With an Italian appellate court having just overturned Amanda Knox’s murder conviction, the prosecutor on the case, Giuliano Mignini, has stated that he will appeal to have the conviction and sentence reinstated. Meanwhile, Ms. Knox is back in the United States and out of the reach of the Italian government. Given that the prosecutor has not yet filed his appeal, its basis and likely result remain unclear. Assume for the sake of argument, however, that the Italian high court sides with the prosecutor and reinstates the conviction and sentence, and that Italy subsequently requests Ms. Knox’s extradition. Would the United States comply?
Most media reports suggest that the United States would refuse to extradite. But as a purely legal matter, it is questionable that such a move would be permissible. The United States and Italy are parties to a bilateral treaty in which the United States has agreed to extradite to Italy “persons whom [Italian] authorities . . . have charged with or found guilty of an extraditable offense.” The treaty defines “extraditable offense” to include an offense “punishable under the laws of both [countries] by deprivation of liberty for a period of more than one year or by a more severe penalty.” Murder is plainly punishable in the United States by imprisonment for over a year, and Ms. Knox’s original sentence of 26 years in prison demonstrates that the same is true in Italy. The crime for which the Italian high court might reinstate the Knox conviction, therefore, is an extraditable offense. Moreover, U.S. courts tend to treat foreign judgments as sufficient evidence of probable cause, regardless of whether the judgment was obtained in accordance with foreign law.
This analysis suggests that if Italy were to request extradition after reinstatement of the conviction and sentence, international law would pose no obstacle to fulfillment of the request.
If the sentence is reinstated, I suggest we invite the Italian cowards to come to the US to get Amanda. They will meet more armed Americans than they have seen since Anzio Beach.
What about Article VI of the treaty? I realize that Italy defines acquittal differently from the US, but wouldn’t the US definition apply?
I certainly agree that Article VI would preclude extradition if acquittal were the final result of the trial and appellate process. But I think the point of the prosecutor’s appeal to the Italian high court is to have the conviction and sentence reinstated. If he succeeds, then the intermediate appellate court’s ruling of acquittal will be reversed and the conviction will stand. I think it would be difficult to base a refusal to extradite on an acquittal that was conclusively reversed.
Has this issue been decided before? If acquittals can be reversed, what is the point of putting Article VI in the treaty? Is there a controlling citation or precedent?
“I suggest we invite the Italian cowards to come to the US to get Amanda. They will meet more armed Americans than they have seen since Anzio Beach.” Dear Mr. Lintel, as an Italian citizen (and also US citizen), I take your statement as deeply offensive and, honestly, out of place in this serious legal debate about very imporatant issues of international law. The Italian public officers did follow the national procedures, and as a result Mrs Knox was acquitted. We can debate and disagree on the merit of the case, we can debate the international enforcement of national sentences as Professor Scoville and other commentators are excellently doing. This does not allow any of us, however, to offend other countries’ citizens and poeple on a general basis, to call them “cowards” for no reason, and to just add not relevant, and offensive, comments to an important debate.
Stuart, in response to your question, I’m not aware of precedent that decides this precise issue under the U.S.-Italian Extradition Treaty, but I think Article VI still retains meaning even if acquittals can be reversed. Under my reading, the role of the Article would be to preclude extradition simply where acquittal is the final result of the litigation process, including trial and appeal. Here, that process is not yet over, so it is hard to say that Article VI applies already. It certainly might apply, but only if the Italian supreme court upholds the intermediate appellate court’s decision to acquit.
I also agree with Professor Calboli’s comment.
Perhaps I have not expressed myself properly. I understand that she has not been acquitted under Italian Law. However, as I see the issue, the question is whether she has been acquitted within the meaning of Article VI. Under the plain language of the treaty, quite possibly. Remember, the US Supreme Court has proven that it is willing to disregard international law if it gets in the way of the rules of statutory construction.
The Knox/Sollecito prosecution, based as it was on a highly implausible and under-evidenced theory of a four-way sexual encounter that turned into a murder, reminds me an awful lot of this infamous U.S. case: http://www.norfolkfour.com/. As the Norfolk Four case illustrates, such miscarriages of justice are not endemic in any way to Italy.
She has been absolved of the crime under the meaning of Article VI. The judge and jury declared in the second judicial action that she “did not commit the act” so she has, indeed, been acquitted under the meaning of the article.
I realize that this takes the discussion in a different direction, but I do not believe that the website cited by Prof. Boyden provides a fair description of the extraordinarily complex Norfolk Four cases. Although I personally believe that the four convicted sailors in that case almost certainly did not commit the crime to which they confessed (and implicated each other), the circumstances were far more complicated than the way that they are represented on the Norfolkfour website.
The wikipedia article on the case (Norfolk Four) provides a far more balanced account, as does Virginia Gov. Tim Kaine’s statement that he issued in conjunction with his decision to commute the sentences of the four men, but not to overturn their convictions.
Gov. Kaine’s statement can be found at http://wayback.archive-it.org/263/20090925015025/http://www.governor.virginia.gov/MediaRelations/NewsReleases/viewRelease.cfm?id=1024
The prosecutors cannot file an appeal until the first appeals court releases a mandatory ‘Motivations’ report detailing the rationale for their acquittal. This usually comes within 90 days of the verdict. Once the report is released, the prosecution has approximately 45 days to file its appeal. The prosecution has not done anything yet because they have no basis as of yet for the reason of acquittal.
There is also some discussion as to the reason for acquittal, which, under Italian law, usually comes from the application of one of the paragraphs of the Italian Penal Code. One paragraph states the acquittal is on the basis of reasonable doubt while the other is on the basis of not enough evidence to prove guilt.
Under Italian law, the accused is not considered guilty until the case has been decided by the Corte Suprema di Cassazione (or, the Supreme Court, the final level of appeal, whose decision is binding. As such, Knox and Sollecito are technically innocent now until the Supreme Court rules.
The Supreme Court rules on the basis of the applicability of the law; that is, it analyzes if the law has been prudently followed during the first instance and the second instance (of appeal).
There are two possible outcomes of the Supreme Court on this case: nullify the appeal’s court acquittal, or reinstate the conviction on the basis of the first instance (of guilt). In the former, then, the appeals process recommences at the second instance (in this case, the appeals court, and the process repeats itself going along to the Supreme Court).
Professor Scoville,
Amanda Knox’s parents are still schedule to go on trial in January for slander. Can they be extradited if convicted and are given a jail term?
Would the U.S. extradite them?
Thanks,
Mike
http://blog.seattlepi.com/dempsey/2011/07/03/italians-to-try-amanda-knox-parents-on-july-4-holiday/
The physical evidence presented and the lack of correct investigation in the case would cause a dismissal in any US justice system though, if all things were done correctly. I think in cases like this instead of trusting a country to be just, we should have an international court created to settle disputes in criminal cases when injustice is believed to be done. If this case has taught us anything, it has taught us that injustice is not only done within countries, but also between countries. Maybe if we could form a court system that incorporated both countries in a dispute, it would do more justice for citizens in both countries if injustices to this extreme are seen in the investigation and prosecution of a case like this. Don’t blame Italy though, keep in mind our recent execution of a man that had been convicted by eye witness testimony that not only was recanted, but also brought allegations of police intimidation. In fact the only witness who didn’t recant was the only other suspect. Both these cases show the lack of integrity in eye witness testimony. Physical evidence doesn’t lie, our interpretations are the only thing that can be wrong. That said, we should focus on physical evidence and take eye witness testimony, and even flawed accounts of memory with a grain of salt. Remember though that even interpretations of evidence may have flaws. The unjust pursuit of the innocent must stop, and possibly laws should be introduced to provide more accountability for the prosecution and the investigators in cases so that pursuit of innocents when there is much more than reasonable doubt due to the lack of evidence becomes a crime.
Mike, thanks for your question. I’m skeptical that slander would be an extraditable offense. To qualify as such, the act would have to be punishable by more than one year in prison under the laws of both the United States and Italy. Although I don’t know what the punishment would be under Italian law, I doubt that any U.S. jurisdiction has a law that punishes slander so severely. Assuming that is true, extradition would not be required under the treaty.
What is the Italian government prosecuting them for slander for? Didn’t the government technically do the same thing to Amanda Knox? Is it okay in Italy to slander citizens if you are in government office? It seems to me that both groups went into a media frenzy attacking each other and I’m sure the parents did such to rally support for an otherwise hopeless case of digression. Why does the Italian government think it has a case, and could there technically be a counter case against the prosecution for its attack on Amanda’s character through “leaks” to the media?
If Mark Myers argument were correct, no one would ever be extradited.
I still think her best argument against extradition would be Article VI. The article does not state “acquitted within the meaning of Italian law”; it only speaks of “an acquittal.”
There was a judicial hearing and a verdict of not guilty. The absence of a judgment is not relevant. Under US law, this generally constitutes an acquittal. Absent specific language or case law to the contrary, Article VI probably applies.
Stuart, I appreciate your commentary on this post. I don’t think the text of Article VI rules out your interpretation, but I’m also skeptical that Article VI applies already in the Knox case because that interpretation would effectively discount the significance of each country’s appellate process by defining “acquitted” to refer to acquittal at any stage of the litigation, regardless of whether acquittal is the final judgment.
I was wondering if a case like this would change the treaty between the United States and Italy. If it were determined that her natural rights were denied by our standards, would that mean we would have the diplomatic right to void the treaty due to a belief of flaws and corruption within Italy’s court system? I would think the United States would try to distance itself as far away from any corrupt system of government as it could until steps are taken to correct such flaws in that government.
Professor Scoville, you are absolutely right that my interpretation of Article VI would discount the nature of Italy’s appellate system. However, I would like to respectfully point out that does not necessarily mean that my interpretation of Article VI is invalid. One of the first things our founding fathers did when they established our constitution was create the Double Jeopardy clause because they saw it as being an essential guarantee against tyranny. Our founding fathers truly despised the European Law which allows a prosecutor to appeal a decision of not guilty. Respectfully, I believe that Article VI should be interpreted with that fact in mind.
If we were to deny Italy the right to extradite based on Article VI, would it even affect our relations with Italy? Many of the Italian people seemed to think she was innocent when I was over there this summer. The prosecutor already has a black mark, and in reality Italy doesn’t have much say in the global political environment. If there were to be an international quarrel would it be settled in the United Nations? I really can’t see something like this causing such discourse between two nations, but I suppose crazier things have happened.
Also, would something of this nature be grounds for our country to remove the extradition treaty?
Does anyone have anything else to add to this discussion?
I believe the U.S. will not want to extradite Amanda Knox, simply because it would create a firestorm. Article VI, therefore, would be a handy way to deal with an extradition request. I believe extradition requests are made through each country’s executive branch. So, there would be a political component to the decision by Italy’s prime minister to request extradition. Somehow, I doubt this will be decided simply on the basis of legal interpretations.
It is my understanding that Italy’s high court cannot overturn the appeals court decisions regarding evidence. That being the case, I’m hard put to understand errors in legal procedure would be of such significance that the remedy would be as dramatic as overturning the verdict.
I think it is obvious that she was “acquitted” under the US definition and a double jeopardy case would be illegal to extradite since the Treaty would have to be understood by the extraditing country’s definition. The US government would NEVER sign a treaty that allows the other country to define the terms, that is very clear in every treaty from tax to free trade to extradition. The definitions are either clearly defined in the treaty itself or the country required to commit action uses its own definition of the term in the treaty.
In addition, the practicality would be bizarre. Washington State and local police would refuse to arrest her (probably citing Obama’s very own “locals can’t police federal law” case he pursued in Arizona) — so that leaves federal agents raiding a private American citizen’s home a la Elian Gonzalez, but not to return a motherless child to his father, but to send an obviously innocent, young woman who was clearly railroaded by a lunatic prosecutor back to a system many Americans deem medieval. I don’t see it happening.
There is just one more issue I would like to discuss. If there is a lack of case law on the subject, it might indicate that the State Department has been dealing with the issue administratively. According to the treaty the State Department must certify that the defendant is extraditable before there can be an extradition hearing. If the State Dept. refuses to extradite there will be no habeas trial and no appeal and therefore no case law. I realize this is speculation but I think it’s possible that this issue will be dealt with by a polite letter to the Italian govt. saying “sorry, extradition request denied.”
Just to clarify, it seems somewhat odd that there would be no case law on the specific subject. The current extradition was signed in the early eighties and it seems strange that no one has tried to fight extradition under Title VI in all this time. Unless, of course, the State Dept. routinely refuses to process extradition requests when a Title VI argument can be made. I realize that I am being somewhat speculative with this post.
Extradition requests are made from executive branches to executive branches, not judiciary to judiciary. If it were the latter, the interpretation of the law itself would be a prime driver.
Obviously, the judiciaries would prefer to be dominant, in such matters. The fact that they are not allows for political factors to be taken into consideration. (In contrast, a European Arrest Warrant excludes executive branch involvement.)
Because Article IV could be interpreted in favor of the defendant, I doubt that the U.S. executive branch will interpret it in any other way.
So, that puts the Italian executive branch on the spot. Will it risk the probable loss of face of having the U.S. turn them down?
Article VI can hardly be interpreted in favour of the defendant unless the interpreter is in bad faith. Article VI provides that extradition shall be denied when the person sought has been in jeopardy in the requested State for the same offense. Knox was never convicted, acquitted or pardoned in the USA for this offense and will be acquitted or convicted for the crime in Italy only after a Supreme Cassation Court ruling. At the moment she is under trial as she was before and after her first degree conviction. If convicted a request for extradition could hardly be refused.
Karl Popper:
Strict interpretations of the law are just one element in an extradition decision. I would anticipate that a law school blog would emphasize the preeminent role of law. But if Congress wanted the law — as interpreted by the judiciary — to be the total arbiter, then our extradition treaties would resemble European Arrest Warrant agreements.
But they don’t; that means there can be political considerations. That’s not bad faith so much as it is what it is — intentionally political. Politicians can interpret Article VI anyway they want to. Who’s gonna stop them?
Dear Karl Popper,
The language you are quoting does not come from the Extradition Treaty, but from President Reagan’s letter submitting the Treaty for approval and ratification. This letter is not a part of the Treaty, but merely serves as a form of advertisement for the treaty: “Ratify this Treaty, it’s a good treaty and it does all these good things for the USA.” The letter you are quoting is not mandatory authority.
This is a link to the “cover” letter and what appears to be the actual provisions of the treaty.
http://internationalextraditionblog.files.wordpress.com/2011/03/italy.pdf
ARTICLE VI
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.
—————
I agree with Scoville’s article and response on this point. Stuart, this is the article and its meaning corresponds to the other wording, which makes your comment pleonastic. There is no double jeopardy in this case and certainly not the kind described in article VI … politicians – I agree with Jack – may not respect the treaty but this is another matter which courts may have to solve. If treaty is respected there is no reason to refuse extradition. In response to 2 previous questions from Jack: (a) Italy’s Supreme Cassazione Court can invalidate the appeal not only for procedural errors but also for inappropriate application of law. Cassazione can invalidate the appeal verdict for a faulty motivation as in Italy any verdict must be motivated in writing (by Constitution art.111). This is – in fact – the main reason of the current appeal to Cassazione by the general prosecutor of Perugia. Therefore, Cassazione will definitely analyse the evidence of the case (b) there is no chance Italy fails to request extradition for a common murder (in case of a final conviction). In case Cassazione invalidated the appeal sentence first degree verdict would be reinstated so a new arrest warrant would be issued for the defendants.
Just to be clear, I understand your argument. Everyone is considered technically innocent in Italy until the Italian Supreme Court confirms the conviction. Therefore, double jeopardy does not attach until Italy’s supreme judicial body confirms the conviction and/or acquittal. This system is consistent with the European Convention of Human Rights, which only prohibits prosecuting someone after a FINAL acquittal (emphasis added).
However, it should be noted that Title VI does not contain the word final, it only says acquittal.
Generally speaking, an acquittal in the USA is the event that occurs when the Jury decides (reaches a verdict) that there is insufficient evidence to find the defendant guilty. Once this determination is made the defendant cannot be retried (placed in jeopardy) for the same offense, except under very rare circumstances which I will not go into here. This is obviously very different from the Italian system and terms such as convict and acquit really don’t translate very well. However, the USA’s position on double jeopardy is well known. Italian citizens certainly don’t need the protection of Article VI. If Article VI isn’t there to protect American citizens from multiple prosecutions, what is the intended purpose of Article VI? What meaning does it have and why did the USA bargain for it?
Unless someone can come find a binding case or precedent, I still believe that Article VI may very well prevent her from being extradited.
Karl Popper: The prosecutor’s appeal has yet to be translated, but if you assume the reportage is correct, the prosecutor does not argue evidence. If he had done so, it would be far longer that it apparently is, regurgitating the prosecution’s circumstantial and conjectural evidence. Apart from the content of the prosecution’s appeal, from all I have read so far, the prosecution has a narrow road to travel to overturn the verdict.
The failed attempt by the U.S. to extradite Roman Polanski from Switzerland, while not precisely parallel, may be instructive.
The LA prosecutor, backed by a sympathetic judge and the U.S. State Department, argued Polanski skipped town before his sentence was pronounced. (The extradition request did not include any reference to his unlawful escape. The defense stated that the original judge was about to renege on an agreement with which Polanski fully complied.) The judge involved in the extradition stated all this would be duly considered once Polanski is back in the U.S.
It’s cut and dried, right? Nope. The Swiss judiciary made a political decision. They would go beyond the scope of the treaty and ask for a transcript of secret testimony by the original prosecutor, which backed up Polanski’s story. Had the LA prosecutor complied with that request, he would have lost the extradition effort; so, he didn’t.
Does extradition mean you can seek out evidence of the defendant’s guilt? Hardly. The Swiss denied extradition. Too many holes; too little cheese.
Extradition treaties are not simply a matter of law.
I also understand your argument but Article VI was signed to avoid prosecuting a person for the same crime in 2 different countries. The defendants were never tried for this murder in the USA (the “requested party”) so the US cannot refuse extradition if we stick to the treaty. Politics is another matter; I agree with the conclusion of the writer of the article, Ryan Scoville: “if the United States were to decline an Italian request for extradition after reinstatement of the conviction and sentence, we would be doing so in contravention of international law.” Politics would cause breach of International law.
Regarding Jack and the Cassazione court, what “reportage” are we talking about? What does “narrow road” mean? The powers of Cassazione are well known. There is no doubt that the general prosecutor (PG) did appeal to Cassazione for faulty motivation – articulating on several points – and that the Court can invalidate the appeal for this reason which is substantial and has to do with evaluation of evidence from investigation to preliminary hearing, first and second degree. If the motivation is considered faulty the law was not followed and the appeal is cancelled. You can read the PG appeal document, as it is already available, and you can count on thousands of other Supreme court cases as precedents.
Finally, the Supreme Cassazione Court is the highest judicial body and does not “regurgitate” rulings; its sentences are irrevocable and must be accepted so your words are highly inappropriate. You are signalling a political prejudice on this case or the preference for a political solution, which is not the main object of this discussion. Should you be here arguing legal aspects?
1. I don’t agree with your contention that double jeopardy applies only “to prosecuting a person for the same crime in 2 different countries.” That would be an extremely rare prosecution. Maybe you can explain it to me.
2. Your assertion that somehow “international law” trumps a treaty needs an explanation as well. I do recognize the argument that an interpretation of Article VI could justify an extradition. But the refusal of the U.S. to extradite the CIA operatives (rendition case) is an example of how countries can interpret extradition treaties any way they wish. In the Knox case, the U.S. at least has a basis in its interpretation of VI. That’s not the case with the CIA extradition.
3. By reportage, I refer to media coverage of the content of the prosecution appeals to the high court. By “narrow road,” I’m referring to the limitations on the Supreme Court as to what it can reexamine. Perhaps, Karl Popper can can explain what powers the high court has to overrule the evidence findings of the appeals court. They are not “well known” by me.
4. I can only find the prosecution’s appeal to the high court in Italian. Please let me know where you found it in English.
5. Regarding your assessment of “highly inappropriate,” if offering an opinion that differs from your own is “inappropriate,” I plead quilty.
6. I’m also guilty of discussing this matter as a treaty, not a statute. If that discussion is “inappropriate” for this forum, I’m sure the moderator will step in.
Procedure
Appeal to the Court of Cassation is in most cases not a matter of right, only with leave to appeal. The Court of Cassation cannot overrule the trial court’s interpretation of the evidence but can correct a lower court’s interpretation or application of the law. Appeals to the Court of Cassation generally come from the appeals court, but litigants may also appeal directly from the trial court.
Decisions of the Supreme Court are binding only in the case submitted. The two essential roles of the Court of Cassation are to ensure that lower courts correctly followed legal procedure and to harmonize the interpretation of laws by lower courts through its interpretation. However, lower courts find those judgments persuasive.
http://en.wikipedia.org/wiki/Court_of_Cassation_%28Italy%29
This article ignores two critical aspects of the treaty that make extradition unlikely in the Knox case. First, Art. 10 requires a showing of evidence that Ak is probably guilty of the crime. Italy’s Justice Ministry will be unable to make any such showing. The critical DNA evidence accepted by the Court of First Instance violates international protocols and wouldn’t be admissible in a U.S. courtroom, nor would any part of the so-called confession. There is no other probative evidence. Second, the interplay between the acquittal in Italy and the double jeopardy clause in the US Constitution defeats the duality requirement in Art. 2 of the treaty. The crime must be punishable by at least one year in BOTH countries. Because of the acquittal, no further proceedings could occur in the U.S. In other words, there is as of today no analogous criminal liability in the U.S. hence the crime is not punishable and duality doesn’t exist.
Has anyone been able to find any relevant case law in regards to this matter?
I’ve seen a discussion indicating that U.S. courts have generally held that even where foreign procedures would have violated our double jeopardy bar had they occurred in the context of a U.S. criminal prosecution, this was not a basis itself for denying extradition. I concede that hurts my duality theory — my second argument, above. Cases cited (I have yet to read these) include Neely v. Henkel, 180 U.S. 109 (1901); Bloomfield v. Gengler, 507 F.2d 925, 927-28 (2d Cir. 1974); Sidali v. INS, 107 F.3d. 1997). I’m not sure they’d apply where, as here, there’s been a finding of actual innocence. Also, the State Dept. may take into account fundamental unfairness in the procedures a fugitive might face. Thus, should the Rome court overturn the acquittal on some procedural ground (which is the most they’d likely do) and send the case back to some lower court, and extradition were to be sought in that context, the State Dept. would be w/I rights to consider the unfairness of the initial trial and conviction, i.e: the mistreatment of Knox by the police in denying her a lawyer & an interpreter; her vilification in the press which jurors were allowed to read; the bungling & manipulation of evidence; the lies fed to the press by the prosecutor’s office that helped fuel the media frenzy, etc. Moreover, State would have to consider the substance of the Hellman Report which concluded that not only did the bricks supporting the prosecutor’s case come tumbling down on appeal, the materials that made up the foundation for the bricks were never there to begin with. Not to mention the sheer silliness of the sex game gone wrong theory unsupported by something we call evidence. Thus, the premise of this blog — that extradition must be granted as a legal matter — is plainly flawed.
BTW: Art VI of the treaty would seem to be inapposite here since knox hasn’t nor will be charged for the crime in the U.S. (the requested party).
Yes, I understand that now, although Prof Scoville did not mention that point. It looks like an argument of insufficient evidence would be her only option.
The English translation of the Italian Supreme Court report which explains why Amanda Knox and Raffaele Sollecito’s acquittals were annulled can be downloaded from the Perugia Murder File website:
http://www.perugiamurderfile.org/viewtopic.php?f=20&t=599
Harry Rag is an infamous and anonymous internet troll and Knox hater par excellence. He hast posted thousands of anti-Knox diatribes over the past 5 years. Indeed, there seems to be no other purpose to his (or her) existence. Anyone who believes anything he says about the case is making a serious mistake in judgement. The translation he links is a hopelessly inaccurate polemic and should not be used by any one interested in the case. In the original Italian the Italian Supreme Court report is intellectually embarrassing and an acute insult to both Italy and the ideal of justice.
It was a pleasure to read an assessment of the extradition situation that is actually correct. With a conviction expected talk of what will happen with extradition has been a popular topic on news networks. As of today I have not watched a single expert give a correct assessment of the extradition situation. As such to see a professor get it right is refreshing.
PS: I especially like that double jeopardy was not mentioned once in this opinion. The author most have been aware of the fact that the 5th does not apply to extradition. This is something that is lost on every legal commentator who has discussed the trial. Maybe MSNBC should dump Dan Abrams and hire Ryan Scoville instead.
Does the extradition treaty discussed allow either country not to extradite a citizen if the penalty is deemed unjust? For example, some European countries will not extradite if the accused is subject to the death penalty. How much “wiggle room” is there in such documents?
Re: Sidney Williams: The treaty explicitly discusses the death penalty and requires the requesting party to give assurances that it will not be imposed. I see no wiggle room in the treaty for anything other than death penalty in terms of an “unjust” penalty.
A few people have mentioned this, and I agree that I can’t see how double jeopardy would apply. The only double jeopardy mentioned in the treaty is if the defendant has been convicted, acquitted, or served a sentence for the offense in the REQUESTED PARTY’S country. Here, that means that extradition could only be denied on “double jeopardy” grounds if she had been tried here for the same offense (which she has not been). The fact that an appellate court in Italy — the requesting state — vacated her conviction is neither here nor there as far as the treaty is concerned, now that she has been subsequently re-convicted.
Some commentators on TV have pointed to Article X’s requirement that the requesting party demonstrate “probable cause,” and suggest that the US could simply conclude that there was not probable cause. That requirement explicitly only applies to requests where the defendant has not yet been convicted. Article X has a separate section where the defendant HAS been convicted, and it basically requires only a copy of the conviction and the sentence. No requirement to demonstrate any kind of probable cause.
The only POSSIBLE hook I can think of is that, when a defendant is convicted in absentia — which is arguably the case here since the first conviction was vacated, and the most recent conviction was while she was in the US — all issues related to “this aspect” of the extradition request are decided by the “Executive Authority.” It also requires the requesting party to submit the same documents that it would submit had the defendant not yet been convicted (i.e., the probable cause statement). I have no idea what the “this aspect” qualifier refers to. Seems like it can’t refer to the entire extradition request, otherwise the phrase “this aspect” would serve no purpose.
And finally, even when the requesting party is required to submit a probable cause statement, Article X doesn’t REALLY say that we get to review and make our own determination of probable cause. It really just specifies the documents necessary. If the requested party feels the submitted documentation is insufficient or not in accordance with the treaty, the remedy is TO REQUEST ADDITIONAL DOCUMENTATION, and to grant extensions of time as necessary. I suppose it can be inferred that, at the end of the day, the requested party can deny extradition because it is not satisfied that probable cause exists, but the treaty does not actually say that.