Continuation Part 12: Amanda Knox/Raffaele Sollecito

[Dougm]

But the selective legal action belongs to the nature of defamation lawsuits. It is up to a private subject to decide about whether it is in their interest to sue this or that. Defamation is only about the private interest on an individual, it protects exclusively that and pursues that purpose.

When the "private subjects" turn out to be agents of the government, their decision on who to file charges against can't be seen as having the same motivation as some random person claiming defamation. These charges may be technically "private", but they affect the larger case, and serve to intimidate the defendant, witnesses, and anyone else they might wish to have that affect on.

The basic principal here is who has the power, and how they are allowed to use it.

 

[Numbers]

Actually there is no reasonable ground to believe the ECHR would look into the issue at all. There is no reasonable ground to believe that defence submission to the ECHR will be significantly different from the reasons for recourse they had submitted to the SC, which were only about the usability of Knox statements (the delay of counsel was raised before the investigating judge and declared manifestly inadmissible).
There can't be an ECHR ruling that "clarifies the ground to restrict access to counsel in Italy"; the ECHR can't rule on "grounds that work in Italy", the Convention is valid everywhere and general; the ECHR also cannot establish the specific regulations; moreover it also has already an orientation acknowledging "good reasons" among which there's "effectiveness of criminal investigation".
The argument about motivations is pointless: motivations are made for judges, not for the ECHR, and the purpose of written motivation would be to request an investigating judge. But Mignini did not present a request to prolong the delay.

There are several misstatements in this post. Here are the facts:

1. The ECHR will point out any Italian law or constitutional provision that does not conform to the Convention, if it finds any such nonconformance. Its judgment overrides domestic law. The Committee of Ministers of the Council of Europe will supervise Italy in any corrective action. Italy is obligated to follow the ECHR final judgments, as are all the CoE States.

2. The statement above that uses the terms "good reasons" is in error. The actual wording is {emphasis added}:

55. Against this background, the Court finds that in order for the right to a fair trial to remain sufficiently “practical and effective” (see paragraph 51 above), Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right.

"Compelling reasons" are much stronger than "Good reasons".

Full Definition of COMPELLING
: that compels: as
a : forceful <a compelling personality>
b : demanding attention <for compelling reasons>
c : convincing <no compelling evidence>

good
adjective \ˈgu̇d\

: of high quality

: of somewhat high but not excellent quality

: correct or proper

from full definition of good:
e (1) : well-founded, cogent <good reasons> (2) : true <holds good for society at large> (3) : deserving of respect : honorable <in good standing> (4) : legally valid or effectual <good title>

ETA: ECHR statement from Salduz 36391/02 | Judgment (Merits and Just Satisfaction) | Court (Grand Chamber) | 27/11/2008
Definitions from http://www.merriam-webster.com/dictionary

 

[Kauffer]

This is your other fallacy. You say this, because you fail to acknowledge that Knox's calunnia is a crime on its own, it cannot be considered as a statement "derived" from some external circumstance, and it is not an "incriminating" statement elicited from a suspect since Knox was not a suspect of the crime of calunnia; she was suspected only of crimes that, at the time, were not connected to the crime of calunnia (since the latter didn't exist yet).

The fallacy is your apparent belief that there is a class of crime which the police may incite, coerce or otherwise compel, which denies an accused person a defence. Yet Ms Knox's claim is supported by:

1) The evidence that the police were intent on getting Ms Knox to name Lumumba
2) The absence of any contemporaneous notes supporting the police version of events
3) The absence of any recordings or any other evidence supporting the police version of events
4) Her recanting soon after of the statements made against Lumumba written for her by the police
5) The ECHR, which treats all statements made without benefit of counsel and used to convict as a violation of Article 6.

 

[Numbers]

It is this type of reasoning that makes me think that the ECHR will need to wait until the whole case is settled, and rule on the overall case -- the calunnia conviction, any conviction in the murder, and the side cases all being part of the consideration. Is there precedent for them doing something like that? I can understand why Amanda would have filed her Calunnia conviction with the ECHR first, since the deadline demanded that. But it seems the whole thing is so intertwined, do you think they would be likely to somehow hear all related claims together? Or would it be more likely they would rule on the Calunnia issue first, since it was submitted first and it affects the other charges (even those still being decided)?

Good question.

The criminal calunnia charge against Amanda for her saying the police mistreated her and the civil lawsuits for defamation against Amanda and her parents can be seen as part of the current application.

The rest of the case - the murder/rape trial - has not been finalized. No one really knows when it will be finalized; if the CSC decides to have another second- level trial, it could be another 2 or 3 years. If CSC were to decide to acquit them, only the simple calunnia conviction could be reviewed by ECHR, AFAIK.

So there is no reason to delay going forward as quickly as possible with the current application.

And I really can't make a sensible prediction on how quickly the ECHR works. It might communicate the case to Italy tomorrow or a year from tomorrow.

It is interesting, though, how the ECHR has published so many judgements and decisions this month of January.

ETA: If the CSC does finalize a conviction in March or April, the ECHR may decide to combine the applications when they receive them. But that receipt might not happen until Fall, 2015, because of the 6-month window and the time for official notice from CSC.

 

[Kauffer]

It is this type of reasoning that makes me think that the ECHR will need to wait until the whole case is settled, and rule on the overall case -- the calunnia conviction, any conviction in the murder, and the side cases all being part of the consideration. Is there precedent for them doing something like that? I can understand why Amanda would have filed her Calunnia conviction with the ECHR first, since the deadline demanded that. But it seems the whole thing is so intertwined, do you think they would be likely to somehow hear all related claims together? Or would it be more likely they would rule on the Calunnia issue first, since it was submitted first and it affects the other charges (even those still being decided)?

We raised this relatively recently and the answer is yes. However, if there is no final confirmation of the murder convictions - let's imagine that there is an acquittal down the road - then the calunnia case would have to be considered alone by the ECHR.

 

[Bill Williams]

But now you are speaking about a calunnia charge, and Follain has nothing to do with it. As for the calunnia againt police trial, Mignini himself stated that he didn't think he was an offended party, and he did not submit any lawsuit, and was not added to the list of civil parties until the judge - against Mignini's request - moved the trial to Florence and decided that he was an offended party. The legs action was started by police officers alone, this is in the papers.

Yet another post where you do not deal with the issue that Follain was left out of the charge against Curt Knox and Edda Mellas.

So be it. You'll simply ignore that you were asked. Follain must be protected at all costs, I guess - he's a friend to the wrongful prosecution.

 

[Machiavelli]

Yet another post where you do not deal with the issue that Follain was left out of the charge against Curt Knox and Edda Mellas.

So be it. You'll simply ignore that you were asked. Follain must be protected at all costs, I guess - he's a friend to the wrongful prosecution.

But - are you there? - how can you say I didn't answer the point, when I answered multiple times? Follain was not sued because the individuals did not think they had an interest in accusing him. They may have more than one reason for that, among them I can guess they didn't see Follain as someone having a defamatory intent against them.

 

[tsig]

Yes, a false memory brought on by the cops slapping her upside the head. Whatever the Italian courts decided, in order to cover their own asses won't matter. What will matter is if the echr decides that there are indications of compulsion. Which, there are.

Often cited, never proven.

 

[Machiavelli]

When the "private subjects" turn out to be agents of the government, their decision on who to file charges against can't be seen as having the same motivation as some random person claiming defamation. These charges may be technically "private", but they affect the larger case, and serve to intimidate the defendant, witnesses, and anyone else they might wish to have that affect on.

The basic principal here is who has the power, and how they are allowed to use it.

This is an example of the spun world you live into; what makes you think Knox's parents should have the right to tell false stories defaming other individuals on tabloids? This has nothing to do with defence nor with witnesses, and it s not a trial activity. This was part of a media campaign, has nothing to do with defence rights.

 

[TomB]

Please tell me if my understanding of this is correct:

In Italy, if you are convicted of a crime, you may (apparently automatically) be prosecuted for statements you made on the stand in your defense. (callunia)

In the trial for this callunia, your conviction can be used as unchallengeable evidence against you (finding of fact).

In subsequent appeals of your criminal conviction, your conviction for callunia can be similarly used against you as it is now a finding of fact? Is this right?

If so, it seems like a pretty stupid circle of logic.

Also, anytime you go to court and assert improper actions by the police you are charged with another crime?

Seems like a system designed to discourage people from complaining about their treatment by the authorities.

In my mind, the automatic investigation/prosecution should be against the police officers, not the suspect. Crimes by the state (such as police abuse) are more serious than verbal crimes against the state.

 

[Diocletus]

Often cited, never proven.

Whether it was proved, in the eyes of an Italian court, will be irrelevant. What will matter is 1) whether the prosecution was obligated to conduct an investigation once the issue was raised (they didn't), and 2) what the ECHR thinks of the issue, factually, particularly given the fact that the allegation of "hitting" was made immediately, the interrogation wasn't recorded, the allegation was repeated in testimony, and was never investigated, but instead the defendant was charged with an additional crime for making the allegation.

It's going to be very difficult for the ECHR to affirm the police conduct here, because if they do, every prisoner will be at risk. I don't see it happening.

 

[tsig]

Yes Machiavelli, I'm afraid that you need to brush up on the case details and the legal aspects.

For example, did you know that RS didn’t withdraw AK’s alibi on Nov5/6th.
For, if he had, he would have used that to his advantage in the subsequent murder trial.

You need to get reading – One comes across the most fascinating stuff

It has been interesting watching points of doctrine emerge and solidify.

Slaps upside the head

False memory syndrome

She broke

12 cops ferociously interrogating her in shifts.

Shoulda had a lawyer

Shoulda had a recording

50 hours of interrogation.

(List is not meant to be exhaustive but it might wear you out)

 

[Bill Williams]

It has been interesting watching points of doctrine emerge and solidify.

Slaps upside the head

False memory syndrome

She broke

12 cops ferociously interrogating her in shifts.

Shoulda had a lawyer Shoulda had a recording
50 hours of interrogation.

(List is not meant to be exhaustive but it might wear you out)

Those points of doctrine are according to Italian law.

 

[Bill Williams]

Yet another post where you do not deal with the issue that Follain was left out of the charge against Curt Knox and Edda Mellas.

So be it. You'll simply ignore that you were asked. Follain must be protected at all costs, I guess - he's a friend to the wrongful prosecution.

But - are you there? - how can you say I didn't answer the point, when I answered multiple times? Follain was not sued because the individuals did not think they had an interest in accusing him. They may have more than one reason for that, among them I can guess they didn't see Follain as someone having a defamatory intent against them.

Thank you. I can now quote you as being in favour of predatory & targetted prosecutions.

Of course they would interpret Follain as not having defamatory intent. Follain worked hand in glove with the PLE. He got favours - secret recordings of prisoners - for his book. In return for his favourable treatment of the PLE they did not sue him for defamation.

Thank you for clarifying this. I don't know why I didn't see this before.

ETA - What with your comments about Anna Donnino being allowed to pull hidden memories from her clients - who are in need of trasnlation services, not memory recovery - added to your comments about why Curt and Edda were targetted, but not Follain.... makes the predatory nature of this wrongful conviction all the more clear. Thank you Machiavelli. I would never have seen this without your help.

 

[tsig]

Planigale,

If denying Ms. Knox and Mr. Sollecito lawyers during their interrogation would have resulted in the lawyers collaborating and this would have disturbed the investigation, why would that not be an issue after the remand hearing, which was the first time they had met with their lawyers. In fact, there was no collaboration between the lawyers that would have disrupted the investigation. There was no Mafia gang or band of terrorists. The only other suspect was Mr. Lumumba, who the police could and did easily arrest.

However, the presence of lawyers would have disrupted the coercive interrogation techniques that the police used. That is why the police intentionally deprived all three suspects, including Mr. Lumumba after his arrest, of lawyers during interrogation. After all, Patrick Lumumba was the last of the "conspirators" that the police had invented in the murder/rape of Meredith Kercher. And the police certainly would not want a lawyer present while they were threatening Mr. Lumumba, beating him, and otherwise practicing abuse.

Since the lawyers are also part if the Italian Justice System why wouldn't they have gone along with the cops?

 

[Numbers]

Please tell me if my understanding of this is correct:

In Italy, if you are convicted of a crime, you may (apparently automatically) be prosecuted for statements you made on the stand in your defense. (callunia)

In the trial for this callunia, your conviction can be used as unchallengeable evidence against you (finding of fact).

In subsequent appeals of your criminal conviction, your conviction for callunia can be similarly used against you as it is now a finding of fact? Is this right?

If so, it seems like a pretty stupid circle of logic.

Also, anytime you go to court and assert improper actions by the police you are charged with another crime?

Seems like a system designed to discourage people from complaining about their treatment by the authorities.

In my mind, the automatic investigation/prosecution should be against the police officers, not the suspect. Crimes by the state (such as police abuse) are more serious than verbal crimes against the state.

{Highlighting added to quote.}

Yes, this would be of interest to the ECHR. As well the "private" lawsuits by the agents of the State (police) against the subject and the relatives of the subject. Simply because an action is defined as "private" does not mean it doesn't fall under ECHR jurisdiction, if it originates with State agents and involve the alleged actions of the agents in their official capacity.

Claims of private lawsuit unfairness may also be brought to ECHR.

 

[Dougm]

This is an example of the spun world you live into; what makes you think Knox's parents should have the right to tell false stories defaming other individuals on tabloids? This has nothing to do with defence nor with witnesses, and it s not a trial activity. This was part of a media campaign, has nothing to do with defence rights.

How do you know the story is false?

 

[Diocletus]

How do you know the story is false?

He actually believes that the story is not false.

 

[tsig]

This is a pro-Knoxes' straw man. Stefanoni only said they never happened to have the evidence that a contamination problem had occurred on a sample.



You can have the words you like. It is the law.



You know, I am using the meaning of coercion as an action by which a person forces another person to do something against his/her will as a direct consequence of the use of violence, threat or intimidation.
If the consequence of an action is a memory, we have another element and the action cannot be described as coercion, at least not subjectively; the event should be better described as brain manipulation or cognitive hijacking, while two segments of consequential link, rather than just one, would require to be proven (because there is this element, the memory, in between, that makes the consequential linke become indirect).



No, context here does not save Knox. The only possible way to read those statements is that they are a calunnia, unless you decide to assume that Knox's position is "the only truth is that she doesn't know what the truth is", and at the same time you assume that Knox is credible.
The statements are false testimonies placing evidence against other people, it is a calunnia, there is no other possible legal reading.

After one and one half hours of questioning Amanda's memory is so bad she falsely accuses her boss but in all other circumstances it's absolutely perfect.
Right!

 

[Bill Williams]

This is an example of the spun world you live into; what makes you think Knox's parents should have the right to tell false stories defaming other individuals on tabloids? This has nothing to do with defence nor with witnesses, and it s not a trial activity. This was part of a media campaign, has nothing to do with defence rights.

How do you know the story is false?

Speaking of spun worlds....

If the issue is the right to tell false stories, why is the publisher of those false stories let off the hook? You admit that neither the publisher nor the author quoting those false stories were targetted by those who felt injured.

This is the first time in the history of putting pen to papyrus that publishers and authors have got off the hook.

You have told us why.