Continuation Part 13: Amanda Knox/Raffaele Sollecito

[bolint]

Today's "Porta a Porta" show will feature Raffaelle Sollecito:
http://www.portaaporta.rai.it/dl/po...tem-b144e0e8-e472-4a5a-9c05-3094a60d93b4.html

 

[NotEvenWrong]

It's great that Mr. Head has figured out an answer to miscarriages of justice: just have a whole lot of mostly ignorant people review half the evidence, and then, if they all come up with the same answer, you can be sure that the evidence is reliable. Yay! Why didn't we ever think of this?

From that article:

The complaint was often made, for instance, that the jury in the Amanda Knox trial was not sequestered. What people failed to understand was that Italian juries are rarely sequestered as they are in the States. And instead of 12 jurors of the defendant’s peers, the Italian system employs three judges and six “lay assessors of facts,” Head said. The latter are allowed to consult with the former for a number of reasons, including offsetting any potential prejudice they may have from exposure to the media. - See more at: http://today.ku.edu/2015/01/28/law-...k-understanding-problems#sthash.akRgM28y.dpuf

This is so dumb. Just because another legal system rarely sequesters a jury does not mean this is a good idea nor does it mean putting 3 judges with six laypeople will offset all "potential prejudices". There is no way, if a group of people hear something like "so-and-so confessed" (without any of the context, the nature of the interrogation, etc.) they will NOT be biased when going into the trial. And there's no way this can be offset by a few judges simply saying "ignore that!" And who is to say the judges wouldn't be biased from the information leak as well?

This guy clearly has no idea what he's talking about.

 

[Numbers]

From that article:



This is so dumb. Just because another legal system rarely sequesters a jury does not mean this is a good idea nor does it mean putting 3 judges with six laypeople will offset all "potential prejudices". There is no way, if a group of people hear something like "so-and-so confessed" (without any of the context, the nature of the interrogation, etc.) they will NOT be biased when going into the trial. And there's no way this can be offset by a few judges simply saying "ignore that!" And who is to say the judges wouldn't be biased from the information leak as well?

This guy clearly has no idea what he's talking about.

We don't know if there is a typo in the article or the professor was in error, but there are only 2 (professional) judges with the 6 lay judges in an Italian assize court.

ETA: The only qualification for the lay judges, IIRC, is some particular level of education. For a 1st level trial, they must have completed middle school; for a 2nd level trial, they must have completed high school. The lay judges are not interviewed to determine whether or not they have any prejudice (opinion about the case) before trial, or any other issue that would disqualify a juror in the US. IMO, the lay judges simply follow the lead of the professional judges.

 

[Samson]

In "Criminal Procedure in Transition: Observations on Legal Transplantation and Italy’s Handling of the Amanda Knox Trial" Professor Head wrote, "Lastly, what about the third, more overarching, form of criticism that can be drawn from Senator Cantwell’s statement – that the prosecution of Amanda Knox failed generally to meet adequate standards of due process? For one thing, it is important to recognize that there was hardly a rush to judgment in the case: it lasted roughly two years and involved multiple stages of procedure before a guilty verdict was reached. As Prosecutor Mignini observed, ‘[a]t the various levels in this case, from the preliminary investigating judge to the trial itself, the evidence was scrutinized by no less than 19 judges.’⁵⁹ This fact cuts against allegations that Knox was found guilty on little or no reliable forensic evidence. On the other hand, perhaps it does illustrate how complicated and laborious the trial stages have become in Italy’s mixed system."

The connection between how many judges (most of whom are lay judges) look at a case and whether or not due process was followed is tenuous at best. Either Italy's laws provide for proper discovery of forensic evidence, or they do not. If they do, then the judges failed to do their jobs. If they do not, then the laws should be amended.

Chris, these 19 judges are as bleak a representation of the term quantity over quality as can be imagined. Remniscent of Machiavelli's 32 pages on the bathmat footprint.
There is a herd of Italian sheep involved in the case, obeying the whistle and dog of one master. A cull would be in order.

 

[Dougm]

I think one of the issues with this case is that it is not easily obvious what is wrong with it, without taking some time to read, research and find out what really happened. On the surface, the idea of guilt seems plausible, and the idea that a series of police, prosecutors, and judges could have gotten it so wrong is something most people don't want to believe.

When I say that guilt can seem plausible, I mean when people only read or hear what most people read and hear: Two college students, who did some drugs, got involved in some odd sex game or something with some local guy from town. They tried to involve another girl, and it got violent and she got killed. These kids were all into sex and drugs, and something went wrong, and someone died. That is as deep as a lot of people get, and it sounds more plausible than the true story. We can scream to the housetops about a wacky prosecutor, police and forensic scientists that botched the investigation and testing of evidence, trumped up witnesses, illogical judges, etc., but people tend to still believe it might be all just some sort of cultural misunderstanding. Without understanding the real depth of the problems in this case, many people, like this Professor Head, probably think that, well, there might be issues with a different legal system, but there is no great injustice here. After all, the kids must have been up to something wrong, if all these people say so, right? We all know young people who get into drugs, weird sex, turn to the dark side, right? It's a lot easier to accept from most people's experience than the real story, which is actually much more wrong, and on a wider scale, than the one they are imagining.

 

[platonov]

The night before we found the body - What day was that again?

Today's "Porta a Porta" show will feature Raffaelle Sollecito:
http://www.portaaporta.rai.it/dl/po...tem-b144e0e8-e472-4a5a-9c05-3094a60d93b4.html

Lets hope the shows producers have a calendar to hand.
Otherwise who knows what he might say!

 

[platonov]

Sometimes silence is golden

LondonJohn or anglolawyer,

Would one of you clarify one thing for me? In Britain can the police ever say that if you are silent, that your silence can be used against you in some sense? I seem to recall this from some conversation or another.

Well, on a practical level it’s always better to remain silent than say something self-incriminating. No?

No point talking (or writing) yourself into a jam.

 

[sept79]

.
.
.
When I say that guilt can seem plausible, I mean when people only read or hear what most people read and hear: Two college students, who did some drugs, got involved in some odd sex game or something with some local guy from town. They tried to involve another girl, and it got violent and she got killed.
.
.

It doesn't sound plausible to me at all! The implausibility is why I have been involved since Oct. 2008

 

[Diocletus]

I think one of the issues with this case is that it is not easily obvious what is wrong with it, without taking some time to read, research and find out what really happened. On the surface, the idea of guilt seems plausible, and the idea that a series of police, prosecutors, and judges could have gotten it so wrong is something most people don't want to believe.

When I say that guilt can seem plausible, I mean when people only read or hear what most people read and hear: Two college students, who did some drugs, got involved in some odd sex game or something with some local guy from town. They tried to involve another girl, and it got violent and she got killed. These kids were all into sex and drugs, and something went wrong, and someone died. That is as deep as a lot of people get, and it sounds more plausible than the true story. We can scream to the housetops about a wacky prosecutor, police and forensic scientists that botched the investigation and testing of evidence, trumped up witnesses, illogical judges, etc., but people tend to still believe it might be all just some sort of cultural misunderstanding. Without understanding the real depth of the problems in this case, many people, like this Professor Head, probably think that, well, there might be issues with a different legal system, but there is no great injustice here. After all, the kids must have been up to something wrong, if all these people say so, right? We all know young people who get into drugs, weird sex, turn to the dark side, right? It's a lot easier to accept from most people's experience than the real story, which is actually much more wrong, and on a wider scale, than the one they are imagining.

Head's real problem is that this isn't a comparative law issue. This is a wrongful conviction issue, and there have been enough studies done that we know that the same handful of basic problems transcend legal systems and lead to wrongful convictions worldwide. The "issues" that people are pointing out aren't "issues" due to a different system in Italy; they are "issues" because people recognize them as hallmarks of injustice (aggressive prosecutors, misleading pretrial publicity, lack of transparency, etc.) His article would be better if he approached it from that perspective. I might suggest it to him if I can ever find his actual article, as opposed to the write-up in a KU newspaper.

 

[Numbers]

In ECHR case-law, such as Gafgen v. Germany [GC] 22978/05 June 1, 2010 and more recently in Lyapin v. Russia 46956/09 July 24, 2014, the ECHR has found that:

The Court has considered treatment to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering. Treatment has been held to be “degrading” when it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or psychological resistance, or when it was such as to drive the victim to act against his will or conscience (see Gäfgen, cited above, § 89).

Applying the concept in the judgment to the interrogations of Amanda Knox and Raffaele Sollecito on the night of November 5/6, 2007, there are the following parallels:

1. The treatment was premeditated: there was a contingent of police in the station, and according to the testimony of Director Giobbi of the SCO Police Unit, he had planned interrogations of both individuals to be held simultaneously.

2. The treatment apparently caused intense mental suffering in the individuals.

3. The treatment undoubtedly aroused in the victims feelings of fear, anguish, and inferiority that was capable of, and indeed succeeded, in breaking their psychological resistance, as evidenced by their confusion and the obviously false statements that the police induced both of them to sign.

A consequence of the ECHR finding that an individual has been subjected to degrading treatment is that any conviction resulting directly from information gained from the individual as a result of the degrading treatment is considered unfair, a violation of Convention Article 6. Thus, typically, the State that has committed the violation must redress it, by, for example, retrying the individual if he/she requests, but only using information and procedures in conformity with Article 6.

For Amanda, this means that, assuming the ECHR agrees that there was degrading treatment, the conviction for calunnia cannot stand.

In addition, of course, is the Salduz v. Turkey case-law relating to conviction for statements made under interrogation without a lawyer. Application of those precedents gives the same result, that Amanda Knox's conviction for calunnia was unfair and any retrial must be held in conformance with Article 6. Since the calunnia "crime" is merely a series of statements, perhaps including in the opinion of the Italian courts the written Memoriales, all of which were the product of an interrogation without a lawyer and/or police custody without a lawyer, the statements and Memoriales are not usable for conviction and thus the entire case vanishes. Of course, it may vanish as out of time allowed by the statute of limitations as well.

Other case-law also applies to Amanda's wrongful conviction for calunnia:
The use of statement(s) obtained during an interrogation of a subject without a lawyer (Salduz v. Turkey 36391/02 27/11/2008);

Since a person is entitled to representation by a lawyer as soon as that person is taken into police custody (Dayanan v. Turkey, 7377/03 13/10/2009), the use of statement(s) obtained from a person in police custody, who did not have a lawyer, as was true for Amanda Knox when she composed her Memoriales, for purposes of conviction is not permitted under the Convention.

Furthermore, the reasoning of the Hellmann court in convicting Amanda of calunnia was arbitrary in light of the conditions of her interrogation, as detailed in the Hellmann court motivation document, and that document did not address the defense arguments relating to false memory syndrome arising from severe stressful conditions such as a coercive interrogation. Arbitrary judgments supporting conviction are considered violations of Convention Article 6, right to a fair trial, by the ECHR.



Here is the judgment of the ECHR from Dayanan v. Turkey. Providing a lawyer to a person upon the moment that person is taken into police custody is not optional, but a requirement of the ECHR case-law that is binding on Italy. It is a requirement for a trial to be considered fair. When Amanda wrote her Memoriales, she did not have the assistance of a lawyer to assure that those documents were stated in accordance with her interests.

30. In relation to the absence of legal assistance in police custody, the Court reiterates that the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial (see Salduz, cited above, § 51; Poitrimol v. France, 23 November 1993, § 34, Series A no. 277-A; and Demebukov v. Bulgaria, no. 68020/01, § 50, 28 February 2008).

31. The Court is of the view that the fairness of criminal proceedings under Article 6 of the Convention requires that, as a rule, a suspect should be granted access to legal assistance from the moment he is taken into police custody or pre-trial detention.

32. In accordance with the generally recognised international norms, which the Court accepts and which form the framework for its case-law, an accused person is entitled, as soon as he or she is taken into custody, to be assisted by a lawyer, and not only while being questioned (for the relevant international legal materials see Salduz, cited above, §§ 37-44). Indeed, the fairness of proceedings requires that an accused be able to obtain the whole range of services specifically associated with legal assistance. In this regard, counsel has to be able to secure without restriction the fundamental aspects of that person’s defence: discussion of the case, organisation of the defence, collection of evidence favourable to the accused, preparation for questioning, support of an accused in distress and checking of the conditions of detention.

 

[anglolawyer]

LondonJohn or anglolawyer,

Would one of you clarify one thing for me? In Britain can the police ever say that if you are silent, that your silence can be used against you in some sense? I seem to recall this from some conversation or another.

The words of the caution are:

'You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.’

And this is a criminal lawyer's take on the wording:

I don’t tell my clients what to do or say (regardless of what the police think), I give them all the information and it’s for them to make the final decision, as it’s one they may have to feel comfortable with for a long time to come. ‘You don’t have to answer the questions, you can remain entirely silent if you wish, or reply ”no comment”. This is because you are entitled to have the case proven against you, you do not have to convict yourself by your own words. But, if you have a defence (and I will advise you if you do), you should consider putting forward that defence now. If you do not, and your case goes to Court, and the first time you mention your defence is in Court, then the magistrate is entitled to think, or the judge is entitled to tell the jury, why is that? Wouldn’t an innocent person want to tell the police at the first opportunity that they were innocent? And they might think that you’ve made up that defence in the meantime, and that what you’re saying is not true. You are perhaps less likely to be believed if the first time you mention your defence is in Court.’

 

[Dougm]

Head's real problem is that this isn't a comparative law issue. This is a wrongful conviction issue, and there have been enough studies done that we know that the same handful of basic problems transcend legal systems and lead to wrongful convictions worldwide. The "issues" that people are pointing out aren't "issues" due to a different system in Italy; they are "issues" because people recognize them as hallmarks of injustice (aggressive prosecutors, misleading pretrial publicity, lack of transparency, etc.) His article would be better if he approached it from that perspective. I might suggest it to him if I can ever find his actual article, as opposed to the write-up in a KU newspaper.

Totally agree. I just think this kind of thing may stem from people not wanting to accept that wrongful convictions exist, unless there was some honest mistake. Even law professors would prefer to think we just don't understand the nuances of the Italian system. I'd bet money he doesn't know the actual facts of the case in any depth.

 

[carbonjam72]

I don't know much about David Camm, but Russ Faria is one of the clearest examples of a wrongful conviction I've seen since the Kercher case. The guy has a rock solid alibi!

As far as I can tell, he is middle class. He's white, was employed, no history of crime. It all happened in his own home. His problem was an out of control prosecutor who wouldn't budge in the face of evidence and an investigation that leaped to a conclusion. Very similar to the Kercher case in that sense. Apparently the law enforcement in his county is notoriously corrupt too...

The US is also a large country, just as I am sure there are many prosecutors and many judges in Italy and the UK, and most countries I suppose.

In New York city, one detective and his partner's cases are under review, something like 50 of their cases. His supposed specialty was coaxing confessions from defendants. Except they found the confessions were often using the same phrases. The detective had a phenomenal "record" for convictions. Several of his victims have been exonerated and released from prison after decades behind bars, and the detective still hasn't been charged with wrongdoing.

Just saying its seems like painting with a broad brush to say a miscarriage of justice in one case, or one errant prosecutor, investigator, judge or jury, is endemic or indicative of a national system.

Judge Hellman is also an Italian jurist, and (IMO) he did a thorough, professional and competent job in dismantling piece by piece a thoroughly meritless case. Although his conviction of calunnia seems almost certainly tainted by the constraints outside the court and not based on evidence.

There are many errors in the US court system, probably among my prominent reasons for opposing capital punishment (plus its barbaric). But Italy does seem to have a special and recurring problem, in not following its own laws, ECHR precedent, accepting science based evidence, false witnesses motivated by media payoffs, un-sequestered poorly educated jurors (lay-judges), and out of control prosecutors and judges, launching cases on whisper thin evidence and reaching bizarre conclusions - like the philosophy student found guilty of murder because having left no evidence of himself for involvement in the crime, must have used his philosophy training to "commit the perfect crime".

You're probably in a better position to comment on the UK courts, or Anglo or LJ, or others hailing from your environs. I keep seeing references to batches of defendants who appear to have been wrongfully convicted, sad but not shocking.

Steve Moore wrote something to the effect, in his chapter in the recent book on Rudy Guede, that corrupt prosecutors occur in every jurisdiction. The issue isn't whether it happens, but how a country handles it when it becomes obvious that its happened.

In many cases we only find out about these things because of the press and media, BUt when those reporting functions are constrained by draconian laws such as in Italy, ruinous litigation by litigious prosecutors like Mignini, or promoted by amoral profiteering slander factories like the UK tabloids, its hard for the truth to be known and justice to prevail.

Just MOO, YMMV.

 

[lonepinealex]

I didn't make any comment about the US national system, I don't know how you've extrapolated that from my post. I don't consider the US to have a national system per se.

 

[carbonjam72]

Head's real problem is that this isn't a comparative law issue. This is a wrongful conviction issue, and there have been enough studies done that we know that the same handful of basic problems transcend legal systems and lead to wrongful convictions worldwide. The "issues" that people are pointing out aren't "issues" due to a different system in Italy; they are "issues" because people recognize them as hallmarks of injustice (aggressive prosecutors, misleading pretrial publicity, lack of transparency, etc.) His article would be better if he approached it from that perspective. I might suggest it to him if I can ever find his actual article, as opposed to the write-up in a KU newspaper.

DOUGM: Totally agree. I just think this kind of thing may stem from people not wanting to accept that wrongful convictions exist, unless there was some honest mistake. Even law professors would prefer to think we just don't understand the nuances of the Italian system. I'd bet money he doesn't know the actual facts of the case in any depth.

The review of the article seems to suggest its critical of most people who have criticized the trials of Amanda and Raffaele. And I agree with Diocletus's take on Prof's Head peculiar blindness. (It does raise the question of what Prof Head makes of the complaints he doesn't think are wrong?).

The professor strikes me as one more professional person, using the case for their own purposes, to make some otherwise mind-numbingly dull point that they find relevant in their own research, and thus elevate their research by latching onto a case that has gained traction in the press.

Other point though, was what information the professor had access to? Might his ignorance be a reflection of his having access to news in Italian media? Is that possible? Probably need to see his original article, but the professor strikes me as being strangely blind, in a field where he ought to have some insight.

 

[carbonjam72]

I didn't make any comment about the US national system, I don't know how you've extrapolated that from my post. I don't consider the US to have a national system per se.

Originally Posted by lonepinealex View Post
I don't know much about David Camm, but Russ Faria is one of the clearest examples of a wrongful conviction I've seen since the Kercher case. The guy has a rock solid alibi!

As far as I can tell, he is middle class. He's white, was employed, no history of crime. It all happened in his own home. His problem was an out of control prosecutor who wouldn't budge in the face of evidence and an investigation that leaped to a conclusion. Very similar to the Kercher case in that sense. Apparently the law enforcement in his county is notoriously corrupt too...

I apologize if I misinterpreted the highlighted portion of your comment.

(would "systemic problem" be better phrased, than "national system"?)

 

[lonepinealex]

I apologize if I misinterpreted the highlighted portion of your comment.

I think what you did is mis-read it.

 

[Samson]

The review of the article seems to suggest its critical of most people who have criticized the trials of Amanda and Raffaele. And I agree with Diocletus's take on Prof's Head peculiar blindness. (It does raise the question of what Prof Head makes of the complaints he doesn't think are wrong?).

The professor strikes me as one more professional person, using the case for their own purposes, to make some otherwise mind-numbingly dull point that they find relevant in their own research, and thus elevate their research by latching onto a case that has gained traction in the press.

Other point though, was what information the professor had access to? Might his ignorance be a reflection of his having access to news in Italian media? Is that possible? Probably need to see his original article, but the professor strikes me as being strangely blind, in a field where he ought to have some insight.

This is a ridiculously easy case to understand with minimal information, just starting with Hendry for example, which is very hard to miss with an hour's internet reasearch. Therefore I am puzzled by this man, but the law has absolutely nothing to do with understanding who killed Meredith Kercher.

 

[carbonjam72]

I think what you did is mis-read it.

I still don't get it. Is this an example of British understated humor? (not trying to be difficult here. Does anyone one see what I'm missing?)

 

[Dougm]

This is a ridiculously easy case to understand with minimal information, just starting with Hendry for example, which is very hard to miss with an hour's internet reasearch. Therefore I am puzzled by this man, but the law has absolutely nothing to do with understanding who killed Meredith Kercher.

I think it is an easy case once a person takes the time to find the information, but there is a lot of conflicting commentary out there, so it takes some time and effort to validate the information. Most won't ever read Hendry's work, and if they do, it will take them some time to confirm that what he says is valid, and not just one opinion using cherry picked pictures. And people don't want to believe that two totally innocent people were railroaded because some cops and the PM didn't like the way they looked and acted, then twisted and misinterpreted any and all case facts to make them look guilty, and got the courts to buy it. It sounds unbelievable as I type it, even though I know that's what happened.