I know, Wikipedia isn’t evidence, but as I read this explanation the original trial need not have ended in conviction for double jeopardy to apply:
(If nothing else, I notice the writer misspelt “empaneled”, but if I take your meaning aright, the Wikipedia explanation above is not quite correct.
No, it’s pretty much accurate. I didn’t intend to list each and every protection the DJ clause offers. But when an appeals court overturns a conviction, that conviction no longer exists; the double jeopardy clause does not prevent a retrial in that circumstance.
If the original trial ends in acquittal by the fact-finder, then double jeopardy protection is essentially absolute. But there are other ways it can end in acquittal that do not necessarily trigger DJ protection. If the jury returns a verdict of guilty, the judge has the power to set aside the verdict and enter a judgment of acquittal, as a matter of law. That’s also an acquittal, but the prosecution can appeal the judge’s decision and an appellate court can reinstate the conviction.
If the trial ends in a conviction, then double jeopardy applies, in the sense that the accused may not be retried for the same crime…unless the accused appeals. By appealing, he is waiving his double jeopardy rights, essentially asking the court to erase the conviction. (There are certain issues that don’t waive double jeopardy – I mentioned “sufficiency of the evidence” above as a classic example. When the convicted appellant complains that the evidence was insufficient, he’s saying that, as a matter of law, not only should he not have ever been convicted in the first place, but since the prosecution’s evidence was not enough to allow any reasonable jury to convict, he should have been acquitted by the jury).
The Supreme Court of Canada has since made it pretty much impossible for Canada to do anything other than refuse.
Well, I admit I’m not up on current extradition law. Do you have a specific cite?
On the other hand, you have one country that will be asking another country to extradite one of its citizens, and both countries have different legal systems. Isn’t it around just these sorts of differences that the success or failure of extradition requests hinges? Presumably Italy would refuse to extradite one of its citizens to the U.S. if they could potentially receive the death penalty; so I’m not sure why Amanda Knox should be sent to Italy when she has already been convicted and sentenced. Italy had her in prison already, where she was looking at spending her entire life as a young adult and then some. Then they let her go. If they rue that decision now, that’s too bad. Why should the Italian court get a do-over?
The Burns case:
It was decided about a decade after Ng. In Ng, the Court held that it was not a breach of the Charter if the federal government extradited without an assurance there would be no death penalty, so off Ng went to the death row in California.
In Burns, the Court reversed itself and held that in almost every case, it would be a Charter breach to extradite without an assurance of no death penalty.
In the Amanda Knox case, the widespread feeling (here in the USA anyway) seems to be that the case was horribly botched; prosecutorial misconduct; kangaroo court; blah blah.
Can the United States refuse to extradite Knox to Italy on the simple grounds that some hearing (in the US) decides that the Italian judicial process (at least in the Knox case) is a mockery of the judicial principles held here?
Oh sure they could. And then regret that decision for years as requests for extradition to Italy are met with a “no” and the US finds itself a haven for Italian fugitives,.
I think a lot of this arises from the differences in jargon between two different legal systems. We use the word “acquittal” with a certain degree of finality (although, as I have posted above, even with us it’s not completely final) while the Italians seem to use it as the opposite of a conviction, synonymous with “dismissal.”
But even in our system, we have had more than a few cases in which someone has been:
(a) convicted at trial
(b) sent to prison
(c) appealed to an intermediate appellate court
(d) won the appeal and been released from prison
(e) had the state appeal that ruling to the state supreme court
(f) lose the appeal at the state supreme court and be ordered to stand trial again or simply return to prison
So I don’t think that the fact that Italy had her in prison and then released her entitles us to say, “Too bad.” We do that too.
The Diane Whipple dog mauling case is the one I recall offhand where the perp was let out of prison and then sent back due to legal proceedings.
I’m inclined to think that Bricker has the goods here, and the new trial would not violate our standards for Double Jeopardy.
In terms of extradition, is it reasonable to assume that our Gov’t would scrutinize the new proceedings (assuming she’s convicted again) before agreeing to send her back to Italy? Do we have the right to declare their trial a farce and tell them to shove off?
I think that’s much more a political question than a legal question. On the face of the treaty, we don’t have that right, but if we do it anyway, who can tell us to cut it out and comply?
Besides, we’ve focused myopically on the Double Jeopardy angle, which is not a winner. But i think there might be fruitful inquiry in a claim that the crewed-up prosecution is a violation of basic Due Process guarantees – while Italy is not bound by the Fourteenth Amendment, the US Government is, and sending her back for such a weak reason is thus a violation of due process.
I’d certainly argue it.
I have this image of a bunch of guys in three thousand-dollar suits sitting in a rowing shell, with the little guy up front yelling at them…
How important is reciprocity when deciding whether or not to extradite. In the past, Italian judges have risked their lives and the lives of their families by approving the extradition of Italian Mafioso to the U.S. during the “Pizza Connection” heroin smuggling prosecution, among others. Obviously, I wouldn’t expect a judge to totally disregard Ms. Knox’s rights as part of some tit for tat with the Italian judiciary. However, I’d think that maintaining an ongoing goodwill between the two signatories to an extradition treaty would still be a priority.
I heard on the news this morning that the US has refused to extradite people to Italy before in this sort of situation. So, there’s precedent that even if she’s convicted in absentia (another aspect that American courts frown upon), US courts would probably not order her extradition.
Actually, I think the US would have the power to do so, consistently with its treaty obligation, Bricker.
The treaty with Italy is just part of the process for extradition. It sets out the requirements for extradition, but the extradition process still has to be implemented by US domestic law. And, most western countries have a two-stage extradition process internally.
First, there’s a judicial hearing, to determine if the legal requirements for extradition are met (double criminality, reasonable grounds for the requesting country’s assertion that the individual has committed an offence, etc.)
However, if the court finds that the judicial requirements for extradition are met, extradition doesn’t follow automatically. The relevant political authority (in the case of the US, the Secretary of State) has to sign off on the extradition. If the political authority does not sign off, there is no extradition. This two-step process is for exactly this type of situation: even if the legal requirements are met, are there strong policy reasons against extradition?
See the Justice Department’s summary of the extradition process:
Does the question of due process include confidence, or lack thereof, in the outcome of that process? Suppose the new trial ends in conviction without the prosecution having introduced any relevant new evidence–then wouldn’t that be a useful argument against extradition?
Here’s the problem: since the original trial ALSO ended in conviction, I don’t think you could rely on that fact to highlight the problems with the prosecution.
But the due process guarantee is, at its heart, a basic guarantee of fair treatment. I think the weakness of the case itself is the due process argument.
That’s there the diplomacy part gets a little tricky - the US government would be publicly proclaiming that one of its closest allies, one of its fellow industrial democracies at that, has the judicial system of a banana republic. True or not, the embarrassment to Italy might not be worth it. Look instead for some private understanding to be reached and never publicized, involving Knox never returning.
The actual language of 18 USC Sec. 3184 doesn’t seem to contemplate such discretion on the part of the Secretary of State. (Although, as I hinted above, as a practical matter it certainly exists).