‑‑When the person whose surrender is sought is being proceeded against, or has been tried and discharged or punished in the territory of the requested State for the offense for which his extradition is requested" (emphasis added). If the parties had considered that double jeopardy in the requesting state should be a valid defence at an extradition hearing, one would have thought the treaty would have referred to it since the parties evidently adverted to the issue. The truth is that the parties obviously understood the practical difficulties of providing for such a defence at the hearing, leaving it, like other trial matters, to be dealt with in the requesting country. That is what is done under most of the treaties. When states wish to provide for a defence of autrefois acquit in circumstances where the fugitive has already been tried in the requesting state, or elsewhere for that matter, they expressly provide for it; see, for example, the extradition treaty with Israel, article 4, Canada Treaty Series 1969, No. 25.
As another example, the
UK-US extradition treaty provides for double jeopardy protection in the requested state and in a third state, but not in the requesting state.
UK-US Extradition Agreement said:
1. Extradition shall not be granted when the person sought has been convicted or acquitted in the Requested State for the offense for which extradition is requested.
2. The Requested State may refuse extradition when the person sought has been convicted or acquitted in a third state in respect of the conduct for which extradition is requested.
So after reading clause 6 more carefully (and assuming I'm reading it correctly! It's a little ambiguous, but the quote you posted seemed to clarify it), I don't think it would apply to this case at all. I guess the reasoning is that a double jeopardy defence in the 'requesting state' should be raised at trial, not in an extradition hearing.
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?
As above, I don't think clause 6 applies here. However, Italy does have double jeopardy restrictions, written in
Article 649 of the Italian Code of Criminal Procedures. So that would be the determinant as to whether double jeopardy applied in a particular Italian case.
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:[…]
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.
The various decisions in the Turkish case could certainly be seen as part of the same process (and were obviously seen that way by the U.S. court) but only in the same way that the three stages of an Italian criminal case can also be seen as part of the same process. As you say, Siddali was eventually found guilty by the General Board. However, he was initially acquitted by the first court, following which the prosecution appealed to the Supreme Court, which annulled the acquittal and returned the case to the first court for a retrial - i.e. exactly what would happen if the Italian Supreme Court annulled the Hellmann decision and returned the case to the second court for retrial. When the first court again stubbornly acquitted Siddali, the case was reviewed by the General Board, which finally convicted him.
To me the parallels seem obvious: here's a case which has gone back and forth between various courts following prosecution appeals, where retrials and acquittals have occurred before the final conviction, yet all this obviously didn't constitute double jeopardy for extradition purposes.
In the Canadian case, I don't think it matters why they were acquitted initially, since the U.S. court wouldn't have been considering the merits of the case when it ruled on double jeopardy. The important thing is that the court decided the successful prosecution appeal
did count as double jeopardy by U.S. standards, but ruled that this was no barrier to extradition. Hence U.S. concepts of double jeopardy obviously aren't strictly applied in extradition cases.
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 guess my current position (having noticed the 'Requested State' thing!) is that clause 6 doesn't apply at all, so any appeal would have to reference the Fifth Amendment; and that previous rulings show that U.S. courts don't strictly apply U.S. concepts of double jeopardy in extradition cases, recognizing that different legal systems inevitably have different concepts of double jeopardy.
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 refer my honourable friend to the response I posted a few paragraphs above (the one about the Turkish/Canadian cases).
Now I know at least half or more are gals! And some of the worst ones! I remember finding out Bard was a she and being surprised. I thought of Bard as being kind of a nice but not all that bright guy before that. 
Mine is Draca ending in a feminine A not O! It was so offensive. Why doesn't my femininity come through as obvious in my posts?! Of course I spent a lot of time talking about bloody crime scene photos and analysis of how just how the murder happened without batting a lash, so maybe that was why? 
) are female. Every one knows women often use words to hurt. I was even a victim of the mean girls in school. I was surprised though. There are some posters I would be shocked by their writing to find out they are actually female - Kevin Lowe and Bruce Fisher for example seem very male in style imo. Rose seems very feminine to me, but rumor is that might not be so. That's the online world for ya.