On Tuesday, March 26, the Italian Supreme Court decided to order a new trial in the case against Amanda Knox, the American exchange student charged with murdering her British roommate in Italy. Knox was convicted of the murder in 2009, but that conviction was overturned 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 Amanda 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. from extraditing someone who has been “acquitted,” which under American law generally means acquitted by a jury at trial. But Ms. Knox was acquitted by an appeals court after having been found guilty at trial. So would her circumstance constitute double jeopardy under American law?
That is uncertain because appellate courts in the U.S. don’t retry cases and render acquittals (they judge whether lower courts made mistakes of law, not fact). Ms. Knox’s own Italian lawyer has acknowledged that her appellate “acquittal” wouldn’t constitute double jeopardy under Italian law since it wasn’t a final judgment—it was subject to further appeal, which has now resulted in a reversal of the acquittal. This argument will probably carry considerable weight with U.S. authorities, likely yielding the conclusion that her extradition wouldn’t violate the treaty. Still, a sympathetic U.S. State Department or judge might find that her appellate acquittal was final enough to preclude extradition on double-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 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
(Emphasis added.) The Requested Party in this scenario would be the United States (Italy would be the “Requesting Party”). The U.S. has never charged Knox with anything, much less with the murder of her UK roommate. So Article VI does not bar Knox’ extradition to Italy. Period.
What about the U.S. Constitution’s Fifth Amendment prohibition on Double Jeopardy? Well, the short answer is that the Fifth Amendment’s Double Jeopardy Protection doesn’t apply in an extradition proceeding since the U.S. is not the one trying Knox (they are just handing her over).
Ku argues that even if the the Fifth Amendment did apply, “under US law, an appeal that overturns a lower court conviction is not 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.