(Repeats to add ANALYSIS tag)
* If found guilty, Knox could raise double jeopardy to
challenge extradition
* Courts have rejected similar arguments over extradition to
Mexico, Canada
By Terry Baynes
NEW YORK, March 26 (Reuters) – The possibility that American
Amanda Knox could be convicted of murder and extradited to Italy
for punishment could force U.S. courts to enter legal territory
that is largely uncharted, legal experts said.
Italy’s top court on Tuesday ordered the retrial of Knox,
25, for the 2007 murder of British student Meredith Kercher.
The move potentially pits a U.S. constitutional ban on
double jeopardy, or being tried twice for the same offense after
an acquittal, against international extradition agreements,
experts said.
The issue hinges on whether a lower court decision
overturning her conviction amounted to an acquittal, they said.
If Knox is retried after she was acquitted, that would
violate her constitutional rights, said Christopher Blakesley, a
law professor at the University of Nevada Las Vegas who
specializes in international criminal law. On the other hand,
the United States entered into an extradition treaty and, in
doing so, accepted Italy’s criminal justice system, he added.
“If Knox is found guilty, there’s still a whole lot of room
for battle before she would ever be extradited,” Blakesley said.
Knox and her former boyfriend, Raffaele Sollecito, were
accused of killing 21-year-old Meredith Kercher during a
drug-fuelled sexual encounter in Perugia, Italy. The two were
found guilty in 2009 and sentenced to 26 and 25 years in prison
respectively.
In 2011, an appeals court, comprised of a panel of judges
and lay jurors, overturned the convictions of Knox and Sollecito
after forensic experts challenged evidence from the original
trial. Knox and Sollecito were released after four years in
prison, and Knox returned to her family home near Seattle.
Prosecutors and Kercher family lawyers appealed to Italy’s
high court, the Court of Cassation, calling the prior ruling
“contradictory and illogical.”
On Tuesday, the Court of Cassation agreed to overturn the
appeals court’s acquittals. The high court has not yet provided
a full reasoning for its decision, and a date has not yet been
set for the new trial, which will be held before a different
court of appeals in Florence.
Knox’s Italian lawyer, Carlo Dalla Vedova, said via email
that the new trial would likely occur in late 2013 or early
2014. Knox does not intend to return to Italy for the
proceeding, he said, and the court of appeals can retry the case
in absentia.
The Italian government could ask for extradition once the
Italian courts have reached a final decision, Dalla Vedova said.
If it does, the U.S. Department of State would then have to
decide whether to act on the request. If the State Department
chooses to comply, it would then deploy the U.S. Attorney’s
Office to a U.S. court to seek Knox’s extradition.
What is unpredictable is how such a case would play out in
front of a U.S. judge who would have to weigh the U.S.
constitutional protection against double jeopardy with the 1984
bilateral extradition treaty between the United States and
Italy. The treaty contains a provision that attempts to protect
against double jeopardy, but it is not clear whether that
provision would bar extradition in Knox’s case.
The legal question would be whether Knox was acquitted, as
U.S. courts would define the term, or whether the case was
merely reversed and still open for further appeal, said criminal
lawyer and Harvard Law Professor Alan Dershowitz.
“It’s very complicated, and there’s no clear answer. It’s in
the range of unpredictable,” Dershowitz said.
Much of the complication stems from the differences between
the Italian and U.S. legal systems. In the United States, if a
defendant is acquitted, the case cannot be retried.
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.
While the issue is rare in the United States, several courts
have rejected the double jeopardy argument in similar cases. In
2010, a federal court in California found that a man who was
acquitted of murder in Mexico and later convicted after
prosecutors appealed the acquittal, could not claim double
jeopardy to avoid extradition to Mexico. That court cited a 1974
decision from the 2nd U.S. Circuit Court of Appeals in New York,
that reached the same conclusion with respect to Canadian law,
which also allows the government to appeal an acquittal.
When asked about the potential extradition of Knox at a
press briefing on Tuesday, a spokesman for the U.S. State
Department said the question was hypothetical and declined to
comment.
(Reporting By Terry Baynes; Editing by Sandra Maler)
