Continuation Part Seven: Discussion of the Amanda Knox/Raffaele Sollecito case

[Grinder]

Unless you happen to be standing in a US courtroom, in which case the US Constitution does apply.

So any case where a foreign court system convicted a US citizen without a jury of their peers our court would find them not guilty or would refuse extradition?

The US constitution does not protect US citizens from their actions and consequences when abroad.

I would be helpful if those that believe otherwise to provide examples of cases where the US refused to extradite based on US constitutional rights that weren't observed elsewhere.

 

[Grinder]

I don't see it that way. The ISC, in its own opinion, acknowledged that it was exercising an extraordinary power in this case. That appellate court then went on to contradict the trial court's determinations concerning the credibility of witnesses and the weight to be given to their testimony. It then issued an opinion that can be construed as directing a new trial court to reach the opposite conclusion. It endorsed pseudo-scientific evidence that would be thrown out of a US court as "junk science."
This type of procedure goes to the heart of the reason for double jeopardy protection. Not only that, but it seems highly unusual as acknowledged by even the ISC, itself.

I think that the circumstances of this case are unlikely to be repeated, and a refusal to extradite under these circumstances would effectively create no significant precedent.

That has nothing to do with double jeopardy. The system in Italy allows the ISC to reverse an appellate court's ruling.

Double jeopardy is to protect people from being charged after being completely through with the process and found not guilty. Amanda and Raf never were found not guilty (or guilty for that matter) by the Italian system.

The new UK system allowing a case to be repeated in certain circumstances would violate DJ and our government most likely would not extradite.

If the defense can show that there was something untoward about the prosecution such as allowing tainted evidence, perhaps they would deny extradition but not because of DJ.

 

[Diocletus]

So any case where a foreign court system convicted a US citizen without a jury of their peers our court would find them not guilty or would refuse extradition?

The US constitution does not protect US citizens from their actions and consequences when abroad.

That's not what I said.

The US Constitution, in particular the Bill of Rights, protects US citizens from the actions of the US government. If you are standing in a US courtroom, you have rights, regardless of whether it is an extradition proceeding. That's why, for example, there is a probable cause requirement--the US Constitution requires due process before you can be turned over to the custody of another country. And, the Senate cannot enter into a treaty that trumps a US Citizen's minimum constitutional rights.

Query whether there is a circumstance under which the US government could extradite a person who has ben convicted in another country but can prove their actual innocence.

How would you feel about the US government arresting and extraditing innocent people?

 

[LondonJohn]

Of course, the ECtHR can order a new trial. So, let's see . . . hypothetically, the ECtHR determines that the Italian courts/process have violated Amanda Knox's human rights by conducting an illegal interrogation, and this is grounds for a new trial.

No, the ECHR has no power to order a new trial. What it does have is the authority to tell the signatory state (in this case, the Italian State) to address and remedy the situation. The Italian state would have the obligation to do so, so long as it is a signatory to the European Convention on Human Rights.

How the Italian State chooses to address and remedy the situation would be up to it. For example, if the ECHR were to rule that Knox's human rights were indeed infringed in relation to the criminal slander conviction, the Italian State could choose to remedy this by one of two measures: they could withdraw the prosecution on this charge (meaning that the court would quash the conviction and automatically acquit), or they could choose to retry Knox on this charge, excluding all prosecution evidence which the ECHR has ruled infringed Knox's rights (meaning that essentially it wouldn't be possible to put forward a compelling prosecution case anyhow).

If the Italian State refused or neglected to apply an appropriate remedy, the only other constitutional action available to it would be to withdraw as a signatory to the European Convention on Human Rights - a move that would have widespread ramifications well beyond this case. If the Italian State refused to apply remedies and refused to withdraw as a signatory to the Convention, there would be a constitutional crisis within the European political framework.

So, in summary: while the ECHR cannot tell European Sovereign States to acquit or retry, it can tell these countries to address and remedy the human rights abuses, so long as those countries remain signatories to the Convention. And in practice, this means that the ECHR actually can implicitly force acquittals or retrials - unless and until the country formally withdraws its signature from the Convention.

 

[Diocletus]

That has nothing to do with double jeopardy. The system in Italy allows the ISC to reverse an appellate court's ruling.

Double jeopardy is to protect people from being charged after being completely through with the process and found not guilty. Amanda and Raf never were found not guilty (or guilty for that matter) by the Italian system.

The new UK system allowing a case to be repeated in certain circumstances would violate DJ and our government most likely would not extradite.

If the defense can show that there was something untoward about the prosecution such as allowing tainted evidence, perhaps they would deny extradition but not because of DJ.

You're hanging your hat on semantics. Italy says it's not "final"? So what? It's the same process that is final elsewhere. The issue is the attachment of jeopardy and the determination of the jury. The argument will be made and it will be considered by the Secretary of State. In determining the issue, State will look at the acquittal proceeding and then the reason given for disturbing it. Maybe it will accept your argument that Italy simply has a different name for what we know as double jeopardy. Or, maybe he will say, "gee, all these guys really did was say they don't agree with the findings of fact made by the lower court, and then they told a different lower court to come up with the opposite verdict. That doesn't seem quite right. Let's see, what can I do about that . . ."

 

[Diocletus]

No, the ECHR has no power to order a new trial. What it does have is the authority to tell the signatory state (in this case, the Italian State) to address and remedy the situation. The Italian state would have the obligation to do so, so long as it is a signatory to the European Convention on Human Rights.

How the Italian State chooses to address and remedy the situation would be up to it. For example, if the ECHR were to rule that Knox's human rights were indeed infringed in relation to the criminal slander conviction, the Italian State could choose to remedy this by one of two measures: they could withdraw the prosecution on this charge (meaning that the court would quash the conviction and automatically acquit), or they could choose to retry Knox on this charge, excluding all prosecution evidence which the ECHR has ruled infringed Knox's rights (meaning that essentially it wouldn't be possible to put forward a compelling prosecution case anyhow).

If the Italian State refused or neglected to apply an appropriate remedy, the only other constitutional action available to it would be to withdraw as a signatory to the European Convention on Human Rights - a move that would have widespread ramifications well beyond this case. If the Italian State refused to apply remedies and refused to withdraw as a signatory to the Convention, there would be a constitutional crisis within the European political framework.

So, in summary: while the ECHR cannot tell European Sovereign States to acquit or retry, it can tell these countries to address and remedy the human rights abuses, so long as those countries remain signatories to the Convention. And in practice, this means that the ECHR actually can implicitly force acquittals or retrials - unless and until the country formally withdraws its signature from the Convention.

Makes sense. I thought that I had seen something about Italy passing domestic legislation granting retrials to victims of its ECHR Article 6 violations, but not sure about that.

Anyway, I think that an outstanding ECHR adjudication that Italy violated Knox's human rights would be a significant consideration and concern for a US judge.

 

[Bill Williams]

Richard Nixon: "if the President does it, it's not illegal."

My point was that even though the ISC can rule however it chooses within Italy, a US court taking into account the nature of the reasons given, would be on solid ground in declaring it Double Jeopardy.

What Nixon found out was that by a US Supreme Court vote of 8-0 (Justice William Rehnquist recused himself), there were some things the President could do which WERE illegal.

But I do agree with you. The big question is if that court in so ruling would see that as a bar to extradition.

 

[LondonJohn]

Makes sense. I thought that I had seen something about Italy passing domestic legislation granting retrials to victims of its ECHR Article 6 violations, but not sure about that.

Anyway, I think that an outstanding ECHR adjudication that Italy violated Knox's human rights would be a significant consideration and concern for a US judge.

As I said: in practice, the only available remedy for a signatory state that is on the wrong end of an ECHR ruling is either to grant a retrial to the person whose rights have been infringed, or to withdraw the prosecution entirely. Other than that, the only other possible option is to withdraw from the European Convention on Human Rights. All states who are signatories to the Convention are obliged in law to respect and adhere to the rulings of the ECHR, and are legally obliged to apply any required remedies.

So while it's correct to say that the ECHR cannot order sovereign states to retry or acquit, it can order them to apply proper remedies. And since in most instances, the only way to apply proper remedies is via retrial or directed acquittal, it means that in practice the ECHR has the implicit authority to insist on retrials or acquittals.

Anyway, I think that an outstanding ECHR adjudication that Italy violated Knox's human rights would be a significant consideration and concern for a US judge.

Yes - BUT:

1) Any ECHR adjudication is likely to be many years away - long after any potential extradition battle might be taking place, and

2) If the ECHR were to rule in this way, then Italy would be in practice obliged to retry or acquit Knox on the relevant charges anyhow. For example, if she happened to be in an Italian prison having been convicted on the murder charges, and the ECHR ruled (in, say, 2017) that her human rights were abused in relation to the murder convictions, then Italy would be essentially obliged to release Knox immediately and either arrange a retrial that respected the ECHR ruling, or direct an acquittal. Or withdraw as a signatory to the European Convention on Human Rights - a move that, as I said, would have other significant ramifications for Italy.

 

[Diocletus]

1) Any ECHR adjudication is likely to be many years away - long after any potential extradition battle might be taking place, and

2) If the ECHR were to rule in this way, then Italy would be in practice obliged to retry or acquit Knox on the relevant charges anyhow. For example, if she happened to be in an Italian prison having been convicted on the murder charges, and the ECHR ruled (in, say, 2017) that her human rights were abused in relation to the murder convictions, then Italy would be essentially obliged to release Knox immediately and either arrange a retrial that respected the ECHR ruling, or direct an acquittal. Or withdraw as a signatory to the European Convention on Human Rights - a move that, as I said, would have other significant ramifications for Italy.

Interesting.

I wonder what role the allegation of the human rights violation might play in a US extradition proceeding.

While the ECHR is not US law, a US judge of course will be aware of the allegations and the treaty. Moreover, the ECHR on the issue at hand, probably duplicates international treaty and common law, and well as US law.

What if the issue is raised and a US judge determines that there was in fact a human rights violation (by US or international standards) in the underlying proceeding? Is there a situation where the US could refuse extradition for this reason and/or grant extradition on the condition that there be a retrial, much like European countries have sometimes placed conditions on extradition to the US?

 

[Grinder]

International Covenant on Civil and Political Rights[edit]

The 72 signatories and 166 parties to the International Covenant on Civil and Political Rights recognise, under Article 14 (7):

No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

Jury Trial

By the time the United States Constitution and the Bill of Rights were drafted and ratified, the institution of trial by jury was almost universally revered, so revered that its history had been traced back to Magna Carta.42 The jury began in the form of a grand or presentment jury with the role of inquest and was started by Frankish conquerors to discover the King’s rights. Henry II regularized this type of proceeding to establish royal control over the machinery of justice, first in civil trials and then in criminal trials. Trial by petit jury was not employed at least until the reign of Henry III, in which the jury was first essentially a body of witnesses, called for their knowledge of the case; not until the reign of Henry VI did it become the trier of evidence. It was during the Seventeenth Century that the jury emerged as a safeguard for the criminally accused.43 Thus, in the Eighteenth Century, Blackstone could commemorate the institution as part of a “strong and two–fold barrier . . . between the liberties of the people and the prerogative of the crown” because “the truth of every accusation . . . . [must] be confirmed by the unanimous suffrage of twelve of his equals and neighbors indifferently chosen and superior to all suspicion.”44 The right was guaranteed in the constitutions of the original 13 States, was guaranteed in the body of the Constitu[p.1407]tion45 and in the Sixth Amendment, and the constitution of every State entering the Union thereafter in one form or another protected the right to jury trial in criminal cases.46 “Those who emigrated to this country from England brought with them this great privilege ‘as their birthright and inheritance, as a part of that admirable common law which had fenced around and interposed barriers on every side against the approaches of arbitrary power.”

Why not argue that a jury trial wasn't held against the US Constitution?

 

[Diocletus]

International Covenant on Civil and Political Rights[edit]

The 72 signatories and 166 parties to the International Covenant on Civil and Political Rights recognise, under Article 14 (7):

No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

Jury Trial

By the time the United States Constitution and the Bill of Rights were drafted and ratified, the institution of trial by jury was almost universally revered, so revered that its history had been traced back to Magna Carta.42 The jury began in the form of a grand or presentment jury with the role of inquest and was started by Frankish conquerors to discover the King’s rights. Henry II regularized this type of proceeding to establish royal control over the machinery of justice, first in civil trials and then in criminal trials. Trial by petit jury was not employed at least until the reign of Henry III, in which the jury was first essentially a body of witnesses, called for their knowledge of the case; not until the reign of Henry VI did it become the trier of evidence. It was during the Seventeenth Century that the jury emerged as a safeguard for the criminally accused.43 Thus, in the Eighteenth Century, Blackstone could commemorate the institution as part of a “strong and two–fold barrier . . . between the liberties of the people and the prerogative of the crown” because “the truth of every accusation . . . . [must] be confirmed by the unanimous suffrage of twelve of his equals and neighbors indifferently chosen and superior to all suspicion.”44 The right was guaranteed in the constitutions of the original 13 States, was guaranteed in the body of the Constitu[p.1407]tion45 and in the Sixth Amendment, and the constitution of every State entering the Union thereafter in one form or another protected the right to jury trial in criminal cases.46 “Those who emigrated to this country from England brought with them this great privilege ‘as their birthright and inheritance, as a part of that admirable common law which had fenced around and interposed barriers on every side against the approaches of arbitrary power.”

Why not argue that a jury trial wasn't held against the US Constitution?

Well, if there is an egregious enough violation of the jury trial concept, then perhaps under the reasoning of the Senate Memo. that I quoted, she could make such an argument to the Secretary of State, and he should seriously consider it.

 

[Grinder]

Well, if there is an egregious enough violation of the jury trial concept, then perhaps under the reasoning of the Senate Memo. that I quoted, she could make such an argument to the Secretary of State, and he should seriously consider it.

Quote:
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.

This doesn't apply to this case. This specifically addresses the changes in the UK.

Amanda and Raf were only charged once for this crime. They have not been retried. Here and in England a conviction can be undone by the appellate court and sent back to the lower court but that isn't double jeopardy.

The State Department could easily argue that in the US the kids wouldn't have given the second bite at the apple. They would just have been guilty.

 

[yimyammer]

If accurate, the timing of these comments by Amanda don't seem prudent:

[If convicted] legally I'll be defined a ‘fugitive,’ but I will continue to fight for my innocence,’’ Knox said in the statement. “I will not willingly submit myself to injustice."

She has suggested that she will not leave there even if the Italian court finds her guilty again, telling La Repubblica, “In that case, I will become, what do you call it? A fugitive.”

http://www.today.com/news/amanda-knox-i-will-become-fugitive-if-re-convicted-murder-2D11896258

 

[Diocletus]

This doesn't apply to this case. This specifically addresses the changes in the UK.

Agreed that it specifically addresses the changes in the UK. But what makes you sure that the same logic can't apply to this case?

Which is worse: being convicted in the UK on new evidence after you've been acquitted, or being convicted in Italy based on the very same evidence on which you've already been acquitted?

Amanda and Raf were only charged once for this crime. They have not been retried. Here and in England a conviction can be undone by the appellate court and sent back to the lower court but that isn't double jeopardy.

Jeopardy has attached three times. Call it what you want to.

The State Department could easily argue that in the US the kids wouldn't have given the second bite at the apple. They would just have been guilty.

No, they would have appealed, and the appellate court would have vacated /reversed the conviction as you note above. If they were acquitted in the subsequent proceeding, then there could be no third jury.

 

[Diocletus]

If accurate, the timing of these comments by Amanda don't seem prudent:







http://www.today.com/news/amanda-knox-i-will-become-fugitive-if-re-convicted-murder-2D11896258

Timing isn't great, but oh well.

If she is convicted because of these remarks, then that judge has serious issues.

 

[toto]

I am rather dispirited by all this talk about extradition. I still have hope all this will be moot. I was reading some of Bongiorno' s comments in the appeal and thought that :

" Amanda , however - continues Bongiorno - never pulls in Raffaele Sollecito , even when the investigators say he has accused her ." (La Nazione as google translated for a PGP site)

is really quite telling.

 

[Strozzi]

Timing isn't great, but oh well.

If she is convicted because of these remarks, then that judge has serious issues.

Please note that the wording in the headline and in the photo caption and first paragraph of this article is a mis-statement of what Amanda actually said.

Amanda said “ If convicted legally I'll be defined a ‘fugitive,’ but I will continue to fight for my innocence,’’ Knox said in the statement. “I will not willingly submit myself to injustice."

The headline states: "Amanda Knox: I will become a 'fugitive' if re-convicted for murder ".

The caption under the photo and the text of the first paragraph states it incorrectly as "Amanda Knox has reportedly told an Italian newspaper that if she is again convicted of murder, she will become a fugitive rather than return to an Italian prison."

Mis-statements are unfortunate realities in responding to interview questions, and can be compounded when the article is translated into another language. The only way Amanda, Raffaele, Mignini, and other principals in the case can protect themselves from having their precise statements modified by the media is not to speak with the media. That is not a limitation that Amanda and Raffaele are willing to put upon themselves, as the issues affecting them are too unjust for them to stay silent as non-persons.

 

[Grinder]

Agreed that it specifically addresses the changes in the UK. But what makes you sure that the same logic can't apply to this case?

Which is worse: being convicted in the UK on new evidence after you've been acquitted, or being convicted in Italy based on the very same evidence on which you've already been acquitted?

I'd say being charged a second time after being found innocent/not guilty is worse. They were charged once in Italy. They were found guilty. They appealed and the appellate court reversed the verdict but the SC found fault with that reversal and sent it back. This sort of thing happens here often and it isn't DJ.

I think the Italian system sucks. I think the mentality of the Italians is odd to say the least - compatible works - witness must be believed - judge can't open new 'exploration'.

Our system allows for more than two trials as long as the original charge was not adjudicated just like the Italian system in that regard.

 

[Bill Williams]

Please note that the wording in the headline and in the photo caption and first paragraph of this article is a mis-statement of what Amanda actually said.

Amanda said “ If convicted legally I'll be defined a ‘fugitive,’ but I will continue to fight for my innocence,’’ Knox said in the statement. “I will not willingly submit myself to injustice."

The headline states: "Amanda Knox: I will become a 'fugitive' if re-convicted for murder ".

The caption under the photo and the text of the first paragraph states it incorrectly as "Amanda Knox has reportedly told an Italian newspaper that if she is again convicted of murder, she will become a fugitive rather than return to an Italian prison."

Mis-statements are unfortunate realities in responding to interview questions, and can be compounded when the article is translated into another language. The only way Amanda, Raffaele, Mignini, and other principals in the case can protect themselves from having their precise statements modified by the media is not to speak with the media. That is not a limitation that Amanda and Raffaele are willing to put upon themselves, as the issues affecting them are too unjust for them to stay silent as non-persons.

Barbie Nadeau is making great hay out of this misstatement... I sometimes think Barbie could not care less about Meredith Kercher and whether or not Amanda is involved - Barbie is a bully, just wants to catch out Amanda looking stupid and then write something lurid about it.

I guess there's a small mercy - it's been a while since Barbie has written about student threesomes....

 

[moije2]

Double Jeopardy

There is a lot of room for discussion on the topic of double jeopardy. And it isn't so cut and dried. Food for thought: they don't like a decision at state court letting defendants off in politically charged case. So charges are brought in Federal court on essentially the same facts and alleged offense. Double jeopardy? Nope. We see this sort of thing all the time in the US. So ok we can't get someone on one charge and we later bring a related charge - but just not the same charge.

"they can walk like me, talk like me, cuss like me, but just not quite me!" (my paraphrasing by memory)

So the offense to the morality and meaning of our constitutional rights etc being used as an argument in potential extradition will need political momentum at minimum. IMO.