The ins-and-outs of extradition law increasingly are relevant as global commerce and international travel emerge as the norm, exposing citizens of one nation to the laws of other nations. I previously have written on the process by which the United States typically seeks the return of fugitives to this country to stand trial. Last week’s decision by an appellate court in Florence, Italy convicting American citizen Amanda Knox and her former boyfriend of the stabbing death of Knox’s roommate in 2007 raises questions regarding the flip side of the coin – how the United States government responds when another country seeks extradition of one of its citizens.
Extradition requests from other countries are made to the United States State Department. If made pursuant to an existing extradition treaty between the United States and the requesting country, the dictates set forth in the treaty are applied. That being said, in many instances extradition requests are influenced by outside factors, including politics. For instance, despite the existence of a treaty between the United States and China, the Chinese government rejected the United States’ extradition request of Edward Snowden when he fled to Hong Kong. Stephen Vladeck, a law professor at American University, has observed that “there’s always the possibility that a perfectly valid extradition request will still be — not ignored by the receiving state, but dodged by the receiving state on debatable grounds.”
A number of external factors may influence an extradition request in the Knox case. The first is that the United States currently has an outstanding and somewhat controversial extradition request for Snowden’s return. Whether and how the government’s response in the Knox case could alter global perception and jeopardize its request in the Snowden matter is one variable at play. Another variable is that the United States and Italy do not have a great track record when it comes to the extradition of American citizens to stand trial in Italy. In 1998, an American military jet clipped a ski lift cable, sending a gondola of 20 passengers to their death in the mountains of Italy. Italian prosecutors wanted to try the flight crew of the jet in Italy. Instead the crew was court-martialed in the United States in accordance with NATO treaties. The defendants subsequently were acquitted despite evidence that they had been flying lower and faster than authorized. The event, referred to as the “massacre of Cermis,” has caused a great deal of resentment in Italy.
The Knox case has received a tremendous amount of media attention as it has travelled through the Italian courts. Knox and Italian citizen Raffaele Sollecito, her former boyfriend, were convicted of the murder of Meredith Kercher, Knox’s British roommate, in 2009. The convictions were reversed by an intermediate appeals court in 2011 after questions were raised about the validity of the DNA evidence relied on by the prosecution. The highest court in Italy later dismissed the acquittal, criticizing the lower court for its decision containing “contradictions and inconsistencies.” Last week, Knox and Sollecito were convicted for a second time by a jury made up of two judges and six lay people. Knox was sentenced to 28 ½ years in prison – two and a half years more than the original sentence.
Knox spent more than four years in jail before she returned home to the United States after the initial conviction was overturned and she was tried in abstentia the second time around. Observers believe that the Italian government will not seek her extradition from the United States until all appeals in the case have been exhausted. If it comes to that, the Knox case has the potential to pave new ground in the area of extradition law.
Despite the overwhelming support for Amanda Knox in her home country, under the extradition treaty between the United States and Italy, the United States cannot deny an extradition request from the Italian government simply because Knox is an American citizen located on American soil. Article IV of the extradition treaty between the United States and Italy specifically bars such an argument. Some arguments, however, may be available in Knox’s defense. The first is that Knox’s retrial may violate the United States’ prohibition against double jeopardy, which prevents an individual from being tried twice for the same crime. Whether Knox’s acquittal by the intermediate appellate court falls under this provision, however, is unclear. Under Italian law, the decision of an intermediate appellate court is not a final judgment and the subsequent retrial is considered part of the initial trial of the crime. Knox’s Italian lawyer has expressed doubt that an argument against extradition from the United States based on double jeopardy will be successful.
Another possible argument against Knox’s extradition is a challenge to the Italian government’s case on the merits. Article X of the treaty requires Italy to present a case summary from a magistrate that provides “a reasonable basis to believe that the person sought committed the offense for which extradition is requested.” The case against Knox and Sollecito has many factual discrepancies. For one thing, a small time drug dealer from the Ivory Coast also has been convicted of Kercher’s murder. Knox and Sollecito insist that he acted alone, but an Italian court found that he did not commit the crime alone. Instead, prosecutors have argued that Kercher, who was found with up to 40 knife wounds, was killed in a sex game in which Knox and Sollecito participated. Additionally, the validity of the government’s DNA evidence is at issue. The contradictory positions taken by prosecutors and the defendants may affect the Italian government’s ability to present “a reasonable basis” to believe Amanda Knox participated in Kercher’s murder.
Whether the Italian authorities will seek extradition of Knox from the United States and the American government’s response to such a request remain to be seen. If extradition is sought, the final decision rests with the United States State Department and it likely will receive tremendous political pressure from both sides. As many observers have pointed out, the United States government seeks to extradite more people than any other country in the world and its decision to deny extradition in the Knox case may result in push-back from other countries.