[MRRiley]

Prosecutor to appeal Amanda Knox's acquittal - World news - Europe - msnbc.com

Amanda Knox's conviction was overturned because the court found that the DNA evidence may have been improperly handled and because the prosecution never established motive.

She is on her way back to the U.S. now, but the prosecutor plans to appeal the acquittal to Italy's highest court of appeals. Think it would be much better if they figured out who really helped drug dealer Rudy Guede, commit the murder.

(I guess Italy doesn't have any protection from "double jeopardy.")

[shooz]

She will be back in the USA, and I doubt Italy will push too hard for extradition.

[Wheatfield]

My understanding of the Italian justice system is that it is pretty much there to convict people, not to find the right people to convict.
Ms. Knox could plea, quite convincingly, that she wouldn't be able to get a fair trial in Italy if they try to extradite her for a second trial based on past performance of the Italian legal system, which overall works as well as a Fiat 124 at -40º.

[jolepp]

...
(I guess Italy doesn't have any protection from "double jeopardy.")

They probably consider the whole process including the appeals to be the trial: the verdict is not final until appeals (if any) have been processed by the higher court(s).

edit:

Italy has signed and ratified the Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms which has a double jeopardy provision:

Article 4 – Right not to be tried or punished twice

1. 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.
2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.

The same treaty BTW has a provision for right of appeal:

Article 2 – Right of appeal in criminal matters

1. Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law.
2. This right may be subject to exceptions in regard to offences of a minor character, as prescribed by law, or in cases in which the person concerned was tried in the first instance by the highest tribunal or was convicted following an appeal against acquittal.

In practice the convention as a whole gives an extra avenue of appeal to the European Court of Human Rights once the national appeals have been exhausted.

---

Last edited by jolepp; 10-05-2011 at 04:46 AM.

[MRRiley]

(I guess Italy doesn't have any protection from "double jeopardy.")

They probably consider the whole process including the appeals to be the trial: the verdict is not final until appeals (if any) have been processed by the higher court(s).

Article 4 – Right not to be tried or punished twice

1. 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.
2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.

Looks like where they get you is in that phrase "finally acquitted" and in the ability to reopen a case even after acquittal under certain circumstances. U.S. laws only give the state one bite at the criminal case apple. An acquittal in a criminal court at any level of the judicial process is FINAL! The state cannot appeal an acquittal even if the prosecution royally screwed up. Basically the only party who has a right or need to appeal a court's decision in a criminal court is the convicted defendant (no reason to appeal if acquitted). The best the state can do is find something else to charge the person with (which then opens the state to charges of malicious prosecution).

Civil matters, of course, are different... allowing appeals by either side or even a concerned 3rd party.

[GeneV]

Looks like where they get you is in that phrase "finally acquitted" and in the ability to reopen a case even after acquittal under certain circumstances. U.S. laws only give the state one bite at the criminal case apple. An acquittal in a criminal court at any level of the judicial process is FINAL! The state cannot appeal an acquittal even if the prosecution royally screwed up. Basically the only party who has a right or need to appeal a court's decision in a criminal court is the convicted defendant (no reason to appeal if acquitted). The best the state can do is find something else to charge the person with (which then opens the state to charges of malicious prosecution).

Civil matters, of course, are different... allowing appeals by either side or even a concerned 3rd party.

Mike, actually the right of the prosecution to appeal varies from state to state. In some states, there is absolutely no appeal. In other states, the prosecution can appeal, but the rights are much more limited than those of the defendant because of double jeopardy. In many states, for example, if there is an issue as to admissibility of evidence, the judge can hear that before the trial begins (and "jeopardy" attaches) and that ruling can be appealed by either side. Another example would be that if the entire trial was fixed, jeopardy may not have attached even after acquittal, and the prosecution can seek review.

[jolepp]

Looks like where they get you is in that phrase "finally acquitted" and in the ability to reopen a case even after acquittal under certain circumstances. U.S. laws only give the state one bite at the criminal case apple. An acquittal in a criminal court at any level of the judicial process is FINAL! The state cannot appeal an acquittal even if the prosecution royally screwed up. Basically the only party who has a right or need to appeal a court's decision in a criminal court is the convicted defendant (no reason to appeal if acquitted). The best the state can do is find something else to charge the person with (which then opens the state to charges of malicious prosecution).

Civil matters, of course, are different... allowing appeals by either side or even a concerned 3rd party.

Yup. The US protection stemming from the 5th amandment is much stronger than what the ECHR provides. One might assume the UK to be similar; interestingly, it seems they have been, but have recently changed this: BBC NEWS | UK | Double jeopardy law ushered out.

[MRRiley]

Mike, actually the right of the prosecution to appeal varies from state to state. In some states, there is absolutely no appeal. In other states, the prosecution can appeal, but the rights are much more limited than those of the defendant because of double jeopardy. In many states, for example, if there is an issue as to admissibility of evidence, the judge can hear that before the trial begins (and "jeopardy" attaches) and that ruling can be appealed by either side. Another example would be that if the entire trial was fixed, jeopardy may not have attached even after acquittal, and the prosecution can seek review.

True enough Gene... The "jeopardy" bit is the important part. Anything before the trial can be appealed by either side since basically there has been no determination of guilt and thus "jeopardy." Even once a trial has started, there can be a mistrial which can allow the state to refile the original charges again as long as the judge determines that "no jeopardy had attached."

Isn't the "fixed trial" scenario that you mentioned practically the only way for the state to get a second bite at the apple... because the court's corruption prevented the defendant from being in jeopardy in the first place. Correct me if I am wrong, but in such cases doesn't the state have to prove the original court was fixed and actually try and convict the responsible court actors, before they can reopen a case against the defendant on the original charges?

[GeneV]

True enough Gene... The "jeopardy" bit is the important part. Anything before the trial can be appealed by either side since basically there has been no determination of guilt and thus "jeopardy." Even once a trial has started, there can be a mistrial which can allow the state to refile the original charges again as long as the judge determines that "no jeopardy had attached."

Isn't the "fixed trial" scenario that you mentioned practically the only way for the state to get a second bite at the apple... because the court's corruption prevented the defendant from being in jeopardy in the first place. Correct me if I am wrong, but in such cases doesn't the state have to prove the original court was fixed and actually try and convict the responsible court actors, before they can reopen a case against the defendant on the original charges?

Mike, I think there are some other exceptions, such as and appeal when a judge sets aside the jury convictions, but we are getting deep into the weeds of criminal procedure.

[MRRiley]

Mike, I think there are some other exceptions, such as and appeal when a judge sets aside the jury convictions, but we are getting deep into the weeds of criminal procedure.

True enough... LOL... My main intent was to point out that in America the state rarely gets a second chance to prosecute someone for the same crime under normal circumstances, while in Itally (and perhaps the entire EU) they can keep trying in several successive courts of appeal until they secure a conviction. Not my idea of fair when the state has virtually unlimited fiscal means to pursue a case while the average defendant generally has fairly limited means to mount a reasonable defense.

[Parallax]

Not my idea of fair when....................

Mike, ever hear the phrase "It's a court of law, not a court of justice."?
Seems to apply here.

[GeneV]

True enough... LOL... My main intent was to point out that in America the state rarely gets a second chance to prosecute someone for the same crime under normal circumstances, while in Itally (and perhaps the entire EU) they can keep trying in several successive courts of appeal until they secure a conviction. Not my idea of fair when the state has virtually unlimited fiscal means to pursue a case while the average defendant generally has fairly limited means to mount a reasonable defense.

Most cases are prosecutor paid by the state vs. public defender paid by the state. The biggest advantage of the prosecution in those cases is that it has all of law enforcement for its investigation, while the PD's office usually has a few overworked investigators.

[MRRiley]

Most cases are prosecutor paid by the state vs. public defender paid by the state. The biggest advantage of the prosecution in those cases is that it has all of law enforcement for its investigation, while the PD's office usually has a few overworked investigators.

I was addressing more the disparity between the bank account of the state (even in these bad economic times) as compared to the personal bank account of the average defendant. Either way though, the defendant has far fewer resources than the state (unless their case becomes a "cause célèbre").

[GeneV]

I was addressing more the disparity between the bank account of the state (even in these bad economic times) as compared to the personal bank account of the average defendant. Either way though, the defendant has far fewer resources than the state (unless their case becomes a "cause célèbre").

Absolutely.

[jolepp]

It has been my impression from the coverage that Knox might have had a tougher time appealing the conviction in the US (?); the Italian system is apparently similar to ours in that it allows for an appeal to a higher court where findings of fact and the intepretation of the law may be challenged as a matter of course (whereas in the US one would need specific grounds and/or the scope of an appeal might be more restricted ?).