double jeopardy or double standard

[micky]

The girl, Amanda Knox, convicted of murder in Italy had her conviction
overturned on appeal, and that decision was overturned a few days ago.
Someone on a program on NPR, maybe Diane Rehm's week in review, said
that under some circumstances in the US, a person can be retried, but
still made it sound like double jeopardy was an issue here, which
would make her deportation to Italy less likely, in the event of a
second conviction.

In the US, some states at least (all 50 states??), if the overturning
were overturned, wouldn't a convicted defendant go back to being
guilty? Unless the second appeals court ordered a new trial, which
normally a convicted party is happy to get. (Better than just being
guilty.)

So why is this described as an issue wrt deportation? They're not
doing anything some or all 50 states would not do. Is this an
example of national pride making our justice system sound more just,
even when it's not?

Background:
http://www.foxnews.com/world/2013/03/26/italy-highest-court-overturns-amanda-knox-
acquittal-in-murder-case-orders-new/

A bigger problem seems to me is the US standard of a speedy trial,
since it's supposed to years before the second trial is finished, with
none of that delay because of the defendant. They've already tried
her once. How long do they need to prepare again?

BTW, this post was sort of written on the temporary theory that she
didn't do it, but I don't know if she did it or not.

[Rich Carreiro]

micky <mis...@bigfoot.com> writes:

>In the US, some states at least (all 50 states??), if the overturning
>were overturned, wouldn't a convicted defendant go back to being
>guilty? Unless the second appeals court ordered a new trial, which
>normally a convicted party is happy to get. (Better than just being
>guilty.)

Here are the rules, according to a criminal defense lawyer
acquaintance of mine:

* If you are acquitted at trial, that's final, under
the "no double jeopardy" rule.

* If you are convicted at trial and appeal:
- If the appeals court rules you should have been
acquitted (not the same as ordering a new trial),
that decision *can* be appealed and overturned,
rendering you guilty again. However, if the
decision to acquit is issued by an "end of the line"
court (either the relevant supreme court or by an
intermediate appeals court where the next higher court
refuses to hear the appeal from that intermediate appeals
court), that acquittal is final under the "no double
jeopardy" rule.
- If the appeals court orders a new trial, that decision
can be appealed and overturned. If the decision to order
a new trial is issued by an "end of the line" court,
there's no double jeopardy and new trial will occur.

And of course each sovereign (US and the state) can try
you for the same acts as long as they have a law that
criminalizes those acts, even if you're acquitted by one
sovereign (double jeopardy doesn't apply across sovereigns).

--
Rich Carreiro rlc-...@rlcarr.com

[Robert Bonomi]

micky <mis...@bigfoot.com> wrote:
>The girl, Amanda Knox, convicted of murder in Italy had her conviction
>overturned on appeal, and that decision was overturned a few days ago.
>Someone on a program on NPR, maybe Diane Rehm's week in review, said
>that under some circumstances in the US, a person can be retried, but
>still made it sound like double jeopardy was an issue here, which
>would make her deportation to Italy less likely, in the event of a
>second conviction.

WRONG language -- not 'deportation', but 'extradition'.

>In the US, some states at least (all 50 states??), if the overturning
>were overturned, wouldn't a convicted defendant go back to being
>guilty? Unless the second appeals court ordered a new trial, which
>normally a convicted party is happy to get. (Better than just being
>guilty.)

In the U.S., only in *VERY*RARE* circumstances, can an acquittal, or a
reversal of a conviction, be appealed or overturned. Effectively, an
acquittal (or a reversal of a conviction -without- that 'reversing'
court ordering a re-trial) is 'final', and nothing more can occur in
the case.

Essentially, the *only* situation where a U.S. court can order a re-trial
after an acquittal is when there was corruption of the judicial process, and
the defendant was never actually 'in jeopardy' in the orignal trial. i.e.
the first trial was 'rigged' (e.g., judge or juror 'bought off' or otherwise
influenced to make a decision without regard to the facts).

The 'law' in Italy is -very- different. And, therefore, things get messy.

>So why is this described as an issue wrt deportation?

It isn't. the issue is whether the U.S. would allow 'extradition', a very
different matter than deportation.

> They're not
>doing anything some or all 50 states would not do.

In actual fact, yes they *are*. see above.

> Is this an
>example of national pride making our justice system sound more just,
>even when it's not?

"Objection! Assumes facts not in evidence". i.e. that U.S. justice is
'not more just'.

The events, as they have unfolded in Italy, essentially cannot occur in the
U.S. courts.

Since a U.S. court cannot throw out a reversal of a conviction on the grounds
that the Italian court did, there is a significant question, _under_U.S._law_,
as to whether the situation does or does not constitute double-jeopardy.

[AndyS]

When she was in Italy, she 'allegedly' brok ITALIAN law. Their
laws, basis for appeal, requirements for representation or
speedy trials, is different from US law.

US law has nothing to do with crimes she is accused of committing
in Italy.

If there is a lesson to be learned here, it is "in foreign countries,
one does not have the protection of US laws and policies"..

Italy is merely following it's laws. The US and Italy have treaties
that allow for extradition under certain circumstances....
The US Dept of Justice , and the state department, are the ones who
determine whether the circumstances warrant extradition
(Not Deportation).....not the US laws passed by US Congress....

Finally, all we know about the case is the version presented
by U S news agencies..... Personally, I have no real idea as to
whether Knox did the deed or not. I doubt that any other
citizen who gets all of his/her information from watching
television broadcasts does either..

[nos...@isp.com]

micky <mis...@bigfoot.com> wrote:

> Amanda Knox, convicted of murder in Italy had her conviction
> overturned on appeal, and that decision was overturned a few

> days ago. * * *

While this apparently triggered you wondering about U.S.
constitutional double jeopardy principles, standards and procedures
that purportedly but do not always apply to trials and appeals of
criminal cases in Italy are so materially different from those in the
U.S. that (even if one tries to account for the many injustices and
other flaws in U.S. federal and especially state prosecutions)
comparisons would confirm more differences than similarities.

Attempted comparisons based only on media reports of the Knox case
would be especially problematic in any event since many difficult to
evaluate issues remain about the propriety of the behaviors of the
Knox prosecutors and trial and appeals courts as perhaps complicated
by recent heated U.S.-with-Italy and other international and
intra-Italian politics and also about Ms. Knox's own conduct. And as
you are aware, the rationales for last week's judicial action in that
case are not yet publicly known because the court has not yet said.

> In the US, some states at least (all 50 states??), if [an
> intermediate appellate court's] overturning [of a criminal
> conviction] were overturned, wouldn't a convicted defendant

> go back to being guilty?

Not necessarily. This would depend among other things on the
principal grounds of the first appellate court's vacatur of the
conviction (insufficiency of the evidence? a procedural error such as
the incorrect admissibility of prejudicial hearsay testimony? etc.)
and the grounds on which the later appellate court said it ruled.

> Unless the second appeals court ordered a new trial,
> which normally a convicted party is happy to get. (Better
> than just being guilty.)

In some cases in the U.S., it is constitutionally and legislatively
permissible for there to be a retrial even if one is not ordered by an
appellate court that reversed or otherwise substantially modified a
judgment of conviction. In other cases, not.

(By the way, it is not obvious that a defendant would be "happy" to be
subjected to a retrial.)

> So why is this described as an issue wrt deportation?

You refer to extradition, not deportation -- a materially important
difference since legislative, constitutional, case law, and treaty
relevant standards and procedures apply differently to each.

> They're not doing anything some or all 50 states would
> not do.

Since the reasons for the Italian court's ruling last week have not
yet been published, one cannot persuasively make such a claim. Still
(while, again, continuing to be subject to how the court later says it
rationalized its ruling last week), there are indications that -- if
the result will be the conduct of a new trial -- last week's ruling is
very different than what would be allowed in the U.S. because, OTOH, a
material reason for the initial appellate vacatur of Ms. Knox's
conviction was that what the prosecution claimed to be reliable
evidence critical to a conviction was tainted -- IOW (in U.S. law
parlance), there was insufficient evidence to sustain a conviction --
yet, OTOH, asserted procedural errors more than the substantive
sufficiency of the evidence may have provided (at least what will be
said to be) the reasons for last week's ruling.

If this is correct, then at best from a prosecution point of view, the
parallel is as most in the occasionally murky middle ground of what
should pertain if an otherwise identical case was prosecuted somewhere
in the U.S.:

The U.S. constitution's prohibition of subjecting a criminal defendant
to double jeopardy forecloses a second trial that would give the
prosecution another opportunity to present evidence it failed to
provide in the first trial. However, there are any number of
procedural trial errors that may warrant the reversal of a criminal
conviction (of which the erroneous if also prejudicial admission of
hearsay testimony is only one example), so that reversal on the
grounds of many procedural errors at trial which even though
sufficient to order or permit a new trial ordinarily would not
foreclose a second trial.

What I refer to as middle ground, therefore, is a reviewing court
determination that a defendant's conviction must be reversed because,
e.g., what should have been excludable hearsay evidence was
erroneously admitted and that error provided the basis to conclude
that there was insufficient evidence to convict but where the appeals
court did not also conclude that without the inadmissible evidence
there was insufficient evidence to support a conviction.

[Barry Gold]

micky wrote:
> The girl, Amanda Knox, convicted of murder in Italy had her conviction
> overturned on appeal, and that decision was overturned a few days ago.
> Someone on a program on NPR, maybe Diane Rehm's week in review, said
> that under some circumstances in the US, a person can be retried, but
> still made it sound like double jeopardy was an issue here, which
> would make her deportation to Italy less likely, in the event of a
> second conviction.

Not "double jeopardy" under US Constitutional law. The Fifth Amendment
states "...nor shall any person be subject for the same offense to be
twice put in jeopardy of life or limb..."

This seems pretty clear, but in fact it leaves two key terms undefined:
1. "the same offense" and
2. "jeopardy"

Over time, the courts have put meaning to these terms. "The same
offense" means the same alleged crime. That also applies to "lesser
included offenses," apparently in both directions.

Examples:

1. You are charged with Attempted Murder for shooting somebody. You are
found Not Guilty. The victim later dies (within the 1-year limit that
most states apply for causation). Can you now be tried for murder? No,
because all the "elements" of Attempted Murder are elements of Murder.
So if you didn't commit Attempted Murder, then you also cannot have
committed Murder.

2. You are charged with ADW (Assault with a Deadly Weapon) and found Not
GUilty. Can you be tried again for simple Assault? No, because Assault
is a lesser included offense of ADW. You've already been tried on those
elements, so you can't be tried again. If the prosecution wanted to
have a chance at you in the first trial, they should have also charged
you with simple Assault (or asked the judge to instruct the jury on
"Lesser included offenses" in states that provide that option) at the
first trial.

3. The police later find out that the shooting was part of a plan
hatched between you and another person. Can you be tried on "Conspiracy
to commit murder"? Maybe. Conspiracy has an element that is not
required for Attempted Murder (the agreement to commit a crime), and AM
has an element (the actual attempt) that is not required for Conspiracy.

The courts have also defined "Jeopardy". You have been placed "in
jeopardy" when one of the following occurs:

1. A trial begins (defined as the jury being empaneled, or in a trial by
judge, when the first witness is sworn).

2. A plea is accepted.

Basically, everything resulting from the first trial is part of the same
"jeopardy". If a higher court reverses the conviction and sends it back
to a lower court for retrial, that's just a continuation of the same
"jeopardy". Similarly, if your lawyer moves for a mistrial after
something goes wrong at the trial, you get another trial, but that's
part of the same "jeopardy". Also, a hung jury results in another trial,
part of the same "jeopardy". A few other things can result in a
mistrial, see the article in Wikipedia.

But in some cases the defendant _cannot_ be tried again. If the
prosecution _intentionally_ introduces evidence that is not allowed, and
the judge decides that telling the jury to disregard that evidence is
insufficient, there's a good chance that jeopardy is over, no retrial.
Or if an appeals court overturns the conviction "on the merits," then
you are Not Guilty and that's the end of it. This would be the case
when the appeals court finds that the evidence simply was insufficient
to convict, e.g., if the prosecution failed to introduce convincing
evidence of one of the required elements of the crime. Or if a key
witness is shown to have lied on the stand, so that his testimony is
simply not believable, and without that testimony there is insufficient
evidence, there can be no retrial.

> So why is this described as an issue wrt deportation? They're not
> doing anything some or all 50 states would not do. Is this an
> example of national pride making our justice system sound more just,
> even when it's not?

No. There are other factors. Read the Wikipedia article about Amanda
Knox. There are valid questions as to whether she was mistreated by the
authorities in Italy:

a) possibly "slapped by police" during questioning (which would make
any statements inadmissible)
b) "put under pressure" by police. Some kinds of "pressure" are legal
(e.g., they can tell you they have enough evidence to convict you when
they do not, and suggest you "tell all" to have a chance at a lesser
sentence). But many other kinds are not. If the "pressure" used by the
Italian police was of a type not allowed in the US, it is perfectly
reasonable for the US to refuse to extradite her.
c) Knox claims that she was sexually harassed by prison officials.
In the US, we do not allow this sort of thing (it happens anyway, but if
proved, the victim can successfully sue for damages and the officials
will probably be tried for mistreating a prisoner). Again, this would
be grounds for the US to refuse extradition.

In fact "Torture, inhuman or degrading treatment or punishment" is on
the list of reasons to refuse extradition.

Some countries simply will not extradite their own citizens to another
country. Even countries (like the US) that don't make that a hard and
fast rule are typically reluctant to extradite their own citizens to
another country if there is _any_ question as to whether they will
receive a fair trial. I suspect that is what is at work here.

Also to be considered:

Italy uses a two-stage trial. The first trial (primo grado) resulted in
a conviction. The second trial (secondo grado) was before an appeals
court, which found her not guilty. So the question is, did this conclude
"jeopardy"? If the second court was, in fact, a "trier of fact," then
their finding of "Not Guilty" was an acquittal, and Knox cannot be
retried under US law. If it was considered an appeal, which can send
the case back to the lower court, then it's part of the same "jeopardy".

From the description in Wikipedia, I'm inclined to the first opinion:
Knox has been found Not Guilty and cannot be tried again under US law.

[A Michigan Attorney]

micky wrote:

> The girl, Amanda Knox, convicted of murder in Italy had her conviction
> overturned on appeal, and that decision was overturned a few days ago.
> Someone on a program on NPR, maybe Diane Rehm's week in review, said
> that under some circumstances in the US, a person can be retried, but
> still made it sound like double jeopardy was an issue here, which
> would make her deportation to Italy less likely, in the event of a
> second conviction.
>
> In the US, some states at least (all 50 states??), if the overturning
> were overturned, wouldn't a convicted defendant go back to being
> guilty? Unless the second appeals court ordered a new trial, which
> normally a convicted party is happy to get. (Better than just being
> guilty.)
>
> So why is this described as an issue wrt deportation? They're not
> doing anything some or all 50 states would not do. Is this an
> example of national pride making our justice system sound more just,
> even when it's not?

A difficult question to answer. I suspect the issue is whether the US
should extradite a citizen to submit to a court process that might be
unconstitutional here. This is akin to whether the US should extradite
a citizen to Afghanistan for execution after an Afghan court adjudged
him guilty of an Afghan crime.

[Stuart A. Bronstein]

Rich Carreiro <rlc-...@rlcarr.com> wrote:
> micky <mis...@bigfoot.com> writes:

>>In the US, some states at least (all 50 states??), if the
>>overturning were overturned, wouldn't a convicted defendant go
>>back to being guilty? Unless the second appeals court ordered
>>a new trial, which normally a convicted party is happy to get.
>>(Better than just being guilty.)

> Here are the rules, according to a criminal defense lawyer
> acquaintance of mine:
>
> * If you are acquitted at trial, that's final, under
> the "no double jeopardy" rule.
>

> * If you are convicted at trial and appeal: [snip]

I think the real question is, what happens if you are convicted by a
jury and a judge decides that the jury was wrong and declares you not
guilty. Can that be appealed?

--
Stu
http://DownToEarthLawyer.com

[D.F. Manno]

AndyS <jungl...@hotmail.com> wrote:

> When she was in Italy, she 'allegedly' brok ITALIAN law. Their
> laws, basis for appeal, requirements for representation or
> speedy trials, is different from US law.
>
> US law has nothing to do with crimes she is accused of committing
> in Italy.
>
> If there is a lesson to be learned here, it is "in foreign countries,
> one does not have the protection of US laws and policies"..

But once back in the States, one _does_ "have the protection of US laws
and policies." Once back in the States, foreign law does not trump a
U.S. citizen's rights.
--
D.F. Manno
domm...@aim.com

[Seth]

AndyS <jungl...@hotmail.com> wrote:

>Italy is merely following it's laws. The US and Italy have treaties
>that allow for extradition under certain circumstances....
>The US Dept of Justice , and the state department, are the ones who
>determine whether the circumstances warrant extradition
>(Not Deportation).....not the US laws passed by US Congress....

It is specifically US laws that instruct the State Department and
Department of Justice precisely when to extradite, and when to refuse
extradition. They do not (theoretically) get to make arbitrary
decisions.

Seth

[deadrat]

Any court-directed verdict of acquittal based on the defendant's
culpability may not be appealed. See Evans v. Michigan, 568 US (2013),
in which the Supreme Court held that even when the judge erred on the
law, the acquittal stands.

[A Michigan Attorney]

deadrat wrote:

> Stuart A. Bronstein wrote:

>>> Here are the rules, according to a criminal defense lawyer
>>> acquaintance of mine:
>>>
>>> * If you are acquitted at trial, that's final, under
>>> the "no double jeopardy" rule.
>>>
>>> * If you are convicted at trial and appeal: [snip]

>> I think the real question is, what happens if you are convicted by a
>> jury and a judge decides that the jury was wrong and declares you not
>> guilty. Can that be appealed?

> Any court-directed verdict of acquittal based on the defendant's
> culpability may not be appealed. See Evans v. Michigan, 568 US (2013),
> in which the Supreme Court held that even when the judge erred on the
> law, the acquittal stands.

The jury didn't convict Evans; the judge directed an acquittal before
the jury reached a verdict (and apparently before the jury was instructed).

Your interpretation of Evans is understandable, but incorrect. The
answer to Stuart's question is yes. See footnote 9 of Evans, which reads:

"If a court grants a motion to acquit after the jury has convicted,
there is no double jeopardy barrier to an appeal by the government from
the court's acquittal, because reversal would result in reinstatement of
the jury verdict of guilt, not a new trial. United States v. Wilson, 420
U.S. 332 (1975)." Evans at 16 (slip opn).

The problem in Evans was not the judge, but the standard jury
instructions, which erroneously stated that an element of the statutory
arson offense was that the building burned was *not* a dwelling house.
Evans at 2 (slip opn).

ISTM that the prosecutor could have salvaged the case by asking for an
instruction on the lesser-included offense.

http://www.supremecourt.gov/opinions/12pdf/11-1327_7648.pdf

[Barry Gold]

Stuart A. Bronstein wrote:
> I think the real question is, what happens if you are convicted by a
> jury and a judge decides that the jury was wrong and declares you not
> guilty. Can that be appealed?

I am no a lawyer, but here is my understanding:

1. If the judge dismisses the jury before they reach a verdict, and
finds you Not Guilty, that ends the case. It cannot be appealed.

2. If the judge issues a Directed Judgement, ordering the jury to find
you Not Guilty, that also ends the case. It cannot be appealed, and the
jury is dismissed.

3. If the jury is deadlocked, and the judge decides to find you Not
Guilty, that ends the case.

3. If the jury returns a verdict of Guilty, and the judge enters a Not
Guilty judgment "notwithstanding the verdict" (JNV), that can be
appealed. (See the Wikipedia article "Judgment notwithstanding verdict".)

[deadrat]

I'll stand corrected on Evans, and yes, an appeal is possible if the
court acquits, even in the face of a guilty verdict, but not, I think,
if the court bases its acquittal on the defendant's culpability. In US
v Wilson, the trial court acquitted on the failure of the prosecution to
provide a speedy trial. I think an acquittal on the merits cannot be
appealed, but since I've got neither the time nor the patience to back
up that claim, perhaps I should have stated that in the interrogative.