Saturday, February 01, 2014

Amanda Knox: Better Off

Jason Mazzone

Amanda Knox is back in our news along with plenty of renewed criticism of the Italian criminal justice system. At the heart of this criticism—and of the arguments against ever extraditing Knox—is that the Italian system is inferior to that of the United States. In particular, the claim goes, there is insufficient evidence against Knox to sustain a conviction and the entire process amounts to what would be a double jeopardy violation under our Constitution. Italians tend to find these criticisms strange. From their perspective, Knox, a young white American woman with access to seemingly unlimited resources, has, if anything, received stronger than usual protections—and so there is nothing surprising or disturbing about the ultimate outcome. This reaction doesn’t, of course, get far in persuading the critics.

But here is another way to think about the issue: how would Knox have fared if the relevant crimes had occurred not in Italy but in the United States and she had been prosecuted instead in an American court?

Under those circumstances, the most likely place Knox would be today is in prison serving a lengthy sentence. This is because, as is true of the vast majority of criminal defendants facing trial, Knox would have pled guilty pursuant to a plea bargain—in exchange for a reduced sentence or dropped charges or some combination of both. As it is, Knox might well never spend another day in prison and certainly she will not be in a cell anytime soon. From that measure, the Italian criminal justice system probably serves Knox better than would that of the United States.

Three things help explain this assessment. First, plea-bargaining is very limited in Italy: plea-bargaining is unavailable if, as in a murder prosecution, the ultimate sentence exceeds five years incarceration; there is also no charge bargaining. Unlike most convicted defendants in the United States, Knox really did have her day in court. Second, the Italian system provides for multiple levels of de novo review of the facts. This, too, has worked to Knox’s benefit. At trial in the first instance, Knox was convicted (her supporters tend to forget that fact)—with that outcome overturned at the next level. Had Knox been convicted at trial in the United States, appellate review would have been considerably more limited: the odds of a guilty verdict being overturned on evidentiary grounds are exceedingly slim. Third, a jury trial in the United States would not have produced the careful written explanation for the verdict that Knox has available to her to argue error.

In sum, the criticisms now made about the evidentiary record in the case and the assertions of double jeopardy problems make for nice sound bites but they actually reflect strengths of the Italian system—ones that have given (and give) Knox a better chance of going free than she would ever have at home.


I don't know about that, but her US trial might have raised some interesting Batson issues after the prosecutor struck all the men from the jury.

mls's comment avoids the power of Prof. Mazzone's comment. The US system of "criminal justice" relies on what Prof. John Langbein identified as an almost uniquely American form of torture, which is the use of highly coercive plea bargaining to force individuals to waive their purported right to a jury trial (and much else) in return for prosecutorial willingness to reduce charges or accept less than maximum punishment (which, almost by definition, the prosecutor does not believe serves the public interest, else it would be scandalous to reduce the charges or accept less than maximal punishment).

The only disagreement I have with Prof. Mazzone is that it's altogether possible that Ms. Knox would have had the resources to resist plea bargaining and go to trial, and it's certainly not hard to imagine that at least one or two of the jurors (including males) might have bought her (possibly true, who knows?) story and, at the least, hung the jury sufficient times to induce the prosecutor to give up.


It's a very powerful comparison, but it focuses in on the adjudication phase.

I think the implicit critique is that it never would have gotten that far in the US with such weak evidence.

However, this latter critique is also flawed. Plenty of murder trials have been brought all of the US with far worse evidence, the nub of the contention is that such a case wouldn't have been brought against a wealthy, attractive, white young woman. When put like that it sounds rather like a feature rather than a bug.

@ Sandy Levinson

If the defendant, represented by competent counsel, has full knowledge of the strength of the prosecutor's case against him, how can you characterize his decision to plead guilty to a lesser crime as being "coerced" and "forced"?

It may be tough decision, especially if the consequence of an unfavorable verdict would be a significant sentence. But it is hyperbole to use terms such as "coerced" and "forced" to describe this act of free will.

If the defendant, represented by competent counsel

This assumption restricts defendants to those who can afford competent counsel. As you may know, a very large number of defendants are only able to retain overworked, underpaid public defenders who have neither the time nor the resources to mount more than a plea bargain.

Be more specifically a "J.E.B." (v. Alabama) issue, since that case applied Batson in the sex context.

She was a young white woman who seems to have the means for good representation. From what I can tell, the prosecution had little grounds. It is far from clear that she actually would have be convicted or pled to something when going by many reports, she (unlike most who plea) didn't actually do it. The prosecutor involved is much the character.

She also wouldn't have been convicted of criminal slander, which she was there, since that sort of thing really isn't done here even when it is technically possible.

So, I'm all for cynical statements of the criminal justice system here, but sorry, like most cute young white girl crime stories, this is not very representative.

The other factor absent from pvine's comment is the practice of overcharging combined with the erratic nature of juries. I think jurors take their duties very seriously, and on average they do a good job. But there are times when they make mistakes, and the consequences of those mistakes are really serious in case of a murder charge. The question is whether a defendant can afford to take the chance.

@ Larry

Actually, experienced public defenders (PD) are some of the best trial attorneys available. And when it comes to serious crimes, these PDs will give the government a run for its money. For example, Tsarnaev has one of the best (if not the best) capital crime defense attorneys in the country defending him -- PD Judy Clarke.

The perception that PDs are simply dump trucks who plead their clients out to lesser crimes (that they allegedly didn't commit) in order to avoid going to trial is inaccurate.

@ Mark

1. What evidence do you have that prosecutors have a "practice of overcharging"?

2. What evidence do you have that jurors are more erratic, or make more mistakes, than the average human being?

3. Defendants are always taking a chance when they turn down a plea bargain to a lesser crime and demand a trial. But, contrary to Sandy's over-the-top comment, this decision is not the result of "coercion" on the part of the government. It is a consequence of their decision to commit a crime in the first place.

Judy Clarke is not exactly a typical case -- if you are a 'celebrity' defendant, yes, even if you have appointed counsel, you can do well. PDs can be quite skilled. It depends on the situation and locality. Capital representation is quite mixed in that regard.

Mark Field cites the bottom line too -- the system as a whole "coerces" -- it very well might be the best bet to plea. But, like many hard choices, to say it is made w/o coercion is unrealistic.

@ Joe

I can tell from your comments on this blog, as well as other blogs, that you are a very intelligent, insightful and thoughtful person. But your assertion that "the system as a whole 'coerces'" a defendant into pleading guilty to a lesser crime is, like Sandy's, a simplistic overstatement based upon a misunderstanding of what constitutes coercion.

"Coercion" is defined as the practice of forcing someone to do something by using force or threats. Hard to see how the SCOTUS would permit plea bargaining to constitutionally occur if your view of "the system" was a reality.

And, yes, some PDs are competent and some are not. As is the case with retained counsel. Are you suggesting that a greater percentage of retained counsel are competent compared to PDs. If that is your argument, where is your proof?


1. I practice law. I see the system in operation.

2. Jurors aren't more likely to make mistakes; they're a reasonable cross-section of the population. The fact is, though, that they do make mistakes and if you're up for murder, you can't afford that no matter that your lawyer thinks you have a strong case.

3. I think you're using a stricter definition of "coercion" than the rest of us.

@ Mark

1. Ditto. Over 30 years. Criminal trials & appeals.

Defense counsel believe that prosecutors always (or almost always) overcharge. Prosecutors believe that they properly charge. And if overcharging is as rampant as you suggest, there would be many more not guilty verdicts and/or dismissed cases. Not the case.

2. So your argument is that defendants charged with murder or other serious crimes will always (or almost always) feel "coerced" into pleading to a lesser crime, even if their competent attorney believes the case against them is weak, because jurors sometimes make mistakes. This hasn't been my experience. And there is no empirical evidence that I am aware of that supports your theory.

3. "Coercion" has a clear definition involving the use of force and/or threats. The use of that term (by Sandy and others) to describe the internal pressure that a criminal defendant feels when he has to decide whether or not to accept a plea bargain or go to trial was wrong and simply designed to evoke an irrational emotional reaction by the reader.

1. There's rarely a penalty for overcharging because (a) plea bargains are so common; and (b) the defendant can be convicted of a lesser charge anyway.

2. Impasse.

3. I'm aware that "coercion" has a technical meaning, and I doubt it applies here. I think everyone else is using it more colloquially. I also think that broader use is fair because the context is whether justice is being done. YMMV, obviously.

Any inference as to comparing the two types of counsel to me is not warranted by an objective reading of my comment. It means what it says.

As to "coercion," it is a bit tedious to have you preach to a law professor and a long time advocate like Mark Field about what a common word means. Both know that. You are just using it more strictly.

The USSC allows various things to go on that are questionable. Courts are loathe to look behind pleas. An attempt to recognize some review was appropriate was barely upheld 5-4 recently. Also, MF didn't say "always" pleas are coerced. Finally, really, you want "evidence" that prosecutors at least sometimes overcharge?

Anyway, if you want to use that definition for "coercion," it would apply. The prosecutor is "threatening" to apply a much greater punishment if the person goes to trial. That is a major reason for pleas -- if there was no quid pro quo, no "coercion" of any kind, how would that side have leverage?

I appreciate the compliment but my "argument" holds.

I advise reading John Langbein's classic article on Torture and Plea Bargaining, Langbein is usually not thought to be a soft-hearted liberal.

I think that anyone who denies that prosecutors regularly overcharge in an effort to elicit guilty pleas (otherwise, why would most defendants plead guilty if they weren't told by their attorneys that the risks of going to trial are simply too high?) is, with respect, grievously mistaken.

Perhaps federal prosecutors are better than state prosecutors (in Texas, for example. given that the latter are elected and therefore must pander to public opinion), but given some well-known episodes of overcharging (recall Aaron Schwartz in Boston or, for that matter, John Walker Lindh), I wonder, not to mention the druggies who clutter up the federal (as well as state) prisons.


All very interesting but does anyone have a view on the merits of the case? What would a US jury have done with the same evidence?

U.S. prosecutor might very well have chosen to vacate the whole thing. The evidence against Knox and the ex boyfriend seems non-existent but for her "confession" coerced via an interrogation which may have amounted to psychological torture and seems by itself to have violated her constitutional rights. She wasn't given access to counsel, wasn't given access even to a phone call, wasn't allowed to sleep, was lied to repeatedly, smacked in the head, on top of which she knew precious little Italian at the time and most of the questioning was done in a mangled English / Italian mix. No physical evidence, badly mishandled crime scene, on and on and on. The Italian courts evidently don't like pretty young American women who are open about being sexually active -- not "deviant"! She has character witnesses lined up around the block. U.S. prosecutors probably would never have brought charges in the first place.

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pvine: "If the defendant, represented by competent counsel"

Larry Koenigsberg "This assumption restricts defendants to those who can afford competent counsel. As you may know, a very large number of defendants are only able to retain overworked, underpaid public defenders who have neither the time nor the resources to mount more than a plea bargain."

And the whole point of overcharging is to put the defendant in a near 'life or death' situation. The defendant has to risk being put in prison for 20 years or more, possibly for life.

If somebody says to give them your money or they'll shoot at you, you're probably not going to quesion their marksmanship.

pvine said...

" 1. Ditto. Over 30 years. Criminal trials & appeals.

Defense counsel believe that prosecutors always (or almost always) overcharge. Prosecutors believe that they properly charge. And if overcharging is as rampant as you suggest, there would be many more not guilty verdicts and/or dismissed cases."

This is really, really wrong, and frankly casts doubt on your other arguments.

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