Continuation Part 12: Amanda Knox/Raffaele Sollecito

[Desert Fox]

Something that should be asked (and has been asked by others) is can anybody get a fair trial in Italy?

 

[codyjuneau]

It's not true.

I am indeed and adherent of the beyond reasonable doubt standard.

Mignini did not argue that reasonable doubt was a formalism; and he is much an adherent to the beyond reasonable doubt standard as far as I know. He argued that the adding of the words "reasonable doubt" to the procedure code in 2006 was a mere a formalism, since reasonable doubt standard had already been existing for many decades by established jurisprudence (in fact, Italy was a typical "three option" verdicts system, there was a whole Italian jurisprudence about "insufficient proof" which was defined by jurisprudence as the existence of reasonable alternative).
On the other hand, Mignini openly argued that the Kercher murder was not a case of reasonable doubt.

But, one thing I believe, is the concept of reasonable doubt does not apply to single pieces of evidence.

.
CarbonJam was right. You really are good at humour!

Cody
.

 

[Planigale]

Actually there is no interpretation at all in Stefanoni's report. However, Stefanoni at the preliminary hearing was testifying as a technical consultant for the prosecution.

The Berti-Barni perizia refers to "fluidi biologici" (p. 15) as those fluids from the human body that can be recognized specifically through testing their own specific monoclonal antibodies each of which recognizes its own epitope protein antigen.
At p. 82, the report says "Amanda Marie Knox contributed with her own biological fluids to trace I".
It clearly say, not only "fluidi biologici", but "propri fluidi biologici", where propri is an aggettivo possessivo that puts in relation the fluids with Amanda Marie Knox, and means "her own".
So the biological fluids are liquids that come from the system of Amanda Marie Knox, certainly not from the testing tube.

However, this does not prove anything. It only shows what words Berti and Barni actually wrote.



Now, if you want to apply a principle of Cartesian doubt, this is correct. But your argument was that trace I should be considered "unlikely" to be Knox's blood and unlkely to be related to the murder. I explained that this is not founded on the evidence set, because Knox's blood was certainly found on the murder scene and was linked to the murder by independent evidence. So there is independent reasons to believe there was Knox's blood on the murder scene.

Yet your main criticism seems to be still against Stefanoni, against which you seem willing to build an attack in an indirect fashion. I don't understand exactly which Stefanoni words you view as highly unethical or false. But anyway I can tell you that your "DNA ratio argument" by which you try to use features of a secondary and less significant element, as arguments in order to debunk a more significant finding, is legally unacceptable, and it is illogical. Moreover, the finding of MK's DNA on the blade is itself direct evidence against Amanda Knox, not just against Raffaele Sollecito.

According to you the bloody print of the knife is a print of the knife ex Sollecito. So you know it was covered in blood including the handle. I would be very interested how you can explain how all the blood, all the DNA of MK except a single isolated very small amount was removed, but the DNA of Knox (if you believe she did the stabbing and the DNA was deposited at the time of the stabbing) was left in a considerably greater amount than the victim's and more widely distributed.

My objection to Stefanoni's testimony is she should testify only to what is in her competency. She is a DNA scientist, she had no qualifications in forensic science. She should have limited her testimony to the DNA findings. Her proceeding to claim that the pattern of deposition of DNA of Knox meant she wielded the knife in a stab, is illogical, unscientific (in that there is no experimental evidence / literature to support her interpretation) and is a classic example of when someone proceeds beyond their professional competency to being part of the prosecution team. This is not unique to Stefanoni, false convictions are full of experts who over state their evidence. The Robbins footprint analysis used by the scientific police is a classic example. Many cases involving arson are based on scientifically dubious (to be polite) opinions.

In the UK considerable effort has been put in trying to prevent these issues. So police interviews with suspects have long been recorded. The PEACE interview technique is used, avoiding the problems with the Reid technique, particularly the discredited issue of recalling suppressed memories. Professionals have to act for the court (except in Scotland), not for one side or the other, they have to limit their opinion to what is in their professional competency and their evidence has to be logical and evidence based. In the UK withholding access to counsel as happened here just would not have happened.

Interestingly a report has just gone before parliament warning about the risks with financial stringencies that external accreditation and quality control of police forensic science labs are at risk and these things should be made compulsory, lest they be subject to cost savings.

 

[anglolawyer]

Something that should be asked (and has been asked by others) is can anybody get a fair trial in Italy?

I don't know the answer. I doubt they manage to screw up every case as badly as this one.

I thought of another unfairness in these proceedings. Knox and Sollecito appealed from Massei on a number of grounds. Let's call them grounds 1-10. Hellman decided he only needed to consider grounds 1-5 (say) and he upheld them and allowed the appeals. So far so good. But then the CSC reverses Hellman and remands the case to Nencini with directions. The defences then make a bunch of applications to Nencini some of which concern issues not addressed by Hellman. Nencini dismisses the lot and convicts. Isn't the result that grounds 6-10 have not been heard above Massei-level? I will need to line up a few documents side by side to pick out an example and will try to find time to do so and post here later.

 

[Desert Fox]

I don't know the answer. I doubt they manage to screw up every case as badly as this one.

I thought of another unfairness in these proceedings. Knox and Sollecito appealed from Massei on a number of grounds. Let's call them grounds 1-10. Hellman decided he only needed to consider grounds 1-5 (say) and he upheld them and allowed the appeals. So far so good. But then the CSC reverses Hellman and remands the case to Nencini with directions. The defences then make a bunch of applications to Nencini some of which concern issues not addressed by Hellman. Nencini dismisses the lot and convicts. Isn't the result that grounds 6-10 have not been heard above Massei-level? I will need to line up a few documents side by side to pick out an example and will try to find time to do so and post here later.

Let me put my accusation out to be straight what I am arguing here.

First thing, I wonder if the defendant is a middle age or older Italian male has a better chance to be acquitted whether guilty or not. Basically, while there are some exceptions, if the legal system operates as an old white males club.

Second thing, I wonder if a defendant is of any other group, they are far more likely to be convicted whether guilty or not and no matter what the evidence is or is not.

 

[Samson]

According to you the bloody print of the knife is a print of the knife ex Sollecito. So you know it was covered in blood including the handle. I would be very interested how you can explain how all the blood, all the DNA of MK except a single isolated very small amount was removed, but the DNA of Knox (if you believe she did the stabbing and the DNA was deposited at the time of the stabbing) was left in a considerably greater amount than the victim's and more widely distributed.

My objection to Stefanoni's testimony is she should testify only to what is in her competency. She is a DNA scientist, she had no qualifications in forensic science. She should have limited her testimony to the DNA findings. Her proceeding to claim that the pattern of deposition of DNA of Knox meant she wielded the knife in a stab, is illogical, unscientific (in that there is no experimental evidence / literature to support her interpretation) and is a classic example of when someone proceeds beyond their professional competency to being part of the prosecution team. This is not unique to Stefanoni, false convictions are full of experts who over state their evidence. The Robbins footprint analysis used by the scientific police is a classic example. Many cases involving arson are based on scientifically dubious (to be polite) opinions.

In the UK considerable effort has been put in trying to prevent these issues. So police interviews with suspects have long been recorded. The PEACE interview technique is used, avoiding the problems with the Reid technique, particularly the discredited issue of recalling suppressed memories. Professionals have to act for the court (except in Scotland), not for one side or the other, they have to limit their opinion to what is in their professional competency and their evidence has to be logical and evidence based. In the UK withholding access to counsel as happened here just would not have happened.

Interestingly a report has just gone before parliament warning about the risks with financial stringencies that external accreditation and quality control of police forensic science labs are at risk and these things should be made compulsory, lest they be subject to cost savings.

Machiavelli has tuned the knife print like all evidence. Whereas his 32 page treatise on the perfect match of Sollecito's footprint to the bathmat is impressive for sheer quantity, his knife analysis requires the coincidence that the knife was placed twice, to by chance give an outline match. This is beyond doubt, yet they need this like they need all distorted memes.
The good news is the photographs and measurements are perfect for scientific refutation of the absurd proposition.

 

[stilicho]

I don't know if he will regret it or not, but I am having trouble understanding why he would want a book that was never sold in Italy, and never translated into Italian, brought into the eye of the Italian public. Now, the passages he objects to will be "published", when they were not before. And won't there be some discovery around whether these passage are true or not? Not sure he will want that kind of info brought out in public.

In a stunning new development, Andrew Gumbel (Sollecito's ghostwriter) has directed his legal advisors to distance himself from the allegations included in Honor Bound. It's a wise decision although his nameplate is affixed to every printed copy of Sollecito's version of his story.

So here's where we're at. The two killers signed book deals. One has been promoted from the New York Times bestseller list to chasing down high school drama teachers in a small American suburb. The other was caught fleeing his own appeal in a hotel bordering Slovenia and has had his travel papers revoked.

Each one is facing further legal action for publishing false information and defaming those who arrested and prosecuted them. Their own ghostwriters have publicly disavowed them but are apparently keeping the money.

In only a couple months they're both going to have been convicted of aggravated murder along with the charges pending on their books.

See, this is what happens when your folks dial up the PR consultant instead of getting the best lawyers money can buy. Will Sollecito file a claim against Gumbel for abandoning him in this exciting new chapter? Does Sollecito have a leg to stand on? Smart people write those contracts and I can practically guarantee you that Gumbel won't pay a red cent and it's all going to be on Papa's VISA.

How would you like to be a Sollecito knowing all your inheritance went to some foreigner who cut your relative loose like a wounded albatross?

 

[MichaelB]

In a stunning new development, Andrew Gumbel (Sollecito's ghostwriter) has directed his legal advisors to distance himself from the allegations included in Honor Bound. It's a wise decision although his nameplate is affixed to every printed copy of Sollecito's version of his story.

So here's where we're at. The two killers signed book deals. One has been promoted from the New York Times bestseller list to chasing down high school drama teachers in a small American suburb. The other was caught fleeing his own appeal in a hotel bordering Slovenia and has had his travel papers revoked.

Each one is facing further legal action for publishing false information and defaming those who arrested and prosecuted them. Their own ghostwriters have publicly disavowed them but are apparently keeping the money.

In only a couple months they're both going to have been convicted of aggravated murder along with the charges pending on their books.

See, this is what happens when your folks dial up the PR consultant instead of getting the best lawyers money can buy. Will Sollecito file a claim against Gumbel for abandoning him in this exciting new chapter? Does Sollecito have a leg to stand on? Smart people write those contracts and I can practically guarantee you that Gumbel won't pay a red cent and it's all going to be on Papa's VISA.

How would you like to be a Sollecito knowing all your inheritance went to some foreigner who cut your relative loose like a wounded albatross?

I'm sorry but your post doesn't make much sense.

 

[Numbers]

I don't know the answer. I doubt they manage to screw up every case as badly as this one.

I thought of another unfairness in these proceedings. Knox and Sollecito appealed from Massei on a number of grounds. Let's call them grounds 1-10. Hellman decided he only needed to consider grounds 1-5 (say) and he upheld them and allowed the appeals. So far so good. But then the CSC reverses Hellman and remands the case to Nencini with directions. The defences then make a bunch of applications to Nencini some of which concern issues not addressed by Hellman. Nencini dismisses the lot and convicts. Isn't the result that grounds 6-10 have not been heard above Massei-level? I will need to line up a few documents side by side to pick out an example and will try to find time to do so and post here later.

This would be a valuable comparison. The failure to consider defense grounds (either providing arbitrary reasons to deny, or neglecting to provide any reasons, for reasonable defense requests) is considered a violation of Convention Article 6. An example: the refusal of the courts to order the examination of the putative semen stain on the pillow found beneath Ms. Kercher, including a DNA profile.

 

[Numbers]

In a stunning new development, Andrew Gumbel (Sollecito's ghostwriter) has directed his legal advisors to distance himself from the allegations included in Honor Bound. It's a wise decision although his nameplate is affixed to every printed copy of Sollecito's version of his story.

So here's where we're at. The two killers signed book deals. One has been promoted from the New York Times bestseller list to chasing down high school drama teachers in a small American suburb. The other was caught fleeing his own appeal in a hotel bordering Slovenia and has had his travel papers revoked.

Each one is facing further legal action for publishing false information and defaming those who arrested and prosecuted them. Their own ghostwriters have publicly disavowed them but are apparently keeping the money.

In only a couple months they're both going to have been convicted of aggravated murder along with the charges pending on their books.

See, this is what happens when your folks dial up the PR consultant instead of getting the best lawyers money can buy. Will Sollecito file a claim against Gumbel for abandoning him in this exciting new chapter? Does Sollecito have a leg to stand on? Smart people write those contracts and I can practically guarantee you that Gumbel won't pay a red cent and it's all going to be on Papa's VISA.

How would you like to be a Sollecito knowing all your inheritance went to some foreigner who cut your relative loose like a wounded albatross?

{Highlighting added quote.}

Do you have a citation to support your statement (highlighed) about Gumbel "distancing" himself from the allegations? Are you saying that Gumbel did not bother to attend the Jan. 22 hearing, which was reported and not a legal distancing?

Your post otherwise seems to reflect your opinions rather than any factual information.

 

[Samson]

In a stunning new development, Andrew Gumbel (Sollecito's ghostwriter) has directed his legal advisors to distance himself from the allegations included in Honor Bound. It's a wise decision although his nameplate is affixed to every printed copy of Sollecito's version of his story.

So here's where we're at. The two killers signed book deals. One has been promoted from the New York Times bestseller list to chasing down high school drama teachers in a small American suburb. The other was caught fleeing his own appeal in a hotel bordering Slovenia and has had his travel papers revoked.

Each one is facing further legal action for publishing false information and defaming those who arrested and prosecuted them. Their own ghostwriters have publicly disavowed them but are apparently keeping the money.

In only a couple months they're both going to have been convicted of aggravated murder along with the charges pending on their books.

See, this is what happens when your folks dial up the PR consultant instead of getting the best lawyers money can buy. Will Sollecito file a claim against Gumbel for abandoning him in this exciting new chapter? Does Sollecito have a leg to stand on? Smart people write those contracts and I can practically guarantee you that Gumbel won't pay a red cent and it's all going to be on Papa's VISA.

How would you like to be a Sollecito knowing all your inheritance went to some foreigner who cut your relative loose like a wounded albatross?

In post 2418 I asked Machiavelli to explain the motive for Raffaele writing his book, but so far no response.
Stilicho, the question should be answered easily, so I would appreciate your perspectve.

 

[anglolawyer]

This would be a valuable comparison. The failure to consider defense grounds (either providing arbitrary reasons to deny, or neglecting to provide any reasons, for reasonable defense requests) is considered a violation of Convention Article 6. An example: the refusal of the courts to order the examination of the putative semen stain on the pillow found beneath Ms. Kercher, including a DNA profile.

That is slightly different to what I have in mind. I am looking for an issue decided by Massei, appealed by Knox or Sollecito, not adjudicated by Hellman and then relied on in the Nencini motivation. The semen was never tested at all (AFAWK). It might be something like the cell phone triangulation or audio metrics on Nara's flat. I'll see if I can spot something later but I need to line up Massei, the first instance appeals, Hellman and then Nencini side by side to do it.

 

[LondonJohn]

{Highlighting added quote.}

Do you have a citation to support your statement (highlighed) about Gumbel "distancing" himself from the allegations? Are you saying that Gumbel did not bother to attend the Jan. 22 hearing, which was reported and not a legal distancing?

Your post otherwise seems to reflect your opinions rather than any factual information.

Yes. What appears to have happened yesterday is nothing more than Gumbel (through his lawyer) asserting that the book is not his intellectual property - the thoughts, opinions and claims are all Sollecito's in origin - and that therefore he should not be held liable in any defamation action. That's all.

Stilicho appears to be "interpreting" events through a rather jaded lens.........

 

[Numbers]

That is slightly different to what I have in mind. I am looking for an issue decided by Massei, appealed by Knox or Sollecito, not adjudicated by Hellman and then relied on in the Nencini motivation. The semen was never tested at all (AFAWK). It might be something like the cell phone triangulation or audio metrics on Nara's flat. I'll see if I can spot something later but I need to line up Massei, the first instance appeals, Hellman and then Nencini side by side to do it.

I almost follow what you are saying and wonder how it is different from what I am saying. Perhaps my set is larger than your set.

For example, the semen stain. Didn't Massei deny testing, on the grounds (offered by the prosecution) that testing the semen stain would destroy other evidence (a footprint) and/or that the semen stain might not be probative - it could have been left by consensual sex between Ms. Kercher and her boyfriend. Then what was the subsequent history on this request? That is, was it requested at the appeals, and if so, how did the court respond, including the reasoning.

But your survey sounds interesting as a first step. If the 1st 2nd-level appeal did not adjudicate an appeal issue decided by the 1st-level trial that was then not addressed by the 2nd 2nd-level appeal, that is an unfairness. There are two categories of unfairness:

1) the appeal court rejects without supplying any reason whatsoever; or

2) the appeal court rejects but supplies a reason that is 2.1) too terse to be reasonable, or 2.2) arbitrary or capricious (willful, aka BS) and therefore not reasonable.

So are you thinking along the lines of checking for unfairness category (1)?

The next step would be to check for unfairness category (2).

ETA: If you are thinking to check for defense requests not granted by Hellmann but granted by Nencini, that set should be small indeed.

 

[anglolawyer]

I almost follow what you are saying and wonder how it is different from what I am saying. Perhaps my set is larger than your set.

For example, the semen stain. Didn't Massei deny testing, on the grounds (offered by the prosecution) that testing the semen stain would destroy other evidence (a footprint) and/or that the semen stain might not be probative - it could have been left by consensual sex between Ms. Kercher and her boyfriend. Then what was the subsequent history on this request? That is, was it requested at the appeals, and if so, how did the court respond, including the reasoning.

But your survey sounds interesting as a first step. If the 1st 2nd-level appeal did not adjudicate an appeal issue decided by the 1st-level trial that was then not addressed by the 2nd 2nd-level appeal, that is an unfairness. There are two categories of unfairness:

1) the appeal court rejects without supplying any reason whatsoever; or

2) the appeal court rejects but supplies a reason that is 2.1) too terse to be reasonable, or 2.2) arbitrary or capricious (willful, aka BS) and therefore not reasonable.

So are you thinking along the lines of checking for unfairness category (1)?

The next step would be to check for unfairness category (2).

What I am thinking of is something like this (it's an example only):

• Massei finds she went out the night of the 1st because the cell phone records say so (therefore she was lying when she said she stayed in with Raf)
• She appeals challenging the cell phone triangulation evidence (say)
• Hellman decides he does not need to investigate this issue because a negative finding on the issues he selects renders it otiose.
• Prosecution appeals Hellman on the findings he did make
• Case remanded to Nencini and Nencini reiterates Massei's finding and relies on it as proof of guilt.

This is not the same as the semen stain which was never tested at all (AFAWK). Here, we have a finding which was challenged and the only reason it was not adjudicated was that Hellman decided a series of 'preliminary issues' which were themselves decisive in his view but not that of the CSC.

This is comparable to a civil process in which I sue you for damages for causing me personal injury in a road accident and you raise a bunch of issues one of which is - you were not the driver of the other car. The court decides to try just that issue on a preliminary basis (because if you win there is no need to look at the others). You win (say) and I appeal and the decision is reversed. What should happen now is that we move on to all the other issues you raised. Instead, by analogy with what I think may have happened in Italy, I get judgment for the full claim without those issues being addressed at all.

The issues Massei tried, the two of them appealed but Hellman decided not to look at, have only been tried at first instance when, supposedly, the defendants are entitled to appeal as of right. That right of appeal ought to include a right to challenge all the issues they say were decided incorrectly by having them tested in court. That's what I am saying.

 

[Bill Williams]

Yes. What appears to have happened yesterday is nothing more than Gumbel (through his lawyer) asserting that the book is not his intellectual property - the thoughts, opinions and claims are all Sollecito's in origin - and that therefore he should not be held liable in any defamation action. That's all.

Stilicho appears to be "interpreting" events through a rather jaded lens.........

It is best to ignore Stilicho. Every once in a while he makes a drive-by post filled with allegations and conspiracies then ddisappears.

 

[Numbers]

Autocalunnia (false confession) is a crime in Italy

DF,

Here's another thought.
In the crime of calunnia, one is falsely accusing someone (else) who is innocent of a crime.
Let's consider the (new) crime of self-calunnia, where is falsely accusing one's self, who is innocent, of a crime. That "self-calunnia" is what happens in the usual false confession. If the police find that your false confession is indeed false, rather than releasing the subject, that person is tried and convicted of falsely naming an innocent: self-calunnia.

Regular calunnia is thus much the same, as you point out with your example of witch hunts: under coercion, perhaps even torture, people name others as criminals based on the interrogators' (inquisitors') suggestions. The person who has done this cannot then be held responsible for the crime of falsely naming someone, anymore than the person who falsely confesses.

The people who support the concept of prosecuting a "calunnia" that results from an interrogation without a lawyer are essentially denying that false confessions exist.

The whole idea that, in Italy, one can be subjected to an interrogation without a lawyer, and (presumably due to coercion) falsely name someone else as having committed a crime, and then be convicted of calunnia (CP 368), is absurd and unfair. This "crime" is merely a statement, not an action, and was made without legal counsel in a situation that demands legal counsel.

To further illlustrate the absurdity and unfairness of this concept of convicting someone for making a statement under interrogation without a lawyer, note that Italy also has the "crime" of autocalunnia (CP 369) which consists of making a false confession. Punishment for autocalunnia is one to three years of imprisonment.

The existence of this "autocalunnia" "crime" in the Italian CP helps show that the "calunnia" "crime", when either is merely the result of a statement from a subject interrogated without a lawyer, is not a crime committed by the subject and no one should be convicted of a "calunnia" or "autocalunnia" statement made interrogation without a lawyer.

Source: http://www.altalex.com/index.php?idnot=36764

CP 368 - Calunnia

Anyone with denunciation, complaint, demand or request, even if anonymously or under a false name, directly to the court or other authority that has the obligation to report or the International Criminal Court, blames anybody of a crime that he knows innocent, that simulates borne him the traces [evidence] of a crime, shall be punished with imprisonment from two to six years (1).
The penalty is increased if es'incolpa [one incriminates] anybody of a crime through which the law prescribes a penalty of imprisonment for a maximum ten years, or another more serious penalty.
Imprisonment is from four to twelve years, if the act results in a prison sentence up to five years; is from six to twenty years, if the act results in a life sentence; and apply life imprisonment, if the act results in a condemnation to death (2).

(1) Paragraph amended by art. 10, paragraph 3, L. December 20, 2012, n. 237. The text previously in force was as follows: "Whoever, with the complaint, complaint, demand or request, even if anonymously or under a false name, directly to the court or other authority that has the obligation to report, blames anybody of a crime that he knows innocent, that simulates borne him the traces of a crime, shall be punished with imprisonment from two to six years. ".
(2) The death penalty for offenses under the Criminal Code was abolished by art. 1 of D.Lgs.Lgt. August 10, 1944, n. 224.
_______________

See. Court of Torre Annunziata, judgment of 30 October 2007 the Supreme Court criminal sect. VI, judgment of 24 January 2008, n. 3922, Criminal Cassation, sez. VI, judgment of 13 June 2008 n. 24114, Criminal Cassation, sez. VI, judgment of 26 January 2009, no. 3427 and Criminal Cassation, sez. VI, judgment of 8 September 2009, no. 34821 in American Lawyer in Massimario.


CP Article 369 - Autocalunnia

Whoever, by declaration to any of the authorities mentioned in the previous article, even if made with written anonymously or under a false name, or by confession before the courts, blames himself for a crime that he knows of no effect, or of a crime committed by others, shall be punished with imprisonment of one to three years.

{Text in [] added. Bold added.}

 

[Kauffer]

CP Article 369 Auto calunnia

Whoever, by declaration to any of the authorities mentioned in the previous article, even if made with written anonymously or under a false name, or by confession before the courts, blames himself for a crime that he knows of no effect, or of a crime committed by others, shall be punished with imprisonment of one to three years

This is hilarious. Deny them procedural rights. In fact, maintain that these rights do not exist. Force them to confess to a crime they did not commit and lock them up for three years for doing so.

 

[carbonjam72]

What I am thinking of is something like this (it's an example only):

• Massei finds she went out the night of the 1st because the cell phone records say so (therefore she was lying when she said she stayed in with Raf)
• She appeals challenging the cell phone triangulation evidence (say)
• Hellman decides he does not need to investigate this issue because a negative finding on the issues he selects renders it otiose.
• Prosecution appeals Hellman on the findings he did make
• Case remanded to Nencini and Nencini reiterates Massei's finding and relies on it as proof of guilt.

This is not the same as the semen stain which was never tested at all (AFAWK). Here, we have a finding which was challenged and the only reason it was not adjudicated was that Hellman decided a series of 'preliminary issues' which were themselves decisive in his view but not that of the CSC.

This is comparable to a civil process in which I sue you for damages for causing me personal injury in a road accident and you raise a bunch of issues one of which is - you were not the driver of the other car. The court decides to try just that issue on a preliminary basis (because if you win there is no need to look at the others). You win (say) and I appeal and the decision is reversed. What should happen now is that we move on to all the other issues you raised. Instead, by analogy with what I think may have happened in Italy, I get judgment for the full claim without those issues being addressed at all.

The issues Massei tried, the two of them appealed but Hellman decided not to look at, have only been tried at first instance when, supposedly, the defendants are entitled to appeal as of right. That right of appeal ought to include a right to challenge all the issues they say were decided incorrectly by having them tested in court. That's what I am saying.

Hey Anglo, at the risk of sounding silly, wasn't the Nencini appeal the equivalent of Hellman appeal, as a second level proceeding?

And the fact that Hellman didn't need to reach all the issues the defense had appealed upon, because his analysis had already precluded the finding of guilt, is only relevant to Hellman's verdict?

Once cassation annuls Hellman, isn't it the defense's obligation to raise their defenses to the Nencini court again?

OR, are you saying that cassation didn't hear the 'unheard' defenses raise before Hellman, and that cassation's ruling precluded raising those 'unheard' issues again before Nencini?

If cassation addressed the 'unheard' issues in Hellman, then doesn't that mean the issues have been 'heard' by cassation? And if cassation did not address those 'unheard' issues, then wouldn't the burden be on the defendants to raise those unheard issues again with Nencini? AND, if Nencini declined to hear thsoe 'unheard' issues from Hellman, isn't Nencini declining to hear them basically a 'hearing' AND rejection of those 'unheard' Hellman issues?

Please tell me that paragraph makes sense, and I haven't caught Italian High Florentine Labyrinthine Pros-i-tis. And why are there so many question marks???????

 

[Numbers]

What I am thinking of is something like this (it's an example only):

• Massei finds she went out the night of the 1st because the cell phone records say so (therefore she was lying when she said she stayed in with Raf)
• She appeals challenging the cell phone triangulation evidence (say)
• Hellman decides he does not need to investigate this issue because a negative finding on the issues he selects renders it otiose.
• Prosecution appeals Hellman on the findings he did make
• Case remanded to Nencini and Nencini reiterates Massei's finding and relies on it as proof of guilt.

This is not the same as the semen stain which was never tested at all (AFAWK). Here, we have a finding which was challenged and the only reason it was not adjudicated was that Hellman decided a series of 'preliminary issues' which were themselves decisive in his view but not that of the CSC.

This is comparable to a civil process in which I sue you for damages for causing me personal injury in a road accident and you raise a bunch of issues one of which is - you were not the driver of the other car. The court decides to try just that issue on a preliminary basis (because if you win there is no need to look at the others). You win (say) and I appeal and the decision is reversed. What should happen now is that we move on to all the other issues you raised. Instead, by analogy with what I think may have happened in Italy, I get judgment for the full claim without those issues being addressed at all.

The issues Massei tried, the two of them appealed but Hellman decided not to look at, have only been tried at first instance when, supposedly, the defendants are entitled to appeal as of right. That right of appeal ought to include a right to challenge all the issues they say were decided incorrectly by having them tested in court. That's what I am saying.

I get what you're saying now. Your set may be bigger than my set after all.

It's the Massei FINDINGS, not merely the defense REQUESTS for admission of evidence, that you're looking at, for the appeal history.

So if a 1st level Finding is appealed, and

1) not addressed by Hellmann and not addressed by Nencini - that is unfair - a reasoned adjudication is needed; or

2) not addressed by Hellmann but assumed by Nencini without reasoning - that is unfair; or

3) not addressed by Hellmann but addressed by Nencini with arbitrary, capricious, or insufficient reasoning - that is unfair.