Continuation Part 11: Amanda Knox/Raffaele Sollecito

[Numbers]

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.

Planigale,

Thank you for this excellent post. And your friend the civil lawyer was accurate in saying that ECHR will take up Amanda Knox's application claiming her rights were violated due to the interrogation without a lawyer followed by the conviction for calunnia that occurred in the interrogation. There is some uniqueness to this case, in terms of the violation of human rights, so ECHR is likely give it extra emphasis.

One element of uniqueness is that the conviction is not for what the police had been investigating directly, the murder/rape of Meredith Kercher, but for another crime (under Italian law) committed allegedly by Amanda Knox solely be means of her verbalization in speech or writing while she was interrogated and in police custody without access to a lawyer. As you stated in your post, the accusation against Patrick Lumumba was a direct consequence of the police interrogation and the methods that they used in the interrogation.

There have been other cases where the ECHR has been aware that police interrogation elicited false accusations from a suspect against one or more other individuals, but AFAIK the false accusations were never treated as a crime by the domestic state responsible. (Instead, the false accusations were used to prosecute the falsely accused - a more straightforward situation.) So this uniqueness will demand ECHR special attention.

 

[Kauffer]

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.

Won't make any difference at the ECHR. You want to recognise a class of crime which is legally inciteable by the police from which, suspects have no protection. Good luck with that.

 

[Diocletus]

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.

Let me ask you: if, while being questioned prior to being declared indagata (i.e., as a person informed of the facts), Knox had refused to answer questions, could there be any legal ramifications, in other words could she be charged with something like obstruction?

 

[anglolawyer]

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.

So, let's take a hypothetical case, say the police illegally and brutally interrogate an exhausted suspect for a crime in the middle of the night without informing the suspect of her rights and without affording access to advice and the suspect blurts out 'it wasn't me, it was X!' then it's all OK because they weren't brutally and illegally interrogating her about the crime of accusing someone else? Oh wait. That's what happened here.

 

[Kauffer]

Planigale,

Thank you for this excellent post. And your friend the civil lawyer was accurate in saying that ECHR will take up Amanda Knox's application claiming her rights were violated due to the interrogation without a lawyer followed by the conviction for calunnia that occurred in the interrogation. There is some uniqueness to this case, in terms of the violation of human rights, so ECHR is likely give it extra emphasis.

One element of uniqueness is that the conviction is not for what the police had been investigating directly, the murder/rape of Meredith Kercher, but for another crime (under Italian law) committed allegedly by Amanda Knox solely be means of her verbalization in speech or writing while she was interrogated and in police custody without access to a lawyer. As you stated in your post, the accusation against Patrick Lumumba was a direct consequence of the police interrogation and the methods that they used in the interrogation.

There have been other cases where the ECHR has been aware that police interrogation elicited false accusations from a suspect against one or more other individuals, but AFAIK the false accusations were never treated as a crime by the domestic state responsible. (Instead, the false accusations were used to prosecute the falsely accused - a more straightforward situation.) So this uniqueness will demand ECHR special attention.

I detect from experts and other commentators in the field that there are certain issues that require clarification in the development of the case law from ECHR - the question of "compelling need", for example, in decisions to deny access to counsel in the short term. It may be that Knox v Italy will plug some gaps. Perhaps it could be a landmark judgement. Interestingly, Salduz only made it on appeal.

It has been noted that rights to counsel in convention law have been developed with Miranda as the model. One commentator quipped that in the U.S. while post Miranda, suspects' effective rights have actually followed a downward curve, in Europe they are going the other way. But I guess that's another discussion altogether.

 

[carbonjam72]

Planigale,

Thank you for this excellent post. And your friend the civil lawyer was accurate in saying that ECHR will take up Amanda Knox's application claiming her rights were violated due to the interrogation without a lawyer followed by the conviction for calunnia that occurred in the interrogation. There is some uniqueness to this case, in terms of the violation of human rights, so ECHR is likely give it extra emphasis.

One element of uniqueness is that the conviction is not for what the police had been investigating directly, the murder/rape of Meredith Kercher, but for another crime (under Italian law) committed allegedly by Amanda Knox solely be means of her verbalization in speech or writing while she was interrogated and in police custody without access to a lawyer. As you stated in your post, the accusation against Patrick Lumumba was a direct consequence of the police interrogation and the methods that they used in the interrogation.

There have been other cases where the ECHR has been aware that police interrogation elicited false accusations from a suspect against one or more other individuals, but AFAIK the false accusations were never treated as a crime by the domestic state responsible. (Instead, the false accusations were used to prosecute the falsely accused - a more straightforward situation.) So this uniqueness will demand ECHR special attention.

It's also unique in the degree of pre-trial publicity, and intentionally false portrayal of the defendants, especially Ak, in public as guilty.

Has there ever been another slander campaign like this in the modern age? I doubt it.

The Italians behaved barbarically. But the universal portrayal of guilt via the internet and global media makes this case unique as well.

 

[carbonjam72]

Let me ask you: if, while being questioned prior to being declared indagata (i.e., as a person informed of the facts), Knox had refused to answer questions, could there be any legal ramifications, in other words could she be charged with something like obstruction?

Yes, isn't that what Mignini did to Douglas preston?

Then gave Preston one day to get out of Italy, before the charges were to be filed.

And now read the closing comments from Mignini again, where he says the well known crime writer just imagined being threatened.

Mignini invents lies, then believes his own lies, and then accuses others of doing the same.

 

[Machiavelli]

So, let's take a hypothetical case, say the police illegally and brutally interrogate an exhausted suspect for a crime in the middle of the night without informing the suspect of her rights and without affording access to advice and the suspect blurts out 'it wasn't me, it was X!' then it's all OK because they weren't brutally and illegally interrogating her about the crime of accusing someone else? Oh wait. That's what happened here.

If this happened, this claim of duress:
1) should be raised within the trial proceedings (not at the ECHR for the first time); also this should be done at the initial stage of the investigation, not just later at the trial (see ECHR Blaj vs. Romania)
2) should be substantiated (Dvorsky vs. Coratia); unsubstantiated claims are dismissed, the claimant has some burden to present evidence
3) the false statement should be withdrawn and prompt claim should be done that the testimony was false; if there is no claim of coercion, and not even a statement with a clear claim that the previous testimony was false, it seems unlikely to have room for a prejudice of fair trial (various case law).

 

[Machiavelli]

Yes, isn't that what Mignini did to Douglas preston?

Then gave Preston one day to get out of Italy, before the charges were to be filed.

And now read the closing comments from Mignini again, where he says the well known crime writer just imagined being threatened.

Mignini invents lies, then believes his own lies, and then accuses others of doing the same.

The claim that Mignini gave "one day to Preston" before charges were filed is moronic (an obvious idiotic lie), since the charge of false declarations doesn't have a provision of possible arrest.

Mignini just halted his questioning of Preston as evidence emerged that he was lying; he advised him that he had become a suspect, that he had to appoint a lawyer (or the office would appoint one) and that the questioning could not go forward in order to protect his rights.

That's what happened on Preston's questioning, in which Preston lied to the prosecution about his contacts and whereabouts with Spezi and Ruocco.

 

[Kauffer]

If this happened, this claim of duress:
1) should be raised within the trial proceedings (not at the ECHR for the first time); also this should be done at the initial stage of the investigation, not just later at the trial (see ECHR Blaj vs. Romania)
2) should be substantiated (Dvorsky vs. Coratia); unsubstantiated claims are dismissed, the claimant has some burden to present evidence
3) the false statement should be withdrawn and prompt claim should be done that the testimony was false; if there is no claim of coercion, and not even a statement with a clear claim that the previous testimony was false, it seems unlikely to have room for a prejudice of fair trial (various case law).

1) It was raised in trial proceedings. There was no investigation (as per the requirements of Italian law)
2) There are no witnesses to lawyer less police abuse in unrecorded interrogations
3) She was sued (again)
4) You haven't dealt with my or anglo's point with respect to your contention that Calunia is a special protected crime, which the police should be legally allowed to incite or coerce.

 

[Machiavelli]

Let me ask you: if, while being questioned prior to being declared indagata (i.e., as a person informed of the facts), Knox had refused to answer questions, could there be any legal ramifications, in other words could she be charged with something like obstruction?

She may be charged, subsequently, with "reticence", but only if she was found to be innocent.
However that would only happen much later. In the immediate situation, what would happen if she refused to answer questions would be that she would be immediately awarded the "indagata" status, arrested, and suspected of involvement in the murder.

 

[Kauffer]

The claim that Mignini gave "one day to Preston" before charges were filed is moronic (an obvious idiotic lie), since the charge of false declarations doesn't have a provision of possible arrest.

Mignini just halted his questioning of Preston as evidence emerged that he was lying; he advised him that he had become a suspect, that he had to appoint a lawyer (or the office would appoint one) and that the questioning could not go forward in order to protect his rights.

That's what happened on Preston's questioning, in which Preston lied to the prosecution about his contacts and whereabouts with Spezi and Ruocco.

Really? They treated him this well? Why wasn't Ms Knox treated this well, offered a lawyer and allowed to go home?

 

[anglolawyer]

If this happened, this claim of duress:
1) should be raised within the trial proceedings (not at the ECHR for the first time); also this should be done at the initial stage of the investigation, not just later at the trial (see ECHR Blaj vs. Romania)
She testified to being struck and threatened with thirty years in jail. And she exposed herself to a law suit in doing so, which means that Italy does not provide immunity for statements made in court, thereby unfairly inhibiting the defence
2) should be substantiated (Dvorsky vs. Coratia); unsubstantiated claims are dismissed, the claimant has some burden to present evidence
Substantiated how? Aside from her testimony? She presented evidence.
3) the false statement should be withdrawn and prompt claim should be done that the testimony was false; if there is no claim of coercion, and not even a statement with a clear claim that the previous testimony was false, it seems unlikely to have room for a prejudice of fair trial (various case law).
She withdrew the claim immediately when 'doubting the verity' of what she had said. Her trial was prejudiced by the introduction of her 'confession' by means of reprehensible legal chicanery and by widespread publication .

We have reached a large measure of agreement. Finally.

 

[Diocletus]

She may be charged, subsequently, with "reticence", but only if she was found to be innocent.
However that would only happen much later. In the immediate situation, what would happen if she refused to answer questions would be that she would be immediately awarded the "indagata" status, arrested, and suspected of involvement in the murder.

That makes no sense. If she isn't a suspect while being questioned as a mere witness, then she's no more of a suspect after she refuses to answer questions.

What's the maximum sentence for reiticence?

 

[Machiavelli]

1) It was raised in trial proceedings. There was no investigation (as per the requirements of Italian law)

It was never raised. Amanda Knox was interrogated on Dec. 17. and didn't claim any coercion. In fact she refused to answer questions concerning the calunnia, her false accusation of Patrick Lumumba. Amanda Knox subsequently never claimed coercion; she claimed to be affected by a false memory syndrome.
Amanda Knox also did not submit any formal complaint for being physically harrassed. Her defence also didn't submit any complaint nor claimed that she had been subjected to an interrogation by the prosecution (they didn't challenge the paper status as "statement").

2) There are no witnesses to lawyer less police abuse

There is instead Anna Donnino, who was deemed a reliable witness (and indeed she is). In fact, what happens is there is no evidence of police abuse. There was not even a claim by Knox herself, who admitted she was given a chamomille tee just after she named Lumumba.
She admitted her hand written notes were written voluntarily, on her own initiative, and that she gave them voluntarily to the police.

3) She was sued (again)

What? Amanda Knox never stated her testimony about Lumumba entering the flat and murdering Mereith was false. She refused to make statements about that before the investigating judge. Instead of stating the previous testimony was false, she stated repeatedly, in hand written notes, that she didn't know whether her memory of Lumumba entering her apartment, raping and killing Meredith was true (maybe it was true); that she stood by her "statement" she previously gave to the prosecutor; that she didn't lie; that the truth is that she didn't know what the truth was.

 

[Kauffer]

She may be charged, subsequently, with "reticence", but only if she was found to be innocent.
However that would only happen much later. In the immediate situation, what would happen if she refused to answer questions would be that she would be immediately awarded the "indagata" status, arrested, and suspected of involvement in the murder.

Let me try to understand this:

1) She's not told she is a suspect and is given no warnings
2) If she declines to talk to the police because she fears that she really is a suspect but they haven't told her, then she immediately becomes one and is actually arrested. (What happens if she asks for a lawyer?)
3) If later they don't proceed with a murder charge, she gets charged instead with being reticent.

What are the grounds for arrest exactly?

 

[Machiavelli]

We have reached a large measure of agreement. Finally.

I think misquoting on purpose is a violation of some "forum rule".

 

[Diocletus]

If this happened, this claim of duress:
1) should be raised within the trial proceedings (not at the ECHR for the first time); also this should be done at the initial stage of the investigation, not just later at the trial (see ECHR Blaj vs. Romania)
2) should be substantiated (Dvorsky vs. Coratia); unsubstantiated claims are dismissed, the claimant has some burden to present evidence
3) the false statement should be withdrawn and prompt claim should be done that the testimony was false; if there is no claim of coercion, and not even a statement with a clear claim that the previous testimony was false, it seems unlikely to have room for a prejudice of fair trial (various case law).

The term used in echr cases is "compulsion". It's a different concept than duress, coercion or incitement (which are also recognized by the echr).

 

[anglolawyer]

I think misquoting on purpose is a violation of some "forum rule".

Huh? I interspersed my remarks within your quote in bold text. No one would be confused into thinking those were your words and that was certainly not my intent.

 

[Machiavelli]

Let me try to understand this:

1) She's not told she is a suspect and is given no warnings
2) If she declines to talk to the police because she fears that she really is a suspect but they haven't told her, then she immediately becomes one and is actually arrested. (What happens if she asks for a lawyer?)
3) If later they don't proceed with a murder charge, she gets charged instead with being reticent.

Exactly.

What are the grounds for arrest exactly?

Well the grounds would be suspicion of involvement in murder, or covering a murderer, and cautionary custody would be attached (flagrante delicto if she is covering a murderer), at least as a first temporaty measure.
The stated charge for which she would become an "indagata" would be the highest one, rape and murder. From which cautionary arrest would derive immediately.
If she "asks for a lawyer", that means refuses to answer unless she has a lawyer, it is always the same thing. She can hold this position, but would be suspected of involvement and arrested.