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