On Tuesday, March 26, the Italian Supreme Courtdecided to order a new trial in the case against Amanda Knox, theAmerican exchange student charged with murdering her British roommate inItaly. Knox was convicted of the murder in 2009, but that conviction wasoverturned on appeal in 2011. In much of the legal commentary at various news outlets, the opinion has been that Italy would have a hard time extraditing Knox because of the U.S. Constitution’s Fifth Amendment prohibition on Double Jeopardy.
Alan Dershowitz, for one, wrote at The Wall Street Journal:
America’s extradition treaty with Italy prohibits the U.S. fromextraditing someone who has been “acquitted,” which under American lawgenerally means acquitted by a jury at trial. But Ms. Knox was acquittedby an appeals court after having been found guilty at trial. So wouldher circumstance constitute double jeopardy under American law?
That is uncertain because appellate courts in the U.S. don’t retry casesand render acquittals (they judge whether lower courts made mistakes oflaw, not fact). Ms. Knox’s own Italian lawyer has acknowledged that herappellate “acquittal” wouldn’t constitute double jeopardy under Italianlaw since it wasn’t a final judgment–it was subject to further appeal,which has now resulted in a reversal of the acquittal. This argumentwill probably carry considerable weight with U.S. authorities, likelyyielding the conclusion that her extradition wouldn’t violate thetreaty. Still, a sympathetic U.S. State Department or judge might findthat her appellate acquittal was final enough to preclude extradition ondouble-jeopardy grounds.
Julian Ku of Hofstra Law School, who writes for the law blog, Opinio Juris, says the question should be a no-brainer for anyone who has bothered reading the U.S. Italy Extradition Treaty.
The biggest mistake made by most of the media commentary (I’m looking at you Alan Dershowitz and various law prof types here) is that almost no one seems to have read the U.S. Italy Extradition Treaty. Article VI reads:
Extradition shall not be granted when the person soughthas been convicted, acquitted, or pardoned, or has served the sentenceimposed, by the Requested Party for the same acts for which extradition is requested
(Emphasis added.) The Requested Party in this scenario would be theUnited States (Italy would be the “Requesting Party”). The U.S. hasnever charged Knox with anything, much less with the murder of her UKroommate. So Article VI does not bar Knox’ extradition to Italy.Period.
What about the U.S. Constitution’s Fifth Amendment prohibition onDouble Jeopardy? Well, the short answer is that the Fifth Amendment’sDouble Jeopardy Protection doesn’t apply in an extradition proceedingsince the U.S. is not the one trying Knox (they are just handing herover).
Ku argues that even if the the Fifth Amendment did apply,an acquittal for purposes of the Fifth Amendment.”
The Amanda Knox case is apparently not double jeopardy under either Italian law or US law.
“Knox had better get ready to be extradited, or she better get ready to move to Brazil,” he says.