Before everyone’s eyes begin glazing over or rising toward open revolt, let me assure you that this isn’t an article about Amanda Knox. I have little or no interest in her specific case and I have no idea if she’s guilty or innocent. (Of course, you have no need to worry if you are interested, since I’m sure Nancy Grace will be talking about it until one of them dies.) The real question for me is the difference between the Italian and American justice systems and how the two interact in the case of an ex-pat like this. The short version of the story is that an American living in Italy is arrested for a crime, goes to trial and is convicted, but on the next level of review, the conviction is overturned. She’s released, but then yet another level of review essentially reinstates the conviction.

Apparently this isn’t all that unusual in Europe, (or the rest of the world outside the United States) but it should be disquieting to Americans who are used to the mostly iron clad constitutional protection against double jeopardy we enjoy here. To a layman like myself, it seems that if you are either found not guilty at trial or subsequently acquitted after a conviction… that’s it. It’s over. You don’t get tried for the same crime again. But what is the US government to do if another country without such protections wants to put one of our citizens in the slammer under those same circumstances?

Fortunately, Dr. James Joyner has looked the case over and explains a few of the complexities.

[N]o country, much less a superpower, is going to turn over one of its citizens to another government to serve punishment that goes against its own principles of justice. Many very strong American allies, for example, routinely refuse to extradite their citizens for capital crimes because they consider the death penalty abhorrent.

It’s worth noting, though, that the United States is virtually alone in its strict interpretation of the double jeopardy doctrine (with some caveats that I’ll address later). Even though the principle was enshrined in the British Common Law centuries before the colonization of North America, the UK has long recognized exceptions, especially in murder cases. Similarly, while most European Union and Commonwealth countries have basic double jeopardy protections, there has been movement in recent years to grant exceptions in cases where the interests of justice demand it, such as proof that the accused perjured himself in trial or finding of major new evidence that makes guilt clear.

Regardless of what either of us might like to see, Joyner goes on to point out that the case is far more complicated than I first thought and standing agreements between the two countries (we have an extradition treaty with the Italians) make things less certain. But that doesn’t mean we should turn her over, either.

Given that Knox was in fact acquitted on appeal and is now residing in her home country, it would be inappropriate, in my view, for the United States to extradite her. But the new verdict doesn’t strike me as a damning indictment of the Italian court system. They do things differently there but it’s not obvious that their way is worse than ours.

Whatever the international diplomacy questions may be, Joyner brings up several aspects of such convictions which still bother me. For the case in question, no matter how we choose to define it, it certainly looks like double jeopardy. According to the treaty with Italy, in order for either of us to extradite someone, “the offense must be a crime in each country.” Murder is certainly a crime and the punishment fits the terms, but isn’t there also a case to be made that it’s not really “a crime” if the person was acquitted?

As a side reference, Joyner also talks about two other types of distortions in the American criminal judgement system which are similar in nature. One of them is the scenario where someone is tried for a crime by a state, found not guilty, but is then tried in federal court under a similar, but technically different law. Joyner describes this practice as “outrageous” and I have to agree. I was under the impression that you were protected from from being taken to trial multiple times for a single incident. It was, as I understood it, the action you were alleged to have taken which was the defining factor, not the wording or origin of the legislation in question. When we do that it still looks like getting two bites at the same apple.

The second is the practice – made famous in the OJ Simpson trial – of a defendant being found not guilty but later being taken to civil court and penalized as harshly as possible. No matter what you may feel about OJ, this has always struck me as unconstitutional, or at least a robbery of the right to a fair defense for the accused. (OJ’s defense was barred from mentioning the not guilty verdict in the civil case as I recall.) Once you’ve been found not guilty, (which is not the same as innocent, I admit, but it should hold the standing of saying that the evidence doesn’t exist to satisfactorily determine guilt) how can you be taken into civil court and sued? Shouldn’t your lawyer’s first statement be to say that any financial claim against you must be based on the conclusion that you were guilty and that had already failed to happen in a court of law?

As I said in the beginning, Knox may or may not be guilty. But I don’t think the US should serve up one of their own citizens to an Italian jail under these circumstances.