Continuation Part 12: Amanda Knox/Raffaele Sollecito

[Chris_Halkides]

waffles and the TOD

I'm thinking maybe the defence team never actually understood it. That they gave too much credence to people handwaving the point away on spurious grounds. Once you understand it properly, it becomes a vital point to get over, possibly the most vital in the case.

Rolfe,

Good to see you back. While you were away, someone (Planigale?) came up with a recent citation on using stomach contents, as opposed to lack of contents in the duodenum, as a means of determining TOD. I'll fish it out for you if you are interested.

PM Mignini moved the TOD later by at least an hour in his closing remarks. Although his previous TOD was dubious, his revised one was much more so, to the point of being essentially impossible. IMO the defense might have been caught off guard. One wonders about any system that allows the PM to make up dialog and change his theory of the crime in his closing remarks. One also wonders what Mignini and Comodi were doing with the extra time they were given to investigate this case during the ridiculous precautionary detention. With respect to the TOD, Nencini does what he does best, which is to waffle.

 

[Chris_Halkides]

twice wrong is still wrong

So let me see if I have this right. Halides1 jumps in to answer the Q for you – that the prosecution posited that the window was broken from within the room while opened in.

This is incorrect for two reasons.

 

[platonov]

Areas of expertise

Your response does not address Planigale's point. You owe me 20 pounds.

It does – you just don’t like the manner in which I address this recurring groupie argument.

What are you going to do – send the debt collectors around

 

[Rolfe]

That goes against every fibre of my being. In a proper system, the burden is on the prosecution to prove its case beyond a reasonable doubt.

You seem to be labouring under the misapprehension that the burden of proof as you describe it is an actual thing.

 

[anglolawyer]

It does – you just don’t like the manner in which I address this recurring groupie argument.

What are you going to do – send the debt collectors around

If necessary, yes! All your post said was 'nonsense'. You did not address at all the glass spray with finer pieces towards the door and bigger pieces under the window. No PGP can deal with this. It is impossible (without resort to the nonsensical idea that they hand-picked and placed the glass pieces in a manner consistent with a throw from outside). Go ahead. Do it! Let's see it. And if you can't then have the honesty to come and sit on our side and agree the rock was thrown from outside as it plainly was. You can retain the idea that one of the two of them threw it by all means but not that it was an 'inside job'.

 

[anglolawyer]

You seem to be labouring under the misapprehension that the burden of proof as you describe it is an actual thing.

This does not compute. Are you being serious or cynical? It is not 'an actual thing' like a chair but it is a real, meaningful, conceptual element in the criminal process.

 

[LondonJohn]

Rolfe,

Good to see you back. While you were away, someone (Planigale?) came up with a recent citation on using stomach contents, as opposed to lack of contents in the duodenum, as a means of determining TOD. I'll fish it out for you if you are interested.

PM Mignini moved the TOD later by at least an hour in his closing remarks. Although his previous TOD was dubious, his revised one was much more so, to the point of being essentially impossible. IMO the defense might have been caught off guard. One wonders about any system that allows the PM to make up dialog and change his theory of the crime in his closing remarks. One also wonders what Mignini and Comodi were doing with the extra time they were given to investigate this case during the ridiculous precautionary detention. With respect to the TOD, Nencini does what he does best, which is to waffle.

As I see it, there are two major issues here:

1) Once something is established as a "judicial truth", it's massively hard to refute or overturn that "truth" in any subsequent judicial proceedings. That's true to an extent in most jurisdictions of course, but it seems an extreme situation in Italy. Therefore once it was established as "the truth" that the stomach/duodenum contents were not of any probative use in determining ToD, that's what stayed (and stays) enshrined as "the truth".

2) Much of the judicial "reasoning" in this case appears to have been along these sorts of lines: "we know that Knox and Sollecito are guilty because of certain pieces of evidence (e.g. the knife, the clasp, Curatolo, Quintavalle....), so all we need to do is shoehorn the remaining evidence somehow into a case for guilt and we're fine". That, I believe, is why the courts were so ready to believe that the stomach/duodenum evidence was of no real value in determining ToD: it allowed the courts to disregard it, as to do otherwise would potentially have caused a conflict of beliefs. And it's very saddening (and maddening) to witness Nencini's court simply dance around the issue with characteristic vagueness and imprecision, with the result that he essentially swept the ToD issue totally under the carpet.

 

[Rolfe]

This does not compute. Are you being serious or cynical? It is not 'an actual thing' like a chair but it is a real, meaningful, conceptual element in the criminal process.

I'm being serious in a cynical manner. I think it's frequently a polite fiction. I started a thread about it ages ago, but it didn't gain a lot of traction.

 

[anglolawyer]

I'm being serious in a cynical manner. I think it's frequently a polite fiction. I started a thread about it ages ago, but it didn't gain a lot of traction.

Well, with sincere respect, I demur. Sure, you can find plenty of cases in which reasonable doubt has not been properly applied with the results we see in this thread but in the vast majority it is, without any difficult. While there are some legal concepts I still find difficult (I will never make sense of the law of restitution) this is certainly not one of them, whether in theory or practise.

ETA pity I missed your thread. I remember a Pulitzer Prize-winning post of yours on the subject. Maybe that was it.

 

[Rolfe]

I don't disagree that the system works as it should sometimes. The Oscar Pistorius case is one such. But I've seen way too many cases where the assumption seemed to be that the police wouldn't have charged the guy unless he did it. And why would these upright and disinterested prosecution lawyers spin like tops to go after an innocent man? And what should we expect of the defence lawyers but lies and misdirection - that's what they're being paid for after all.

Look, I'll resurrect my old thread if you want to debate this, otherwise it'll turn into a derail.

 

[Chris_Halkides]

I am not a lawyer, but I don't see these as trials de novo

As I see it, there are two major issues here:

1) Once something is established as a "judicial truth", it's massively hard to refute or overturn that "truth" in any subsequent judicial proceedings. That's true to an extent in most jurisdictions of course, but it seems an extreme situation in Italy. Therefore once it was established as "the truth" that the stomach/duodenum contents were not of any probative use in determining ToD, that's what stayed (and stays) enshrined as "the truth".

2) Much of the judicial "reasoning" in this case appears to have been along these sorts of lines: "we know that Knox and Sollecito are guilty because of certain pieces of evidence (e.g. the knife, the clasp, Curatolo, Quintavalle....), so all we need to do is shoehorn the remaining evidence somehow into a case for guilt and we're fine". That, I believe, is why the courts were so ready to believe that the stomach/duodenum evidence was of no real value in determining ToD: it allowed the courts to disregard it, as to do otherwise would potentially have caused a conflict of beliefs. And it's very saddening (and maddening) to witness Nencini's court simply dance around the issue with characteristic vagueness and imprecision, with the result that he essentially swept the ToD issue totally under the carpet.

LondonJohn,

Great comment, and Planigale wrote up a nice comment on the residue of the inquisitorial system very recently. I am not a lawyer, but if we accept that the Italian system is one trial with three stages, then I don't see a persuasive reason for the second stage court to deny hearing evidence that the first stage court would not. In other words, if Hellmann and Nencini really presided over trials de novo in fact, they should have let the defense introduce more information on stomach/duodenum contents, as well as other matters.

 

[Chris_Halkides]

an authoritarian stance against perceived lies and misdirection

But I've seen way too many cases where the assumption seemed to be that the police wouldn't have charged the guy unless he did it. And why would these upright and disinterested prosecution lawyers spin like tops to go after an innocent man? And what should we expect of the defence lawyers but lies and misdirection - that's what they're being paid for after all.

(highlighting mine)
Rolfe,

Machiavelli objected to the word "authoritarian," but IMO it describes many of the PG commenters here, and I don't perceive the word as an epithet (one definition of epithet is that it is "a term of abuse"). It has become clear that PG commenters here think much the same of defense's experts. Yet in many cases (Lindy Chamberlain and Patricia Stallings, for example), the defense's expert witnesses are more qualified than the prosecution's witnesses. I am only now getting up to speed on the bomb making cases of the 1970s, but it is beginning to look as if they follow the pattern.

 

[anglolawyer]

I don't disagree that the system works as it should sometimes. The Oscar Pistorius case is one such. But I've seen way too many cases where the assumption seemed to be that the police wouldn't have charged the guy unless he did it. And why would these upright and disinterested prosecution lawyers spin like tops to go after an innocent man? And what should we expect of the defence lawyers but lies and misdirection - that's what they're being paid for after all.

Look, I'll resurrect my old thread if you want to debate this, otherwise it'll turn into a derail.

No, don't. We can touch on it here as and when.

 

[Numbers]

Massei was a judge not the prosecuting authority. What we see here is the prosecution hypothesis disproved, so the judge chooses a different hypothesis that the defence has no opportunity to refute because it was not presented in court. This is where the court system has not moved from an inquisitorial system where the judge legitimately develops a theory of the crime to an adversarial approach where the prosecution case has to be accepted if proven beyond reasonable doubt. Hellman appears to have adopted an adversarial approach - the prosecution failed to prove their case - case dismissed. The supreme court effectively pointed Nencini towards an inquisitorial approach whereby the judge had to synthesise a conclusion from an osmotic assessment of individual pieces of evidence rather than holistically assessing the prosecution case as given.

Planigale,
You have pointed out one of the biggest problems with the case and presumably with the Italian system of justice.

A large part of the judicial system is acting as though Italy had an inquisitorial system, although the Italian Constitution and the Convention call for an adversarial system.

The judge (Massei, Chieffi, Nencini) making up their own theory of the case or elements thereof is contrary to the adversarial process, does not allow the defense its rebuttal (except, and this is unfair, in a sense in appeal), denies the defensed equality of arms, and also is a violation of the Convention and Italian Constitution in that the judge is shown to be not impartial.

The judgment produced is furthermore arbitrary, since there was no evidence that supported Massei's theory of window breaking.

 

[Numbers]

This does not compute. Are you being serious or cynical? It is not 'an actual thing' like a chair but it is a real, meaningful, conceptual element in the criminal process.

Rights, such as judicial impartiality, equality of arms, and the burden of proof may be violated by unfair actions. That is why there are appeal courts, with the intent (among those subscribing to fairness and civil/human rights) for such violations to be reversed. Similarly, the Convention and ECHR has been instituted by European States to address such violations.

Of course, all the appeals and applications take too long and have high costs for the defendants.

 

[Numbers]

You think someone who calls the guilters " authoritarians" and cites Fascism when talking about law should be taken seriously?

When was the current Italian Penal [Criminal] Code (CP) enacted?
What political system was in place in Italy when it was enacted?
How has it been modified since the time it was enacted?

Here is some information to begin:
Penal Code (approved by Royal Decree No. 1398 of October 19, 1930)

 

[tsig]

The Break in

No, I responded on this several yrs ago

And if you do a search for a phrase along the lines of ......
“cant work out a problem that might be given to a 9yr old as part of a 'learning development' test but then want to go on to discuss 'glass distribution' and we are supposed to keep a straight face”
.........You may find other replies.

He first climbs up and opens the outer shutter, then climbs down and throws the rock thru the window and forcing the inner shutter open then climbs back up and perches of the sill while putting his arm thru the broken window to open it, opens the window and he's in.

Correct?

 

[anglolawyer]

He first climbs up and opens the outer shutter, then climbs down and throws the rock thru the window and forcing the inner shutter open then climbs back up and perches of the sill while putting his arm thru the broken window to open it, opens the window and he's in.

Correct?

Pretty much. The shutter may already have swung open in the wind though.

ETA and, as predicted, Platonov is not going to deal with the conclusive glass spray (nor cough the twenty he owes me). Come on guilters! Vibio, Briars, Machiavelli, Platonov, you tsig - can't one of you address it?

 

[Numbers]

(highlighting mine)
Rolfe,

Machiavelli objected to the word "authoritarian," but IMO it describes many of the PG commenters here, and I don't perceive the word as an epithet (one definition of epithet is that it is "a term of abuse"). It has become clear that PG commenters here think much the same of defense's experts. Yet in many cases (Lindy Chamberlain and Patricia Stallings, for example), the defense's expert witnesses are more qualified than the prosecution's witnesses. I am only now getting up to speed on the bomb making cases of the 1970s, but it is beginning to look as if they follow the pattern.

The terms authorititarian and even fascist are not epithets when used appropriately - that is, not a name-calling, but as descriptive words that could be elaborated on using more detailed and specific terms.

Italy's system of government was fascism during the Benito Mussolini period, and it was a system either supported by, or not opposed by, many people in Italy. There was no systematic removal of the remains of fascism in Italy after the Allied invasion in 1944, in contrast to the de-Nazification program in Germany, according to Christopher Duggan, a professor of Italian history and language at Reading University and author of several books on Italian history.

See: http://www.reading.ac.uk/history/about/staff/c-j-h-duggan.aspx
___
http://www.merriam-webster.com/dictionary/authoritarian

au·thor·i·tar·i·an
adjective \ȯ-ˌthär-ə-ˈter-ē-ən, ə-, -ˌthȯr-\

: expecting or requiring people to obey rules or laws : not allowing personal freedom

Full Definition of AUTHORITARIAN
1
: of, relating to, or favoring blind submission to authority <had authoritarian parents>
2
: of, relating to, or favoring a concentration of power in a leader or an elite not constitutionally responsible to the people <an authoritarian regime>

First Known Use of AUTHORITARIAN
1861
_____

Full Definition of FASCISM
1
often capitalized : a political philosophy, movement, or regime (as that of the Fascisti) that exalts nation and often race above the individual and that stands for a centralized autocratic government headed by a dictatorial leader, severe economic and social regimentation, and forcible suppression of opposition
2
: a tendency toward or actual exercise of strong autocratic or dictatorial control <early instances of army fascism and brutality — J. W. Aldridge>

Origin of FASCISM
Italian fascismo, from fascio bundle, fasces, group, from Latin fascis bundle & fasces fasces
First Known Use: 1921

 

[Machiavelli]

When was the current Italian Penal [Criminal] Code (CP) enacted?
What political system was in place in Italy when it was enacted?
How has it been modified since the time it was enacted?

Here is some information to begin:
Penal Code (approved by Royal Decree No. 1398 of October 19, 1930)

The CP is compatible with the Italian Constitution and with the EC Convention, as for Constitutional Court and all European organs (unconstitutional parts were repealed by CC in the 50s).

Calling the guilters "authoritarian" is beyond idiocy and thus self-defeating. Lines about Fascism, talking lightly or ignorantly about the topic is normally not appreciated. You won't be taken seriously if you do that, your credibility is tagged by that.