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

[Bill Williams]

If the U.S. is going to have extradition treaties at all, then I don't see how it can do otherwise than recognize that sometimes legal concepts might be defined differently in a different legal system. After all, if the U.S. decided to exclusively use its own definition of double jeopardy and say that Italy has violated it, then Italy could just as easily refuse to extradite on the grounds that the U.S. doesn't respect a person's right to be presumed innocent, given that in the U.S. you're presumed guilty after your initial conviction even if you intend to appeal, while in Italy you're presumed innocent right up until the final appeal. From an Italian perspective that would be a violation of the right to a fair trial, if they strictly applied their own concept of when a conviction is finalized.

I respectfully disagree with this, as a reason to have treaties, "at all."

Of course legal concepts will differ. If the differing legal concept puts too much of a strain on the basic rights afforded to a citizen in their own country, then that country can simply refuse to extradite.

The point is that a treaty simply gives reach into another country's legal system. They have "standing" in the application courts, where otherwise they wouldn't. I'm far, far from an expert on this - hopefully I'm not pretending to be one.....

.... but Canada does this all the time with extradition to the U.S., especially in death penalty cases. Why have a treaty at all with Canada if there are States in the U.S. which have the death penalty?

Canada will always seek a guarantee that the death penalty not be applied, or else - no extradition. It's as simple as that, and no one calls into question the fact that the USA has "reach" into Canada's courts through treaty.

 

[Mary_H]

Look at it this way. Either it is a violation of double jeopardy or it is a violation of the defendant's right to a speedy trial. Italy says, the trial isn't over until the Court of Cassation approves the verdict. Amanda and Raffaele have been under the tip of this sword for going on 7 years!!! At what point is enough enough?
The US has been renowned to have some lengthy legal trials, but seriously folks?

I think the Italian system sucks in regard to the length of time allowed to charge and then proceed with the trial and the length of the trial itself.

If we wanted to have speedy trial for our citizens then we should have included that in the treaty.

In the US murder trial including appeals last far longer than this one did.

If the US denies extradition on either of bases you suggest, no US citizen will be released by the Italians in the future until they have been set free by the full Italian process.

It's not as if the American Consulate in Rome didn't have any warning of this. The information that Italy's legal system is outmoded, overused and takes up to twenty years to process a case has been available in the media to anyone who looks for it, and the State Dept. has a duty to know the systems of countries in which it enters into treaties.

At the very beginning of the criminal process involving Amanda, they should have been Johnny-on-the-spot, getting their lawyers involved to monitor the egregious trumping-up of charges by Mignini and Matteini. Even if America wanted to give the Italians a chance to let their process play out, there were enough violations evident in the first year for American Judge Michael Heavey to recognize them and notify authorities in Italy. The American Consulate's lawyers should have done no less.

 

[Bill Williams]

Platonov didn't invent any of these excuses for the killers DNA being found on the victims bra - various groupies did.
[The bolded part should be self explanatory in this regard]

So by your logic five men killed Meredith. Thanks; that clears up quite a bit.

Damn - you beat me too it.

The cornerstone of all guilter arguments is to misstate the nature of the evidence. Add to this that platonov doen't even bother to try to explain how four other DNA signatures were on that clasp.

Was one of those other signatures Lumumba's? Maybe Lumumba DID do this crime? Was one of those signatures a male who worked in Stefanoni's lab? Did Stefanoni routinely collect DNA from her male colleagues for "ruling out" purposes?

My hope is that platonov does not suddenly stop posting here like guilters do. Machiavelli did. These are the reasons why.

 

[Desert Fox]

I also have little trouble with Italy doing the reverse. If they feel a trial in the United States violates a defendant's rights, they are perfectly within their rights not to extradite.

In the US, there have been a handful of cases where states have refused to extradite to another state.

 

[Bill Williams]

If the US denies extradition on either of bases you suggest, no US citizen will be released by the Italians in the future until they have been set free by the full Italian process.

This is silly. Extradition requests from countries are routinely denied, and there's never been a case of that denial messing up some future request.

In the Knox/Sollecito case, the pair were originally precautionarily detained because they'd been found to satisfy one or more of these criteria: flight risk, reoffending risk, or evidence tampering risk.

When Hellmann found them innocent, not just not-guilty but that the crimes did not exist so that there was (at that time) no legal reason to hold them.

Even Judge Nencini in Florence sustained this in reconvicting them, saying that Knox was legally abroad. The only precaution against Sollecito was ceasing his passport and travel documents. Even that is a lightweight precaution given that detention was also an option to Nencini.

 

[acbytesla]

I think the Italian system sucks in regard to the length of time allowed to charge and then proceed with the trial and the length of the trial itself.

If we wanted to have speedy trial for our citizens then we should have included that in the treaty.

In the US murder trial including appeals last far longer than this one did.

If the US denies extradition on either of bases you suggest, no US citizen will be released by the Italians in the future until they have been set free by the full Italian process.

There can be countless hearings and appeals in US trials but never for an acquittal Grinder.

What you suggest is very possible. But out of curiosity, how often do you think this happens? They will be in big trouble if they deny US citizens rights that they offer to their own citizens. That would destroy the treaty entirely. Do you think Italy wants to do that?

This is sort of a an International game of chicken. I don't see it.happening...but hey, what do I know?

 

[acbytesla]

This is silly. Extradition requests from countries are routinely denied, and there's never been a case of that denial messing up some future request.

In the Knox/Sollecito case, the pair were originally precautionarily detained because they'd been found to satisfy one or more of these criteria: flight risk, reoffending risk, or evidence tampering risk.

When Hellmann found them innocent, not just not-guilty but that the crimes did not exist so that there was (at that time) no legal reason to hold them.

Even Judge Nencini in Florence sustained this in reconvicting them, saying that Knox was legally abroad. The only precaution against Sollecito was ceasing his passport and travel documents. Even that is a lightweight precaution given that detention was also an option to Nencini.

I'm with you Bill on this. It is unlikely to become an International incident that would cause the treaty to be revoked or that would hamper US Italian relations. Why would it? Over some silly 26 year old woman that was accused of killing a single Bit..not an Italian citizen.

We still have an extradition treaty with Italy despite the US refusal to extradite Pilot Captain Richard J. Ashby, and his navigator, Captain Joseph Schweitzer after they caused 20 deaths in the Cavalese cable car tragedy.

 

[Diocletus]

There can be countless hearings and appeals in US trials but never for an acquittal Grinder.

What you suggest is very possible. But out of curiosity, how often do you think this happens? They will be in big trouble if they deny US citizens rights that they offer to their own citizens. That would destroy the treaty entirely. Do you think Italy wants to do that?

This is sort of a an International game of chicken. I don't see it.happening...but hey, what do I know?

I agree. I see zero evidence that they will wholesale deny US citizens normal privileges, and if they did, they would likely violate ECHR.

Anyway, apparently they already do what grinder is threatening. Knox was detained for a year because she was a foreigner. Why? There is an extradition treaty, so it wasn't even necessary.

 

[katy_did]

In addition, in the US we have allowed people to be charged and convicted of a crime after being found innocent for the same act in a different court.

The jury found Officer Laurence Powell and Sergeant Stacey Koon guilty, and they were subsequently sentenced to 32 months in prison, while Timothy Wind and Theodore Briseno were acquitted of all charges.​

Another example is Gabe Watson, who was convicted of manslaughter in Queensland, served his sentence, and was then tried again for murder in Alabama. It wasn't considered double jeopardy because the trials happened in different jurisdictions; the judge cited three other cases where people had been convicted of murder outside the U.S. and then tried again for the same crime within it. Admittedly Watson was tried again after a conviction rather than an acquittal, but there would've been nothing to stop them doing the same thing if he'd been acquitted: under the U.S. constitution it's fine to try people twice for the same crime, so long as the courts are in different jurisdictions or are state/Federal courts. So much for the right not to be tried twice being some kind of basic human right...

 

[katy_did]

I respectfully disagree with this, as a reason to have treaties, "at all."

Of course legal concepts will differ. If the differing legal concept puts too much of a strain on the basic rights afforded to a citizen in their own country, then that country can simply refuse to extradite.

The point is that a treaty simply gives reach into another country's legal system. They have "standing" in the application courts, where otherwise they wouldn't. I'm far, far from an expert on this - hopefully I'm not pretending to be one.....

.... but Canada does this all the time with extradition to the U.S., especially in death penalty cases. Why have a treaty at all with Canada if there are States in the U.S. which have the death penalty?

Canada will always seek a guarantee that the death penalty not be applied, or else - no extradition. It's as simple as that, and no one calls into question the fact that the USA has "reach" into Canada's courts through treaty.

I would say that the three stage process is such a basic part of the Italian legal system (and that of many other countries) that refusing to recognize the different stages of the process would make the treaty pretty meaningless; likewise, if Italy decided it wasn't going to accept the U.S. definition of when an acquittal/conviction is final, but was going to apply its own standards, the treaty would basically be unworkable. No one would be extradited to the U.S. because the U.S. is never going to give a defendant the presumption of innocence up until their appeals are exhausted, as happens in Italy.

At the very least, both those things are so fundamental to each system that if either country were going to refuse to extradite on that basis, it should be spelled out in the treaty (as happens with the death penalty issue, of course, even though that's a much less fundamental question, applying only to punishment once convicted).

 

[acbytesla]

Another example is Gabe Watson, who was convicted of manslaughter in Queensland, served his sentence, and was then tried again for murder in Alabama. It wasn't considered double jeopardy because the trials happened in different jurisdictions; the judge cited three other cases where people had been convicted of murder outside the U.S. and then tried again for the same crime within it. Admittedly Watson was tried again after a conviction rather than an acquittal, but there would've been nothing to stop them doing the same thing if he'd been acquitted: under the U.S. constitution it's fine to try people twice for the same crime, so long as the courts are in different jurisdictions or are state/Federal courts. So much for the right not to be tried twice being some kind of basic human right...

Sometimes these judges consider The Bill of Rights to be The Bill of Suggestions.

 

[Bill Williams]

duplicate

 

[Bill Williams]

I would say that the three stage process is such a basic part of the Italian legal system (and that of many other countries) that refusing to recognize the different stages of the process would make the treaty pretty meaningless; likewise, if Italy decided it wasn't going to accept the U.S. definition of when an acquittal/conviction is final, but was going to apply its own standards, the treaty would basically be unworkable. No one would be extradited to the U.S. because the U.S. is never going to give a defendant the presumption of innocence up until their appeals are exhausted, as happens in Italy.

At the very least, both those things are so fundamental to each system that if either country were going to refuse to extradite on that basis, it should be spelled out in the treaty (as happens with the death penalty issue, of course, even though that's a much less fundamental question, applying only to punishment once convicted).

It's not the three-stage process, per se, it is that in THIS three stage process, one of the stages found that (in relation to AK and RS) the crime(s) did not exist.

So it's not a matter that the two systems might not line up perfectly. In this case the Italian outcome, looks like double jeopardy as far as American rights are concerned (accrued to Americans while in the USA).

Treaties are not meant to spell out these kind of things - trying to anticipate all contingencies. All treaties do, really, is give reach. Then the argument is on, officially, rather than just in editorial columns. The arguments from Italy can be made in an American court, where what's at issue is the American court ordering American police authorities to hand over an American to Italian authorities.

Treaties provide the mechanics of the process. They don't try, really, to anticipate issues that might get in the way... unless one actually does, and in this case I don't think it does. The treaty allows one side not to hand over someone for purely political reasons if it wants.

The treaty does not compel either side to do anything. It just allows one country to get into the other's courts, and have the court (if it deems the accused's rights are not violated) to order its own police to do something... like put someone on an airplane handcuffed to an Italian.

 

[acbytesla]

It's not the three-stage process, per se, it is that in THIS three stage process, one of the stages found that (in relation to AK and RS) the crime(s) did not exist.

So it's not a matter that the two systems might not line up perfectly. In this case the Italian outcome, looks like double jeopardy as far as American rights are concerned (accrued to Americans while in the USA).

Treaties are not meant to spell out these kind of things - trying to anticipate all contingencies. All treaties do, really, is give reach. Then the argument is on, officially, rather than just in editorial columns. The arguments from Italy can be made in an American court, where what's at issue is the American court ordering American police authorities to hand over an American to Italian authorities.

Treaties provide the mechanics of the process. They don't try, really, to anticipate issues that might get in the way... unless one actually does, and in this case I don't think it does. The treaty allows one side not to hand over someone for purely political reasons if it wants.

The treaty does not compel either side to do anything. It just allows one country to get into the other's courts, and have the court (if it deems the accused's rights are not violated) to order its own police to do something... like put someone on an airplane handcuffed to an Italian.

Well, what I think what is interesting is that if Italy asks for extradition, then the US State Department will argue on Italy's behalf that Amanda Knox likely killed Meredith Kercher in a US court. I really can't see that happening. Would they really just say, she was found guilty and leave it at that??

 

[Desert Fox]

Well, what I think what is interesting is that if Italy asks for extradition, then the US State Department will argue on Italy's behalf that Amanda Knox likely killed Meredith Kercher in a US court. I really can't see that happening. Would they really just say, she was found guilty and leave it at that??

I would like to take the situation and flip it here. . . .
Let us pretend that instead of Amanda and Raffaele being convicted of accusing Meredeth, let us assume it was Meredeth and an Italian boyfriend accused of murdering Amanda,
Would the UK extradite based on what they have?

 

[acbytesla]

I would like to take the situation and flip it here. . . .
Let us pretend that instead of Amanda and Raffaele being convicted of accusing Meredeth, let us assume it was Meredeth and an Italian boyfriend accused of murdering Amanda,
Would the UK extradite based on what they have?

I don't think so..but I'm curious what anglo has to say about it.

 

[Bill Williams]

Well, what I think what is interesting is that if Italy asks for extradition, then the US State Department will argue on Italy's behalf that Amanda Knox likely killed Meredith Kercher in a US court. I really can't see that happening. Would they really just say, she was found guilty and leave it at that??

Acc. to the treaty, The State Department does have to act on Italy's behalf.

http://www.mcnabbassociates.com/Italy%20International%20Extradition%20Treaty%20with%20the%20United%20States.pdf

About Article 6... it would be an interesting "argument" about Article 6.... because one of the levels DID acquit. Yet, the Italian process is clear, no conviction or acquittal is final until Cassazione signs off.

Yet this is where the counter-argument comes in. Not only did this sub-level acquit, they declared Knox innocent, something not available under American law.

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.

 

[acbytesla]

Acc. to the treaty, The State Department does have to act on Italy's behalf.

http://www.mcnabbassociates.com/Italy%20International%20Extradition%20Treaty%20with%20the%20United%20States.pdf

About Article 6... it would be an interesting "argument" about Article 6.... because one of the levels DID acquit. Yet, the Italian process is clear, no conviction or acquittal is final until Cassazione signs off.

Yet this is where the counter-argument comes in. Not only did this sub-level acquit, they declared Knox innocent, something not available under American law.

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.

Interesting since Amanda was both acquitted and convicted. One could also argue that she served at least part of the sentence imposed.

There are holes all over the Italian prosecution of Amanda that a judge or even the state department could use to deny extradition.

 

[Planigale]

I would like to take the situation and flip it here. . . .
Let us pretend that instead of Amanda and Raffaele being convicted of accusing Meredeth, let us assume it was Meredeth and an Italian boyfriend accused of murdering Amanda,
Would the UK extradite based on what they have?

Difficult to say. Italy could issue a european arrest warrant. This would be enforced in the UK and there are virtually no grounds of appeal. This is causing some disquiet as there are well attested cases where British citizens have provided evidence of being in the UK at the time of the alleged crime abroad but still extradited. They then have ended up spending long periods in pre trial imprisonment.

Equally an alleged convicted mafia godfather hiding out in London had extradition refused on the grounds that Italian jails are insanitary and this would breach his human rights. I have some sympathy, he appears to have been involved in the family business in Italy, and fled both his family and Italian law and led a fairly blameless life for many years in London.

A UK court would not extradite to the US unless there are guarantees that the US will ensure human rights are respected, e.g. no death penalty, no water boarding or Guantanamo bay style military tribunals, no super-max isolation jail. The US does not recognise human rights (it recognises constitutional rights), which becomes a problem if you are not entitled to constitutional rights, whereas human rights exist because you are human. The UK courts are required to incorporate human rights into decision making, so unless the US agrees to recognise human rights UK courts are unable to extradite. My understanding is that recognition of human rights in the US would be unconstitutional because it might override the constitution. A practical example of the difference between constitutional rights and human rights was slavery.

 

[anglolawyer]

I don't think so..but I'm curious what anglo has to say about it.

Anglo says it depends on the terms of whatever arrangement governs extradition between Italy and the UK. I don't know whether the European Arrest Warrant ('EAW') would apply, some bilateral treaty or what. In the Shrien Dewani case the English court's hands seem to be pretty much tied by the fact that our treaty with South Africa does not require SA to make out a prima facie case. Dewani's only available ground resistance has been his health. And he is wanted for trial, not to serve a sentence.

Post script (after a little reading):

As was recently reported here, we have refused to extradite a convicted mafia boss to serve time in Italy because of the state of Italy's prisons. Just reading that link I see it is both the EAW and The Extradition Act 2003 that governed Italy's request, that the requested person would have been extradited but for a decision of the Administrative Court in a case called Badre -v- Court of Florence. That court in turn considered itself bound to uphold an appeal against an extradition order by a decision of the ECHR (Torreggiani v Italy 2013) that prison conditions in Italy violated the appellant's Article 3 right not to be subject to inhuman or degrading treatment. The long and the short of it appears to be that, for the time being, until Italy resolves a chronic overcrowding problem, nobody from the UK will be extradited there.

An extract from the Torreggiani case gives the scale of the problem:

"87. The Court has observed that prison overcrowding in Italy does not concern only the applicants' case (paragraph 54 above). It notes in particular that the structural and systemic nature of prison overcrowding in Italy is clearly evident from the statistical data indicated above and from the terms of a national state of emergency declaration made by the President of the Italian Council of Ministers in 2010 (paragraphs 23-29 above),

88. The combination of these data shows that the breach of the applicants' right to benefit from adequate conditions of detention is not the result of isolated incidents but arises from a systemic problem, which results in turn from a chronic malfunction particular to the Italian penitentiary system, which has affected, and is likely to affect again in the future, many people (see mutatis mutandis, Broniowski v. Poland, cited above, §189).According to the Court, the situation found in the present case therefore constitutes a practice incompatible with the Convention (Bottazzi v. Italy [GC], No 34884/97, §22, ECHR 1999-V; Bourdov (No.2), above, §135).

89. Furthermore, the structural nature of the problem identified in these cases is confirmed by the fact that several hundreds of requests directed against Italy and raising a problem of compatibility with Article 3 of the Convention for inadequate conditions of detention related to overcrowding in different Italian prisons are currently pending before it. The number of such requests continues to increase."

...

"92. It notes that the Italian State has recently taken measures likely to contribute to reduce the phenomenon of prison overcrowding and its consequences. It welcomes the steps taken by the national authorities and cannot but encourage the Italian State to continue its efforts.
However, it must be observed that, in spite of the legislative and logistical efforts made by Italy in 2010, the national rate of overcrowding was still very high in April 2012 (reduced from 151% in 2010 to 148% in 2012). It notes that this mitigated balance sheet is of particular concern as the emergency plan of action prepared by the national authorities is limited in time with the end of works for construction of new prisons planned for the end of 2012 and that the sentence enforcement provisions, extraordinary in nature, shall apply only until the end of 2013 (paragraph 27 above)."