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Double Jeopardy Isn’t What You Think It Is—and It Won’t Save Amanda Knox

Despite how it’s been portrayed on screens both large and small, the Fifth Amendment’s Double Jeopardy Clause isn’t meant to protect against the consequences of an appeal.
The Palace of Justice in Rome, seat of Italy's Court of Cassation. (Photo: Blackcat/Wikimedia Commons)

The Palace of Justice in Rome, seat of Italy's Court of Cassation. (Photo: Blackcat/Wikimedia Commons)

The murder is one of the most infamous in recent memory: In 2007 Brit Meredith Kercher, a college student studying abroad in Italy, was found dead in her house in Perugia after her American roommate and her roommate’s Italian boyfriend called police to report a robbery. The roommate, 20-year-old Amanda Knox, and her boyfriend, Raffaele Sollecito, came under suspicion—despite a lack of evidence suggesting their involvement and an abundance of evidence pointing to drifter Rudy Guede, who would be quickly convicted and sentenced.

The couple was jailed for two years before the case went to trial. They were convicted in 2009 only to have the conviction reversed on appeal two years later. Then, last year, the Court of Cassation, the highest Italian court, overruled the appellate court and ordered a retrial. The second trial resulted in a second guilty verdict on January 30, 2014—for both Knox and her former flame—and a sentence of 28 years in prison for Knox.

Knox has insisted she won’t return to Italy if the reinstatement of her conviction is affirmed. Yet so long as she stays in the United States, Knox doesn’t have a choice in the matter. Italy has extradition agreements with the United States and most European countries as well as Canada, Australia, New Zealand, and several Latin American nations. If Italy’s Court of Cassation affirms the second guilty verdict, there’s no reason not to extradite Knox.

Those who argue that the U.S. federal government may protect Knox often claim she’s a “cause célèbre” in the United States, that most Americans think that she is innocent. But more high-profile figures have spoken out against Knox than for her, and an International Business Times poll found 29 percent of Americans think Knox is guilty while just 21 percent believe her to be innocent. Extradition doubters seem to overlook public opinion in other countries: More than half of British respondents agreed Knox is guilty, and an overwhelming majority of Italians have been convinced of her guilt all along.

Even Alan Dershowitz erroneously assumed widespread American support for Knox. His calculations about whether Italy will request extradition and whether the State Department or a judge might block the request hinged in part on this misconception. If only one in five Americans thinks Knox is innocent, she can’t count on mass public outcry to sway a public official or judge to thwart extradition proceedings. The State Department, Knox’s only hope, has refused to comment.

The only legal argument that Knox, her lawyers, and other advocates have made thus far is that she should be protected by America’s commitment to preventing double jeopardy. They claim that Article VI of the U.S. extradition treaty with Italy incorporates the American meaning of double jeopardy. But the Article only relieves the U.S. of its obligation to extradite if the subject is charged with the same crime at home. Even if the Double Jeopardy Clause of the Constitution were in question, it would offer Knox scant hope.

Often invoked in film and television, the Fifth Amendment is rarely aptly applied or depicted. (The titular Ashley Judd flick? Unlikely.) The Fifth Amendment states, “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” It sought to prevent the “unacceptably high risk that the Government, with its vastly superior resources, might wear down the defendant so that ‘even though innocent he may be found guilty.’” That means preventing the government from retrying the same person for the same crime if it doesn’t like the result it gets the first time around.

What’s happening to Knox isn’t the type of legal abuse that the Constitution sought to prevent. Knox is trying to dodge the consequences of an appeal, not a new trial after the conclusion of a legal process. As Reuters reported of the Italian justice system, “No judgment is considered final until appeals have been exhausted.” What happened is what can always happen: “[T]he top Court of Cassation can order a retrial which adds years more to the process.” (So far as inapplicable constitutional arguments go, Knox might be better served ditching the Fifth Amendment for the Sixth, protecting the right to a speedy trial.)

The United States isn’t even committed to preventing all forms of re-trial within its own borders. The federal government, state governments, the military, and Native American tribes are all considered separate sovereigns, which means prosecution by any one of these actors doesn’t rule out prosecution by any other. While the federal government doesn’t prosecute someone who has already been prosecuted by a state for the same crime as a rule, it’s not constitutionally prohibited from doing so.

Jeffrey Robert MacDonald would have gotten away with murder in North Carolina but for this counter-intuitive aspect of the double jeopardy principle. Dr. MacDonald stood accused of murdering his two daughters and pregnant wife in 1970. Military officials opened a legal investigation but opted not to pursue charges, tantamount to acquittal. Four years later, a federal district court judge agreed to convene a grand jury to indict MacDonald for the three murders. MacDonald protested: He claimed the trial violated the Double Jeopardy Clause. According to MacDonald, he’d already been tried by the military. His claim failed, and MacDonald was convicted on the second try, receiving three life sentences.

The Double Jeopardy Clause doesn’t necessarily protect defendants whose convictions were overturned on appeal or those who avoided charges, prosecution, or judgment by motioning to dismiss or requesting a mistrial, for example. Defendants are only clearly protected from further prosecution on the same count by the same sovereign if acquitted or if they’ve successfully appealed on the basis of “insufficiency of the evidence.”

Dubious as some of the Italian legal proceedings have been—and not just in this case—for the United States to refuse to extradite Knox would amount to doubling down on injustice—a point others have made ably elsewhere. The United States cannot change its extradition agreement with Italy, much less the Constitution, just for Knox. The arguments for extradition range from international reputation to hypocrisy. As Dershowitz commented acidly, “We're trying to get Snowden back—how does it look if we want Snowden back and we won't return someone for murder?”