Continuation Part 11: Amanda Knox/Raffaele Sollecito

[anglolawyer]

Dio mio! How revealing is that interview! Mignini spills and many questions are answered. This will NOT go down well with Dottore Mignini when he discovers he has been translated for all to see. Or maybe, like Nencini, he figures it all helps the cause. Lets wait and see who gets sued next. Oh, and lets see what Machiavelli's take on this and what's to follow is.

What is revealing about it? Perhaps you could favour us with some extracts you consider revealing?

 

[anglolawyer]

I love the adulation on PMF of Machiavelli.
Another Italian recently said he is enjoying reading his lectures on law and humanity to the fools and knaves on this forum.
But he did not mention a lecture on justice, because justice is a very different concept. Justice is what the people crave, but the people are invisible to Machiavelli and his disciples.

Could the admirers of Our Nemesis give him a prod and ask him how he knows Mignini arrived at 2.00 a.m. I've asked three times now.

 

[Machiavelli]

Mach,
The incriminating statement and the crime are the same here.

(...)

No, they are not. "Lumumba killed Meredith" is not a self-incriminating statement. There may be also a self incriminating aspect as long as Amanda also places herself in the same apartment. But this latter is not the part of the statement that causes the charge of calunnia, and it was not used even in the charge of murder btw.
A statement like "Lumumba killed Meredith" (even inflected in all its degrees of fuzziness and doubt) is merely a testimony that places false evidence.
A statement like "I remember blood on Raffaele's hands" is also not a self incriminating statement; it's placing evidence against someone.

But your reasoning I flawed also for another reason, on principle. A calunnia may even consist in a self-incriminating statement sometimes (for example Michele Misseri committed a claim is by incriminating himself) but the equation is not a two-way rule: not every self incriminating statement is a calunnia.

Calunnia means that the statement was malicious and voluntary. So it's a different fact, and attempts to identify it wth a different legal case will fail.

I am not willing to cite the requested case law, because the kind of case law you imagine would not fit a case of calunnia. But I did address an obvious case before our eyes, such as the calunnia charges against Luciano Aviello: this is an obvious example of a person who - while not being assisted by a lawyer and not enjoying suspect's protection - releases statements on the ground of which he is subsequently charged.

 

[Kauffer]

No, they are not. "Lumumba killed Meredith" is not a self-incriminating statement. There may be also a self incriminating aspect as long as Amanda also places herself in the same apartment. But this latter is not the part of the statement that causes the charge of calunnia, and it was not used even in the charge of murder btw.
A statement like "Lumumba killed Meredith" (even inflected in all its degrees of fuzziness and doubt) is merely a testimony that places false evidence.
A statement like "I remember blood on Raffaele's hands" is also not a self incriminating statement; it's placing evidence against someone.

But your reasoning I flawed also for another reason, on principle. A calunnia may even consist in a self-incriminating statement sometimes (for example Michele Misseri committed a claim is by incriminating himself) but the equation is not a two-way rule: not every self incriminating statement is a calunnia.

Calunnia means that the statement was malicious and voluntary. So it's a different fact, and attempts to identify it wth a different legal case will fail.

I am not willing to cite the requested case law, because the kind of case law you imagine would not fit a case of calunnia. But I did address an obvious case before our eyes, such as the calunnia charges against Luciano Aviello: this is an obvious example of a person who - while not being assisted by a lawyer and not enjoying suspect's protection - releases statements on the ground of which he is subsequently charged.

What you, painfully, do not appear to understand is that the statement from Ms Knox, which was "I confusedly remember ..." etc, is the statement upon which the calunia charge was filed, and not only the evidence for the crime but the crime itself, yet you cannot separate it's production from the circumstances of the interrogation. ECHR case law does not permit any of the products of this interrogation without counsel to be used against Ms Knox. It is akin to the "fruits of the poisonous tree", to be treated as an incited statement. Therefore, the statement does not exist. There is no crime.

 

[Samson]

No, they are not. "Lumumba killed Meredith" is not a self-incriminating statement. There may be also a self incriminating aspect as long as Amanda also places herself in the same apartment. But this latter is not the part of the statement that causes the charge of calunnia, and it was not used even in the charge of murder btw.
A statement like "Lumumba killed Meredith" (even inflected in all its degrees of fuzziness and doubt) is merely a testimony that places false evidence.
A statement like "I remember blood on Raffaele's hands" is also not a self incriminating statement; it's placing evidence against someone.

But your reasoning I flawed also for another reason, on principle. A calunnia may even consist in a self-incriminating statement sometimes (for example Michele Misseri committed a claim is by incriminating himself) but the equation is not a two-way rule: not every self incriminating statement is a calunnia.

Calunnia means that the statement was malicious and voluntary. So it's a different fact, and attempts to identify it wth a different legal case will fail.

I am not willing to cite the requested case law, because the kind of case law you imagine would not fit a case of calunnia. But I did address an obvious case before our eyes, such as the calunnia charges against Luciano Aviello: this is an obvious example of a person who - while not being assisted by a lawyer and not enjoying suspect's protection - releases statements on the ground of which he is subsequently charged.

Machiavelli:
Michele Misseri can not by any stretch of immagination be absolved of killing Sarah Scazzi. In fact his claim to have done so is questioned only by those who believe that his claimed method of killing is partially inconsistent with the autopsy. He led police to her body, and subsequently has strongly claimed he killed her, and his daughter and wife did not.

Which of these statements is callunia?

 

[Kauffer]

Here's a translation of Mignini's talk at Universita Pegaso, Naples on 24th November, on 'Il Giallo di Perugia: L'omicidio di Meredith Kercher'

http://www.injusticeanywhereforum.org/viewtopic.php?p=151265#p151265

There's another interview he gave posted there as well.

"… and then came the Central Scientific Police, led by a biology graduate, Doctor Patrizia Stefanoni."

Hahaha!

 

[Chris_Halkides]

Respectful Rudy; Fanciful Rudy

PM Mignini: "also in summary the most respectful of Italian justice was Rudy Herman Guede." Borsini Report: "Then, apart from the attempt to staunch the flow of blood from the wound and the proof that it was not he that held the knife that was compatible with the worst of the lesions, it should also be remembered that Guede was the only one, even if in a somewhat fanciful reconstruction of events, to indicate the perpetrators."

It is not "respectful" to tell a bunch of pathetic, self-serving lies. It is not "fanciful" to blame others for what one has done. Mignini's and Borsini's statements are appalling.

 

[Diocletus]

Where is the calunnia case, for example, that proves your assertions?

Good question: where are all of the ECHR "callunnia" cases? In my review of ECHR cases, I have not found a single reported decision dealing with a "callunnia" charge. Let us ponder why:

1. While some countries no doubt recognize a specific crime of "callunnia," perhaps not all do (although probably every country recognizes obstruction of justice as a crime).

2. With respect to countries that do recognize the specific crime of callunnia, perhaps they do not utilize this charge very frequently.

3. When callunnia charges are asserted, perhaps they are rarely asserted in cases in which the callunnia emanates from a lawyerless interrogation at the police station.

4. Even if the callunnia charges would emanate from a lawyerless interrogation at the police station, there may be any number of procedural hurdles that have prevented either an ECHR application or judgment thereon.

Think about No. 3 for a minute, though. It occurs to me, that it is very rare that a country is ever as stupid as to charge a defendant with callunnia as a result of a wrong statement elicited by police during a lawyerless interrogation. This is like the patient dying at the hospital or the prisoner being injured in police custody--it's just not going to end well for the authorities.

 

[Diocletus]

Well well! Here is Mignini talking about why Ms Kercher's rectal temperature was not taken. There was a risk of contamination, according to Stefanoni, Mignini recounts, simply from opening the door to the bedroom! But later, he refers to the ISC ruling that contamination must be proved. Extraordinary! The failure to collect one of the most important pieces of evidence in the case in order to determine time of death is justified by a fear of contaminating the crime scene merely by opening a door but the later re-examination of the crime scene 46 days later after it has been utterly compromised, he does not refer to. How can Stefanoni's fear of contaminating the scene simply by opening a door be reconciled with the December 18th collection of the bra clasp behind the very same door?

Interesting. Also used as the excuse for not analyzing the pillow-case semen stain (to have tested it might have jeopardized the shoeprints).

They say this crap because the Italian courts let them get away with it.

 

[Diocletus]

What you, painfully, do not appear to understand is that the statement from Ms Knox, which was "I confusedly remember ..." etc, is the statement upon which the calunia charge was filed, and not only the evidence for the crime but the crime itself, yet you cannot separate it's production from the circumstances of the interrogation. ECHR case law does not permit any of the products of this interrogation without counsel to be used against Ms Knox. It is akin to the "fruits of the poisonous tree", to be treated as an incited statement. Therefore, the statement does not exist. There is no crime.

It's useful to note, contrary to the point that Machiavelli seems to want to make, that the ECHR prohibits the use of even “voluntary” statements following the violation of a suspect’s Procedural Rights, unless there is clear evidence that there was a knowing and intentional waiver of such rights prior to the making of the statement. Omelchenko v. Ukraine ¶ 48-49 (nullifying written waivers of right to counsel, and excluding ensuing statements obtained from person in custody, because legal assistance was never provided). The prohibition against using illegal, lawyerless statements extends to such time as a lawyer is actually provided.

48. As regards the subsequent questioning sessions on 31 October, 4, 9 and 10 November 2004, it is notable that they took place after the applicant had been notified of his status as a suspect and had signed waivers of his right to legal assistance. However, in assessing whether these waivers were genuine and unequivocal, the Court notes that the applicant signed them while remaining in police custody. The first waiver of 31 October 2004 dates to the period, when, according to the applicant, he remained in off-the-record detention. There is nothing in the case file to rebut his submissions in this respect. The fact that the applicant signed this waiver while arbitrarily held in police custody and having no ability to consult a lawyer gives rise to a strong suspicion that it was obtained in defiance of the applicant’s will. This waiver cannot therefore be regarded as compliant with the Convention requirements.

49. The regularisation of the applicant’s detention from 1 until 10 November 2004 did not, in the Court’s view, substantially affect the legitimacy of the waivers signed by him on 4, 9 and 10 November 2004. In particular, at the material time the applicant was held under administrative arrest. The Court takes note of the applicant’s allegations that this arrest was effected with an ulterior motive, namely, to ensure his availability for questioning as a criminal suspect and to exert unlawful pressure on him. Similar allegations were examined in a number of other cases against Ukraine, where the Court condemned the practice of placing a person under administrative arrest to ensure his availability for questioning as a criminal suspect (see, for example, Nechiporuk and Yonkalo v. Ukraine, no. 42310/04, § 264, 21 April 2011; and Grigoryev v. Ukraine, no. 51671/07, § 87, 15 May 2012). In the case of Balitskiy v. Ukraine the Court also found that such a practice resulting in questioning the criminal suspects in defiance of applicable procedural guarantees constituted a structural problem in Ukraine (no. 12793/03, §§ 50-51 and 54, 3 November 2011). Regard being had to the above findings and the fact that the applicant was arrested under the pretext that he had committed an administrative offence almost immediately upon his release from the initial off-the-record custody, as well as his intense questioning as a criminal suspect throughout the period of his administrative detention, the Court finds his allegations credible. It considers that the present case discloses another example of the aforementioned structural problem. It therefore finds that the waivers of the right to legal assistance obtained from the applicant on 4, 9 and 10 November 2005 were signed by him in a state of particular vulnerability and in the absence of proper procedural guarantees. They can therefore not be regarded as compliant with the Convention requirements.

50. The Court notes, in addition, that, as appears from the case file, at the material time the applicant was not fully aware of the potential consequences of renouncing his right to legal assistance. In particular, it was not until later in the proceedings that the investigation advanced a charge of murder for profit, which could entail life imprisonment and so required mandatory legal representation under domestic law.

 

[Diocletus]

As an added point, you might want to start researching cases where the plaintiff claimed coercion, or being denied counsel, which the ECtHR then rejected.

I'm guessing coercion/inducement and denial of counsel are very common claims. And since the ECtHR rejects the overwhelming majority of cases it sees, I would further guess there are many, many examples of this.

You might come to the realization that the law is more complicated than the internet makes it seem.

It appears to me that in recent cases (last 5 years), it is rare for such a case to be accepted, brought to judgment, and come out with a no-violation finding.

So basically, if Knox's application is accepted, she is going to win. BTW, anyone know why her obviously meritless application hasn't been rejected yet? Would have thought that would have been so simple.

 

[Numbers]

Maybe it's not clear enough, or you love to fall in love with straw men. I accept the ECHR fully; but even your own quotes only confirm the point that actually I have been showing: that it is the ECHR that is not going to accept your interpretation.
No argument was brought here that could challenge the calunnia conviction at the ECHR. Actually, not even an admissible argument was addressed.

Mach,

Obviously there is a difference of opinion here.

Do you have citations from the ECtHR case law to support your position?
Can you show any case(s) where a person under interrogation without a lawyer made an incriminating statement that was used in a trial to convict that person, and the person then applied to the ECtHR, and the ECtHR did not find a violation of the Convention?

It would be very informative to review any such cases.

No, they are not. "Lumumba killed Meredith" is not a self-incriminating statement. There may be also a self incriminating aspect as long as Amanda also places herself in the same apartment. But this latter is not the part of the statement that causes the charge of calunnia, and it was not used even in the charge of murder btw.
A statement like "Lumumba killed Meredith" (even inflected in all its degrees of fuzziness and doubt) is merely a testimony that places false evidence.
A statement like "I remember blood on Raffaele's hands" is also not a self incriminating statement; it's placing evidence against someone.

But your reasoning I flawed also for another reason, on principle. A calunnia may even consist in a self-incriminating statement sometimes (for example Michele Misseri committed a claim is by incriminating himself) but the equation is not a two-way rule: not every self incriminating statement is a calunnia.

Calunnia means that the statement was malicious and voluntary. So it's a different fact, and attempts to identify it wth a different legal case will fail.

I am not willing to cite the requested case law, because the kind of case law you imagine would not fit a case of calunnia. But I did address an obvious case before our eyes, such as the calunnia charges against Luciano Aviello: this is an obvious example of a person who - while not being assisted by a lawyer and not enjoying suspect's protection - releases statements on the ground of which he is subsequently charged.

{highlighting added to quote}
Mach,
As you are perhaps aware, the ECHR case law goes against any statement made by a person in police custody or under interrogation being used in a trial to convict that person, of a crime, when the person does not have a lawyer present to provide counsel. (And there is case law that it must be a fair lawyer, not a police lawyer.) So the situation regarding the allegation and conviction for calunnia against Amanda is that simple.

Repeating: ANY statement from a person under interrogation or police custody, who does not have the counsel of her lawyer who is present with her, cannot be used to convict her. It does not matter whether or not one considers the statement "incriminating" or not. The use of the statement is a violation of ECHR Article 6.1 with 6.3c.
The ECHR in the Guide to Article 6 specifically mentions that the intent of such provisions to guard against coercion by the police. See that official publication or the post (#3762) where I copied relevant excerpts from it.

 

[moije2]

{highlighting added to quote}
Mach,
As you are perhaps aware, the ECHR case law goes against any statement made by a person in police custody or under interrogation being used in a trial to convict that person, of a crime, when the person does not have a lawyer present to provide counsel. (And there is case law that it must be a fair lawyer, not a police lawyer.) So the situation regarding the allegation and conviction for calunnia against Amanda is that simple.

Repeating: ANY statement from a person under interrogation or police custody, who does not have the counsel of her lawyer who is present with her, cannot be used to convict her. It does not matter whether or not one considers the statement "incriminating" or not. The use of the statement is a violation of ECHR Article 6.1 with 6.3c.
The ECHR in the Guide to Article 6 specifically mentions that the intent of such provisions to guard against coercion by the police. See that official publication or the post (#3762) where I copied relevant excerpts from it.

Machiavelli's position is that the calunnia is not an ^self incriminating statement^, and is a separate crime etc. It seems to me that two different rights are being confused and muddled together.

1. Right to an attorney
2. Right to not make self incriminating statements, i.e., the right to remain silent.

Machiavelli denies a connection between these two at least for purposes of this set of facts. Mach can of course correct or elucidate on this point. It seems to me that for an effective right to remain silent (and not make statements of any kind), it all turns upon having effective counsel.

In other words, I would say it is a logical fallacy to focus on the words "self incriminating", and not focus on the right to an attorney.

Perhaps someome can give a little exposition on what exactly having an attorney would do for someone. This is where I believe recognized logic would include the prevention of any statements.

Which is supported by the above highlighted text. A lot of unnecessary comments should have been avoided. MOO.

 

[Desert Fox]

Amanda is an American. I guess that kinda gives us the right to complain. Italy is a tourist destination. Americans spend a lot of money there. I wouldn't mind visiting it myself. I personally like Italy.

Their legal system seems unfair from a defendant's point of view (and it's not like we Americans can't give as good as we've gotten), but I do like the fact that Italy can reexamine evidence. That in my opinion is way better than what we Americans do.

I also personally believe that everyone should be allowed to rant against any one or anything or any country's (even America's) legal system that they want as long as their thoughts are sound.

It may not change anything, but it's not impossible,

I like the way a lot of Italian law is written, the problem is that they both find too many loopholes and ignore it whenever possible. I am fairly sure that in either State or Federal court, these convictions would have been overturned due to one or more violations including probable constitutional violations.

 

[Machiavelli]

Could the admirers of Our Nemesis give him a prod and ask him how he knows Mignini arrived at 2.00 a.m. I've asked three times now.

Well I asked him, and he told me. Then I also asked the police officer who picked him up at home that night and told me the same thing.

 

[Numbers]

Machiavelli's position is that the calunnia is not an ^self incriminating statement^, and is a separate crime etc. It seems to me that two different rights are being confused and muddled together.

1. Right to an attorney
2. Right to not make self incriminating statements, i.e., the right to remain silent.

Machiavelli denies a connection between these two at least for purposes of this set of facts. Mach can of course correct or elucidate on this point. It seems to me that for an effective right to remain silent (and not make statements of any kind), it all turns upon having effective counsel.

In other words, I would say it is a logical fallacy to focus on the words "self incriminating", and not focus on the right to an attorney.

Perhaps someome can give a little exposition on what exactly having an attorney would do for someone. This is where I believe recognized logic would include the prevention of any statements.
Which is supported by the above highlighted text. A lot of unnecessary comments should have been avoided. MOO.

moije,

Your post brings out some good points.

There are several benefits to having an attorney present and counseling a person if he/she is being interrogated by police.

The first is, of course, the counsel. The advice of the attorney will help the subject of the interrogation know their rights. Many innocent people are eager to help police and are willing to talk at length, not realizing the purpose of the interrogation is to induce or coerce the subject to say something that "can be used against you." The lawyer can tell the subject that he/she need not say anything whatsoever (except, of course, your name and identifying information). The subject can ask the lawyer advice about whether or not to answer specific questions and what phrasing is best.

Second, the presence of the lawyer gives the subject support and a witness. In the interrogation, there are typically two or more - perhaps four - police officers directing questions - and sometimes threats, promises, and insults - at the subject. Without the lawyer, the subject is alone in a hostile environment. The presence of the lawyer moderates police behavior. The police may, perhaps in some places or countries or situations more than others, resort to physical violence - this has happened in the US as well as Europe - and the presence of the lawyer should prevent this. (If I recall correctly, there is at least one Eastern European case where the lawyer was also threatened.)

 

[anglolawyer]

Well I asked him, and he told me. Then I also asked the police officer who picked him up at home that night and told me the same thing.

Thanks. In fact I am reminded by another poster that you nave answered this before, something about REM sleep was involved, so my apologies for pestering you twice. Any idea how long the drive from Mig's place is?

 

[Machiavelli]

Machiavelli's position is that the calunnia is not an ^self incriminating statement^, and is a separate crime etc. It seems to me that two different rights are being confused and muddled together.

1. Right to an attorney
2. Right to not make self incriminating statements, i.e., the right to remain silent.

Machiavelli denies a connection between these two at least for purposes of this set of facts. Mach can of course correct or elucidate on this point. It seems to me that for an effective right to remain silent (and not make statements of any kind), it all turns upon having effective counsel.
(..)

No, what I actually deny is the alleged connection between the rights expressed above and the committing of a calunnia. There can't be a consequential link between external circumstances and a behaviour which was found to be voluntary and malicious. The judges found that in the merits of facts there was a decision by the person to make false accusation. There was a decision, understand? The person retained the capacity to decide differently if she wanted, she was not out of her faculties or coerced. The action was found to be determined by a decision, not by hypothetical violation of rights.
This is a finding of facts that was made by judges, an inference drawn from behaviours of Knox that were subsequent to the interrogation.

 

[Diocletus]

Perhaps someome can give a little exposition on what exactly having an attorney would do for someone. This is where I believe recognized logic would include the prevention of any statements.

No need to dwell on that now. The ECHR is going to tell us all about it on Tuesday when it announces the decision in Ibrahim v. UK:

Unlike the other applicants, Mr Abdurahman, the fourth applicant, was not suspected of having detonated a bomb and was interviewed as a witness. He started to incriminate himself by explaining his encounter with one of the suspected bombers shortly after the attacks and the assistance he provided to that suspect. Rather than arrest him and advise him of his right to silence and to legal assistance, the police continued to question him as a witness and took a written statement from him. He was subsequently offered legal advice and consistently referred to his written statement. This statement as subsequently admitted as evidence at his trial. He was convicted in February 2008 of assisting one of the suspected bombers and of failing to disclose information about the bombings. He was sentenced to a total of ten years’ imprisonment. His appeal against his conviction was dismissed in November 2008 and his sentence reduced to eight years’ imprisonment on account of the early assistance that he had given to the police.

Relying on Article 6 §§ 1 and 3 (c) (right to a fair trial and right to legal assistance), the applicants complain about their lack of access to lawyers during their initial police questioning, alleging that their subsequent convictions were unfair because of the admission at trial of the statements they had made during those police interviews.

They ECHR's description of this case would appear to indicate how it is going to turn out, although perhaps there is a possibility that the apparent reliance on the written statement after the engagement of counsel could be a distinguishing factor here. That said, the fact that the ECHR is taking cases like this shows us that it will be (and maybe is) very interested in Amanda Knox's application.

 

[Machiavelli]

Thanks. In fact I am reminded by another poster that you nave answered this before, something about REM sleep was involved, so my apologies for pestering you twice. Any idea how long the drive from Mig's place is?

I guess, less then 10 minutes at night.