The need for such a prohibition is obviously to prevent governments (who are able to fund prosecutions ad infinitum) from simply wearing down the defendant’s financial, psychological or social ability to defend themselves, or at worst, keep a defendant in prison until their death.
The protection is important enough that it is included within the first five amendments to the Constitution. The Fifth Amendment of the U.S. Constitution states: “No person shall be…subjected for the same offense to be twice put in jeopardy of life or limb.”
Double Jeopardy is defined by legal dictionaries as:
“A second [criminal] prosecution for the same offense after acquittal…or multiple punishments for same offense.”
Absent protections against double jeopardy, governments would be able prosecute over and over and over until they attain the verdict they are seeking, and then call the trial concluded and fair. Imagine in soccer (“football” outside the U.S.) a rule that would allow the home team to add as much time to the game clock as they like when their team is behind. Home teams would rarely lose.
WHAT IS “JEOPARDY,” AND WHEN DOES IT ATTACH?
"Jeopardy" is simply the legal term for danger or "risk."
According to the U.S. Supreme Court, jeopardy attaches any time a person’s “life or limb” (freedom or physical life) are in play as a result of a trial. The exact moment this occurs in a jury trial is the moment the jury is sworn-in or “empaneled.”
In Benton v. Maryland, (1969), the U.S. Supreme Court strengthened the double jeopardy provisions of the United States government by ruling that no state could hold double jeopardy protections less than those mandated by the U.S. Constitution. Remember that point.
WHEN DOES JEOPARDY TERMINATE?
Jeopardy terminates if and when The defendant is acquitted at any time.
Obviously, once they are acquitted, they are no longer at risk, and jeopardy terminates. However, if you then put them "at risk" once again for the very same charge for which they have already been acquitted, you have subjected them to "double jeopardy." This is true no matter how you couch it, what you name the proceeding, or how you camouflage it. A rose by any other name...would still stink.
This protection of the sanctity of a not guilty verdict is specifically designed to ensure that a jury, any jury, enjoys the power to nullify malicious prosecutions, judicial misconduct, and egregious behavior by the police.
WHY ARE U.S. APPEALS NOT DOUBLE-JEOPARDY?
Secondarily, U.S. appeals deal only with procedural propriety of the previous court, and not the facts of the case. Sentencing is only involved if improper procedures were used by the previous court in the determination of penalty. In short, it is a procedural review of the previous court’s actions, and not a re-weighing of the evidence.
WHEN IS AN APPEAL NOT AN APPEAL?
I. An appeal becomes a retrial when the person "on appeal” has already been declared innocent or not guilty.
II. An appeal is a retrial when a second jury, (or third) is empaneled.
III. An appeal is a retrial when evidence is re-entered, and/or witnesses testify to facts of the case that deal with guilt or innocence, and not judicial procedure.
IV. Finally, a retrial exists when added penalties are requested by the prosecution.
Every one of these definitions of "retrial" have occurred in the involuntary "appeal" of Amanda Knox and Raffaele Sollecito.
The great irony in all of this is that the founders and proponents of the prohibitions against double jeopardy are the judicial ancestors of modern day England and Italy, the two countries from which so many jackals currently yelp for Amanda Knox’s head and advocate for her extradition should the current third trial court convict her and her former boyfriend Raffaele Sollecito.
It is obviously in the best interests of Italy, the Kercher family, and Amanda and Raffaele for the witch trials end. But should they not, Amanda is not in danger of extradition. Tragically, Raffaele has no such protection.
Amanda Knox and Raffaele Sollecito were decisively exonerated (given a verdict of “innocent," a stronger vindication than “not guilty” under Italian law) in October 2011.
Under U.S. law, it’s over. Period. Or as the British say, “full stop.”
However, the Italians argue that this appeal of her innocent verdict has not triggered jeopardy a second time. This, they say, is because her case is simply winding its way through the “established Italian appeals process.” That it is winding it’s way through such a process may be true, but simply because something is an “established Italian process,” doesn’t make it legal in the U.S. or create a defense to U.S. laws. “Established legal procedures” in some countries include stoning, the cutting off of limbs, and double jeopardy.
Some who root for the Italians to imprison two innocents like to point out that the Italian Supreme Court allegedly "annulled" the decision of the appellate court which exonerated Knox and Sollecito. They can say what they want, call it what they want, but labels do not change the fact that the trial happened. And that is what matters. They may disagree with the court's findings, but they cannot pretend the trial didn't occur. The court might as well annul a rape and pretend that it didn't happen. (An judicial act which they have, tragically, gotten away with twice in the last five years.)
THE "DUCK TEST"
Poet James Whitcomb Riley coined a useful phrase at the turn of the 20th century. He observed wisely;
“When I see a bird that walks like a duck and swims like a duck and quacks like a duck, I call that bird a duck."
The current appeals trial of Knox and Sollecito in Florence is a second (illegal) trial under U.S. law because:
1. It follows an innocent verdict
2. It is rehearing evidence not related to procedural issues
3. It empaneled a new jury
4. The prosecutors will ask for an increased sentence
a. Second time in jeopardy for “life and limb”
The Italian argument (and that of some British Internet trolls) is that Knox's earlier conviction/exoneration have no permanent legal bearing because nothing in Italy is finalized until the terminal verdict of the Supreme Court.
Sounds like an interesting argument until you consider that after the first verdict, Amanda and Raffaele were held in prison for two years (in addition to the two they had already served). Sounds like the verdict held some legal weight separate from any appeal.
When Knox and Sollecito were exonerated on appeal, they were released. If the exoneration and innocent verdict were simply procedural pieces on the way to a final verdict, then their custodial status would not have changed. Their imprisonment then release is prima facie evidence that the verdicts of previous trials were valid in and of themselves. The fact that after release, Italy now attempts to put them back in prison is the absolute definition of double jeopardy. Jeopardy is risk. They were put under risk of prison in the first trial, lost their freedom, and were then released after being found innocent. Now, they are at risk of returning to prison. Second jeopardy--same alleged crime. This is not rocket science. But it is apparently beyond the comprehension of some Italian prosecutors and British Internet trolls.
Ironically, for double-jeopardy not to attach in this case, Knox would have had to remain in prison. Her release validates that the court's innocence decision was a final decision of at least one court—which could be (against all U.S. law) appealed.
The point that is apparently lost on so many is this: What might be legal to subject an American citizen to in Italy--will not necessarily be seen as legally valid once they are in the United States. While the U.S. will not interfere with "established Italian legal procedures" involving an American in Italy, when that same American returns home, it will adjudicate all matters relating to them in accordance with American law. Even if the case is an Italian case.
More succinctly: "When in Rome, do as the Romans do. But in America, you'll do it their way." The reason American double jeopardy laws were created were for situations exactly like this.
The Knox haters frequently assert that she has been “convicted” of murder and is appealing that “guilty” verdict. Such a statement is actually a helpful admission of the attachment of double jeopardy. For the Italian system not to violate double jeopardy, each and every lower-court decision would have to be called “provisional” and not result in any incarceration or punishment until the final verdict of the Supreme Court, or until the prosecutors gave up. The assertion of a "guilty" status is evidence of the opposite.
Happily, the chances of Amanda Knox being extradited to Italy (if corrupt Italian courts ultimately have their way) are zero. Or less. Even absent the double jeopardy problem, it is doubtful that a single piece of the prosecution’s imagined “evidence” would be admissible in U.S. federal courts, which would make extradition even more of a pipe dream. It's one thing to extradite after double jeopardy for a real crime, it's quite another to extradite the victim of a kangaroo court following double jeopardy.
Secondarily, once false or contrived evidence is entered by Italian prosecutors into U.S. court, they bear responsibility under U.S. civil authority for any misstatements, misrepresentations and/or actions they make/take. They (individually) and the Italian government would bear civil monetary liability for any damages incurred by Knox as a result. I suspect that there will be few volunteers among the Italian prosecutors to come to America.
It is a different story for Raffaele Sollecito. Raff is a fine, gentle, intelligent man who lived with my family for a short time. We consider him a close friend. He lived across the hall from my teenage daughter, and I had no fear for her safety. It is Raff who is in danger from the Italians, for in order to save face in their obsessive quest to convict the innocent, the prosecutors must ultimately imprison the one person who has no U.S. legal protections, which means once again, the Italians—no one else—will suffer at the hands of their government. would behoove the Italian judiciary to cut their losses and do justice at this point, while the chorus of embarrassing jeers is still at a manageable level. If the Italians push this point and bring their “evidence” and their legal system into a U.S. federal court for examination, nothing but national shame (and civil liability) will result. Their judicial "stock" will fall in value to frightening levels in the western world.
In the earlier soccer game analogy where the time can be extended by the home team, it’s possible that the other team will just keep scoring and further humiliate the home team. Sometimes it’s smart to take the first loss and walk away with dignity.
I asked you earlier to note the U.S. Supreme Court’s decision that ordered all U.S. states to provide at least the same protection against double jeopardy as does the federal government. It therefore implies that no definition of double jeopardy, domestic or foreign, is valid if it does not match the U.S. federal definition of double jeopardy. If that is the protection the Supreme Court requires of its own states, how much more will the Supreme Court provide protection for an innocent American against an overreaching, byzantine foreign prosecution. Even if Amanda Knox is convicted by a corrupt or incompetent Italian appellate court, and it is ratified by the quaint but archaic Italian Supreme Court, Amanda Knox will never be extradited, and will therefore never be a "fugitive," except in the mind of those who see demons in the flesh walking the streets of Perugia.
As we have said, double jeopardy protection in the U.S. Constitution is specifically designed to ensure that any jury can nullify the malicious prosecutions, judicial misconduct and egregious behavior by the police. The appellate court of Judge Hellman did just that in October, 2011. Sadly, the Italian Supreme Court appears bent on snuffing that very spark of nobility so bravely struck in Perugia just two years ago.