29 Mar Lots of Media Coverage of Amanda Knox, But Almost No One has Bothered Reading the U.S. Italy Extradition Treaty
A depressingly large number of U.S. media outlets are covering the Italian Supreme Court’s decision to order a new trial in the case against Amanda Knox, the American exchange student charged with murdering her British roommate in Italy. Knox was convicted in trial court, but that conviction was overturned on appeal.
I say depressing because this is hardly the most significant international criminal trial going on these days. It is also depressing because most of the U.S. media coverage, and even the “expert” legal commentary, can’t seem to understand that if Italy requests Knox’ extradition, Knox has no double jeopardy defense.
The biggest mistake made by most of the media commentary (I’m looking at you Alan Dershowitz and various law prof types here) is that almost no one seems to have read the U.S. Italy Extradition Treaty. Article VI reads:
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
(Emphasis added.) The Requested Party in this scenario would be the United States (Italy would be the “Requesting Party”). The U.S. has never charged Knox with anything, much less with the murder of her UK roommate. So Article VI does not bar Knox’ extradition to Italy. Period.
What about the U.S. Constitution’s Fifth Amendment prohibition on Double Jeopardy? Well, the short answer is that the Fifth Amendment’s Double Jeopardy Protection doesn’t apply in an extradition proceeding since the U.S. is not the one trying Knox (they are just handing her over). The long answer is that even if the Fifth Amendment did apply, under US law, an appeal that overturns a lower court conviction is not an acquittal for purposes of the Fifth Amendment. That is basically what happened here. Knox was convicted, then her conviction was overturned on appeal, and then the appellate court judgment was reversed, and a new trial ordered (albeit at the appellate level). This is not double jeopardy, either under Italian law or US law.
So Knox had better get ready to be extradited, or she better get ready to move to Brazil. She has no serious double jeopardy defense here that I can see. Now, if only someone would tell Alan Dershowitz.
Well done, Julian. I was struck by the same poor reporting.
I would think that moreover it isn’t even a double jeopardy situation. An Italian appellate court has set aside the acquittal. Until that point, yes if the Prosecutor filed new charges, double jeopardy may arise, but because the acquittal is set aside, it is as if the acquittal never occurred, because it was in error.
True double jeopardy is an acquittal with no successful appeal by the Prosecutor, and simply refiling of the same charges hoping to get a different judge/jury.
But quid the CIA people convicted in absentia for the kidnapping through Aviano. They were not extradited by the US but there may be another section being applied. If that is not true and we breached then we’ll breach again. If we send her back then let us send them back too.
[…] Ku of Hofstra Law School, who writes for the law blog, Opinio Juris, says the question should be a no-brainer for anyone who has bothered reading the U.S. Italy […]
[…] Ku of Hofstra Law School, who writes for the law blog, Opinio Juris, says the question should be a no-brainer for anyone who has bothered reading the U.S. Italy […]
[…] Ku of Hofstra Law School, who writes for the law blog, Opinio Juris, says the question should be a no-brainer for anyone who has bothered reading the U.S. Italy […]
[…] Ku of Hofstra Law School, who writes for the law blog, Opinio Juris, says the question should be a no-brainer for anyone who has bothered reading the U.S. Italy […]
[…] Ku of Hofstra Law School, who writes for the law blog, Opinio Juris, says the question should be a no-brainer for anyone who has bothered reading the U.S. Italy […]
I recall the Swiss government issuing an arrest warrant for Oriana Fallaci in 2002, demanding that Italy either prosecute of extradite her (which was rejected by the Italian government on Constitutional grounds).
Hope we don’t ever have any seismologists over here who inaccurately predict earthquakes over there either.
[…] Ku of Hofstra Law School, who writes for the law blog, Opinio Juris, says the question should be a no-brainer for anyone who has bothered reading the U.S. Italy […]
As Italian, besides agreeing with Ku I point out two further legal points. The first, is that Dershowits appears to ignore Italian law when affirls that Italy doesn’t have double jeopardy. In fact, Italy has indeed a double jeopardy rule, exactly like the US. The only difference is the nature of the verdicts. The US law doesn’t have a concept of “provisional verdict”, verdicts are normally understood to be definitive and effective decisions. But in Italy, verdicts can either have the statute of definitive or non-definitive. Verdicts become definitive only after sume time, or by a Supreme Court decision. Non-definitive criminal verdicts are not recognized as binding by Italian Constitution – the whole seres is considered just as one ongoing trial. Double jeopardy exists, and applies only to definitive verdicts. The second instance appeal was non-definitive, thus it was not yet a verdict nor by Italian Constitution nor under international provisions. So double jeopardy does not enter into play. There is a second point. The Supreme COurt did not reverse the appeal verdict: it annulled it. It’s something totally different. It means, that trial for that charges, legally never took place. By Italian law, no one could claim they had… Read more »