That’s because 18 USC Sec. 3184 deals with the judicial process. If the court concludes that the legal requirements have been met, the issue then shifts to the Secretary of State under 18 USC Sec. 3186:
“may” is normally used to indicate a discretion, correct?
This passages cites United States v. Kin-Hong, 110 F.3d 103, 109 (1st Circuit, 1997): “It is then within the Secretary of State’s sole discretion to determine whether the realtor should actually be extradited. See 18 U.S.C. § 3186.”
It’s depends on if the Italian Court acquitted her after she was convicted. Im not sure if its been covered here, but an Italian appeals court is close to actual de novo - it covers both law and fact and uses Judges and lay jurors to reach a decision. There’s no comparison to that in the US. I think the high courts reasoning will be a big factor - based on law, facts, ect; or rather, does this seem, to the US, like a continuation of the original trial, or was the original trial decided at some point, and the next trial be a second trial.
Ultimately, just based on many similar cases like this (not to Italy though), she’ll be extradited. However, there is tons of room for legal posturing. She definitely won’t partake in the new trial.
I’m resurrecting this thread to ask for comments from the cognoscenti on why Alan Dershowitz and other ostensible legal experts state pretty much unequivocally that Knox will be extradited should the Italians call for it (see section entitled, “What will happen to Knox now?” in link).
Dershowitz’s and the other’s statements indicate that extradition would be a sure thing. Is that really the case? Is extradition a given if the Italians ask? Or are there subtleties that Dershowitz et al are not addressing? I don’t remember things being so cut and dry when I opened this thread last year.
Just a note to compliment your patience and politeness with explaining again and yet again why double jeopardy is not a factor. And that “acquittal” can mean something slightly different in other jurisdictions which may be obvious but apparently not…
On the broader topic, is it possible that Italy the home of one of the older civilisations on the planet, has a decent legal system? Or can that only happen in America? :smack:
China also has one of the older civilizations on the planet. I think most objective viewers would find the current legal system there less than decent.
As to double jeopardy – Knox was convicted at the trial level. The fact that she was “acquitted” by the appellate court is irrelevant because the Supreme Court set aside the judgment. As Bricker pointed out, this happens in the American legal system with regularity without implicating double jeopardy.
Bricker, I know I’m replying to a comment you made almost a year ago, but it caught my attention (and I don’t recall reading this thread a year ago.) This seems to be the crux of your argument: the Italian trial and appeals mirrors what can happen in the US without invoking double jeopardy. Convicted at trial, the conviction was vacated by appeals, and then reinstated by higher appeals, and that’s all kosher with no double jeopardy. But that isn’t what happened here. In this case, the higher appeals court didn’t reinstate a trial court’s conviction; it vacated a trial that ended in acquittal and ordered a new trial. A new trial at which the prosecution entered a wholly new theory of the crime. I can’t see how that isn’t double jeopardy by US standards.
I’m not an expert in either US or Italian law by any stretch. Care to comment?
I’m not Bricker, but his basic point is that she was convicted at the first trial, which was set aside by the intermediate appellate court, which entered an acquittal. The final appellate court then found that the intermediate appellate court erred, set aside the acquittal entered by the intermediate appellate court, and ordered a new trial. That’s the same as the US precedent he quoted.
My point is it isn’t. A US Appeals court wouldn’t enter an acquittal, they’d vacate the conviction. Then the higher court would vacate that vacation, and original conviction would stand. In this case, the higher court vacated an acquittal and ordered a new trial. That’s a different ball of wax.
But that’s not always the case. The Supreme Court on occasion orders cases remanded for further proceedings, including new trials. Double Jeopardy mainly serves to prevent the government from trying a person a second time when it failed the first time. That’s not the case with the Knox case.
This is one case that I tend to feel sorry for the U.S. State Department. They’re almost certain to get a request for extradition from Italy, and then what are they going to do? If they refuse it, they will be jeopardizing any future extradition cases they may have, and if they grant it, IMHO they will run into a veritable firestorm of bad publicity in this country. Talk about a Hobson’s Choice.
Their terminology may be different. But I don’t see that many differences in the Italian courts and ours. Knox was tried and found guilty. She was sent to prison. She appealed and the decision was reversed because of some issues with the scientific evidence (DNA). She was put on trial again and found guilty. There’s another appeal before it’s final.
That same procedure happens in the US. People get convicted and go to prison. They appeal and the decision is reversed. They get out for awhile. The prosecutors have the option to retry the case.
They do? Again, do you have an example or a cite where someone was actually retried after being convicted and having the conviction overturned by a higher court? That doesn’t depend on a massive defect in the original trial being the reason?
Many European countries won’t extradite their own citizens. Polanski is a naturalised French citizen, and therefore France will not extradite him.
When Polanski went to Switzerland, the US requested extradition. The Swiss courts held that the case was not strong enough, and Polanski hightailed it back to France as soon as he was released.
There’s similarities in this case and Knox. This case has a discredited expert State Bureau of Investigation blood analyst witness. Knox’s case has issues with blood analysis too.
Knox is luckier. She was sent home with no restrictions. Peterson has a nighttime curfew and restricted travel. His freedom is much more conditional right now.
The point is a stubborn and determined prosecutor can really screw up a defendant’s life even after a successful defense appeal. If the state is willing to spend the money they can spend years exhausting the appeals process and eventually even a retrial. That means the defendant’s life is in limbo for years as the case is fought in the courts.
A lot of cases are dropped after a successful defense appeal. It all depends on the prosecutor and how badly he wants to fight.
Aceplace, I apologize for being inarticulate in my previous comment. I think the case you linked to is a lot more straightforward, and is a reasonable case where a new trial is permissible in the US. To summarize my understanding:
Peterson was convicted, and part of that was based on the fact that Duane Deaver, the blood analyst in the case, had overstated his qualifications.
The appeals court vacated the conviction on the theory that the jury may not have found guilt if they hadn’t been misled.
It was not determined that the evidence presented was insufficient, just that there is doubt about it given the revelations about Deaver. Therefore, a new jury will have the opportunity to make that determination.
No higher court has modified the appeals court’s ruling.
The new trial is favorable to the defendant. His attorney is in favor of the new trial; the prosecution lobbied to reinstate the existing guilty verdict, arguing that there was plenty of evidence to convict Peterson without Deaver’s testimony.
New evidence has been found since the original trial. That new evidence will not be admissable, and the prosecution will not be allowed to change their theory of the crime.
In contrast, in the Amanda Knox case, the appeals court actually acquitted Knox (and Sollecito) after reconsideration of the evidence. The higher appeals court re-reconsidered the evidence, set aside the appeals court’s acquittal, and ordered a new trial. In that new trial, a completely different theory of the crime was introduced (acrimony between Knox and Kercher related to household chores rather than a Satanic sex game), and new evidence was introduced (Kercher’s DNA from a knife.) This is much closer to the “if you don’t like the first verdict, try again” that clearly fails the “double jeopardy” test in the US.
