Continuation Part 10: Amanda Knox/Raffaele Sollecito

[Numbers]

Numbers,

Dr. Hampikian and Dr. Krane both made attempts to obtain the EDFs. The defense requests were turned aside no later than 2010. Forensic consulting corporation in the U.S. have standard discovery forms on their websites that include reference to these files. What information do you have about discovery in Italy?

None. The seems to be de facto NO right of discovery in criminal trials in Italy, based on what I observe in the series of trials of AK & RS. Either the judge refuses arbitrarily to ask the prosecution/police, or the prosecution/police simply refuse to provide needed potentially exculpatory information.

This seems a major violation of EConHR, Article 6, "equality of arms".

 

[Numbers]

It occurs to me that Italy has either misinterpreted the ECHR, or enacted a law that only prohibits part of what is prohibited by the ECHR. Italy's "new" law is an exclusionary rule that seems to apply to the statements of "accused persons" only, which is not the extent of what the ECHR applies to: the ECHR applies to the statements of "suspects" in addition to "accused persons". On the other hand, the ECHR law in this regard is not an exclusionary law, it simply provides that if you use the statement of a suspect denied counsel to convict the person, then you have violated the person's human rights.

Simply because the law exists in Italy does not mean that it is applied in all instances, even when objectively it should. IMO

 

[anglolawyer]

None. The seems to be de facto NO right of discovery in criminal trials in Italy, based on what I observe in the series of trials of AK & RS. Either the judge refuses arbitrarily to ask the prosecution/police, or the prosecution/police simply refuse to provide needed potentially exculpatory information.

This seems a major violation of EConHR, Article 6, "equality of arms".

And of the right to a fair trial.

 

[Numbers]

From roteoctober in IAF, about the issue of getting retrials after ECtHR judgments:

The {Italian Constitutional Court} 113/2011 solved the problem in the sense that while before that ruling a revision due to an ECHR ruling was in practice prevented by article 630 c.p.p., after that ruling it isn't so anymore.
Of course this is not like writing a new c.p.p. article explicitly detailing the steps of such a revision trial, however in Italian law there already are provisions for revision of trials and the abolition by ruling 113/2011 of the part of article 630 c.p.p. preventing an ECHR ruling to be considered as sufficient cause for a revision means that those same provisions can be applied in this case too.
This does not mean that all bureaucratic hindrances have dissolved or will magically dissolve, but now the path should be open.
Anyway, the Dorigo case itself shows that ultimately Italian Justice has to respect ECHR decisions and that one happened before the 113/2011 ruling.
____
Text in { } added.

 

[Diocletus]

None. The seems to be de facto NO right of discovery in criminal trials in Italy, based on what I observe in the series of trials of AK & RS. Either the judge refuses arbitrarily to ask the prosecution/police, or the prosecution/police simply refuse to provide needed potentially exculpatory information.

This seems a major violation of EConHR, Article 6, "equality of arms".

I believe that what happens is the prosecutor conducts an investigation and compiles a "file". The entire contents of the file must be turned over to the defense at the end of the investigation. One problem that can arise is that the prosecutor might be the kind of person who decides not to put unhelpful evidence in the file, and that would deprive the defense of exculpatory information. In addition, prosecutors in Italy seem to have taken it upon themselves to decide that lab data (EDFs) are not a part of the file, although they obviously maintain the right to access such files whenever they wish. In effect, lab files are available to the prosecution and not the defense, unless the courts are willing to grant access, which they were not in this case.

IMO, the lab data files have to be provided to the defense, particularly if a request as made as was done in this case.

 

[anglolawyer]

I believe that what happens is the prosecutor conducts an investigation and compiles a "file". The entire contents of the file must be turned over to the defense at the end of the investigation. One problem that can arise is that the prosecutor might be the kind of person who decides not to put unhelpful evidence in the file, and that would deprive the defense of exculpatory information. In addition, prosecutors in Italy seem to have taken it upon themselves to decide that lab data (EDFs) are not a part of the file, although they obviously maintain the right to access such files whenever they wish. In effect, lab files are available to the prosecution and not the defense, unless the courts are willing to grant access, which they were not in this case.

IMO, the lab data files have to be provided to the defense, particularly if a request as made as was done in this case.

There is a fiction that the investigating judge (Mignini) is somehow neutral which is so laughable, as if further proof were needed, that I expect Machiavelli to show up any minute and defend it with a completely straight face.

 

[carbonjam72]

There is a fiction that the investigating judge (Mignini) is somehow neutral which is so laughable, as if further proof were needed, that I expect Machiavelli to show up any minute and defend it with a completely straight face.

In 10 lifetimes, Mignini could not serve enough time in prison for his crazy criminal excesses in this case.

 

[Numbers]

I believe that what happens is the prosecutor conducts an investigation and compiles a "file". The entire contents of the file must be turned over to the defense at the end of the investigation. One problem that can arise is that the prosecutor might be the kind of person who decides not to put unhelpful evidence in the file, and that would deprive the defense of exculpatory information. In addition, prosecutors in Italy seem to have taken it upon themselves to decide that lab data (EDFs) are not a part of the file, although they obviously maintain the right to access such files whenever they wish. In effect, lab files are available to the prosecution and not the defense, unless the courts are willing to grant access, which they were not in this case.

IMO, the lab data files have to be provided to the defense, particularly if a request as made as was done in this case.

Apparently, that is the legalistic dodge used in Italy to prevent discovery of exculpatory information. It is IMO clearly unjust and contrary to principles of a fair trial as laid out in the EConventionHR and ECtHR case law.

 

[Numbers]

Oh you may very well be right. If you are it highlights another problem with their system - everybody is treading on egg shells trying not to accuse anybody else of lying. That is not a terribly good idea when deciding a murder charge. You really want everybody to be free to speak their mind without fear of adverse consequences. Surely, though, the defences only have to query their reliability, not their credibility, which would not entail an assault on their character. Whatever the case may be, if Nencini is saying what you suggest he might be then it stills seems a crappy reason for refusing a test which could dispose once for all of evidence which the ISC and Nencini both consider highly material.

We need to know more about this. Was such testing ever requested before? Maybe they are caught by the 'shucks, it's too late' rule. As Mach only recently told us, rules are everything

Yes - reliability should be verified. But of course, that includes examining the potential of misrepresentation (aka lying or sometimes, mistakes).

 

[Machiavelli]

Classic double bind.

If the defence does object, then Stefanoni has a cause for a further defamation action. If the defence does not object, then they are the ones responsible for it's destruction.

Where do I get a non-accountable job like Stefanoni's?

I guess the judge is talking about possible defence objections to the decision of Conti & Vecchiotti (not Stefanoni). That is their decision not to examine the bra clasp.
However, come on, turn away from hallucination and try make one step towards the track of rationality: there are no double binds; it is definitely possible to rise objections without committing defamation; actually even without alleging any fact at all, mostly even without expressing judgments or opinions.

 

[Machiavelli]

From roteoctober in IAF, about the issue of getting retrials after ECtHR judgments:

The {Italian Constitutional Court} 113/2011 solved the problem in the sense that while before that ruling a revision due to an ECHR ruling was in practice prevented by article 630 c.p.p., after that ruling it isn't so anymore.
Of course this is not like writing a new c.p.p. article explicitly detailing the steps of such a revision trial, however in Italian law there already are provisions for revision of trials and the abolition by ruling 113/2011 of the part of article 630 c.p.p. preventing an ECHR ruling to be considered as sufficient cause for a revision means that those same provisions can be applied in this case too.
This does not mean that all bureaucratic hindrances have dissolved or will magically dissolve, but now the path should be open.
Anyway, the Dorigo case itself shows that ultimately Italian Justice has to respect ECHR decisions and that one happened before the 113/2011 ruling.
____
Text in { } added.

It should be as well clear though, that the ECHR is no court of merits. It does NOT perform fact-finding activity.
It is actually not even a court of instance, I mean it does not even rule about the legitimacy of proceedings in terms of accuracy, consistency or respect of law and jurisprudence.
The ECHR only decides based on the findings of other courts as for all matters of facts.
This means the ECHR will never find out or rule on alleged facts such as that Knox was coerced or that she was slapped, unless such facts are findings already established by some court.

 

[Diocletus]

I guess the judge is talking about possible defence objections to the decision of Conti & Vecchiotti (not Stefanoni). That is their decision not to examine the bra clasp.
However, come on, turn away from hallucination and try make one step towards the track of rationality: there are no double binds; it is definitely possible to rise objections without committing defamation; actually even without alleging any fact at all, mostly even without expressing judgments or opinions.

The bra clasp profile should have been generated during an incidente probatorio, but it wasn't. It was secretly generated the following week.

 

[Diocletus]

It should be as well clear though, that the ECHR is no court of merits. It does NOT perform fact-finding activity.
It is actually not even a court of instance, I mean it does not even rule about the legitimacy of proceedings in terms of accuracy, consistency or respect of law and jurisprudence.
The ECHR only decides based on the findings of other courts as for all matters of facts.
This means the ECHR will never find out or rule on alleged facts such as that Knox was coerced or that she was slapped, unless such facts are findings already established by some court.

Right. They'll just do what they always do in such cases: they're going to say that Italy's failure to prove that it conducted an immediate, independent and full investigation of the alleged mistreatment is a violation of the ECHR.

 

[Machiavelli]

There is a fiction that the investigating judge (Mignini) is somehow neutral which is so laughable, as if further proof were needed, that I expect Machiavelli to show up any minute and defend it with a completely straight face.

Mignini was the Public Minister not the investigating judge. The investigating judge (GIP) was Claudia Matteini.

 

[Machiavelli]

The bra clasp profile should have been generated during an incidente probatorio, but it wasn't. It was secretly generated the following week.

Nothing was generated secretly. The profile extraction was open to defence consultants and judge and was part of the incidente probatorio too. Everything was public.

 

[Machiavelli]

Right. They'll just do what they always do in such cases: they're going to say that Italy's failure to prove that it conducted an immediate, independent and full investigation of the alleged mistreatment is a violation of the ECHR.

ridiculous. "failure"... Please... There was not even a complaint! Did you know, the law does not even allow a criminal investigation on a beating without a victim's complaint? This is not a charge that can be investigated without a legal initiative from the victim.
On the other hand, you should think about what kind of failure on the part of defence it would be, if they had information about an abuse on their client and they didn't file a formal complaint. Lawyers are disbarred when they perform such legal failures ang they ignore their clients rights like that.

 

[anglolawyer]

It should be as well clear though, that the ECHR is no court of merits. It does NOT perform fact-finding activity.
It is actually not even a court of instance, I mean it does not even rule about the legitimacy of proceedings in terms of accuracy, consistency or respect of law and jurisprudence.
The ECHR only decides based on the findings of other courts as for all matters of facts.
This means the ECHR will never find out or rule on alleged facts such as that Knox was coerced or that she was slapped, unless such facts are findings already established by some court.

Is it necessary to find, one way or the other, whether she was struck in order to determine whether she received a fair trial? She was a suspect (the ECHR will not be interested in your purely formal point that Mignini had yet to draw up the right papers, even if there something in it, which I doubt) in connection with an extremely serious crime. She was particularly vulnerable, not being a hardened criminal or an Italian speaker. The material obtained from her was unfairly used to prejudice public and judicial opinion and was was introduced to the Massei tribunal by way of those rules you consider paramount but which the ECHR may well regard as unfair. Nor will the court will derive any assistance from the records customarily found when the police interrogate a suspect because none exist.

I agree the European Court will not strive to work out what happened in the interrogation. It's hardly necessary anyway. The calunnia conviction must be annulled as being fatally and fundamentally tainted by irregularity and once that goes, the significant role played by that conviction on the murder conviction must, at the very least, call the latter into serious question too.

 

[Diocletus]

ridiculous. "failure"... Please... There was not even a complaint! Did you know, the law does not even allow a criminal investigation on a beating without a victim's complaint? This is not a charge that can be investigated without a legal initiative from the victim.
On the other hand, you should think about what kind of failure on the part of defence it would be, if they had information about an abuse on their client and they didn't file a formal complaint. Lawyers are disbarred when they perform such legal failures ang they ignore their clients rights like that.

There is no requirement under the ECHR that a collateral complaint process be initiated. It is sufficient to raise the abuse claim as a defense to the charges, as Knox's defense in fact did. This happens all the time in ECtHR cases.

 

[Diocletus]

Nothing was generated secretly. The profile extraction was open to defence consultants and judge and was part of the incidente probatorio too. Everything was public.

Nope. It was secret. See Item No. 5 on this page.

 

[Diocletus]

Nor will the court will derive any assistance from the records customarily found when the police interrogate a suspect because none exist.

Well, some things exist. There are two signed statements that do not acknowledge any awareness of the right to counsel and omit any waiver of the right to counsel. One of them says that she was hit on the head (albeit allegedly by herself, per Ficarra). There is also a contemporaneous Memoriale in which she immediately reports that she was hit.

That's actually better than many cases.