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Why US might send Amanda Knox back to Italy if she loses appeal

Mark Lennihan / AP

Amanda Knox prepares to leave the set following a television interview Friday in New York.

If Italy asks the United States to extradite Amanda Knox, the decision will probably come down to Secretary of State John Kerry — and legal experts say it would be difficult for him to refuse the request.

Knox, who was convicted for a second time by an Italian court on Thursday in the 2007 murder of her roommate, vowed to “fight this until the very end.” And Italy would probably wait until the appeals process plays out before asking the U.S. to expel her.

But Italy and the United States have an extradition treaty, and unless American authorities find clear evidence of a miscarriage of justice, legal experts say, it would be difficult for the U.S. to say no.

“She wasn’t clearly shafted,” said Alan Dershowitz, a professor of law at Harvard University. “There are many people in American prisons on less evidence.”

Winding legal road

Knox, 26, an American citizen, was convicted by an Italian court in 2009 in the murder of Meredith Kercher, a British student who was found dead in a pool of blood in the apartment she shared with Knox. Prosecutors said Kercher was killed in a sex game.

An appeals court in Italy threw out the conviction in 2011 after independent experts said DNA evidence had been contaminated by the police. Knox, who had spent four years in prison, returned to the United States.

The highest court in Italy later dismissed the acquittal because of “contradictions and inconsistencies.” Then, on Thursday, an Italian court convicted her again and sentenced her to 28 years and six months behind bars.

Kercher’s family is pushing for Knox to be returned to Italy. Her brother, Lyle, told reporters that it would be “strange” and would set “a difficult precedent” if she were not handed over.

Marie Harf, a State Department spokeswoman, said Friday that the department has followed the case closely, but she declined to address the prospect of extradition for Knox.

“The case is still working through the Italian legal system, so we don’t want to get ahead of that process,” she said.

Hurdles for extradition

An extradition request would go first to the U.S. State Department. It would review whether a treaty exists (it has since 1984), whether the crime is an extraditable offense (murder qualifies), and whether there are “any potential foreign policy problems.”

If the State Department decided that the request was proper, it would go to the Justice Department, which would check to see whether the request established probable cause that the American committed the crime — a relatively low bar to clear.

If the request cleared that hurdle, it would go to a federal judge, but the issue would be narrow: Did Italy follow all the rules and make a legitimate request? It wouldn’t be an opportunity to retry the case.

“You wouldn’t want to bet on a court intervening,” Julian Ku, a law professor at Hofstra University in New York who has been following the Knox case closely, said Friday in an interview.

If a judge failed to intervene, the extradition request would go back to the State Department and Kerry.

Double jeopardy?

Some legal analysts have said that Knox could cloak herself in the Fifth Amendment’s protection against double jeopardy, being tried again for a crime after an acquittal. But that protection wouldn’t apply to Knox, Ku wrote in a blog post.

For one thing, the treaty with Italy would block Knox’s extradition only if she had been prosecuted in the United States, he wrote. For another, double jeopardy wouldn’t apply because Knox was convicted, not acquitted, in the first round.

For the State Department, “The takeaway is it’d be a political decision, not a legal one,” Ku said.

Tricky decisions

Because extradition requests mix law and diplomacy, there are cases in which a country looks at the facts and simply declines to turn someone over.

In October 2012, to the great irritation of the United States, Britain declined to turn over a British man, Gary McKinnon, who was accused of one of the biggest hack attacks ever into U.S. military computers.

British authorities decided that he was depressed and suicidal and had other symptoms of Asperger syndrome, and that the suicide risk made extraditing him “incompatible with human rights,” as British Home Secretary Theresa May put it.

The appeal in Italy will probably take a year or more. But if Knox loses in the country’s highest court and Kerry green-lights extradition, the final step would be to Italy to send agents to the United States to join federal marshals in picking her up.

Dershowitz, the Harvard professor, said that he believes Knox will be extradited if she loses her appeal in Italy.

“The U.S. seeks extradition of more people than any country in the world,” he said. “We’re trying to get Snowden back and we’re not going to extradite someone convicted of murder?”

Catherine Chomiak and Claudio Lavanga of NBC News contributed to this report.