Continuation Part 11: Amanda Knox/Raffaele Sollecito

[Bill Williams]

Here they go, this from your great friend, Bill.

I wonder whether he can even read and understand the first page of Nencini's judgment.

Success in selling records and plane rides is not a substitute for years spent studying criminal law, constitutional law, evidence law, criminal procedure, trial advocacy, etc., etc..

And this is the issue. As everyone here knows, murder cases are not solved by lawyers. Lawyers, whether prosecutors or defence attorneys, are not seeking truth, but the best outcome for their clients. While this should be self evident, guilters are blind in this regard, by necessity. They shelter behind "judicial facts" that are not facts, annulments that can delete a de novo trial process in form, but not function, transferred judgements because they are finalised by Cassation, but not by logic and science.

I was dressed down once for suggesting to a prosecutor friend that "the state" which he represented was interested only in the truth. (I thought I was sucking up to him!)

He said that "the state" which he represented was only interested in two things:

- did pursuing this serve the public interest?
- was there a likelihood of conviction if proceeded with?​

There, apparently, is truth somewhere in those things.... but those two things was what he was about. If either one was answered with a "no", then he did not proceed.

Ok - lesson learned. Hey, if I can learn, maybe PQ can too!

 

[anglolawyer]

Back to the closing arguments, I think it's interesting that PM Mignini doesn't start his closing arguments with the case, he starts it with making the case an "us against them" matter:

translated:

Geeeeeeeeezzz!! What a fruitcake.

 

[Numbers]

Because they had a lead to Guede already on November 4th... given to them by Stefano Bonassi...

From applying Google Translate to the Mignini quote from Methos:

Today's accused Guede, nicknamed "The Baron", had been, in fact, indicated by Stefano Bonassi in p. v. of s.i. of 4:11:07 (which had, among others, reported habit of Rudi not flush the toilet with faeces) and Temgoua Ndongmo Louis Patrick the 13:11:07.

Question: What does "p.v. of s.i." mean? I assume some kind of communication?

 

[Methos]

From applying Google Translate to the Mignini quote from Methos:

Today's accused Guede, nicknamed "The Baron", had been, in fact, indicated by Stefano Bonassi in p. v. of s.i. of 4:11:07 (which had, among others, reported habit of Rudi not flush the toilet with faeces) and Temgoua Ndongmo Louis Patrick the 13:11:07.

Question: What does "p.v. of s.i." mean? I assume some kind of communication?

http://www.internationalskeptics.com/forums/showpost.php?p=10377836&postcount=4910

 

[Desert Fox]

I was dressed down once for suggesting to a prosecutor friend that "the state" which he represented was interested only in the truth. (I thought I was sucking up to him!)

He said that "the state" which he represented was only interested in two things:

- did pursuing this serve the public interest?
- was there a likelihood of conviction if proceeded with?​

There, apparently, is truth somewhere in those things.... but those two things was what he was about. If either one was answered with a "no", then he did not proceed.

Ok - lesson learned. Hey, if I can learn, maybe PQ can too!

The reality seems to be that many prosecutors consider themselves to be almost performing corporate law where they represent the state's position. In law school however I have heard that they are suppose to have a higher calling to what they think the truth is.

There are some really crooked prosecutors. Look at the prosecution of this guy for example
http://en.wikipedia.org/wiki/Richard_Paey

 

[Methos]

Geeeeeeeeezzz!! What a fruitcake.

It worked back then and it seems to work until today...

 

[Machiavelli]

That's all fine, except:

1. It improperly incentivizes the police to continue to interrogate people who they know are suspects, instead of allowing them access to counsel

2. The police/prosecution may misuse the ensuing statements, e.g., by presenting them in pretrial proceedings, resulting in publication of the statements

3. The process you describe fails, if the prosecution improperly presents the statement at trial, and it ends up being used to convict the defendant

The above points are partly correct. But the inferences contain also profound flaws. I try to explain myself.
1. The police, and the Carabinieri, and the Judiciary on the other side, are powers supposed to have a deep rift between them. They are very separate powers. Police is government, Carabinieri is army and state, but judiciary is a power often conflicting with the others, a kind of state within the state.
It is utterly impossible for the justice state to control government and military. Those are forces that would be impossible to control within the justice system
The administration of justice can't depend on powers which are basically armed forces and alien to the justice administration by their nature.
Police forces are a tool, prosecution is awarded command on them, but is unable to appoint them and control them. The judiciary is given a tool, but cannot chose the tool nor actually control it.

2. The police/prosecution doesn't exist, because it's two separate things as I said. But the point is partly correct, the danger exist. However this is not exhaustive. The danger won't go away even if the prosecution and police were stainless, because the system is intrinsically vulnerable to leaks: it is a system where multiple parties may access police evidence from the beginning of investigations. It is a transparent system, but transparency brings a price to pay on privacy. The system doesn't protect secrecy and privacy. This may be very damaging on fields totally independent from topics of investigation

3. This point is incorrect. The prosecution doesn't have a power to present evidence if the court doesn't accept it. The court can't read statements that cone from investigating judge or prosecution interrogation. By their nature these are inadmissible evidence.

 

[Machiavelli]

One of the features of good scientific skepticism is a willingness to change your position. I think you stated a very important point here and that you are not willing to change your position based on the evidence.

But my response, synthetic, responds to a specific rhetorical setting of the assertion that refer to the term "my position"; in fact it is not my position, it is just the procedure code. The readers here however don't believe me, hence they talk about "my position" while in fact it is not.
You are right about the fact that I may change my position, on whatever intellectual matter, but I can't change the procedure code, didn't change the procedure code, nor my knowledge of it over the last years.

 

[Kauffer]

3. This point is incorrect. The prosecution doesn't have a power to present evidence if the court doesn't accept it. The court can't read statements that cone from investigating judge or prosecution interrogation. By their nature these are inadmissible evidence.

Except in this case, you mean; statements made without benefit of counsel, used to convict.

 

[Numbers]

http://www.internationalskeptics.com/forums/showpost.php?p=10377836&postcount=4910

Thanks!

 

[Numbers]

Geeeeeeeeezzz!! What a fruitcake.

It worked back then and it seems to work until today...

A very informative post! Methos, thank you for providing this.

 

[Diocletus]

Because they had a lead to Guede already on November 4th... given to them by Stefano Bonassi...

What!

And, who is Temgoua Ndongmo Louis Patrick, and why were they interviewing him on the 13th--which I think is right before they broke in to Rudy's place?

 

[Kaosium]

Back to the closing arguments, I think it's interesting that PM Mignini doesn't start his closing arguments with the case, he starts it with making the case an "us against them" matter:

translated:

Heh, I especially like this part from your translated spoiler box:

But it is not yet enough supported by some well-known crime writer, who is totally without legal culture species of foreign legal systems and terrorized by nonexistent expulsion or arrest on comparisons (which undoubtedly exist only in his fertile imagination of writer) and supporter
faith-based theories of investigative now definitively repudiated at the judicial level and slanderous for innocent, they tried to tie instrumentally this crime of Perugia heinous and cruel crime stories, as disturbing, polluted and sordid, happened not far from here and the ramifications of such local events . In particular, they are literally invented references to ill-defined "conspiracy theories" to explain the involvement of the judiciary Knox and Sollecito, next to (according to them) and only really in charge of the boy of color, as if these characters for the crimes they should commit always and only by individuals and there were no crimes committed by criminal associations (and I, of all people, those of "Cosa Nostra"), except in perspectives "conspiracy", which I have not yet figured out exactly what it means and what it alludes . 1 References to these "theories" I've read in a strange blog open to coincide with November 2 07. This happens when one attempts to approach the varied criminal reality of our time with the lens distorting the preconceived notions on which to indent to force reality, a priori "conspiracy" or a priori "anticospirazionisti" does not matter.

Obviously, the minds of this operation are, however, in Italy, not in the United States.​

Obviously!

 

[Diocletus]

1. The police, and the Carabinieri, and the Judiciary on the other side, are powers supposed to have a deep rift between them. They are very separate powers. Police is government, Carabinieri is army and state, but judiciary is a power often conflicting with the others, a kind of state within the state.
It is utterly impossible for the justice state to control government and military. Those are forces that would be impossible to control within the justice system
The administration of justice can't depend on powers which are basically armed forces and alien to the justice administration by their nature.
Police forces are a tool, prosecution is awarded command on them, but is unable to appoint them and control them. The judiciary is given a tool, but cannot chose the tool nor actually control it.

This has nothing to do with separate branches of the government.

The police shouldn't be interrogating suspects in the absence of counsel. It's illegal.

 

[Kauffer]

What!

And, who is Temgoua Ndongmo Louis Patrick, and why were they interviewing him on the 13th--which I think is right before they broke in to Rudy's place?

From Micheli:

"Previously, however, details were taken by many people who had got to know or attend prevented, particularly in the more recent periods: November 13 already, the name of RUDI had been done by TEMGOUA NDONGMO PATRICK LOUIS, a student camerunense-worker who had indicated generically as usual companion game during basketball games at the field before the University for Foreigners (where the heads have been excluded for the late evening of November 1, having left no later than 19:00 but without having seen the GUEDE with not playing for about a month). "

 

[carbonjam72]

Originally Posted by Methos View Post
Because they had a lead to Guede already on November 4th... given to them by Stefano Bonassi...

What!

And, who is Temgoua Ndongmo Louis Patrick, and why were they interviewing him on the 13th--which I think is right before they broke in to Rudy's place?

Yes, ON Nov 4th, two days after the discovery of the murder, they heard about Rudy Guede leaving feces unflushed in the toilet from a downstairs tenant, and they weren't able to see the similarity of another unflushed turd at the crime scene?

So the police are how dumb?

I believe the police recognized Guede from his method of B&E. How could they POSSIBLY not have recognized his method of B&M? Is anyone buying that the police did not put two and two together, because I don't believe it. It's too weird a story, and too obvious a fact for it not to ring a bell.
Seriously, can the police be that incompetent? Or did they try to deflect attention away from Rudy Guede, because they helped free him from Milan just 5 days earlier.

Deflecting attention away from their own crimes, sound like a familiar accusation?

Wouldn't the police who did that actually be open to criminal charges as a result?

This case needs an independent investigation, it really does. Get to the bottom of it and throw these bastards in jail.

 

[Planigale]

I was talking to a junior lawyer (civil not criminal so not an expert but with an international law interest) who thought AK case was like to be taken by ECHR because it addressed a broader issue.

In essence it is accepted that AK and RS were denied access to legal counsel until immediately before the preliminary court hearing on the eighth. Mach says this is legal under Italian law as the PM has the authority to restrict access of suspects to legal counsel.

The ECHR takes the view (as referenced cases show) that access to legal counsel should usually be at the first opportunity.

So the first question the ECHR will address is whether Italian law is compliant with European Human rights law in allowing the PM to restrict access to legal counsel arbitrarily. (There appears to be no clear argument made for why this was done.)

I think that Italy will lose this. The ECHR will say that Italy has to be clear that the grounds for restriction of access have to be specific and exceptional (and documented and challengeable).

The second question leading from the first is at what point did AK and RS transit from witness to suspect. There are clearly a series of progressive indications.

1) Interview late at night - witnesses are normally interviewed during working hours when they and the police are clearest in memory. Excluding the immediate aftermath of the crime late night interviews are not witness interviews.
2) Sollecito withdrawing Knox alibi. This should clearly be a trigger for transitioning of Knox to being a suspect.
3) Calling in an interpreter in the middle of the night again not something that would be done for a witness statement.
4) Knox verbal statement of being present at the time of the crime.

There are an escalating series of indicators that the Police were regarding AK as a suspect. So the ECHR will need to decide when the transition occurred.

The argument from Italy is that they followed the letter of the law in restricting access to legal counsel, the ECHR will say that justice requires early access to legal counsel.

The second question is as Mach might put it; is the Callunia any different from if AK assaulted a cop during the interview. The answer is that it is, because the callunia is a direct product of the interview directed by the police. A particular vulnerability is the lack of contemporaneous record in the absence of a lawyer and the mediation of the interpreter who asked Knox something that was not asked by the interviewing police (to try to recall something that trauma may have caused her to suppress). This intervention by a third party whilst Knox lacked the protection of a lawyer will I think be the critical argument. The police should have realised this was inappropriate but got lost in the perceived success of Knox imagining the scenario as she had been asked.

The out come is likely to be Italy being told to tighten up administrative safeguards around PM restrictions to legal counsel. All the Knox interview post Sollecito withdrawal of alibi being rendered unusable callunia being thus void and the need to retry murder excluding the interviews / statements.

ETA It strikes me the other key point is when the PM was phoned at home. What he should have advised is stop the questioning arrest AK and questioning will continue in the morning once a lawyer is available. Not I'll come in and get a statement before we allow access to a lawyer. I think an important time point is not when Mignini came in but when he was first phoned.

 

[Machiavelli]

Except in this case, you mean; statements made without benefit of counsel, used to convict.

Used to convict, but of another crime! Not for the one that was being investigated at the time. Something new, which didn't exist at the state of the investigation at that time.

 

[Machiavelli]

This has nothing to do with separate branches of the government.

The police shouldn't be interrogating suspects in the absence of counsel. It's illegal.

Well you were talking about incentivizing the police, but this link is impossible since the two powers are separate. Judicial proceedings cannot be decided by police behavior, the judiciary is independent. There can't be a consequential link between police conduct and a judge's decision.

 

[Kauffer]

I was talking to a junior lawyer (civil not criminal so not an expert but with an international law interest) who thought AK case was like to be taken by ECHR because it addressed a broader issue.

In essence it is accepted that AK and RS were denied access to legal counsel until immediately before the preliminary court hearing on the eighth. Mach says this is legal under Italian law as the PM has the authority to restrict access of suspects to legal counsel.

The ECHR takes the view (as referenced cases show) that access to legal counsel should usually be at the first opportunity.

So the first question the ECHR will address is whether Italian law is compliant with European Human rights law in allowing the PM to restrict access to legal counsel arbitrarily. (There appears to be no clear argument made for why this was done.)

I think that Italy will lose this. The ECHR will say that Italy has to be clear that the grounds for restriction of access have to be specific and exceptional (and documented and challengeable).

The second question leading from the first is at what point did AK and RS transit from witness to suspect. There are clearly a series of progressive indications.

1) Interview late at night - witnesses are normally interviewed during working hours when they and the police are clearest in memory. Excluding the immediate aftermath of the crime late night interviews are not witness interviews.
2) Sollecito withdrawing Knox alibi. This should clearly be a trigger for transitioning of Knox to being a suspect.
3) Calling in an interpreter in the middle of the night again not something that would be done for a witness statement.
4) Knox verbal statement of being present at the time of the crime.

There are an escalating series of indicators that the Police were regarding AK as a suspect. So the ECHR will need to decide when the transition occurred.

The argument from Italy is that they followed the letter of the law in restricting access to legal counsel, the ECHR will say that justice requires early access to legal counsel.

The second question is as Mach might put it; is the Callunia any different from if AK assaulted a cop during the interview. The answer is that it is, because the callunia is a direct product of the interview directed by the police. A particular vulnerability is the lack of contemporaneous record in the absence of a lawyer and the mediation of the interpreter who asked Knox something that was not asked by the interviewing police (to try to recall something that trauma may have caused her to suppress). This intervention by a third party whilst Knox lacked the protection of a lawyer will I think be the critical argument. The police should have realised this was inappropriate but got lost in the perceived success of Knox imagining the scenario as she had been asked.

The out come is likely to be Italy being told to tighten up administrative safeguards around PM restrictions to legal counsel. All the Knox interview post Sollecito withdrawal of alibi being rendered unusable callunia being thus void and the need to retry murder excluding the interviews / statements.

All this is right and wise. Italy will end up having to rewrite some more codes. They aren't going to rule on the murder conviction this time but Article 6 violations for callunia will mean a virtual guarantee of article 6 violations for murder. Everything will be set aside. But it would be much better if Cassation pulls back in March and ends this then. I say this because whilst a win is a win, if you were Ms Knox or Mr Sollecito, you'd be better off being cleared in Italy than Strasbourg both because it's quicker but also because otherwise idiots will argue it was only "technicalities" (or some such rubbish), which saved them.