Continuation Part Seven: Discussion of the Amanda Knox/Raffaele Sollecito case

[LondonJohn]

The courts are not (supposed to be) acting in anybody's interest. The use of this language is not apt. The court will consider the national interest only if the law applying to the case in question requires it, as it did in the Ponting case which I know you know very well. In that case the court had to decide what the national interest meant, as a distinct concept. Was it whatever the government of the day said it was (answer: yes) or was it some wider concept that could be argued more whimsically, or philosophically (no)? But considerations of the national interest do not enter into the judicial phase of Dewani's extradition. It's none of the judge's business what the national interest might be.

The original question, we have sidetracked a bit, is whether the relevant US department acts for Italy or not in an Italian request for extradition. I found this which might be useful:

I actually think we are close in thought. Again, I am NOT talking about "national interest" in the same sort of definition as you might think (I hoped I had explained that sufficiently, but maybe not). I am instead referring to the more nuanced concept of justice as it best serves the national interest. For example, it may very well be that true justice as it serves (say) Italy differs in certain respects from true justice as it serves (say) the USA.

So if it makes things easier if I drop the two words "national interest" altogether, I am happy to do so. We can then agree that the courts are supposed to act solely in the interests of justice.

And regarding the document you show, I think it's clear that it means that Italy does not have to travel to the US to make its case in any extradition hearing for someone in the US to be extradited to Italy. Instead, the US courts agree to act as Italy's representative and proxy in putting forward Italy's case for extradition. And vice versa. I certainly don't think it means (or even implies) that the US is supposed to adjudicate in the interests of Italy in such a situation (or vice versa).

 

[anglolawyer]

From what one American lawyer has written, it does not sound like evidence is a strong factor:

....."probable cause" established from hearsay is the standard test for extradition. Judges cannot look at "evidence," incriminating or exculpatory to decide to extradite. Mainly, their decisions come from affidavits. One can file a writ of habeas corpus, but it generally does not result in an extradition denial.

"What might amaze you is that 4th, 5th, 6th and 8th amendments guarantees become all but silent during extradition hearings. Extradition becomes more of a political issue than a question as to guilt/innocence, and her salvation is in the secretary of state's hands.

"In my opinion, all extradition treaties are somewhat unconstitutional but they have never been challenged. Read "Reid v. Covert, 354 U.S. 1" and compare it to 18 U.S.C. § 3184, 3185, 3186, which is how the U.S. handles extradition. You can also read "Extradition To and From the United States: Overview of the Law and Recent Treaties Congressional Research Service 22."

".....In my opinion, Amanda Knox has standing to challenge the extradition treaty with Italy and federal law in the extraditing process/hearings on constitutional grounds. The standing and challenge lies in the words of Justice Black see: Reid v. Covert, 354 U.S. 1."

I wouldn't get to hung up on the highlighted part. It only means the case will not be developed in the US by the actual witnesses. They won't haul Quintavalle over to testify, but they will lay an affidavit before the court (if showing probable cause) to say they have a witness who claims to have seen her in his store early on the 2nd. It will look like the Matteini hearing, in which no witnesses were called either.

The problem for Amanda is that, having been convicted, the treaty does not require that probable cause be shown at all.

 

[Grinder]

The courts are not (supposed to be) acting in anybody's interest.
The original question, we have sidetracked a bit, is whether the relevant US department acts for Italy or not in an Italian request for extradition. I found this which might be useful:

The Attorney General represents the country with whom the US has the treaty and the courts adjudicate the case.

Btw, not AWOL you ingn....... oops I'd better watch myself or one of those bia-trolls will come by here and take a pot shot at me.

To expand a bit on the witness thing, it seems that since lying is considered such a heinous crime in Italy, people are believed unless one can prove they are lying. Mach made the point repeatedly that saying things about Steffy or Mignini, for example, made the speaker a criminal. So if one is in court as a witness and someone says they are lying that is a criminal charge. I know that perjury exists here and the UK but there seems to be some fundamental difference of how the same behavior is viewed here and there.

While I acknowledge my explanation is not elegant, I think that it is almost impossible to fully grasp the difference in thinking between the cultures. It's like a genetic difference.

ETA - Thanks LJ I believe this helps make my point:

Quote:

If there had not been such a scream, and if Mrs. Capezzali had not actually heard it, then the Court can see no reason why she would have spoken about it.
(Massei Report, p96 Eng trans)

My jaw almost literally still drops every time I read or remember this sentence. It's such a disgustingly contra-judicial ruling (not to mention its abhorrent illogicality) that I'm still deeply amazed that Massei committed it to paper. And if he and his court were prepared to write this in the sentencing report, then just how much did they apply similar chasms of logic elsewhere in their reasoning?

 

[kwill]

That's a peach LJ. This is one I like, from the ISC ruling of last March, on Toto:

Curatolo is (was) a philosopher-king masquerading as the court jester in these proceedings.

 

[Bill Williams]

delete

 

[Bill Williams]

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[anglolawyer]

I actually think we are close in thought. Again, I am NOT talking about "national interest" in the same sort of definition as you might think (I hoped I had explained that sufficiently, but maybe not). I am instead referring to the more nuanced concept of justice as it best serves the national interest. For example, it may very well be that true justice as it serves (say) Italy differs in certain respects from true justice as it serves (say) the USA.

So if it makes things easier if I drop the two words "national interest" altogether, I am happy to do so. We can then agree that the courts are supposed to act solely in the interests of justice.

And regarding the document you show, I think it's clear that it means that Italy does not have to travel to the US to make its case in any extradition hearing for someone in the US to be extradited to Italy. Instead, the US courts agree to act as Italy's repreentative and proxy in putting forward Italy's case for extraditions. And vice versa. I certainly don't think it means (or even implies) that the US is supposed to adjudicate in the interests of Italy in such a situation (or vice versa).

Respectfully, no. It's the US Department of Justice that acts for Italy, not the courts. The courts are constitutionally separate from the executive, of which the DoJ is part. The case will be Italy (represented by the DoJ) -v- Knox and the court will simply apply the law, not in the national or any other interest, but just that. The problem is in figuring out what the law actually is since there are conflicting strands of thought about whether sovereign treaty-making powers (comity of nations etc) or fundamental rights guaranteed under the constitootion should take precedence.

 

[Grinder]

I wouldn't get to hung up on the highlighted part. It only means the case will not be developed in the US by the actual witnesses. They won't haul Quintavalle over to testify, but they will lay an affidavit before the court (if showing probable cause) to say they have a witness who claims to have seen her in his store early on the 2nd. It will look like the Matteini hearing, in which no witnesses were called either.

The problem for Amanda is that, having been convicted, the treaty does not require that probable cause be shown at all.

Heart of the issue for Amanda. The trial is over. I mentioned before that the best approach could be to change the treaty. The case could be made over double jeopardy and unending prosecutions or persecutions, which apply to every US citizen charged by Italy for any crime. The case could be made that changing the treaty wouldn't just be for Amanda unlike the Secretary of State denying extradition.

My guess is they might have up to year or more before the extradition request is issued.

 

[Mary_H]

Sorry to dispute this, LJ, but the whole reason for the treaty is to give Italy "reach" into an American jurisdiction.

So by receiving the extradition request from Italy, the United States then acts as if it were Italian law enforcement... potentially arresting someone for a crime committed outside of the US... for which the United States (or in this case Washington State) itself has no jurisdiction.

Then as AngloLawyer says, things get complicated. Habeus Corpus and bail does not exist in Italy, but it does in the United States. The is a version of "double jeopardy" in Italy, but obviously not as defined in the United States. Some court in the US will have to decide if the potentially-to-be-extradited person got a fair trial in Italy under Italian rules... but since the person is being held in the US as this is being settled the person can petition to have their American rights before the American court honoured.

I know you are referring to the US Department of Justice (I thought it was the State Department, but the reasoning applies to both).... the appropriate arm of Executive would be acting as-if it were an Italian authority, which is what the treaty is for; to empower some agency in the US to give 'reach" into the U.S. (and visa versa).

It's not as simple as that they would just be looking after American interests, or to keep an American citizen away from peril to a foreign power. The whole point of a treaty is to avoid that.

The highlighted part is key; that's why discussions of double jeopardy are pointless. It has to be shown that Italy broke its own laws -- the laws that are implicit in the treaty -- and thereby broke the treaty.

Everything that is needed to show they broke their own laws and thereby violated Amanda's human rights can be found in the first week following the crime. Once the violations are established, the evidence, too, becomes irrelevant, which is nice, since they invented it all anyway.

 

[Bill Williams]

Thank you. Here's a second draft.

View attachment 30316

This is the case in a nutshell... it is the bare-timeline of the case. What's telling is that guilters cannot do this.... it would lead to so many "what ifs" and "is compatible withs", and arrows, and "it's my belief thats" that the whole thing would be a mess...

.... just like this case.

Can this graphic be shared around?

By the way - in a tweet, Harry Rag is still maintaining that guilt is predicated on "the whole cottage being the crime scene."

There's a euphemism. That phrase is to mask something also telling, that he's not wanting you or anyone to consider Meredith's room as part of the crime scene. He simply will not talk about the absence of AK or RS in that room, because if Harry Rag DID feel confident that the forensics in Meredith's room led to a convincing conviction.....

..... then he wouldn't need to even talk about the "whole cottage".

 

[Grinder]

Sorry to dispute this, LJ, but the whole reason for the treaty is to give Italy "reach" into an American jurisdiction.

So by receiving the extradition request from Italy, the United States then acts as if it were Italian law enforcement... potentially arresting someone for a crime committed outside of the US... for which the United States (or in this case Washington State) itself has no jurisdiction.

Then as AngloLawyer says, things get complicated. Habeus Corpus and bail does not exist in Italy, but it does in the United States. The is a version of "double jeopardy" in Italy, but obviously not as defined in the United States. Some court in the US will have to decide if the potentially-to-be-extradited person got a fair trial in Italy under Italian rules... but since the person is being held in the US as this is being settled the person can petition to have their American rights before the American court honoured.

I know you are referring to the US Department of Justice (I thought it was the State Department, but the reasoning applies to both).... the appropriate arm of Executive would be acting as-if it were an Italian authority, which is what the treaty is for; to empower some agency in the US to give 'reach" into the U.S. (and visa versa).

It's not as simple as that they would just be looking after American interests, or to keep an American citizen away from peril to a foreign power. The whole point of a treaty is to avoid that.

I doubt the highlighted part and would like some kind source if you've got it and not some TV lawyer.

The DOJ prosecutes the case and the DOS carries out the verdict but they could do the equivalent of jury nullification.

 

[anglolawyer]

Heart of the issue for Amanda. The trial is over. I mentioned before that the best approach could be to change the treaty. The case could be made over double jeopardy and unending prosecutions or persecutions, which apply to every US citizen charged by Italy for any crime. The case could be made that changing the treaty wouldn't just be for Amanda unlike the Secretary of State denying extradition.

My guess is they might have up to year or more before the extradition request is issued.

Changing the treaty would be a slap in the face to a NATO ally that came in handy when Libya needed to be bombed. It would imply that convictions secured in Italy were not to be regarded as sound and had to be proved all over again in the US. Amanda is important but is she that important?

 

[Bill Williams]

delete

 

[Desert Fox]

The highlighted part is key; that's why discussions of double jeopardy are pointless. It has to be shown that Italy broke its own laws -- the laws that are implicit in the treaty -- and thereby broke the treaty.

Everything that is needed to show they broke their own laws and thereby violated Amanda's human rights can be found in the first week following the crime. Once the violations are established, the evidence, too, becomes irrelevant, which is nice, since they invented it all anyway.

No offense but that sounds pretty easy actually.
Think we have discussed a dozen or more ways that they have done this.
Of course, it probably will not be.

 

[Grinder]

The highlighted part is key; that's why discussions of double jeopardy are pointless. It has to be shown that Italy broke its own laws -- the laws that are implicit in the treaty -- and thereby broke the treaty.

Everything that is needed to show they broke their own laws and thereby violated Amanda's human rights can be found in the first week following the crime. Once the violations are established, the evidence, too, becomes irrelevant, which is nice, since they invented it all anyway.

So a court as low as a superior court* will overrule the supreme court of Italy?

That's how I read the law but no higher than a federal district court.

 

[Mary_H]

No offense but that sounds pretty easy actually.
Think we have discussed a dozen or more ways that they have done this.
Of course, it probably will not be.

Well, it entails knowing the specific laws and detailing how they specifically were broken. The problem is that Italy's laws are full of loopholes that allow the authorities to use their judgment when dealing with suspects.

I think it could be argued, though, that if the state retains absolute authority in every case, then there is not much point in having a constitution that is supposed to support human rights.

ETA: This is actually something Amanda could go on the offensive with right now, pre-emptively. I can understand why she wouldn't want to, or couldn't afford it, though.

 

[Bill Williams]

delete

 

[Mary_H]

So a court as low as a superior court* will overrule the supreme court of Italy?

That's how I read the law but no higher than a federal district court.

I don't understand this question or how it relates.

 

[Desert Fox]

I doubt that it would get so far as to call for a change in the treaty.... speaking politically, you are correct, AngloLawyer, politically the US would not want to be screwing aroung with legal frameworks, esp. when they rely on those frameworks for what you mention (!).

The fortunate thing is that the publication of motivations reports, give the Department of State many, many outs to refuse a request. All the DOS needs to do to justify a refusal to extradite *in this case* is to read back to the American public, the ISC's motivations, about the reversal of burden of proof - the one with regard to contamination.

Most, if not the largest majority of Americans would not want a citizen sent back on the basis of legal reasoning in the ISC's motivations. And this is not sophisticated legal reasoning either - most know what burden of proof means, and most know it's a bad things to reverse the burden like the ISC (the highest court in Italy!!) does.

In the face of that, double jeopardy might not even come into play.....

Do you think I am reading correctly from the Department of State in effect "Please don't less this become an issue" kind of vibe.

 

[Grinder]

Since you are "doubting" this, could you provide a reason to doubt it first?

I don't think she will be afforded all her normal rights under the Constitution as she would had the crime taken place here. If the argument was over what would be an illegal search here but was legal in another country with which we have a treaty I don't think the US rights would apply.