Continuation Part 11: Amanda Knox/Raffaele Sollecito

[Machiavelli]

Once more you are asking for evidence but not providing it.

The Knox-Sollecito defense has shown in public (MMK site) that they did not receive evidence they should have received for "equality of arms"

What are you talking about?
If it's Halkides and Zupancic, they ate not Knox-Sollecito defence, and they just made unsupported claims bringing zero evidence.

Show us that what you are saying about drug dealers is not a hoax. Actual court documents are required. Newspaper reports are not reliable enough.

You need to re-set your ideas on many aspects about how burden of proof works. Frankly you can believe what you want, to me the interest for what you believe is zero. But if you approach issues by assuming that local Italian newspapers make up false stories about local people, without even checking that, an you think your method is reasonable, this is up to you. It depends on you whether you want to investigate reality or go after fairy tales.

 

[Desert Fox]

Thanks. That's not where it originates because that was done in August yet this story has been around for years. It's not true. It doesn't exist in the court docs or any of the Italian media articles.

My understanding is that the author tracked back sources for everything written. The highlighted stuff at the bottom are her listed sources. The best thing I would suggest is contacting Karen Pruett for more details.

 

[Machiavelli]

Is this the start of your essay about application of common law precedence to ECHR judgments about violations of Convention Article 6.3c (right to legal counsel from lawyer) and Article 6.1 (right to a fair trial)?

Perhaps you should have some additional background to start.
For example, how was CCP Article 104 applied? Where is the reasoned motivation from the prosecutor that allows article 104 to be invoked?

The Investigating judge has spread ruled that there was no violation on the application of art. 104, this objection had been already presented and was rejected. The topic is over.

the questioning that demands someone incriminate herself or others relate to the questioning of a "safety interview" which relates to locating dangerous explosives or similar materials, or locating known terrorists?

There is no relation between art 104 and safety questionings.
There is no relation between safety questionings and Amanda Knox.
There is no requirement of a linkage with safety questionings in order to justify the delay of access to counsel for ECHR, the only bound required being to "good reasons".

 

[Numbers]

No, art. 104 is at the discretion of prosecution for 48 hours, with no requirement to obtain a privilege from the judge, then the orders after time expiration decays. The Investigating Judge may also establish it, withdraw it or uphold it and prolong it for up to son days.
The proof that denial of counsel is legal consists in the words of judge Matteini.
That exceptional circumstances mean terrorism threat is false, as for Italian jurisprudence and for ECHR.
That there was an emergency interrogation of Knox is also false; the interrogation was halted. Art. 104 was applied from 8.30am of the 6th, but Knox was not interrogated in the meanwhile.
In addition to this and severs other things, indeed I do maintain my stabbing analogy, since this is something at the core of the legal issue. Knox has been convicted of a crime, calunnia, for which she was nor being suspected nor investigated, and that had nothing to do with her questioning and detention. This crime was only discovered subsequently. There are several kind of crimes that may be committed through declarations, for example: Snowden; charges like espionage, high treason, leakage of state secrets, release of false ID info etc., are all kind of crimes that won't be protected by a defendant privilege just because they are committed during a period of police custody.

So are you saying that Amanda Knox did not incriminate herself by stating at her interrogation that she observed - by hearing - a murder/rape and did not report it to the police prior to the interrogation?

Are you saying that Amanda Knox did not incriminate herself by falsely accusing someone of the crime of murder/rape while she was under police interrogation, although in all her earlier interviews with police she never made such an accusation? There was no reason for her to make this false accusation except that the police were pressuring her - coercively - for this specific information she gave. The head of police in Perugia stated that Amanda Knox when interrogated had told the police what they already knew in a press conference held on Nov. 6, 2007.

Your misrepresentations cannot change the historical record.

 

[anglolawyer]

No, art. 104 is at the discretion of prosecution for 48 hours, with no requirement to obtain a privilege from the judge, then the orders after time expiration decays. The Investigating Judge may also establish it, withdraw it or uphold it and prolong it for up to son days.
The proof that denial of counsel is legal consists in the words of judge Matteini.
That exceptional circumstances mean terrorism threat is false, as for Italian jurisprudence and for ECHR.
That there was an emergency interrogation of Knox is also false; the interrogation was halted. Art. 104 was applied from 8.30am of the 6th, but Knox was not interrogated in the meanwhile.
In addition to this and severs other things, indeed I do maintain my stabbing analogy, since this is something at the core of the legal issue. Knox has been convicted of a crime, calunnia, for which she was nor being suspected nor investigated, and that had nothing to do with her questioning and detention. This crime was only discovered subsequently. There are several kind of crimes that may be committed through declarations, for example: Snowden; charges like espionage, high treason, leakage of state secrets, release of false ID info etc., are all kind of crimes that won't be protected by a defendant privilege just because they are committed during a period of police custody.

• Source?
• Reasoned decision?
• Justification (don't bother with that one as there isn't any, since stopping defence lawyers conferring in a multi-party murder case cannot be considered 'exceptional')
• Relevance? We are principally concerned with access to advice on the night of 5th-6th, not afterwards when the damage was done.

 

[Numbers]

The Investigating judge has spread ruled that there was no violation on the application of art. 104, this objection had been already presented and was rejected. The topic is over.



There is no relation between art 104 and safety questionings.
There is no relation between safety questionings and Amanda Knox.
There is no requirement of a linkage with safety questionings in order to justify the delay of access to counsel for ECHR, the only bound required being to "good reasons".

Please read Ibrahim et al. v UK again, but more thoroughly.

 

[Machiavelli]

This is a spectacular assertion.
One cannot go to prison in Italy for the crime of burglary and stealing, but one can go to prison for many years for the "crime" of "calunnia" when the "calunnia" is the result of a coercive police interrogation, and the "calunnia" is forcibly suggested by the police. [Calunnia may be defined as a false accusation to authorities against another person.]

Not burglary. Guede didn't commit any burglary in Milan.
He was found inside a building (unauthorized entrance; extremely petty offence) and in possession of stolen goods.
I am saying that stealing does not bring people into prison but in exceptions circumstances, this is exactly what I wrote, and stealing is an offence that can only be prosecuted privately. But there was not even room for a charge if stealing against Rudy Guede.

Possession of stolen goods is actually a more serious charge than stealing under Italian law. That might seem strange, but it is so. However, nobody is taken in prison for that, it almost never happens. And if it happens it lasts a week.

Calunnia is a much more serious charge. It's not an offence against property, it's against the state and against the person.

You really should learn a bit of the code.

 

[Diocletus]

There is no requirement of a linkage with safety questionings in order to justify the delay of access to counsel for ECHR, the only bound required being to "good reasons".

You mean "compelling" reasons.

But, there is an interesting issue here. The denial of counsel, in and of itself, does not matter. Art. 6 ECHR deals with "fair trials," and the decisions of the ECHR state that there is no Art. 6 violation until evidence elicited by the police in violation of the right to counsel is used at trial to obtain a conviction. This point is addressed in Ibrahim, although the court seems a little confused:

195. However, applicants rarely complain of restrictions in respect of legal assistance in isolation. A witness or suspect interviewed by the police and released without charge has little interest in pursuing complaints about inadequate procedural guarantees. The alleged unfairness generally arises because statements made during police interrogation without legal advice are subsequently admitted as evidence in criminal proceedings. Thus, the second aspect of the Salduz principle holds that, even where a restriction on access to legal advice was justified for compelling reasons, and thus itself compatible with Article 6, it may nonetheless be necessary, in the interests of fairness, to exclude from any subsequent criminal proceedings any statement made during a police interview in the absence of a lawyer. The question, at this stage of the Court’s assessment, is whether the admission of a statement made without access to legal assistance caused undue prejudice to the applicant in the criminal proceedings, taking into account the fairness of the proceedings as a whole.

Contrary to what this court seems to think, the reason that no complaints are filed for deprivations of counsel that don't result in the admittance at trial incriminating statements is very simply that there is no Art. 6 violation unless and until the statements are used to convict, so there would be nothing to complain about in such a case.

Anyway, it would be good in a way if the Italians claimed that they intentionally denied access to counsel due to exigency, because that makes the deprivation of counsel issue very simple (she was entitled to counsel, but it was denied). But, I don't think this will happen, because it was not claimed in the proceedings (they didn't file a sec. 104 application).

Everyone agrees that counsel was denied from prior to 5:45 until November 8, and the relevant analysis is the so-called "second aspect" of Salduz: "whether the admission of a statement made without access to legal assistance caused undue prejudice to the applicant in the criminal proceedings, taking into account the fairness of the proceedings as a whole."

As to the 1:45 statement, it is necessary to determine whether counsel was deprived, but I think we all know that "suspicion" chrystallized during the oral part of the interrogation, and therefore the cops should have allowed access to counsel before asking her to sign their typed statement. See Ibrahim, here:

117. On 3 October 2007 the trial judge refused the fourth applicant’s application to have the witness statement excluded. He accepted that at the time when the fourth applicant had arrived at the police station there had been no reasonable objective grounds to suspect him of any offence and that it was entirely appropriate to treat him as a witness. 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.

 

[Machiavelli]

So are you saying that Amanda Knox did not incriminate herself by stating at her interrogation that she observed - by hearing - a murder/rape and did not report it to the police prior to the interrogation?

Are you saying that Amanda Knox did not incriminate herself by falsely accusing someone of the crime of murder/rape while she was under police interrogation, although in all her earlier interviews with police she never made such an accusation? There was no reason for her to make this false accusation except that the police were pressuring her - coercively - for this specific information she gave. (...).

I am saying that Amanda Knox was convicted because she committed a calunnia, nit because she incriminated herself.

Your assertion that she had no reason and was coerced, besides being totally unproven and unsupported, has been found to be false by courts. There is no need to add things.

 

[anglolawyer]

snip
As to the 1:45 statement, it is necessary to determine whether counsel was deprived, but I think we all know that "suspicion" chrystallized during the oral part of the interrogation, and therefore the cops should have allowed access to counsel before asking her to sign their typed statement.

And, of course, this omission covers the calumny charge as well as the murder. We don't know what she actually said (there is no tape). It may have been no more than 'I see Patrick! It's Patrick!' which could mean anything. Give her a lawyer and some time to consult and it might be explained that she had merely realised it was Patrick with whom she exchanged texts or even that she had momentarily formed a picture of Patrick committing the murder but had realised that this was a false image resulting from the stress of the interrogation and that she certainly was not making any accusation against him.

 

[Diocletus]

In addition to this and severs other things, indeed I do maintain my stabbing analogy, since this is something at the core of the legal issue. Knox has been convicted of a crime, calunnia, for which she was nor being suspected nor investigated, and that had nothing to do with her questioning and detention. This crime was only discovered subsequently. There are several kind of crimes that may be committed through declarations, for example: Snowden; charges like espionage, high treason, leakage of state secrets, release of false ID info etc., are all kind of crimes that won't be protected by a defendant privilege just because they are committed during a period of police custody.

You will be interested to know, that this issue seems to have been teed up, but not really answered, in Ibrahim. The answer is in Saunders:

164. The Government submitted that the applicants’ rights were not unduly prejudiced. It was highly material that they had complained about the admission of lies told in their police interviews, rather than adverse inferences from silence or admission of self-incriminating statements. The Court’s statement in Saunders v. the United Kingdom, 17 December 1996, § 71, Reports 1996‑VI, that the right not to incriminate oneself could not be confined to statements which were directly incriminating but also extended to exculpatory remarks, had been made in the context of statements obtained under compulsion. This was not the case here and, in any event, the applicants’ statements were not merely exculpatory but also false. In the Government’s submission, the right against self-incrimination operated to protect those who incriminated themselves or remained silent. It did not protect those who had deliberately and freely attempted to mislead the authorities (citing, mutatis mutandis, Allen v. the United Kingdom (dec.), no. 76574/01, ECHR 2002‑VIII).

170. There was no relevance in the distinction drawn by the Government between telling lies and making incriminating admissions or staying silent (see the Government’s submissions at paragraph 164 above). Any such distinction had no basis in domestic law or the Court’s case-law. Saunders Saunders, cited above, § 71, made it clear that the right not to incriminate oneself could not reasonably be confined to admissions. Lies were often deployed as evidence of guilt because a proven lie was a self-incriminating statement. Furthermore, when choosing not to exercise their right to silence, the applicants had not had access to a lawyer and the Court could not know whether, if legally advised, they would have acted differently. Finally, the Government’s distinction would have uncertain and unpredictable consequences: in an interview an arrested person could remain silent, tell lies, admit the offence or give answers that might later be argued to be lies or admissions. Unless there was a single rule for questioning, the police, trial courts and appellate courts could not know if the interview was compatible with the Convention.

So, it seems clear that "lies" aren't admissible if made under compulsion, although there seems to be an argument open that "lies" are admissible if there is no compulsion. The court doesn't really set out a test for compulsion, so it's unclear what this possible distinction even means.

 

[LondonJohn]

The fact that a rapist and murderer (possibly with a foreign passport) is at large is not a threat to public safety?
Than also, you may notice that the treatment of Amanda Knox was in fact different, because her questioning was actually halted.
Amanda Knox was not questioned after she started to incriminate herself, and was nit questioned while art. 104 was applied.

What the heck are you going on about here? What you've written is wrong on so many levels it's pathetic.

Firstly, as of around 6.30am on 6th November, the police and PM believed they had captured and detained everyone involved in the murder: Knox, Sollecito and Lumumba*. What's this ridiculous nonsense about "a rapist and murderer at large"?

Secondly, even if there was a "rapist and murderer at large" (histrionic hyperbole duly noted, by the way), then no, this does not by any definition constitute a threat to public safety unless and until there is a credible imminent threat. It's an ENTIRELY DIFFERENT BALL GAME from things like terrorist conspiracies or organised crime, and the ECHR will without a shadow of a doubt recognise this.

Thirdly, if you're referring to the short period between Knox accusing Lumumba and Lumumba being arrested as the period when there was a "rapist and murderer at large", nobody's suggesting that Knox should have been allowed to leave or make phone calls etc. What I and others are suggesting is that as soon as Knox made the oral "confession/accusation" (note: NOT when she signed the 1.45am written statement, which by definition came later than the oral statement), she should have been formally cautioned (do you know what that is and what it entails? I'm not even sure you do.....) and provided with access to a lawyer. Simply put, the 1.45am written statement should never have even been placed in front of Knox to read and sign without a lawyer being present and Knox being fully appraised of her rights. Do you at least understand that?

But more than that, Knox should clearly have been arrested, cautioned and provided with legal counsel far earlier than even the oral "confession/accusation". After all, by the accounts of not only Knox herself, but also the police and "interpreter" (hmmm), the police were telling Knox that they "knew" she was involved and that she needed to tell them what really happened otherwise she would be in real trouble. And we have corroborated evidence that it was put to her that she might have suffered traumatic amnesia. Clearly the police suspected her of criminality at that point (whether murder or obstruction of justice is irrelevant), so Knox should have been cautioned and given access to counsel well before she "buckled".


* Unless you believe the police/PM suspected Guede of involvement at that moment in time...........

 

[LondonJohn]

And, of course, this omission covers the calumny charge as well as the murder. We don't know what she actually said (there is no tape). It may have been no more than 'I see Patrick! It's Patrick!' which could mean anything. Give her a lawyer and some time to consult and it might be explained that she had merely realised it was Patrick with whom she exchanged texts or even that she had momentarily formed a picture of Patrick committing the murder but had realised that this was a false image resulting from the stress of the interrogation and that she certainly was not making any accusation against him.

As I've just written in my previous post, it is axiomatic that there must have been a period of time between a) Knox making whatever "confession/accusation" she made orally, and b) the police typing up (with or without embellishment) those spoken words, and presenting them to Knox to sign as a written record of what she had spoken.

And it therefore also goes without saying that during that period of time, Knox should undoubtedly have been a) formally cautioned, and b) given access to legal counsel.

In other words, by the time the police came back into the interrogation room holding a typed statement for Knox to read and sign, Knox should already have been able to consult a lawyer, and she should also have been fully aware of her arrest, grounds of arrest, rights (including of course the right to silence) and an indication of the process to be followed.

In my opinion, all of the above is a total slam-dunk argument - it's inarguable that Knox at the very least should not have been arrested, read her rights and given access to legal counsel in-between her oral utterings and her reading/signing of the written statement at 1.45am. But as you and I and others also believe, it's also highly likely that Knox should in fact have been arrested, cautioned and given a lawyer shortly after starting her interrogation that night (if not even before her interrogation started). That's because there's ample evidence to indicate that the police suspected her of criminality well before she "buckled", and indeed the entire tone of the interrogation leading up to the oral "confession/accusation" was accusatory and most certainly not in the manner of a witness interview.

 

[LondonJohn]

I am saying that Amanda Knox was convicted because she committed a calunnia, nit because she incriminated herself.

Your assertion that she had no reason and was coerced, besides being totally unproven and unsupported, has been found to be false by courts. There is no need to add things.

Ahahahahaha! Machiavelli appears not to comprehend that in pretty much every single ECHR ruling in favour of an applicant, the ECHR ruling of a violation is (almost by definition!) at odds with previous rulings in national courts.

In this case, of course, the laughing-stock national courts of Italy - up to and including the Supreme Court - were wrong when they found Knox's claims of improper coercion to be false. If and when the ECHR decides Knox was indeed improperly coerced (and thus her human rights were violated), the ECHR will by definition be saying that the Italian courts got it wrong.

 

[LondonJohn]

Please read Ibrahim et al. v UK again, but more thoroughly.

I think unfortunately that there is a fundamental disconnect between "reading" and "comprehension" here on the part of Machiavelli.

He appears to be either highly ignorant or highly biased when he tries to claim that Knox's (and Sollecito's/Lumumba's) situation comes anywhere remotely close to resembling the circumstances in which counsel was denied in the ECHR case you reference.

There's simply no comparison whatsoever to be made between 1) a group of Islamist terrorists intent on causing indiscriminate death and mayhem among the general public across a major capital city (many of whom might still be at large and about to initiate more terrorist atrocities), and 2) an isolated domestic murder with no indications whatsoever of any wider conspiracy or threat to public safety. It's utterly, utterly ludicrous to imagine that any reasonable comparison could be made.

 

[LondonJohn]

(By the way, in my speed catch-up read of the thread this morning, I failed to notice that others had already mentioned the ECHR ruling on the Ibrahim et al application, so apologies for going over old ground again! In any case, it's obviously a very instructive case - both in terms of the ruling and also in the explanations for the ruling - that further adds to the opinion that the ECHR will rule in Knox's favour)

 

[Numbers]

{1} Not burglary. Guede didn't commit any burglary in Milan. He was found inside a building (unauthorized entrance; extremely petty offence) and in possession of stolen goods. {2} I am saying that stealing does not bring people into prison but in exceptions circumstances, this is exactly what I wrote, and stealing is an offence that can only be prosecuted privately. But there was not even room for a charge if stealing against Rudy Guede.

{3} Possession of stolen goods is actually a more serious charge than stealing under Italian law. That might seem strange, but it is so. However, nobody is taken in prison for that, it almost never happens. And if it happens it lasts a week.
{4} Calunnia is a much more serious charge. It's not an offence against property, it's against the state and against the person.
You really should learn a bit of the code.

1. The difference between burglary and unauthorized entry is often a narrow one. The concern in the US is that a person committing a burglary or an unauthorized entry has some probability of harming by sexual assault or other violence the residents of the place entered. Perhaps Italy does not see this danger, which came to a criminal reality when Rudy Guede broke into the flat occupied by Meredith Kercher and her flat-mates.

Burglary and unauthorized entry are AFAIK serious crimes, felonies, in the US. That they, on the basis of your statement, are not such in Italy is shocking.

2. Apparently, in Italy stealing is not really a crime, or is a minor misdemeanor, again, according to your statement. I think that Italian law must differ from that in many other places if I have understood your statement correctly.

3. Again, based on your statement, possession of stolen goods is a crime, but not too serious of a crime, in Italy. Depending on circumstances, in the US, possession of stolen goods may be taken to indicate that one has committed burglary, an extremely serious felony. Possession of stolen goods (generally depending on the total value) is likewise a serious crime.

4. In the US, police actually (ideally) investigate statements or accusations that they receive. While intentional false statements or accusations may be illegal in the US, my impression from your statements and some other information is that this crime is a major focus of police effort in Italy, and that people there are obsessed with either criminally defaming others or being defamed.

ETA: Perhaps Mach is revealing the mindset of the Italian authorities here in there treatment of "poor Rudy" Guede. Merely breaking in to places or stealing is barely a crime in Italy. And we know that the misogynistic courts in Italy often have downplayed the seriousness of rape as a crime.

 

[Bill Williams]

Christ almighty. Just when I think your BS can't possibly get any dumber, it does.

Now it's "defamatory" to doubt malicious gossip about Amanda Knox.

Go ahead, file the papers, bring charges. We're shaking in our boots.

I am talking about people calling names and accusing Mignini, the police, Stefanoni....

...alleging blackmailing, plots, fabricating evidence, being responsible of murders, orchestrating mafia defamatory campaign, suppressing laboratory results, perjuring, being corrupt, committing abuses...

.... Machiavellian schemes to pervert justice by replacing one judge with Claudio Hellmann for the first appeals' court hearing, accepting American Media money delivered personally by the Masons for Hellmann to throw the trial, a massive innocentisti PR-supertanker by a middle-level Seattle PR firm, the whole populace of Seattle practising Mafia-inspired Omertà in hiding April Fools' pranks from the rest of the world....

.... proposing/alleging a drug/sex connection about Knox with drug dealers solely to make the point that Knox is no different than Rudy Guede, rather than actually demonstrating it with evidence....

.... defending the lawyerless detention/interrogation of Knox/Sollecito on the grounds of "imminent threat" even though they're already in jail.....

All this, and Patrizia Stefanoni still has not released the EDFs..... you decide who is calling the kettle black.

 

[Bill Williams]

But what Donnino says is that Knox did not want to talk. As a mediator, she suggested that maybe Knox could have "removed" the traumatic experience: this is "mediation" since it means give Knox an opportunity and a safe justification for "forgetting" and thus for possibly change her story, so allow her to remember something new safely, without being implicitly accused of being a liar or presented as a liar.
This is called mediation, it's diplomacy, it's work of removal of psycological defence obstacles, and it's routine.
But in fact, this does not equate to describing Knox as confused.

But more than that, Knox should clearly have been arrested, cautioned and provided with legal counsel far earlier than even the oral "confession/accusation". After all, by the accounts of not only Knox herself, but also the police and "interpreter" (hmmm), the police were telling Knox that they "knew" she was involved and that she needed to tell them what really happened otherwise she would be in real trouble. And we have corroborated evidence that it was put to her that she might have suffered traumatic amnesia. Clearly the police suspected her of criminality at that point (whether murder or obstruction of justice is irrelevant), so Knox should have been cautioned and given access to counsel well before she "buckled".


* Unless you believe the police/PM suspected Guede of involvement at that moment in time...........

Even Machiavelli, in ISF post #3630, corroborates this. He says this in trying to distinguish Anna Donnino's various roles that she took on, and defends (above) her acting like a mediator.

 

[Kauffer]

Italy and the ECHR

Look at this. Very interesting indeed!

"...the Court of Cassation, since 2005 (the so-called Cat Berro Decision), has adopted a new line of interpretation, under which no conviction can be executed, nor sentence served, if the European Court of Human Rights (ECtHR) had declared that the process violated, in at least one provision, article 6 of the ECHR.(16)

Finally, in 2007, the Italian Constitutional Court declared that the ECHR must be interpreted by Italian judges as a source of the Italian system that is superior to the law, even if inferior to the fundamental principles of the Italian Constitution. Therefore, when a text of a legal provision appears to conflict with one or more provisions of the ECHR, the judges are asked to make every possible effort to interpret and apply the Italian provision in coherence with the ECHR – as interpreted by the ECtHR. If it is not possible to solve the conflict through interpretation, the judges must submit the problem to the Constitutional Court, which may declare the Italian source to be constitutionally illegal."

http://www.legalaidreform.org/crimi...download/153_6ac3f292a1634cefcd0d407bacca0209

Facinating! We see where all this is going, I think.