Can Amanda Knox be extradited?

In following the Meredith Kercher case, it’s not a question I looked into in detail, but I have always assumed that a hypothetical extradition of Amanda Knox from the United States to Italy would be unlikely. She would have hometown advantage at her extradition hearing and there would be all kinds of loopholes for a fancy or ambitious lawyer to exploit. The most those who believe Knox to be guilty could realistically hope for was the prospect of her being finally declared to be so once the Italian legal process had, at length, reached its conclusion.

When, two days ago, Knox and her former boyfriend Raffaelle Sollecitio saw their successful 2011 appeals overturned, much of the media coverage reflected this assumption. Whatever happened, Knox would be safe from the clutches of the Italians, just so long as kept her passport in a firmly-locked drawer. But then I noticed that the BBC had modified its coverage. At first, it thought that extradition was “unlikely”. Then its likelihood was “unclear”. Then it decided that “Italy could seek her extradition” and, finally, that “she could be extradited“. Elsewhere, American lawyers had started to stick their talking heads above the parapet. As with much discussion about the case, their views were radically polarised. “She is never going back to prison!” chirps one. “I can’t see how she could possibly resist extradition!” thunders another. I figure that, where it is hard to find anyone talking to the middle ground, it is probably less likely that the reality is some subtle mixture of the two, and more likely that one side or the other is talking out of its bottom.

As you might expect, the US has an extradition treaty with Italy, so the normal course of things is that either country asks for a suspect to be handed over and it just happens. But what various commentators have suggested is that this can’t happen with Knox, because she has already been tried for the crime. Since the the Fifth Amendment to the US constitution outlaws double jeopardy, it would be unconstitutional to extradite her to face a further trial. However, as the law stands (although here we must add the caveat that it doesn’t always stand still), this does not seem to be correct. The authority for that is a 1974 ruling by the Court of Appeals, where the potential extraditee was in a pretty similar situation to Knox, except it was a drugs offence and it was Canada. And he was extradited. The court ruled that what it was obliged to consider was whether there was a conviction according to Canadian law, and not whether the Canadian courts were following the US constitution.

It might be pointed out – indeed, it has been, by New York attorney Sean Casey – that the treaty between the US and Italy contains a specific clause regarding non bis in idem, the international law equivalent of double jeopardy. This forbids extradition of anyone previously “convicted, acquitted or pardoned, or [having] served the sentence imposed, by the Requested Party”. The trouble with this is the meaning of “Requested Party”. If you expect this to mean “the country to whom the extradition request has been made”, then you would be spot on. So, in Knox’s case, the clause simply means that she could not be extradited in the case that she had already been convicted (etc) of the crime in the US. That fairly obvious interpretation can be seen as recently as last year in a case before the California District Court. Advice if you are in the New York area: make sure any attorney you hire can read.

A further ruling of the Court of Appeals says that judges hearing extradition cases are not permitted to inquire into the conduct of the case according to the law of the country requesting extradition. So, the kind of hearing that some of Knox’s supporters might hope for – one where extradition is denied on the grounds that the Italian authorities don’t have a clue – ought not to be possible. And it also seems like a vain hope that the State Department will intervene to prevent a case going ahead. They are bound by the treaty. There may be cases in which they would intervene, but Knox isn’t suspected of a political crime and there is no issue of national security involved in her case.

What could happen in theory is that Knox is able to argue her case all the way and have previous case law swept into history. If she’s able to take it that far, then maybe all bets are off. But a ruling in her favour seems to me unlikely just because it could leave the United States practically unable to maintain extradition treaties with a whole raft of counties, including many of its closest allies. It wouldn’t just affect a few isolated cases, particularly in the case of double jeopardy. If there’s constitutional protection against double jeopardy, then that ought to apply not only where there is an immediate prospect of it happening, but also in any case where someone risks being extradited to a country where there is any possibility of it happening. And how many countries will be willing to reshape their criminal justice system according to US dictats or allow foreign scrutiny of their judicial processes?

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25 Responses to Can Amanda Knox be extradited?

  1. flwriter says:

    Welcome back, you’ve been missed. A fascinating and thoughtful post as ever. Any future extradition battle will be interesting to see, that’s for sure, although I expect if push comes to shove, a convenient pregnancy will help to prevent it.

    IMO, the most interesting one to watch re extradition will be Sollecito. If and when he’s really up against it, I think he’ll become more inclined to drop Knox in the brown stuff.

    • cuki777 says:

      Yes if RS – guilty verdict upheld at re-appeal and SC signs off on it – coming clean would be last card. Perhaps if him and his team anticipate this outcome then they will voluntarily tell what went on.

  2. cuki777 says:

    Hello Maundy

  3. diocletian says:

    What an interesting issue. I have researched this a little bit, and would like to do more. For now, what I am finding is that the first thing that Italy would have to do is show probable cause for trying Knox. Obviously, they would say that they have her DNA on the murder weapon and that she confessed. Ordinarily, I’m sure that this would be enough to support extradition. However, what if Knox responds to the effect that the above evidence is not admissible? Would the US court subject this evidence to a US admissibility analysis? There are serious questions about whether either piece of evidence would or could be admitted in the US–the “confession” was already ruled inadmissible by the Italian Supreme Court for purposes of prosecuting the murder, and the knife DNA was effectively thrown out by Hellman and could very well be thrown out by a US court on reliability grounds. If these two pieces of evidence are rejected as a basis for finding probable cause, then we would be left only with very relatively weak pieces of evidence that would be unlikely to support a probable cause finding as to Knox. In effect, the probable cause proceeding could amount to a retrial of the case on US evidentiary standards, which could be fatal to the extradition cause. Recall, also, that Matteini conducted a probable cause hearing already, and some of the evidence that she relied on has been debunked.

    • maundy says:

      Hi diocletian. I’m planning a follow-up post on probable cause, so I’ll not go into the full details here. But a couple of points in response. Firstly, it is likely that no evidence will be inadmissible for the hypothetical extradition hearing. This is because Italian rules of evidence don’t apply in the US and US criminal rules of evidence don’t apply for the purposes of probable cause at extradition hearings. For extradition, things like unsworn testimony and hearsay evidence, which couldn’t be accepted for a criminal trial, seem pretty commonplace. Knox’s accusations of Lumumba were inadmissible in Italy because of rules against self-incrimination which are specific to Italy, but they would probably be fine as evidence in the US.

      The extradition hearing definitely couldn’t work as a retrial – that’s very settled case law. The purpose of an extradition hearing is not to consider a person’s guilt or innocence. It may, though, be able to consider representations that go to the basic integrity of the evidence. In the case of the knife, I think that, to succeed, Knox’s lawyers will need expert opinion against the DNA evidence that is stronger than that heard by Hellman (this was enough to establish reasonable doubt, but that’s not the appropriate standard for extradition). And, of course, they will have to achieve the same thing across the board.

      • diocletian says:

        It will be interesting to learn what is the overlay of the Bill of Rights on the issue of admissibility in the probable cause hearing. For example, the Lumumba statements were made at a time when counsel was denied and in violation of the right against self-incrimination, which are serious Constitutional violations and basis for supression in the US. So, one issue will be whether an illegally-obtained confession (under US law) can be introduced in a probable cause hearing for extradition purposes.

        The DNA issue will be quite interesting. Knox will most certainly have substantial expert support that the DNA findings are unreliable and not admissible under Daubert or any other standard. Given C&V, the video of the crime scene, and Stefanoni’s untruthful testimony, a Court may be very reluctant to send Knox back to Italy on the basis of this evidence.

        I think that there is a real risk that a court could find that the statements against Lumumba were ellicited illegally and that the DNA work is nothing more than junk/unreliable science.

        I think that a “retrial” is possible in the sense that Knox will have the opportunity to make certain arguments against any other element put forth as probable cause. Her central argument as to “other” pieces of evidence (turning phone off, odd behavior, DNA found in own house) may simply be “so what: this isn’t probable cause that I murdered someone.” Without the DNA and “confession,” a court may agree.

      • maundy says:

        Two things. One. For practical purposes, there doesn’t seem to be a realistic possibility of evidence in this case being ruled inadmissible in extradition proceedings, because that just doesn’t happen except in very specific circumstances (torture being one). In the case of the accusations made against Lumumba, it’s possible that the evidence won’t actually be submitted by the Italians, since it doesn’t form part of the murder case against Knox, but I don’t actually know that for a fact.

        Two. There is zero possibility of Knox being able to appeal to protections under the US constitution or US law in respect of anything that took place on foreign soil. The accusations against Lumumba would, on the face of it, be admissible in the US in any case. Knox first accused him before she was arrested, so she would have had no right to counsel and, although she would have had a right to refuse to incriminate herself, she would have had no protection unless she had exercised that right. But it’s immaterial, because she was in Italy.

        You may be right that Knox’s team would be able to bring expert testimony to undermine the DNA. But, as I say above, they would need to convince the court that the evidence is absolutely worthless, not just case doubt on it. I think that’s very difficult in a scenario where Knox has just been convicted on the basis of that evidence.

  4. diocletian says:

    It’s interesting that you mention torture. I believe that you will hear allegations that the actions of the Italian authorities violated various international treaties and obligations concerning torture and the treatment of prisoners. That is, if the Lumumba statements are offered as proof (which they may not be for the reasons you rightly state).

    You are incorrect, however, about the admissibility of the Lumumba statements. They were made in the context of a custodial interrogtion–it is irrelevant whether there was a formal “arrest.” They would not be admissible in the US, even in a probable cause hearing. I am not as sure as you are that a US court would premise extradition of a US citizen on evidence that was clearly elicited in violation of fundamental US Constitutional rights, even if the violation occurred elsewhere–the evidence may very well be subject to exclusion.

    I think that you are right that the Italian authorities may avoid the Lumumba statements altogether, because they have been ruled inadmissible in Italy, raise serious US Constitutional issues, and potentially raise explosive torture/prisoner mistreatment issues that would be very irritating to a US judge.

    As to the DNA–that will be quite a war. I’m not certain that you are stating the correct standard (“worthlessness”). In fact, it may be necessary to conduct a preliminary hearing under a Frye/Daubert or similar standard, just to determine whether the DNA evidence is reliable enough to be admitted in a probable cause proceeding. It seems to me almost certain that this particular evidence would not be admitted under that standard, because, among other things, the correct scientific procedures were not followed and the work is not properly documented. The DNA evidence is nowhere near the standard that would ordinarily be required in US courts.

    I think that most of the remaining circumstantial evidence is easily explained away, even under the principle of non-contradiction.

    • maundy says:

      I think we can be assured that allegations of torture will be made. The question is whether they will be made by Knox’s lawyers. Evidence is the tricky part.

      To be clearer if I can: the US constitution provides protection only in US jurisdictions. It doesn’t provide the same protection elsewhere. The Italian authorities acting in Italy cannot do anything in violation of the US constitution, because they are not subject to it. That’s not just an opinion. It’s the view consistently taken by US courts. And there’s no such thing as a custodial interrogation without an arrest.

      • Diocletian says:

        A custodial interrogation occurs when a person objectively not free to leave is interrogated. No arrest in the formal sense is required. The Knox interrogation in perugia was custodial under US law although it appears that interogees may have lesser rights under Italian law.

        US Constitutional protections are generally not tied to US soil, but rather, apply to US citizens vis a vis the US government. That is why I believe that some if these issues may not be as clear cut as you believe in the context of a US proceeding.

      • maundy says:

        So you think Knox was not free to leave in what sense?

        Yes, the US constitution is not tied to US soil, but to US jurisdiction. Knox was not under US jurisdiction in Italy.

  5. Diocletian says:

    Knox was not under US law in Italy. However, the extradition proceeding will be conducted in a US court and US principles of probable cause will apply and admissibility will be determined under US law. Admissibility standards appear to be diminished in extradition proceedings but that does not mean that there are no standards. I do not believe that the court would extradite on the basis of a confession that was elicited under circumstances that would render it clearly illegal under US law. I also think that the court will not extradite on the basis of a scientific test that would be thrown out if a US court.

    Knox was not free to go because she was in a police station surrounded by cops in the middle of the night, was psychologically abused, struck, and was suspected of a crime.

    • maundy says:

      You should read some of the case law. You could start with the cases linked to from my post. Extradition magistrates disallow virtually no evidence. They can refuse a request if they find the evidence to fail probable cause, but they don’t do this by disallowing it.

  6. diocletian says:

    I’ve been looking a little more, and I’m having difficulty finding decisions that discuss the standard for admitting DNA evidence in probable cause hearings. I did find a line of drug cases dealing with dog sniffs, and these cases say that the reliability of the dog must be proved (via evidence of proper training) or else the dog sniff results are excluded. This suggests to me, via extrapolation, that the DNA results will have to be validated in some way before they would be accepted as evidence of probable cause. So, the question will be: what standard of validation will be required for the knife testing?

    • maundy says:

      You need to look at extradition cases, not criminal cases. The ways things work are very different between the two.

      • Diocletian says:

        I’m not sure that’s right. I have seen cases that seem to equate the extradition probable cause standard with the criminal standard. Conversely, I have not seen any cases that distinguish the two standards. It’s a light standard, to be sure, but hard to imagine a court sending someone back for a murder trial based on a DNA test that is obviously flawed. The issue will be how flawed does it have to be.

      • maundy says:

        The probable cause test is the same. But what is different, among other things, is how the rules of evidence work. You basically cannot have evidence excluded. So the court can’t approach the question of probable cause by disregarding certain items of evidence and then declaring that what is left is insufficient.

        The court may be able to consider, to some extent, the reliability of the DNA evidence as part of its probable cause test. But we both know that, objectively, this evidence isn’t “obviously flawed”. Its reliability is a matter of contention between the two sides. The crucial thing here is that the standard to be applied is very low. It doesn’t even need to meet a balance of probabilities test.

  7. diocletian says:

    I think we’re pretty much in agreement on most issues. There is certainly a low standard of proof required. Normal rules of admissibility do not apply. However, evidence does have to be competent/reliable (in other words, it has to be actual “evidence,” I guess in the sense that it makes a fact more or less likely). I believe that the extradition magistrate will have fairly wide latitude here.

    The DNA will be very interesting. First, I believe that this evidence would obviously be excluded under reliability standards in a criminal proceeding, but of course, as you point out, that is not the standard that applies here. Second, there is a dispute as to reliability, but I think we both would agree that at some point reliability can be reduced to the point where the evidence is no longer admissible, even in a probable cause hearing for an extradition matter. Where to draw that line? I’m not quite sure, but I would look for guidance at other probable cause hearings where scientific evidence has been accepted/rejected, and I will suggest to you that at some point a Constitutionality concern may arise when we are considering whether to extradite on the basis of unreliable scientific evidence. I guess the question is: just how unreliable can scientific evidence be to support the constitutional extradition of a citizen?

  8. I find it interested to see some of the Anti-Knox names resurface now. Where have you been? Ah, that’s right you came back because there might be something negative you can write about Amanda Knox. If you truly cared about the process you wouldn’t have completely disappeared when things weren’t going your way.

    Your post is premature. It’s too early to be talking about extradition. The Italian courts have 3 or 4 more years before the topic will be a real issue.

    • maundy says:

      Hi Bruce. I’ll confess to having been a little shocked by events 18 months ago, but there hasn’t really be much to write about since then, has there?

  9. Normally a murder suspect in the US would be extradited to a Western European nation. Most criminal cases are quite straight forward, but not this one Double jeopardy is definitely an issue — she was found not-guilty by a jury — but the more important consideration is probable cause.

    Even the most rabid of Ms. Knox’s detractors would have to concede that there were very real questions about the quality of justice here.

    An underrated issue here is the inability of the defense to get Italian police to testify about their investigation of Rudy Guede’s bad acts prior to the crime. Don’t forget that this was an affirmative defense. AK and RS didn’t do it because there is a mountain of evidence that the crime was committed by the guy already convicted. Guede’s palm and shoe prints here there; his DNA indicates sexual penetration of the victim; he had no relation ship with her and he flees the scene of the crime.

    The claims that AK and RS had gotten together with him for a sex orgy are absurd and not supported by any evidence. No crime in history would equate to the female led sex game gone wrong scenario put forth by Mignini. This type of crime is invariably committed by a troubled male just like Guede acting alone. Amanda lived in that house and Raf visited there so it’s not extraordinary to find their DNA there.

    Nobody knows what role the US State Department took in the case. They didn’t say much publicly but they might have done a lot behind the scenes. They certainly should have.

    • maundy says:

      The claims that AK and RS had gotten together with Guede for a sex orgy are absurd and not supported by any evidence, I agree. They are also claims which I have never heard from anybody except defenders of Amanda Knox.

  10. gallagher says:

    I find the hole issue of extradition to be irrelevant. Should we not instead be discussing the evidence and issues?

    Let me ask you, Maundy. You have been following this case for quite a while. Do you still consider them likely to be guilty?

  11. Tony Almeda says:

    There was some action. Raffaele sold about 13 copies of his POS book before getting sued for defamation. That was good for some laughs.

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