Thursday, June 27, 2013

9. The Meredith Kercher Case - Going Once, Going Twice (The Story of Undoubled Jeopardy)

It's no song and dance, you know.

Some words on what has gradually become a something of a topic in this case. 

Could Knox (and, if he were not there already, Sollecito) be extradited to Italy if the trial ends in the definite conviction of both?

My simple answer to this would be: why on earth not? I suppose, as often happens in high profile cases, there might well be complications due to political reasons, but I see no legal barriers here at all.

Let's focus for the moment on Knox. The Sollecito question, too, might at one point or another arise, but to answer that question, one would have to know where he would be staying when any extradition request is made. Since we don't know that, it's basically useless to ask the question in the first place.

In the case of Knox, though, it's safe to assume that she'll remain in Seattle (or at least the USA) for the time being.

So: what about extradition between the USA and Italy?

Well, as by now just about everyone knows, there is an extradition treaty in place between the USA and Italy. In sets out in which cases extradition will or will not be granted when one country (that is, in the terminology of the Treaty, the "Requesting Party") asks for the extradition of a person by the other country (the "Requested Party", as the treaty states).

So, if Italy were to request the extradition of Knox by the USA, Italy would be the Requesting Party; the USA would be the Requested Party. Simple, no?

Okay. Now let's look at what the treaty says.

Firstly, in Article 1, the general rule is given. It's this:

"Obligation to Extradite

The Contracting Parties agree to extradite to each other, pursuant to the provisions of this Treaty, persons whom the authorities of the Requesting Party have charged with or found guilty of an extraditable offense."

If Knox were found guilty of murder (or of being the accessory to murder) that would clearly be "an extraditable offense". Article 2 deals with this; an extraditable offence is an offence "punishable under the laws of both Contracting Parties by deprivation of liberty for a period of more than one year or by a more severe penalty".

So, Article 1 would essentially mandate the USA to extradite Knox, if Italy requested her extradition.

What else does the Treaty say? Well, for example, Article 5 prohibits extradition when the request is made for "political or military" offences. This clearly does not apply here. Article 8 states that extradition will not be granted if the offence has become barred by lapse of time. Again, that does not apply. There are, looking through the Treaty in general, various rules that deal with such issues, and indeed various rules that deal with the question of how an extradition request should be made by the Requesting Party or dealt with by the Requested Party. None of these, however, have any impact on the possibility of the extradition of Knox in this case.

So what might nevertheless bar the USA from extraditing Knox? Well, the only provision in the Treaty that might seem to be of any real import would be Article 6, which states:

"Non Bis in Idem

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."

There is, however, a simple reason why this provision doesn't offer Knox any solace. It's this:  Knox has not been "convicted, acquitted or pardoned" by any state in the USA; neither has she already served her sentence anywhere in the USA. (Remember, the USA is the Requested Party.)

And that's basically it: on the basis of the Treaty, there are no impediments to extraditing Knox, if she were to be definitely convicted in Italy. None at all.

Of course, things are never quite that simple, and one might wish to argue that extradition would nevertheless be barred for different reasons.

There are two that I can think of. The first is a little far-fetched, and deals with the idea that Knox was somehow "tortured" by the Italian police. The idea would imply that her conviction was arrived at by evidence gained through the use of torture, and that therefore that evidence would not be permissible by international (or US) laws, thereby making the conviction itself unsound.

I must admit that I have no idea at all how Knox could seriously try and make such an argument. I realise that she has claimed that she made statements after having been pressurised by the police, and indeed after one of the police officers slapped her on the back of her head, but besides the simple fact that the police have denied this adamantly (and that, even if true, the accusations hardly amount to "torture" in the first place),  it would seem that these accusations have, at most, a bearing on her conviction of "calunnia" (calumny; that is, of her false accusations of Patrick Lumumba) and not on the murder trial itself. This is an argument that holds no legal merit, I would say.

The second argument returns to the "double jeopardy" notion. The Treaty might, as explained above, not bar extradition for this reason, but perhaps international laws - or those of the USA -  might.

Do they?

Well, international laws certainly don't. Italy, like most European nations, has signed up to the European Convention on Human Rights, and to Protocol 7 of that Conventions. Here's what's in Protocol 7:

"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."

The key word here is "finally". Any extradition request made by Italy will only be made if Knox has been "finally" convicted in Italy. The process - that is, her trial - is ongoing, and will reach an ending only after the appeal court in Florence (and, perhaps, the Court of Cassation) has dealt with the case. Only once this has happened will any conviction be final. In the meantime, she may have been acquitted by the Appeal Court in Perugia, but, as is very clear indeed, that acquittal is hardly "final' (and neither, one might add, is her earlier conviction by the original court).

In other words, an extradition request by Italy would be fine under European law. And indeed, it would not be barred by any other international law statute or treaty, since - simply put - there are none.*

What about the (federal) law of the USA? Well, the only possible obstacle might conceivably be the Fifth Amendment of the US Constitution, which states that ".... nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . .".

I do not, however, see this as being any obstacle for an extradition of Knox. To put it simply, Knox hasn't been put in jeopardy "twice"; she's been in jeopardy once, in a process which, according to Italian law, takes up several stages. "Twice", in other words, is "finally", as expressed by the European Convention. They're the same thing.

Is there a simpler way of looking at the above? Yes, if you don't mind a more formal and legal approach. The Court of Cassation annulled the Appeal Court's acquittals. Therefore, those acquittals no longer exist. For that very simply reason alone, there can be no double jeopardy issues. 

In closing, two points. 

Firstly, the fact that the notion of double jeopardy is not an American invention. In fact, it was developed by the Romans.

Secondly, the question of whether anyone should care deeply about whether Knox or Sollecito actually serve their sentences. If convicted, I daresay there are reasons why they should be imprisoned for a considerable amount of time. However, even if that does not happen, I would suspect that, in many ways, their lives would be shattered anyway.  


* Well, there's the International Covenant on Civil and Political Rights, of course. Does that help? No. Article 14 of the Convention states that "No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country." Again, that dastardly word "finally".


Man From Atlan said...

Agree with your analysis re: legal arguments.

The rub would be,'political considerations'. The Italian Foreign Secretary two years hence would have to submit an extradition request, and the US Secretary of State would have to accept it, in an election year 2014. The US Court of Appeals for the 9th circuit, arguably the most 'liberal' of all the circuit courts, would hear it, and given liberal bias towards all such 'feminist' and 'double jeopardy' arguments, will probably reject the request. IF it goes to the Supreme Court, the conservative judges would probably overturn that, and she would be going to Italy. Let's see, but this is what makes the case so fascinating!

Alex van den Bergh said...

And I agree with you: politics may well be an issue.

As an aside, quite a few people in the US are expecting a very lengthy battle, if Italy were at one point indeed to make an extradition request. It's ironic, in a way, given the fact that so many others in the US have complained over the amount of time it's taken the Italian courts to handle the actual case.

Gallagher said...

I can't imagine a length battle being the case here. You can't help getting the impression after the acquittal that the Italians were keen to be rid of Knox. Sure if the Supreme Court convicts they will go through all the formal extradition procedures, but if the US should prove recalcitrant in the least, I think the Italian attitude will be - fine, she's your problem.

Alex van den Bergh said...

Well, the lengthy battle here would not be instigated by the Italians. It would be instigated by Knox and her lawyers.

But I understand your point of view - even if convicted, and even if an extradition request were made, I too feel that the Italian judicial system might well be happy enough to let things stagnate in a quagmire.

After all, what on earth would they actually do with Knox if she were deported?

All these are, however, exactly the sort of things Man from Atlan posted about - they are political concerns, not legal ones.

Man From Atlan said...

But now we have the Edward Snowden affair, to queer things up. I agree that it will be her lawyers that will seek to delay matters, every one else ...will be going through the motions.

Harry Rag said...

Hi Alex,

Just to let you know that the English translation of the Supreme Court's judgment will be available for download from PMF on Monday, September 9, 2013 at 0:01 am Rome time.