Extradition

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Extradition of Amanda Knox

It is expected that Amanda Knox will be unsuccesful in appealing her conviction for the murder of Meredith Kercher (see: Nencini Appeal). The decision is expected January 30th 2014. The decision of the Florence court will need to be confirmed by the Supreme Court of Cassation and if confirmed Amanda Knox and Raffaele Sollecito's verdicts will become final. It is expected that Italy will seek the extradition of Amanda Knox from the United States and this is a introduction to the process for media and anyone else interested.

The Extradition Process

Click here for larger chart

OIA Reviews Request for Sufficiency

After the request is made to the State Department the request is forwarded to the Office of the International Affairs ad the Department of Justice. The OIA will be responsible for confirming that Italy's request passes the test for sufficiency.

Test for Sufficiency
1. Is there an extradition treaty in force between the United States and the requesting foreign government? The United States and Italy entered into a formal extradition treaty on October 13, 1983 with the treating taking force a year later on September 24, 1984. The treaty is available online Italy International Extradition Treaty with the United States Checkmark.png
2. Are there pending criminal charges in the requesting country and an arrest warrant issued for the fugitive? At the time that Italy will request the extradition of Amanda Knox she will have a final guilty verdict confirmed by the Supreme Court of Cassation. Checkmark.png
3. Is the criminal charge covered by the extradition treaty? Amanda Knox is charged with the murder of her roommate. Murder is a charge for which extradition is permitted by the Italy International Extradition Treaty with the United States. Checkmark.png
4. Is there probable cause that the fugitive committed the crimes charged? In instances where extradition is sought on the basis of a conviction the conviction is sufficient in and of itself to meet the probable cause requirement. Checkmark.png

The only part of the test that would normally have had a minor subjective element is converted to an automatic check because in this instance the extradition is being sought on the basis of a conviction.

Amanda Knox Arrest

The OIA will forward the request to the United States Attorneys' Office for the jurisdiction where the fugitive is believed to reside. If Knox remains in Seattle this would be the USAO Western District of Washington, who will then obtain a federal arrest warrant. The United States Marshal Service will then execute the arrest warrant and arrest Knox.

Bail During Extradition

Once Amanda Knox is arrested she will remain in detention for the remainder of the extradition process. For international extradition cases there is no conditional right to bail.[1] For international extradition cases bail is only granted under special circumstances[2] and Amanda Knox does not meet any of the condition that have been considered special circumstances by courts in the past.

Extradition Hearing

The extradition hearing should be short and the outcome predetermined. Typically the certification of an extradition request requires that the government meet the low standard of probable cause[3] but in instances where the extradition is sought on the basis of a conviction that did not occur in absentia a certified copy of the conviction is sufficient to meet the standard.[4] In Amanda Knox's situation a conviction will have occurred so that will be sufficient to certify the extradition request.

Is Amanda Knox's Conviction in Absentia?

If a court finds that Knox's conviction happened in absentia then the conviction in and of itself may not be considered sufficient.[5] The court can certify the extradition request on the basis of the conviction but they are not required to. There is some support for the position that representation by counsel alone will be treated as a conviction in absentia under some circumstances but not others.[6] In most cases this has involved the defendant being represented by an appointed counsel and the defendant not participating in the proceedings. In cases where the defendant participated in a portion of the trial and then voluntarily excused themselves prior to the conclusion of the proceedings the conviction has not been considered rendered in absentia.[7] Amanda Knox was present and participated in some of the trial, she voluntarily removed herself from the proceedings, and was represented by a legal team under her direction for the entirety of the trial. It is unlikely that a court will consider Knox's conviction as having occurred in absentia.

Certification of the Extradition Request

The certification of the extradition request will either be automatic on the basis of the conviction, or in the unlikely event that a court treats Knox's conviction as having occurred in absentia the government will then be required to meet the low standard of probable cause. Probable cause can be met on the basis of the submission of any of the motivation reports supporting Amanda Knox's conviction.[8] If a court, for whatever reason, refuses to certify the extradition request Italy has the option of requesting that a different court hear the extradition request. This recourse is available to Italy ad infinitum until a court certifies the extradition request.[9]

The assumption being made is that Italy will wait until Cassation issues a final verdict but that is not required. Italy can seek the extradition of Amanda Knox at any point after an arrest warrant is issued for her in Italy. The procedure would be the same except that at the extradition hearing the United States government acting on behalf of the Italian government would need to establish that probable cause of Knox's guilt exists. Probable cause is a low standard and easily met by the abundance of evidence against Knox. Extradition hearings are of very limited scope and not trials. See Misconceptions Involving Extradition Hearings for an explanation of the difference between a trial and an extradition hearing.

Misconceptions Involving Extradition Hearings

Mini-Trial is Required

Under no circumstance does an extradition hearing become a trial. The purpose of the extradition hearing is to determine if there is sufficient evidence to satisfy probable cause. The government will provide proof but the government is neither constrained by the Federal Rules of Criminal Procedure nor the Federal Rules of Evidence. The evidence at an extradition hearing may consist of unsworn statements and hearsay.[10] In Knox's case that would not be necessary but the probable cause requirement of an extradition request has been satisfied completely with hearsay evidence.[11] The process also differs from a trial because the putative extraditee is barred from presenting an affirmative defense, is prevented from presenting witnesses that contradict the government's proof, and is prevented from cross-examining any government witnesses on matters relevant to the defense.[12] The putative extraditee is allowed to present evidence that explains away probable cause but not evidence that controverts the existence of probable cause or attempts to rebut the proof presented by the government. This makes the scope of an extradition hearing extremely narrow. Referring to an extradition hearing as a trial ignores the extremely narrow scope of an extradition hearing, the completely different rules of admissibility, and that unlike a trial the probable cause standard is much lower.

Double Jeopardy

There has been discussion that the Double Jeopardy clause of the Fifth Amendment would prevent the United States for extraditing Amanda Knox but that is incorrect. Double jeopardy is not a consideration in extradition. Neither the double jeopardy clause of the Fifth Amendment nor the speedy trial clause of the Sixth Amendment apply to extradition cases.[13] In Bloomfield v. Gengler this is made explicitly clear when the court found that even though the proceedings that resulted in the conviction would have been barred in the United States because of double jeopardy, this was irrelevant to the certification of the extradition request. These procedural rights only apply to criminal prosecutions and extradition is not considered a criminal prosecution.[14]

Article VI

Article VI of the U.S. Italy Extradition Treaty reads:

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.

This has led to confusion by people commenting on the possibility of extradition. The Requested Party in this case would be the United States. This is not applicable to Amanda Knox, as she has never been charged with the murder of Meredith Kercher by the U.S. Article VI addresses the dual sovereignty doctrine and applies only to scenarios where the fugitive is charged both by the United States and by Italy for the same act.

Italy Is A Bad Place Argument

Support for Amanda Knox is often founded on underlying xenophobia which has led to a belief that Italy's criminal justice system can be brought into question as a basis for denying extradition. There is nothing wrong with Italy's criminal justice system but even if there were a extradition hearing is not the place to raise these issues. The "rule of non-inquiry" prevents a court from examining the requesting county's criminal justice system or the fairness of the trial.

Judicial Review

The certification of an extradition request is not subject to appeal but if Amanda Knox so chooses she can have her lawyers file a writ of habeas corpus before a United States district court judge.[15] The writ will only be granted in limited circumstances and if it is granted the review will be limited to testing the legality of the extradition process. The review is not to evaluate the court’s decision to certify the extradition request. What this means is that the judicial review would be limited to covering the same material that was previously considered by the OIA when deciding if the extradition request met the requirements for sufficiency. In Amanda Knox’s situation there is no possible relief by seeking judicial review and filing a writ of habeas corpus would only delay the inevitable.

Surrender Warrant

The final decision on Amanda Knox’s fate rests with the Secretary of State. Until this stage in the extradition process there has been absolutely zero discretion. The Secretary of State does have some discretion. Even in situations where an extradition request has gone through the entire process the decision to extradite or not nevertheless remains with the executive branch who can refuse to issue a surrender warrant. The question is would they? The evidence against Amanda Knox is overwhelming. It is unlikely that there will be any meaningful domestic political pressure to disregard the treaty. So while theoretically this final stage in the extradition process offers Knox the possibility of escaping justice, the argument needs to be made why the United States would risk relations with two close allies and the international community over this. It is reasonable to assume that the State Department will rubber stamp the surrender warrant as they do for the roughly thousand fugitives a year the United States extradites.

Extradition of Raffaele Sollecito

Raffaele Sollecito maintains that he will remain in Italy so extradition would in such a case be unnecessary but were Sollecito to leave Italy then what are his options? He would most certainly choose a country that does not have an extradition treaty with Italy. Residing in a country that does not have an extradition treaty with the jurisdiction seeking the fugitive is not a guarantee that the fugitive will be able to avoid extradition. An extradition treaty creates an obligation on the host state to return the fugitive to the requesting state, but a host state is not prevented from voluntarily extraditing an individual within their territory even with no extradition treaty. While some countries do have laws preventing the extradition of citizens where there is no extradition treaty, no country has any similar restrictions on foreign nationals. Take, for example, the Dominican Republic where Sollecito has spent most of his time since the trial started. The Dominican Republic does not have an extradition treaty with Italy and yet they extradited a high-profile Italian in 2013.

References

  1. 18 U.S.C. §§ 3181, 3184-3186, 3188-3195 (1982 & Supp. IV 1986)
  2. Wright v Henkel 190 U.S. 40, 63 (1903); States v. Kin-Hong, 83 F.3d 523, 524-25 (1st Cir. 1996); Hababou v. Albright, 82 F.Supp.2d 347, 349-52 (D.N.J. 2000)
  3. Hoxha v Levi, 465 F.3d 554, 561 (3d Cir. 2006); Jimenez v Aristeguieta, 311 F. 2d 547, 562 (5th Cir. 1962)
  4. Spatola v United States 925 F.2d 615, 618 (2d Cir. 1991); Lindstrom v Gilkey, No 98. 98 C 5191 WL 342320 (N.D. III May 24, 1999); Haxhiaj v Hackman, 528 F.3d 282. 290 (4th Cir. 2008
  5. Argento v Horn, 241 F.2d 77, 79 (2d Cir. 1960) Arambasic v Ashcroft, 403 F. Supp. 2d 951, 962 (D.S.D. 2005).
  6. Gallina v Fraser 177 F. Supp 856 (D. Conn. 1959)
  7. Bloomfield v. Gengler 507 F.2d 925, 927 (2d Cir. 1974)
  8. Arambasic v. Ashcrof 403 F. Supp. 2d 951 (D.S.D. 2005)
  9. Gill v. Imundi, 747 F.Supp. 1028, 1039 (S.D.N.Y. 1990) (citing In re Doherty, 786 F.2d 491, 503 (2d Cir. 1986)). See also In re Extradition of Massieu, 897 F.Supp. 176, 179 (D.N.J. 1995); Hooker v. Klein, 573 F.2d 1360, 1365 (9th Cir. 1978) (citing, inter alia, Collins v. Loisel, 262 U.S. 426 (1923))
  10. United States v. Kin-Hong, 110 F.3d 103, 120 (1st Cir. 1997);Collins v. Loisel, 259 U.S. 309, 317 (1922);Haxhiaj v. Hackman, 528 F.3d 282, 292 (4th Cir. 2008)
  11. United States v. Kin-Hong, 110 F.3d 103, 120 (1st Cir. 1997)
  12. Mainero v. Gregg, 164 F.3d 1199, 1207 n.7 (9th Cir. 1999); Yin-Choy v. Robinson, 858 F.2d 1400, 1407 (9th Cir. 1988); Messina v. United States, 728 F.2d 77, 80 (2d Cir. 1984)
  13. Bloomfield v. Gengler 507 F.2d 925, 927 (2d Cir. 1974) Collins v Loisel, supera, 262 U.S. at 429, 43 S.Ct. at 619 ; Yapp v. Reno, 26 F.3d 1562, 1565 (11th Cir. 1994); McMaster v. United States, 9 F.3d 47, 49 (8th Cir. 1993); Martin v. Warden, 993 F.2d 824, 829 (11th Cir. 1993); Bovio v. United States, 989 F.2d 255, 260 (7th Cir. 1993); Sabatier v. Daborwski, 586 F.2d 866, 869 (1st Cir. 1978); Jhirad v. Ferrandina, 536 F.2d 478, 485 n.9 (2d Cir. 1976)
  14. Austin v Healey 5 F.3d 598 603 (2d Cir. 1993)
  15. Collins v. Miller, 252 U.S. 364, 369, 40 S.Ct. 347, 349, 64 L.Ed. 616 (1920)