Constitution Daily

Smart conversation from the National Constitution Center

Does the Constitution protect Amanda Knox from a murder retrial?

March 26, 2013 by Scott Bomboy


The stunning decision in Italy on Tuesday to retry American citizen Amanda Knox for murder has some people crying foul. But could Knox be protected by the U.S. Constitution?


Amanda Knox leaves prison. Source: Wikicommons
Amanda Knox leaves prison. Source: Wikimedia Commons.

One person who thinks so is attorney Joey Jackson, who told HLN today that Knox wouldn’t serve time twice for same crime, even if the trial is in Italy, because it would be very problematic for the U.S. to honor an extradition request from Italy for Knox. The former exchange student left Italy immediately after her 2011 acquittal.


“We have principles that are well-founded within our Constitution, one of which is double jeopardy,” Jackson said. “So as a result of that, I think it would be highly objectionable for the United States to surrender someone to another country for which justice has already been administered and meted out. So I don’t think or anticipate that that would happen.”


To be clear, the Double Jeopardy Clause of the Fifth Amendment protects people in the United States from being tried twice for the same crime.


Italy doesn’t have a ban on double jeopardy in its legal system, and Tuesday’s decision reopens the acquittal of Knox and Raffaele Sollecito in the 2007 murder of Knox’s roommate, Meredith Kercher. The acquittal came in an appeals court in 2011, after a 2009 conviction.


Knox would benefit from the language of the extradition treaty between the U.S. and Italy.


In 2010, the Congressional Research Service said in a report that “most modern extradition treaties also identify various classes of offenses for which extradition may or must be denied” and that double jeopardy was usually on the list of provisions.


“Although the U.S. Constitution’s prohibition against successive prosecutions for the same offense does not extend to prosecutions by different sovereigns, it is common for extradition treaties to contain clauses proscribing extradition when the transferee would face double punishment and/or double jeopardy (also known as non bis in idem),” the report said.


The most recent extradition treaty between the United States and Italy is from the Reagan era. Within the treaty language is a clause about double jeopardy.


“Article 6 provides that extradition shall be denied when the person sought has been in jeopardy in the requested State for the same offense,” the document says.


But would Knox, in the opinion of the Italian legal expert, really face a second trial in the case, if she and Sollecito are back in court?


USA Today spoke with Giorgio Spangher, the head of the law school at Rome’s Sapienza University, who said that technically, the Italian court annulled Knox’s not guilty verdict, which was won in appeals court, and that Knox would be retried in the same appeals court.


Spangher said the Knox couldn’t be forced to return to Italy for another trial, but if she were found guilty in absentia, the Italian government could ask the U.S. for Knox’s extradition.


That extradition process would need to go through the Department of State and the Justice Department, via diplomatic channels. Italy could also ask for Knox’s arrest if it considers her a flight risk.


Knox, 25, is currently a college student at the University in Washington, and spent four years in jail in Italy during her initial trial and conviction.


Her attorneys said on Tuesday that it was doubtful that Knox would leave the Seattle area to go to Italy.


“No matter what happens, my family and I will face this continuing legal battle as we always have, confident in the truth and with our heads held high in the face of wrongful accusations and unreasonable adversity,” she said in a statement.


The publicity over the Knox case isn’t expected to slow down. Her version of the case in book form, Waiting to Be Heard, is coming out in April from HarperCollins.


Knox is also the subject of an exclusive interview with ABC’s Diane Sawyer to be aired on April 30.


Her latest trial in Italy, if it does happen, wouldn’t start until 2014.


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