Having been acquitted on the merits, an accused defendant ought not to have to stand trial twice for the same crime. This is as true in the United States as it is anywhere else in the world. Like say, Italy, where the men and women depicted to the left are engaged in a ceremony in the “highest court” of that nation. While they look as impressive as a college of cardinals, the system they lead has demonstrated today that it leaves something to be desired.
On November 1, 2007, Meredith Kercher, a British national studying in Perugia, Italy, was sexually assaulted and stabbed by her then-boyfriend, an Ivorian national, Rudy Guede. Later that night, she was found dead of stab wounds. This, no one disputes. Mr. Guede is presently serving sixteen years for the sexual assault and stabbing. The question is about whether he acted alone and if not, whether someone else delivered the fatal blow.
Ms. Kercher’s flatmate, American national Amanda Knox and her then-boyfriend, Italian national Raffalle Sollecito, were arrested shortly afterwards and tried for the murder of Ms. Kercher. They initially blamed a third party and then blamed Mr. Guede of the murder; everyone denied the accusations. The third party got out of the picture and the focus came on Ms. Knox and Mr. Sollecito, on the theory that the murder was part of a sex game gone wrong. This based on the idea that Ms. Knox bought some underwear that was kind of sexy while the investigation was underway, she didn’t seem particularly broken up about it, her DNA was found on a knife that may or may not have been the murder weapon, and Mr. Sollecito’s DNA was found on a clasp of one of Ms. Kercher’s bra.
Under Italian criminal procedure, after the equivalent of an indictment and prelimianry hearing, an initial trial called a dibattimento is held before a single judge, called il (o la) Guidice del Dibattimento. The standard of proof is “beyond a reasonable doubt” and a formal opinion is necessary. But “beyond a reasonable doubt” may not mean quite what it does in the United States or a commonwealth country; the standard is of the judge’s intimo convincimento, or internal mental conviction.
Ms. Knox and Mr. Sollecito were found guilty (colpevole) of murder after their dibattimento, on December 4, 2009. What appears to have been the critical issue was DNA evidence collected on a knife found in the apartment. I cannot determine with accuracy whether this knife was the putative murder weapon: some sources say it was, others say it wasn’t.
For murder cases, what happens next is a second trial before a new court, called le Corte d’Assise, which consists of two full-time professional judges (guidici togati), and six citizens of the comune (the rough equivalent of a county in the United States) where the case is being re-tried, called popular judges (guidici poplari) who are chosen at random from those local citizenry who have not been convicted of any major crimes, are not from the excluded professions of the judiciary, military, police, or clergy, and have completed the equivalent of high school. These are not jurors, as they render opinions on both the law of the case and the disputed facts. Notably, they also continue to work at their regular jobs while serving as judges. Obviously, such procedures are going to be long and drawn-out as these lay judges must re-arrange their professional and personal lives to made time for periodic meetings of the court and trials — and as a result, trials before la Corte d’Assise can last years.
From there, either side may appeal to la Corte d’Assise d’Appello, an appellate court also made up of two (now more senior) professional judges and six lay judges drawn at random. An appeal in la Corte d’Assise d’Appello includes a comprehensive review of the evidence, and is in effect a retrial.
Ms. Knox and Mr. Sollecito were acquitted of murder after their trial before either la Corte d’Assise or la Corte d’Assise d’Appello, I cannot determine which, in October of 2011. The reason I cannot tell which court did this is because in both cases, the court conducts an evidentiary review, in essence re-trying the entire case from scratch. In this sense, it is very unlike the American system of justice, in which reviewing courts do not address facts but only questions of law. But whether the reviewing court was la Corte d’Assise or la Corte d’Assise d’Appello, the reason for the acquittal (assoluzione) was perché l’imputato non lo ha commesso — because the defendant did not commit the crime.
The so-called “Italian Supreme Court” is called the Cassazione. Here, at last, is something that looks more like the realm of pure law which American lawyers expect to encounter on appeals. The evidence is not at issue, only the correct application of the law. I presume when the BBC refers to the “Italian Supreme Court” they are referring to la Cassazione. There is a technically higher court of Italy, la Corte constituzionale della Repubblice Italiana, or Constitutional Court, which is commonly called la Consulta. But criminal matters typically go before the Cassazione rather than the Consulta; the Consulta would only be involved if some aspect of the case implicated a violation of the Constitution of Italy.
At every phase of the case up to the Cassazione, either side can appeal and seek a new trial. And in most cases, the appeal is in effect a new trial. And as we’ve learned today, the Cassazione decided to reverse the acquittal from the appeals court, and sent the Knox/Sollecito case back down to a trial court to start over again. So you can get a new trial from the Cassazione, just not in the high court itself.
As Stephen Green put it earlier today: “Italy is cool because you can keep holding the same trial until you get the right verdict.”
Ms. Knox and Mr. Sollecito remain at their liberty during the proceedings, which is a mitigating factor. But I must report some degree of distress at seeing this as the justice system. The system I’m familiar with in the United States would not tolerate this. Nor should any system. If the “beyond a reasonable doubt” standard is to be taken seriously, and if judges and jurors are presumed to be reasonable people, then an acquittal means that a reasonable doubt exists and the defendant is not guilty.
I’m not an Italian citizen. I’m part Italian by ancestry but I don’t particularly want to stake a claim to a legal system like this. Sure, people can disagree about the evidence and what it all means. But successive retrials at the request of the prosecution does not seem at all consistent with notions of fairness and due process and presumptions of innocence and the proper application of the burden of proof.
Good luck to Ms. Knox and Mr. Sollecito. And may we never have to learn about extradition rules with respect to this case.
I don’t think that there’s anything inherently wrong with double jeopardy as such. If the prosecutor makes an error, or the jury makes an objectively bad decision due to misunderstanding the evidence presented, or if crucial evidence of the defendant’s guilt was unavailable at the time of the trial but later came to light, justice might be served better by having a second trial.
The problem with having a second trial after the defendant is found not guilty the first time is not that it’s always wrong, full stop. It’s that the potential for abuse by the government is great enough that the prohibition on double jeopardy is good on balance.
On the whole, I think it’s good that we prohibit this. But there are real trade-offs involved.
I should say, also, that rather than sweeping this trade-off under the rug, we should regard it as a point of pride, that we’re willing to pay this price for freedom.
I think you’re leaving out a part of the tradeoff that tilts a lot more heavily toward not much loss from inability to have a second trial – and that’s prosecutorial discretion. They can wait as long as they want, up to the statute of limitations, to charge and go to trial. That severely lessens any need for concern on evidentiary grounds.
Practically, any observance of prosecutor errors in the US should lead to minimal worries about them causing guilty parties to win undeserved acquittal.
Juries reaching “wrong” conclusions is kind of a tautology, no? The jury decision is the decision, if we could know the correct outcome via other means, we wouldn’t have jury trials!
On balance, you’re right there’s a tradeoff, but not much of one. Double Jeopardy is a pretty darned good idea where we get way, way more than is lost.
My understanding is that she was not (merely?) stabbed, but that her throat was (also) slit. Beyond that, I agree completely.
…But I’m already curious about the extradition situation and rather expect it to become a question of fairly high public profile before too long.
Italy and US do have an extradition treaty but there are exceptions. Things that the US would consider double jeopardy is one exception:
http://www.slate.com/blogs/crime/2013/03/26/meredith_kercher_murder_case_amanda_knox_will_never_be_extradited_to_italy.html?fb_ref=sm_fb_plugin_activity
Even if she should be extradited according to the treaty, I think there would be an uproar in America.
I agree on the latter, though might there be international outcry if she were not (and won’t the issue also potentially be a U.S.-UK one at least diplomatically if not legally in addition to U.S.-Italy, as Kercher is a British national?)? If double-jeopardy is a clear exception in the treaty, though, then I imagine it would be limited.
…The reason I raise outcry is because people will (rightly) raise the contrast between the charge against Knox and America’s response to an extradition request for her, compared to the charge against Julian Assange and our aggressive pursuit of all available avenues to secure his capture.
I didn’t think about the UK-US angle but that is a good point. I suppose it depends on whether the Court of Public Opinion in the UK thinks that Amanda Knox is guilty or not.
If they think she is not guilty, no US-UK diplomatic issue.
For what it’s worth, Italian outrage that the US would refuse to extradite because of the prohibition on double jeopardy would be more than a little hypocritical, given this:
http://www.bbc.co.uk/news/world-europe-21839410
Italy has, in the last two days, changed its mind and agreed to the extradition, but under the circumstances, the fact that they tried as hard as they did to fight it is nothing short of astounding.
That’s pretty remarkable, Mark.
(In any case, one has to admire the clarity of Slate’s (Mr. Peter’s?) headline there…)
Any idea of how such convictions play out for immigrations purposes?
Does the INS have a review system, or do they take the foreign nation’s finding as final?
I think you got the facts of the case slightly wrong. I’ve never seen Rudy Guede be described as the victim’s boyfriend. I have always seen him described as a drifter. The stories I have read described Mr. Sollecito as the victim’s boyfriend and part of the shock in Italy was that Ms. Knox and Mr. Sollecito were getting a bit close during the initial investigation.
There was also all the tabloid stuff about this being some kind of satanic sex ritual gone wrong and lots of lurid statements by the Italian prosecutor about Ms. Knox being possessed or something.
From what I hear, most Americans think Ms. Knox is innocent but Italians are still convinced of her guilt. I doubt the US will extradite her if she is convicted again but she is effectively barred from traveling anywhere outside the continental United States. This is especially true if Italy puts an Interpol warrant out for her arrest.
Not sure where I got the idea that Guede was Kercher’s boyfriend. Probably from not having followed the case very closely in its early stages. Thanks for the fact-check.
In a lot of criminal cases, really outlandish theories from the Prosecutioner shoud send red-flags to whomever the Triar of Fact is. The sex game gone wrong theory was so out there and so unsupported by evidence that the initial conviction was obviously a grave mistake. Kercher was victim of a simple felony murder, the victim of panicked burgler.
I cannot understand why Italy, as part of the Council of Europe and supposedly a signatory to the European Convention on Human Rights, has allowed this retrial. The ECHR prohibits re-trial.
Italy’s justice system, as is most of the rest of that wretched nation’s government, is a dog’s dinner. Even Turkey has improved its justice system, abolishing the practice of using military judges under Article 6. But Italy’s a human rights train wreck. I don’t have any good thoughts or explanation why Italy cannot get its act together.
I followed the Amanda Knox trial fairly closely and the worthy Brother Likko has laid out an excellent exposition of Italy’s medieval judicial system. Put it this way, the English under Henry the Lawgiver reformed their Courts of Assize in the early Middle Ages to a better state than Italy’s today.
I wonder how much of this odd Italian system is a response to the mafia crisis. It is my understanding that a great deal of legislation and agency structures, such as the Carabinieri, were created or defined by the decades long attempt to really deal with that problem, and I can see how that might produce a legal system that, as Green put it, keeps trying them until the get the right answer. Or am I totally off base and this really is a legacy system predating Italian federal attempts to crush the mafia?
Knox’s acquittal was in the appeals court. She was indicted by the judge, and then convicted by the judges and jury (the citizen judges), then acquitted on appeal of the initial conviction.
Guede wasn’t anyone’s boyfriend. He was sort-of friends with the downstairs neighbors, and had visited them earlier.
Also, to answer new Dealer, Sollecito was Knox’s “boyfriend,” but at the time of the murder, they had only known each other for a week. I think this is part of what scandalized the Italian public, who have some serious issues with misogyny and slut-shaming.
A friend of mine from grad school has lived in Perugia through all of this, and teaches at the university that Knox was attending. I get regular updates on the way the Italian public sees the case from a reporter on the ground, so to speak.
Also, one of the things I found fascinating about the story was that, when the murder occurred, the foreign students related to the case got the hell out of Italy immediately. Knox, being naive apparently, stuck around, but everyone not from the U.S. knew damn well that the Italian judicial system was crazy enough that sticking around meant possibly gambling with their freedom.
It was sometime ago, I can’t remember when exactly and I’m too lazy to do an internet search, but the New York Times article had a really long and fascinating article about the Knox case and all the procedural hijinks involved. It was probably from the time of the acquital. The first cops who investigated the scene where apparently the Italian equivalent of traffic cops, there was a lot of mishandling of the evidence and the science before the real police showed up, and the prosecutor in charge of the case is known in Italy for presenting some really out-there theories on the cases he works on. I’m really convinced that the initial conviction of Knox and Sollecito was a travesty of justice.
Anyway, the New York Times magazine article made the same point that you did. Every foreign student who was a potential suspect in Kercher’s death got out of Italy ASAP because they wanted no part in the unfolding circus. Knox stayed knaively in Italy.
The Kercher affair has been a clusterfish from the start, no doubt about that. Unfortunately, this is probably the first part of the clusterfish that wouldn’t be tolerated in the states. Anyone familiar with the American justice system should be familiar with the sort of false-confession-inducing interrogations and dubious forensic evidence seen in the first trial of this case.
Now how do you feel about Double Jeopardy and the Dual Sovreignty doctrine?
For those who are not lawyers: The Dual Sovreignity Doctrine states that the Double Jeopardy clause does not apply if the crime occurs in two separate sovereignities. This could be that the crime violate state and federal law (you can be tried in both) or two different states (also tried in both). The case I read in criminal procedure involved an Alabama man who hired hitmen to kill his wife (IRRC she was probably pregnant as well) and then dump the body in Mississippi. Both states were allowed to try the man for murder. For some reason, he could only get 16 years in Alabama but Mississippi could sentence him to death and did.
The most familiar version of this, I think, is when someone is acquitted on state charges but then tried in federal court for violating his victim’s civil rights, e.g. the police officers in the Rodney King case.
I’ve always found that case very disturbing, even though I firmly believe the officers committed a crime for which they deserved punishment.
It’s a tricky thing, though. The crimes they were tried for were different crimes–one was something like police abuse, the other was violating King’s civil liberties–yet the crimes attached to precisely the same action, not even a different element of a larger action (like, say tax fraud for not reporting illegal gambling earnings).
I think the claim that it’s constitutional to do that is correct, since the Constitution specifies not being tried twice for the same crime. But I’d be happier with a rule that specified not being tried twice for the same action/event.
That is the other way around Double Jeopardy but I have a harder time articulating this exception but it revolves around the prosecution needing to prove different elements.
Actually, I agree with you. It’s a technicality that can lead to justice, but it’s far too open to abuse.
it’s far too open to abuse.
No argument there. Not sure what the best fix is.
Nor I. And I would have been fine with the existing situation back when killing civil rights workers wasn’t illegal in Mississippi.
Yes, the crimes “attached to precisely the same action,” but different courts, different prosecutorial authorities, and different statutes (implemented by different legislative authorities) were involved.
For me, a fundamental part of the double jeopardy doctrine is that no state actor (e.g., your county DA, or the local US Attorney) gets a second bite of the apple. But the state DA and the federal US Attorney are separate actors.
Yeah, that’s the kind of hair-splitting that makes me very uncomfortable. I often think of the kind of procedural rigidity that led to the rise of equity courts in England, and while this isn’t a type of procedural rigidity, it seems to me to follow from the same hallowing of process over substance. And I’m a pretty procedurally oriented fellow. I agree with Whitehead, iirc, that the highest morality is almost always the morality of process, and I despise folks who would do away with process to achieve desired ends because of the pragmatic dangers of doing so (e.g., I identify with Thomas More’s character in A Man for All Seasons). And yet the “almost” in “almost always” is significant, and it seems to me that allowing the Feds to prosecute when state prosecution fails to convict stems from the same situation of going beyond the “almost” of procedural morality.
I have less of a problem with what happened to the King officers. But in the following hypothetical, I would have a problem:
1. Let’s say the OKC bombers had been found in federal court not guilty. In other words, the jury had decided there was not evidence beyond a reasonable doubt that the accused had actually done it.
2. Let’s say the accused had been then sent to Oklahoma court, and a jury there found evidence beyond a reasonable doubt that the accused had done it.
To me, that hypothetical seems inexcusable because what was in dispute is what the accused had actually done, and it was decided on twice.* In the Rodney King case, the issue, to my knowledge, was more of whether the cops were justified or violated King’s rights. And even though those are propositions of fact, they are different set of facts, and there existed already a certain baseline stipulation of what the cops actually did.
*I should add, that I do think both of those Christian extremists did it, I’m just using the hypothetical.
I actually a lot more sympathy for Mr. Sollecito than Ms. Knox. The media attention has been on Ms. Knox because she is a young, pretty American woman trapped in really horrible circumstances. People forget that Mr. Sollecito was a young, knaive Italian man who is even more trapped in almost Kafkian circumstances. Unlike Ms. Knox, Mr. Sollecito is not protected by the United States government or geography in anyway potential way. From what I’ve read, he had a much rougher time in his stay in prison than Ms. Knox and emerged much worse for wear from the ordeal.
Both of them were railroaded on a murder charge they were completely innocent of, so I have a lot of sympathy for both
Good point – for all of the attention on Ms. Knox, the decision the other day is likely of somewhat minimal practical import to her, since it’s doubtful she’d be extradited. The same cannot be said of Mr. Sollecito.
Actually as NewDealer pointed out, even if Knox isn’t extradited the case still has a lot of practical import on her life. Depending on what the Italian government does, Knox might not really be able to leave the United States without risking arrest again. At very least, she can’t really go to Europe.
True enough – I should have said “limited,” rather than minimal. I’d hate to be effectively prohibited from leaving the country because of a crime I didn’t commit, but that penalty is obviously nothing compared to being prohibited from leaving a 10×10 cell.
There’s also paying Italian attorneys’ fees for a an entirely new criminal defense, presumably billed in Euros (though presumably payable in dollars).
This is one of those bits of modern Americana that seems to exist without me being aware. I had never heard about this case until yesterday, and now suddenly it’s everywhere – and apparently it’s something everyone everywhere has spent the past X amount of months/years being riveted by.
When driving about doing errands yesterday, every show I tuned into (save NPR) was talking about it, referencing their previous coverage, and people were calling in with details of the case that I find hard to believe they actually knew. (“I’ve read all of the court documents, and I can tell you that when she said she went to X’s apartment she seemed to be hedging.”) One “law professor who was an expert on the case” was interviewed on multiple shows I caught, and she kept shouting that the defendant was A LIAR! A LIAR!!!, which seemed an odd way for a law professor to behave. (Also, everyone kept referring to the fact that she taught law in Boston. At first I thought they said at Boston, as in at BC, but it turned out that they just referenced the city she teaches in, not the school. She was also plugging a book called And Justice for Some. She was really strange.)
How is it this can be so OJ-like and it’s never come across my radar? Is this a thing you only get if you watch a lot of cable TV news?
I heard about it on the radio when it was going on. But most of my knowledge came from… lively discussions… on Burt’s blog.
I really don’t watch much tv but I was aware of the Amanda Knox case because the NYT covered it and it was discussed widely on the internet sites I read. I wonder how many people actually know about this case. It seems that a lot of people, not just you Tod, are really unaware of key events. Its not epitemistic closure in the classic sense because they are simply completely unaware of a particular thing.
Hmm. I knew about it, and I don’t watch TV news and rarely listen to radio news (except crucial stuff like baseball scores.) Like Lee, I think it must have been on internet sites. Perhaps Harpers’ No Comment or TPM.
I don’t remember where I heard about it, but I never watch cable news. Knox was alluded to in an episode of 30 Rock last year, by Hazel: “Anyone can be famous. Look at Foxy Knoxy. What did she ever do except not kill anyone?”
I didn’t get the reference at the time, but I looked it up and thought, “Oh….her!”
Hey Burt,
Thanks for this thoughtfully researched piece. I remember the Knox case when it was going on and the various levels of outrage it sparked in many people. What bothered me about the response was that, unlike your piece here which is based on a fairly comprehensive review of the Italian justice system, most folks were like, “Well, you know she’s getting a raw deal because it’s the Italians!” When pressed, these folks couldn’t offer a reason why the case being tried in Italy meant that Knox would get a raw deal… they just knew that those things happen over there. My hunch is they likely would have said that about any non-American country doing something they, as Americans, didn’t like. Which creeps into the sort of American-exceptionalism and jingoism I’m really uncomfortable with.
If there are flaws in the Italian justice system, they should be pointed out, as you did here. But we shouldn’t assume that a nation and its people are inherently corrupt because they take an action that we dislike. Mind you, this was commentary I heard during the initial stages of the trial, before this apparent double jeopardy came into play… people were largely objecting to the gall that the Italians dared show in prosecuting one of their own.
Well, exactly. It’s not enough to say “You can’t do that to her, she’s an American!” If I’m going to criticize the Italian justice system as somehow unfair, it is incumbent upon me to identify the maner in which it is unfair. And the fairness of the process cannot be determined solely by whether the result.
It became really hard for me to form a true opinion on the case because I found myself reacting to the reactions… and becoming pissed off at the, “You can’t do that to her, she’s an American!” arguments that I started thinking, “Fuck yea, do that to her!” Which was equally ignorant to a true pursuit of justice.
To the issue at hand, while I recognize the problems that arise from the double jeopardy clause, I am far more bothered by the problems that would arise if we didn’t have one. The double jeopardy clause offers a certain “home field advantage” to the defense, which theoretically should make the prosecution that much better at their job… as they’ve only got one shot at it. Sadly, that does not often seem to be the case and perhaps results in overzealousness, but I think smaller tweaks can address that short of abandoning it a la the Italians.
Italy is notoriously corrupt by western European standards, and this is acknowledged by the Italians themselves, as you can see if you check out the Corruption Perceptions* Index, where it ranks in the neighborhood of Brazil, Saudi Arabia, and South Africa.
*With the caveat that it really does measure perceptions, not actual corruption. I do suspect that the degree of cynicism in a culture matters, although most countries end up more or less where you’d expect.
And it very well may be. But folks’ justification for their skepticism was not, “Look at this evidence of corruption”… it was, “Well, you know how the Italians can be.” And I venture to guess they would have inserted any country in there if it suited their ilk. I mean… all those places are not America… how could they not be corrupt and morally bankrupt?
America scores relatively high in the how corrupt is it.
I am not surprised.
I think it does reasonably well – about the same as the UK and slightly ahead of France, notably ahead of Austria, and way ahead of the rest of Europe other than Scandinavia, Switzerland and the Low Countries. (Full disclosure – my academic advisor in college helped create this index, though he was always extremely open about its shortcomings).
The recommendations for the US are noteworthy, as well:
These are fairly minor changes. And notice what’s not on the list of recommendations – anything involving campaign finance reform. There’s a reason for this – American campaign financing does not have nearly the influence on policy that it is perceived as having by the general public; the relatively small number of political scientists who specialize in the study of corruption have been trying to point this out for years.
IIRC, there was a lot of opposition in the US to diplomatic intervention on behalf of Michael Fay when he was sentenced to caning for vandalism in Singapore. There was a lot of support for intervention as well, but the support mostly came from the left, with opposition mostly coming from the right. That’s how I remember it, anyway, though I was young enough that my perceptions may have been off.
I can’t see people saying, “Well, you know how those Swedes are,” if the Kerchner murder had happened in Sweden. Many Americans have negative stereotypes about Sweden, but that it has a corrupt criminal justice system really isn’t one of them.
I have a hard time with ‘double jeopardy’ when someone really does get away with murder.
I have a friend who’s cousin was murdered. The murdered woman’s husband was tried for it; but found not guilty beyond a reasonable doubt. At the time, ongoing domestic violence was not admitted as evidence; it would be allowed just a few years later by state law, and would have established a pattern of behavior and motive that was missing for the jury (though I admit this is second hand; I was not in the courthouse.)
Over the next several years, many people have gone to the family with tales of his drunken boasting about getting away with it; with his sense of immunity that he’s now free to tell the details of what he did. And other women have had relationships with him, and fled him in fear.
So not only did this potentially guilty person get away with murder, he’s free to abuse again, to potentially murder again; and on much the same set of arguments that rapes are so difficult to prove — he said/she said. Except there’s no longer a she to say.
The problem is that if you did not have it, the government would constantly just mulligan and wear someone down (financially and/or emotionally) until said defendant plead guilty.
+1 this.
Yup. We already do that to folk, even before trial.
I’m surprised that no one has asked the obvious question and the only REALLY important one:
What does Nancy Grace think?
(oh, lord, do I hate that woman!!!!)
I think we can all agree on this much. Nancy Grace is evil incarnate.
I was wondering about this. Thanks, Burt, for answering some questions that never made it out of my head.
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