Amanda Knox retrial: a tale of two countries' legal systems

Amanda Knox likely will not return to Italy for the murder retrial, and a new verdict is probably years away. In that time, much will be learned about the interaction of two 'very different legal systems.'

The decision by the Italian Supreme Court to retry American Amanda Knox for murder will highlight the differences between the two country’s legal systems and test how extradition treaties operate when citizens are convicted of crimes in a foreign country.

The 25-year-old former exchange student in Perugia, Italy, was convicted in 2009 of murdering her British roommate, Meredith Kercher, and sentenced to 26 years in prison. She served almost four years before the verdict was overturned in 2011.

“This case will be very valuable for the spotlight it shines on how two countries with very different legal systems will behave in a high-profile case,” says Robert Pugsley, a professor at Southwestern Law School in Los Angeles.

He and others say it is unlikely that Ms. Knox will go to Italy for the trial, but she could be tried “in absentia” (without her presence), and the verdict is likely still years away. Most analysts also agree that the US likely would not extradite Knox if the Italian court sentences her to more time.

General rules about extradition among Westernized countries hinge on the rights of the accused or convicted person in the country where they are located. So, for example, the US would not extradite Knox if it felt the Italian trial would expose her to "double jeopardy" – a concept that violates the US Constitution.

“The Fifth Amendment includes a double jeopardy clause – stating that ‘[no] person be subject for the same offense to be twice put in jeopardy of life or limb,’ ” says Ian Wallach, a criminal attorney in Los Angeles, who clerked at the International Criminal Tribunal in The Hague. “Having Ms. Knox tried again would violate the USA’s public policy against double jeopardy.”

The reverse can also be true. Some countries refuse to extradite murder suspects to the US unless there is an agreement between the two countries that the death penalty won’t be sought, because the death penalty violates that country's public policy.

A key issue in the Knox case could be how the US State Department perceives the new development: Is it a new trial or the continuation of the one already completed? “This is a very fascinating case and will shed lots of light on this,” says Luz Nagle, a professor at Stetson College of Law in Tampa, Fla..

The case is opening a window on how foreign courts operate, and how that affects Americans caught in them.

For its part, Italy guarantees defendants three levels of trial before a conviction is considered definitive, and both sides are granted the right to appeal – a system that developed after World War II to prevent some of the abuses of fascist dictator Benito Mussolini. The flip side is that some high-profile officials have eluded prosecution for years, notably former Prime Minister Silvio Berlusconi, who moved from trial to trial for 20 years.

“Americans are getting a good, long look at how careful the Italian system has become, but also how incredibly long it takes,” says Professor Nagle.

Other analysts caution against jumping to any conclusions before a written opinion is issued by Italy’s highest court, known as Cassation.

“We need to wait to read that opinion before we try to understand it,” says Mr. Wallach. “First, we would be offended if anyone accused our judges of acting with improper motives. Second, we will know what the reasoning was once that decision is made public.”

In the meantime, Americans should relax, he says. “We should do our best to respect the legal processes of other countries, and know that we have means to protect our own citizens from being subjected to outcomes of policies that are different from ours.”