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Knox retrial raises questions about extradition

ANALYSIS/OPINION:

The retrial of Amanda Knox on murder charges in Italy and the imminent extradition of Playboy Playmate Brandi Brandt to Australia on drug charges have reignited discussion about extradition treaties and the rights of Americans accused by a foreign state.

Currently, the U.S. is bound by extradition treaties with about 100 countries, but does not have them with dozens of others — notably Russia and China. The lack of an extradition agreement with Russia prevented the Justice Department from pursuing NSA leaker Edward J. Snowden in Moscow, where he has received asylum.

But Ms. Knox faces a harsher reality because the U.S. and Italy have an extradition treaty.

In 2011, an Italian appellate court overturned Ms. Knox's and her ex-boyfriend Raffaelle Sollecito's 2009 convictions of murdering roommate Meredith Kercher in Perugia.

This week, an appellate court in Florence opened the third prosecution of the pair, following the Italian Supreme Court's order to the appeals court judges to reconsider their acquittal.

Mr. Sollecito is attending the trial, but Ms. Knox is not. Her absence waives her right to face her accusers, testify on her behalf and make "spontaneous declarations" to challenge testimony. She also could face contempt charges for not showing up.

If she again is convicted, the case probably will tried for a fourth time before the Italian Supreme Court.

Some legal analysts believe the U.S. will be legally bound to return Knox to Italy if she is convicted, since the U.S. Senate has ratified an extradition treaty.

"The Senate considers whether a treaty country's criminal justice is fair," extradition attorney Bruce Zagaris said in an e-mail. "She can try to make the unfairness argument in that case, but U.S. jurisprudence limits such arguments."

Mr. Zagaris was referring to exceptions that enable an accused person to challenge extradition. For instance, a request for extradition can be rejected if:

• The "dual criminality" requirement — that a charged offense is a crime in both countries — is not met.

• The offense is a military violation such as desertion or is a political crime.

• The requesting country engages in degrading treatment or torture.

• The prosecuting country administers extra-judicial punishment that the offender's country would not engage in.

In addition, the transnational criminal law principle of "aut dedere aut judicare" enables some countries to reject extradition and try their nationals in their own legal system.

In Ms. Knox's case, her best argument is that Italy's judicial system allows prosecutorial appeal, a principle that amounts to double jeopardy in the U.S. Simply put, subjecting Ms. Knox to re-prosecution in Italy could violate her constitutional rights as a U.S. citizen.

In some cases where the U.S. has been the requesting extradition, America's use of the death penalty has shielded offenders.

In 1989, the European Court of Human Rights ruled that England could not extradite a young German national to the United States to face murder charges because the European Convention on Human Rights guarantees the right against inhumane and degrading treatment — and capital punishment is considered inhuman treatment.

In other cases, different standards of proof have caused tensions between even allies.

Britons have complained that extradition between the U.S. and U.K. is unequal because currently, British law only requires "reasonable suspicion" to extradite a British citizen while the U.S. Constitution requires the higher standard of "probable cause."

A simpler case than Ms. Knox's is that of Ms. Brant, who is being held in Los Angeles awaiting extradition to Australia on drug-trafficking charges.

Australian criminal courts mirror the U.S. burden of proof "beyond a reasonable doubt," and unlike Italy, the prosecution can almost never appeal unless an acquittal was based on perjury or "fresh and compelling" evidence is presented in a "life sentence" case.

Ms. Brandt is charged with a life sentence offense, but she already has consented to extradition — most likely because it could take up to two years to challenge it.

If Ms. Knox is convicted, the Italian Embassy will contact the State Department, which will ask the U.S. Attorney's Office to effectuate a "provisional arrest."

Ms. Knox would be brought before a federal judge who then would have to enter an "Order of Extraditability." She then would be turned over to the secretary of state.

"The State Department and the Department of Justice can also raise the issue on their own before they decide to proceed with extradition," Mr. Zagaris said, "but the U.S. Secretary of State ultimately decides the question."

Considering John F. Kerry's background as a prosecutor, he may consider Ms. Knox's double jeopardy argument. If he were to decline extradition, Ms. Knox could remain in the U.S.

Traveling to another country that has an extradition treaty with Italy could prove dangerous for her but not fatal, since capital punishment has been banned in Italy since 1948.

• Jeffrey Scott Shapiro is a former Washington, D.C., prosecutor.

About the Author
Jeffrey Scott Shapiro

Jeffrey Scott Shapiro

Jeffrey Scott Shapiro is a nationally recognized investigative journalist and a former Washington, D.C., prosecutor. He is currently general counsel for MDB International, a D.C.-based international investigations firm, and a legal analyst for The Washington Times. He can be reached at jshapiro@ufl.edu.

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