Amanda Knox’s potential extradition and the irrelevance of “double jeopardy”

In recent months, many have speculated on a potential extradition of Amanda Knox if her original conviction is upheld by the Florence appeals court. Very few of these articles have looked at the case law in the US. There are many past cases that are similar to Knox’s potential extradition. Almost anything that has been said in Knox’s case has been tried before as argument against extradition. Multiple US courts have ruled against applying the US constitutional definition of double jeopardy in extradition proceedings. After a review of these cases one thing is clear- it is not only likely that US federal courts would rule that Knox could be extradited, it is also expected that they will.

What follows is a review of two of these cases and the similarities to Knox’s potential extradition.

One of those cases is the extradition of David Bloomfield and others to Canada in 1975. Bloomfield and his co-accused were indicted in Canada on drug charges. That case was initially dismissed, and Bloomfield et. al. returned to the US. Similarly, Knox and Sollecito were acquitted (in their case at the appellate level) after their initial conviction was overturned, and Knox returned to the US after that acquittal.

In Canada, like in Italy, dismissals and acquittals can be appealed by the prosecution. In the case of Bloomfield, the prosecution appealed, and the appellate court overturned Bloomfield’s original dismissal. The same thing happened to Knox and Sollecito; the prosecution appealed the acquittal, and the Supreme Court overturned that ruling in March 2013. The Supreme Court sent Knox and Sollecito’s case back to the appellate level to re-hear the appeals against the original conviction.

While in the US, the appellate level court in Canada overturned the dismissal and entered a conviction against the defendants. Canada then sought the extradition of Bloomfield and his co-accused, and they were arrested in New York.

In the 2nd circuit US federal court, Bloomfield and the others claimed that the overturned acquittal in Canada amounted to double jeopardy. They claimed the US constitutional definition of double jeopardy prevented their extradition. The 2nd circuit US federal court did not accept their argument. The court interpreted Bloomfeild’s double jeopardy claim as  an attempt to have the US constitution provide “extraterritorial protections” to crimes committed in other countries:

“Appellants argue that if they had been acquitted in a New York state or federal court for the offenses charged in the Canadian indictment, the double jeopardy clauses of the New York state constitution and the federal constitution would have barred the Government’s appeal of the acquittal. From this, appellants argue, in effect, that the treaty confers upon them the extraterritorial protection of these double jeopardy clauses and that extradition is improper. ”
(CourtListener, “Bloomfield vs. Gengler”)

In other words, Bloomfield tried to argue the protections afforded by the US constitution extended to cases and processes in foreign countries. The 2nd circuit federal court rejected this argument as not being in line with the US treaty with Canada:

“We decline to adopt this rather novel reading of the treaty” (CourtListener, “Bloomfield vs. Gengler”).

Interestingly, the court accepted that the conviction, if it were a US case, would indeed be double jeopardy in the US:

“We note in passing our agreement with the appellants that, even though no final judgment of acquittal had been entered, there would have been double jeopardy in the United States” (CourtListener, “Bloomfield vs. Gengler”).

The 2nd circuit court rejected Bloomfield’s double jeopardy arguments and ruled that the defendants were extraditable.

Bloomfield vs. Gengler seems to closely parallel Knox’s case presuming Knox’s conviction is upheld and Italy requests her extradition. It doesn’t matter whether the case actually would be considered double jeopardy in the US, as the 2nd circuit court (among others) ruled that the constitutional definition in the US doesn’t apply to the treaty.

In another parallel to the Knox’s case Bloomfield et. al. argued that they were tried in absentia. In Knox’s case, the newpapers have started to claim Knox is being tried in absentia in Florence, though she is represented at her appeal by her paid legal staff. The 2nd circuit court ruled against the absentia argument by Bloomfield et. al. in a statement that is very close to what has occurred in Knox’s case:

“Appellants’ claim of conviction in absentia is a technical one; they were present for their trial and they were represented by counsel at the trial level who successfully obtained exclusion of their confessions and an initial ruling dismissing the indictment. Because Canada, as many of our states constitutionally used to do, Palko v. Connecticut, 302 U.S. at 321 n. 1, 58 S.Ct. 149, still permits appeals by the prosecution from adverse rulings of law, with the further fillip that the appellate court may enter a conviction in a proper case, does not mean that the appellants have been shockingly denied any right under American law to be present at all stages of the proceedings.5 Appellants, moreover, were not tried in absentia. Instead of awaiting the final outcome of the criminal proceeding against them, they left Canada voluntarily after the original dismissal of charges.” (CourtListener, “Bloomfield vs. Gengler”)

Like Bloomfield vs. Gengler, Knox had the opportunity to be present at the proceedings; which has been proven by the repeated attendance by her co-accused, Raffaele Sollecito. Knox has made public statements that she has made the active decision to not return. Knox has been represented at these subsequent proceedings by her legal team. It seems any potential claim of “in absentia” by Knox would have the same response in an extradition hearing as in Bloomfield vs. Gengler.

I have seen two arguments against the applicability of Bloomfield vs. Gengler:

Objection #1. Bloomfield vs. Gengler is almost a 40 year case. Response: more recent cases have the same result, such as the 2009 extradition case against Hurtado. also saw the defendant attempting a double jeopardy defense against extradition to Peru. That defendant was tried and acquitted in Peru, then retried. That ruling seems to also be applicable to a potential extradition of Knox; more on that below.

Objection #2. This case involved a treaty with Canada, and Knox’s case is in Italy. Response: The treaties and issues are typically similar and use similar language. For example, the double jeopardy clauses in current treaties use the following language:

“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.”

The courts have interpreted this in several cases to mean preventing both countries from trying a defendant for the same crime, regardless of the individual case and country involved. For example, in the 2009 case of the extradition of Hurtado:

The government argues that the double jeopardy defense is not available under the facts of the instant case. “A claim of double jeopardy in an extradition proceeding is governed by the extradition treaty between the requested, or asylum state, and the requesting sovereign.” See United States’ Supplement to the Extradition Complaint (DE# 31 at 2, 4/14/09).

The Court agrees with the government. Article IV(a)(1) expressly addresses the situation where the respondent has been convicted in the requested state, here the United States. The senate report notes address the situation where the respondent has been convicted in a third state—under those circumstances Article IV is not a defense to extradition. Neither Article IV or the Senate Report notes address the situation in the instant case where the respondent has been tried and acquitted in the requesting state, Peru. Because the treaty between the United States and Peru calls for double jeopardy protection only if the respondent has been convicted or acquitted by the requested state, here the United States, double jeopardy is not a defense to the extradition of Hurtado who was tried and acquitted in the requesting state, Peru.

(CourtListener, “Extradition of Hurtado”, emphasis added)

Hurtado’s case seems particularly relevant to Knox’s, as it directly addresses the issue of the requestING country having tried and acquitted a defendant. Many of Knox’s supporters claim that Knox is being retried (instead of appealing her original conviction); even if their interpretation of Knox’s case were accurate (which it is not), that would still not be a defense against extradition as shown in the 2009 case of Hurtado.

In conclusion, multiple defendants have attempted to use the US constitutional definition of double jeopardy as a defense to extradition to other countries. They claim overturned acquittals in other countries are double jeopardy, and thus the US constitution prevents their extradition. In multiple extradition cases, US courts have ruled against that argument.

If Knox’s original 2009 conviction is upheld at both the appellate and Supreme Court levels and Italy requests her extradition, there seems to be very little that will prevent US federal courts from ruling she can be extradited.

Disclaimer: IANAL


7 thoughts on “Amanda Knox’s potential extradition and the irrelevance of “double jeopardy”

  1. Thank you for this excellent information. So many misunderstand the entire concept of double jeopardy. As you pointed out, other judicial systems, and rarely the US judicial system, do uphold appeals by the prosecution. The Crown courts, including Canada (as you noted) allow it, albeit infrequently. Amanda Knox supporters either misunderstand, or deliberately misinterpret, her double jeopardy protection as it applies to her Italian convictions. It’s all part of one process so to protest that her rights to double jeopardy will protect her from extradition is just plain wrong. Thanks again, Pat, for your careful and detailed presentation.

  2. It would be interesting to consider the potential implications of Reid v. Covert [354 U.S. 1]. Mr. Justice Black, writing for the majority, noted “. . . no agreement with a foreign nation can confer on Congress or any other branch of the Government power which is free from the restraints of the Constitution”. This would suggest that any extradition treaty ratified by Congress must not violate the Bill of Rights, i.e., Fifth Amendment protection against double jeopardy. Curious that this case is not argued (at least) in Bloomfield and others. Bloomfield might also be distinguished given the lack of a trial, but a procedural dismissal, whereas Knox was tried, raised a defense, and subsequently was acquitted on evidentiary grounds.

    I would agree that Knox was technically appealing her conviction when first acquitted. The term “retried” arises from the fact that the appeal allowed new evidence. An appeal from trial conviction in the US would not argue the case again, but deal with error of law. Had the case been tried in the US, no appeal would have been needed, as the case advanced by the Italian prosecutor (satanic sex, demons, etc.) would have been laughed out of a grand jury or preliminary hearing.

    Further appeal to the European Court of Human Rights could lead to a reversal, and the possibility of the Italian Prime Minister granting Pardons if the Cassation upholds the convictions is also to be considered. A little diplomacy, maybe some carrot for the Italians, and the legal system saving face could make things interesting.

    • The EU court is not a court of appeals; it will not overturn nor quash Knox’s conviction.

      There is no direct quote of Mignini referencing satanism- it is a reporters quote of a defense comment in the early days of the case.

      There is no double jeopardy issue; if Knox is picked up in the US to be extradited, that will be the first and only time she will be in “jeopardy” in the US. Italy’s appeals are not considered double jeopardy by the international community, as italy has signed two international agreements banning double jeopardy from final verdicts.

      Just because people in the US have problems with an appellate court being reversed does not make it double jeopardy.

  3. I wonder if she will be sent back . . . not! Acquitted by Italy’s highest court, creating a judicial truth of not guilty.

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