I meant checks on the judiciary (as one of the pillars of power), not checks within the judiciary. Compare what happens to Berlusconi and other politicians with what happens to morons like Nencini and Mignini.
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Continuation Part 12: Amanda Knox/Raffaele Sollecito
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I meant checks on the judiciary (as one of the pillars of power), not checks within the judiciary. Compare what happens to Berlusconi and other politicians with what happens to morons like Nencini and Mignini.
Antony
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I had the impression that it was the other way: the juror was confused because the evidence seemed "pro-innocence", and Judge Nencini had to explain why the defendants were still guilty.
Desert Fox
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It might be that Nencini is actually trying to throw the case with his motivation and he does not want to toss a man who is innocent in prison.
In the US, I believe a judge did that with Peter Reilly.
Italy has a solemn treaty obligation to follow the final judgments of the ECHR; this is a part of Italy being a signatory - indeed, a founding member - of the Council of Europe and the Convention.
However, how quickly Italy responds to a judgment of the ECHR may be at issue.
The ECHR has no coercive instruments. The supervision of the judgments of the ECHR, including individual and general measures, falls to the Committee of Ministers of the Council of Europe, which works primarily by cooperative persuasion with the respondent States. The CoM and CoE do not have any police or military, they are diplomatic in nature.
For those who cannot be bothered to read the link.
DNA from under the nails of a murder victim (say victim B) came up with a hit on a DNA data base from another murder victim (victim A) dead for 2 weeks when victim B was murdered.
Response of bluff British bobby. This does not make sense you've screwed up the forensics. (Probable response of Italian prosecutor - we have here a conspiracy, probably involving satanic rituals hence the transfer of DNA from a dead body.)
Response of British Forensic lab. To go through everything again to see where contamination might have occurred. (probable response of Italian forensic lab - we have never had contamination so we don't accept it happens.)
Outcome of investigation. At postmortem of victim A the nails were clipped to send to the forensic lab to test for DNA under the nails. The scissors were cleaned. The same scissors were used to clip the nails of victim B. DNA from victim A was transferred to the nails of victim B - secondary transfer. A proven case of secondary transfer. Not this happened before LCN testing so the amount of DNA transferred was significantly greater than the amount of Sollecito DNA identified as a result of testing the bra strap, and the amount of MK DNA detected in the lab on a swab from the knife blade.
Here we see a proven example of how during forensic testing DNA was transferred by the forensic scientist taking insufficient care to ensure that there was no DNA transfer. very similar to not using clean forceps to pick up the bra hook and immediately bagging it. instead using potentially contaminated gloves picking it up with gloves, putting it down picking it up again, then bagging it.
Here we see scientists looking to check their results accepting the may have made an error and looking for their error.
Diocletus
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That's all well and good, but that kind of stuff doesn't happen in Italy. Moreover, even assuming it could happen, you would have to prove it, and you can't, because it's never happened before. So, good luck with that.
Here is an ECHR case that is both similar and very different from the case of Amanda Knox and Raffaele Sollecito.
The case is: TATISHVILI v. RUSSIA 1509/02 22/02/2007
The differences include that it is about the need for someone living in Russia to register their place of residence with the police, for example when one changes residence.
The similarities include that it is about the arbitrary refusal of the police to accept valid evidence while the police invented false evidence, and the manifestly deficient reasoning of the domestic courts to support the police.
The details of the case include:
1. The applicant had a valid, certified document from the owner of the residence that she had permission to move into it. The police and courts stated that the applicant had a dispute with the owner and thus was not entitled to move in. No evidence was offered for the dispute.
2. The citizenship of the applicant was, according to Russian law, Russian, because she had been a citizen of the USSR and had remained in Russia and not renounced her Russian citizenship. The domestic courts maintained falsely that she was a citizen of Georgia.
3. The domestic courts maintained that the applicant need to have a visa from Georgia to enter Russia according to a treaty between Russia and Georgia. In fact, there was no such treaty, and the courts did not produce the text of any such treaty.
The judgment of the ECHR was that there were violations by Russia of Convention Article 2 of Protocol 4 and of Convention Article 6.1. For the violation of Article 6.1, which is relevant to the Chieffi CSC motivation quashing the Hellmann court acquittal, and the Nencini court motivation report provisionally convicting Ms. Knox and Mr. Sollecito, the following statement from the ECHR is relevant {bold and italics added}:
Accordingly, the Court considers that the manifestly deficient reasoning by the Dorogomilovskiy District Court and the subsequent approval of such inadequate reasoning by the Moscow City Court as an appellate body failed to fulfil the requirements of a fair trial.
{Excerpts from the ECHR judgment. Note that the arguments of the applicant and Government and Court follow each other. Bold added.}
56. The applicant submitted that the proceedings had not been fair because the domestic courts had based their findings on “a treaty” between Russia and Georgia on visa-based exchanges which had never existed. Although the representative of the flat owner had produced his written consent to her moving into the flat, the courts had insisted that her right to live in the flat had not been sufficiently established. The judges had misrepresented the facts with a view to dismissing her claim.
57. The Government claimed that the proceedings had been fair because the applicant and her representative had taken part in the hearings and put forward arguments in defence of her claim. There was no indication of any breach of the principle of equality of arms. The applicant and her representative had been able to appeal against the first-instance court’s judgment to an appellate court and also to lodge an application for supervisory review. Those applications had been duly examined and dismissed by reasoned decisions.
58. The Court reiterates that, according to its established case-law, which reflects a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based. Article 6 § 1 obliges courts to give reasons for their judgments, but cannot be understood as requiring a detailed answer to every argument. The extent to which this duty to give reasons applies may vary according to the nature of the decision (see Ruiz Torija v. Spain, 9 December 1994, § 29, Series A no. 303-A). Even though a domestic court has a certain margin of appreciation when choosing arguments in a particular case and admitting evidence in support of the parties’ submissions, an authority is obliged to justify its activities by giving reasons for its decisions (see Suominen v. Finland, no. 37801/97, § 36, 1 July 2003). A further function of a reasoned decision is to demonstrate to the parties that they have been heard. Moreover, a reasoned decision affords a party the possibility to appeal against it, as well as the possibility of having the decision reviewed by an appellate body. It is only by giving a reasoned decision that there can be public scrutiny of the administration of justice (see, mutatis mutandis, Hirvisaari v. Finland, no. 49684/99, § 30, 27 September 2001).
59. In the present case the judgments of the Dorogomilovskiy District Court and the Moscow City Court refusing the applicant’s complaint were founded on two grounds. They held, firstly, that there existed a dispute between the applicant and the flat owner as to her right to move into the flat. Secondly, they found that the applicant’s residence might have been unlawful because “a treaty” between Russia and Georgia on visa-based exchanges required her to be in possession of an entry visa.
60. As regards the first finding by the domestic courts, the Court observes that the applicant had produced a written certified consent from the flat owner to her moving in. A representative of the flat owner confirmed that consent in the oral submissions before the District Court. The District Court subsequently directed that the reference to those submissions be added to the hearing record (see paragraph 17 above). It follows that the flat owner’s consent was validly produced in the domestic proceedings and its existence was acknowledged by the District Court, which gave no reasons whatsoever for its finding that there existed a dispute between the applicant and the flat owner. Nor did the District Court indicate any reasons for holding that the municipal-tenancy provisions of the Housing and Civil Codes applied in a situation where the flat owner had clear title to the flat and wished to make it available to the applicant.
61. As to the domestic courts’ reliance on “a treaty” between Russia and Georgia on visa requirements, the Court observes that they omitted to verify whether such a treaty was in existence. In fact, the visa requirement for Georgian citizens had not been introduced by a treaty as the District Court maintained, but had resulted from the denunciation by Russia of the Bishkek Agreement in the absence of a separate treaty on visa-free movement between Russia and Georgia (see paragraph 28 above). The Court is not convinced that this discrepancy could have been the result of a mere difference in terms because the text of the “treaty on visa-based exchanges” was never produced in the domestic proceedings. The domestic courts appear to have taken the reference to it from the passport department’s submissions. Furthermore, the Court finds it anomalous that the District Court relied on a treaty governing the conditions of entry and stay for Georgian citizens without giving any reasons for the assumption that the applicant was a Georgian citizen. As the Court has found above, no evidence to that effect has been produced either in the domestic proceedings or before it.
62. Nor was the inadequacy of the District Court’s reasoning corrected by the Moscow City Court, which simply endorsed the reasons for the lower court’s decision. While such a technique of reasoning by an appellate court is, in principle, acceptable, in the circumstances of the present case it failed to satisfy the requirements of a fair trial. As the applicant’s statement of appeal indicated that the District Court’s findings had been devoid of a factual and/or legal basis, it was all the more important that the City Court give proper reasons of its own (see Hirvisaari, cited above, § 32). Nevertheless, the City Court endorsed the District Court’s findings in a summary fashion, without reviewing the arguments in the applicant’s statement of appeal.
63. Accordingly, the Court considers that the manifestly deficient reasoning by the Dorogomilovskiy District Court and the subsequent approval of such inadequate reasoning by the Moscow City Court as an appellate body failed to fulfil the requirements of a fair trial.
There has therefore been a violation of Article 6 § 1 of the Convention.
The case is: TATISHVILI v. RUSSIA 1509/02 22/02/2007
The differences include that it is about the need for someone living in Russia to register their place of residence with the police, for example when one changes residence.
The similarities include that it is about the arbitrary refusal of the police to accept valid evidence while the police invented false evidence, and the manifestly deficient reasoning of the domestic courts to support the police.
The details of the case include:
1. The applicant had a valid, certified document from the owner of the residence that she had permission to move into it. The police and courts stated that the applicant had a dispute with the owner and thus was not entitled to move in. No evidence was offered for the dispute.
2. The citizenship of the applicant was, according to Russian law, Russian, because she had been a citizen of the USSR and had remained in Russia and not renounced her Russian citizenship. The domestic courts maintained falsely that she was a citizen of Georgia.
3. The domestic courts maintained that the applicant need to have a visa from Georgia to enter Russia according to a treaty between Russia and Georgia. In fact, there was no such treaty, and the courts did not produce the text of any such treaty.
The judgment of the ECHR was that there were violations by Russia of Convention Article 2 of Protocol 4 and of Convention Article 6.1. For the violation of Article 6.1, which is relevant to the Chieffi CSC motivation quashing the Hellmann court acquittal, and the Nencini court motivation report provisionally convicting Ms. Knox and Mr. Sollecito, the following statement from the ECHR is relevant {bold and italics added}:
Accordingly, the Court considers that the manifestly deficient reasoning by the Dorogomilovskiy District Court and the subsequent approval of such inadequate reasoning by the Moscow City Court as an appellate body failed to fulfil the requirements of a fair trial.
{Excerpts from the ECHR judgment. Note that the arguments of the applicant and Government and Court follow each other. Bold added.}
56. The applicant submitted that the proceedings had not been fair because the domestic courts had based their findings on “a treaty” between Russia and Georgia on visa-based exchanges which had never existed. Although the representative of the flat owner had produced his written consent to her moving into the flat, the courts had insisted that her right to live in the flat had not been sufficiently established. The judges had misrepresented the facts with a view to dismissing her claim.
57. The Government claimed that the proceedings had been fair because the applicant and her representative had taken part in the hearings and put forward arguments in defence of her claim. There was no indication of any breach of the principle of equality of arms. The applicant and her representative had been able to appeal against the first-instance court’s judgment to an appellate court and also to lodge an application for supervisory review. Those applications had been duly examined and dismissed by reasoned decisions.
58. The Court reiterates that, according to its established case-law, which reflects a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based. Article 6 § 1 obliges courts to give reasons for their judgments, but cannot be understood as requiring a detailed answer to every argument. The extent to which this duty to give reasons applies may vary according to the nature of the decision (see Ruiz Torija v. Spain, 9 December 1994, § 29, Series A no. 303-A). Even though a domestic court has a certain margin of appreciation when choosing arguments in a particular case and admitting evidence in support of the parties’ submissions, an authority is obliged to justify its activities by giving reasons for its decisions (see Suominen v. Finland, no. 37801/97, § 36, 1 July 2003). A further function of a reasoned decision is to demonstrate to the parties that they have been heard. Moreover, a reasoned decision affords a party the possibility to appeal against it, as well as the possibility of having the decision reviewed by an appellate body. It is only by giving a reasoned decision that there can be public scrutiny of the administration of justice (see, mutatis mutandis, Hirvisaari v. Finland, no. 49684/99, § 30, 27 September 2001).
59. In the present case the judgments of the Dorogomilovskiy District Court and the Moscow City Court refusing the applicant’s complaint were founded on two grounds. They held, firstly, that there existed a dispute between the applicant and the flat owner as to her right to move into the flat. Secondly, they found that the applicant’s residence might have been unlawful because “a treaty” between Russia and Georgia on visa-based exchanges required her to be in possession of an entry visa.
60. As regards the first finding by the domestic courts, the Court observes that the applicant had produced a written certified consent from the flat owner to her moving in. A representative of the flat owner confirmed that consent in the oral submissions before the District Court. The District Court subsequently directed that the reference to those submissions be added to the hearing record (see paragraph 17 above). It follows that the flat owner’s consent was validly produced in the domestic proceedings and its existence was acknowledged by the District Court, which gave no reasons whatsoever for its finding that there existed a dispute between the applicant and the flat owner. Nor did the District Court indicate any reasons for holding that the municipal-tenancy provisions of the Housing and Civil Codes applied in a situation where the flat owner had clear title to the flat and wished to make it available to the applicant.
61. As to the domestic courts’ reliance on “a treaty” between Russia and Georgia on visa requirements, the Court observes that they omitted to verify whether such a treaty was in existence. In fact, the visa requirement for Georgian citizens had not been introduced by a treaty as the District Court maintained, but had resulted from the denunciation by Russia of the Bishkek Agreement in the absence of a separate treaty on visa-free movement between Russia and Georgia (see paragraph 28 above). The Court is not convinced that this discrepancy could have been the result of a mere difference in terms because the text of the “treaty on visa-based exchanges” was never produced in the domestic proceedings. The domestic courts appear to have taken the reference to it from the passport department’s submissions. Furthermore, the Court finds it anomalous that the District Court relied on a treaty governing the conditions of entry and stay for Georgian citizens without giving any reasons for the assumption that the applicant was a Georgian citizen. As the Court has found above, no evidence to that effect has been produced either in the domestic proceedings or before it.
62. Nor was the inadequacy of the District Court’s reasoning corrected by the Moscow City Court, which simply endorsed the reasons for the lower court’s decision. While such a technique of reasoning by an appellate court is, in principle, acceptable, in the circumstances of the present case it failed to satisfy the requirements of a fair trial. As the applicant’s statement of appeal indicated that the District Court’s findings had been devoid of a factual and/or legal basis, it was all the more important that the City Court give proper reasons of its own (see Hirvisaari, cited above, § 32). Nevertheless, the City Court endorsed the District Court’s findings in a summary fashion, without reviewing the arguments in the applicant’s statement of appeal.
63. Accordingly, the Court considers that the manifestly deficient reasoning by the Dorogomilovskiy District Court and the subsequent approval of such inadequate reasoning by the Moscow City Court as an appellate body failed to fulfil the requirements of a fair trial.
There has therefore been a violation of Article 6 § 1 of the Convention.
Bill Williams
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Bill Williams said:
That's the way I view it - not because I know anything, but how on earth would anyone in the pro-guilt lobby explain this? I mean, did Raffaele suddenly get reformed in his 2+ years out of jail? Was Raffaele any less of a flight risk, was the demon the pro-guilt people claim his is no not apply to reoffending? He didn't need to tamper with evidence: Stefanoni and the PLE seemed to have destroyed it all.
And how does the pro-guilt lobby explain none other than Nencini saying Amanda is legally abroad?
There's something peculiarly Italian going on here, which has been a hallmark of this case.... even Hellmann: acquitting them, yet throwing a bone to the PLE with regard to calunnia, else Hellmann was forced to admit in his judgement that the police/PM themselves were corrupt.
Heck, even Machiavelli, when he's posting, accuses judges of crimes - Wladimir and Hellmann and Zanetti being three.... but the President of the Appeals level of Perugia is not so much a criminal as a master manipulator!
My quasi-cousin (an Italian) listens to me an just shrugs: "It's Italy!" Apparently that's supposed to have meaning.
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Application of Tatishvilli to Hellmann
The Tatishvilli v Russia judgment also has application to the Hellmann court's conviction of Amanda Knox for calunnia. In the motivation report, there is a long list of reasons why Knox was under pressure from the police and vulnerable. Yet, rather than considering this the basis of a coerced statement, Hellmann states that she should have know Patrick Lumumba was innocent because he had no connection with Meredith. This statement is not logically correct. Thus, it is a manifestly unfounded piece of reasoning. ("Manifestly unfounded" means clearly illogical or not based on fact.)
The Tatishvilli v Russia judgment also has application to the Hellmann court's conviction of Amanda Knox for calunnia. In the motivation report, there is a long list of reasons why Knox was under pressure from the police and vulnerable. Yet, rather than considering this the basis of a coerced statement, Hellmann states that she should have know Patrick Lumumba was innocent because he had no connection with Meredith. This statement is not logically correct. Thus, it is a manifestly unfounded piece of reasoning. ("Manifestly unfounded" means clearly illogical or not based on fact.)
Desert Fox
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The other thing, to be blunt, is that they were never really after Raff but instead after that She Devil Amanda. To be blunt, if she had tried to go back to Italy for Nencini's trial, I hope her family and friends would have done something drastic like steal her passport and toss it onto Puget Sound. I would risk getting a misdemeanor if I knew her directly to do that. Edit: I don't know if I would do it but the idea would certainly cross my mind.
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Good article in the New Yorker discussing police interrogation:
Do police interrogation techniques produce false confessions?
Do police interrogation techniques produce false confessions?
Desert Fox
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Kind of curious, would it have been considered bad technique in 1966?
We have learned a lot since then and might be time to see if an issue can be brought in front of the supreme court related to it.
Chris_Halkides
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Kassin and Leo on the Reid technique
The idea that the Reid technique is authoritative is hard enough to believe on its own, but coupled with its coming from the Miranda decision...wow.
Not sure about 1966, but the Reid Technique is still considered to be state of the art as far as the police in the US are concerned.
In the UK, they developed a much different system for interviewing suspects. The article goes over some of the differences.
Desert Fox
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What else is considered state of the art from 1966?
Chris_Halkides
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DNA and cold case hits
There was no forensic DNA contamination in 1966. More seriously, some of these cold case hits (Durrua, Mixer, and Tapp) look foolish in retrospect. There are sometimes 15-30 year gaps (allowing for considerable DNA degradation), and people handled the evidence differently before DNA was used, let alone PCR-based DNA forensics.
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Desert Fox
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How do you feel with a 30+ year old rape and/or rape and murder case when there is a solid DNA test with a semen test - either showing guilt or exonerating a previous convicted person?
Chris_Halkides
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Mixer's blood and Ruelas' DNA
That's a complicated question without an easy answer (and I don't have the time just now to give the question its full due). The work of Peel and Gill (2004) and the blood drop in Jane Mixer's hand lead me to the conclusion that even finding DNA that seems to be associated with a particular stain does not always mean that the DNA came from the stain. The blood was probably mixer's but the DNA was certainly from John Ruelas. Which is more likely, that a four year old Ruelas wandered forty miles and had a nose bleed over a crime scene, or that Mixer's DNA was degraded over thirty years and Ruelas's DNA contaminated it (Ruelas's sample was known to be in the lab at the same time). I also think that it is possible to exonerate someone incorrectly on the basis of DNA. However, I would rather see someone falsely exonerated than see someone who is innocent remain in prison.
Desert Fox
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Would taking multiple samples and retest in separate facilities help quite a bit as well?
Chris_Halkides
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reference samples could be treated separately
I have been discussing this problem with someone recently. One suggestion is to work with reference samples and evidence samples in separate facilities.
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