March 27 (Bloomberg) -- An order by Italy’s Supreme Court that Amanda Knox face a second trial on charges she helped murder U.K. student Meredith Kercher is unlikely to result in her extradition due to a U.S. prohibition on being tried twice for the same crime.
Knox was an exchange student in Perugia at the time of Kercher’s 2007 killing in what Italian prosecutors said was a drug-fueled sex game turned violent. Knox was convicted in 2009 and sentenced to 26 years in prison. She served almost four years before the verdict was overturned two years later.
Her defense has “extremely powerful arguments to put a halt to the extradition process,” said Sean Casey, a New York attorney at Kobre & Kim LLP and a former U.S. prosecutor, not the least of which is the bar on double jeopardy.
“The treaty between the two countries specifically prohibits extradition of someone that was once acquitted for a crime,” Casey said in an interview. Given the “massive flaws” in the original trial, he said, her lawyers would have strong grounds to lobby the U.S. government to turn down any request.
In setting aside the 2011 appellate decision, the Italian high court yesterday approved a prosecution request to retry Knox, 25, and her former boyfriend, Raffaele Sollecito.
Sollecito, 29, was also convicted and sentenced to a 25 year-term for his alleged role in the killing. He was freed following the 2011 reversal.
Kercher, 21, was found dead on Nov. 2, 2007, in her bedroom at the house she shared with Knox and two other women. She was discovered half-naked and strangled with her throat slashed.
Prosecutor Giuliano Mignini said at the initial trial that Knox had masterminded an alleged sex game involving Sollecito and Ruby Guede, an Ivorian-born Italian citizen, which turned violent, leading to Kercher’s murder. Sollecito and Knox have denied any wrongdoing.
Guede was found guilty in a separate “fast-track” trial in 2008 and sentenced to 30 years. His sentence was cut to 16 years in a 2009 appeal.
Knox first told police she was at the villa at the time of the killing, and that she was alerted by screaming from Kercher’s room. She also named the owner of a bar where she had worked as the possible killer. A witness later confirmed his alibi.
The case was the subject of intense media interest in Italy, the U.K. and the U.S. The appeals trial in 2011 saw a wave of journalists descend on Perugia, a town of 170,000 in central Italy.
Unlike in most U.S. criminal cases, Italian prosecutors may appeal an unfavorable verdict. In a statement yesterday, Knox assailed the Italian high court’s order for a new trial.
“The prosecution’s theory of my involvement in Meredith’s murder has been repeatedly revealed to be completely unfounded,” Knox said, according to an e-mail sent yesterday by David Marriott, a spokesman for her family. Knox returned to her hometown of Seattle after her conviction was set aside.
Any eventual extradition request could be considered in the event of Knox’s conviction in the retrial, and confirmation by Italy’s highest court, according to an Italian Justice Ministry official.
Such a request wouldn’t involve the Italian government, Prime Minister Mario Monti’s spokeswoman said. The retrial may take place within a year, according to Knox’s lawyer, Luciano Ghirga.
“There’s a treaty, and the Italian government has to make a formal request” to the U.S. for extradition, said Michele Martinez Campbell, a Vermont Law School professor and former federal prosecutor, in a telephone interview. “Then a U.S. Department of Justice prosecutor goes to court” for a bail hearing and presentation of Italy’s case.
Martinez said extradition can take years to complete.
Gregory Craig, a partner at Skadden Arps Slate Meagher & Flom LLP in Washington, who served as a White House counsel to President Barack Obama in 2009 and 2010, said Italy would first ask Knox if she would waive extradition and return voluntarily.
If not, Craig said, she might be taken into custody and Italian officials--through U.S. prosecutors--would have to show probable cause in Italy’s murder case, including evidence, to the satisfaction of a U.S. judge.
Rebecca Shaeffer, law reform officer for Fair Trials International in London, a group which works to help ensure fair trials, agreed with Casey that double jeopardy may be an impediment to any extradition bid.
The treaty contains an article which prohibits extradition in cases where a person has previously been acquitted, convicted or served a prison sentence for the same charges in the same country, Shaeffer said.
This treaty article could potentially protect Knox from a future extradition request if a U.S. court agrees that it applies to the current proceedings in Italy.
One legal expert said the double jeopardy clause may not be a strong shield against extradition.
The U.S. has been enforcing the 1983 extradition treaty “fairly vigorously for the last 30 years,” said William Magnuson, a Harvard Law School professor. Italy might argue that Knox wasn’t formally acquitted since the lower court rulings in her case haven’t been legally finalized, Magnuson said.