Continuation Part 13: Amanda Knox/Raffaele Sollecito

[anglolawyer]

There is testimony on this. They said that the bed was made, that the place wasn't a mess, and that there wasn't blood all over the place.

No idea when if ever they were able to regain possession of the place or get their stuff back. I'm assuming that the cops kept the pot.

The only evidence alleging to demonstrate the presence of AK and RS in association with the murder is Meredith's DNA allegedly on the knife blade and RS's DNA allegedly on the bra clasp. Curotolo (sp) only places them on the piazza, and he wasn't sure what day. Guede's investigatory statements can't be used; their use and use of the fast-track trial or appeals motivations would appear to be precluded by Italian law*, Constitution*, and ECHR case-law**. (Apparently, that did not stop the CSC and Nencini from using Guede and the fast-track trial and appeal motivations in quashing Hellmann's acquittal and provisionally convicting AK and RS.)

*CPP Articles 238 and 238-bis; It. Const. Article 111
**Luca v Italy

And what happened to the putative blood stain and hairs found by the broken window?

Amazing how some evidence just seems to get lost.

We are concerned with 'essential facts' short of the full crime itself without which it is impossible to be sure the accused committed the crime. This is the concept used in Californian jury trials around about 11 years ago. They are 'stepping stone' facts without which you simply cannot cross to the other side and make the case. If, for instance, it were proved that TOD was at 9.15 p.m. we would need to be sure beyond a reasonable doubt that A & R were or could have been at her place at, or a few minutes before, that time. Curatolo would be no good, there is no CCTV in Corso Garibaldi (allegedly) no witness who saw them pass along and positive evidence they were at Raf's place, or at least that one of them was. To overcome our doubts we would need the most compelling and incontrovertible evidence of their presence at the scene at the right time such as bloody prints, DNA, hair, fibres etc but there is none. Therefore, this essential fact not being proved to the required standard, we could ignore the rest of the so-called evidence of weird behaviour, echoing screams etc etc

 

[Diocletus]

I'm right behind you there!

Of course your opponents might say that the business of rights violations is not something you should cite because no authority has made a finding that rights were violated and (presumably) an essential element of the extradition treaty is a mutually accepted trust in the efficacy of each country's judicial system - otherwise it would never have been signed.

Yes, this is a good point. On the other hand, we do have a directive made by the Italian supreme court, essentially that non-mutual offensive collateral estoppel should be used against Knox. That's a clear-cut no-no in the US for quite a few reasons (I really don't think it's legal in Italy, either).

 

[Kauffer]

In fact I am specifically talking about lines of defence.
Reasonable doubt is a criterion for the judge, but it is also a possible line of defence. And this is what I am talking about.

Because I am talking with advocates, who are basically pushing a defensive argumentation.
Such argumentation is theoretically a possible defensive argument.

What I am saying is that the arguments brought by the advocates are not effective a holding this line of defence.
Things like criticising the fact that Stefanoni didn't prove she had clean gloves, is not a kind of argument capable of producing a reasonable doubt.
So the general rule: a mere observation about the fact that pieces of circumstantial evidence are not perfect, itself is not a logical argument for reasonable doubt.

It is not true that the accusation (prosecution but also judges and parties, not prosecution alone) must overcome reasonable doubt on single pieces of evidence. The concept of reasonable doubt applies only to the comprehensive set of the whole evidence, whereas the existence of limits or imperfections of the single pieces of evidence, itself is not an argument capable to hold back against the set of evidence overall.

A set of imperfect pieces of information - pieces that have "holes" - under the logical point of view, is perfectly able to support a conclusion that has no doubt nor holes.
This is a rule of logical inference, and it is the concept at the root of circumstantial evidence.

On the other hand, as Hellmann said:


"In the end, the first-level Corte di Assise, in order to reconstruct the case presented to it, concluded that it could coordinate factual elements (held to be certain in themselves, but whose meaning was not entirely unambiguous) into a unified picture [quadro] in which each one of the elements could be given [conseguire] a definitive explanation, and all of them, collectively, an unambiguous meaning, giving rise to proof of guilt.

Now, however, the “bricks” of this edifice [costruzione] have themselves collapsed; that is, this is not a question merely of a differing arrangement [una diversa ricollocazione] of these bricks, so as not to permit the realization of the planned architectural project, but rather of a lack of material necessary for the construction [in the first place]. And the collapse of the material elements of the prosecution case [il progetto accusatorio] obviously does not permit us to arrive at a verdict [pronuncia] of guilt beyond all reasonable doubt."

I prefer his version.

 

[Kauffer]

Yes, this is a good point. On the other hand, we do have a directive made by the Italian supreme court, essentially that non-mutual offensive collateral estoppel should be used against Knox. That's a clear-cut no-no in the US for quite a few reasons (I really don't think it's legal in Italy, either).

That's a better point.

 

[Numbers]

Yeah, but extradition in DP tables is disallowed because of judge-made law, not because of what the treaties say. In effect, the ECHR countries have said that it's a violation of human rights to extradite someone to face the DP. So, there shouldn't be any problem with a US court saying that it's a violation of human rights to extradite someone whose fundamental rights have been violated. I know the Italians would get whiny and all of that, but the US has dealt with it going the other way.

BTW, in the Venezia case, the DP was taken off the table. Italy still refused to extradite.

Actually, the issue of the death penalty is in the US-Italy treaty:

ARTICLE IX Capital Punishment
When the offense for which extradition is requested is punishable by death under the laws of the requesting Party and the laws of the requested Party do not provide for such punishment for that offense, extradition shall be refused unless the requesting Party provides such assurances as the requested Party considers sufficient that the death penalty shall not be imposed, or, if imposed, shall [*12] not be executed.

Source: EXTRADITION TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE GOVERNMENT OF THE REPUBLIC OF ITALY

 

[Diocletus]

Actually, the issue of the death penalty is in the US-Italy treaty:

ARTICLE IX Capital Punishment
When the offense for which extradition is requested is punishable by death under the laws of the requesting Party and the laws of the requested Party do not provide for such punishment for that offense, extradition shall be refused unless the requesting Party provides such assurances as the requested Party considers sufficient that the death penalty shall not be imposed, or, if imposed, shall [*12] not be executed.

Source: EXTRADITION TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE GOVERNMENT OF THE REPUBLIC OF ITALY

Whoops, my bad. But since the treaty provides for extradition in DP cases (when DP is taken off the table), this makes it even weirder that the Italian courts blocked extradition in a case where the specific treaty provision was complied with.

 

[Diocletus]

Actually, the issue of the death penalty is in the US-Italy treaty:

ARTICLE IX Capital Punishment
When the offense for which extradition is requested is punishable by death under the laws of the requesting Party and the laws of the requested Party do not provide for such punishment for that offense, extradition shall be refused unless the requesting Party provides such assurances as the requested Party considers sufficient that the death penalty shall not be imposed, or, if imposed, shall [*12] not be executed.

Source: EXTRADITION TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE GOVERNMENT OF THE REPUBLIC OF ITALY

Whatever happened to all of those missing stones from the Coliseum? Did perhaps somebody carry them away and build a different structure that looks nothing like the Coliseum?

 

[Numbers]

I'm right behind you there!

Of course your opponents might say that the business of rights violations is not something you should cite because no authority has made a finding that rights were violated and (presumably) an essential element of the extradition treaty is a mutually accepted trust in the efficacy of each country's judicial system - otherwise it would never have been signed. However, it is the facility provided for within the treaty which would be the determining factors in the operation of whatever discretion the sec of state is advised he has. But regardless, I don't think it's ever going to get that far.

The executive authority in both countries (Italy and the US) have absolute discretion not to extradite someone to the other country, in accordance with the respective national laws. This type of authority may or may not apply among the EU or CoE countries, that of course is a different matter.

Each extradition request is presumably evaluated on its own merits.

In the US, the executive (Secretary of State) is in practice (or essentially by court rules) the reviewer of the fairness of a request or foreign court situation. Each and every decision by the Secretary to pursue a request for extradition by a foreign state is reviewed in a probable cause hearing before a US magistrate. The result of that hearing, if probable cause is found, is subject to habeas corpus review in the courts. It has been a court rule to not investigate the fairness of foreign courts, leaving such determination to the Department of State. (A court rule can be changed by a court, for example at the Appeal [Circuit] level, if it believes such is in the interest of justice.) If a certificate of extraditability is issued, then the Secretary decides whether or not to actually extradite.

 

[Numbers]

Whoops, my bad. But since the treaty provides for extradition in DP cases (when DP is taken off the table), this makes it even weirder that the Italian courts blocked extradition in a case where the specific treaty provision was complied with.

They probably knew better than to trust Americans.

 

[Diocletus]

The executive authority in both countries (Italy and the US) have absolute discretion not to extradite someone to the other country, in accordance with the respective national laws. This type of authority may or may not apply among the EU or CoE countries, that of course is a different matter.

Each extradition request is presumably evaluated on its own merits.

In the US, the executive (Secretary of State) is in practice (or essentially by court rules) the reviewer of the fairness of a request or foreign court situation. Each and every decision by the Secretary to pursue a request for extradition by a foreign state is reviewed in a probable cause hearing before a US magistrate. The result of that hearing, if probable cause is found, is subject to habeas corpus review in the courts. It has been a court rule to not investigate the fairness of foreign courts, leaving such determination to the Department of State. (A court rule can be changed by a court, for example at the Appeal [Circuit] level, if it believes such is in the interest of justice.) If a certificate of extraditability is issued, then the Secretary decides whether or not to actually extradite.

If nothing else, the habeas process itself could take a couple of years. Plenty of ways to delay until the ECHR rules. What are the decade-long-trial-loving Italians going to go? Complain that it takes too long? That would be Chutzpah.

 

[Diocletus]

They probably knew better than to trust Americans.

I guess they didn't trust Americans, but if they had trust issues, they shouldn't have agreed to the treaty language re: DP.

 

[Numbers]

If nothing else, the habeas process itself could take a couple of years. Plenty of ways to delay until the ECHR rules. What are the decade-long-trial-loving Italians going to go? Complain that it takes too long? That would be Chutzpah.

The Secretary could ask for copies of the EDFs or other suppressed evidence.

That would result in a delay as well, maybe one that would be geologically significant (tens of thousands of years, perhaps).

 

[Numbers]

I guess they didn't trust Americans, but if they had trust issues, they shouldn't have agreed to the treaty language re: DP.

They may have considered that forcing an Italian to eat American prison food was the equivalent of torture, at least in this instance.

There doesn't need to be a rational understandable reason to deny extradition, as long as proper diplomatic language is used.

Victoria Nuland, an Assistant Secretary of State, will perhaps provide an explanation of how to recognize proper diplomatic language.

 

[Diocletus]

The Secretary could ask for copies of the EDFs or other suppressed evidence.

That would be awesome. But honestly, I think everyone is just going to say: you convicted her based on some other guy's trial?!? WTF is your problem.

 

[Numbers]

That would be awesome. But honestly, I think everyone is just going to say: you convicted her based on some other guy's trial?!? WTF is your problem.

Yes. There is a tacit understanding for extradition to be allowed, that not only must the crime be equivalent legally in the two countries, as stated in the treaty (not an issue for murder, might be an issue for calunnia), but also the underlying fairness of the trial.

 

[CoulsdonUK]

The executive authority in both countries (Italy and the US) have absolute discretion not to extradite someone to the other country, in accordance with the respective national laws. This type of authority may or may not apply among the EU or CoE countries, that of course is a different matter.

Each extradition request is presumably evaluated on its own merits.

In the US, the executive (Secretary of State) is in practice (or essentially by court rules) the reviewer of the fairness of a request or foreign court situation. Each and every decision by the Secretary to pursue a request for extradition by a foreign state is reviewed in a probable cause hearing before a US magistrate. The result of that hearing, if probable cause is found, is subject to habeas corpus review in the courts. It has been a court rule to not investigate the fairness of foreign courts, leaving such determination to the Department of State. (A court rule can be changed by a court, for example at the Appeal [Circuit] level, if it believes such is in the interest of justice.) If a certificate of extraditability is issued, then the Secretary decides whether or not to actually extradite.

Maybe you can help. In the case of Italy requesting extradition, which US government department represents Italy in the extradition process?

 

[Dougm]

In fact I am specifically talking about lines of defence.
Reasonable doubt is a criterion for the judge, but it is also a possible line of defence. And this is what I am talking about.

Because I am talking with advocates, who are basically pushing a defensive argumentation.
Such argumentation is theoretically a possible defensive argument.

What I am saying is that the arguments brought by the advocates are not effective a holding this line of defence.
Things like criticising the fact that Stefanoni didn't prove she had clean gloves, is not a kind of argument capable of producing a reasonable doubt.
So the general rule: a mere observation about the fact that pieces of circumstantial evidence are not perfect, itself is not a logical argument for reasonable doubt.

It is not true that the accusation (prosecution but also judges and parties, not prosecution alone) must overcome reasonable doubt on single pieces of evidence. The concept of reasonable doubt applies only to the comprehensive set of the whole evidence, whereas the existence of limits or imperfections of the single pieces of evidence, itself is not an argument capable to hold back against the set of evidence overall.
A set of imperfect pieces of information - pieces that have "holes" - under the logical point of view, is perfectly able to support a conclusion that has no doubt nor holes.
This is a rule of logical inference, and it is the concept at the root of circumstantial evidence.

Re: the above post, especially the highlighted portion.

I agree with this, for the most part. But you are using it to claim that, no matter how weak each individual piece of evidence is, by adding them up, you can make a powerful circumstantial case, by inference. That is false, and dangerous.

Following this standard, we could convict anyone of anything, as long as they don't have an absolute, ironclad alibi. Just start with one weak piece of "evidence", then use that piece to infer that another weak piece of evidence is stronger than it might be without the first piece. As Hellmann said, it's all a house of cards.

On another subject, you have either chosen to dodge, or misinterpreted my request for a single piece of evidence that does not have an equally likely explanation for innocence. I ask this, because in this case, the pro-guilt case is so weak that I know of no single piece of evidence that is not a surmise for guilt, only working if we accept the whole prosecution scenario, based on a series of "possibles", as Massei speculated.

Yes, a case for guilty beyond a reasonable doubt can be built on a series of evidence pieces that form a strong scenario, even if each one of the pieces could have some (not strong) doubt connected to it. But to build a case from a series of pieces that could equally fit a guilty or innocent scenario? That doesn't work at all. As I said before, if we follow that idea, we can convict anyone of anything.

 

[Diocletus]

Maybe you can help. In the case of Italy requesting extradition, which US government department represents Italy in the extradition process?

I think its the relevant US Attorney. I wonder if s/he has ever met Senator Cantwell. Wouldn't that be a krazy koincidence!

 

[Dougm]

In the case of Italy requesting extradition, which US government department represents Italy in the extradition process?

I know you have asked this before. Why would any US department "represent" Italy in the extradition process? I would think Italy would represent themselves. Or am I misunderstanding this?

 

[Bill Williams]

In fact I am specifically talking about lines of defence.
Reasonable doubt is a criterion for the judge, but it is also a possible line of defence. And this is what I am talking about.

Because I am talking with advocates, who are basically pushing a defensive argumentation.
Such argumentation is theoretically a possible defensive argument.

What I am saying is that the arguments brought by the advocates are not effective a holding this line of defence.
Things like criticising the fact that Stefanoni didn't prove she had clean gloves, is not a kind of argument capable of producing a reasonable doubt.
So the general rule: a mere observation about the fact that pieces of circumstantial evidence are not perfect, itself is not a logical argument for reasonable doubt.

It is not true that the accusation (prosecution but also judges and parties, not prosecution alone) must overcome reasonable doubt on single pieces of evidence. The concept of reasonable doubt applies only to the comprehensive set of the whole evidence, whereas the existence of limits or imperfections of the single pieces of evidence, itself is not an argument capable to hold back against the set of evidence overall.

A set of imperfect pieces of information - pieces that have "holes" - under the logical point of view, is perfectly able to support a conclusion that has no doubt nor holes.
This is a rule of logical inference, and it is the concept at the root of circumstantial evidence.

See highlighted parts. Machiavelli, you are mixing logical categories, but then what else is new.

It is up to any collector of evidence to be used at trial to demonstrate that protocol was followed. But please note how you change the logical goal-posts above. No one is arguing for perfection (so there goes your strawman argument).

There is ALWAYS the possibility that even following protocol produces contamination.... however, if the protocols could be shown to be followed, even that evidence so collected would be admissible - albeit challengable on other grounds.

What is unique about this case is that obviously (proof being the Scientific Police's own video, for pete's sake) that protocol was NOT followed. Even you have to find a way to justify an obviously dirty glove....



Your explanation is that the clasp contaminated a formerly clean glove!!! (Let's just leave that jaw-dropper for a minute so that the point in question does not get lost! But I cannot believe your "narrative of the crime" includes a contaminated/dirty bra-clasp soiling an otherwise clean forensic-glove 46 days later!!!!)

You are correct about one thing. The concept of "reasonable doubt" belongs to the whole.... but it also means that if one or maybe two key pieces of circumstance cast doubt on the whole, then (in most jurisdictions) a trier of fact would be required to acquit on that alone.

So - it is illustrative the way you need to argue to try to finesse this point. No one is arguing for perfection. Even protocols allow for the possibility that all can be followed to-the-letter, and contamination can still sneak through, through some unknown means. (And, no, the defence is NOT required to explain how, if, indeed, contamination is found.)

The "evidence set of the overall" can, and often does in democratic systems, be ruined by one or two bits of circumstance which tend to cast doubt on the whole. True, "reasonable doubt" is applied to the whole, but reasonable doubt requires that the whole be able to withstand the doubts any one bit of contrary evidence contributes.

Which is my way of saying - man oh man, you have a strange way to try to bolster your point by choosing Stefanoni's glove as the analogy.