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Offline Ergon

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PostPosted: Sat Nov 03, 2012 1:30 am   Post subject: ITALY US EXTRADITION TREATY   

Attached here is the Italy US Extradition treaty, with President Ronald Reagan's commentary sent to the 98th Congress on October 13, 1983.

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Offline Nell

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PostPosted: Thu Nov 08, 2012 11:18 pm   Post subject: Re: ITALY US EXTRADITION TREATY   

Copy of the discussion regarding a possible extradition of Amanda Knox to Italy. The original discussion can be found in the main thread (posted October 22nd, 2012, Re: Ted Simon).

Nell wrote:
Ergon wrote:
My point being to inform the membership about the difficulties inherent in obtaining an actual extradition. It appeared to me, and if I missed it, apologies; that was not done.

Hi Ergon,

From what I know, Mignini stressed during his closing arguments that the US would not extradite Amanda Knox in case she would be acquitted, even if the Supreme Court would later cancel Hellmann's verdict. Mignini's statements launched an online debate if Amanda Knox could be extradited or not.

There was a lively debate on the Marquette University Law School Faculty Blog that has been commented on this forum some time ago. I will post the link to the article again for those interested:

Amanda Knox and the U.S. - Italian Extradition Treaty by Ryan Scoville

Below I have copied a selection of comments that I believe added to the discussion of the legal arguments pro and contra an extradition:

Stuart Ball on October 6, 2011 10:35 am

Has this issue been decided before? If acquittals can be reversed, what is the point of putting Article VI in the treaty? Is there a controlling citation or precedent?

Ryan Scoville on October 7, 2011 10:31 am

Stuart, in response to your question, I’m not aware of precedent that decides this precise issue under the U.S.-Italian Extradition Treaty, but I think Article VI still retains meaning even if acquittals can be reversed. Under my reading, the role of the Article would be to preclude extradition simply where acquittal is the final result of the litigation process, including trial and appeal. Here, that process is not yet over, so it is hard to say that Article VI applies already. It certainly might apply, but only if the Italian supreme court upholds the intermediate appellate court’s decision to acquit.

Stuart Ball on October 7, 2011 12:26 pm

Perhaps I have not expressed myself properly. I understand that she has not been acquitted under Italian Law. However, as I see the issue, the question is whether she has been acquitted within the meaning of Article VI. Under the plain language of the treaty, quite possibly. Remember, the US Supreme Court has proven that it is willing to disregard international law if it gets in the way of the rules of statutory construction.

Mike W Schwartz on October 8, 2011 11:59 pm

Professor Scoville,

Amanda Knox’s parents are still schedule to go on trial in January for slander. Can they be extradited if convicted and are given a jail term?

Would the U.S. extradite them?



http://blog.seattlepi.com/dempsey/2011/ ... 4-holiday/

Ryan Scoville on October 10, 2011 8:52 pm

Mike, thanks for your question. I’m skeptical that slander would be an extraditable offense. To qualify as such, the act would have to be punishable by more than one year in prison under the laws of both the United States and Italy. Although I don’t know what the punishment would be under Italian law, I doubt that any U.S. jurisdiction has a law that punishes slander so severely. Assuming that is true, extradition would not be required under the treaty.

Mark Myers on October 11, 2011 9:16 am

I’m not a lawyer but I think it may turn out that AK’s best argument for fighting extradition is an argument that she was denied due process/fair trial in her original conviction.

Her ‘confession’ was thrown out by the Italian Supreme Court but due to the concurrent civil trial being heard by the same jury, the confession was ‘back-doored’ into the criminal trial.

If something like that happened in the US courts it would clearly be considered a violation of the defendant’s rights.

So (in my non-expert opinion) there would be a Habeas Corpus question of sorts. Per our laws her right to a fair trial was compromised — and so how can the federal government physically apprehend her and thereby participate in the violation of her rights.

Stuart Ball on October 14, 2011 1:10 pm

If Mark Myers argument were correct, no one would ever be extradited.
I still think her best argument against extradition would be Article VI. The article does not state “acquitted within the meaning of Italian law”; it only speaks of “an acquittal.”
There was a judicial hearing and a verdict of not guilty. The absence of a judgment is not relevant. Under US law, this generally constitutes an acquittal. Absent specific language or case law to the contrary, Article VI probably applies.

Ryan Scoville on October 14, 2011 1:25 pm

Stuart, I appreciate your commentary on this post. I don’t think the text of Article VI rules out your interpretation, but I’m also skeptical that Article VI applies already in the Knox case because that interpretation would effectively discount the significance of each country’s appellate process by defining “acquitted” to refer to acquittal at any stage of the litigation, regardless of whether acquittal is the final judgment.

Stuart Ball on October 26, 2011 8:21 am

Professor Scoville, you are absolutely right that my interpretation of Article VI would discount the nature of Italy’s appellate system. However, I would like to respectfully point out that does not necessarily mean that my interpretation of Article VI is invalid. One of the first things our founding fathers did when they established our constitution was create the Double Jeopardy clause because they saw it as being an essential guarantee against tyranny. Our founding fathers truly despised the European Law which allows a prosecutor to appeal a decision of not guilty. Respectfully, I believe that Article VI should be interpreted with that fact in mind.

Stuart Ball on February 25, 2012 10:23 am

There is just one more issue I would like to discuss. If there is a lack of case law on the subject, it might indicate that the State Department has been dealing with the issue administratively. According to the treaty the State Department must certify that the defendant is extraditable before there can be an extradition hearing. If the State Dept. refuses to extradite there will be no habeas trial and no appeal and therefore no case law. I realize this is speculation but I think it’s possible that this issue will be dealt with by a polite letter to the Italian govt. saying “sorry, extradition request denied.”

Stuart Ball on February 25, 2012 3:42 pm

Just to clarify, it seems somewhat odd that there would be no case law on the specific subject. The current extradition was signed in the early eighties and it seems strange that no one has tried to fight extradition under Title VI in all this time. Unless, of course, the State Dept. routinely refuses to process extradition requests when a Title VI argument can be made. I realize that I am being somewhat speculative with this post.

Karl Popper on May 31, 2012 5:43 am

Non Bis in Idem
Extradition shall not be granted when the person sought has been convicted, acquitted or
pardoned, or has served the sentence imposed, by the Requested Party for the same acts for
which extradition is requested.
I agree with Scoville’s article and response on this point. Stuart, this is the article and its meaning corresponds to the other wording, which makes your comment pleonastic. There is no double jeopardy in this case and certainly not the kind described in article VI … politicians – I agree with Jack – may not respect the treaty but this is another matter which courts may have to solve. If treaty is respected there is no reason to refuse extradition. In response to 2 previous questions from Jack: (a) Italy’s Supreme Cassazione Court can invalidate the appeal not only for procedural errors but also for inappropriate application of law. Cassazione can invalidate the appeal verdict for a faulty motivation as in Italy any verdict must be motivated in writing (by Constitution art.111). This is – in fact – the main reason of the current appeal to Cassazione by the general prosecutor of Perugia. Therefore, Cassazione will definitely analyse the evidence of the case (b) there is no chance Italy fails to request extradition for a common murder (in case of a final conviction). In case Cassazione invalidated the appeal sentence first degree verdict would be reinstated so a new arrest warrant would be issued for the defendants.

Stuart Ball on June 2, 2012 1:27 pm

Just to be clear, I understand your argument. Everyone is considered technically innocent in Italy until the Italian Supreme Court confirms the conviction. Therefore, double jeopardy does not attach until Italy’s supreme judicial body confirms the conviction and/or acquittal. This system is consistent with the European Convention of Human Rights, which only prohibits prosecuting someone after a FINAL acquittal (emphasis added).
However, it should be noted that Title VI does not contain the word final, it only says acquittal.
Generally speaking, an acquittal in the USA is the event that occurs when the Jury decides (reaches a verdict) that there is insufficient evidence to find the defendant guilty. Once this determination is made the defendant cannot be retried (placed in jeopardy) for the same offense, except under very rare circumstances which I will not go into here. This is obviously very different from the Italian system and terms such as convict and acquit really don’t translate very well. However, the USA’s position on double jeopardy is well known. Italian citizens certainly don’t need the protection of Article VI. If Article VI isn’t there to protect American citizens from multiple prosecutions, what is the intended purpose of Article VI? What meaning does it have and why did the USA bargain for it?
Unless someone can come find a binding case or precedent, I still believe that Article VI may very well prevent her from being extradited.

Karl Popper on June 3, 2012 3:25 pm

I also understand your argument but Article VI was signed to avoid prosecuting a person for the same crime in 2 different countries. The defendants were never tried for this murder in the USA (the “requested party”) so the US cannot refuse extradition if we stick to the treaty. Politics is another matter; I agree with the conclusion of the writer of the article, Ryan Scoville: “if the United States were to decline an Italian request for extradition after reinstatement of the conviction and sentence, we would be doing so in contravention of international law.” Politics would cause breach of International law.
Regarding Jack and the Cassazione court, what “reportage” are we talking about? What does “narrow road” mean? The powers of Cassazione are well known. There is no doubt that the general prosecutor (PG) did appeal to Cassazione for faulty motivation – articulating on several points – and that the Court can invalidate the appeal for this reason which is substantial and has to do with evaluation of evidence from investigation to preliminary hearing, first and second degree. If the motivation is considered faulty the law was not followed and the appeal is cancelled. You can read the PG appeal document, as it is already available, and you can count on thousands of other Supreme court cases as precedents.

Finally, the Supreme Cassazione Court is the highest judicial body and does not “regurgitate” rulings; its sentences are irrevocable and must be accepted so your words are highly inappropriate. You are signalling a political prejudice on this case or the preference for a political solution, which is not the main object of this discussion. Should you be here arguing legal aspects?

I believe it is impossible for a complete layman to judge this complex legal situation, but I enjoyed reading through the different opinions. Of course someone like Ted Simon will look for a loophole that will make any extradition request for Amanda Knox fruitless.

In the Ira Einhorn case France refused to extradite him, because the U.S. had found him guilty and convicted to death in absentia after he had fled. In France this is not acceptable and to ensure his extradition, they wanted a guarantee that he would be given a new trial where he could properly defend himself. Despite a guarantee from the U.S. that he would be given a new trial if Ira Einhorn asked for it, Ted Simon now argued that the U.S. were in no position to grant his client a new trial, because he had already been convicted. He did everything possible to prevent that Ira Einhorn was granted a new trial and to convince France that this kind of guarantee was illegal, even though he had argued earlier that his client should not be extradited back to the United States because he would not be given a new trial in the U.S. It is perverse if you think about it.
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