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European edition, Sunday, August 19, 2007

U.S. servicemembers who run afoul of the law in Italy rarely appear in Italian courtrooms. And it’s even more unusual for them to do time in the country’s prisons.

Military legal experts say that doesn’t mean American troops don’t occasionally commit crimes, or that they’re exempt from Italian laws.

The status of forces agreement between the two countries allows the U.S. to assert primary jurisdiction to try some cases and make requests to Italy to waive its jurisdiction in others. But even when Italy decides to retain jurisdiction and bring a case to trial, U.S. servicemembers rarely appear.

“In a lot of our trials where the Italians maintain jurisdiction, the soldiers are tried in absentia,” said Col. Jeffrey McKitrick, former staff judge advocate at Caserma Ederle in an interview before transferring to the States this summer. “The soldier never goes to court, and the court never sees the soldier.”

Italian proceedings tend to take longer than their counterparts’ in the U.S. — civilian or military. In most cases, the accused servicemember has left the country — and sometimes the service — before the trial begins.

“The Army has a real difficult time keeping a soldier in place for a trial that is going to be strung out for five or six years,” McKitrick said, echoing comments from the other services.

Because of prison overcrowding, those found guilty of many minor crimes in Italy and sentenced to three years or less generally have their time waived.

“A majority of our cases are what would be in the United States considered misdemeanors or borderline felonies,” McKitrick said.

So they fall in the three-years-or-less category.

Currently, there are no active-duty airmen, soldiers, sailors or Marines serving time in Italian prisons.

There are U.S. servicemembers formerly based in Italy who are serving time at the U.S. military’s detention facility in Mannheim, Germany. More have been kicked out of the military as part of their sentencing by military courts.

The Air Force always seeks the right to try its members, according to Lt. Col. Douglas Cordova, former staff judge advocate at Aviano Air Base.

“We actively seek jurisdiction in every case,” said Cordova, who has also returned to the States after being interviewed earlier this summer. “We want to maximize our commanders’ authority to deal with their folks.”

He said there were 33 active cases in his office’s computers — the only statistics the base has. Italy had declined to waive jurisdiction on six of those. Fifteen cases were pending.

Asked if the Air Force made such requests automatically because of concerns about the fairness of the Italian legal system, Cordova responded: “Absolutely not.”

A senior member of the Navy’s legal office in Naples, who would grant an interview only on the condition of anonymity, said Italy had declined eight of the 41 requests the Navy had made in recent years.

“If it’s reasonable to do so, we request jurisdiction in just about every case,” he said.

McKitrick said the Army looks at each case before deciding to ask for a waiver. Part of the process is gauging how willing the local prosecutor is to grant such a request, and part is based on how much evidence there is, he said.

McKitrick said in cases where Army prosecutors don’t feel there’s enough evidence to convict someone in the military system, it would be “highly likely” to let the process play out in the Italian system.

Getting jurisdiction for such a case, especially if it has received wide media attention, could backfire, he said.

“If we take a case like that and it would fall flat, that would come back at us,” he said.

When the Army has made such requests, it has taken Italian authorities an average of 135 days to decide on jurisdiction, he said. During that time, the case is essentially put on hold. The military can’t proceed with a court-martial either until it knows it has jurisdiction.

All those interviewed said politics doesn’t appear to play a role in whether the Italians decide to prosecute or waive jurisdiction in a case.

“It’s purely criminal issues,” McKitrick said. “Did the person commit the crime or not?”

They also expressed confidence in the Italian judicial system.

“I have no reason to question the fairness of the system,” Cordova said.

“The systems are different,” the lawyer from Naples said. “I wouldn’t say one is better or worse than the other.”

McKitrick said he thinks the U.S. military has harsher sentences much of the time.

“Most soldiers would probably prefer to be tried in Italian court because we tend to be tougher on them,” he said.

Kent has filled numerous roles at Stars and Stripes including: copy editor, news editor, desk editor, reporter/photographer, web editor and overseas sports editor. Based at Aviano Air Base, Italy, he’s been TDY to countries such as Afghanistan Iraq, Kosovo and Bosnia. Born in California, he’s a 1988 graduate of Humboldt State University and has been a journalist for almost 38 years.
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