Continuation Part 14: Amanda Knox/Raffaele Sollecito

[katy_did]

The ECHR is not an appeal court. They are a court that evaluates whether or not a country which is a member of the Council of Europe has violated an applicant's Convention rights. (The other roles of the ECHR are not relevant for this case, so far.)

The CSC annulment of the Hellmann court verdict does not eliminate it from consideration by the ECHR. It routinely evalutes such verdicts with their reasonings, because the ECHR role in such cases as this is determine if there has been any violation of the right to a fair trial (Convention Article 6).

Hellmann essentially overturned Massei. The question before ECHR will be, were the Massei court, the Hellmann court, the CSC, and Nencini, and the next CSC decision each arbitrary or reasonable. The ECHR will review the CSC decisions from a practical viewpoint, and whether CSC decisions were on law or actually on evidence but disguised as points of law, is not so much relevant, as whether the ECHR considers the CSC decisions as compatible with a fair trial.

You are being somewhat legalistic in your interpretations of what ECHR does, and that includes your reference to Curatolo. Of course, the ECHR would not expect the Nencini court to rehear a deceased witness. The question is one of the interpretation by the court of the testimonial record of the witness. Was the Nencini (and CSC) interpretation of Curatolo's testimonies reasonable, in light of the prior testimonies and interpretations, including Hellmann.

Curatolo's evidence does not show that AK and RS committed a murder. In fact, Curatolo's testimony in the Hellmann court, showing he was not reliable on which day (Oct. 31 or Nov. 1) he allegedly saw AK and RS, showed that his testimony was unreliable. How did the Nencini court overcome this, and was the argument reasonable?

You are correct in describing the issue of the alleged DNA evidence as being critical to conviction, but so too may be the prosecution's multiple attacker theory and the findings of Guede's fast-track trial and appeal, and the use of Amanda's statements made without counsel. Did the Nencini court or CSC provide a reasoned argument for the defense being required to prove contamination, or is that a reversal of the burden of proof? How does Nencini counter the independent experts, Conti and Vecchiotti, in their view that the alleged DNA evidence was not reliable? Are the interjections from Guede's trial and appeal, or from any of his uncross-examined statements, a violation of the presumption of innocence and the right to confront a witness? What role did Amanda's statements play in the murder conviction; were they rightfully included or excluded, in light of Salduz v Turkey and all the case-law deriving from that judgment? And is there an Article 3 element (use of inhuman and degrading treatment to elicit statements) to be considered as well?

Again, the ECHR, if and when it reviews this case, which will depend on the final verdict. If there were to be a final acquittal, there may be no ECHR case for the murder. But if there is a final conviction, then the issue of conviction after acquittal will come up, but not in as automatic US-style double jeopardy issue, but as an evaluation of evidence and the use - including interpretation - of evidence. Conviction after acquittal raises concerns about arbitrary reasoning at ECHR, but does not result in an automatic finding of a violation of Article 6. The question whether judicial reasoning was arbitrary or not in the opinion of the ECHR and its view of international judicial standards will arise.

Yes, I appreciate all of this, but you're being a bit sweeping and vague in your comments here.

The difficulty with Curatolo is (a) Hellmann's assessment was overturned on legal grounds, not on the evidence; (b) the SC referred the case to a lower court for reassessment of the evidence, it didn't convict; (c) it was impossible for Nencini to hear him - he was dead; (c) his testimony wasn't decisive, and finding Curatolo unreliable would probably not have affected the verdict. So as I said, they could certainly argue it was unfair that Curatolo wasn't heard in person, but I don't think it's likely to be successful.

The main point is that the argument you were making - that the ECHR doesn't like it when acquittals are overturned by courts which haven't heard all the evidence directly - is that the only witness heard by Hellmann but not by Nencini is Curatolo, and even then Curatolo was heard by Massei, who also heard many witnesses not heard by Hellmann. All the ECHR cases you cited involved first instance acquittals, where this was a first instance conviction. If the argument is that only a court which hears all the evidence directly has the power to convict or acquit then clearly that can only apply to Massei, with the important exception of the DNA evidence and the C & V report.

Hence I really don't think it's a strong argument to say that Nencini couldn't convict because he didn't examine witnesses and evidence directly, because exactly the same could be said of Hellmann.

 

[JREF2010]

The ECHR is not an appeal court. They are a court that evaluates whether or not a country which is a member of the Council of Europe has violated an applicant's Convention rights. (The other roles of the ECHR are not relevant for this case, so far.)

The CSC annulment of the Hellmann court verdict does not eliminate it from consideration by the ECHR. It routinely evalutes such verdicts with their reasonings, because the ECHR role in such cases as this is determine if there has been any violation of the right to a fair trial (Convention Article 6).

Hellmann essentially overturned Massei. The question before ECHR will be, were the Massei court, the Hellmann court, the CSC, and Nencini, and the next CSC decision each arbitrary or reasonable. The ECHR will review the CSC decisions from a practical viewpoint, and whether CSC decisions were on law or actually on evidence but disguised as points of law, is not so much relevant, as whether the ECHR considers the CSC decisions as compatible with a fair trial.

You are being somewhat legalistic in your interpretations of what ECHR does, and that includes your reference to Curatolo. Of course, the ECHR would not expect the Nencini court to rehear a deceased witness. The question is one of the interpretation by the court of the testimonial record of the witness. Was the Nencini (and CSC) interpretation of Curatolo's testimonies reasonable, in light of the prior testimonies and interpretations, including Hellmann.

Curatolo's evidence does not show that AK and RS committed a murder. In fact, Curatolo's testimony in the Hellmann court, showing he was not reliable on which day (Oct. 31 or Nov. 1) he allegedly saw AK and RS, showed that his testimony was unreliable. How did the Nencini court overcome this, and was the argument reasonable?

You are correct in describing the issue of the alleged DNA evidence as being critical to conviction, but so too may be the prosecution's multiple attacker theory and the findings of Guede's fast-track trial and appeal, and the use of Amanda's statements made without counsel. Did the Nencini court or CSC provide a reasoned argument for the defense being required to prove contamination, or is that a reversal of the burden of proof? How does Nencini counter the independent experts, Conti and Vecchiotti, in their view that the alleged DNA evidence was not reliable? Are the interjections from Guede's trial and appeal, or from any of his uncross-examined statements, a violation of the presumption of innocence and the right to confront a witness? What role did Amanda's statements play in the murder conviction; were they rightfully included or excluded, in light of Salduz v Turkey and all the case-law deriving from that judgment? And is there an Article 3 element (use of inhuman and degrading treatment to elicit statements) to be considered as well?

Again, the ECHR, if and when it reviews this case, which will depend on the final verdict. If there were to be a final acquittal, there may be no ECHR case for the murder. But if there is a final conviction, then the issue of conviction after acquittal will come up, but not in as automatic US-style double jeopardy issue, but as an evaluation of evidence and the use - including interpretation - of evidence. Conviction after acquittal raises concerns about arbitrary reasoning at ECHR, but does not result in an automatic finding of a violation of Article 6. The question whether judicial reasoning was arbitrary or not in the opinion of the ECHR and its view of international judicial standards will arise.

Have you posted anything on the ECHR interest in Italys Fast Track, and in this case Rudy Guede accusations, and the ISC using it against the two defendants, in this other trial?
The Fast Track and the inability to defend one self, like Raffaele and Amanda, seems really odd to me. Completely unfair obviously and a odd Italian system "deal" they offer Rapists and Murderers like Rudy Guede.

(About as odd as Maresca yelling objection against questioning Rudy in Hellmans court, and John Kercher asking publicly for Rudy to talk. What a strange case.)

 

[Chris_Halkides]

How green was my alley

I'll skip the Gill stuff because it's patently obvious the other side of the argument is Gill is just opportunistically making the leap to the green fields of defense work. Opinions will differ.

There are a couple of assumptions here, the first being that defense work is green. The second is that Gill intends to do this sort of work. However, there is a more general assumption that underlies many of your comments, which is that defense consultants are the type of people who will say anything for a buck, whereas the prosecution and its consultants are upright conveyors of the truth. There is no theoretical or empirical justification for such a generalization, nor does this case offer any particulars which suggest it.

 

[Kauffer]

.
I cannot bring myself to judge the Kerchers. The human brain has an amazing ability to discard information it does not want to hear. I like to think that in the same situation I would be more logical, I would also like to think that in a really tough interrogation I would not cave to the pressure, but I cannot be sure of either.

If I truly believed that someone had murdered my daughter or son, there would be no punishment I would consider excessive, none.

The same also goes for some lying delusional prosecutor railroading my son or daughter into a 25 or 30 year prison term.

Cody
.

This is a very honest post and I have respect for it.

However, I do judge the Kerchers, because their position is not nor has it ever been honest. They stated that they wanted the truth about what happened yet have gone out of their way to block independent enquiry and have supported the suppression of evidence.

Their stated position is not supported by their instructions to their undertaker of a lawyer to campaign inside and outside the court room for the guilt of Ms Knox and Mr Sollecito.

Additionally, I suspect that they are behind a great deal of the internet noise connected to this case, which has seen evidence misrepresented and egregious attacks on the reputation of the defendants and their families. I can't prove it - yet - but I'm sure as far as I can be.

 

[Kauffer]

10 13pm in New Zealand.

I believe there is no chance Raffaele returns to jail.
I am also certain that Amanda will be exonerated in substance much more quickly than expected in the ECtHR.

If I am wrong about Raffaele, I will retire for a time, because there is no recourse.

Do not retire! If he goes to jail, he goes to the ECHR. There is an international outcry. We join it - we lead it, if we can. If the ECHR rules a violation of his Article 6 rights, then his conviction is set aside and he is released from prison - if, indeed, he goes there.

 

[Chris_Halkides]

Why would the ABA say that they are discoverable if they are not important?

The ones the defense never formally requested in court? Or barely alluded to in the Nencini appeal despite their case shattering importance?

griffinmill,

Both Raffaele's experts and Amanda's experts asked for them (Recall what Carlo Dalla Vedova said in a 2011 interview about making repeated requests). Every expert who has spoken about them in general has said that they form an essential part of a thorough case review. The ABA lists them as explicitly discoverable. How the defense is supposed to demonstrate contamination with one arm tied behind its back is something that the PG commenters have never been willing to address.

 

[LondonJohn]

This is a very honest post and I have respect for it.

However, I do judge the Kerchers, because their position is not nor has it ever been honest. They stated that they wanted the truth about what happened yet have gone out of their way to block independent enquiry and have supported the suppression of evidence.

Their stated position is not supported by their instructions to their undertaker of a lawyer to campaign inside and outside the court room for the guilt of Ms Knox and Mr Sollecito.

Additionally, I suspect that they are behind a great deal of the internet noise connected to this case, which has seen evidence misrepresented and egregious attacks on the reputation of the defendants and their families. I can't prove it - yet - but I'm sure as far as I can be.

My take on this issue is as follows: I think the Kerchers have become convinced in their own minds that the prosecution case is correct - that Knox, Sollecito and Guede acted together to attack and kill Meredith Kercher. I think that this is a complex psychological issue, and is heavily related to the (wholly understandable) fragility and desperation of the Kerchers in the weeks and months after the murder. They naturally looked to the Italian State, in the form of the prosecutor, to solve the crime, and so were naturally predisposed to accept the prosecution theory. And implicitly (and maybe explicitly as well) they were inclined to believe that the prosecution only ever had/has the interests of truth and justice at heart - whereas there's a very obvious motive for the defendants to want to save their own skin at any cost. Why (the Kerchers might have asked themselves) would the prosecution - and police - conclude that Knox and Sollecito were involved unless this was what they had found as a result of their impartial investigation?

So I think that the Kercher family is operating under a blanket presumption that Knox and Sollecito were factually involved in the murder. I think they realise that factual involvement and judicial proof beyond a reasonable doubt are two different things. I think that the statements of the family related to this issue (eg after the Hellmann verdict, and after the Nencini verdict) indicate pretty clearly that the family would accept acquittals if that were the judicially proper thing to do (i.e. if there was insufficient evidence to convict), but I think in their hearts they would always think that Knox and Sollecito almost certainly would have "got away with murder".

And while I believe that they're psychologically wedded to the presumption that Knox and Sollecito were factually involved, I think one also has to take into account the mechanics of the judicial process and their relationship with their lawyer Maresca. And the monetary implications of that relationship. And then things get even more murky and sad.........

 

[Numbers]

Yes, I appreciate all of this, but you're being a bit sweeping and vague in your comments here.

The difficulty with Curatolo is (a) Hellmann's assessment was overturned on legal grounds, not on the evidence; (b) the SC referred the case to a lower court for reassessment of the evidence, it didn't convict; (c) it was impossible for Nencini to hear him - he was dead; (c) his testimony wasn't decisive, and finding Curatolo unreliable would probably not have affected the verdict. So as I said, they could certainly argue it was unfair that Curatolo wasn't heard in person, but I don't think it's likely to be successful.

The main point is that the argument you were making - that the ECHR doesn't like it when acquittals are overturned by courts which haven't heard all the evidence directly - is that the only witness heard by Hellmann but not by Nencini is Curatolo, and even then Curatolo was heard by Massei, who also heard many witnesses not heard by Hellmann. All the ECHR cases you cited involved first instance acquittals, where this was a first instance conviction. If the argument is that only a court which hears all the evidence directly has the power to convict or acquit then clearly that can only apply to Massei, with the important exception of the DNA evidence and the C & V report.

Hence I really don't think it's a strong argument to say that Nencini couldn't convict because he didn't examine witnesses and evidence directly, because exactly the same could be said of Hellmann.

Not only am I being a bit sweeping and vague, I am also changing the goal posts! (Not too much, I hope.) In other words, you are placing too much weight on one element of unfairness, when in fact ECHR evaluates over a range of elements of unfairness. I may have unintentionally mislead readers by not stressing that it is the question of the over-all fairness of a trial that is at issue, not merely one issue.

That ECHR does not approve a conviction after acquittal in which the convicting court did not hear the witnesses while the acquittal court did is true, but may not be as relevant here (the AK-RS case) as in other cases. It may have almost no importance with respect to Curatolo.

I am not disputing that Massei convicted; but if the ECHR were reviewing Massei alone, would the motivation report be considered reasonable or arbitrary? My reading of that motivation report is that is was full of arbitrary choices, essentially always in the direction of conviction, even when the evidence showed reasonable doubt.

If one accepts that Massei was not valid in terms of its violations of Convention Article 6, then Hellmann becomes the first valid trial generally in conformance with Article 6. And the Hellmann court engaged the independent experts Conti and Vecchiotti to review the DNA evidence; that is unique to that court over Massei. So Hellmann was not simply an appeal court in the US sense. Conti and Vecchiotti demolished the DNA evidence of the bra clasp and knife blade, as profoundly unreliable. Hellmann also demolished the other major points of Massei, although not very clearly dealing with the entry of a burglar by climbing up the grill over the ground-floor window or the "judicial truth" of multiple attackers.

The CSC in annulling Hellmann, on arbitrary grounds to my reading, whether legal or evidential, did not show any valid reason why the C&V report was not to be still considered extant. Did Nencini present a valid argument against the C&V report? IMO, not at all. Nencini then reverts to use of the bra clasp and knife blade alleged DNA evidence for conviction. He has "reasons" for the extra male DNA on the bra clasp, for example, but he has manufactured them with no evidence, only speculation, attributing the DNA to Meredith's boy friend and her girlfriends (although the non-Meredith DNA is apparently from several males, possibly including Raffaele). That is an example of arbitrary reasoning.

So here is my correction: the ECHR does not approve of the use of arbitrary reasoning to achieve a conviction after an acquittal, based on essentially the same evidence. It further objects to conviction after acquittal when the convicting court does not hear significant witnesses, or does not examine significant evidence, or arbitrarily deals with significant evidence, that the acquitting court has dealt with fairly, based upon the ECHR's opinion [the opinion of the majority of the Chamber or Grand Chamber panel of judges]. The ECHR judges against the Convention and its case-law, not against national law; it can find that national law, including constitutional provisions, was contrary to or was applied contrary to the Convention or case-law.

 

[Numbers]

Have you posted anything on the ECHR interest in Italys Fast Track, and in this case Rudy Guede accusations, and the ISC using it against the two defendants, in this other trial?
The Fast Track and the inability to defend one self, like Raffaele and Amanda, seems really odd to me. Completely unfair obviously and a odd Italian system "deal" they offer Rapists and Murderers like Rudy Guede.

(About as odd as Maresca yelling objection against questioning Rudy in Hellmans court, and John Kercher asking publicly for Rudy to talk. What a strange case.)

I haven't posted anything about fast-track trials themselves. I may have mentioned the issue of using testimony that was not cross-examined because it came from fast-track or preliminary investigation. The case-law there may start with Luca v Italy, a well-know ECHR case against use of testimony or statements that have not been subject to cross-examination.

 

[Strozzi]

Man you're optimistic! He knew Amanda for a week and if he was that fussed about honour he wouldn't let his bonkers relatives smear her. I'm sticking with my avoiding-calunnia theory!

Raffaele doesn't control his relatives. All want justice for Raffaele from this nightmare. A few of his (more distant) relatives are so desperate to save him and vulnerable that they swallowed some meme about Amanda being involved and want Raffaele to separate himself by saying she went out. Raffaele knows that by every indication a sleeping person can have that she was with him throughout the night. He won't change (falsify) his statements that she was with him. That is the honor in him.

Now, if the court wants to assume (falsely) that Amanda did go out and participate in a murder while he was asleep, Raffaele's legal position is "what does that have to do with me?"

 

[carbonjam72]

Yes I know - like I've said, I completely understand Raffaele's approach. If his team feels that the ISC is crazy enough to use the separation argument to acquit Raff (and so far they certainly seem crazy enough) then why not go for it? Raff can't throw Amanda under the bus because of all the stuff he's previously said and written, but he's going as far as he can and allowing his supporters to go further.

I get it, I'm just not going to pretend that the guy's some kind of martyr. He's just an ordinary man up the creek, doing everything he can to fashion a paddle.

With all due respect. not all men, or people are alike. Some are, excuse me, better people. The dumbest guy in the world can still be honest, and the smartest can still be a villain. Your views on Raf's strategy is less than charitable, but I get what you're saying.

 

[carbonjam72]

The legal stuff that apparently can be influenced by a TV show?

What the predictions that the ISC might acquit only Raffaele clearly show is that people know that the court of public opinion is extremely influential. It amazes me that people like Frank are simply stating that only acquitting Raff is an option without shouting from the rooftops how INSANE that is - that the ISC could do something like that simply because the press and TV are now saying he's innocent!

So I do think that public opinion has a bearing on the legal stuff. Apparently so does Bongiorno, and with that understanding Raff is failing to correct people who are smearing Amanda. It's clearly all part of the "strategy".

I think the position is, 'look we don't think Amanda is guilty either, but if you insist on convicting based on evidence used against her, that same evidence excludes me'.

So I don't see this as throwing anyone under the bus, more like pleading with ransoming kidnapping terrorists

 

[LondonJohn]

I think the position is, 'look we don't think Amanda is guilty either, but if you insist on convicting based on evidence used against her, that same evidence excludes me'.

So I don't see this as throwing anyone under the bus, more like pleading with ransoming kidnapping terrorists

I don't even consider that Sollecito's strategy is akin to this.

Regardless of the way the Supreme Court got itself improperly embroiled in debating facts (as opposed to the law) in the previous SC hearing on this case, Sollecito's lawyers realise that they will need substantive issues of law to stand any realistic chance of gaining traction with the SC this time around. And this argument is, in my opinion, an excellent point of law.

As you point out - and as most pro-guilt commentators and seemingly much of the media seem to be unable to understand - this is NOT Sollecito "abandoning" Knox, or "now claiming that she wasn't with him all night", or anything of that nature. Rather, it's Sollecito correctly pointing out that the lower courts have got themselves into a logical bind if they are basing at least part of their reasoning on the two findings that a) Knox set up the attack at some point earlier in the evening, and b) Knox's 6th November memoriale (and her earlier statements from overnight on 5th/6th) are accurate, save for substituting Guede for Lumumba. As Sollecito says, if the courts conclude this, then this actively points to Sollecito's non-involvement.

But it's worth pointing out once again (if only to try to hammer it home to the more stupid pro-guilt commentators and lazy reporters) that Sollecito isn't suggesting that this (i.e. Knox leaving Sollecito's apartment to participate in the murder) is what actually happened. What he's saying is that if it DID happen - and the lower courts seem to have ruled that in their opinion it did happen - then logically Sollecito shouldn't be found guilty. Within this, Sollecito is correctly pointing out that he cannot be 100% certain that Knox didn't leave his apartment that night, since he was sleeping. But his position is that as far as he can be confident, Knox was with him all evening/night.

 

[Magister]

While we await a decision here is an excellent round up by Bruce Fischer.....

http://groundreport.com/italian-med...s-in-amanda-knox-and-raffaele-sollecito-case/

 

[Numbers]

I don't even consider that Sollecito's strategy is akin to this.

Regardless of the way the Supreme Court got itself improperly embroiled in debating facts (as opposed to the law) in the previous SC hearing on this case, Sollecito's lawyers realise that they will need substantive issues of law to stand any realistic chance of gaining traction with the SC this time around. And this argument is, in my opinion, an excellent point of law.

As you point out - and as most pro-guilt commentators and seemingly much of the media seem to be unable to understand - this is NOT Sollecito "abandoning" Knox, or "now claiming that she wasn't with him all night", or anything of that nature. Rather, it's Sollecito correctly pointing out that the lower courts have got themselves into a logical bind if they are basing at least part of their reasoning on the two findings that a) Knox set up the attack at some point earlier in the evening, and b) Knox's 6th November memoriale (and her earlier statements from overnight on 5th/6th) are accurate, save for substituting Guede for Lumumba. As Sollecito says, if the courts conclude this, then this actively points to Sollecito's non-involvement.

But it's worth pointing out once again (if only to try to hammer it home to the more stupid pro-guilt commentators and lazy reporters) that Sollecito isn't suggesting that this (i.e. Knox leaving Sollecito's apartment to participate in the murder) is what actually happened. What he's saying is that if it DID happen - and the lower courts seem to have ruled that in their opinion it did happen - then logically Sollecito shouldn't be found guilty. Within this, Sollecito is correctly pointing out that he cannot be 100% certain that Knox didn't leave his apartment that night, since he was sleeping. But his position is that as far as he can be confident, Knox was with him all evening/night.

To me, Raffaele and his defense team have adopted a typical legal strategy, not a betrayal of Amanda. The statement that if the court wishes to accept her guilt, based on false evidence, does not mean it must accept his guilt on the same false evidence.

 

[Bill Williams]

To me, Raffaele and his defense team have adopted a typical legal strategy, not a betrayal of Amanda. The statement that if the court wishes to accept her guilt, based on false evidence, does not mean it must accept his guilt on the same false evidence.

This is the best and most succinct explanation of Raffaele's defence strategy I've seen.

 

[anglolawyer]

Not only am I being a bit sweeping and vague, I am also changing the goal posts! (Not too much, I hope.) In other words, you are placing too much weight on one element of unfairness, when in fact ECHR evaluates over a range of elements of unfairness. I may have unintentionally mislead readers by not stressing that it is the question of the over-all fairness of a trial that is at issue, not merely one issue.

That ECHR does not approve a conviction after acquittal in which the convicting court did not hear the witnesses while the acquittal court did is true, but may not be as relevant here (the AK-RS case) as in other cases. It may have almost no importance with respect to Curatolo.

I am not disputing that Massei convicted; but if the ECHR were reviewing Massei alone, would the motivation report be considered reasonable or arbitrary? My reading of that motivation report is that is was full of arbitrary choices, essentially always in the direction of conviction, even when the evidence showed reasonable doubt.

If one accepts that Massei was not valid in terms of its violations of Convention Article 6, then Hellmann becomes the first valid trial generally in conformance with Article 6. And the Hellmann court engaged the independent experts Conti and Vecchiotti to review the DNA evidence; that is unique to that court over Massei. So Hellmann was not simply an appeal court in the US sense. Conti and Vecchiotti demolished the DNA evidence of the bra clasp and knife blade, as profoundly unreliable. Hellmann also demolished the other major points of Massei, although not very clearly dealing with the entry of a burglar by climbing up the grill over the ground-floor window or the "judicial truth" of multiple attackers.

The CSC in annulling Hellmann, on arbitrary grounds to my reading, whether legal or evidential, did not show any valid reason why the C&V report was not to be still considered extant. Did Nencini present a valid argument against the C&V report? IMO, not at all. Nencini then reverts to use of the bra clasp and knife blade alleged DNA evidence for conviction. He has "reasons" for the extra male DNA on the bra clasp, for example, but he has manufactured them with no evidence, only speculation, attributing the DNA to Meredith's boy friend and her girlfriends (although the non-Meredith DNA is apparently from several males, possibly including Raffaele). That is an example of arbitrary reasoning.

So here is my correction: the ECHR does not approve of the use of arbitrary reasoning to achieve a conviction after an acquittal, based on essentially the same evidence. It further objects to conviction after acquittal when the convicting court does not hear significant witnesses, or does not examine significant evidence, or arbitrarily deals with significant evidence, that the acquitting court has dealt with fairly, based upon the ECHR's opinion [the opinion of the majority of the Chamber or Grand Chamber panel of judges]. The ECHR judges against the Convention and its case-law, not against national law; it can find that national law, including constitutional provisions, was contrary to or was applied contrary to the Convention or case-law.

Is there any ECHR jurisprudence on arbitrary reasoning? Apologies if you have already posted it nine times already. I tend to prefer concrete examples over abstract principles. What would arbitrary reasoning look like?

 

[platonov]

Words - how do they work pt 587

I don't even consider that Sollecito's strategy is akin to this.

Regardless of the way the Supreme Court got itself improperly embroiled in debating facts (as opposed to the law) in the previous SC hearing on this case, Sollecito's lawyers realise that they will need substantive issues of law to stand any realistic chance of gaining traction with the SC this time around. And this argument is, in my opinion, an excellent point of law.

As you point out - and as most pro-guilt commentators and seemingly much of the media seem to be unable to understand - this is NOT Sollecito "abandoning" Knox, or "now claiming that she wasn't with him all night", or anything of that nature. Rather, it's Sollecito correctly pointing out that the lower courts have got themselves into a logical bind if they are basing at least part of their reasoning on the two findings that a) Knox set up the attack at some point earlier in the evening, and b) Knox's 6th November memoriale (and her earlier statements from overnight on 5th/6th) are accurate, save for substituting Guede for Lumumba. As Sollecito says, if the courts conclude this, then this actively points to Sollecito's non-involvement.

But it's worth pointing out once again (if only to try to hammer it home to the more stupid pro-guilt commentators and lazy reporters) that Sollecito isn't suggesting that this (i.e. Knox leaving Sollecito's apartment to participate in the murder) is what actually happened. What he's saying is that if it DID happen - and the lower courts seem to have ruled that in their opinion it did happen - then logically Sollecito shouldn't be found guilty. Within this, Sollecito is correctly pointing out that he cannot be 100% certain that Knox didn't leave his apartment that night, since he was sleeping. But his position is that as far as he can be confident, Knox was with him all evening/night.

Nope.

Is it really that complicated

The Court of Florence did not analyze Sollecito’s position separately from Knox’s.
Particularly it appears that the Court denied the need for such an analisys because Sollecito had not dissociated himself from Knox.

In truth in all the recorded statements by Sollecito, he claims he does not remember the details of that evening because he had smoked marijuana. He does not remember exactly if Knox went out of his flat or not. On the other hand Sollecito is not accusing Knox: he cannot believe that she may have participated to such a heinous crime.

But this should not have prevented the Court of Florence from examining the possibility of an acquittal of Sollecito independently from Knox’s position.

 

[platonov]

Alibis - how do they work?

To me, Raffaele and his defense team have adopted a typical legal strategy, not a betrayal of Amanda. The statement that if the court wishes to accept her guilt, based on false evidence, does not mean it must accept his guilt on the same false evidence.

Yep. The legal strategy of withdrawing the alibi he gave her at the end of Hellmann

&The one he gave her, possibly inadvertently, before Nencini.

 

[LondonJohn]

Nope.

Is it really that complicated

No, it's not complicated at all.

The key word in that bolded section in the appeal document is "exactly". In a better translation, this renders the sentence to be along the lines of "He does not remember with total certainty whether Knox went out of his apartment or not".

Which is, incidentally, exactly how I represented Sollecito's position when I wrote, in that same post:

Within this, Sollecito is correctly pointing out that he cannot be 100% certain that Knox didn't leave his apartment that night, since he was sleeping. But his position is that as far as he can be confident, Knox was with him all evening/night.


Perhaps it's because some people see only what they want to see that they choose to (incorrectly) interpret Sollecito's stance on this issue as him now claiming in any way that Knox wasn't with him in his apartment all night, or even him suggesting that she wasn't there. Instead, Sollecito is stating the obvious point that he cannot be 100% certain that Knox was there, since he was sleeping, but that all the evidence in front of him - the fact that she was lying next to him when he dozed off and when he woke up, and that her demeanour in no way suggested that she'd been out - points firmly towards her not having left the apartment. And Sollecito is then making the legal point that if the courts conclude that Knox did leave his apartment that night - as per her "confessions" - then this would speak to the exoneration of Sollecito in and of itself.

Perhaps the nuanced nature of the argument goes way over some people's heads. Perhaps it's just confirmation bias and a filtered lens. I don't know. Fortunately, it is hoped/assumed that the judges on the Supreme Court will have the brainpower and the objectivity to understand this argument for exactly what it is.