Extradition Extravaganza

January 31, 2014

Amanda KnoxIt’s been widely reported that an Italian court recently found U.S. citizen Amanda Knox guilty (again) of participation in the murder of Meredith Kercher.  While many people doubt that Ms. Knox will be extradited to face prison in Italy, I think it is rather more likely, especially if this latest conviction is confirmed on appeal.

Skeptics of the possibility of a Knox extradition usually point to the rather convoluted winding of the case through the Italian courts: she was convicted of the crime by a trial court in 2009; upon appeal to an interim appellate court, the lower court verdict was reversed and (as some characterize it) she was “acquitted”; but upon the prosecution’s appeal to the Court of Cassation (the nation’s highest court), the appeals court was reversed, and a new trial ordered.

What makes this case, this process, so strange, is that an interim appellate court in the United States is usually limited to ruling only on matters of law (not matters of fact).  If the lower court failed in deciding on some important procedural aspect of the original case, then a new trial should be ordered.  If, in the Italian system, the appeals court can act as a fact-finder (like a court of first instance), then under U.S. law the acquittal could not be appealed by prosecutors.  As many commentators have pointed out, this process appears to violate the spirit of the U.S. Fifth Amendment’s prohibition against double-jeopardy.

Unfortunately for Ms. Knox, concerns regarding the requesting country’s procedural irregularities do not appear to be a reason to withhold extradition under the 1984 U.S.-Italy Extradition Treaty (T.I.A.S. No. 10837 (U.S. Treaty), 35 U.S.T. 3023 (U.S. Treaty), 1983 WL 472059 (U.S. Treaty)).  Pursuant to that Treaty, extradition of a fugitive between the countries is prohibited if the charged offense is “political” or “military” (Article V), the fugitive has already been tried for the same offense in the requested state (Article VI), the requesting state’s statute of limitations for the charged offense has run out (Article VIII), or the requesting state intends to impose the death penalty for an offense that would be inapplicable for the death penalty in the requested state (Article IX).  Additionally, an extradition request may be denied when the requested state is currently prosecuting the fugitive for the same crime charged by the requesting state (Article VII).  Otherwise, the U.S. and Italy have agreed to extradite to each other “persons whom the authorities of the requesting party have charged with or found guilty of an extraditable offense (Article I) … [and a] requested party shall not decline to extradite a person because such person is a national of the requested party. (Article IV)”

Adding to some confusion is the fact that U.S. courts dealing with such extradition requests sometimes refer to the prohibitions of Articles VI and VII as the “double-jeopardy” clauses.  However, the prohibition on extradition contained in those Treaty Articles is not concerning the constitutional norm of double jeopardy, but rather the fact of whether the requested country has tried, or is currently trying, the fugitive for the same acts for which the requesting country is seeking extradition.  Sindona v. Grant, 619 F.2d 167, 177 (2d Cir. 1980) (interpreting similar language in the previous 1973 U.S.-Italy extradition treaty).  Thus, in the case of Ms. Knox, unless she has been, or currently is being, tried for Ms. Kercher’s murder by the United States, the “double jeopardy” clauses of the extradition treaty would be inapplicable with respect to her extradition to Italy.

Under the treaty, of course, the requesting country must provide documentation necessary to establish probable cause that the fugitive committed the charged criminal act.  One interesting quirk in the Knox case is that her most recent conviction was in absentia.  Clause 5 of Article X imposes additional safeguards in such instance, whereby “all issues relating to this aspect [conviction in absentia] of the request shall be decided by the Executive Authority of the United States … [and] the Requesting Party shall submit such documents as are described in paragraphs 2, 3 and 4 of this Article and a statement regarding the procedures, if any, that would be available to the person sought if he or she were extradited.”  While this might provide some additional hurdles for Italy when requesting Ms. Knox’s extradition, it does not raise the bar particularly high.  As stated by the Fourth Circuit in a similar factual situation,

[b]y incorporating the requirements of paragraph three into paragraph five, the Treaty requires more proof than just the fact of an in absentia conviction, and directs that a summary of the facts and evidence be supplied to establish “a reasonable basis to believe that the person sought committed the offense for which extradition is requested,” … i.e., probable cause under [18 U.S.C.A.] § 3184.  Therefore, for an extradition request based upon a conviction in absentia, the Treaty requires more detail than mere proof of the fact of conviction to establish probable cause, … but it clearly does not require the kind of actual evidence suggested by [defendant], such as trial testimony or transcripts of the wiretap evidence.

Haxhiaj v. Hackman, 528 F.3d 282, 289 (4th Cir. 2008).

From the perspective of an American attorney, the double-jeopardy issues inherent in Italy’s criminal trial and appeals process are troubling.  However, I do not see them rising to the level of being a complete bar to Ms. Knox’s extradition in this case.  After all, if the terms of the U.S.-Italy extradition treaty can be avoided because of the irregularities in apparently allowing for double jeopardy, what about extradition treaties with those nations who may not afford defendants exactly the same right to confrontation of witnesses, right to counsel, or right to a speedy and public trial as are afforded defendants in the U.S.?  Depending on the final outcome of the case in Italy, it will be interesting to see how the U.S. State Department responds to the inevitable extradition request.