Continuation Part 11: Amanda Knox/Raffaele Sollecito

[Numbers]

It's time again for the well-loved remedial ECHR law course. Today's topic is:

CASE OF PAKSHAYEV v. RUSSIA 1377/04 13/03/2014

Also known as "We have ways to make you talk." But the ECtHR is not amused by them.

On 2 May 1997 the 23-year-old applicant was arrested on suspicion of murder. He was given a written note explaining that he could not be obliged to give evidence against himself, his spouse or close relative and that he was entitled to legal assistance from the moment that the arrest record or the detention order was read out to him. He signed the explanatory note and asked for legal assistance.

At 6.30 p.m. on the same day the applicant was questioned. He was not assisted by a lawyer. According to the applicant, he was threatened that if he did not confess the investigator would order his cellmates to rape him. The applicant confessed to the murder.

At 8.20 p.m. on the same day the arrest record was read out to him.

On 3 May 1997 the applicant was brought to the scene of the crime where he repeated his confession and gave details of the murder. He was not assisted by a lawyer.

On 8 May 1997 the applicant was provided with a lawyer.

At the trial the applicant retracted his confession. He admitted that he had been at the victim’s house on the evening of the murder. However, he denied killing her.

On 15 January 2001 the Kondinskiy District Court of the Khanty-Mansiyskiy Region convicted the applicant of murder and sentenced him to ten years’ imprisonment. It relied on the applicant’s confession statement of 2 May 1997, testimony by several police officers that the confession had been made by the applicant without any pressure and statements by witness Kh. that he had seen the applicant in the victim’s house several hours before the murder. The court also relied on the autopsy of the victim describing the injuries and establishing the cause of death.

On 18 October 2006 the Khanty-Mansiskiy Regional Court upheld the conviction on appeal. It found, in particular, that the District Court’s reliance on the applicant’s confession statement had been lawful. The applicant had been questioned and had confessed before the arrest record had been read out to him. He had not therefore been entitled to legal assistance during that questioning.

.......

As regards legal assistance at the pre-trial stages of the proceedings, the Court has held that the particular vulnerability of the accused at the initial stages of police questioning can only be properly compensated for by the assistance of a lawyer, whose task is, among other things, to help to ensure respect for the right of an accused not to incriminate himself. This right indeed presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. Accordingly, in order for the right to a fair trial to remain sufficiently “practical and effective” Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first questioning of a suspect by the police....

The Court further notes that the applicant was undoubtedly affected by the restrictions of his access to a lawyer in that his statement to the police was used for his conviction. Indeed, the confession statement made by the applicant without the benefit of legal advice served as the sole basis for the finding of guilt both in the first-instance and the appeal judgments (see paragraphs 12 and 13 above). The Court therefore finds that, irrespective of whether the applicant had the opportunity to challenge the evidence against him before the courts, the absence of a lawyer while he was in police custody irretrievably affected his defence rights (see Salduz, cited above, §§ 58 and 62; Panovits, cited above, §§ 75-77 and 84-86; and Pavlenko v. Russia, no. 42371/02, § 119, 1 April 2010).

The Court concludes from the above findings that the use of his confession statement made without the benefit of legal advice for the applicant’s conviction undermined the fairness of the proceedings as a whole.

There has accordingly been a violation of Article 6 §§ 1 and 3 (c) of the Convention.

 

[Dan O.]

Greetings ya'll!
I've got a few minutes before I gotta split somewhere, so checking in, I read that most now think that any apparent movement of Miss Kercher's body by ILE in those 2 pics I found on the Web were just optical illusions.

When I found + kept looking at these 2 photographs,
I wondered where her upraised left arm was,
for it was photographed holding a possible blonde hair.
But I'm still not sure of where it is, for shouldn't it be pointing skyward,
and be much higher than the rest of her? Of course it should be.

Ok, so check out a few arrows that I added to these photo's.
[qimg]http://www.internationalskeptics.com/forums/picture.php?albumid=480&pictureid=9320[/qimg]

RW, Have you got a source for that first photo? Both pieces of paper are clearly visible in every photo I can find and even the crime scene video at 15:14:05. You apparently have another photo from outside the case file or somebody has edited it.

The best view of those papers is probably dsc_0241.jpg where the hand printed text on the small one clearly reads:

Sem 2
Journalism [U]9[/U]
Eng lit (II) [U]9[/U]
Political sys [U]9[/U]
-———————

It must be some kind of secret code. Do you think she is a spy?

 

[Samson]

The proof of alleged tertiary transfer? Oh no, that is a defence argument. That one belongs to the defence.
You can drem that it may be enough for the defence to call "tertiary transfer" just on the ground that in given hypothetical conditions that would be not impossible, but it doesn't work like that.

Well actually this is a very easy experiment to replicate the possibility, just like the Meredith clone volunteers who eat a similar meal with a variety of 24 hour alcohol and food consumption histories at a research medical institution to establish that descent to duodenum often occurs at > than 100 minutes.

eta to those that are new to this concept, I am doubtful that one in ten would show this 100 minute passage of time.

 

[Bill Williams]

Related to this, I have specific questions for Machiavellian
Anybody who argues for guilt can answer though. . . .

First:
Raffaele Sollecito was in the cottage several times, correct? In addition, he interacted with Meredeth Kercher several times in a non hostile manner? Is there any disagreement about these items?

Second:
Based on question one, is there the possibility of DNA from Raffaele Sollecito getting transferred to Meredeth Kercher either through direct contact (handshake) or indirect (handling the same object)?

Third:
Based on question one and question two, how can you rule out Raffaele Sollecito's DNA getting on Meredeth Kercher's bra clasp trhough innocent means?

.... esp. when Judge Nencini's guess about why the other three Y-Haplotypes are on the clasp are also there by innocent means... Meredith's boyfriend and two of Meredith's "amica".

How does Nencini (much less Machiavelli) think the "amica"-haplotyptes got on the bra-clasp by innocent means? Or does Nencini think the girls were trying on each others' bras?

 

[Desert Fox]

.... esp. when Judge Nencini's guess about why the other three Y-Haplotypes are on the clasp are also there by innocent means... Meredith's boyfriend and two of Meredith's "amica".

How does Nencini (much less Machiavelli) think the "amica"-haplotyptes got on the bra-clasp by innocent means? Or does Nencini think the girls were trying on each others' bras?

This is an issue I am still confused, if Amica can include males. . . .Even if it does, the DNA had to get there by innocent means unless there were six or seven people in the bedroom where the murder occurred.

 

[anglolawyer]

Machiavelli

How do you know Mignini arrived at 2.00 a.m.?

 

[Planigale]

It was obviously a police officer (we assume Ficarra) who pointed out the SMS message to her, and told her something on the line "we know you are lying". "Look, it looks like you met with this person that night". "are you covering up for someone?".It os obvious, insofar as it is obvious that it was the police initiative to investigate into Meredith Kercher's murder, not Knox's initiative.
But this is completely irrelevant.
This does not justify nor explain a iota about Knox's voluntary decision of placing repeated false testimonies placing evidence against Patrick Lumumba.
But also, we should not sweep this under the carpet, Knox did place evidence against Raffaele Sollecito too (remember the "blood on hands" memory).
The reason why Knox did so, is obvious in the context, to anyone who wantst to see it.

So according to Mach the police suspected Knox of some crime whether directly murder or covering up, or lying to them. So at that point she should have been cautioned and given a lawyer, and questioning ceased until that lawyer was present?

 

[Samson]

So according to Mach the police suspected Knox of some crime whether directly murder or covering up, or lying to them. So at that point she should have been cautioned and given a lawyer, and questioning ceased until that lawyer was present?

I agree, no wiggle room at all, great catch.
Now why do I imagine a Houdini escape?

 

[Planigale]

And the defence didn't test it neither. (recall, they asked to have several items tested, for example the rock; but they didn't request to tst the outer handle).
They can't prove it.
But changes little. Even if they could prove it, the probability of a tertiary transfer would appear still too small. This also because, as it comes out, there are no other instances of tertiary transfer of Sollecito's DNA in any other part of the crime scene.

This is illogical, and untrue. If there were other examples of Sollecito's DNA in the crime room you would argue that this was direct transfer and not proof of tertiary transfer. You are arguing that transfer has to be a common or never event. I would argue that a single low level sample of mixed DNA would fit with contamination. You do not need to know the source or details of contamination for tertiary transfer to be a possibility. It is a possibility. Were there any features about the discovery of the bra hook that would render it more liable to contamination than say the bra itself, or any of the other items of clothing or person of MK that Sollecito's DNA was absent from?

Mach of course knows the answer to this - but for other readers - the bra hook was not collected for six weeks was moved from its original location - and was discovered in a somewhat flamboyant manner (this may just be Italian, but makes me wonder if they knew it was there and were 'staging' the discovery by the forensic scientists to avoid suggestions of contamination). When discovered it was picked up by hand wearing gloves that had not been changed before collecting this piece of evidence, handed around and put back down on the floor to photograph (photography should have shown its position prior to collection not where the police had put it) then bagged and tagged.

 

[Planigale]

Related to this, I have specific questions for Machiavellian
Anybody who argues for guilt can answer though. . . .

First:
Raffaele Sollecito was in the cottage several times, correct? In addition, he interacted with Meredeth Kercher several times in a non hostile manner? Is there any disagreement about these items?

Second:
Based on question one, is there the possibility of DNA from Raffaele Sollecito getting transferred to Meredeth Kercher either through direct contact (handshake) or indirect (handling the same object)?

Third:
Based on question one and question two, how can you rule out Raffaele Sollecito's DNA getting on Meredeth Kercher's bra clasp trhough innocent means?

I think the argument that would be made is.

1) The likeliest route of transfer is direct transfer not secondary.
2) There is no legitimate reason for Sollecito to have touched the bra hook of MK.
3) Therefore the likely route of origin of Sollecito Knox on the bra hook is direct contact from Sollecito trying to undo the bra strap, in the absence of other explanations forthcoming from the defence the only opportunity for Sollecito to do this is at the time of the murder.

However, when considering the lack of any other evidence of the presence of Sollecito in the room or on the person of MK, the mixed nature of the DNA, the low level of the DNA, and the issues around its collection, the likelihood that this is due to secondary or tertiary transfer seems likely not merely possible.

 

[Desert Fox]

So according to Mach the police suspected Knox of some crime whether directly murder or covering up, or lying to them. So at that point she should have been cautioned and given a lawyer, and questioning ceased until that lawyer was present?

According to Machiavellian, even just note calling emergency services immediately is a crime. As such, no excuse to not give her a lawyer immediately.

 

[Planigale]

Greetings ya'll!
I've got a few minutes before I gotta split somewhere, so checking in, I read that most now think that any apparent movement of Miss Kercher's body by ILE in those 2 pics I found on the Web were just optical illusions.

When I found + kept looking at these 2 photographs,
I wondered where her upraised left arm was,
for it was photographed holding a possible blonde hair.
But I'm still not sure of where it is, for shouldn't it be pointing skyward,
and be much higher than the rest of her? Of course it should be.

Ok, so check out a few arrows that I added to these photo's.
[qimg]http://www.internationalskeptics.com/forums/picture.php?albumid=480&pictureid=9320[/qimg]

Is that her left upraised arm up to the right of #7?
How come her right side -(the left side of the photo) looks higher near the bloody towel?
Note 1 piece of paper on her duvet, what is it?
Note the point of the duvet near the grout tile line.
Note the location of her letters to home.


[qimg]http://www.internationalskeptics.com/forums/picture.php?albumid=480&pictureid=9321[/qimg]

This photo shows now 2 pieces of paper on her duvet.
In the 1st pic, it only shows 1. What happened to it?
Where is it and what was on the other piece of paper?
Her left upraised arm should be somewhere up near #7, where is it?
The bottom middle arrow shows a grout line coming halfway across the tile, but above, it is no where to be seen, her calf is touching the long vertical line and her toes look closer to the bottom grout line beneath them.
And note the location of the point on the duvet to the right of her foot, where's the grout lines?

[qimg]http://www.internationalskeptics.com/forums/picture.php?albumid=480&pictureid=9319[/qimg]

This close-up photo shows her letters home after having been moved.

Optical illusions?

Someone removed a piece of paper from her duvet. What was it?
Someone moved her letters, + I feel that someone seems to have moved her body just a little bit. Look at the arrows again +again. And where is her upraised left arm and hand that holds the blonde hair that early newspaper reports state ILE was going to test? And what is making the right side of her, (the left side of the pic #1, stand upwards so high near that bloody towel?

If I had more time maybe I could dig up some more odd, optical illusions in these 2 pics.
You guys+gals go for it. What do you see?
Gotta go,
see ya, RW


PS - Machiavelli,
those do look brown in your photo.
But in the Crime Scene video, they look like black lace underwear.
heck, even Barbie Nadeau says they are lacy black underwear, on page 47, in "Angel Face".
Can we gonna agree that they are black, finally?

I think you are wrong about the leg. I think the angle of the first photo means the grout line is concealed behind her leg. If you count the stich lines on the duvet one sees the area you attribute to her arm is off the corner of the second photo.

Re the papers in the first photo I think there are two pieces of paper one on top of the other in the second these have separated. They may have been photographed in detail in situ and moved or just blown apart. I agree that her papers on the bedstead have been moved.

This illustrates the problems with trying to accurately measure things on photographs that are not orthogonal. This is why the measurements of the bloody footprint on the bathmat that the prosecution obtained solely by examining photographs are less reliable than those of the defence which were obtained by direct examination of the bathmat.

 

[Desert Fox]

I think the argument that would be made is.

1) The likeliest route of transfer is direct transfer not secondary.
2) There is no legitimate reason for Sollecito to have touched the bra hook of MK.
3) Therefore the likely route of origin of Sollecito Knox on the bra hook is direct contact from Sollecito trying to undo the bra strap, in the absence of other explanations forthcoming from the defence the only opportunity for Sollecito to do this is at the time of the murder.

However, when considering the lack of any other evidence of the presence of Sollecito in the room or on the person of MK, the mixed nature of the DNA, the low level of the DNA, and the issues around its collection, the likelihood that this is due to secondary or tertiary transfer seems likely not merely possible.

The idea is even if it is only "possible" not even "probable" that it is secondary transfer. At least acknowledge that it could be. Even if it is only "possible", that is reasonable doubt.

 

[LondonJohn]

This is illogical, and untrue. If there were other examples of Sollecito's DNA in the crime room you would argue that this was direct transfer and not proof of tertiary transfer. You are arguing that transfer has to be a common or never event. I would argue that a single low level sample of mixed DNA would fit with contamination. You do not need to know the source or details of contamination for tertiary transfer to be a possibility. It is a possibility. Were there any features about the discovery of the bra hook that would render it more liable to contamination than say the bra itself, or any of the other items of clothing or person of MK that Sollecito's DNA was absent from?

Mach of course knows the answer to this - but for other readers - the bra hook was not collected for six weeks was moved from its original location - and was discovered in a somewhat flamboyant manner (this may just be Italian, but makes me wonder if they knew it was there and were 'staging' the discovery by the forensic scientists to avoid suggestions of contamination). When discovered it was picked up by hand wearing gloves that had not been changed before collecting this piece of evidence, handed around and put back down on the floor to photograph (photography should have shown its position prior to collection not where the police had put it) then bagged and tagged.

In addition to all of this, it's also worth picking up on Machiavelli's absurd assertion that the defence lawyers were also at fault for not requesting testing of the door. For a start, there were no defence lawyers until at least the 8th November, by which time the first run of forensics from the "crack" team had been completed and the whole cottage had been effectively compromised by their ludicrous approach. Secondly, it would have taken considerable time for the defence teams to learn that a) a forensic examination of the outer door face/handle would be potentially important to the defence, and b) the "crack" forensics team had in fact conducted no such examination themselves. And by the time both of these things were realised, the door had most certainly been grossly compromised beyond all hope of conducting a reliable forensic examination of its outer face.

And of course when it comes to the bigger question of "proving" contamination, Machiavelli again gets it totally wrong (both in general ethics and Italian law) when he claims that unless the defence lawyers could prove contamination, it could not be considered by the court as a reasonable possibility. In this instance, not-a-real-doctor Stefanoni and her "crack" team messed up egregiously and shockingly in the way they conducted their examination of the scene, identification and collection of evidence, transportation and storage of that evidence, and testing and interpretation of that evidence. This massive failing - in and of itself - hugely lowers the burden of proof for the defence in claiming contamination. And it's entirely the fault of Stefanoni et al. And with that in mind, it's perfectly reasonable and acceptable for the defence to propose the real possibility of contamination via the outer face of the door - which the "crack" team, again through their own failings and incompetence, did not bother to examine.

 

[Wannaknow]

Photos Crime Scene

Hi LJ and everyone else,
Have a look at these 2 photographs of the Crime Scene, found on the Web.


ETA:
Here is the photograph which shows
that the letters home from Meredith were moved in between photo's:
Compare this to the photograph above which shows her nightstand + her letters home in the background.

I am new to the forum an not allowed to post URLs. So I deleted the URLs.
Nevertheless, the third photo shows clearly that Merediths body had been removed (you must have noticed that). So it was taken on November 03th. It is obvious that in order to remove the body, other objects must have been touched. There is no point in accussing to police of "tampering" here.

Greetings

 

[Mr Fied]

I have a question for Machiavelli and Vibio.
One of the common retorts to arguments raised about the trials, is that non Italian speakers rely on translations of court proceedings and therefore misinterpret the meaning and reasoning, and that it is only Italian speakers who can interpret the court proceedings correctly.
Therefore I would like to ask the following.
Who actually killed Meredith Kercher and how?
Because it seems to me that these two Italian speakers in particular, are convinced of the guilt of AK and RS, and would convict if members of a jury.
However from what I have read on here Vibio seems to think that AK may have not even been in the murder room, whereas Machiavelli is convinced she was directly involved.
So if these two Italian speakers who do not have to rely on translations from the court proceedings can't agree on how the murder happened, if they were part of the same jury how would they be able to convict beyond a reasonable doubt?

 

[Vibio]

So if these two Italian speakers who do not have to rely on translations from the court proceedings can't agree on how the murder happened, if they were part of the same jury how would they be able to convict beyond a reasonable doubt?

Well, obviously I wasn't on the jury. And I don't know the case as well as a Mach does. (actually no one here knows the case as well as he does).

And please note: I prefaced my own personal idea about what I think happened that evening with the words: "While I don't rule out Nencini... "

Either way, Knox is guilty.

 

[Bill Williams]

Well, obviously I wasn't on the jury. And I don't know the case as well as a Mach does. (actually no one here knows the case as well as he does).

And please note: I prefaced my own personal idea about what I think happened that evening with the words: "While I don't rule out Nencini... "

Either way, Knox is guilty.

................ of? Also it is a bit of a curiosity: why the mention of Knox and not Sollecito?

 

[Bill Williams]

I have a question for Machiavelli and Vibio.
One of the common retorts to arguments raised about the trials, is that non Italian speakers rely on translations of court proceedings and therefore misinterpret the meaning and reasoning, and that it is only Italian speakers who can interpret the court proceedings correctly.
Therefore I would like to ask the following.
Who actually killed Meredith Kercher and how?
Because it seems to me that these two Italian speakers in particular, are convinced of the guilt of AK and RS, and would convict if members of a jury.
However from what I have read on here Vibio seems to think that AK may have not even been in the murder room, whereas Machiavelli is convinced she was directly involved.
So if these two Italian speakers who do not have to rely on translations from the court proceedings can't agree on how the murder happened, if they were part of the same jury how would they be able to convict beyond a reasonable doubt?

That is one of the things which early on drove me into the "reasonable doubt", then the totally innocent POV. No two people who believe in guilt, really, describe the same crime.

IMO this is the reason why most of the pro-guilt lobby resist putting evidence to a time-line. One of the things which happened on one of the pro-guilt sites immediately following the Oct 2011 acquittals (now reversed) was that an argument broke out based on time of death. Time of death is a key fact, and a key piece of evidence.

Mattieni, Massei, Nencini, Mignini and Crini all of them narrative a different set of circumstances and different motives - and when the pro-guilt lobby start "helping them out" by postulating evidenceless issues like psychopathology for AK and RS (things which were never accepted even by the convicting courts) it becomes evidence what is going on - as you say:

Even native speakers cannot agree on how the body of evidence is put together to support a guilt notion.

 

[Mr Fied]

Thanks for your reply Vibio.
I guess what I was trying to get at was that even amongst those that are convinced of guilt, there seem to be varying beliefs in how events happened. Even the convicting courts/judges come up with different versions of events.
Even the prosecution witnesses come up with contradictory evidence as to what was seen/heard and when.
Therefore how could anyone convict beyond a reasonable doubt?