Probably the best that people outside of Italy, and not in the ECHR bureaucracy, can do for Raffaele, if he is convicted, is to petition the Minister of Justice and the President of Italy to pardon him.
Continuation Part 13: Amanda Knox/Raffaele Sollecito
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Probably the best that people outside of Italy, and not in the ECHR bureaucracy, can do for Raffaele, if he is convicted, is to petition the Minister of Justice and the President of Italy to pardon him.
Bill Williams
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Totally anecdotally, about 1/2 of the readers of Massei's report leave it thinking the guy was arguing either for innocence or at least strong reasonable doubt they didn't do it.
Hell, even Harry Rag now thinks Nencini's report is laden with irony, rather than facts! What Harry misses is that.....
..... Nencini's conviction of them was meant as irony, too! Ha ha ha ha ha ha ha ha ha ha ha ha!
Kauffer
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It's getting on for two years since Cassation last had this case. In the meantime, someone or other has told them about the ECHR and how they're going to get reversed. It could focus minds. That and the fact that nobody sane could regard Nencini's report as anything other than daft.
carbonjam72
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I find it very hard to believe the state dept lawyers have not read the motivation reports on a case that has gotten an absolutely unique level of coverage, and an overwhelming popular view that its is a wrongful conviction.
Politicians and government agencies that have political appointments, and consequences for their rulings, tend to anticipate problems before they arise, so they are not caught flat footed, if they can help it. That would be my guess.
I'll bet there is an informal working group that has read all the motivation reports, and has already formulated their responses to the various possible outcomes.
(W'ed like to thank Italy...blah, blah, or, While we respect the judicial process of our good friend and staunch ally the nation of Italy...blah, blah, etc).
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Bill Williams
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1) Have they?
2) Then again it might not.
3) Even Harry Rag regards many of Nencini's facts as meant to be taken as ironical.
2) Then again it might not.
3) Even Harry Rag regards many of Nencini's facts as meant to be taken as ironical.
{Highlighting added to quote.}
There was a certain level of poetic (or ironic) license in my post.
US government officials are probably well aware of the Nencini report and other nonsense-ini from the Italian judiciary on this case. So all the laughing and crying may have already taken place.
If Italy does seek extradition, it will then be like the rerun of a TV comedy. Will it still get laughs?
But what it won't get, if the US Government follows the US Constitution, which all officers of government must take an oath to do, is any move forward on an extradition of Amanda Knox, IMO.
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Bill Williams
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Holy cow.
Harry Rag has done the next best thing, with this tweet of his:
He's deleted it, perhaps because even other entrenched guilters corrected him; that it is perhaps not a good idea to introduce the idea of "irony" into a legal document.
BTW - the best thing would have been to acknowledge the mistake and move on.
Still this leaves one to wonder - what DID Nencini mean by saying Rudy was a professional burglar? Did he mean that therefore Rudy would not have broken in through Filomena's window? Apparently so. IMO Nencini should keep his day job and not become a burglar. He has no sense of what the profession entails.
Harry Rag has done the next best thing, with this tweet of his:
He's deleted it, perhaps because even other entrenched guilters corrected him; that it is perhaps not a good idea to introduce the idea of "irony" into a legal document.
BTW - the best thing would have been to acknowledge the mistake and move on.
Still this leaves one to wonder - what DID Nencini mean by saying Rudy was a professional burglar? Did he mean that therefore Rudy would not have broken in through Filomena's window? Apparently so. IMO Nencini should keep his day job and not become a burglar. He has no sense of what the profession entails.
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Desert Fox
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Is his day job being a divorce judge or something? Like to find out about other cases he has been judge for.
Unfortunately, US politicians (and politicians everywhere) have a long history of "kicking the can down the road" whenever they can. Translation: They avoid dealing with any issue, especially a controversial one, until they absolutely have to.
My guess is that there is no work group, and there may or may not have been some back channel discussions with Italian government officials along the lines of, "hey guys, any chance you can keep this one from ending up on our desk?". I just think they are hoping the courts come to their senses, and then they don't have to deal with this mess.
For example, if the ISC, in March, decided that AK and RS are innocent of the murder, but let the aggravated colunnia stand, would any US politician do anything about the rights violations, etc. that Amanda had foisted upon her? Highly doubtful, they would just be happy the whole thing is done with.
Diocletus
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Oh, and I forgot about this:
http://www.internationalskeptics.com/forums/showpost.php?p=10420841&postcount=1481
Some technical points about your issues.
1. The aggravated calunnia charge supposes calunnia that is committed to cover up or further some other crime, in this case, allegedly the murder. If Amanda is not convicted of the murder/rape, then she cannot be convicted of aggravated calunnia. She is already convicted of simple calunnia. She has lodged a complaint with the ECHR regarding Italy's violation of her rights under the Convention with regard to this wrongful conviction. She cannot be extradited for the offense of calunnia or even (probably) aggravated calunnia. For simple calunnia, the Hellmann court sentenced Amanda to three years, IIRC, and this was made to be retrospective time (time previously served). So there is no additional part of the sentence for her to serve.
For aggravated calunnia, there may not be an equivalent crime in the US, so she could not be extradited for that offense even if convicted of it.
2. US politicians cannot do much if anything to address the violations of rights of Americans, when those rights are violated outside the US. The US Government can do somethings about it. It is their responsibility to take some action.
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I agree with all of this, but what I was trying to do is indicate what our politicians might actually do, vs. what their technical responsibilities are. Wouldn't it be great if our politicians would do their job, as we expect, all the time? But that is why I referred to them as "politicians", not the government.
Similarly, the Italian judiciary has not followed the "rules" regarding much of this case. On your point about the aggravated calunnia, for example, I agree with your assessment, but that does not mean they will (agree). Even Hellmann, who was clearly the most rational voice from the judiciary in this case, came up with the contradiction that although Amanda was treated horribly, and basically coerced into making the statements that she did by an unfair police interrogation, she somehow was still guilty of calunnia. How does this make sense, since under his scenario she wasn't present at the crime scene, and would not know if Lumumba was involved, or not?
I was just trying to indicate how these various folks behave, not what their actual responsibilities are under the law. I really hope that you are right, and that the governments (made up of politicians) do their job. It is just my observation that they hate to get mixed up in potentially contentious public squabbles, when they don't have to.
I long ago pointed out that, if the ISC were to confirm the Nencini verdict, and Italy requested extradition a short time after the motivation comes out, the case might find itself smack dab in the middle of the 2016 Presidential debates. If I am Italy, I REALLY would want to avoid that.
But if I were Italy, this whole mess would not exist. And if the judiciary and politicians followed the laws to the letter, it also would not exist.
Desert Fox
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I agree with all of this, but what I was trying to do is indicate what our politicians might actually do, vs. what their technical responsibilities are. Wouldn't it be great if our politicians would do their job, as we expect, all the time? But that is why I referred to them as "politicians", not the government.
Similarly, the Italian judiciary has not followed the "rules" regarding much of this case. On your point about the aggravated calunnia, for example, I agree with your assessment, but that does not mean they will (agree). Even Hellmann, who was clearly the most rational voice from the judiciary in this case, came up with the contradiction that although Amanda was treated horribly, and basically coerced into making the statements that she did by an unfair police interrogation, she somehow was still guilty of calunnia. How does this make sense, since under his scenario she wasn't present at the crime scene, and would not know if Lumumba was involved, or not?
I was just trying to indicate how these various folks behave, not what their actual responsibilities are under the law. I really hope that you are right, and that the governments (made up of politicians) do their job. It is just my observation that they hate to get mixed up in potentially contentious public squabbles, when they don't have to.
I long ago pointed out that, if the ISC were to confirm the Nencini verdict, and Italy requested extradition a short time after the motivation comes out, the case might find itself smack dab in the middle of the 2016 Presidential debates. If I am Italy, I REALLY would want to avoid that.
But if I were Italy, this whole mess would not exist. And if the judiciary and politicians followed the laws to the letter, it also would not exist.
That is pretty important. . . . .Wrongful convictions in the US at least appear to follow the letter of the law. This case seemed to break so many Italian laws that it is a bad comedy.
codyjuneau
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I was wondering the same thing. I would like to read one of his motivation reports from a different case to see is he is capable of intelligent thought when not ordered by the ISC to convict innocent people.
Cody
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They do? I can't help thinking about poor Debra Milke, where the Prosecution and Judge blocked evidence of past lying and inventing evidence by the key witness against her. Who happened to be a cop -- a cop who repeatedly broke the law, then lied about it. I am sure there are others.
I agree this case probably breaks a record for number of Italian laws simply ignored and not followed. In the US, when they wrongfully convict someone, at least they try to claim they followed the law.
NotEvenWrong
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I realize there has been much discussion over whether the Nencini trial amounts to "double jeopardy" for Knox and Sollecito, and it seemed like the consensus opinion (or at least a common opinion) was that since the Italian trials are a 3 stage process with appeals that Knox/Raf aren't formally acquitted until all 3 phases are exhausted.
But, here's the thing -- it seems like all this is doing is re-defining what double jeopardy means so that we can explain away the process used in Italy. Double jeopardy is the re-trial of someone under the same or similar charges. Hellman acquitted Knox and Sollecito by any reasonable definition of acquittal. The word "acquit" is actually used in his report. That decision was appealed by the prosecution. In the U.S. this is the exact thing that is not allowed because of double jeopardy prohibitions in the Constitution. The only exception to this is if the defendant was never in jeopardy in the first place (clearly not the case here).
So the explanation seems to be that Knox/Sollecito were never actually "acquitted" because the appeals process hadn't been exhausted. This is simply re-defining acquittal and double jeopardy so that Italy can potentially skirt the part of the treaty not allowing double jeopardy. Surely Italy can't simply redefine "acquittal" or "double jeopardy" to suit their own purposes in this case. The entire point of double jeopardy prohibitions is to not allow appeals of acquittals. Just because double jeopardy (as defined by the U.S. constitution) is a part of the process in Italy does not make it no longer double jeopardy for purposes of extradition. What am I missing? Is the argument that this isn't "actually" double jeopardy simply political wrangling?
But, here's the thing -- it seems like all this is doing is re-defining what double jeopardy means so that we can explain away the process used in Italy. Double jeopardy is the re-trial of someone under the same or similar charges. Hellman acquitted Knox and Sollecito by any reasonable definition of acquittal. The word "acquit" is actually used in his report. That decision was appealed by the prosecution. In the U.S. this is the exact thing that is not allowed because of double jeopardy prohibitions in the Constitution. The only exception to this is if the defendant was never in jeopardy in the first place (clearly not the case here).
So the explanation seems to be that Knox/Sollecito were never actually "acquitted" because the appeals process hadn't been exhausted. This is simply re-defining acquittal and double jeopardy so that Italy can potentially skirt the part of the treaty not allowing double jeopardy. Surely Italy can't simply redefine "acquittal" or "double jeopardy" to suit their own purposes in this case. The entire point of double jeopardy prohibitions is to not allow appeals of acquittals. Just because double jeopardy (as defined by the U.S. constitution) is a part of the process in Italy does not make it no longer double jeopardy for purposes of extradition. What am I missing? Is the argument that this isn't "actually" double jeopardy simply political wrangling?
I have wondered this too, although there is no easy answer.
It goes to the core of the debate on this case. A lot of pro-guilt people, when responding to posts from pro-innocence folk, will answer, "but that is the way it's done/the law in Italy". But what if that law (even when they follow it) is unfair? Especially if it directly contradicts a key provision of US Law -- in fact, one of the key pillars on which US law is based?
Although technically, it seems like the current process is not double jeopardy by Italian standards, it clearly violates the idea behind that concept in the US. The prosecution only gets one bite at the apple. They are not supposed to be able to go back and try again until they get it right.
People can say that the two are not officially convicted yet, because it is not final, but the end result is the same.
NotEvenWrong
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Dougm,
I agree completely. It seems dubious at best to say it's not double jeopardy simply because that's the way it's done in Italy. It's double jeopardy because that's the definition of double jeopardy. We're talking about extradition here, and IIRC it explicitly states in the extradition treaty that extradition will be denied if double jeopardy is violated since that is prohibited by the U.S. Constitution.
I'm struggling to understand how legal scholars have argued the opposite on the matter -- what are we missing?
I agree completely. It seems dubious at best to say it's not double jeopardy simply because that's the way it's done in Italy. It's double jeopardy because that's the definition of double jeopardy. We're talking about extradition here, and IIRC it explicitly states in the extradition treaty that extradition will be denied if double jeopardy is violated since that is prohibited by the U.S. Constitution.
I'm struggling to understand how legal scholars have argued the opposite on the matter -- what are we missing?
I agree that the Italian process is double jeopardy as far as the US is concerned, and that the US Government cannot rightfully, Constitutionally, extradite Amanda Knox on that basis alone. But that is my opinion, and there isn't case law to back that opinion. In fact, it's a bit of uncertain legal territory.
There are many other instances of unfairness in her trials that were even more fundamentally wrong, such as lack of discovery, presumption of guilt, denial of the right to cross-examine a witness or examine a proceeding from an unexamined person that was used against her, and the use of unreliable and apparently fraudulent evidence by the prosecution.
I believe some lawyers who have spoken about the case were confused, because they had not bothered to do enough background reading, what the Hellmann court did. The Hellmann court was called an "appeal court" in the media, and indeed it responded to appeals. However, it did not function the way a US appeal court would, which would be to solely review the legal and procedural aspects of the first-instance trial. In the US, if the first-instance court convicted, and the second-instance court found only an alleged error in law, a third-instance court (such as a State Supreme Court) could overrule the second-instance court on the point of law, if I understand correctly (and I'm not a lawyer). But the Hellmann court reviewed the case de novo, hearing relevant parts of the case over entirely, and getting new evidence (from court-appointed DNA experts). And the Hellmann acquittal was on the evidence, not on a legal technicality. So in the US, that acquittal could not be overturned because of the 5th Amendment.
As far as I know, no US citizen has ever been in Amanda's situation: convicted provisionally (and wrongfully) in a foreign country, then acquitted in a second-level court and allowed to return to the US, then having the acquittal being quashed (arbitrarily and maliciously) by the foreign Supreme Court of Cassation, and then again (wrongfully) provisionally convicted in a second second-level court.
What I am having a bit of an issue getting my mind around is this:
* Yes, the Italian way of doing things seems to be clearly "Double Jeopardy" as defined in the US Constitution
* However, US accepts as valid systems of law that have provisions that are not the same as US law. For example, calunnia is not a criminal law that exists in the US, but if an American is convicted of that crime in Italy, US does not object (although an attempted extradition for it might be interesting)
So, in what case does the US object and assert that the law of that country is not acceptable, and will not allow an extradition?
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