Amanda Knox will again go before an Italian court

[pnwmom]

118. He is only one legal expert and many disagree with him.

"The long answer is that even if the Fifth Amendment did apply, under US law, an appeal that overturns a lower court conviction is not an acquittal for purposes of the Fifth Amendment. That is basically what happened here. Knox was convicted, then her conviction was overturned on appeal, and then the appellate court judgment was reversed, and a new trial ordered (albeit at the appellate level). This is not double jeopardy, either under Italian law or US law."

What he has just written does not describe what happened in Amanda's trials. In the US, it is only trial courts that try facts, and then appeals courts review how the law was applied. It is possible, as he said, for an appeals court to overturn a conviction and then for a higher appeals court to overturn that result -- but only for technical reasons related to the application of the law. It is also possible for an appeals court to overturn a guilty verdict and to order the facts of the case retried in a new trial court. But a higher level appeals court in the US never orders a new trial of the facts after a not-guilty verdict. That would constitute double-jeopardy.

This is what happened to Amanda. In Italy, the first level trial is more like a Grand Jury than it is like one of our trials -- more than half of defendants who are convicted at this level end up getting their verdict overturned or their sentenced reduced. It sweeps a lot of innocent people in.

The first appeals trial, unlike an appeals trial in the US, doesn't limit itself to evaluating how the law was applied; in Amanda's case, it reconsidered all the items of evidence and even called for new evidence to be put into the record. Based on old and new evidence, including a new analysis of DNA results by Court-appointed independent experts, the first "appeals" trial, which is really comparable to one of our trial courts, found there was no reliable evidence against the two students.

Then that "innocent" verdict went to the high court, which ruled that the judges in that appeals trial erred. They called for a second appeals trial, saying that the mistake had been in not taking the stipulations made by Rudy Guede in his separate fast-track trial -- which were established as Judicial Truth as soon as his conviction was confirmed -- and using them against Amanda and Raffaele in their trial. In other words, they directed the second appeals court to, in effect, remove the presumption of innocence for Amanda and Raffaele and substitute a presumption of guilt -- because their guilt had been stipulated to, by Rudy Guede and his prosecutors, in Guede's separate trial.

Then the second appeals court once again considered all the evidence plus some new facts. (And even a new motive -- a messy bathroom!) And even though the new DNA testing that court called for yielded results that only strengthened the students' case, the second appeals court dutifully found them guilty -- because Rudy Guede had fingered them in exchange for a reduced sentence after his conviction. And all his "stipulations" now carried the force of established and unimpeachable Judicial Truth.

Again, in the US when a court has considered all the facts and found a defendant not guilty, the prosecutor has to accept that verdict. To retry such a defendant would constitute double jeopardy. But Italy doesn't have the same view of double-jeopardy or of justice, for that matter. Their first appeals court and even their second appeals court retried the facts, which doesn't happen in the U.S. Nothing that has happened in Amanda's legal ordeal is comparable to what would have happened in the US system.

But in the end, any legal expert's opinion on the meaning of the extradition treaty won't really matter. The decision always comes back to the State Department. But that will probably only happen after this case is appealed to the European Court of Human Rights, where Italy already has a dismal record. Hopefully this will be one more conviction they recommend be overturned, and then John Kerry will have the full support of the ECHR in ignoring any extradition request.