So How’s the Media Doing on Amanda Knox Reporting? Much Better Once They Started Quoting Me

by Julian Ku

Last March, I took the world media (and Alan Dershowitz) to task for some pretty poor reporting on the extradition issues raised in the Amanda Knox case.  Based on the reporting from yesterday’s conviction (again) of Amanda Knox in an Italian appeals court in Florence, I’m glad to report that the news coverage of the extradition issue (as well as Dershowitz’s analysis of it) has improved a great deal. I’ll admit I’ve been co-opted by the media a little, since I have given quotes to several publications about the case (click here for obnoxious self promotion).

What bothered me about the reporting last year was the insistence by news outlets and even several legal commentators that Amanda Knox was facing double jeopardy because she was facing a conviction for the same crime for which she was previously acquitted (see this quote here from CNN’s legal analyst Sonny Hostin as an example of this confusion).   There are three problems with this argument:

1) The US Italy Extradition Treaty does not actually bar extradition for double jeopardy in the U.S. Constitutional sense. All it does is bar extradition if the person being extradited has already been charged for the same crime in the state doing the extraditing.  For instance, the treaty would bar extradition to Italy for Knox only if the U.S. had prosecuted her for the Kerchner* murder.  Judge Friendly’s discussion in the 1980 Sindona v. Grant case of a similar provision in an earlier US-Italy Extradition treaty focuses solely on whether the US charges were the same as the Italian charges.  See also Matter of Extradition of Sidali (1995) which interpreted an identical provision of the US-Turkey extradition treaty.

2) The US Constitution’s double jeopardy bar does not apply to prosecutions by the Italian government (or any foreign government).  This seems pretty unobjectionable as a matter of common sense, but many commentators keep talking about the Fifth Amendment as if it constrained Italy somehow.  For obvious reasons, the fact that the Italian trial does not conform in every respect to US constitutionally-required criminal procedure can’t be a bar to extradition because that would pretty much bar every extradition from the U.S.  The U.S. Supreme Court decision in US v. Balsys seems to have settled this question with respect to the Fifth Amendment self-incrimination rule, and it should apply to double jeopardy as well.

3) In any event, the conviction, acquittal, and then conviction again is almost certainly not double jeopardy anyways.  Knox was convicted in the first instance, than that conviction was thrown out on appeal.  That appellate proceeding (unlike a US proceeding) actually re-opened all of the facts and is essentially a new trial.  But it is still an appellate proceeding and in the US we would not treat an appellate proceeding that reversed a conviction as an acquittal for purposes of double jeopardy.  Moreover, it would essentially punish the Italian legal system for giving defendants extraordinary rights of appeal and tons more due process than they would get in the U.S.  If Knox had been convicted in the U.S, she could not have re-opened all of the evidence the way she did in Italy, and probably would have had a harder time getting her original conviction overturned.  So it seems crazy to call “unfair” a legal system which actually gave Knox a completely new chance to challenge her conviction.

Most media coverage seems to get these points (sort of).  I think they have done so because folks like Alan Dershowitz have finally read the treaty and done a little research (he now agrees with this analysis of the treaty above, more or less), and because the magic of the Internet allowed my blog post from last March to be found by reporters doing their Google searches.  So kudos to the Opinio Juris!    Improving media coverage of international legal issues since 2005!

One final note:  the only way this “double jeopardy” argument matters is if this gets to the US Secretary of State, who has final say on whether to extradite.  He might conclude that the trial here was so unfair (because it dragged out so long) that he will exercise his discretion not to extradite.  But this would be a political judgment, not a legal one, more akin to giving Knox a form of clemency than an acquittal.  I would be surprised if the State Department refuses to extradite Knox, given the strong interest the U.S. has in convincing foreign states to cooperate on extradition.  But Knox appears to have lots of popular support in the US. This may matter (even if it shouldn’t).

 *The original post incorrectly called the murder victim “Kirchner”.

http://opiniojuris.org/2014/01/31/hows-media-amanda-knox-reporting-much-better-started-quoting/

30 Responses

  1. Is there a reason Knox could not ask to be tried for the murder in the US? I understand the concept of prosecutorial discretion, but I am much more familiar with civil jurisdiction matters than criminal ones. I’ve really just heard that citizens of the United States are under US law even when abroad. It would seem like it would be up to Knox to bring any of these objections up though.

  2. It would be ironic indeed if the US was willing to extradite Knox to Italy after making it abundantly clear it would not extradite the 20+ CIA agents who were convicted of kidnapping Abu Omar.

  3. What about countries that often-times refuse extradition requests by the US based on us having the death penalty when they don’t.  That appears to be similar to this situation, where the US could deny extradition based on a fundamental difference in the law between here and Italy.

  4. <blockquote>He might conclude that the trial here was so unfair (because it dragged out so long)</blockquote>
     
    How about it being unfair because she was convicted largely on the basis of a set of false statements that were coerced in an unrecorded interrogation where, in contravention of US laws, Knox was given no legal representation nor advised of her rights nor even an independent translator, and where she alleged she was beaten? Or because there was zero physical evidence linking her to the actual crime scene, notwithstanding the real murderer’s being all over the place? Or the obvious contamination of the few specimens of DNA evidence that the entire case was premised on, (e.g. three cells on the edge of a blade with no trace of blood) gathered using procedures (if you can call them that) which would never have survived most Western legal systems, including ours? Or the fact that there was no plausible theory for the entire case, that the prosecution went through four motives during the case, each one equally implausible (and what can be a more likely to cause a college kid on her year abroad to bloody massacre than an unflushed toilet?). Or that there was nothing to link these two college kids to this grifter on the margins of society with a violent past?
     
    All this to point out one simple truth: Amanda Knox has popular support in the United States precisely because of an overwhelming number of legal arguments. But by your lights we ought to send her back for the realpolitik concern of getting more criminals into our jails. That’s probably what Jefferson meant when he said, “Better one hundred guilty men go free than one innocent man be condemned.”

  5. Response…
    Kevin-Italy’s MFA never requested that the US extradite the CIA agents involved with the extraordinary rendition of Abu Omar. But I grant you Italians likely feel they are due an American be held accountable in Italy for what they did in Italy (see 1998 USMC Gondola incident in addition to the more  Abu Omar)
    Julian-Enjoyed/appreciated your posts. If you look at more recent US extradition agreements, some of them contain an “out” if extradition is inconsistent with fundamental interest/fairness, a polite way of saying “if you want have/will do would violate the US constitution”. But the US/Italy extradition treaty, as with all US extradition treaties with western european countries, doesn’t have this language. I agree DoS could decline to extradite as a matter of policy, but its notable that under the treaty the US would have to state the reasons, in writing, for not extraditing. 

  6. she will lose the appeal and it will get to Kerry by mid 2015 and be a presidential race issue..  opinion polls will decide it 
    a lot of Americans, especially liberal and moderate, see her convictions as being railroaded on bad evidence… turning off major voting blocks in a presidential election cycle is a lot riskier than simply saying there isn’t enough evidence in this particular case…
    Kerry will refuse the extradition because of the political risk and timing

  7. Chris,

    I realize that. But the US didn’t wait for a request to make clear it would not under any circumstances extradite them.

  8. Kevin, based on the newspaper article reference to “not extradite U.S. officials”, it would seem that the US position was it would not extradite CIA officials who were implementing government policy. Whether you agree or not with the policy they were implementing, that seems a reasonable government position.

  9. The issue of extradition is one of whether a treaty with a foreign nation supersedes the US Constitution and whether the Fifth Amendment is limited to crimes tried in the US. The Fifth Amendment states in part: “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb;” The Fifth Amendment makes no mention of location or jurisdiction of the trial. It is a blanket right of the people. In the 1957 case of Reid v. Covert, 354 U.S. 1, the Supreme Court ruled that the Constitution supersedes international treaties ratified by the United States Senate.
    Since Amanda Cox was tried (repeatedly) in Italy and was acquitted in 2011, she cannot be extradited because her constitutional right not to be subject to repeated trials for the same offense supersedes Italy’s treaty right to extradite her.  In short, the Fifth Amendment constrains our extradition treaty with Italy.

  10. I think that by the time any of this comes to be, and the United States has to be the one deciding or Kerry, then I’d agree with the commenter named Clietus Black and also with the commenter named Dale Harmon, both make amazingly valid points. As Clietus said, “It will be election time,” and that’s a no brainer. Also as Dale stated, “she cannot be extradited because her constitutional right ‘not to be subjected to repeated trials for the same offense,’ will supersede Italy’s right to convict her.” Seems to me the commenters now more than this so called “expert” Julian Ku.  

  11. The victim’s name is still incorrect. It’s Kercher. 

  12. Considering the concept of a world community respecting countries becomes the argument here. Yet, lost is the victim’s life that one must not lose sight of when the individual has been convicted in the jurisdiction of the crime by those jurors in their due process system. Whereas we would expect the penalty be served, if it were our laws that tried her here.  If we want to be respected in the world community in all countries within their laws that we step foot into, then we must come to respect their laws when there. Kerry, or just one person should not have the power to waive the jury of peers even if it is a right in this country.  It should be the right of the country where Knox decided of her free will to place herself with her own actions to answer to.

  13. Actually, Dale has no idea what he’s talking about. The Double Jeopardy Clause doesn’t even prevent the federal government and a state from prosecuting an individual for the same offence; it most certainly does not prevent the US from extraditing Knox to Italy on the ground that she was “acquitted” there by a lower court. First, the Clause doesn’t even apply to the Italian government. And second, as Julian points out, even if the Clause did somehow apply, it still wouldn’t prevent Knox’s extradition because her “acquittal” never became final; that’s not the way the Italian court system works.

  14. What’s particularly silly about the emphasis on acquittal, of course, is that Knox was convicted after her first trial. She was acquitted on appeal. So Dale’s argument is akin to arguing that the Supreme Court can’t reverse a Court of Appeals decision and send a case back for retrial because jeopardy attached to the Court of Appeals decision…

  15. Response…If the Court of Appeals in Italy found the original conviction legally unsound, and overturned it, then I would agree with Professor Ku.  If that happened here in the United States, the prosecution could retry the case.  But that’s not what happened.  Ms. Knox was ACQUITTED on appeal.  In our country, that would be the end of it.  But in Italy, the prosecution can appeal the acquittal.  Have you ever heard of that happening here?  NO, because once you are acquitted you cannot be retried for the same case and the prosecution cannot go to the Supreme Court and ask them to reverse an acquittal.  After an acquittal, even on appeal, the case is over.  And Kevin, if indeed you know of cases where people have been acquitted and the Supreme Court threw out the acquittal and ordered a retrial, then somewhere along the lines we have forgotten the Constitution and anyone convicted under those circumstances should be immediately released from prison and have their criminal record purged.  And just for the record I am NOT a liberal I just believe in the Constitution of The United States.  Also for the record, I’ve always felt that Ms. Knox was guilty.  But she was ACQUITTED on appeal.  So if it were up to me, I would deny extradition based on the argument that the United States does not believe that the prosecution should be able to appeal an acquittal rendered during by an appellate court. 

  16. Frank, neither the conviction nor the aquittal were finalized in the highest court, so they are considered part of the original trial proceedings. It actually is a much more generous system like the author of this blog pointed out.

  17. Thank goodness that the United States does so much better than those risible Italians … except it doesn’t.  Let’s see: 97% of federal convictions are reached not by trial but by pretrial plea bargaining; a tenth of convictions later set aside by DNA evidence of innocence were reached on a guilty plea; evidence of public defenders sleeping, intoxicated or mentally ill during trials is irrelevant unless these occurred during the “important parts”; not only capital punishment, but inflicted disproportionately upon minorities, particularly for offenses against non-minority victims; and so on.
    This is not to say that the Knox/Sollecito case isn’t an appalling indictment on those involved: but, please, would those engaging in outrage here please commit the same time and energy to problems affecting far more to a far worse degree, closer to home?

  18. This is a rather simple matter so I am confused as to why there is any confusion. Amanda Knox’s situation is not double jeopardy but more importantly in ending this stupid discussion even if it was double jeopardy it would make no difference. The Fifth Amendment protection against double jeopardy only applies to criminal proceedings and an extradition hearing is not a criminal proceeding. There is plenty of examples of this exact situation and this reasoning being applied. The only value double jeopardy has to this discussion is as a litmus test for who knows what they are talking about. The second anyone mentions double jeopardy as a legal argument against extradition you instantly know that they are clueless.
    Amanda Knox’s only hope of avoid extradition is intervention from the State Department. Most of this happened under Clinton’s office and she has made it quite clear that there is nothing to object to. The US embassy in Italy has said that there is no concerns. It would be pretty much inconceivable to now suddenly have an issue with the trial. Anyone who is under the delusion that Knox can muster any kind of domestic political pressure is just delusional. Knox’s support is not sufficient to even be measured on a national poll. Nobody cares and this administration has done the correct thing in situations facing domestic political pressure several hundred times the magnitude that Knox can ever dream of generating. The simple reality is that 5000 angry rednecks tweeting will not shape foreign policy. Knox will be extradited and likely before the end of this year. Ted Simon despite his blustering is a good lawyer. He has told Knox that her chances of avoiding extradition are basically zero. Knox knows that her choice is Argentinian or prison.

  19. Response to Frank Fielder
    The major mistake you make is trying to compare an appeals court in the US and an appeals court in Italy…
    The criminal prosecution in most civil law jurisdictions is the following: 1) Trial Court – which examines fact and law. Any decision (acquittal or conviction) can be appealed (appeal is a right, you do not need leave to appeal) by the “losing” party, which means that the prosecutor has the right to appeal.
    2) Appeals Court – which examines fact and law (a US appeal is limited to points of law)… In fact the appeals court retries the case. The decision of the appeals court may be further appealed to the supreme court – court of cassation, or whatever the name is. Again, both the prosecutor and the defendant have the right to appeal.
    3) Court of Cassation/Supreme Court… Normally this court examines points of law and not fact. If it finds that the law was not applied correctly, it annuls the decision of the Courts of Appeal and sends back the case to be retried…
    A decision becomes final and jeopardy attaches only if a decision cannot be appealed any more. This can happen in two ways: a) If the deadline for filling the appeal lapses and b) If the highest court affirms the decision of the lower court..
    In the case at hand jeopardy never attached… an acquittal which is not irreversible (i.e. can be appealed) does not have the same power as an acquittal would have in the US system.
    Further, the US constitution applies only within the territory of the US (The US government argues that actions of US officials outside the territory of the US are not limited by the Constitution). Therefore whatever protections the US constitution affords to persons are opposable only against the US/State government and not to foreign governments. Actually Italy has ratified Prot. No 7 of the European Convention on Human Rights, which in art. 4 provides:
    ARTICLE 4
    Right not to be tried or punished twice
    1. No one shall be liable to be tried or punished again in
    criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.
    2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.
    This means that there is an equivalent protection against double jeopardy and thus the US cannot claim that this rule has not been applied.
    At any rate the crime was committed in Italy and therefore Italian law applies. If the US refuses extradition due to policy considerations, is a totally different question.
    Note: Not all civil jurisdictions are the same.. The outline of the procedure does not claim to be an accurate description of all of them – Surely, each country has a different system.

  20. It does seem a shock to American jurisprudence for conviction to follow acquittal. This is of course based on my ignorance of the Italian justice system, and (not being a lawyer) my legal experience only goes about as far as watching an episode of The Good Wife. I’m a shlep in the public ‘steerage’.
    But half of my family is Italian, and I lived in Italy for two years. The Italians themselves  seem to have a pretty dim view of their own government and legal system. And they do seem to have an abundance of politically motivated prosecutions. Case in point, the seismologists who were convicted of manslaughter. 
    I do recall that Italy refused an extradition request from Switzerland for Oriana Fallaci, on Constitutional free speech grounds. Though they are both members of the EU, though I’m quite certain that Switzerland has ratified Article 10 of the European Convention on Human Rights. 

  21. In the case of Amanda Knox, there is one fact about which there can be no controversy–she was not a proper young lady. She did not carry herself with modest humility, and she failed to restrain herself from the sorts of spontaneous gestures and uncouth mannerisms that we associate with children whose socialization is incomplete. She sang at inappropriate moments and smoked marijuana. Most disturbing of all, she was unable to resist the temptations of the flesh and was known to have committed the sin of fornication with multiple partners. Inarguably, she belongs in jail, and any innocence she proclaims regarding the murder charge is quite beside the point. 
    Given contemporary morality and loose standards of propriety, the incarceration of Miss Knox for a suitable period can only be accomplished by means of a murder conviction. Unfortunately there has been scant evidence to support any such charges, but the Italians should be commended for having done their best to author a tale of lethal wickedness so as to be able to punish Amanda adequately for her real crimes of indecency and outrages to the social order. Only those who have been corrupted by the diabolic plotting of feminists can fail to applaud this ingenuity.
    With sensibilities firmly grounded in old world decorum, Italians understand that women who do not know their place must be shown it with a firm hand. Americans of good upbringing should be only too pleased to hand Miss Knox over to our moral superiors in Italy for the stern chastisement they can provide and which she so richly deserves. May fortune grant that those of us who have been valiant in our condemnation of this demimondaine be rewarded for our rectitude with occasional glimpses of her suffering over the next nearly thirty years so that we may be reminded to remain on our path of righteousness.
     

  22. So I was really wondering if anyone could help me understand how this works…
    Amanda Knox’s case now goes back to the court of causation.  Unlike the US Supreme Court, there are about 150 CoC judges who write individual opinions on typical cases.
     
    My Question is: How many judges in the CoC will rule on this appeal?  How are they assigned cases (especially a high profile case like this)?

  23. Kevin Lawson – This is the very type of conclusion that keeps everyone wondering what makes a person express themselves with this kind of hateful thinking.

  24. So really I was hoping someone could help me understand how this works: I know Amanda Knox’s case now goes back to the court of causation.  Unlike the US Supreme Court, there are about 150 CoC judges who write individual opinions on typical cases I think.
    My Question is: How many judges in the CoC will rule on this appeal?  How are they assigned cases? Any help would be greatly appreciated in understanding where her case will go from here and the relation to double jeopardy 

  25. You can put this in the bank, O (So) Enlightened One:  If and when i) Ms. Knox’s re-conviction after appellate acquittal (not just reversal) is reversed, and ii) Italy requests her extradition, I wager $1000 (even a Hofstra law professor–albeit one intellectually superior to Dershowitz–could afford that paltry sum) that Ms. Knox will not be extradited.  You may contact me for your payout at the appropriate time.

  26. In the real world, meanwhile, the AK petition has struggled towards the 1,900 signature plateau. 

    Remember: this same site got well over 200,000 endorsements to deport Justin Bieber although he hasn’t yet murdered anyone in the conventional sense. Can’t even get one per cent of that for the pockmarked darling of US network television.

    I think the American media is just now starting to figure it out. The product is past its shelf life and now they just want it to go away.

    Normal
    0

    false
    false
    false

    EN-GB
    JA
    X-NONE

    /* Style Definitions */
    table.MsoNormalTable
    {mso-style-name:”Table Normal”;
    mso-tstyle-rowband-size:0;
    mso-tstyle-colband-size:0;
    mso-style-noshow:yes;
    mso-style-priority:99;
    mso-style-parent:””;
    mso-padding-alt:0cm 5.4pt 0cm 5.4pt;
    mso-para-margin:0cm;
    mso-para-margin-bottom:.0001pt;
    mso-pagination:widow-orphan;
    font-size:10.0pt;
    font-family:”Times New Roman”;
    mso-fareast-language:JA;}


     

  27. Normal
    0

    false
    false
    false

    EN-GB
    JA
    X-NONE

    /* Style Definitions */
    table.MsoNormalTable
    {mso-style-name:”Table Normal”;
    mso-tstyle-rowband-size:0;
    mso-tstyle-colband-size:0;
    mso-style-noshow:yes;
    mso-style-priority:99;
    mso-style-parent:””;
    mso-padding-alt:0cm 5.4pt 0cm 5.4pt;
    mso-para-margin:0cm;
    mso-para-margin-bottom:.0001pt;
    mso-pagination:widow-orphan;
    font-size:10.0pt;
    font-family:”Times New Roman”;
    mso-fareast-language:JA;}


    In the real world, meanwhile, the AK petition has struggled towards the 1,900 signature plateau. 

    Remember: this same site got well over 200,000 endorsements to deport Justin Bieber although he hasn’t yet murdered anyone in the conventional sense. Can’t even get one per cent of that for the pockmarked darling of US network television.

    I think the American media is just now starting to figure it out. The product is past its shelf life and now they just want it to go away.

  28. For goodness sake, the victim’s name is KERCHER

  29. I have a question about your third point where you state: “In any event, the conviction, acquittal, and then conviction again is almost certainly not double jeopardy anyways. Knox was convicted in the first instance, than that conviction was thrown out on appeal. That appellate proceeding (unlike a US proceeding) actually re-opened all of the facts and is essentially a new trial. But it is still an appellate proceeding and in the US we would not treat an appellate proceeding that reversed a conviction as an acquittal for purposes of double jeopardy.”   However, I also read that “In the US, ‘Retrial is not possible if the verdict is overturned on the grounds of evidentiary insufficiency, rather than on the grounds of procedural faults…. If the trial court made a determination of evidentiary insufficiency, the determination would constitute a final acquittal;’ in Burks v. United States 437 U.S. 1, (1978), the Court held that ‘it should make no difference that the reviewing court, rather than the trial court, determined the evidence to be insufficient.'” Didn’t the Italian Appeals Court (Judge Hellman) acquit her on precisely this basis? CNN reported that the Judge said: “What matters in reaching the ruling is only the lack of proof of guilt of the two defendants.” One of the lawyers for the victims family also stated: “They were acquitted for lack of proof . . .”

  30. @John.  You are so right.  Judge Hellmann’s extensive opinion (which, by the way, is available in English via a google search; I recommend that the various taking heads read it) constituted an acquittal on the grounds of evidentiary insufficiency.  Indeed, arguably he and his panel’s opinion indicates that the prosecution failed even to make out a prima facie case.  Setting aside the niceties of extradition law, Hellmann’s opinion at the very least establishes reasonable doubt.  So as a practical matter, the State Department would have a very hard time approving an extradition under such circumstances.  Such practicalities are often lost on ivory tower academics.

Trackbacks and Pingbacks

  1. There are no trackbacks or pingbacks associated with this post at this time.