Continuation Part 3 - Discussion of the Amanda Knox case

[LondonJohn]

If that's the callunia law, it's hard to understand how the remaining charge against Knox can stand.

(1) She didn't fabricate evidence (e.g. plant something incriminating).
And even if the note she wrote somehow constitutes evidence..

(2) She didn't know Patrick was innocent. It's clear that she had been persuaded by the police that he might have done it. She wasn't there, so it was a possibility.

Given the fact of her innocence, she had no reason to accuse Patrick falsely, so there is no reason to doubt the clear evidence she gave on this.

I'd like to see this cleared up mainly so that the Italian justice system is seen to be just. On the other hand, I guess if the verdict stands, it will be a rallying point for reform for many decades. It's now the Italian justice system that is really on trial here, not Amanda. They can choose to remain a laughing stock, or take a more sensible course.

Ah, no, In this case, Knox's written statement is classed as evidence under the wider definition of evidence. And the same would be true of any testimony obtained under the appropriate circumstances (e.g. under caution, via a lawyer, or in a courtroom under oath). So when Knox signed a statement that she agreed were her own words, in which she stated that she and Lumumba had gone to the cottage and that Lumumba had killed Meredith, she was indeed "fabricating evidence" that directly accused Lumumba of the criminal act of murder.

So that's not the reason why Knox should not be convicted of a criminal slander against Lumumba. Unless she is claiming that the statements were forged (which she isn't), then it's inarguable that she made a false accusation against Lumumba. But the crucial issue concerns the circumstances in which Knox might have made these statements, and whether she had the requisite mens rea for the criminal act of the slander (mens rea is a difficult concept to explain briefly, but essentially it concerns intent (or indirect intent through omission or negligence)). For example, if the police interview that night gone had something like this....

Police: "Tell us what you know about the night of the murder, Amanda. Did you murder Meredith"

Knox: "No, but I'll tell you who did: Patrick! He and I went to the cottage and I stood in the kitchen while he killed Meredith."

... then Knox would truly be guilty in Italian law of criminal slander against Lumumba. No question whatsoever.

However, what appears to have actually happened was significantly different to the above scenario. It appears that the police may have improperly and unlawfully coerced Knox to make these statements, chiefly by convincing her that she had suffered traumatic amnesia. It also seems that they coupled this "traumatic amnesia" technique with an improper argument that they had solid evidence pointing to Lumumba as the killer, and that Knox could help the police, the Kercher family and herself by helping the police arrest and charge Lumumba. And it also appears that they threatened Knox with far harsher punishment if she didn't "remember" meeting Lumumba etc, and that they may have helped these threats along with a little casual physical violence.

If some or all of the above is true, then it can probably be shown that Knox did not have the requisite mens rea for the crime, even though she did factually make the false accusation. Some of the police's unlawful behaviour can be proven - chiefly the "traumatic amnesia" element, owing to the unwittingly honest testimony of the police interpreter (who herself also unwittingly admitted to stepping well outside her interpreter remit during the interrogation). In addition, Perugia police chief De Felice's infamous statement from the following morning's press conference - which clearly implied that the police "knew" prior to Knox's "confession/accusation" that Knox, Lumumba and Sollecito had jointly perpetrated the crime - is a strong indication that the police planted the accusations against Lumumba into Knox's mind. But of course we may never know exactly what transpired in the Perugia police HQ interrogation room that night, because the police and prosecutors claim that the interrogation was never recorded in either audio or video format.

So, in summary, the issue under consideration is not whether Knox actually provided false evidence against Lumumba accusing him of the murder: that much is provably true. The issue is whether Knox made those accusations with the requisite mens rea for it to be called a criminal act on her part. I personally believe that the requisite mens rea cannot be proven, and that therefore Knox should not be convicted of this crime. I further believe that the charge is appealable to the Supreme Court (for different, more procedural reasons), and that any retrial on this charge alone ought to result in acquittal.

 

[LondonJohn]

And I generally agree with your longer version.

"Anyone who with a denunciation, complaint, demand or request, even anonymously or under a false name, directs a judicial authority or other authority that has an obligation to report, to blame someone for a crime who he knows is innocent, that is he fabricates evidence against someone, shall be punished with imprisonment from two to six years. "

i'm not intending to start a Mach/LJ debate but I'm sure that there is a crime in Italy for giving false testimony. If it's not calunnia then they should be charged with that crime whatever it is...

As I alluded to in my above post, the "fabrication of evidence" must be a fabrication of evidence of a criminal act in order to constitute calunnia if it turns out to be knowingly false. Neither Curatolo nor Quintavalle made accusations of criminal activity. What they did do was give false testimony which happened to support the prosecution case and which directly contradicted the defendants' cases.

Therefore, the most that these two......ahem...."gentlemen" could ever be charged with is perjury (or an Italian equivalent). However, even that charge is exceptionally unlikely, since the courts would have to find that the false testimony had been knowingly false. In most cases of perjury, this part of the case can only be proven if there's evidence contradicting the original testimony, of which the person accused of the perjury would have been aware at the time (for example, suppose that Quintavalle had testified in late November 2007 to seeing Knox at his shop at 7.45am on the 2nd November 2007, yet hospital records showed he was in a hospital bed from the 1st to the 10th November). Or sometimes a perjury conviction is obtained if another person comes forward to testify that the person accused of the perjury admitted to him/her that the original testimony was false. Those are the sorts of circumstances where a perjury conviction can be secured.

In the case of Curatolo and Quintavalle, however, they will both have a near-airtight defence against any potential perjury charges: both will claim that if their testimony was in fact false, then they were honestly mistaken rather than deliberately mendacious. And it would probably be impossible for a court to prove otherwise. So if I were you I'd lay to rest any ideas of bringing charges against either man - it's simply not going to happen. They are both despicable individuals though, for what they said and how they said it.

 

[LondonJohn]

Incidentally, I can tie my previous two posts together with a simple example:

If Knox's statements of the 6th November 2007 had only stated that she had met with Lumumba and gone with him to the cottage, but that she had left to go back to Sollecito's - leaving Lumumba and Meredith alone together in the cottage - then she would never have even faced the possibility of a calunnia charge. It is only because she specifically and directly accused Lumumba of a criminal act - the murder of Meredith - within her statements that she finds herself in potential trouble.

 

[LondonJohn]

By the way, doesn't Mignini's appeal trial on his various abuse of office charges start on Tuesday (22nd)?

I trust this is one trial that won't be adjourned or postponed. And I sincerely hope that Mignini gets exactly what he deserves - nothing less and nothing more......

 

[geebee2]

..

The "mens rea" is one argument, but isn't the fact that she didn't believe Patrick to be innocent constitute a more direct defence?

She simply, and with truth, reported her memories.

The note confirmed that these were confused, due to the pressure she had been placed under. And later events proved her to be correct - she was correct to doubt the reliability of these confused memories. If anyone fabricated evidence, it was the police.

I don't see how you can be convicted for telling the truth!

 

[davefoc]

Incidentally, I can tie my previous two posts together with a simple example:

If Knox's statements of the 6th November 2007 had only stated that she had met with Lumumba and gone with him to the cottage, but that she had left to go back to Sollecito's - leaving Lumumba and Meredith alone together in the cottage - then she would never have even faced the possibility of a calunnia charge. It is only because she specifically and directly accused Lumumba of a criminal act - the murder of Meredith - within her statements that she finds herself in potential trouble.

I'm a tad confused here. You seem to be talking about the 6th November note. Where in there is an unequivocal accusation against Lumumba?

Text of the note from the IIP site:
I put the note in a spoiler because I'm sure most people have seen it many times and I didn't want to take up unnecessary space. I copied it so that I could be sure that this was what LJ was talking about.

[FONT=Georgia, Times, serif]Transcript of Amanda Knox's handwritten statement to police on the evening of November 6, the day she was arrested:
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[FONT=Helvetica, Arial, sans-serif]This is very strange, I know, but really what happened is as confusing to me as it is to everyone else. I have been told there is hard evidence saying that I was at the place of the murder of my friend when it happened. This, I want to confirm, is something that to me, if asked a few days ago, would be impossible.
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[FONT=Helvetica, Arial, sans-serif]I know that Raffaele has placed evidence against me, saying that I was not with him on the night of Meredith's murder, but let me tell you this. In my mind there are things I remember and things that are confused. My account of this story goes as follows, despite the evidence stacked against me:
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[FONT=Helvetica, Arial, sans-serif]On Thursday November 1 I saw Meredith the last time at my house when she left around 3 or 4 in the afternoon. Raffaele was with me at the time. We, Raffaele and I, stayed at my house for a little while longer and around 5 in the evening we left to watch the movie Amelie at his house. After the movie I received a message from Patrik [sic], for whom I work at the pub "Le Chic". He told me in this message that it wasn't necessary for me to come into work for the evening because there was no one at my work.
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[FONT=Helvetica, Arial, sans-serif]Now I remember to have also replied with the message: "See you later. Have a good evening!" and this for me does not mean that I wanted to meet him immediately. In particular because I said: "Good evening!" What happened after I know does not match up with what Raffaele was saying, but this is what I remember. I told Raffaele that I didn't have to work and that I could remain at home for the evening. After that I believe we relaxed in his room together, perhaps I checked my email. Perhaps I read or studied or perhaps I made love to Raffaele. In fact, I think I did make love with him.
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[FONT=Helvetica, Arial, sans-serif]However, I admit that this period of time is rather strange because I am not quite sure. I smoked marijuana with him and I might even have fallen asleep. These things I am not sure about and I know they are important to the case and to help myself, but in reality, I don't think I did much. One thing I do remember is that I took a shower with Raffaele and this might explain how we passed the time. In truth, I do not remember exactly what day it was, but I do remember that we had a shower and we washed ourselves for a long time. He cleaned my ears, he dried and combed my hair.
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[FONT=Helvetica, Arial, sans-serif]One of the things I am sure that definitely happened the night on which Meredith was murdered was that Raffaele and I ate fairly late, I think around 11 in the evening, although I can't be sure because I didn't look at the clock. After dinner I noticed there was blood on Raffaele's hand, but I was under the impression that it was blood from the fish. After we ate Raffaele washed the dishes but the pipes under his sink broke and water flooded the floor. But because he didn't have a mop I said we could clean it up tomorrow because we (Meredith, Laura, Filomena and I) have a mop at home. I remember it was quite late because we were both very tired (though I can't say the time).
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[FONT=Helvetica, Arial, sans-serif]The next thing I remember was waking up the morning of Friday November 2nd around 10am and I took a plastic bag to take back my dirty cloths to go back to my house. It was then that I arrived home alone that I found the door to my house was wide open and this all began. In regards to this "confession" that I made last night, I want to make clear that I'm very doubtful of the verity of my statements because they were made under the pressures of stress, shock and extreme exhaustion. Not only was I told I would be arrested and put in jail for 30 years, but I was also hit in the head when I didn't remember a fact correctly. I understand that the police are under a lot of stress, so I understand the treatment I received.
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[FONT=Helvetica, Arial, sans-serif]However, it was under this pressure and after many hours of confusion that my mind came up with these answers. In my mind I saw Patrik in flashes of blurred images. I saw him near the basketball court. I saw him at my front door. I saw myself cowering in the kitchen with my hands over my ears because in my head I could hear Meredith screaming. But I've said this many times so as to make myself clear: these things seem unreal to me, like a dream, and I am unsure if they are real things that happened or are just dreams my head has made to try to answer the questions in my head and the questions I am being asked.
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[FONT=Helvetica, Arial, sans-serif]But the truth is, I am unsure about the truth and here's why:
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[FONT=Helvetica, Arial, sans-serif]1. The police have told me that they have hard evidence that places me at the house, my house, at the time of Meredith's murder. I don't know what proof they are talking about, but if this is true, it means I am very confused and my dreams must be real.
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[FONT=Helvetica, Arial, sans-serif]2. My boyfriend has claimed that I have said things that I know are not true. I KNOW I told him I didn't have to work that night. I remember that moment very clearly. I also NEVER asked him to lie for me. This is absolutely a lie. What I don't understand is why Raffaele, who has always been so caring and gentle with me, would lie about this. What does he have to hide? I don't think he killed Meredith, but I do think he is scared, like me. He walked into a situation that he has never had to be in, and perhaps he is trying to find a way out by disassociating himself with me.
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[FONT=Helvetica, Arial, sans-serif]Honestly, I understand because this is a very scary situation. I also know that the police don't believe things of me that I know I can explain, such as:
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[FONT=Helvetica, Arial, sans-serif]1. I know the police are confused as to why it took me so long to call someone after I found the door to my house open and blood in the bathroom. The truth is, I wasn't sure what to think, but I definitely didn't think the worst, that someone was murdered. I thought a lot of things, mainly that perhaps someone got hurt and left quickly to take care of it. I also thought that maybe one of my roommates was having menstral [sic] problems and hadn't cleaned up. Perhaps I was in shock, but at the time I didn't know what to think and that's the truth. That is why I talked to Raffaele about it in the morning, because I was worried and wanted advice.
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[FONT=Helvetica, Arial, sans-serif]2. I also know that the fact that I can't fully recall the events that I claim took place at Raffaele's home during the time that Meredith was murdered is incriminating. And I stand by my statements that I made last night about events that could have taken place in my home with Patrik, but I want to make very clear that these events seem more unreal to me that what I said before, that I stayed at Raffaele's house.
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[FONT=Helvetica, Arial, sans-serif]3. I'm very confused at this time. My head is full of contrasting ideas and I know I can be frustrating to work with for this reason. But I also want to tell the truth as best I can. Everything I have said in regards to my involvement in Meredith's death, even though it is contrasting, are the best truth that I have been able to think.
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[FONT=Helvetica, Arial, sans-serif]I'm trying, I really am, because I'm scared for myself. I know I didn't kill Meredith. That's all I know for sure. In these flashbacks that I'm having, I see Patrik as the murderer, but the way the truth feels in my mind, there is no way for me to have known because I don't remember FOR SURE if I was at my house that night. The questions that need answering, at least for how I'm thinking are:
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[FONT=Helvetica, Arial, sans-serif]1. Why did Raffaele lie? (or for you) Did Raffaele lie?
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[FONT=Helvetica, Arial, sans-serif]2. Why did I think of Patrik?
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[FONT=Helvetica, Arial, sans-serif]3. Is the evidence proving my pressance [sic] at the time and place of the crime reliable? If so, what does this say about my memory? Is it reliable?
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[FONT=Helvetica, Arial, sans-serif]4. Is there any other evidence condemning Patrik or any other person?
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[FONT=Helvetica, Arial, sans-serif]3. Who is the REAL murder [sic]? This is particularly important because I don't feel I can be used as condemning testimone [sic] in this instance.
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[FONT=Helvetica, Arial, sans-serif]I have a clearer mind that I've had before, but I'm still missing parts, which I know is bad for me. But this is the truth and this is what I'm thinking at this time. Please don't yell at me because it only makes me more confused, which doesn't help anyone. I understand how serious this situation is, and as such, I want to give you this information as soon and as clearly as possible.
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[FONT=Helvetica, Arial, sans-serif]If there are still parts that don't make sense, please ask me. I'm doing the best I can, just like you are. Please believe me at least in that, although I understand if you don't. All I know is that I didn't kill Meredith, and so I have nothing but lies to be afraid of.
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[FONT=Helvetica, Arial, sans-serif]End of Amanda's note. [/FONT]

 

[geebee2]

To give a hypothetical example. Suppose Alice is hypnotised by Bruce and shown a film of somebody committing a murder. So a false memory is created.

Then Alice gives a statement to the police, recalling that memory.

Surely in this case it is Bruce that has committed callunia, not Alice.

 

[smkovalinksy]

To give a hypothetical example. Suppose Alice is hypnotised by Bruce and shown a film of somebody committing a murder. So a false memory is created.

Then Alice gives a statement to the police, recalling that memory.

Surely in this case it is Bruce that has committed callunia, not Alice.

Yes.

 

[katy_did]

Latest reeeally long reply to Kaosium. Non-law geeks, scroll, scroll, scroll...

I got a different impression, that a conviction at a the Trial of the First Instance and then an acquittal at the Trial of the Second Instance was not unusual at all, but the opposite was in fact rather unusual, perhaps even exceptional for murder cases. I'd be delighted to get firmer information on this, and it just re-occurred to me reading this post you speak Italian! Could you find out for us? One thing that bugged the hell out of me this whole debate was the percentage of Trials of the First instance that resulted in acquittals or adjustments in the Trial of the Second Instance. I've seen figures from 33% to 60-some percent with the high number coming from our own Machiavelli, and I'm not entirely sure I understood exactly what he was referring to in all instances.

I think Machiavelli has answered this, by suggesting that a reversal of the verdict at the second stage isn't unusual. He's better placed to comment than me, but that's my impression too. It's obvious, of course, that the most common outcome of a case would be the same verdict being confirmed at all three stages: first, because most cases are likely to be fairly clear-cut; and second, because once the first court has reached a decision, the chances of the second court reaching the same decision based on the same evidence would naturally be higher. But where a reversal occurs, I see no reason to believe it happens significantly more often in one direction than the other.

That's true, which is why I dropped the contention that simply prosecutor appeals are a determinant of double-jeopardy.

So what's your current determinant of what should count as double jeopardy in an extradition case? I'm curious as to where and why you draw the line between acceptable violations of the double jeopardy rule (as the US understands it), and unacceptable violations of it.

To me it looks like your objection is about prosecution appeals, but specifically prosecution appeals to the Supreme Court.

My position was more nuanced, in that it allowed for the normal course of the process, but that the Supreme Court of Cassation striking down the acquittal and remanding it for another trial, the basis of the discussion as I understand it, would be an event unforeseen and thus uncovered by treaty and judgment would have to be based on other considerations, at which time questions of double-jeopardy would arise.

I totally disagree here. I don't think you can call something "an event unforeseen" when all you need do to foresee it is to read Wiki (or alternatively, Article 623 of the CPP). Prosecution appeals at each stage of the process are allowed in Italy, and (since the SC can't rule on facts) the inevitable outcome of a successful prosecution appeal at SC level is returning the case to a lower court for reconsideration. This is all part of the normal course of the process, and your choice to call just one of the possible outcomes "unforeseen" seems arbitrary. The same happens in the Supreme Courts of other countries allowing for prosecution appeals, like France for example: "The typical outcome of a successful appeal is setting aside of the lower court's decision and remittal for reconsideration".

As a comparison, take the death penalty. This applies to a tiny minority of cases in the US, yet Italy quite incredibly managed to foresee that it might happen and included a death penalty clause in the treaty. For the U.S. to now say "Oh, we just didn't know something like that could ever happen and anyway, we didn't think it happened that often!" just doesn't cut it.

Plus, the possibility that the Supreme Court of Cassation might annul a verdict is kind of indicated in the name, surely? That the Supreme Court of Striking Things Down sometimes strikes things down shouldn't be a surprise.

I am unsure just how comparable the Italian Court System is to the Turkish one of the Seventies, other than they were partners in 'crime' at the ECHR for violations during that period.

In other words I don't know how to 'translate' that case, I don't know what it means that the General Board struck down the acquittals before the 'Three Judge Panels,' and found him guilty, was that a system where one is (was?) considered guilty until proven innocent?

At any rate do you consider that case an absolute indication of what could or could not be decided by a court in the hypothetical extradition case?

I do not.

Your bemusement at the (to me) obvious parallels of this case to the one we're discussing apparently equals my bemusement at your bemusement.

Let's leave the General Board out of it, if you like, and just look at the actions of the Supreme Court. The Turkish guy was acquitted by the High Criminal Court - equivalent to the first court in other countries, making a decision on the merits of the case. Then the prosecution appealed to the Supreme Court, which can only rule on points of law. That court annulled the acquittal, and returned the case to the first court for a retrial.

Hopefully we can agree that the sequence of events here is near-identical to the hypothetical sequence of events we're discussing. According to your argument, this should have been a bar to extradition. It wasn't: in fact all the U.S. court was concerned about was whether, according to Turkish law, a final verdict had been reached. They even referred to a note from the Turkish embassy explaining when a person is finally convicted under Turkish law.

Extrapolating from this case, we can say that the kind of 'retrial' we're discussing has happened in previous extradition cases without being a reason to refuse extradition. And while I don't think it's 'definitive', it is an indication as to how courts in future cases might rule on the same issue.

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.

That means that there is no double-sovereign exception to the principle of double-jeopardy.

OK, now I'm even more bemused! No, it doesn't: it means that extradition should be refused if a person has been convicted, acquitted or pardoned in the requested state. Nothing more or less than that.

That is a good quote! It seems with the above you have crafted an argument that double-jeopardy protections don't even exist in extradition, unless it is to sort out possible 'turf wars' on jurisdiction...

Erm, hold on a minute! The reason I pointed out that Article 6 only applies to the 'requested state' is because you said you thought Article 6 might apply to situations like this one. So I was just pointing out that it doesn’t apply here at all. That isn't the same thing as saying 'double-jeopardy protections don't even exist in extradition'. I call straw man.

.. It seems to me that's the position the Canadian Supreme Court has taken, which is all well and good for Canada , but not really relevant to the United States , or to the rest of the world who considers it a potential bar on extradition. I think this following quote is more relevant to this specific case though:

We are dealing with a hypothetical situation where the Supreme Court of Cassation strikes down the Hellmann court verdict, and in your view can then declare Amanda and Raffaele guilty, or in the other view remand the case back to another court for another trial, upon which time either extradition is requested, or they are tried in absentia and then extradition demanded so they serve their sentence in Italy. That would require a fundamental injustice to occur, Raffaele and Amanda's acquittal which was based on a rational view of the evidence to be scuttled in favor of whichever technicality won the day with the Supreme Court of Cassation.

Therefore perhaps the reason why the courts didn't bar extradition in cases where drug smugglers had their conviction dismissed on a technicality that was reversed, or this case where it amounted to claiming the difference between kidnapping and child-stealing was not distinctive enough, was because it didn't meet the bar of 'real substance?'

My suspicion is that the sequence of events that must occur for that acquittal to be struck down would meet that bar, and that a gross injustice would occur for Amanda and Raffaele to have their acquittal voided or reversed. Since the principal violated in this travesty, were it to occur, would be that they must stand trial again for an act they were already acquitted for, my guess is in refusing the extradition request they would invoke the fundamental right of double-jeopardy protection and insist that the Hellmann Court rendered a final judgment which could not be struck down by whatever technicalities Mignini managed to get past that august body.

You left out the first part of the quote from the Canadian ruling, which needless to say I think is the more relevant one.

Generally, there is nothing unjust in surrendering to a foreign country a person accused of having committed a crime there for trial in accordance with the ordinary procedures prevailing in that country, even though those procedures may not meet the specific constitutional requirements for trial in this country.

That aside, I think you’re confusing several different issues here. The Canadian and U.S. courts didn’t rule that the evidence was so strong that a fundamental human rights breach didn’t matter – it’s not as if there’s a set of scales with ‘evidence’ on one side and ‘human rights’ on the other, and if the evidence side is heavier it outweighs the person’s human rights! The ‘real substance’ test applies to the double jeopardy claim itself, whether that situation amounts to a fundamental human rights breach in any particular case.

You seem to be suggesting that a court would rule that double jeopardy occurred because the evidence was lacking – that one legal principle would be twisted in order to deny extradition on completely different grounds. That doesn’t make sense to me. If the acquittal were reversed on a technicality and the evidence was lacking, leading to a "gross injustice" and a "travesty", then the obvious grounds for appeal would be lack of probable cause, not double jeopardy.

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.

I get the impression you are looking for exceptions rather than the rule.

Not sure why you’re under the impression the UK-US treaty is an exception? In fact it’s pretty typical: the only unusual thing is that it protects against double jeopardy in a third state, where most recent US treaties only mention the ‘requested state’. This is from the Senate hearing on the UK-US treaty, mentioned earlier:

All of our modern extradition treaties contain provisions comparable to Article 5(1) of the proposed U.S.-U.K. extradition treaty, which bars extradition if the person has been convicted or acquitted in the requested state. The issue of whether a person sought for extradition has a valid defense to criminal prosecution based on a prior conviction or acquittal in the requesting state is appropriately adjudicated in the courts of that state.

Hence it isn't just those quirky Canadians who interpret lack of a 'requesting state' clause as implying such matters should be dealt with by the requesting state.

 

[katy_did]

And again...

Extradition shall be refused if the offence in respect of which extradition is sought is under investigation in the requested State or the person sought to be extradited has already been tried and discharged or punished or is still under trial in the requested State for the offence for which extradition is sought. [snip]

2.1 Double jeopardy
Many contain a provision that deals with the issue of ‘double jeopardy’ (also known as ne bis in idem). This principle essentially means that a person should not be tried or punished twice for the same offence. This means that extradition for the purpose of prosecution can or should be refused if the subject has already been tried or punished for the offence (whether in the requesting State, requested State or a third country). [snip]

The European Commission on Human Rights has in recent decisions indicated that Art. 6(3) of the Convention, which guarantees that a person charged with a criminal offence has certain minimum procedural rights, might under certain circumstances prevent a double conviction in the same Treaty state.[snip]

How will Australia consider double jeopardy? Double jeopardy is the principle that a person should not be twice tried or punished for the same offence or for offences arising from the same conduct.[snip]

With respect, the above quotes only state what we know already: that double jeopardy is a principle of international law (I already pointed out that both Italy and the US are signatories to the IICP human rights treaty, even if in the latter case membership is more theoretical than practical). It seems that you're just addressing the aforementioned straw man argument, that I was claiming there is no double jeopardy protection in extradition cases.

That place is on the other side of the world so they might not have caught up to your more advanced views of what double-jeopardy protections should entail in extradition cases.

On the other side of the world from where?

More to the point, you're again confusing my views on double jeopardy protections (advanced or otherwise!) with the wording of the treaty. It's not my fault the clause only applies to the 'requested state', I didn't write it!

Clause Six simply makes refusal mandatory in those cases, it doesn't automatically allow all other possible infringements on a person's protections from double jeopardy. The UN explains it thusly:

Purpose

50. Subparagraph (d) applies the rule against double jeopardy, or non bis in idem, by providing a bar on extradition if the person has already been tried in the requested State for the offence for which extradition has been sought.

Application

51. States may wish to also apply the principle of non bis in idem/double jeopardy in cases involving the requesting State or a third State where the person has been subject to a final judgement and has served his sentence. This could be an optional exception to extradition rather than a mandatory ground if desired.

Yes, Italy and the US could have chosen to include a 'requesting state or a third state' clause in the extradition treaty, just as the UK-US treaty includes the optional reference to a 'third state'. They didn't. It can't just be added to the treaty in retrospect.

Note also the phrase "subject to a final judgment".

This would seem to prevent another trial, and article 69 paragraph two didn't seem to apply, nor did 345, seeming to refer to sentencing regarding aggravations and mitigations, and the latter to defacing billboards? One wonders why the exception would occur for such a desultory offense!

At any rate unless I see evidence to the contrary, it's my suspicion that another trial after an acquittal in the Trial of the Second Instance would in fact be an exceptional event, and one that might subsume this article 649 with technicalities elsewhere that wouldn't necessarily have to be recognized anywhere else.

Not sure of your point here... Article 649 bars someone from being prosecuted for a crime for which they've already been finally convicted or acquitted, so it's similar to double jeopardy clauses in other countries. I didn't see anything about defacing billboards though...?! Maybe you were looking at the Criminal Code, rather than the Code of Criminal Procedure?

However there is also the legal principle of double jeopardy that doesn't just exist in Clause Six, nor the Fifth Amendment, but is pretty well recognized in the international legal world, that Italy might be out of step with if there is another trial for murder because the Hellmann acquittal is struck down. I maintain that would be an extraordinary event, especially in this specific case, and would therefore be treated as such.

The extradition court has the capacity to refuse extradition for any number of reasons, including that they think the prosecution corrupt, like that Canadian judge did of American officials, but my guess is were push come to shove they'd be a bit more diplomatic and simply say that a retrial would be a violation of her human rights, and that broad category is the reserve of non bis in idem.

And yet, there's no evidence at all Italy is "out of step" with the international legal world in relation to double jeopardy, and certainly no more so than any other country allowing for prosecution appeals, like Germany, France, and Canada. Double jeopardy is prohibited in Italy on at least three counts: its own laws, the ICCPR treaty and the Schengen Agreement. And while you say that a Supreme Court annulment of the appeal verdict would be an 'extraordinary event', your distinction between ordinary legal proceedings and unforeseeable events seems very tenuous.

One of the reasons I've enjoyed this discussion (and thanks for being willing to discuss it in detail!) is because - aside from being a law geek - my view has changed during the course of it: from thinking maybe double jeopardy would be a valid grounds for appeal, though at the same time wondering how the U.S. could justify having an extradition treaty with Italy at all if it objected to basic parts of its legal system; to now thinking a U.S. court would be very reluctant to intervene simply on the grounds that double jeopardy attaches at a different stage of the process in Italy. Courts haven't ruled that way in the past in similar cases, and I think it would set too much of a precedent for one to do so here: your 'diplomatic' solution wouldn't exist in isolation, but would have an impact on future cases. The following quote is still the one I find most persuasive, first because it deals exactly with the situation we're discussing here, and second because it's a fairly recent quote (2003), suggesting the cases mentioned are still important today:

Generally, U.S. extradition courts do not inquire into questions of application and propriety of foreign procedural laws and rights or require that they comport with our own. This is true even with respect to procedural guarantees, such as our double jeopardy rule. See Neely v. Henkel, 180 U.S. 109 (1901). Moreover, it would be both difficult and inappropriate to strictly apply U.S. law regarding double jeopardy in the extradition context because there is considerable variation among nations in how and when double jeopardy concepts may apply. For example, while U.S. double jeopardy concepts bar the government from appealing a judgment of acquittal, such appeals by the prosecution are in fact quite common abroad, particularly among countries with a civil law tradition. See, e.g. Sidali v. Immigration & Naturalization Service, 107 F.3d 191 (2d Cir. 1997). Thus, U.S. courts have held that even where foreign procedures would have violated our double jeopardy bar had they occurred in the context of a U.S. criminal prosecution, this was not a basis for denying extradition. U.S. ex rel. Bloomfield v. Gengler, 507 F.2d 925, 927-928 (2d Cir. 1974)...

Thus, neither the terms of the proposed treaty or any other U.S. extradition treaty, nor U.S. caselaw, would per se bar extradition because procedures in the U.K. (or other foreign state) would not comport with U.S. double jeopardy requirements.

There are some very interesting quotes in that Neely v. Henkel case too, though I won't quote them because, y'know, that would make this even longer.

Have we had this conversation before? Like a year ago or so?

Not me. In fact I was under the impression this was one of the few topics not to have been discussed a gazillion times in the course of the thread.

 

[LondonJohn]

I'm a tad confused here. You seem to be talking about the 6th November note. Where in there is an unequivocal accusation against Lumumba?

Nooooo: I'm talking about the 6th November 1.45am and 5.45am statements made by Knox in the presence of the police and prosecutor respectively. These are the statements upon which the entire calunnia charge is based.

In those two statements, Knox makes direct (if confused) accusations that Lumumba murdered Meredith Kercher. I am tired and about to turn in for the night, otherwise I'd link to the relevant text of the statements in question. Perhaps someone on a US time zone would be able to point you in their direction. If you haven't located them by the time I next log on, I'll find and link to them myself.

 

[katy_did]

We have seen some pro-guilt posters claim that the SC is not at liberty to strike out the calunnia conviction without ordering a re-trial on all counts, but this has the ring of desperation on their part, for me. Is there any basis for this view (LJ)?

I don't know for certain, but Article 624 of the CPP talks about "Partial Annulment" (I'm assuming that annulment refers to either conviction or acquittal here). Since the different charges obviously aren't 'essentially connected', in the sense that being guilty of one inevitably means being found guilty of the rest, I can't see why the SC couldn't annul the calunnia charge and uphold the rest of the verdicts, in theory at least. Machiavelli may know more about whether that article applies here or not.

It doesn't make a whole lot of sense that it's an all or nothing deal, anyway. If Hellmann could convict on one charge and acquit on the others, I think the Supreme Court must be able to quash one verdict while upholding the others.

 

[LondonJohn]

The "mens rea" is one argument, but isn't the fact that she didn't believe Patrick to be innocent constitute a more direct defence?

She simply, and with truth, reported her memories.

The note confirmed that these were confused, due to the pressure she had been placed under. And later events proved her to be correct - she was correct to doubt the reliability of these confused memories. If anyone fabricated evidence, it was the police.

I don't see how you can be convicted for telling the truth!

I agree with you on very many levels. But the simple truth, which is provably correct, is that Knox signed two statements in the early hours of the 6th November 2007 in which she made direct accusations that Lumumba had murdered Knox.

You and I both agree that these statements were made under improper circumstances, and that these circumstances should mean that Knox did not actually commit a crime in making these accusations. But if a court does not believe that there were such extenuating circumstances, then a conviction for calunnia is very likely. The fault of the Hellmann court on this charge therefore is that it hasn't taken proper account of the circumstances, which tend to show that Knox did not have the requisite mens rea to have committed a criminal act in this instance.

And, by the way, the fact that she thought Patrick to be the killer is no defence in itself. In the same way, if Filomena thought that Knox was the killer, it would still be a potential crime if she actually gave false evidence of Knox killing Meredith (e.g. if Filomena testified that she had come back to the cottage and walked in on Knox stabbing Meredith). Whether Filomena "believed" Knox to be the killer or not would be immaterial in regard to the knowingly false testimony.

Don't get me wrong: I think that Knox should be acquitted of this charge. But my reasoning is different from yours. I think that the real reason why Knox should be acquitted is extremely nuanced, and it involves very specific elements of law. In simple terms, my argument is that while Knox did indeed make very specific false accusations of murder against Lumumba, she did so a) without the requisite mens rea (or, simplistically-put, without the necessary intent), and b) as a result of unlawful police coercion which included unlawful threats and persuasion of repressed memory.

Anyhow, I'm off to bed. Let's continue this debate soon though - it's one of the more interesting and debatable areas left in this case.

 

[LondonJohn]

I don't know for certain, but Article 624 of the CPP talks about "Partial Annulment" (I'm assuming that annulment refers to either conviction or acquittal here). Since the different charges obviously aren't 'essentially connected', in the sense that being guilty of one inevitably means being found guilty of the rest, I can't see why the SC couldn't annul the calunnia charge and uphold the rest of the verdicts, in theory at least. Machiavelli may know more about whether that article applies here or not.

It doesn't make a whole lot of sense that it's an all or nothing deal, anyway. If Hellmann could convict on one charge and acquit on the others, I think the Supreme Court must be able to quash one verdict while upholding the others.

Massei incorrectly ruled that the Lumumba slander charge was " in continuance" with the other charges - which essentially implies that they were all part of the same criminal enterprise and should be judged together. I believe that this is categorically incorrect as regards the slander charge, and that Knox's lawyers will be able to successfully separate this charge before the Supreme Court if they appeal it. Therefore, I believe that the Supreme Court will be able to send this charge alone to be retried at appeal court level if required.

 

[katy_did]

Massei incorrectly ruled that the Lumumba slander charge was " in continuance" with the other charges - which essentially implies that they were all part of the same criminal enterprise and should be judged together. I believe that this is categorically incorrect as regards the slander charge, and that Knox's lawyers will be able to successfully separate this charge before the Supreme Court if they appeal it. Therefore, I believe that the Supreme Court will be able to send this charge alone to be retried at appeal court level if required.

Ah, that may be the basis of Machiavelli's argument then.

But if this is the case, how was Hellmann able to separate the charges as he did? His ruling suggests the slander charge is independent of the other charges.

 

[Grinder]

I thought since the Hellmann verdict that he kept the calunnia verdict alive with a wink and a nod. I think he knows that they can appeal it on the basis that Massei should never have allowed the calunnia charge at the same trial as the murder etc. as the one would prejudice the other and the defense would put their yeoman's effort into the most serious charges.

 

[Grinder]

Ah, that may be the basis of Machiavelli's argument then.

But if this is the case, how was Hellmann able to separate the charges as he did? His ruling suggests the slander charge is independent of the other charges.

Did the appeal make this case? Could they make it before the innocent verdict on all the other charges?

Now that they are innocent of all the other charges, I believe the defense for Amanda can argue that the charges must be separated. If the Court of Cassation rules that Massei shouldn't have put them together and sends it back for a trial in first instance, I'll bet it will be dropped.

 

[katy_did]

Did the appeal make this case? Could they make before the innocent on all the other charges?

Now that they are innocent of all the other charges, I believe the defense for Amanda can argue that the charges must be separated. If the Court of Cassation rules that Massei shouldn't have put them together and sends it back for a trial in first instance, I'll bet it will be dropped.

Yeah, could well be. I think Frank made a good point about the acquittal happening in stages: Massei leaving the door open for Hellmann to acquit, Hellmann leaving the door open for the Supreme Court to annul the slander charge.

I'm not too sure whether they were able to argue that the calunnia was separate from the rest of the charges at the appeal, though I suppose they had bigger fish to fry then! I'll have to try and find out more about what the 'continuance' ruling means (and whether it has any implications for the Supreme Court) - I still don't quite understand why Hellmann was able to convict on one charge but acquit on the rest, if they're all sort of reliant upon one another.

 

[RandyN]

From ShrewsSheep&Jackals.org™ with her 9779th post the queen posts:

"I see no reason to think the crowd you refer to will ever stop disparaging PMF, however. I don't think most of them have any other pursuits."

Yes, that's it. It's because we have nothing else to do. It has nothing to do with your site.

ETA: She has more than 1/7 of total posts Pilot complains about being made over here.

PMF'ers ARE BIG FAT IDIOTS!!! There that took a whole 2 seconds of my life...

Now on to the truth seeking missile of defense....

Knowledge and Intent.

Both of these must be in place to uphold a conviction of calunnia. I can see no document or statement that Knox had both knowledge and or intent against Lumumba.

I think it is incorrect to study any statements made by Knox at 1:45 or 5:45 on November 6th, 2007 as these statements were ruled by The Italian Supreme Court as inadmissible and I think they even deemed them to be obtained illegally. Nuff said. Massei screwed the pooch by ignoring the Supreme Court.

That leaves the gift which I’m certain can be argued against due to knowledge and intent. Knox certainly had no knowledge that the police were lying to her and clearly could have no knowledge that Lumumba was innocent. Intent to harm was absent as confusedly as that may be to ascertain.

INTENT …The only clear intent of Knox was to stop the hitting and yelling and be given the chance to use the bathroom, get a drink, and to speak with an attorney. Because someone says something confusedly it will never prove intent.

SO...there was no intent!

Can the Supreme Court throw out the Hellmann ruling on the calunnia charge directly or must they send it back for a separate retrial?

I believe the Italian Supreme Court CAN throw this out directly. That is if the defense words the objection properly.

 

[loveredmond]

I really hope Amanda can recoup the financial lose that her family incurred during those 4 years. I guess many supporter also like to hear (or pay to read/watch) her story. But I haven't heard any interview/book/movie deal. Any insight when or ever she will break silence?