Continuation Part 12: Amanda Knox/Raffaele Sollecito

[Numbers]

In an ECHR case Italy will be the defendant. The problem is taking a reductio ad absurd approach, if defendants were never permitted counsel prosecution would be easiest. Assuming one does not take that view then any restriction to counsel has to be justified, as you said specific and exceptional. Because of the equality of arms issue, if the prosecution have access to a lawyer (the pm) the defendant should have access to a lawyer. The ECHR can certainly rule that particular provisions of Italian law are in conflict with the human rights. Although you say the restriction of access to counsel was legal under Italian law because it facilitated the prosecution, you can give no reason why it was necessary other than preventing access to counsel disadvantaged the defendant. This case could be made in any case. If there was really true cause then mignini would have gone to court to justify the continued restriction to the five days allowed. that he failed to make the case shows there were no good grounds. The ECHR is clearly not going to favour the routine deprivation of access to counsel because it makes prosecution easier. The circumstances should be specific and exceptional. The grounds should be documented and challengeable. That the Italian courts failed to accept the argument is exactly what justifies the case going to ECHR.

It is important that the "good reasons" for deprivation of counsel during an interrogation are in reality "compelling reasons" in the ECHR language.

From Salduz v. Turkey:

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. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6 (see, mutatis mutandis, Magee, cited above, § 44). The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.

 

[Welshman]

I have looked at the two statements signed during the interrogation. One thing is obvious that these statement were prepared by the police. They were both in Italian and Amanda only spoke basic Italian at the time. The statements used language that a 20 year old from the United States would not use.

Lets assume that Amanda had named Patrik out of the blue. The police made no mention of Patrik prior to Amanda naming him and Amanda was not in way pressurised to name him. Amanda has accused someone of committing a murder which is the most serious accusation you can make.

What do you expect the police to do if someone makes an accusation that someone has committed a murder. You would expect them to ask questions about what happened during the murder. The two statements are extremely vague on details. All they basically say is Amanda met up with Patrik, Patrik went into Meredith's room and sexually assaulted and murdered Meredith. There are no details of what happened prior to the night of the murder. Did Patrik discuss with Amanda killing Meredith and if so when? How often did Amanda and Patrik discuss killing Meredith? After Amanda and Patrik meet up on the night of the murder, what did they say to each other? Why did Patrik feel he could trust Amanda enough to kill Meredith without Amanda going to the police? How did Patrik kill Meredith? Did he use a weapon? What happened after Patrik killed Meredith? Can Amanda explain why Patrik allowed Amanda to live when she could have been a witness? The two statements contain none of these details and the police never asked these type of questions.

Why did the police not question Amanda further when she was supposed to have witnessed a murder when the two statements contained so little detail? Why did they make no further effort to obtain further information about what happened with Patrik? Why was Patrik arrested for murder on the basis of such vague statements?

 

[Numbers]

It is important that the "good reasons" for deprivation of counsel during an interrogation are in reality "compelling reasons" in the ECHR language.

From Salduz v. Turkey:

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. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6 (see, mutatis mutandis, Magee, cited above, § 44). The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.

Bumped this to call attention to the last sentence - just in case anyone missed it.

And in terms of Ms. Knox's false statements written for her by the police:

1) stating you observed a murder and didn't report it is incriminating

2) accusing someone of a crime falsely before the police - within their clear view and hear - is incriminating, if accusing someone of a crime falsely is a crime.

Committing a crime within view and hearing of the police is incriminating by the definition of incriminating.

Full Definition of INCRIMINATE
transitive verb
: to charge with or show evidence or proof of involvement in a crime or fault

If Ms. Knox was actually knowledgeable about who had committed the murder/rape, she would have been foolish to name someone she knew not to be guilty. For one thing, she would then be committing the crime of calunnia.

Also:

1. That innocent person could have a strong alibi.
2. That person would not have left forensic evidence (Guede's DNA was found, not Lumumba's, in Meredith's body).
3. She only named Lumumba because of police pressure, including Donnino's suggestion that one can be suffering traumatic amnesia.
4. The police pressure on Knox was intense, Giobbi, stationed in another room, reported in his testimony hearing her crying.

 

[Chris_Halkides]

We don't need to run a standard because we know what the answer is

Patricia Stallings, exoneration entry :

Contributing Factors: False or Misleading Forensic Evidence, Inadequate Legal Defense

Samson,

Here is my entry on the Stallings case. It is an appalling example of confirmation bias.

 

[Chris_Halkides]

How to avoid contamination the easy way

Numbers,

Thank you for bringing up Ms. Blake. In the essay "Tarnish on the Gold Standard" William Thompson wrote, "Analyst Sarah Blair of Orchid-Cellmark used yet another approach. She manipulated the computer files produced by the genetic analyzer, replacing the computerized results for problematic control samples with the results of “clean controls” from other cases. This manipulation was uncovered when another Orchid-Cellmark analyst who reviewed Blair’s work noticed that the same control file (which happened to contain an unusual anomaly) appeared in two different cases."

 

[Samson]

Samson,

Here is my entry on the Stallings case. It is an appalling example of confirmation bias.

Interesting, Chris, 2010 was a while ago. This Knox case must be the most stubborn around, for the citizen scientist.

In Australasia,
Arthur Allan Thomas, Lindy Chamberlain, and David Bain* at least would never have been released without citizen scientists/advocates generally. Teina Pora will be exonerated similarly. There must be countless examples internationally where the legal and judicial arms have lined up against justice and science.
The current case is a text book example.

* The Knox case has made me look more analytically at Bain, and my views have changed accordingly, to almost certain innocence, yet the minister of justice and the legal profession have rallied to prevent compensation being paid.

 

[Machiavelli]

It is important that the "good reasons" for deprivation of counsel during an interrogation are in reality "compelling reasons" in the ECHR language.

(...)

They are "compelling reasons" also for Italian jurisprudence.

 

[Machiavelli]

In an ECHR case Italy will be the defendant. The problem is taking a reductio ad absurd approach, if defendants were never permitted counsel prosecution would be easiest. Assuming one does not take that view then any restriction to counsel has to be justified, as you said specific and exceptional. Because of the equality of arms issue, if the prosecution have access to a lawyer (the pm) the defendant should have access to a lawyer. The ECHR can certainly rule that particular provisions of Italian law are in conflict with the human rights.

It is theoretically possible, but it is not realistic, if you consider the principles of ECHR. The ECHR acknowledgest that the right to counsel can suffer delays or limitation for cautionary reasons that depend on the need to pretect the effectivness of investigation, since the effectiveness of investigation is a public interest which has a need to be protected as well as human rights, and human rights are supposed to pay a price (be "partly sacrified") when they come into conflict with other rights.
It is not easy to establish a point of balance between conflicting rights. For example, it won't be easy to tell how long a delay to access counsel would be "reasonable" (48 hours is not 5 days - and Italian law allows up to 5 days). So not all "delays" are the same. But it is certalily easy to tell that the answer won't be completely slanted on one side, it's not going to be the absolute extension of the rights of an individual in detriment to the collective interest. If that was the case, even cautionary custody wouldn't exist; cautionary custody is a law by which a legally innocent person is kept in jail for cautionary reasons. The liberties of individuals are restricted for reasons of public interest.

Although you say the restriction of access to counsel was legal under Italian law because it facilitated the prosecution, you can give no reason why it was necessary other than preventing access to counsel disadvantaged the defendant. This case could be made in any case. If there was really true cause then mignini would have gone to court to justify the continued restriction to the five days allowed. that he failed to make the case shows there were no good grounds. The ECHR is clearly not going to favour the routine deprivation of access to counsel because it makes prosecution easier. The circumstances should be specific and exceptional. The grounds should be documented and challengeable. That the Italian courts failed to accept the argument is exactly what justifies the case going to ECHR.

It's not because it facilitated the prosecution, it's because there was a cautionary need to safeguard the investigation from a risk of being polluted.
Your reasoning about the five days is baseless: Mignini delayed the right to counsel until the investigating judge hearing, so that the defendants would have a chance to be examined by the investigating judge before their testimonies may get "polluted" by each other.
We are talking about three defendants who were arrested at the same time while they were in the process of accusing each other about an extremely serious crime, with Knox even attempting to communicate threatning messages ("blood on hands"): this was obviously the specific and exceptional circumstance.

 

[Diocletus]

It is theoretically possible, but it is not realistic, if you consider the principles of ECHR. The ECHR acknowledgest that the right to counsel can suffer delays or limitation for cautionary reasons that depend on the need to pretect the effectivness of investigation, since the effectiveness of investigation is a public interest which has a need to be protected as well as human rights, and human rights are supposed to pay a price (be "partly sacrified") when they come into conflict with other rights.
It is not easy to establish a point of balance between conflicting rights. For example, it won't be easy to tell how long a delay to access counsel would be "reasonable" (48 hours is not 5 days - and Italian law allows up to 5 days). So not all "delays" are the same. But it is certalily easy to tell that the answer won't be completely slanted on one side, it's not going to be the absolute extension of the rights of an individual in detriment to the collective interest. If that was the case, even cautionary custody wouldn't exist; cautionary custody is a law by which a legally innocent person is kept in jail for cautionary reasons. The liberties of individuals are restricted for reasons of public interest.



It's not because it facilitated the prosecution, it's because there was a cautionary need to safeguard the investigation from a risk of being polluted.
Your reasoning about the five days is baseless: Mignini delayed the right to counsel until the investigating judge hearing, so that the defendants would have a chance to be examined by the investigating judge before their testimonies may get "polluted" by each other.
We are talking about three defendants who were arrested at the same time while they were in the process of accusing each other about an extremely serious crime, with Knox even attempting to communicate threatning messages ("blood on hands"): this was obviously the specific and exceptional circumstance.

Well, the problem you have here is that as soon as the echr says that it's ok for the Italians to hold suspects without counsel for a couple of days and slap them around, the Russians and Ukrainians are going to do it, too. And people are gonna die.

 

[Machiavelli]

I so agree with TomB. Any lab with no errors is a lab with poor QC. I read stuff from Stefanoni and I recognise a bad lab. People who work in labs will recognise the errors. Where is the QC manager for Stefanoni's lab? Where are the SOPs? Where is the documentation for deviation from SOP? Where are the audit and external quality control records? As TomB says any good lab will have these available for inspection. Bad ones will not.

But, seems you forget the defence experts took part to the DNA tests and they could examine whatever they want: prof. Potenza was there during the knive samples testing, and he didn't request anything. Experts were invited to come to the lab throughout the investigation, and they didn't come. They didn't attempt examine anything, except prof. Vinci who requested to examine the pillowcase, but only for print analysis, and did not request to test the putative semen stain.

Is it hard to accept the principle that when the incidente probatorio is closed, the evidence is considered as cristallyzed already?

And is it so difficult to acknowledge that Stefanoni didn't refuse any inspection (even as for Vechiotti's statement her cooperation was "complete"), it is the judges and prosecution who didn't want to re-open the evidence analysis, it was late at that stage, it would have been just a defence pretext.

 

[Machiavelli]

Well, the problem you have here is that as soon as the echr says that it's ok for the Italians to hold suspects without counsel for a couple of days and slap them around, the Russians and Ukrainians are going to do it, too. And people are gonna die.

There is not going to be any "slapping around" in ECHR rulings about Amanda Knox.

 

[Machiavelli]

How do you know the story is false?

I know where the burden of proof is.

 

[Diocletus]

There is not going to be any "slapping around" in ECHR rulings about Amanda Knox.

Yeah, that's what the Russians say, too.

 

[Diocletus]

But, seems you forget the defence experts took part to the DNA tests and they could examine whatever they want: prof. Potenza was there during the knive samples testing, and he didn't request anything. Experts were invited to come to the lab throughout the investigation, and they didn't come. They didn't attempt examine anything, except prof. Vinci who requested to examine the pillowcase, but only for print analysis, and did not request to test the putative semen stain.

Is it hard to accept the principle that when the incidente probatorio is closed, the evidence is considered as cristallyzed already?

And is it so difficult to acknowledge that Stefanoni didn't refuse any inspection (even as for Vechiotti's statement her cooperation was "complete"), it is the judges and prosecution who didn't want to re-open the evidence analysis, it was late at that stage, it would have been just a defence pretext.

Right. She just did a bunch of reruns that no one knew about.

 

[Numbers]

Samson,

Here is my entry on the Stallings case. It is an appalling example of confirmation bias.

The Stallings case seems to have confirmation bias and a failure to use validated forensic methods. Based on your write-up, it appears no positive controls or ethylene glycol-spiked samples were run by the toxicology lab, and there was over-confidence in the misleading GC results. Their erroneous identification led to or supported the bias, which affected the other labs. The missing baby bottle is rather suggestive of some attempt to avoid the embarrassment of re-testing. Like the destruction of the DNA allegedly on the bra-clasp by improper storage in the present case.

 

[AmyStrange]

-

I so agree with TomB. Any lab with no errors is a lab with poor QC. I read stuff from Stefanoni and I recognise a bad lab. People who work in labs will recognise the errors. Where is the QC manager for Stefanoni's lab? Where are the SOPs? Where is the documentation for deviation from SOP? Where are the audit and external quality control records? As TomB says any good lab will have these available for inspection. Bad ones will not.

But, seems you forget the defence experts took part to the DNA tests and they could examine whatever they want: prof. Potenza was there during the knive samples testing, and he didn't request anything. Experts were invited to come to the lab throughout the investigation, and they didn't come. They didn't attempt examine anything, except prof. Vinci who requested to examine the pillowcase, but only for print analysis, and did not request to test the putative semen stain.

Is it hard to accept the principle that when the incidente probatorio is closed, the evidence is considered as cristallyzed already?

And is it so difficult to acknowledge that Stefanoni didn't refuse any inspection (even as for Vechiotti's statement her cooperation was "complete"), it is the judges and prosecution who didn't want to re-open the evidence analysis, it was late at that stage, it would have been just a defence pretext.

-

I don't think Planigale was specifically talking about this specific case, but about labs in general.

I wouldn't trust a lab either that didn't have SOPs or QCs. I've worked in a lab before and they had SOPs and QCs up the you know what, and this is just for research, and you'd think a criminal lab would be at least up to that standard.

In my opinion,

d

-
ETA: And at the place I worked, contamination was a big deal and so was "negative air flow" for some reason? One of the things they did was a monthly facility wide (room by room) bacteria count. Pretty interesting stuff really (at least to me anyway).

-

 

[Numbers]

They are "compelling reasons" also for Italian jurisprudence.

It is important that the "good reasons" for deprivation of counsel during an interrogation are in reality "compelling reasons" in the ECHR language.

From Salduz v. Turkey {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. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6 (see, mutatis mutandis, Magee, cited above, § 44). The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.
___
It is the ECHR that determines whether there were "compelling reasons" for any denial of a lawyer under interrogation which leads to a conviction due to incriminating statements made during the interrogation. It is not the arbitrary position of the domestic State - in this case, Italy - that determines whether or not the justification is compelling. A situation that would be compelling would be equivalent to that in Ibrahim (potential for bombs hidden by terrorists) and the safeguards must be equivalent to those in Ibrahim.

For example, from Ibrahim: 1) transcripts were made of the safety interviews, 2) there were explicit warnings about defendant's rights by the police, and 3) the only substantial use of a statement from a safety interview for conviction was for the fourth defendant, who introduced the statement as a defense.

The Ibrahim example is far different from the calunnia against Patrick Lumumba case imposed upon Ms. Knox.

 

[Samson]

The Stallings case seems to have confirmation bias and a failure to use validated forensic methods. Based on your write-up, it appears no positive controls or ethylene glycol-spiked samples were run by the toxicology lab, and there was over-confidence in the misleading GC results. Their erroneous identification led to or supported the bias, which affected the other labs. The missing baby bottle is rather suggestive of some attempt to avoid the embarrassment of re-testing. Like the destruction of the DNA allegedly on the bra-clasp by improper storage in the present case.

There is another public statement that is false by the prosecutor.

"As sad as it is that she had to suffer what she has, I think the final outcome shows a real strength in our system of justice," McElroy said.

http://www.msbp.com/stlouis.htm

This is what the New Zealand MOJ said when Teina Pora's case was referred to the British privy council.
No.
These people rot in jail without citizens becoming involved and contributing thousands of hours of unpaid time.

 

[Desert Fox]

The Stallings case seems to have confirmation bias and a failure to use validated forensic methods. Based on your write-up, it appears no positive controls or ethylene glycol-spiked samples were run by the toxicology lab, and there was over-confidence in the misleading GC results. Their erroneous identification led to or supported the bias, which affected the other labs. The missing baby bottle is rather suggestive of some attempt to avoid the embarrassment of re-testing. Like the destruction of the DNA allegedly on the bra-clasp by improper storage in the present case.

There is also the Cynthia Sommer case where she was tried for the murder of her husband, convicted but the judge ordered a new trial. Additional samples of his tissue were tested and showed no evidence of arsenic. The prosecutor in that case actually dropped charges however.

 

[Desert Fox]

There is another public statement that is false by the prosecutor.

"As sad as it is that she had to suffer what she has, I think the final outcome shows a real strength in our system of justice," McElroy said.

http://www.msbp.com/stlouis.htm

This is what the New Zealand MOJ said when Teina Pora's case was referred to the British privy council.
No.
These people rot in jail without citizens becoming involved and contributing thousands of hours of unpaid time.

Prosecutors never just want to admit "I was wrong."