By Terry Baynes
NEW YORK, March 26 (Reuters) - The possibility that American Amanda Knox could be convicted of murder and extradited to Italy for punishment could force U.S. courts to enter legal territory that is largely uncharted, legal experts said.
Italy's top court on Tuesday ordered the retrial of Knox, 25, for the 2007 murder of British student Meredith Kercher.
The move potentially pits a U.S. constitutional ban on double jeopardy, or being tried twice for the same offense after an acquittal, against international extradition agreements, experts said.
The issue hinges on whether a lower court decision overturning her conviction amounted to an acquittal, they said.
If Knox is retried after she was acquitted, that would violate her constitutional rights, said Christopher Blakesley, a law professor at the University of Nevada Las Vegas who specializes in international criminal law. On the other hand, the United States entered into an extradition treaty and, in doing so, accepted Italy's criminal justice system, he added.
"If Knox is found guilty, there's still a whole lot of room for battle before she would ever be extradited," Blakesley said.
Knox and her former boyfriend, Raffaele Sollecito, were accused of killing 21-year-old Meredith Kercher during a drug-fuelled sexual encounter in Perugia, Italy. The two were found guilty in 2009 and sentenced to 26 and 25 years in prison respectively.
In 2011, an appeals court, comprised of a panel of judges and lay jurors, overturned the convictions of Knox and Sollecito after forensic experts challenged evidence from the original trial. Knox and Sollecito were released after four years in prison, and Knox returned to her family home near Seattle.
Prosecutors and Kercher family lawyers appealed to Italy's high court, the Court of Cassation, calling the prior ruling "contradictory and illogical."
On Tuesday, the Court of Cassation agreed to overturn the appeals court's acquittals. The high court has not yet provided a full reasoning for its decision, and a date has not yet been set for the new trial, which will be held before a different court of appeals in Florence.
Knox's Italian lawyer, Carlo Dalla Vedova, said via email that the new trial would likely occur in late 2013 or early 2014. Knox does not intend to return to Italy for the proceeding, he said, and the court of appeals can retry the case in absentia.
The Italian government could ask for extradition once the Italian courts have reached a final decision, Dalla Vedova said. If it does, the U.S. Department of State would then have to decide whether to act on the request. If the State Department chooses to comply, it would then deploy the U.S. Attorney's Office to a U.S. court to seek Knox's extradition.
What is unpredictable is how such a case would play out in front of a U.S. judge who would have to weigh the U.S. constitutional protection against double jeopardy with the 1984 bilateral extradition treaty between the United States and Italy. The treaty contains a provision that attempts to protect against double jeopardy, but it is not clear whether that provision would bar extradition in Knox's case.
The legal question would be whether Knox was acquitted, as U.S. courts would define the term, or whether the case was merely reversed and still open for further appeal, said criminal lawyer and Harvard Law Professor Alan Dershowitz.
"It's very complicated, and there's no clear answer. It's in the range of unpredictable," Dershowitz said.
Much of the complication stems from the differences between the Italian and U.S. legal systems. In the United States, if a defendant is acquitted, the case cannot be retried.
In Italy, prosecutors and lawyers for interested parties, such as Kercher's family, can file an appeal. Unlike American courts of appeal, which only consider legal errors in the courts below, Italian courts of appeal, which are comprised of both judges and jurors, can reconsider the facts of a case.
Depending on the Italian high court's reason for overturning Knox's acquittal, it is possible that the court of appeals could consider new evidence that's introduced, said Dalla Vedova. As a result, a defendant can effectively be retried in the course of one case in Italy.
Dalla Vedova said the high court's decision does not raise a double jeopardy problem because the retrial would not be a new case but rather a continuation of the same case on appeal.
Other defendants who have been acquitted in other countries and then convicted on appeal have attempted to raise the double jeopardy principle to avoid extradition, without much success, said Mary Fan, a law professor at the University of Washington who specializes in cross-border criminal law.
The text of the treaty prevents extradition if the person has already been convicted or acquitted of the same offense by the "requested" country, which would be the United States in Knox's case because Italy would be requesting extradition from the United States. Because Knox was never prosecuted or acquitted for homicide in the United States, the treaty's double-jeopardy provision would not prevent Knox's extradition, said Fan.
While the issue is rare in the United States, several courts have rejected the double jeopardy argument in similar cases. In 2010, a federal court in California found that a man who was acquitted of murder in Mexico and later convicted after prosecutors appealed the acquittal, could not claim double jeopardy to avoid extradition to Mexico. That court cited a 1974 decision from the 2nd U.S. Circuit Court of Appeals in New York, that reached the same conclusion with respect to Canadian law, which also allows the government to appeal an acquittal.
When asked about the potential extradition of Knox at a press briefing on Tuesday, a spokesman for the U.S. State Department said the question was hypothetical and declined to comment. (Reporting By Terry Baynes; Editing by Sandra Maler)
Related on HuffPost:
Nov. 2, 2007
British student Meredith Kercher, 21, is <a href="http://www.huffingtonpost.com/huff-wires/20130326/eu-italy-knox-chronology/" target="_blank">found murdered</a> in the Perugia, Italy apartment she shares with 20-year-old Amanda Knox, an American student. Post-mortem examination reveals evidence of sexual activity before death. <em>This undated file photo released on Nov. 3, 2007 by the Italian Police shows 21-year-old murdered British university student Meredith Kercher. (AP Photo/Italian Police, ho, file)</em>
Nov 6, 2007
Knox and 23-year-old boyfriend Raffaele Sollecito (right) <a href="http://www.huffingtonpost.com/huff-wires/20130326/eu-italy-knox-chronology/" target="_blank">are arrested</a>. Knox's boss, 38-year-old bar owner Patrick Lumumba, is also arrested after revealing he'd canceled Knox's shift the night Kercher is murdered. <em>This photo taken Friday Nov. 2, 2007, and made available on Thursday Nov. 8, 2007 shows Amanda Marie Knox, left, and Raffaele Sollecito, looking on outside the rented house where 21-year-old British student Meredith Kercher was found dead, in Perugia, Italy. (AP Photo/Stefano Medici, File)</em>
Nov. 20, 2007
Lumumba is <a href="http://www.huffingtonpost.com/huff-wires/20130326/eu-italy-knox-chronology/" target="_blank">released from jail</a> for lack of evidence after Knox implicates him to police. <em>Congolese Patrick Lumumba Diya (R) with his lawyer Carlo Pacelli leaves the police headquaters in Perugia, 20 November 2007. (STR/AFP/Getty Images)</em>
Dec. 6, 2007
20-year-old drug dealer and Ivory Coast national <a href="http://www.huffingtonpost.com/huff-wires/20130326/eu-italy-knox-chronology/" target="_blank">Rudy Hermann Guede</a> becomes a third suspect. He is extradited from Germany and taken into custody upon his arriving in Italy. <em>Ivory Coast citizen Rudy Hermann Guede arrives at Rome's Fiumicino airport, 06 December 2007 after being extradited from Germany where he was arrested last 20 November. (TIZIANA FABI/AFP/Getty Images)</em>
Oct. 28, 2008
Judge indicts Knox and Sollecito on murder and sexual assault charges. Guede, who was granted a fast-track trial, is convicted of murder and sexual assault and sentenced to 30 years in prison after confessing to being in the house on the night of the murder. He maintains his innocence, instead blaming an Italian stranger for the crime. <em>Rudy Hermann Guede, of the Ivory Coast, center, is escorted by penitentiary police officers as he arrives at the opening of his appeal's trial in a Perugia court, central Italy, Wednesday, Nov. 18, 2009. (AP Photo/Stefano Medici)</em>
Sept. 26, 2008
Knox and Sollecito meet in court for the first time since their arrests. <em>In this Sept. 26, 2008 file photo, American murder suspect Amanda Knox , center, is escorted by Italian penitentiary police officers to Perugia's court at the end of a hearing, central Italy. (AP Photo/Pier Paolo Cito, files)</em>
Jan. 16, 2009
Knox and Sollecito's trial begins in Perugia. <em>Amanda Knox smiles to her lawyer Luciano Ghirga as she arrives at Perugia's court, Italy, Friday, Jan. 16, 2009. (AP Photo/Alessandra Tarantino)</em>
March 6, 2009
After claiming she was pressured to name a suspect, Knox tells the court she was at Sollecito's house when Kercher's murder took place. <em>American murder suspect Amanda Knox, center, is escorted by Italian penitentiary police officers from Perugia's court after a hearing, central Italy, Tuesday Sept. 16, 2008. (AP Photo/Antonio Calanni)</em>
June 12, 2009
Knox <a href="http://www.huffingtonpost.com/huff-wires/20130326/eu-italy-knox-chronology/" target="_blank">takes the stand</a>, telling the court she was shocked by Kercher's death. She offers the alibi that she spent that night at her boyfriend's house and accuses police of beating her into making false statement. <em>Amanda Knox, accused of killing her British housemate two-years ago, takes place in the courtroom on June 12, 2009 in Peruggia. (TIZIANA FABI/AFP/Getty Images)</em>
Nov. 21, 2009
Italian prosecutors request life sentences for both Knox and Sollecito. <em>U.S. murder suspect Amanda Knox reacts during a hearing at Perugia's court, Italy, Saturday, Nov. 21, 2009. (AP Photo/Alessandra Tarantino)</em>
Dec. 4, 2009
Jury retires to consider verdicts. Both defendants are found guilty. Knox is sentenced to 26 years in prison, while Sollecito receives 25 years. <em>U.S. murder suspect Amanda Knox is accompanied to a penitentiary police van as she leaves the court after a final hearing before the verdict, in Perugia, Italy, Friday, Dec. 4, 2009. (AP Photo/Pier Paolo Cito)</em>
Dec. 22, 2009
Guede's <a href="http://www.huffingtonpost.com/huff-wires/20130326/eu-italy-knox-chronology/" target="_blank">conviction is upheld</a> by appeals court, though his sentence is cut to 16 years. <em>In this Dec. 22, 2009, file photo, Rudy Hermann Guede of Ivory Coast, looks on during his appeals trial in Perugia, Italy. (AP Photo/Stefano Medici)</em>
June 1, 2010
Knox is indicted on slander charges for claiming she was beaten by police when questioned in 2007 about her roommate's slaying. <em>Jailed U.S. student Amanda Knox, right, is escorted by police as she arrives for a preliminary hearing in Perugia, Italy, Tuesday, June 1, 2010. (AP Photo/Fabrizio Troccoli)</em>
Nov. 24, 2010
Knox and Sollecito's <a href="http://www.huffingtonpost.com/huff-wires/20130326/eu-italy-knox-chronology/" target="_blank">appeals trial begins</a> in Perugia. <em>U.S. murder suspect Amanda Knox, right, is escorted by a penitentiary guard, prior to the start of a hearing in her appeals trial in the murder of her British roommate Meredith Kercher, in Perugia's courthouse, Italy, Wednesday, Nov. 24, 2010. (AP Photo/Gregorio Borgia)</em>
Dec. 16. 2010
Guede's conviction and 16-year prison sentence <a href="http://www.huffingtonpost.com/huff-wires/20130326/eu-italy-knox-chronology/" target="_blank">are upheld</a> by Italy's highest criminal court. <em>One of the three suspects in the murder of British student Meredith Kercher, Rudy Guede from the Ivory Coast (C), of the United States, leaves at a court hearing in Perugia on September 27, 2008. (TIZIANA FABI/AFP/Getty Images)</em>
June 29, 2011
The appeals court orders an independent forensic report, which <a href="http://www.huffingtonpost.com/huff-wires/20130326/eu-italy-knox-chronology/" target="_blank">questions much of the DNA evidence</a> used in convicting Knox and Sollecito. <em>Amanda Knox (L) looks Raffaele Sollecito (R) as she arrives in Perugia's court of Appeal during the hearing of her appeal against her murder conviction on June 27, 2011 in Perugia, Italy. (Photo by Franco Origlia/Getty Images)</em>
Oct. 3, 2011
The appeals court <a href="http://www.huffingtonpost.com/huff-wires/20130326/eu-italy-knox-chronology/" target="_blank">overturns the murder convictions</a> of Knox and Sollecito and orders their immediate release. <em>Amanda Knox breaks down in tears after hearing the verdict that overturns her conviction and acquits her of murdering her British roommate Meredith Kercher, at the Perugia court on October 3, 2011 in Perugia, Italy. (Photo by Pier Paolo Cito - Pool/Getty Images)</em>
March 26, 2013
Italy's highest criminal court <a href="http://www.huffingtonpost.com/huff-wires/20130326/eu-italy-knox-chronology/" target="_blank">orders a new trial</a> after overturning the previous acquittal of Knox and Sollecito. <em>Luciano Ghirga, lawyer of Amanda Knox, center, talks to journalists as he leaves Italy's Court of Cassation, in Rome, Tuesday, March 26, 2013. (AP Photo/Gregorio Borgia)</em>