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

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anglolawyer said:
We were discussing how US law works only recently here and it seemed that the main line of authority was in favour of giving full effect to treaties. It's only recently something called 'the 9th circuit' has been doubting this approach. I have every hope that the extreme complexity, possibly the novelty also, of the problem will afford her some armament but I have not seen anything to support the 'constituional paramountcy' argument yet. Not decisively.
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http://tenthamendmentcenter.com/2013/11/13/can-treaties-override-the-constitution/#.Uwt-voX6RuZ

Under the Constitution as originally understood, the short answer is: “No, a treaty can’t override the Constitution. The treaty has the force only of a statute, not of a super-constitution.”

Treaties cannot override the first eight amendments in the Bill of Rights or the Constitution’s other specific exceptions to federal authority (such as the ban on taxing exports). Those provisions were adopted to deny the federal government authority it otherwise might have. A treaty cannot override those limits.

As the plurality wrote of the Supremacy Clause, “There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution.”
 
Grinder said:
I would suggest that the right wing opposition to treaties that there would be a better chance of changing the treaty with Italy than banning all treaties.
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Neither is necessary. Treaties just have to be interpreted in accordance with the Bill of Rights.
 
anglolawyer said:
See if you can find anything within the text of the treaty itself that would not oblige the US to extradite in this case.
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Well, first find the provision of the treaty that does oblige the US to extradite even though, for example, the extraditee is the innocent victim of an HR violation. Then, tell me why that provision doesn't violate the Constitution. Then I'll look into this question about whether there is some provision that does "not oblige the US to extradite."
 
To the constitootionalists: what happens if someone is convicted in Texas but escapes their guards and crosses over the state line into neighbouring Hawaii (or Alaska, it don't matter) and then they are captured? Does Texas have to show probable cause to get them back? If not, why not? Why don't all the various amendments kick in to oblige Texas to have to show a case? And if Texas does not have to show a case, what became of those constitootional guarantees?

By the way, that was one lousy piece of drafting. All the important stuff has to be introduced by amendment.
 
Bill Williams said:
Not sure how calunnia got into this.... but whatever. Knox was asked what pressure she was under. She said she was hit. So she cannot be charged with calunnia because, apparently, hitting someone at interrogation is not a crime.
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Not whatever, you brought calunnia into the conversation about lying in court.

Poppy1016
Mach also said that defendants often lie in court , and are somewhat expected to do so. And it is not against the law.
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Bill W - Yet they can be prosecuted for calunnia. So Machiavelli punts another one.
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This mini-thread needs to go back to how it started... Machiavelli claimed that defendants were allowed to lie, and a sign of this is that they are not "sworn" as others are who give testimony.

Yet when Knox gives unsworn testimony that she was hit, she's charged with a crime.
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What crime was charged with for that statement?


So I get "perjury" vs. "defamation" vs. "calunnia".... what I don't get is which "lie" is a protected lie and which one is not. What's the point in Italian court procedure not to swear-in a witness because they are expected to lie, and then charge them with someone if they do it? Is it in the way they hold their mouth?
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As has been explained a defendant may without recourse say they didn't commit the crime. They can say they weren't at the crime scene. They can say that they never wielded the knife. When convicted of killing the victim with the knife they will not be charged with lying as a separate crime.
 
anglolawyer said:
To the constitootionalists: what happens if someone is convicted in Texas but escapes their guards and crosses over the state line into neighbouring Hawaii (or Alaska, it don't matter) and then they are captured? Does Texas have to show probable cause to get them back? If not, why not? Why don't all the various amendments kick in to oblige Texas to have to show a case? And if Texas does not have to show a case, what became of those constitootional guarantees?
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Look up Robert Elliott Burns
Yes, you can fight extradition between states
 
Diocletus said:
Well, first find the provision of the treaty that does oblige the US to extradite even though, for example, the extraditee is the innocent victim of an HR violation. Then, tell me why that provision doesn't violate the Constitution. Then I'll look into this question about whether there is some provision that does "not oblige the US to extradite."
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It's article I

ARTICLE I
Obligation to Extradite
The Contracting Parties agree to extradite to each other, pursuant to the provisions of this Treaty, persons whom the authorities of the Requesting Party have charged with or found guilty of an extraditable offense.
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read together with article X

ARTICLE X
Extradition Requests and Supporting Documents
1. Requests for extradition shall be made through the diplomatic channel.
2. All requests for extradition shall be accompanied by:
(a) documents, statements or other information which set forth the identity and probable location of the person sought, with, if available, physical description, photographs and fingerprints;
(b) a brief statement of the facts of the case, including the time and location of the offense;
(c) the texts of the laws describing the essential elements and the designation of the offense for which extradition is requested;
(d) the texts of the laws describing the punishment for the offense; and
(e) the texts of the laws describing the time limit on the prosecution or the execution of the punishment for the offense.
...
4.A request for extradition which relates to a person who has been convicted shall, in addition to those items set forth in paragraph 2 of this Article, be accompanied by:
(a) a copy of the judgment of conviction, or, in the case of the United States, if the person has been found guilty but not yet sentenced, a statement by a judicial officer to that effect;
(b) if the penalty has been pronounced, a copy of the sentence and a statement as to the duration of the penalty still to be served; and
(c) documents establishing that the person sought is the person convicted.
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There is nothing in the treaty about satisfying the requested party that there has been no human rights violation. It would have been easy to put that in had the parties intended it.
 
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anglolawyer said:
I'm convinced. You guys really are nuts.
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Is Canada also nuts for being resistant to extraditing Ms Benbenek to the US?
Just seems to be part of how all countries do this sort of thing.
There is always some interpretation involved
 
anglolawyer said:
To the constitootionalists: what happens if someone is convicted in Texas but escapes their guards and crosses over the state line into neighbouring Hawaii (or Alaska, it don't matter) and then they are captured? Does Texas have to show probable cause to get them back? If not, why not? Why don't all the various amendments kick in to oblige Texas to have to show a case? And if Texas does not have to show a case, what became of those constitootional guarantees?
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That would be one hell of an escape.

The Constitution has a special rule for interstate extraditions. But, I believe that probable cause would have to be shown for a warrant to issue, and you couldn't be extradited without a warrant. Mignini should bring his warrant around. You know, the one that talks about the shoes and the pocket knife.
 
Diocletus said:
That would be one hell of an escape.

The Constitution has a special rule for interstate extraditions. But, I believe that probable cause would have to be shown for a warrant to issue, and you couldn't be extradited without a warrant. Mignini should bring his warrant around. You know, the one that talks about the shoes and the pocket knife.
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But would probable cause consist of anything more than a certificate of conviction?
 
Desert Fox said:
Is Canada also nuts for being resistant to extraditing Ms Benbenek to the US?
Just seems to be part of how all countries do this sort of thing.
There is always some interpretation involved
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What I was seeking to imply was that it seemed a little excessive to have to go through a big rigmarole to get a convicted person back from another US state. Canada - US extradition is a different kettle of fish.
 
Diocletus said:
Oh, those. They're exactly the ones that I have in mind as being unconstitutional if applied to authorize extradition in the absence of probable cause.
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Well, assuming a certificate of conviction were enough to show probable cause between two US states, what, fundamentally, is different about the US extending this internally satisfactory and sensible system to friendly foreign powers? Of course, my assumption may be wrong. I am relying on you and Desert Fox to help me out on that.
 
anglolawyer said:
What I was seeking to imply was that it seemed a little excessive to have to go through a big rigmarole to get a convicted person back from another US state. Canada - US extradition is a different kettle of fish.
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What was done to him in Georgia is pretty obvious a case of violating the Eighth Amendment

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
 
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