Italian Supreme Court’s Overturning of Amanda Knox’s Acquittal Gives Rise to Possible Future Extradition Request

This is a draft article.  The final will appear in the June 2013 issue of the IELR.

Italian Supreme Court’s Overturning of Amanda Knox’s Acquittal Gives Rise to Possible Future Extradition Request

               On March 26, 2013, the Italian Supreme Court (Court of Cassation) overturned the acquittal of Amanda Knox and her then-boyfriend Raffaele Sollecito and requiring them to stand trial again for the November 2, 2007 killing of her former roommate Meredith Kercher.[1]

                If Knox does not return, the Italian appellate court could declare her in contempt of court, but that would not bring additional penalties.  If the court orders another trial and she is convicted at that trial and if the Court of Cassation upholds the verdict, then Italy could seek her extradition.[2]

                Both Knox and Sollecito were convicted in 2009 and sentenced to 25 years of prison, but then set free after the appellate court reversed the conviction in 2011 for insufficient evidence.[3]  The prosecutors then appealed.  Ms. Knox was sentenced to an extra year for calumny for accusing another man (Patrick Lumumba) of committing the murder.[4]

                Much attention has been focused on the alleged mistreatment and pressure exerted by the Italian police on both Ms. Knox and Mr. Sollecito when they are arrested.  For instance, Mr. Sollecito  has criticized his treatment by Perugia police who, he says, would not give him food or access to a lawyer during the questioning, even though it was clear to him that they were treating him as a suspect.  Eventually Sollecito gave several spontaneous declarations during both the original and appellate trials, but he never took the stand in his own defense.[5]

                At the time of their arrest Ms. Knox was 20 and Mr. Sollecito 24 years of age respectively.

                On November 5, 2007, Knox allegedly confesses to being at her home when Kercher was killed and implicates Patrick Lumumba, the owner of a bar where she worked.[6]

                On November 22, 2007, the text of a note Knox had written on November 6, 2007, was released.  It stated:  “In regards to this 'confession' that I made last night, I want to make clear that I'm very doubtful of the verity of my statements because they were made under the pressures of stress, shock and extreme exhaustion. Not only was I told I would be arrested and put in jail for 30 years, but I was also hit in the head when I didn't remember a fact correctly.”[7]

                A new appeals court in Florence will rehear the case either later this year or in 2014.[8]

                The potential for her extradition raises issues.  The U.S.-Italy extradition treaty was concluded on October 13, 1983 and went into effect on September 24, 1984.[9]  A supplementary treaty, part of the EU-U.S. extradition treaty, was concluded on May 3, 2006 and went into effect on February 1, 2010.

                Much of the media is talking about double jeopardy or ne bis in idem, as it is called in extradition terms.  Article VI of the 1983 treaty states that “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.”  However, the problem is that the U.S. would be the Requested Party and Ms. Knox has not been tried, let alone convicted or acquitted for the offense in the U.S.

                Counsel for Ms. Knox, if Italy requests her extradition, would argue that , because of all the breaches of her fundamental rights, her fundamental rights to due process would be violated if she was returned to Italy.  U.S. courts have uniformly rejected such arguments and apply the rule against noninquiry.[10]   The European Court of Human Rights has found exceptions to the rule against noninquriy with respect to an extradition of a young German national for murder in the Commonwealth of Virginia due to the “death row” syndrome[11] and in the case of the expulsion of a man from the U.K. to Jordan.[12] Notwithstanding the apparently inflexible nature of the doctrine, many lower courts have found that a “humanitarian exception” to the rule exists in cases of severe mistreatment.[13]  In 2008, the U.S. Supreme Court  in Munaf v. Geren, 553 U.S. 674, 702 (2008) indicated that a limited humanitarian exception would apply in the context of transferring prisoners from military custody.   If this exception is available in military transfer cases, which poses important concerns about foreign policy and military operations, it should be available in extradition cases.  Notwithstanding Article VI of the U.S.-Italian extradition treaty, the fact that she has already spent four years in jail in Italy, undergone a very public trial, and the revelations about patterns of improprieties about the prosecutor may also influence a U.S. judge.  However, the U.S. government can be expected to mount a strong case for Italy, especially because the U.S. has its own extradition requests to Italy.

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