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.

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Frequently asked questions about Amanda Knox’s “retrial”

(Current as of 18 Dec 2013)

Why is Knox being tried again?

Actually, Amanda Knox is not being tried again; the Florence proceedings are re-hearing Knox and Sollecito’s appeal of their original 2009 conviction (CNN, 30 Sep, 2013). This is a ‘continuing case on appeals’,  according to Knox’s Italian lawyer Dalla Vedova (Toronto Sun, Mar 2013).

One NBC-affiliate, King 5 Seattle, has acknowledged they know Knox and Sollecito are appealing their conviction for murder, but decided to call it a retrial anyways.

But wasn’t she acquitted?

The last appeals did result in an acquittal, however that ruling was not a final ruling. The Italian supreme court threw out that acquittal due to “‘deficiencies, contradictions and illogical’ conclusions” and sent the case back to the appellate level to re-hear the appeals (AP/Barry, 17 Dec 2013).

Judgements in Italy are not final until the supreme court affirms a judgement. The acquittal happened at the appellate level and was overturned by the supreme court. Knox’s attorney Ted Simon has admitted the supreme court sent the case back to the appellate level to re-hear the appeals (Shepherd Smith show, 6 Nov 2013).

Isn’t that double jeopardy?

Since the judgements are not final until supreme court approval, Knox and Sollecito are not put in “double jeopardy.”  Even Knox’s own Italian lawyer Dalla Vedova admits its not double jeopardy, as this is a continuation of the same case on appeal (Toronto Sun, Mar 2013).

In the US, they are accustomed to acquittals being a “final” judgement, however that is not true in many parts of the world, including Canada, Mexico, and Turkey. Acquittals can be overturned in those countries; and the US has extradited defendants to each of those countries despite claims of “double jeopardy”.

King 5 Seattle said Italy doesn’t prohibit double jeopardy?

According to one KOMO seattle reporter, Knox PR reps have been pushing the double jeopardy line to reporters.

Italy is a signing party to two international conventions that prohibit double jeopardy from final rulings, the European Convention on Human Rights, and the United Nations convention on human rights. The United States has also signed the UN convention on human rights. The international community recognizes the validity of the Italian processes under those conventions.

Those conventions prohibit double jeopardy in final judgements. As Italy does not recognize the judgement as final until it is affirmed by the supreme court, defendants are not placed in double jeopardy as a result of overturned acquittals.

The ECHR? Isn’t that where Knox appealed her slander charge?

Knox has claimed she has filed a charge in the European Court on Human Rights (ECHR) regarding alleged abuses in her questioning by police. The ECHR clearly states they are not an appeals court; they will not overturn or quash legal rulings in the member states (ECHR Questions and Answers, 2013).

Knox’s alleged charge is under the same ECHR convention banning double jeopardy, so her defense team should be well aware that the convention prohibits double jeopardy.

If the appellate court affirms her conviction, what happens next?

The ruling in the current appeals is expected in January 2014. If there is an affirmation of the conviction, Knox and Sollecito will likely appeal the conviction at the supreme court, thus the case will likely continue to the Italian supreme court.

Will she be extradited?

First, the courts in Italy would have to finally affirm a conviction against Knox and Sollecito, then issue an extradition request to the US.

Extradition is a complex process, and there are two parts in the US to consider: the legal process in the federal courts (judicial), and the international relations aspect in the US state department (executive).

For the federal court process, there have been many past US extradition cases that have had similarities to Knox’s potential extradition. In 1974, defendants tried a double jeopardy defense to avoid extradition to Canada, where their acquittal was overturned (CourtListener). The federal court denied that defense and extradited them to canada. In 1995, a defendant attempted a double jeopardy defense to avoid extradition to Turkey, where they had two prior acquittals overturned. The US federal courts again denied that the US constitutional protections do not apply “extraterritorial” protections to crimes in other countries, and the defendant was extradited (CourtListener).

Any questions about the fairness of the Italian court proceedings against Knox would not be dealt with by the federal courts, but by the US state department. The federal courts have said several times that those questions belong to the executive branch of the US government, which is responsible for the extradition treaty with Italy (US vs. Kin-Hong, 1997).

But there’s no evidence against her?

Despite the PR-influenced media reports in the US, the case obviously includes items that have been entered into evidence. Evidence includes Knox’s DNA mixed with Meredith’s DNA and blood in several rooms in the apartment, Knox and Sollecito’s constantly changing stories, and Knox’s written memoriale stating she “stands by” her previous statement placing her at the crime scene during the murder. For a full description of the evidence, see the summary of evidence against Knox and Sollecito at the Murder of Meredith Kercher wiki.

There’s no evidence of her in the room Meredith died?

Knox has made a similar claim in her recent email to the appellate court in Italy, where she limits the “crime scene” to being only Meredith’s bedroom.

The Italian police and courts recognize the crime scene as the whole apartment; Meredith’s blood and DNA was found in the hallway, Filomena’s bedroom, and the bathroom. Guede’s DNA was found in the other bathroom in the house. Limiting the definition of “crime scene” to be Meredith’s bedroom excludes all of this evidence (including the alleged break-in in Filomena’s bedroom).

In all of those places where Meredith’s DNA and blood was found, Knox’s DNA has also been found. In addition, the use of the forensic chemical luminol at the crime scene revealed the presence of two other individuals. Two sizes of footprints were revealed, neither one of which match Guedes’ foot size.

For more details and additional evidence, see the Murder of Meredith Kercher Wiki page on the evidence against Knox and Sollecito.

Didn’t testing exclude the knife?

The media misreported on the latest test on the knife; the most recent test was ONLY on a single trace of DNA that had not previously been tested. The most recent test found Knox’s DNA (Guardian, 30 Sept 2013; Murder of Meredith Kercher Wiki)

This was the fourth biological trace obtained from the knife. Previous scientific testing on the other traces testing revealed two samples of DNA; one belonging to  Meredith and one belonging to Knox (Massei, 2010). The defense disputed the findings of the trace belonging to Meredith, but that report is still part of the case evidence.

Isn’t Guede the only killer?

The prosecution argued several points that show the presence of more than one person:

1. The type and location of the wounds on Meredith; there were almost no defensive wounds (Massei, 2010).

2. The luminol footprints in the hallway that are of two sizes other than Guede’s foot (Massei, 2010).

3. The bathmat footprint in Meredith’s blood that doesn’t match Guede’s foot size (Massei, 2010).

4. Considerations about who would have reason to move Meredith’s body after the murder and arrange the crime scene to look like a break-in (Massei, 2010).

Where can I find out more information?

The Murder of Meredith Kercher Wiki includes source documents, trial transcripts, and summaries of case evidence.

Where can I get updates?

Andrea Vogt is reporting from Italy at her own web site.

The Murder of Meredith Kercher Wiki provides updates on the Florence appeals for Knox and Sollecito.

CNN reporting on Amanda Knox appeals

CNN reporting on Amanda Knox appeals

The Amanda Knox trial information King 5 deliberately withheld from Seattle

Linda Byron co-produces “Amanda Knox: Her Life Now”

At the end of October, King 5 broadcast segments of an interview with Amanda Knox during their regular news reports. On November 5th, they ran a half hour special which was a mix of previously aired and un-aired footage. In each of these broadcasts, King 5 and their reporter Linda Byron frequently misreported on the case status and on the Italian court processes. In a follow-up email, a representative confirmed to me they made a deliberate decision to interpret the case in their own way! A copy of that email is in this post. Because King 5 deliberately decided to report on the Amanda Knox appeals in their own way, King 5 chose to withheld trial information from Seattle. The information that King 5 chose to withhold significantly alters the public’s perception on the case and on the fairness of the Italian court proceedings against Amanda Knox.

King 5 chose to report on the case as a “retrial”, which contradicts Knox’s own attorneys. Since the Supreme Court annulled the previous appellate court the case was sent back to the appellate level. The Florence appeals court is re-hearing the appeal of the original conviction.  This case status is confirmed in reporting from CNN.

Two of Knox’s attorneys, her primary lawyer in Italy and US lawyer Ted Simon, confirm the case is now at the appeals level.  Knox’s US attorney Ted Simon reiterated on CNN’s Shepard Smith show that the Italian Supreme Court sent the case back to the appellate level:

“The supreme court issued a revision, and they sent it back to a new appellate jury”
(Ted Simon, CNN, 11/6/2013)

Knox’s Italian lawyer reported to the Toronto Sun in April 2013 that double jeopardy does not apply, since this is a continuation of the same case:

Dalla Vedova said [its] not be a new case but rather a continuation of the same case on appeal.
(Toronto Sun, 3/29/13)

Since April 2013 we have known the case is back at the appeals level to rehear Knox and Sollecito’s appeals for the original conviction of murder. This is not new information. The US news media refuses to tell their audiences the truth.

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Is Amanda Knox pressuring the US State department?

In October, 2013, supporters of Amanda Knox held an open house in the US congress, hosted by representatives from the northwest region. The congressional open house is being provided to the legislative branch of the US government. As has been reported in previous posts here, Knox’s options for fighting a potential extradition in the US federal courts in the judicial branch is very limited. The best explanation for such an action is one of political pressure- rallying support to pressure Secretary of State John Kerry and President Obama to deny extradition (when and if it comes).

The process of extradition primarily occurs in the judicial branch of the US government; specifically in US federal courts.  US extradition courts do not try the case, so they will not weigh the merits of a defense. They will only consider an explanation for the evidence that is presented by the foreign country. This presumably excludes contesting the evidence, as that puts the court into weighing the merits of the case. Claims of a lack of “fundamental fairness” of the proceedings and/or outcome of the courts of a foreign country are also not considered in the realm of the extradition proceedings in the court, due to the “rule of non-inquiry.”

As for “double jeopardy”, Knox’s own lawyer reportedly has already indicated to the Toronto Sun that double jeopardy does not apply, as this is a ‘continuation of the case on appeal.’  The Toronto Sun also reports the comments from a legal expert that the courts have heard this type of double jeopardy defense in the past, and those claims have been denied. (It is noted that a Canadian news source has better reporting than the US media on the US legal system).

The judges in US vs. Kin-Hong, 1997 indicate that “fundamental fairness,” while a concern, is not within the purview of  the federal courts in judicial branch of the US government.  In the Kin-Hong ruling, the judges state “it is that there is another branch of government, which has both final say and greater discretion in these proceedings, to whom these questions are more properly addressed.” In practical terms- this is the executive branch, which of course is headed by the President of the United States. Specifically, this means the US State department.

Knox supporters have have stated that Knox has been railroaded, that this case is unfair, etc. Since the US federal courts will not review these issues, Knox’s best chance at avoiding a potential extradition is by having Secretary Kerry deny an extradition request.

 

Extradition’s “Rule of non-inquiry”

United states vs. Kin-Hong, 1997

“Another principle that guides courts in matters concerning extradition is the rule of non-inquiry. More than just a principle of treaty construction, the rule of non-inquiry tightly limits the appropriate scope of judicial analysis in an extradition proceeding. Under the rule of non-inquiry, courts refrain from “investigating the fairness of a requesting nation’s justice system,” id. at 1329, and from inquiring “into the procedures or treatment which await a surrendered fugitive in the requesting country.” Arnbjornsdottir-Mendler v. United States, 721 F.2d 679, 683 (9th Cir. 1983). The rule of non-inquiry, like extradition procedures generally, is shaped by concerns about institutional competence and by notions of separation of powers. See United States v. Smyth, [*111] 61 F.3d 711, 714 (9th Cir. 1995). n11 It is not that questions about what awaits the relator in the requesting country are irrelevant to extradition; it is that there is another branch of government, which has both final say and greater discretion in these proceedings, to whom these questions are more properly addressed. n12 “

Knox Lawyer: Continuation of same case on appeal

Bold added below to the relevant portion of the Toronto Sun article, 3/29/13. The article came after the Italian supreme court annulled the appeals acquittal. It discussed what holding the appeals again meant, and whether Knox would be extradited.

Toronto Sun
“In Italy, prosecutors and lawyers for interested parties, such as Kercher’s family, can file an appeal. Unlike American courts of appeal, which only consider legal errors in the courts below, Italian courts of appeal, which are comprised of both judges and jurors, can reconsider the facts of a case.

Depending on the Italian high court’s reason for overturning Knox’s acquittal, it is possible that the court of appeals could consider new evidence that’s introduced, said Dalla Vedova. As a result, a defendant can effectively be retried in the course of one case in Italy.

Dalla Vedova said the high court’s decision does not raise a double jeopardy problem because the retrial would not be a new case but rather a continuation of the same case on appeal.

Other defendants who have been acquitted in other countries and then convicted on appeal have attempted to raise the double jeopardy principle to avoid extradition, without much success, said Mary Fan, a law professor at the University of Washington who specializes in cross-border criminal law.

The text of the treaty prevents extradition if the person has already been convicted or acquitted of the same offense by the “requested” country, which would be the United States in Knox’s case because Italy would be requesting extradition from the United States. Because Knox was never prosecuted or acquitted for homicide in the United States, the treaty’s double-jeopardy provision would not prevent Knox’s extradition, said Fan.””