Continuation Part Eight: Discussion of the Amanda Knox/Raffaele Sollecito case

[Diocletus]

Thank you Katy. Key information. I can add another to my list of reasons why nobody asked for the 'EDFs' - namely that they did but they used language the judge might be expected to understand. It's easy to forget how much time it takes to absorb some of the jargon we bandy about here. Try teaching the ropes to a newbie judge in a court hearing. It's not easy.

Indeed, I believe that Bongiorno in her court filings calls them "log files".

 

[Diocletus]

Sure, maybe there is reason why the "missing" EDF's matter. But why didn't Bongiorno even mention the missing EDF's in her address to Nencini?

Are you referring to her closing arguments? The ones where she's supposed to argue "you should find my client innocent because of X, Y and Z"?

If so, I can tell you that X, Y and Z aren't going to include "because you screwed up and didn't order up the EDFs".

The request for the EDFs, if repeated to Nencini, would have been included in the 20 or 30 written issues raised by the defense in their pre-appeal filings. That's what we need to find if we are going to have any kind of an informed discussion on this issue. I happen to think that you will find that request in there, because it is one of a major issue before Massei. But, I don't have access to the pre-appeal filings, so I can't state that definitively.

 

[Kestrel]

Indeed. Also incredible (as in, incredibly good) that the Italian media is now running with this stuff. Unlike the recent crap about the moustachioed Amanda, this is actually relevant.

Oggi has run several good articles on the case over the years.

 

[Diocletus]

[*]The chilling effect of Italian law - unlike my jurisdiction, lawyers in Italy do not enjoy immunity from suit for things said in court. Try framing an application for the EDFs which does not involve an imputation of fraud. Not only does Italy not have a Brady rule it's not even clear that judges can override prosecution decisions on disclosure (see Comodi's statement and Hellman's seeming helplessness in the face of stubborn obstruction and game-playing over the e-grams)

I believe that they do have something like a Brady law. I think that CPP 415 requires the prosecutor to deposit all of the investigatory materials with the court/clerk upon filing charges. I'm sure that there are vagaries to what this law requires and how it is applied, but that's my general understanding.

Problem is, it does not seem to be the practice that lab data is included within what is deposited.

My impression, frankly, is that Italian defense lawyers aren't really on to this lab data issue yet, and such data is never deposited in the ordinary course. I think that that has fostered an atmosphere where prosecutors and lab technicians assume that they are entitled to keep such data secret. This, in turn, has removed an important check on the proper functioning of Italian forensics labs, hence, the terrible practices and repeated contamination of Stef's lab.

 

[anglolawyer]

I believe that they do have something like a Brady law. I think that CPP 415 requires the prosecutor to deposit all of the investigatory materials with the court/clerk upon filing charges. I'm sure that there are vagaries to what this law requires and how it is applied, but that's my general understanding.

Problem is, it does not seem to be the practice that lab data is included within what is deposited.

My impression, frankly, is that Italian defense lawyers aren't really on to this lab data issue yet, and such data is never deposited in the ordinary course. I think that that has fostered an atmosphere where prosecutors and lab technicians assume that they are entitled to keep such data secret. This, in turn, has removed an important check on the proper functioning of Italian forensics labs, hence, the terrible practices and repeated contamination of Stef's lab.

Thanks. I imagine there is also plenty of scope for argument about what 'investigatory materials' actually comprise.

ETA to make it completely clear what we are talking about, compare these exchanges:

Italy

The defence: we wish to see the EDFs
The prosecution: why?
The defence: we suspect corruption
The prosecution: you are going to jail

England and Wales, the US and probably the entire common law world (maybe not Canada, actually - LashL would know)

The defence: we wish to see the EDFs
The prosecution: why?
The defence: None of your damn business
The court: good enough, disclosure so ordered

In fact, it does;t even get this far here as 'unused material' is routinely made available without application to the court. It is a matter for shame that this extremely important safeguard against injustice has been eroded by the simple, and quite possibly unlawful, means of withdrawing public funding for the review of such material.

 

[anglolawyer]

I think she also mentioned the six day gap and why this isn't meaningful because some of the testing dates for parts of the process were missing, e.g. the amplification dates or something of that sort. She said the SAL cards only contain scarce information. Wish I could remember in more detail but in any case, that issue was definitely addressed too.

Griffinmill is right though that neither Andrea nor Barbie tweeted a single word of this. To be fair I may be doing Barbie a disservice as I think she did tweet something about the lawyer's outfit or haircut or something.

Correct. I turned up an intervention from Dalla Vedova (I think) about this same point - the missing dates of the amplifications - in one of the Hellman transcripts. The other side claims there was a 6 day gap before the knife was tested and that there cannot have been any contamination. Aside from Diocletus's point that the machines don't know anything about gaps and that if contaminated when shut down they will still be when operated again, there is the fact that amplifications of other genetic material of the victim may have occurred in this period. Why is the date a secret?

The fact that it is allows us to infer that the defence was not present during amplification which negates Mach's point about Italian safeguards even if they were an adequate substitute for proper and full disclosure anyway, which they are not.

 

[Chris_Halkides]

paper copies of the egrams and negative controls are not very helpful

Can you expand/explain the highlighted part please?

I originally wrote that paper copies or pdf files of the images would be nowhere near as useful, an idea that I discussed with respect to the CSC's report. Dr. Mehul Anjaria wrote, "DNA analysts import ‘raw’ data from capillary electrophoresis instruments into software that assists in evaluating the DNA profiles. The DNA analyst can review peaks by zooming in and looking at height, morphology, and location to assist in determining if they should be reported as DNA alleles. The printed data can be edited by the analyst to show only the peaks being reported. Thus, it is imperative that a reviewer have access to the raw data and be able to independently evaluate the raw data in the necessary software to determine if the reported alleles are consistent with the actual data. The laboratory’s interpretation guidelines are another necessity for the review."

Negative controls are runs in which template DNA is deliberately left out. A good way to determine whether or not global contamination occurred is to examine the negative controls in the form of electronic data files, because if any DNA shows up, it must be from contamination. Among the reasons why examination of negative controls should be done using the electronic data files (EDFs), which are the raw data used to construct electropherograms is that this allows the scientist to zoom in on small peaks. Given the smallness of some of the peaks in the bra clasp profile and of all of the peaks in the knife profile, negative controls in the form of paper copies in which the y-scale were set to two thousand RFUs for example, would be almost useless (because you wouldn't see such small peaks in any detail even if you saw them at all). Even if one accepts the dubious notion that the defense bears the burden of proving contamination, then it is indefensible to prevent the defense from having access to any and all documentation that bears on this possibility, including but not limited to having the EDFs: It is also essential for the defense to examine the laboratory protocols, instrument logs, contamination logs and corrective action files. Professor William Thompson noted, “Under a guideline issued by the FBI’s DNA Advisory Board in 1998, forensic DNA laboratories are required to “follow procedures for corrective action whenever proficiency testing discrepancies and/or casework errors are detected” and “shall maintain documentation for the corrective action.[19]”

 

[Chris_Halkides]

ABA standards of DNA evidence

I believe that they do have something like a Brady law. I think that CPP 415 requires the prosecutor to deposit all of the investigatory materials with the court/clerk upon filing charges. I'm sure that there are vagaries to what this law requires and how it is applied, but that's my general understanding.

Problem is, it does not seem to be the practice that lab data is included within what is deposited.

My impression, frankly, is that Italian defense lawyers aren't really on to this lab data issue yet, and such data is never deposited in the ordinary course. I think that that has fostered an atmosphere where prosecutors and lab technicians assume that they are entitled to keep such data secret. This, in turn, has removed an important check on the proper functioning of Italian forensics labs, hence, the terrible practices and repeated contamination of Stef's lab.

I agree on all points, but I would like to add two things. One is that Brady doesn't go far enough. Some states have open discovery laws that give prosecutors less discretion about what to release. Two is that the ABA thought through DNA very carefully IMO, and their model rules explicitly call for release of the underlying data. The disclosure section reads in part:

(vii) the chain of custody documents specified in Standard 2.5;

(viii) all raw electronic data produced during testing;

(ix) reports of laboratory contamination and other laboratory problems affecting testing procedures or results relevant to the evaluation of the procedures and test results obtained in the case and corrective actions taken in response; and

(x) a list of collected items that there is reason to believe contained DNA evidence but have been destroyed or lost, or have otherwise become unavailable;

(xi) material or information within the prosecutor’s possession or control, including laboratory information or material, that would tend to negate the guilt of the defendant or reduce the punishment of the defendant.

 

[Chris_Halkides]

American Bar Association and DNA evidence

An EDF can be altered when you hack into the computer. You can't consider them to be evidence.

Then why do the ABA standards of DNA evidence explicitly call for their release?

 

[Chris_Halkides]

terminology used by the lawyers might be different

Your previous answer does not explain why Bongiorno does not address missing EDF files in her address to the Nencini court. That is what I'm asking.

griffinmill,

Let me rephrase my previous answer. We know how little attention the courts have given to discovery. Therefore, as a matter of strategy, it might not make sense tactically to raise this argument, despite its undisputed merit. In addition, anglolawyer's point, that one can get into trouble by implying malfeasance (or perhaps even incompetence) on the part of the authorities might mean that there is no way to turn this issue into a winning legal argument. Finally, the commenters here who have noted that the lawyers' terminology might be different from ours is very well taken. Amanda herself doesn't use the term "raw data" correctly IMO.

 

[anglolawyer]

I originally wrote that paper copies or pdf files of the images would be nowhere near as useful, an idea that I discussed with respect to the CSC's report. Dr. Mehul Anjaria wrote, "DNA analysts import ‘raw’ data from capillary electrophoresis instruments into software that assists in evaluating the DNA profiles. The DNA analyst can review peaks by zooming in and looking at height, morphology, and location to assist in determining if they should be reported as DNA alleles. The printed data can be edited by the analyst to show only the peaks being reported. Thus, it is imperative that a reviewer have access to the raw data and be able to independently evaluate the raw data in the necessary software to determine if the reported alleles are consistent with the actual data. The laboratory’s interpretation guidelines are another necessity for the review."

Negative controls are runs in which template DNA is deliberately left out. A good way to determine whether or not global contamination occurred is to examine the negative controls in the form of electronic data files, because if any DNA shows up, it must be from contamination. Among the reasons why examination of negative controls should be done using the electronic data files (EDFs), which are the raw data used to construct electropherograms is that this allows the scientist to zoom in on small peaks. Given the smallness of some of the peaks in the bra clasp profile and of all of the peaks in the knife profile, negative controls in the form of paper copies in which the y-scale were set to two thousand RFUs for example, would be almost useless (because you wouldn't see such small peaks in any detail even if you saw them at all). Even if one accepts the dubious notion that the defense bears the burden of proving contamination, then it is indefensible to prevent the defense from having access to any and all documentation that bears on this possibility, including but not limited to having the EDFs: It is also essential for the defense to examine the laboratory protocols, instrument logs, contamination logs and corrective action files. Professor William Thompson noted, “Under a guideline issued by the FBI’s DNA Advisory Board in 1998, forensic DNA laboratories are required to “follow procedures for corrective action whenever proficiency testing discrepancies and/or casework errors are detected” and “shall maintain documentation for the corrective action.[19]”

Thanks Chris. Got it.

 

[analemma]

Now Rudy Guede is releasing a statement that AK and RS should Admit their part in the Murder.
http://www.tusciaweb.eu/2014/05/rudy-guede-innocente/

 

[Bill Williams]

An EDF can be altered when you hack into the computer. You can't consider them to be evidence.

If this is true, then you cannot consider DNA evidence to be reliable at all....

 

[js202]

Now Rudy Guede is releasing a statement that AK and RS should Admit their part in the Murder.
http://www.tusciaweb.eu/2014/05/rudy-guede-innocente/

He is a sociopath.

 

[anglolawyer]

Finally a time line at dot org that makes complete sense, although this bit has me puzzled:

10:00- 10:15 Fight continues. Kercher is raped by Guede, who is instigated by Knox. Then the trio wrap Kercher in bedsheet and duvet and somehow immobolize her without ropes. They lock her in her room. … 11:20-11:30 Trio enter cottage to try and kidnap Kercher in Sollecito's car, to kill her elsewhere. She fights under knifepoint, is stabbed by Sollecito, screams and is stabbed/killed by Knox. Capezzali and Monacchia hears the fight and scream.

So that's how they did it! Of course! I have a question though - how did she put up a fight when immobilised? (without ropes, because ropes would leave marks but actually, no they wouldn't, not if you had some padding. Therefore they had padding. But Curatolo didn't see any padding. Therefore they had already stored the padding and the ropes somewhere. Maybe in Raf's car. But Curatolo didn't say Raff was driving his car. OK, they hired someone to drive the car to drop off the ropes and the padding. Kokomani maybe. It all fits ....)

As far as I can see, nobody there has actually laughed out loud yet.

 

[Diocletus]

Here's an interesting write -up by some folks who purport to know Italian law:

(a) Article 191, dealing with “evidence improperly acquired”, states that “evidence acquired in breach of the prohibitions laid down by law shall not be admissible” and also states that “inadmissibility may also be established proprio motu at any stage and level of proceedings”. Consequently, when the law lays down specific methods for collecting evidence or investigative materials that may be used as evidence in a hearing (for instance one-off activities), the court cannot base its decision on such evidence or materials if these formalities have been contravened.

(b) Disclosure takes place in two stages. The public prosecutor, at the time of the application for court referral, lodges the file containing the notice of offence, documentation in relation to the investigations carried out and the records of court proceedings in connection with preliminary investigations with the court chancery. The material evidence and matters connected with the offence are attached to the file, when they do not have to be kept elsewhere (Article 416 CCP). The public prosecutor – at the time of the application for court referral – will already, moreover, have made a first disclosure in line with a regulation introduced recently (1999) under which he must, once inquiries are complete, notify the suspect (when he does not intend to request that no further action be taken) of such completion, advising him that the materials collected are lodged with his own secretariat (Article 415 bis CCP).

No investigative measures are exempt from disclosure, apart from those covered by police confidentiality in respect of police informants, whose evidence is gathered informally and is not recorded. The information that they give cannot, however, be used for any decision-making purposes or in the course of investigations (for instance to provide the grounds for remand measures or mail or telephone interception) or as evidence in hearings.

(c) See Article 143(2) CCP, as mentioned above. As regards the time limits within which defendants must receive procedural documents in a language which they understand, the relative provisions are the same as the ordinary provisions of the Code of Criminal Procedure on compliance with the time limits for each individual procedural document that such provisions cover.

 

[anglolawyer]

Here's an interesting write -up by some folks who purport to know Italian law:

Plenty of wiggle room in that.

 

[Diocletus]

Plenty of wiggle room in that.

Yeah, among other things, the whole concept seems to apply just to whatever the prosecutor has collected in his dossier. So, if the prosecution decides that the police perhaps have things that he doesn't want to have in his dossier, well, he just doesn't obtain it.

Recipe for fraud if you ask me.

 

[Anode]

I'll bet a all the money in my pocket that by now, the EDFs have been destroyed just like a lot of the other evidence.

They will apologize and say it couldn't be avoided. Alpha particle are strong in Perugia you know...

Seriously though, I would not be surprised.

(I only have $20 in my pocket...)

 

[Bill Williams]

I'll bet a all the money in my pocket that by now, the EDFs have been destroyed just like a lot of the other evidence.

They will apologize and say it couldn't be avoided. Alpha particle are strong in Perugia you know...

Seriously though, I would not be surprised.

(I only have $20 in my pocket...)

They were stored with the bra-clasp. Then again, like the interrogation videos, Stefanoni probably forgot to press the "on" switch to produce the EDFs.