The Endless Trials of Amanda Knox: a Key Decision Approaches March 25

Can the convicted-acquitted-convicted murderer of British student Meredith Kercher be extradited from the United States? Maybe so. But no time soon.

Andrew Kelly/Reuters

ROME — Italy’s highest court is about to consider once again what to do about the murder of Meredith Kercher, a 21-year-old British student brutally stabbed to death in Perugia, Italy, on November 1, 2007. American Amanda Knox, now 27, and her former Italian boyfriend Raffaele Sollecito, who turns 31 next week, stand convicted of Kercher’s murder. They are considered accomplices with Rudy Guede, now 28, an Ivory Coast native who was convicted for his role in the murder in a separate fast-track trial in 2008, and who is nearing the halfway point of his 16-year sentence.

The Kercher case has been on a judicial roller-coaster ride that saw Knox and Sollecito convicted in 2009 and acquitted on appeal in 2011, only to have those acquittals thrown out by Italy’s highest court in 2013 due to “grave mistakes” in the trial that had set them free. A second appellate court then upheld their original 2009 murder convictions in January 2014. Knox was sentenced to 28 and a half years and her former boyfriend to 25 years.

On March 25, Italy’s highest court will examine the new conviction and rule whether to order a third appellate trial for one or both, or to finally and definitively confirm their murder convictions and prison terms.

If it upholds the convictions, the case finally will be closed. If it orders a new appellate trial, it will still be considered part of the ongoing, open case that began judicially in 2008.

Double-jeopardy, or being tried twice for the same crime, which is prohibited in U.S. law, is a term that does not apply to the Italian judicial system: Knox and Sollecito are not being tried multiple times for the same crime; they are still being tried for the same crime almost eight years after it happened. For the sake of perspective, one should keep in mind that one murder case in Italy famously bounced between the appellate and high courts for 22 years. More than 50 percent of all serious felony cases in Italy are altered one way or another on appeal, and it is extremely common for Italy’s high court to send cases back to be heard again.

Italian law provides for an automatic appeal process and a high court ruling on every murder case, which essentially protects suspects from being rushed to judgment. Each case is heard by a lower court, an appellate court, and only after Italy’s highest court rules definitively is a case considered closed. In the United States, for example, there is no automatic right to appeal, although most appeals in criminal felony cases are granted. And if Knox and Sollecito had been convicted in the United States, they might have faced the death penalty.

If a new appellate trial for either Knox or Sollecito is ordered, conventional wisdom and precedence suggests a high probability of a new, and potentially final, acquittal.

Francesco Maresca, the lawyer for Kercher’s family, told The Daily Beast that he doesn’t know what to expect in next week’s hearing. “The high court wasn’t happy with the acquittal, but we won’t know if they will be satisfied with the way the new conviction was won until they rule,” he told The Daily Beast. “But in a murder case, if it goes back [to appeal] for a third time, it generally points to enough reasonable doubt to acquit them in the eyes of the court.”

But if the high court does confirm the conviction, it is the last word on the case. The doors slam shut. And Sollecito, who is in Italy, would likely be arrested quickly to begin his 25-year prison sentence.

What happens to Knox, who understandably hurried back to Seattle after her 2011 acquittal, and whose engagement recently was reported in The Seattle Times, is another matter. American officials could demand she turn over her travel documents, and, by law, they might even place her in precautionary custody or issue an electronic bracelet while the matter of her extradition is sorted out.

According to Nicola Canestrini, an Italian lawyer who specializes in extradition cases between Italy and other countries, the simple fact that Italy and the United States have a valid extradition treaty means matters like the American definition of double jeopardy will not work in Knox’s favor.

“Double jeopardy may be a popular concept to talk about in the United States, but it won’t make a difference in a legal argument when it comes to extradition,” he told The Daily Beast. “The United States, in signing an extradition treaty, agrees that Italy’s three-tier judicial system is not double-jeopardy.”

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If the high court does rule to uphold the conviction, it could take a very long time to bring Knox over, unless she chooses to come voluntarily, which her lawyer Carlo Dalla Vedova told The Daily Beast is “not likely.” Before her latest conviction, she told an Italian newspaper that she would live as a “fugitive” rather than going back to Italy to serve a prison term.

After handing down the ruling, whatever it may be, the high court will have between 45 and 60 days to issue its written reasoning for their decision. If the convictions are upheld, Canestrini says the case will then go to Italy’s justice ministry, which will be informed that an American citizen owes Italy a prison sentence. The prosecutor who won the appellate conviction would then have to petition the justice ministry to ask for Knox to be extradited. There is now a backlog of about six months for cases being reviewed by the Justice Ministry, although a high-profile case like Knox’s could theoretically make it to the top of the pile sooner than most.

Then, if there is a final conviction, the Italian minister of justice, currently a man named Andrea Orlando, will have to determine the timing of an extradition request. He could also advise Interpol to issue an international arrest warrant, which would be a backup to the extradition, and allow a third-party country, like Canada or Mexico, to arrest Knox if she were to cross a border. It could also make her vulnerable to rogue bounty hunters who want to make a name for themselves by hauling in a big case.

The statute of limitations on murder extraditions in Italy is twice the length of the sentence, meaning Knox could be extradited any time in the next 57 years. “At the point the justice ministry gets the case, it becomes political,” Canestrini says. “The minister could consider the diplomatic pressure a request could cause. If Italy is engaged in a war in Libya, for example, and relying on American troops for protection, who knows, maybe that would even delay a request.”

Italy could also refuse to ask for extradition. The country has passed on a few cases like the “extraordinary rendition” (that is, kidnapping) of Egyptian cleric Abu Omar by 22 CIA agents and an Air Force Official who were convicted in absentia for the abduction.

But Canestrini makes a distinction between military or secret service cases and that of a private citizen like Knox. He says that every year there are around 20 extradition cases between the two countries, ranging from drug crimes to parental kidnapping in cases of divorce or separation.

“If there is a treaty, the judge cannot consider extenuating factors like public opinion,” he says. At least not under normal circumstances. “Is there a legal argument for denying extradition? No. Is there a political one to stop Italy from asking? Maybe.”

Assuming Knox, if convicted definitively, would not return on her own, an extradition request would go to the U.S. State Department for consideration. Knox would obviously then be wise to assemble a team to fight extradition and appeal any order if the State Department determines it has no legal grounds to keep her in the United States. All of that could keep the case in the American court system for years.

Secretary of State John Kerry has so far refused to comment on what he might do if handed the case. “It’s an ongoing legal process. There’s nothing in front of us now, and I don’t have to comment on it now and I’m not going to,” Kerry told CNN recently. “We’ll let the legal process work out, and if and when the time comes that there’s a reason that I have to comment, I’ll do my duty.”

The timing of an extradition request could also be impacted by the upcoming American election. If the Italian justice ministry deems that asking a lame duck administration to act on such a high-profile case is risky, it may wait until a new administration is in place. “Or they might judge that the outgoing administration has nothing to lose,” Canestrini says.

There are several factors that cannot be considered when determining Knox’s legal rights. With double jeopardy off the table, Knox’s defense could have potentially argued that she was convicted in absentia, but Canestrini says that because Knox wrote a letter to the appellate court judge, Alessandro Nencini, during the trial explaining why she wasn’t there, she essentially acknowledged she was on trial. “Her lawyers should have never let her write that letter,” Canestrini says. “That email, read in court, means there is evidence of her awareness of the trial.”

Other issues, like a pregnancy, could also play a role. Canestrini says Knox would be able to delay extradition three years for every child she might have based on current American standards for extradition. “But she would have to have a lot of babies to make that work long-term,” he said.

Canestrini also says Knox’s lawyers could eventually try to negotiate a deal with the Italian justice ministry, especially if they use the argument that Italian prisons are over-crowded. Such a deal could include the option that she serve her sentence in the United States if there is no legal loophole to get her out of being extradited.

Sollecito won’t have so many options. The Italian authorities have already taken his documents, and no doubt he is under the watchful eye of the local police. His lawyers might argue that he should not have to serve a sentence unless and until Knox does, but given the fact that Guede is in prison and equally judged guilty, most legal experts say that wouldn’t work. On his online resume on his website, in which he lists the many media interviews he has given tied to his murder conviction under “media skills,” he describes one of his greatest strengths as his “ability to overcome insurmountable obstacles.”

Whatever happens next week, the never-ending case will not end anytime soon. A new appellate trial could take several more years to complete and an extradition trial could take even longer.