9. The Meredith Kercher Case - Going Once, Going Twice (The Story of Undoubled Jeopardy)

It's no song and dance, you know.

Some words on what has gradually become a something of a topic in this case. 

Could Knox (and, if he were not there already, Sollecito) be extradited to Italy if the trial ends in the definite conviction of both?

My simple answer to this would be: why on earth not? I suppose, as often happens in high profile cases, there might well be complications due to political reasons, but I see no legal barriers here at all.

Let's focus for the moment on Knox. The Sollecito question, too, might at one point or another arise, but to answer that question, one would have to know where he would be staying when any extradition request is made. Since we don't know that, it's basically useless to ask the question in the first place.

In the case of Knox, though, it's safe to assume that she'll remain in Seattle (or at least the USA) for the time being.

So: what about extradition between the USA and Italy?

Well, as by now just about everyone knows, there is an extradition treaty in place between the USA and Italy. In sets out in which cases extradition will or will not be granted when one country (that is, in the terminology of the Treaty, the "Requesting Party") asks for the extradition of a person by the other country (the "Requested Party", as the treaty states).

So, if Italy were to request the extradition of Knox by the USA, Italy would be the Requesting Party; the USA would be the Requested Party. Simple, no?

Okay. Now let's look at what the treaty says.

Firstly, in Article 1, the general rule is given. It's this:

"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."

If Knox were found guilty of murder (or of being the accessory to murder) that would clearly be "an extraditable offense". Article 2 deals with this; an extraditable offence is an offence "punishable under the laws of both Contracting Parties by deprivation of liberty for a period of more than one year or by a more severe penalty".

So, Article 1 would essentially mandate the USA to extradite Knox, if Italy requested her extradition.

What else does the Treaty say? Well, for example, Article 5 prohibits extradition when the request is made for "political or military" offences. This clearly does not apply here. Article 8 states that extradition will not be granted if the offence has become barred by lapse of time. Again, that does not apply. There are, looking through the Treaty in general, various rules that deal with such issues, and indeed various rules that deal with the question of how an extradition request should be made by the Requesting Party or dealt with by the Requested Party. None of these, however, have any impact on the possibility of the extradition of Knox in this case.

So what might nevertheless bar the USA from extraditing Knox? Well, the only provision in the Treaty that might seem to be of any real import would be Article 6, which states:

"Non Bis in Idem

Extradition shall not be granted when the person sought has been convicted, acquitted or pardoned, or has served the sentence imposed, by the Requested Party for the same acts for which extradition is requested."

There is, however, a simple reason why this provision doesn't offer Knox any solace. It's this:  Knox has not been "convicted, acquitted or pardoned" by any state in the USA; neither has she already served her sentence anywhere in the USA. (Remember, the USA is the Requested Party.)

And that's basically it: on the basis of the Treaty, there are no impediments to extraditing Knox, if she were to be definitely convicted in Italy. None at all.

Of course, things are never quite that simple, and one might wish to argue that extradition would nevertheless be barred for different reasons.

There are two that I can think of. The first is a little far-fetched, and deals with the idea that Knox was somehow "tortured" by the Italian police. The idea would imply that her conviction was arrived at by evidence gained through the use of torture, and that therefore that evidence would not be permissible by international (or US) laws, thereby making the conviction itself unsound.

I must admit that I have no idea at all how Knox could seriously try and make such an argument. I realise that she has claimed that she made statements after having been pressurised by the police, and indeed after one of the police officers slapped her on the back of her head, but besides the simple fact that the police have denied this adamantly (and that, even if true, the accusations hardly amount to "torture" in the first place),  it would seem that these accusations have, at most, a bearing on her conviction of "calunnia" (calumny; that is, of her false accusations of Patrick Lumumba) and not on the murder trial itself. This is an argument that holds no legal merit, I would say.

The second argument returns to the "double jeopardy" notion. The Treaty might, as explained above, not bar extradition for this reason, but perhaps international laws - or those of the USA -  might.

Do they?

Well, international laws certainly don't. Italy, like most European nations, has signed up to the European Convention on Human Rights, and to Protocol 7 of that Conventions. Here's what's in Protocol 7:

"No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State."

The key word here is "finally". Any extradition request made by Italy will only be made if Knox has been "finally" convicted in Italy. The process - that is, her trial - is ongoing, and will reach an ending only after the appeal court in Florence (and, perhaps, the Court of Cassation) has dealt with the case. Only once this has happened will any conviction be final. In the meantime, she may have been acquitted by the Appeal Court in Perugia, but, as is very clear indeed, that acquittal is hardly "final' (and neither, one might add, is her earlier conviction by the original court).

In other words, an extradition request by Italy would be fine under European law. And indeed, it would not be barred by any other international law statute or treaty, since - simply put - there are none.*

What about the (federal) law of the USA? Well, the only possible obstacle might conceivably be the Fifth Amendment of the US Constitution, which states that ".... nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . .".

I do not, however, see this as being any obstacle for an extradition of Knox. To put it simply, Knox hasn't been put in jeopardy "twice"; she's been in jeopardy once, in a process which, according to Italian law, takes up several stages. "Twice", in other words, is "finally", as expressed by the European Convention. They're the same thing.

Is there a simpler way of looking at the above? Yes, if you don't mind a more formal and legal approach. The Court of Cassation annulled the Appeal Court's acquittals. Therefore, those acquittals no longer exist. For that very simply reason alone, there can be no double jeopardy issues. 

In closing, two points. 

Firstly, the fact that the notion of double jeopardy is not an American invention. In fact, it was developed by the Romans.

Secondly, the question of whether anyone should care deeply about whether Knox or Sollecito actually serve their sentences. If convicted, I daresay there are reasons why they should be imprisoned for a considerable amount of time. However, even if that does not happen, I would suspect that, in many ways, their lives would be shattered anyway.  

__________

* Well, there's the International Covenant on Civil and Political Rights, of course. Does that help? No. Article 14 of the Convention states that "No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country." Again, that dastardly word "finally".

8. The Meredith Kercher Case - Preliminary Thoughts on the Court of Cassation's Ruling

Once more: the Court of Cassation

Yesterday, the Court of Cassation published its ruling in this case.

Like many others, I can't read Italian, so I'll be awaiting a proper translation of the ruling with bated breath.

What I can do, is use a few online tools to at least get an approximation of what the Court of Cassation (which I'll also refer to afterwards as "the Court" ) has said. Bear in mind that this is very much an approximation, though. Caveats apply!

The Basics

So, what seems to be the case?

Well, first and foremost, the Court of Cassation has clearly decided on a broad annulment of the Appeal Court's ruling. This is, very roughly put, what the court concludes, after some 74 pages of deliberations:

"In conclusion, the contested judgment should be set aside for multiple reasons, given the incomplete, contradictory and manifestly illogicial reasoning that has been mentioned above. The new appeal court must therefore, using its broadest powers of discretion, remedy the critical aspects of argumentation, employing a comprehensive examination and unifying clues, by which means the relative ambiguity of each piece of evidence can be resolved, since in the overall assessment each clue is added and integrates with others. The outcome of this assessment will be crucial not only to determine the presence of the two defendants at the crime scene, but possibly also to delineate the subjective position of those who acted along with Guede in the face of the range of hypothetical situations, ranging from an agreement to participate in a death, to the involvement of the young Englishwoman in a sexual game that went out of control."*

In my series Back To The Drawing Board (see Part Six, especially), I pointed out that the Court effectively had two options: it could either annul the Appeal Court's decision more or less in its entirety, or it could target specific parts of that court's ruling. At the time, I was inclined to assume that the Court of Cassation would go for the former option, and that's exactly what it has done.

Very little of the Appeal Court's verdict has been left unscathed after the Court's rather comprehensive criticism; what little there is left of that court's verdict cannot amount to even the most summary substantiation of Knox's or Sollecito's innocence (or, to put it a bit more precisely: it cannot begin to set aside the original court's verdict of guilt). More or less everything will have to be dealt with again by the appeal court in Florence; and that court will have to do things very differently to the way the Appeal Court of Perugia handled the matter.

Secondly, the Court of Cassation has followed a line of reasoning which seems, to me, quite logical, but which has been contested by some of those posting comments here. It's this: in order to judge all the various pieces of evidence, one has to look at all these pieces as they relate together. One just cannot attempt to evaluate each piece separately. The Court of Cassation seems to be quite clear on this, as might be expected.

Various points

Given these broad points, various specific issues can be addressed. Again, though, caution should be employed; I, for one, would really appreciate a good translation.

A. The Break-In

The Court of Cassation clearly seems to feel that the break-in was in all likelihood staged and that it cannot have been Rudy who staged it.

Having said that, however, it should be noted that the Court of Cassation does not actually decide the matter once and for all. Instead, it strikes down the arguments raised by the Appeal Court, whilst at the same time pointing to the original court's deliberations; deliberations which have, in the Court's view, clearly not been dealt with sufficiently by the Appeal Court. Because of this, there would still seem to be a window of opportunity for those who feel that there was an actual break-in (or that Rudy staged it). Such possibilities have, however, become quite slim. After all, the Appeal Court's arguments were effectively the same as the  defence's arguments. If these are, in the Court of Cassation's view, inadequate, what other arguments could there be?

In this regard, I again draw attention to the fact that the trial against Rudy Guede also went to the Court of Cassation and that, at the time, the Court already stated (in slightly oblique terms) that a burglary had been staged. The Court has clearly not changed its mind since then; in fact, in yesterday's ruling, it quotes the earlier remarks it made in the case against Guede. (See Back To The Drawing Board, Part One, for some more information on this.)

B. The DNA evidence with regard to the knife and the bra-clasp

Here, the Court of Cassation's ruling may seem a trifle odd.

Firstly, the Court seems to have no problem with the fact that the Appeal Court appointed new experts to examine the DNA evidence. Those of you who read the prosecution's cassation appeal (the Galati request) will know that the prosecution complained against the appointment; however, the Court of Cassation does not agree with that particular complaint.

Nevertheless, the Court clearly has a problem with the fact (or should I say: assumption?) that the experts, once having been assigned their task, at some point abandoned carrying it out fully.  In the Court of Cassation's view, this was not in their remit, and the Appeal Court acted unacceptably by allowing them to do so.

The question which this immediately raises is this: did the experts actually stop? Where they somehow halfway through their task and did they then just quit?

Well, in one sense, perhaps. As can be recalled, they found a new sample on the so called double-DNA knife which had not been tested yet. Nevertheless, they decided not to conduct the test, because they believed that such a test would have to be conducted by "experimental" methods and that the results of such a test would be inherently unreliable. 

If this is what the Court is referring to (and if this is all that it is referring to), I agree with the Court. I believe the new sample should have been tested at the time. If, on the other hand, the Court is also referring to some other lack of "completion" on the experts' part, I wouldn't quite know what that might be. (I have always understood the situation to be relatively simple when it comes to the tests that had already been conducted by the Scientific Police: these tests cannot be repeated in any way, simply because there's no material left to conduct them on. If that is the case, I cannot see what else the experts could have done.)

Now that is the first aspect of the Court of Cassation's ruling that seems, at first glance, to be a little strange. The second is this: where is the court's ruling on the (un)reliability of the tests carried out by the Scientific Police?

Let's assume, for a moment, that a new test is carried out by experts appointed by the court in Florence and that the outcome is inconclusive. What then? Surely in such a case the question would have to be: are the tests that were already carried out by the Scientific Police reliable or not? Nevertheless, the Court of Cassation does not really deal with this matter at all. Indeed, the only observation the Court makes in this regard is that the Appeal Court insufficiently took into account various remarks made by the experts of the prosecution and the Kercher family (profs. Novelli and  Torricelli). I'm sure that, in part, this is due to the actual task the Court has (to deal, in short, with the law, and not with facts); in part, however, it might also be a deliberate choice. The Court may well have felt that the new test should be conducted first, and that any further discussion (with regard to, especially, Low Copy Number testing or the standards to which such testing has to adhere) would be dealt with best after the test had been done.

What this effectively means, however, is that the Court of Cassation gives no ruling on the actual issues surrounding the testing done by the Scientific Police. All this is left to the court in Florence.

In addition to the points already mentioned, the Court of Cassation also deals with the possibility of contamination. Here the Court is much more forceful, and its deliberations seem similar to those it gave with regard to the break-in. Simply put, the Court has decided that, given the prosecution's explanation of the processes used, it was up to the defence to provide further evidence that contamination was a real possibility. The defence has, however, not done so. In other words, the Court has struck down the defence's arguments, whilst still leaving them a certain opportunity to advance new considerations. The question again has to be asked, though: what new arguments might the defence actually have?

C. The mixed DNA samples (the Luminol traces)

Mixed DNA samples were found in the small bathroom (used by Knox and Kercher) and at two other places in the apartment: in Romanelli's room and in the corridor.

The two mixed traces in Romanelli's room and in the corridor were found after the application of Luminol, a substance used to identify presumptive blood stains.

Now, the discussion with regard to these two traces is a complicated one, but it goes straight to the heart of the matter. If one were to believe that these two traces clearly show that Knox, in her bare feet (feet still slightly bloodied with Kercher's blood) left the traces, well then, they would present compelling evidence of Knox's guilt. If, alternatively, one were to believe that the traces might well be innocuous, they would present no real evidence at all. 

So what does the Court of Cassation say on this? Well, it seems that the Court has said very little at all. If I can understand the Court's reasoning, it seems to feel that the traces were in all likelihood blood traces since they were revealed by Luminol ("as the Luminol showed traces of blood and it is not really conceivable that Knox had had her feet smeared with the blood of the victim on previous occasions", the Court states at one point). That, however, would seem to be a rather odd remark to make, for various reasons. For one thing, it's a factual remark; for another, it might well be wrong.    

Does this matter? Ultimately, no, not really. Rightly or wrongly, the Court has struck down the Appeal Court's decision in this matter as well, and as a result, the Luminol traces will have to be dealt with again by the court in Florence. I don't think that court will in any way be hampered by what the Court of Cassation has said. Nevertheless, the Court's  remarks here are a little puzzling.

D. The Time of Death

In Part Five of the series Back To The Drawing Board, I briefly discussed the Appeal Court's deliberations when it came to the time of death. I said it was forensically impossible to establish at what precise moment this occurred, and that to try and establish the issue, other factors must be taken into account. On the basis of these other factors, I also said that, "in any case it is clearly absurd to state, as the Appeal Court does, that Kercher was "certainly" dead by 10.13 pm".

The Court of Cassation takes the same line of reasoning. Once more - and this is the third time - the Court refutes all the arguments brought forth by the defence (and accepted by the Appeal Court). Once more,  it is unclear what the defence might actually bring forth during a new appeal hearing to change the situation.

(As an aside, I point out that the prosecution must be able to ascertain that the murder took place at 11.00 o'clock at night (or later) for their reconstruction to make sense, whilst the defence have to pinpoint the time of death at 9.30 or thereabouts for the idea of Guede as lone killer to be feasible.)

E. Other aspects

I will not deal with the other aspects of the case in any detail. A few remarks should suffice, for the moment.

Firstly, a general remark is that when it comes to all these other aspects, the Court of Cassation has basically sided with the prosecution's cassation appeal, and struck down the Appeal Court's verdict accordingly. This includes the Appeal Court's deliberations on the various witnesses, its approach to the fact that a separate trial was already conducted against Rudy Guede (culminating in the Court of Cassation's own ruling of 2011), and the way the Appeal Court handled Knox's behaviour after the murder (including her accusations against Patrick Lumumba).

A more specific remark concerns the rulings given in the trial against Rudy Guede. Many seem to feel that the Court of Cassation itself already ruled in that trial that the murder of Kercher was committed, not by Guede alone, but also by Knox and Sollecito. That is not, however, the case, as the Court itself again points out in yesterday's ruling.  It is clearly true that the lower courts in the Guede trial assumed that Guede acted with others, specifically Knox and Sollecito, and that the Court of Cassation accepted this (factual) reasoning at the time; that is not, however, quite the same thing.  

Closing thoughts

In closing, the following.

I generally agree with the Court of Cassation's basic approach. It seems logical: if the Court of Appeal's verdict doesn't make sense, get rid of as much of it as you can.

However, it's also clear that the Court has shied away from making any real (material) decisions on any of the outstanding issues; it hasn't really settled anything once and for all. What this means is that the court in Florence will effectively have to handle the entire case once more. 

In at least three instances, however, the Court's reasoning seems to leave the defence little room to manoeuvre. These are the issue of the break-in, the DNA contamination, and the time of death. When it comes to the break-in in particular, it does rather seem the defence prospects are slim indeed. And it should be remembered that this is a crucial point of the case.

In other instances, I find, however, the Court's deliberations a little vague. These would include the DNA evidence and (especially) the Luminol samples. When it comes to such aspects, just about anything might happen in Florence.

Finally, to clear up a point that may cause some confusion, the defence will not be able to "lodge a new appeal" or anything of the sort. The result of the Court of Cassation's ruling is that the appeal already lodged by the defence (with the Appeal Court in Perugia) will have to be dealt with again by the new appeal court in Florence. When I say that the defence does not have all too much room for manoeuvring, I am taking this into consideration.

 _____

* This is not a proper translation, I'm afraid. It's my assessment of the court's  closing remarks, using Google's translation service. I have, quite deliberately, "mistranslated" one word: replacing "demonstrate" with "determine".