Continuation Part 11: Amanda Knox/Raffaele Sollecito

[Numbers]

The relevant paragraph of Art 104 is as follows:


3. Nel corso delle indagini preliminari, quando sussistono specifiche ed eccezionali ragioni di cautela, il giudice su richiesta del pubblico ministero può, con decreto motivato, dilazionare, per un tempo non superiore a cinque giorni, l'esercizio del diritto di conferire con il difensore.


3. In the course of the preliminary investigation, where there are specific and exceptional reasons of caution, the judge at the request of the public prosecutor may, by reasoned decree, defer, for a period not exceeding five days, the exercising of the right to confer with the defendant.


Note the words specific and exceptional. Unfortunately, while they have obvious meaning, they are sufficiently nebulous and subjective as to allow egregious misapplication.

By any reasonable, objective measure, the circumstances surrounding the detention of Knox, Sollecito and Lumumba cannot be described as "specific and exceptional". There can be no possibility of a wider criminal conspiracy - indeed, the police and PM firmly believed that they had identified and arrested all three perpetrators at that point. And there is of course no evidence whatsoever to suppose that had Knox and Sollecito (and Lumumba) been properly provided with access to legal counsel, this could/would in any way have jeopardised the investigation or the prospects of conviction.

Simply put, this section of the code was grossly abused by Mignini in this case, and he was ably abetted by the investigating judge. I have little doubt that the ECHR will interpret things in this manner also.

The ECHR is highly likely to say, well you can keep"specific and exceptional" suspects from seeing attorneys for up to 5 days, but anything any suspects say or write during that period without counsel cannot be used in court against them. ECHR actually would find 5 days too long a period to keep a suspect from an attorney, IIUC. And as you write, Knox, Sollecito, and Lumumba would not be "exceptional" in the apparent sense of linkage to a crime or terrorist organization. ECHR doesn't support arbitrary detention or arbitrary denial of counsel.

 

[Dan O.]

Is there a link to the Lumumba article in Corriere della Sera?

I found this old one from November 11 and they're already saying blood was found on a knife yet the knife wasn't tested till November 13.

http://www.corriere.it/cronache/07_novembre_11/delitto_perugia_testimone_svizzero.shtml

This appears to be a smoking gun that proves police corruption.
This should be a big issue for discussion here, because what this suggests is blood was presumed when a dna profile was extracted.

I find something else interesting in the third paragraph:

Tomorrow morning in the laboratories of the Scientific Police begin the biological tests to find out if under the shoes of Raffaele (footprint compatible with its Nike was found beside the body of Meredith) and one of the three knives that were seized there is the victim's blood. Tuesday, using the equipment Luminol, experts will try any other stains useful in the house of the crime, but then will move to Raffaele and Patrick in the pub which was impounded. If you really are involved in the crime, could in fact have soiled and leaving traces. New comparative analyzes should be carried out to clarify a detail that could be important: the DNA extracted from "organic residue" found in the toilet of the apartment where the young Englishman was murdered no owner of suspects, or to people who have attended at least once that house. And this could support the hypothesis that the crime scene there was at least one other person, who has not appeared in the investigation.​

Tuesday is going to be the 13th of November. This is backed by the hard evidence that the cottage door was open on the morning of the 14th and the seal was pealed down. The statement is further confirmed by Vulturno and others testifying that they did return to Raffaele's flat on the 16th.

So now it is no longer a stray cop that happened to have a key that entered the cottage when it was under seal. it is a premeditated plan with an activity that was to be performed and a subsequent coverup. This is not a conspiracy theory. It is a full blown conspiracy.

 

[anglolawyer]

The relevant paragraph of Art 104 is as follows:


3. Nel corso delle indagini preliminari, quando sussistono specifiche ed eccezionali ragioni di cautela, il giudice su richiesta del pubblico ministero può, con decreto motivato, dilazionare, per un tempo non superiore a cinque giorni, l'esercizio del diritto di conferire con il difensore.


3. In the course of the preliminary investigation, where there are specific and exceptional reasons of caution, the judge at the request of the public prosecutor may, by reasoned decree, defer, for a period not exceeding five days, the exercising of the right to confer with the defendant.


Note the words specific and exceptional. Unfortunately, while they have obvious meaning, they are sufficiently nebulous and subjective as to allow egregious misapplication.

By any reasonable, objective measure, the circumstances surrounding the detention of Knox, Sollecito and Lumumba cannot be described as "specific and exceptional". There can be no possibility of a wider criminal conspiracy - indeed, the police and PM firmly believed that they had identified and arrested all three perpetrators at that point. And there is of course no evidence whatsoever to suppose that had Knox and Sollecito (and Lumumba) been properly provided with access to legal counsel, this could/would in any way have jeopardised the investigation or the prospects of conviction.

Simply put, this section of the code was grossly abused by Mignini in this case, and he was ably abetted by the investigating judge. I have little doubt that the ECHR will interpret things in this manner also.

As Numbers would say, highlighting and bolding added. Where is the reasoned decree deferring the rights of the accused persons to legal advice under this provision? I would like to read it. Mach, please add it to the list of things you are supposed to be finding for us.

 

[Diocletus]

The ECHR is highly likely to say, well you can keep"specific and exceptional" suspects from seeing attorneys for up to 5 days, but anything any suspects say or write during that period without counsel cannot be used in court against them. ECHR actually would find 5 days too long a period to keep a suspect from an attorney, IIUC. And as you write, Knox, Sollecito, and Lumumba would not be "exceptional" in the apparent sense of linkage to a crime or terrorist organization. ECHR doesn't support arbitrary detention or arbitrary denial of counsel.

Check out the new Ibrahim decision, issued today. It's pretty clear that when there is "emergency questioning", the fruits of the questioning can't be used to convict, absent circumstances that would otherwise render the statements admissible, e.g., later adoption of the statements, or the immateriality of the statements.

If effect, whether Knox's statements were gathered in an "emergent"-type interrogation doesn't matter, because the statements have to be otherwise admissible.

 

[anglolawyer]

{Highlighting and bold added to quote.}

anglo,

The ECHR has judged that remand hearings must be held in good faith and not be arbitrary, IIUC, to not violate Convention Article 5. Of course time limits may be an issue against admissibility. Any thoughts?

ETA: By the date of the hearing, Mignini would have had the DNA results showing that neither Raffaele nor Patrick Lumumba were the source of the DNA of the male who had raped Meredith, IIUC.

Well, it goes without saying that all judicial proceedings must be held in good faith and not be arbitrary. While I have no doubt about the lack of fairness of the Matteini hearing I am not sure whether its something for the ECHR. Aside from anything else, I am not aware of either defence team focusing on the propriety of the investigation to the same degree that we are free to do here. It seems to be an unwritten rule of Italian jurisprudence that nobody can ever be accused of making **** up, no matter how blindingly obvious it is that they did so.

 

[Desert Fox]

Check out the new Ibrahim decision, issued today. It's pretty clear that when there is "emergency questioning", the fruits of the questioning can't be used to convict, absent circumstances that would otherwise render the statements admissible, e.g., later adoption of the statements, or the immateriality of the statements.

If effect, whether Knox's statements were gathered in an "emergent"-type interrogation doesn't matter, because the statements have to be otherwise admissible.

I have a question based on this. . . .
Let us assume that Amanda was guilty and was interrogated without a lawyer.
Assume that they found out where she hid the knife and it had actual blood on it and it was Meredeth's, would that be "Fruit of the Poisoned Tree?"

 

[anglolawyer]

Check out the new Ibrahim decision, issued today. It's pretty clear that when there is "emergency questioning", the fruits of the questioning can't be used to convict, absent circumstances that would otherwise render the statements admissible, e.g., later adoption of the statements, or the immateriality of the statements.

If effect, whether Knox's statements were gathered in an "emergent"-type interrogation doesn't matter, because the statements have to be otherwise admissible.

From the BBC

Judges at the ECHR said: "It has been convincingly established that at the time of the impugned police interviews there was an exceptionally serious and imminent threat to public safety, and that this threat provided compelling reasons which justified the temporary delay of all four applicants' access to lawyers."

Hardly applicable to our case one should have thought.

 

[Diocletus]

From the BBC



Hardly applicable to our case one should have thought.

Yeah. If it was an emergency, the mignini would have been derelict if he only acted as a "notary". And Italian magistrates are never, ever derelict (well, except for taking body temperature, but that was really someone else's fault).

This whole "emergency" thing is a red herring, anyway, because it doesn't seem to impact the admissibility analysis in any way.

 

[Kauffer]

From the BBC



Hardly applicable to our case one should have thought.

This is quite correct. All of the very unusual exceptions are related to imminent threats and public safety or serious organised conspiratorial criminal enterprises. I know Ms Knox is not well regarded by the pro guilt mob but she was hardly part of a multi national terrorist organisation threatening mass murder.

 

[Vibio]

I know Ms Knox is not well regarded by the pro guilt mob but she was hardly part of a multi national terrorist organisation threatening mass murder.

Not a national terrorist organization, but evidence may have led to the belief that she was part of part of a (more than local) drug ring. And one that murders.

 

[Kauffer]

Not a national terrorist organization, but evidence may have led to the belief that she was part of part of a (more than local) drug ring. And one that murders.

What evidence? When?

 

[carbonjam72]

I really don't know, but I'd certainly like more clarification around when the police/PM first started monitoring Guede in relation to the murder. Right now, I'm inclined to think that Guede was not in the frame at all until a) the case against Lumumba fell apart, and b) the first solid evidence pointing to Guede emerged (in the form of the hand print on the pillow case and his friend's approach to the police).

But if it could be shown that the police were in fact monitoring Guede a propos the murder as early as the first few days of the investigation (i.e. 2nd-5th November), this would of course open a very large can of worms.

Well I agree with you there, if the police were monitoring Guede before he was identified by biological evidence at the crime scene, then that seems hard to explain other than that the police suspected Guede's involvement in the Kercher killing.

If that were true, then the story of the staged break-in, becomes easy to understand not as the bizarre idiotic error of incompetent nitwits, but a careful plan to misdirect the investigation away from Guede, as I have argued is what happened.

However, I haven't seem the smoking gun that concrete evidence of the police monitoring Guede prior to his identification by biological evidence at the crime scene has been shown to exist. The recent testimony upthread of the cop regarding wiretaps seems ambiguous to me in regard to specific dates.

I would ask again, assume the evidence the police were monitoring Guede after the murder, but before he was identified from bio evidence at the crime scene IS NOT YET FOUND, may be true but we don't have it - or even alternatively, can be shown not to be true - how open are you to the idea that Napoleone and Zugarini did in fact recognize Guede's breaking and entry MO, and did alert Mignini BEFORE Mignini even arrived at the crime scene?

"I'm not sure", is an honest answer. But try fitting that piece in with all the other police behavior, and see how much mileage you get if these are intentional lies designed to draw attention AWAY FROM Rudy Guede as the sole killer. ("covering body with a duvet is a female gesture"; "climb to 2nd floor is impossible"; "multiple killers"; "faked break-in").

 

[Diocletus]

This is quite correct. All of the very unusual exceptions are related to imminent threats and public safety or serious organised conspiratorial criminal enterprises. I know Ms Knox is not well regarded by the pro guilt mob but she was hardly part of a multi national terrorist organisation threatening mass murder.

Based on this opinion, I would not be surprised if the ECHR agreed that Knox could be questioned without counsel under an exigency exception--the exigency test used in Ibrahim seems to be broad enough to apply to many situations short of terrorism. That said, I'm not sure that Italy raises such an argument to the ECHR, because it does not appear to be an argument that the authorities have put forward at any time in the underlying proceedings, including at the time counsel was denied (compare Ibrahim, where it appears undisputed that the police properly invoked exigency under applicable national law).

Again, though, this exigency issue is a red herring. Regardless of the reason for the denial of counsel, it is still necessary for a statement taken in violation of the right to counsel to be admissible/usable under the test described in Ibrahim.

 

[Diocletus]

I have a question based on this. . . .
Let us assume that Amanda was guilty and was interrogated without a lawyer.
Assume that they found out where she hid the knife and it had actual blood on it and it was Meredeth's, would that be "Fruit of the Poisoned Tree?"

Well, generally, yes. But that's not what happened here. Here, they directly used a statement taken in the absence of counsel to obtain the defendant's conviction.

 

[carbonjam72]

Not a national terrorist organization, but evidence may have led to the belief that she was part of part of a (more than local) drug ring. And one that murders.

This is just silly.

She was an innocent young college student, literally kidnapped by a corrupt prosecutor with a history of delusional fantasizing of satanic sect conspiracies, which he tried to fit this case into.

Zero real evidence, contrived lies and pseudo science is all that was ever offered, and idiot corrupt judges went along for the ride. They should just put barbed wire around the whole Questura as a continuous crimes scene.

Where your bias comes against knox comes from is just a complete mystery. Focus on Mignini and the police in this case and maybe you'll start to understand this miscarriage of justice.

 

[Diocletus]

I read the transcript of the fingerprint experts the other day and I'm inclined to think Guede being identified by his palm print is BS. There was no bloody palm print on the pillow and they just made it up. Rose said she asked Vinci and he never saw any palm print.

The lawyers (based on their questions) seemed to be suggesting his fingerprint was found somewhere else and that's how he was ID'd. They had a photo of the pillow up on the screen and are asking which letter corresponds to the palm print etc and it was all pretty vague....as in the guy was unsure and couldn't really tell which one and maybe it's in another report. There's also a question about the fabric thread count suggesting it wasn't possible to lift a print of a pillowcase. The machine translation wasn't the best.

Vibio might want to take a look and offer an opinion. The witnesses were Claudio Cantagalli, Agatino Giunta and Antonino Francaviglia.

I don't see any way that they identified Guede with that ridiculous palm print (IMO, made with Guede's own blood).

We know that they had Guede's DNA as of November 6. We also know that Guede's friend raised the alarm at some point, perhaps early on. They may well have had his fingerprint. It would be interesting to see the real date of the first DNA test of a Guede item, but all of that information has been hidden. The supplied profiling information for the toothbrush is even bogus.

 

[Diocletus]

Interesting tidbit from Ibrahim at paragraph 117:

However, in view of the prosecution concession that reasonable objective grounds to suspect the fourth applicant of an offence could be said to have crystallised by the conclusion of his first oral account, the judge was satisfied that there had been a breach of the applicable code at the time when the fourth applicant had made his written witness statement.

In other words, this English judge agrees that if the police form a suspicion based on oral statements of the interogee, it is a violation of the right to counsel for the police to then convert those statements into a written statement without at least providing prior access to counsel.

 

[Kauffer]

Based on this opinion, I would not be surprised if the ECHR agreed that Knox could be questioned without counsel under an exigency exception--the exigency test used in Ibrahim seems to be broad enough to apply to many situations short of terrorism. That said, I'm not sure that Italy raises such an argument to the ECHR, because it does not appear to be an argument that the authorities have put forward at any time in the underlying proceedings, including at the time counsel was denied (compare Ibrahim, where it appears undisputed that the police properly invoked exigency under applicable national law).

Again, though, this exigency issue is a red herring. Regardless of the reason for the denial of counsel, it is still necessary for a statement taken in violation of the right to counsel to be admissible/usable under the test described in Ibrahim.

Yep, your last para is right and at the heart of this. I'm not convinced by an exigent circumstances exception - it's a stretch, but maybe, but not enough anyway.

Here's something I'd forgotten - from "honour bound". Noting that "Italian law allows prosecutors to bar defendants (sic) from speaking to their lawyers only in exceptional circumstances...", Mr Sollecito goes on to say, "the prosecutor is required to petition the court in writing to justify..." And, "The prosecutor had no coherent explanation of where the petition was....he said only that he "remembered imparting it" - and the judge (Matteini)..acknowledged she had not seen it". Apparently it has never turned up.

Mr Sollecito's then lawyer tried to get access to him on the 7th. Ms Knox's lawyers, however, were not hired in time to attempt a visit before the Matteini hearing, but speculates with good reason that they too would have been denied access. Both see counsel for the first time, separately, in the court on the 8th with no prior opportunity for consultation.

 

[Bill Williams]

I know Ms Knox is not well regarded by the pro guilt mob but she was hardly part of a multi national terrorist organisation threatening mass murder.

Not a national terrorist organization, but evidence may have led to the belief that she was part of part of a (more than local) drug ring. And one that murders.

What evidence? When?

Exactly. As noted upthread, the Italian authorities seem to be able to just make things up, with no accountability for how that pushes things off the road.

It would not be so bad if this was not limited to claims made in an obscure internet service, like here on ISF. Vibio now just gets to make up out of whole cloth one in a long, long long, series of "may haves", with no other purpose than granting the benefit of the doubt to the Perugian law system which can detain people without lawyer, only make any lawyers available to them just moments before an appearance in court which will further their precautionary detention....

..... such detention which was based on nothing but lies. Massei gets to fill his 2010 motivations report with probablies, and nencini gets to fill his 2014 motivations report with may haves. (Do not the pro-guilt lobby have any evidence?)

And what does the other side say about the issue of them being denied lawyers? That Knox "may have" had a connection to a local drug ring, (and just for some added spice, Vibio adds) one that murders.

All this without so much as a shred of evidence. Even Machiavelli cannot provide the evidence. Machiavelli simply repeats that Knox may have had (ooops, there's that "may have" again) the contact number of a known drug dealer in her mobile. Ooooooooooooooooooooooooooooo..... in Perugia if you put 20 names/numbers into your mobile, at least one of them is going to be peddling drugs. It's a college town.

When Machiavelli's reasoning falls under the weight of a "so?", even Machiavelli retreats into saying, "Well the only reason I am saying this is a possibility is because I don't want Knox being seen as fundamentally different than Rudy Guede." Then the goalposts REALLY get moved when M. implies, any talk that they are fundamentally different is racist.

This is the way the case has to be presented against AK and RS when there is little, if any, evidence that they actually committed the crime to begin with. Simply assert that they consort with drug dealers, have sex with drug dealers, are perhaps even part of a murderous band of drug dealers.... assert anything as long as it contributes to the overall desired effect of contaminating the background information.

So what we've learned from the last 10 pages or so of this thread is that the pro-guilt lobby does not mind the violation of basic rights, as long as the defendants can be (not "are", but only "can be") associated with murderous drug dealing rings.....

..... with no evidence whatsoever presented to back up the claim.

It's good work if you can get it.

ETA - all because Vibio wants to grant the benefit of the doubt to Mignini for precautionarily detaining Knox AND Sollecito (why do they always forget Sollecito?) under laws reserved for Mafiosi.

 

[acbytesla]

Not a national terrorist organization, but evidence may have led to the belief that she was part of part of a (more than local) drug ring. And one that murders.

Vibio, this claim is either stupid or it's a reckless disregard for the truth. There is not a shred of evidence that points to Amanda being part of a drug ring. Amanda had been in Perugia all of 42 days, was in her first year studying Italian so she barely had any grasp of the language and there is no evidence that Amanda was dealing drugs in Seattle.

What's more is that no drug connection was ever brought forward, so it can hardly be justified to prevent Amanda's access to a lawyer based on that.