Continuation Part 12: Amanda Knox/Raffaele Sollecito

[platonov]

Wow, we're on V12 of the thread about twice convicted murderer Amanda Knox.

Is she still guilty? <Checks Google.....> Yep!

Nope V13 - apparently some people have forgotten the cartwheels.

I feel for SG - a modern day Trotsky.

 

[Bill Williams]

Wow, we're on V12 of the thread about twice convicted murderer Amanda Knox.

Is she still guilty? <Checks Google.....> Yep!

Under Italian law, no conviction (or acquittal) is valid until signed off on by Cassazione. The appeal to Cassazione is being heard in March 2015.

 

[Planigale]

Wow, we're on V12 of the thread about twice convicted murderer Amanda Knox.

Is she still guilty? <Checks Google.....> Yep!

No her legal status is clear until conviction confirmed she is innocent of murder etc. (though guilty of calumny).

 

[Numbers]

Under Italian law, no conviction (or acquittal) is valid until signed off on by Cassazione. The appeal to Cassazione is being heard in March 2015.

{Highlighting added to quote.}

It may be more valid to state that, in accordance with the Italian Constitution and ECHR case-law, a defendant is presumed innocent until a final sentence (by the Supreme Court of Cassation, CSC) is decided in the event of conviction.

An interesting issue is that according to ECHR case-law, where a defendant is acquitted and then convicted, the convicting court or finalizing court must conduct a full trial, rehearing all the evidence, in order for the final trial conviction to be considered fair in terms of the ECHR. The Nencini court did not grant a full trial, that is, it did not rehear all the witnesses and review de novo all the evidence, nor did it admit new defense evidence. Thus, if the March, 2015 CSC hearing results in a final conviction, it will be considered unfair should it be taken to the ECHR (unless CSC conducts a full trial).

 

[Bill Williams]

{Highlighting added to quote.}

It may be more valid to state that, in accordance with the Italian Constitution and ECHR case-law, a defendant is presumed innocent until a final sentence (by the Supreme Court of Cassation, CSC) is decided in the event of conviction.

An interesting issue is that according to ECHR case-law, where a defendant is acquitted and then convicted, the finalizing court must conduct a full trial, rehearing all the evidence, in order for the final trial conviction to be considered fair in terms of the ECHR.

Given that the finalizing court in Italy is not supposed to be doing a rehearing of evidence, if Italy wishes to conform to the ECHR then perhaps the answer is for Cassazione to allow a united-sections hearing.

Then again this case is rife is irregularities.... meaning, that one would think that it is up to the lower courts (1st and 2nd grade) to make findings of fact, whereas Cassazione does a final check of law and procedure. The March 2013 decision of ISC to reverse Hellmann's acquittals seems to be quibbling with Hellmann on findings of fact - dressed up as "illogics", or lack of an "osmotic" view of the evidence.

For instance, if Hellmann's court found that the evidence did not support a conviction for the charge of the transportation of the knife, then that's what the lower court found. On what basis does the higher court overturn that?

 

[Numbers]

Given that the finalizing court in Italy is not supposed to be doing a rehearing of evidence, if Italy wishes to conform to the ECHR then perhaps the answer is for Cassazione to allow a united-sections hearing.

Then again this case is rife is irregularities.... meaning, that one would think that it is up to the lower courts (1st and 2nd grade) to make findings of fact, whereas Cassazione does a final check of law and procedure. The March 2013 decision of ISC to reverse Hellmann's acquittals seems to be quibbling with Hellmann on findings of fact - dressed up as "illogics", or lack of an "osmotic" view of the evidence.

For instance, if Hellmann's court found that the evidence did not support a conviction for the charge of the transportation of the knife, then that's what the lower court found. On what basis does the higher court overturn that?

It is arguable that according to ECHR, the CSC labeling of second-level court findings as "illogical" and then substituting CSC's own finding of fact is arbitrary, since the CSC has not conducted a full trial and heard testimony and reviewed evidence. And according to the ECHR, an arbitrary court judgment is an unfair one and thus a violation of the ECHR.

 

[Samson]

{Highlighting added to quote.}

It may be more valid to state that, in accordance with the Italian Constitution and ECHR case-law, a defendant is presumed innocent until a final sentence (by the Supreme Court of Cassation, CSC) is decided in the event of conviction.

An interesting issue is that according to ECHR case-law, where a defendant is acquitted and then convicted, the convicting court or finalizing court must conduct a full trial, rehearing all the evidence, in order for the final trial conviction to be considered fair in terms of the ECHR. The Nencini court did not grant a full trial, that is, it did not rehear all the witnesses and review de novo all the evidence, nor did it admit new defense evidence. Thus, if the March, 2015 CSC hearing results in a final conviction, it will be considered unfair should it be taken to the ECHR (unless CSC conducts a full trial).

There is an interesting nuance to this, in February 2011 Kaosium posted

The Italian System is different in that it is a three tier procedure, or four to five in a sense. There's the initial 'Court of Freedom' or somesuch which determines if they have enough evidence to prosecute, then an initial trial, then an appeal trial de novo which means it's basically another whole trial unlike in our systems, then it goes to the Supreme Court where it must be ratified to ensure it's in total compliance with the law.

Assuming this is correct, with the annulment of Hellmann,
Nencini should have conducted an appeal trial de novo, since the initial appeal trial de novo ceased to exist, as the guilters like to emphasise.
So the question for them is do they regard Nencini as another whole trial? Maybe Machiavelli will help here.

 

[Numbers]

There is an interesting nuance to this, in February 2011 Kaosium posted

The Italian System is different in that it is a three tier procedure, or four to five in a sense. There's the initial 'Court of Freedom' or somesuch which determines if they have enough evidence to prosecute, then an initial trial, then an appeal trial de novo which means it's basically another whole trial unlike in our systems, then it goes to the Supreme Court where it must be ratified to ensure it's in total compliance with the law.

Assuming this is correct, with the annulment of Hellmann,
Nencini should have conducted an appeal trial de novo, since the initial appeal trial de novo ceased to exist, as the guilters like to emphasise.
So the question for them is do they regard Nencini as another whole trial? Maybe Machiavelli will help here.

To be a full trial, the witnesses would need to be heard and all the evidence itself reviewed. IIUC, Nencini only reviewed transcripts, acting as only an appeal court.

 

[Kauffer]

Wow, we're on V12 of the thread about twice convicted murderer Amanda Knox.

Is she still guilty? <Checks Google.....> Yep!

48,268 posts! How long did they take you? Were they all worth it, looking back?
- checks Google - don't think so!

 

[anglolawyer]

48,268 posts! How long did they take you? Were they all worth it, looking back?
- checks Google - don't think so!

The Central Scrotum shows up every new thread to tell us we are all conspiracy theorists as if we don't already know.

 

[Desert Fox]

Wow, we're on V12 of the thread about twice convicted murderer Amanda Knox.

Is she still guilty? <Checks Google.....> Yep!

According to Arkansas, the West Memphis Three are still guilty of murdering three boys.
According to Virginia, the Norfolk Four are still guilty of raping and murdering Michelle Moore-Bosko.
Let us be real though, they are not guilty. Just as Amanda Knox and Raffaele Sollecito are not guilty of murdering Meredeth Kercher.

 

[The Central Scrutinizer]

According to Arkansas, the West Memphis Three are still guilty of murdering three boys.

Not just the State of Arkansas - They pled guilty in 2011. Did you not know that? It was in all the papers.

 

[carbonjam72]

It is arguable that according to ECHR, the CSC labeling of second-level court findings as "illogical" and then substituting CSC's own finding of fact is arbitrary, since the CSC has not conducted a full trial and heard testimony and reviewed evidence. And according to the ECHR, an arbitrary court judgment is an unfair one and thus a violation of the ECHR.

Well then it must be acknowledged that Curatolo had a wonderful sense of timing and irony, as the last court to hear him, was so offended as to cut short his appearance.

Does this mean that under ECHR principles, the last court to judge him in person is considered a definitive finding that he is an unreliable witness?
Mignini's go to witness, testified in two other murder trials, at least one of which resulted in a conviction according to Frank's blog.

Wonder if Curatolo's other victims may benefit from the fall out of this case?

 

[carbonjam72]

Not just the State of Arkansas - They pled guilty in 2011. Did you not know that? It was in all the papers.

Your avatar is fantastic, and yet oddly appropriate.

 

[carbonjam72]

Not everyone thinks so.

Hey Anglo, this was great reading.

I was wondering if the police could have 'fudged' the translation of 'stay home because we're slow', to become, 'stay home because we;re closed' - because the police were intentionally trying to implicate Patrick?

 

[Machiavelli]

There is an interesting nuance to this, in February 2011 Kaosium posted

The Italian System is different in that it is a three tier procedure, or four to five in a sense. There's the initial 'Court of Freedom' or somesuch which determines if they have enough evidence to prosecute, then an initial trial, then an appeal trial de novo which means it's basically another whole trial unlike in our systems, then it goes to the Supreme Court where it must be ratified to ensure it's in total compliance with the law.

Assuming this is correct, with the annulment of Hellmann,
Nencini should have conducted an appeal trial de novo, since the initial appeal trial de novo ceased to exist, as the guilters like to emphasise.
So the question for them is do they regard Nencini as another whole trial? Maybe Machiavelli will help here.

An appeal is what we call an appeal, not a trial de novo.
However, an appeal it is not the same thing what the US system calls an "appeal"; that is more like something an Italian would call a "review".

The Hellmann verdict ceased to exist almost entirely, but the court hearings and documentation from the Hellmann appeal are part of the proceedings.

An appeal is different from a trial de novo, in that: 1) it usually incorporates the evidence and papers from the previous stage, and decides "on the papers"; 2) it starts from the presumption that rationale for the decisions from the lower courts on decisive elements were correct (needs to argument against previous findings and decisions if comes to different conclusions); 3) it starts from a presumption that evidence admitted was complete (needs to argument if decides to re-open a phase of evidence discussion on certain topics).

The Supreme Court does not only provide for "compliance with the law", but, so it puts it itself, also provides for "a standardization of interpretation of law and evidence". The word "Cassazione" means, more or less "destruction", from the verb "cassare", shred into pieces and throw away (destroys the judge's decisions that finds to be "sub-standard").

The initial courts are not called "Court of Freedom" (a Court of Freedom actually exists, but deals only with custody measures of detainees), they are called Preliminary Investigation Judges (the Investigating Judge, and the Preliminary Judge).
The Preliminary Judge can also decide on the verdict, if the defendants asks him so (it's called abbreviated trial). If this happens, the judges decides "on the papers", without admitting further evidence hearing sessions besides those agreed with the prosecution. The defandant can also ask for abbreviated trial under the condition that he/she could present some specific defensive evidence or call some defence witness.
There is also a "review" judge which operates subsequenty to the Investigating Judge in the investigation stage when suspects are hold under cautionary measure (reviews the conclusions of the Investigating Judge).

The Preliminary Judge accesses the files from the Investigating Judge hearings and may access the police interrogation files.
The Court may not access the the files from the preliminary stages instead (they are inadmissible).

Decisions of courts do become definitive even if not signed off by the Cassazione, if they are not appealed to the Cassazione after a scheduled period of time (usually about 45 days).

 

[Desert Fox]

Not just the State of Arkansas - They pled guilty in 2011. Did you not know that? It was in all the papers.

You have a choice. . . .You can plead guilty and get out of jail today or fight it and spend at least the next few years in jail. Might even get another tainted jury that convicts you. Very tempted even if innocent to take the deal.

You should also note that Baldwin did not want to at first take the plea and was willing to fight it out in court but he did not want to roll the dice (even with low odds) that his friend might be executed. Damien was also suffering much more in prison because Arkansas has very limited medical care from those on death row.

 

[Numbers]

Hey Anglo, this was great reading.

I was wondering if the police could have 'fudged' the translation of 'stay home because we're slow', to become, 'stay home because we;re closed' - because the police were intentionally trying to implicate Patrick?

They didn't need to translate since Patrick Lumumba IIUC spoke and wrote Italian but not English.

They may have "paraphrased" his text or what Amanda remembered his text to be.

Another example of "paraphrasing": in the Declaration of Arrest issued by Mignini on Nov. 6, 2007, the text of Amanda's Nov. 1 message to Patrick Lumumba is truncated to leave out "buona serata" ("good evening" or "have a nice evening"):

A text message was found to have been sent at 8:35PM of November 1st by KNOX's number 3484673590 to 3387195723, that of her co-defendant Patrick, in which she wrote "Ci vediamo dopo" ["See you later" or lit: "We'll see each other after"] thus confirming that in the following hours KNOX would find herself with Patrick in the apartment where the victim was.

In her hand-written Memoriale 2 of Nov. 7, Amanda states she wrote:

Ci vediamo. Buona serata.

Sources:

http://www.amandaknox.com/the-meredith-kercher-murder/verdicts-motivations/

http://www.amandaknox.com/the-meredith-kercher-murder/interrogation/

 

[Kauffer]

An appeal is what we call an appeal, not a trial de novo.
However, an appeal it is not the same thing what the US system calls an "appeal"; that is more like something an Italian would call a "review".

The Hellmann verdict ceased to exist almost entirely, but the court hearings and documentation from the Hellmann appeal are part of the proceedings.

An appeal is different from a trial de novo, in that: 1) it usually incorporates the evidence and papers from the previous stage, and decides "on the papers"; 2) it starts from the presumption that rationale for the decisions from the lower courts on decisive elements were correct (needs to argument against previous findings and decisions if comes to different conclusions); 3) it starts from a presumption that evidence admitted was complete (needs to argument if decides to re-open a phase of evidence discussion on certain topics).

The Supreme Court does not only provide for "compliance with the law", but, so it puts it itself, also provides for "a standardization of interpretation of law and evidence". The word "Cassazione" means, more or less "destruction", from the verb "cassare", shred into pieces and throw away (destroys the judge's decisions that finds to be "sub-standard").

The initial courts are not called "Court of Freedom" (a Court of Freedom actually exists, but deals only with custody measures of detainees), they are called Preliminary Investigation Judges (the Investigating Judge, and the Preliminary Judge).
The Preliminary Judge can also decide on the verdict, if the defendants asks him so (it's called abbreviated trial). If this happens, the judges decides "on the papers", without admitting further evidence hearing sessions besides those agreed with the prosecution. The defandant can also ask for abbreviated trial under the condition that he/she could present some specific defensive evidence or call some defence witness.
There is also a "review" judge which operates subsequenty to the Investigating Judge in the investigation stage when suspects are hold under cautionary measure (reviews the conclusions of the Investigating Judge).

The Preliminary Judge accesses the files from the Investigating Judge hearings and may access the police interrogation files.
The Court may not access the the files from the preliminary stages instead (they are inadmissible).

Decisions of courts do become definitive even if not signed off by the Cassazione, if they are not appealed to the Cassazione after a scheduled period of time (usually about 45 days).

But do you now accept that the European Convention on Human Rights stands above the Italian Criminal Code, that it is part of the constitution of Italy and that judges in all courts including Cassation are under an extant obligation as per Decisions 348 and 349 of the Constitutional Court to interpret Italian law in compliance with the convention? Do you accept that the meaning of the convention, as per Decision no. 348 is, in fact, to be derived from the case law of the European Court of Human Rights? Do you accept that Cassation is under a constitutional obligation to examine the trials of Amanda Knox and Rafaelle Sollecitio together with the Nencini motivations for breaches of their convention rights and that if breaches are found, that the court is constitutionally compelled either to acquit them or to send the case back to the appellate level?

 

[Bill Williams]

But do you now accept that the European Convention on Human Rights stands above the Italian Criminal Code, that it is part of the constitution of Italy and that judges in all courts including Cassation are under an extant obligation as per Decisions 348 and 349 of the Constitutional Court to interpret Italian law in compliance with the convention? Do you accept that the meaning of the convention, as per Decision no. 348 is, in fact, to be derived from the case law of the European Court of Human Rights? Do you accept that Cassation is under a constitutional obligation to examine the trials of Amanda Knox and Rafaelle Sollecitio together with the Nencini motivations for breaches of their convention rights and that if breaches are found, that the court is constitutionally compelled either to acquit them or to send the case back to the appellate level?

Would this not, though, need to be part of the appeal from the defendants? Surely this would not automatically apply unless someone who was a party to the case made specific and formal reference to them?