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.
Mr. Stolworthy,
This is obviously a complex issue even for those with legal education and experience. Thank you for your prompt and cogent response.
Mr. Williams:
Agreed that it is a complex legal matter, and it is made even more complex by the intersection of diplomacy with the legal issues. One thing I hadn’t mentioned is that, despite the language of extradition treaties, countries deny extradition for all kinds of reasons anyway, as long as they are willing to face the diplomatic repercussions. There is no mechanism in the US-Italy extradition treaty to refer a dispute between the two countries to some international tribunal for resolution (unlike investment or trade treaties, for example, in which disputes are routinely referred to international arbitration). And the US has flat-out denied extradition–even in the face of a conviction–before, in the case of the US CIA operatives convicted of kidnapping in Italy. I can’t imagine what provision of the treaty permitted that refusal (and I’m sure Italy would say it was a violation of the treaty). But basically, if the US is willing to accept whatever diplomatic consequences Italy might extract, it could tell Italy to go pound sand regardless of the treaty.
That decision lies entirely with the State Department, though. If State declines to refuse extradition on diplomatic grounds, I just don’t see a US court, which will focus solely on the legal issues, intervening.
Mr. Stolworthy:
From what I understand the U.S. preemptively denied extradition of the CIA operatives before the trial in absentia, even before extradition was requested by Italy.
Italy did not request extradition, even though prosecutors sought it via the Justice Ministry. Two different prime ministers made that decision. I believe in the instances of absentia, it is ultimately a political decision, given the heads of each nation must request extradition and approve it — whatever laws each side may or may not cite.
According to the terms of the treaty, neither country’s judiciary can intervene in the implementation of any executive decision.
As my thoughts crystalize on extradition, I envision 3 issues that should be raised with State in the first instance and in the courts, if necessary: (1) lack of evidence to show probable cause; (2) human rights concerns/unfairness; and (3) improper motive behind the conviction and request. Let me explain. Neither State nor the courts are inclined to consider double jeopardy as an argument in and of itself, but that is of minimal concern because the contrast between the Hellmann and Nencini verdicts speak loudly as to improper motive (that Italian politics and the desire to restore trust in the police/magistrates, and not evidence dictated the ultimate outcome). Remarks by DOJ officials indicate that arguments pertaining to unfairness and improper motive will be taken seriously. They don’t like DJ because it is very difficult to apply procedural safeguards to the myriad systems in the countries with which we have treaties. With respect to probable cause, since this is a conviction in absentia it is likely that Italy won’t be able to rely on the four corners of the conviction but will have to prove probable cause by way of evidence on the record. In the courts AK can’t refute Italy’s case by presenting her own witnesses, etc. but will be able to explain discrepancies/irregularities in the evidence presented. She can accomplish this by referring to the Hellman Report and evidence presented to that court. While probable cause is a low bar, AK can make a compelling argument that it is scientifically impossible (as John Douglas has said) that she and RS could have participated in the crime w/o leaving a trace of themselves, especially in light of the abundance of evidence left by RG. With respect to unfairness and human rights concerns the focus will be on the abusive interrogation, the mysteriously missing video or audio of said interrogation, leaks to the press of information that proved unfounded but poisoned the well, the destruction of laptops in police custody and, most important, the disregard of scientific and lab protocols in the collection of evidence and DNA testing coupled with hiding the ball. Finally, with respect to the political (not legal) arguments made to State (which has wider latitude than the courts to look behind a conviction), it should be borne in mind that the decision ultimately depends on balancing foreign policy objectives with human rights concerns. A good argument, I think, would be that foreign policy concerns as they pertain to Italy will not be damaged by denying extradition because the Italian gov’t is divided as to the merits of this case: Whereas the center/right coalition has sought an investigation of the magistrates and police, the left dominated judiciary would prefer to see the American girl rot in jail w/o proof. By contrast, as shown above, the unfairness and irregularities abound making for a human rights travesty. Okay, in tribute to the shortness of life, I’ll stop here.