Well expressed on the whole, kudos. Another way to say this is it's, at best, amoral.
-
Security incident: ISF was recently accessed by intruders. Please change your password, and change it anywhere else you used it. Read more
Continuation Part 14: Amanda Knox/Raffaele Sollecito
- Thread starter acbytesla
- Start date
- Status
Well expressed on the whole, kudos. Another way to say this is it's, at best, amoral.
acbytesla
Penultimate Amazing
- Joined
- Dec 14, 2012
- Messages
- 41,089
I have to admire you Sherlock. You're convinced correctly that the TOD was between 9 and 10. But you still belive that Amanda an Raffaele were involved. But you should know that your thinking is not shared by virtually anyone else especially the Italian courts. I think I am speaking fairly when I say that most people think the only way for them to be involved would necessitate a much later TOD.
anglolawyer
Banned
Thanks. 'Arbitrary reasoning' is an oxymoron, isn't it?
To take your first example, I do not think you are in a position to reach a view without first seeing the testimony of the expert. It may well be that Hellman derived his findings on her statement of mind based on his (or her) expert testimony and from questions put to the expert at the hearing.
As for your second, you may be on better ground, especially if Nencini concerned himself only with the narrow question of which side must prove/disprove contamination, because, if so, he will have entirely disregarded that part of the C-V report which condemns Stef's work as not being valid, contamination or no contamination.
I am not sure I would call that 'arbitrary' though. Arbitrary would be, say, choosing between alternative hypotheses randomly.
Another case; this is "lack of adequate reasoning" {highlighting added}:
CASE OF VYERENTSOV v. UKRAINE 20372/11 11/04/2013
84. The Court notes that, according to its established case-law reflecting a principle related to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based. The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case (see García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999‑I, with further references).
85. The Court also reiterates that its duty, under Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or of law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see Schenk v. Switzerland, 12 July 1988, § 45‑46, Series A no. 140, and Teixeira de Castro v. Portugal, 9 June 1998, § 34, Reports 1998‑IV).
86. In that context, regard must also be had, in particular, to whether the applicant was given the opportunity of challenging the authenticity of the evidence and of opposing its use. The quality of the evidence is also taken into account, including whether the circumstances in which it was obtained cast doubt on its reliability or accuracy (see Jalloh v. Germany [GC], no. 54810/00, § 96, ECHR 2006‑IX).
87. In the present case, the applicant’s arguments before the judicial authorities concerned both the factual circumstances and the legal issues of his case. In particular, in his appeal he advanced a number of legal arguments concerning the legislative regulation of the procedure for holding peaceful demonstrations, mainly complaining that he had been accused of holding one without permission, even though such permission was not required by law. In the Court’s opinion, these arguments were both important and pertinent. Furthermore, the legal framework for the exercise of freedom of assembly in Ukraine, which has been examined in detail in the present case, clearly demonstrates that the answers to his arguments were not obvious and self-evident. Nevertheless, the domestic courts, in particular the Court of Appeal, which examined the applicant’s written arguments on the issue, ignored them altogether, simply stating that they were refuted by the (unnamed) case-file materials and the body of evidence in the case. Neither did it answer to the applicant’s complaints about a violation of his procedural rights as guaranteed by Article 6 § 3 (b-d) of the Convention (see paragraphs 76, 79 and 82 above).
88. The Court has previously held, in the context of its examination of the fairness of criminal proceedings, that by ignoring a specific, pertinent and important point made by the accused, the domestic courts had fallen short of their obligations under Article 6 § 1 of the Convention (see Nechiporuk and Yonkalo v. Ukraine, no. 42310/04, § 280, 21 April 2011). It observes a similar issue in the present case, where that requirement was not met.
89. Having regard to the above considerations, the Court concludes that there has been a violation of Article 6 § 1 of the Convention on account of the lack of adequate reasoning in the domestic courts’ decisions.
Are you being arbitrarily difficult?
http://dictionary.thelaw.com/arbitrary/
ARBITRARY
The Law Dictionary, Black's Law Dictionary 2nd Ed.
Not supported by fair, solid, and substantial cause, and without reason given. Treloar v. Bigge, L. R. 9 Exch. 155. Arbitrary government. The difference between a free and an arbitrary government is that in the former limits are assigned to those to whom the administration is committed, but the latter depends on the will of the departments or some of them. Kamper v. Hawkins, 1 Va. Cas. 20, 23. Arbitrary punishment. That punishment which is left to the decision of the judge, in distinction from those defined by statute.
http://legaldictionary.lawin.org/arbitrary/
Meaning of Arbitrary
Derived from mere opinion ; capricious ; unrestrained; despotic; or Discretionary . Not done, or acting according to reason or judgment ; depending on the will alone.Legally, without cause based upon the law.
Synonyms of Arbitrary
adjective
according to desires
capricious
contrary to reason
determined by no principle
done at pleasure
fanciful
illogical
independent of law
independent of rule
inji nitus
injudicious
irrational
libiainosus
nonrational
perverse
unaccountable
unjustified
unreasonable
unreasoned
without adequate determining principle
without consideration
without reason
without substantial cause
Associated Concepts: arbitrary act
arbitrary action
arbitrary and capricious
arbitrary classification
arbitrary determination
arbitrary standards
arbitrary verdict
Last edited:
Barbie later contradicts Mach saying the cut is for the statute of limitations on the theft charge
https://twitter.com/BLNadeau
Last edited:
Are you being arbitrarily difficult?
http://dictionary.thelaw.com/arbitrary/
ARBITRARY
The Law Dictionary, Black's Law Dictionary 2nd Ed.
Not supported by fair, solid, and substantial cause, and without reason given. ...
In my non-lawyerly experience, lawyers generally mean unreasoned or despotic when the use the term "arbitrary". It is bad (in the US).
Scientists and engineers may use arbitrary to mean freedom of choice, within some range of acceptable choices. A civil engineer gets to design a bridge within some range of design choices, as long as the desired functions are safely met; perhaps whether it a bridge supported by directly by columns or suspended from cables supported by columns is arbitrary. (Choices could be narrowed, however, if the columns-only choice interferes with ship traffic through the river below the bridge.)
Last edited:
moije2
Critical Thinker
- Joined
- Jan 3, 2011
- Messages
- 284
Hi Anglolawyer - while I greatly respect your offerings here and elsewhere, I don't agree that the Kerchers are like putty in anyone's hands. These are adults with functioning brains who should have been able to see this debacle for the bad joke that it is a long time ago. That so many disinterested experts, not just American ones either, have criticized various aspects of the "case" against Knox/Sollecito should tell them something. It should tell them pretty much everything really.
As moije2 pointed out above, Kercher Sr. definitely praised TJMK as "unbiased" in his book. That had to be one of the most absurd claims I've ever read in my life and that's saying plenty
The Kerchers undoubtedly believe in the guilt of AK and RS. TJMK at minimum gives emotional support. For anyone who has been involved in legal procedings after a death of a sibling or child, as I have, emotions and thinking are impaired to say the least. Then comes the call from the media who have their own agenda. At some point you just want to put your head down and move on and forget about the various details involved - if you can even remember them! These factors go a long way to explain the stance of the Kerchers.
Silent? Nope. Dignified? They have probably done the best they can but the use of that word is a PR tool, an equivalent of bella figura, to satisfy a certain audience. I suspect those words were never uttered by the Kerchers themselves.
Dilemma? After nearly 8 years they have been riding this beast whether they wanted to or not - surely they did not want to! - and in that time period they have appeared immune to the onslaught of experts challenging the evidence in this case. And in the process they are direct particants in the march forward to convict, both by their employment of Maresca and by their carefully timed public statements and appearances. I would hate to be in their shoes with the position they have taken! Just what if, what if, they are wrong? No doubt arises with all the public challenge to the evidence? Even with my above comments I find it hard to believe the dust hasn't settle enough for them to express uncertainty.
I think there is a certain rationalization that goes on, and an emotional need to not get too much into the details of their daughter/sister's death. They were told at the beginning that Amanda and Raffaele did it. And that there was a PR campaign, and that people were making stuff up to try to convince the public they are not guilty. They have an attorney that is trying his best to convince them that AK and RS are guilty, and anything they hear to the contrary is a pack of lies. Plus, they have both an emotional and financial motive to believe that these two were involved.
Shifting from there to "we have been supporting the false conviction and imprisonment of two of our deceased daughter's friends" is a big leap to go to. I'd like to think I would make that leap, if I were in their shoes, but I would also like to think I would have been more skeptical in the first place. But I can't say for sure.
moije2
Critical Thinker
- Joined
- Jan 3, 2011
- Messages
- 284
Agreed on both hilites.
This is my main area of sympathy for them, after 8 years the issue is this moral dilemma they are in. If they are right (slim chance!) then all is well. If they are wrong, and to the BRD standard they most certainly are, they are in the position of publicly passing response off to others (mostly) which does not show a lot of character and in the end reduces them to being apologetic when the dust finally settles. And as said above, if it is determined that theirs was more than passive aggression and they actually participated in the media campaign, that would look much worse. Of course the inevitable 3rd option is they can maintain their guilt stance regardless.
Antony
Graduate Poster
Does this mean there's nothing happening tomorrow?
Kaosium
Philosopher
- Joined
- Oct 12, 2010
- Messages
- 6,695
Yes, apparently they can't meet on Thursday for some reason.
The following ECHR case applies to the interrogations of AK-RS and other aspects. I have highlighted specific concepts that apply, for example, that it is the practical, substantive aspects of a case that the ECHR evaluates, not merely the formal, legalistic elements. In particular, "the right not to incriminate oneself" under interrogation means, IMO, the right not to be induced to commit a "speech crime" such as calunnia or autocalunnia.
CASE OF SHABELNIK v. UKRAINE 16404/03 19/02/2009
51. As the requirements of Article 6 § 3 are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 § 1, the Court will examine the complaints under those two provisions taken together (see, among many other authorities, Van Mechelen and Others v. the Netherlands, judgment of 23 April 1997, Reports 1997-III, p. 711, § 49).
52. According to the Court’s case-law, even if the primary purpose of Article 6, as far as criminal matters are concerned, is to ensure a fair trial by a “tribunal” competent to determine “any criminal charge”, it does not follow that the Article has no application to pre-trial proceedings. Thus, Article 6 – especially paragraph 3 – may be relevant before a case is sent for trial if and so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions (see Imbrioscia v. Switzerland, judgment of 24 November 1993, Series A no. 275, p. 13, § 36). The manner in which Article 6 §§ 1 and 3 (c) is to be applied during the preliminary investigation depends on the special features of the proceedings involved and on the circumstances of the case. The moment from which Article 6 applies in “criminal” matters also depends on the circumstances of the case, as the prominent place held in a democratic society by the right to a fair trial prompts the Court to prefer a “substantive”, rather than a “formal”, conception of the “charge” contemplated by Article 6 § 1. The Court is compelled to look behind the appearances and investigate the realities of the procedure in question (see Deweer v. Belgium, 27 February 1980, § 44, Series A no. 35).
53. The Court also reiterates that, although not absolute, 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 Krombach v. France, no. 29731/96, § 89, ECHR 2001-II). Furthermore, Article 6 may also be relevant before a case is sent for trial and in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with it (see Imbrioscia, cited above, § 36; and Öcalan v. Turkey [GC], no. 46221/99, § 131, ECHR 2005‑...). The manner in which Article 6 §§ 1 and 3 (c) are applied during the investigation depends on the special features of the proceedings and the facts of the case. Article 6 will normally require that the accused already be allowed to benefit from the assistance of a lawyer at the initial stages of police interrogation. The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction (Salduz v. Turkey [GC], no. 36391/02, § 55, 27 November 2008).
54. The Court reiterates that its duty, according to Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the Contracting States to the Convention. In particular, it is not its function to deal with errors of fact or of law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. While Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is primarily a matter for regulation under national law (see Schenk v. Switzerland, judgment of 12 July 1988, Series A no. 140, p. 29, §§ 45-46, and Teixeira de Castro v. Portugal, judgment of 9 June 1998, Reports 1998-IV, p. 1462, § 34).
55. As regards the use of evidence obtained in breach of the right to silence and the privilege against self-incrimination, the Court recalls that these are generally recognised international standards which lie at the heart of the notion of a fair trial under Article 6. Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities, thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6. The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused (see, inter alia, Saunders v. the United Kingdom, cited above § 68; Heaney and McGuinness, cited above, § 40; J.B. v. Switzerland, no. 31827/96, § 64, ECHR 2001-III; and Allan, cited above, § 44).
59. Furthermore, notwithstanding the Government’s arguments that the applicant’s right to silence was protected in domestic law and that there was no evidence that he was ill-treated in order to confess, the circumstances of the case suggest that his testimonies were obtained in defiance of his will. ...{The statements given by the applicant then under interrogation} did not in fact contain any information which was not already known to the investigators and had been received in unclear circumstances and in clear violation of the applicant’s right to defence.
60. The foregoing considerations are sufficient to enable the Court to conclude that the applicant was denied a fair trial. Accordingly, there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention.
I hope the case excerpted above provides sufficient indication of why Amanda Knox's application to ECHR regarding her conviction for calunnia will be judged unfair. And likewise, whatever the CSC decides in the next few days in this case will also, if a conviction, prove to be a violation of the Convention under ECHR judgment.
carbonjam72
Master Poster
- Joined
- Apr 24, 2014
- Messages
- 2,324
The prosecutor argued today that the two then spent their time after the murder devoted to a "selective clean-up".
Of DNA and fingerprints, leaving only Rudy's?
Do you think maybe the Kerchers could question that?
LondonJohn
Penultimate Amazing
- Joined
- May 12, 2010
- Messages
- 21,464
The irony of all this, of course, is that if Machiavelli is suggesting that political affiliations, masonic conspiracies or other skulduggery can affect the outcome of court rulings, then this - in and of itself - is a gigantic indictment of Italian criminal justice.
Once more, there are none so blind as those who refuse to see.........
TruthCalls
Graduate Poster
- Joined
- Oct 26, 2011
- Messages
- 1,983
But isn't this the point. If it was my child who was murdered I would want to know exactly what happened and who was responsible. I would not rely entirely on what my lawyer or what the prosecutor says. Knowing how vocal Gil has become and given his expertise, under what rationale could you explain why they haven't reached out to him. Do they think he's a paid shill? Do they think he doesn't know what he's talking about? Do they not care that two people who might be innocent could possibly go to jail?
I've not walked in their shoes as moije2 has (sorry to hear that, btw) so I am not criticizing them for how they have handled things. I just find it curious that they don't seem to be the least bit interested in the possibility that Amanda and Raffaele are innocent. Perhaps they have done significant research on their own without making that public knowledge, but based on their public statements as well as what John put into his book, it would appear they swallowed the prosecutions argument hook, line and sinker and have never looked back.
Dan O.
Banned
- Joined
- Feb 14, 2007
- Messages
- 13,594
Sherlock's position has not shifted one iota since he first came to this site. He has learned not to try and argue the actual facts because he is soundly defeated every time. Instead, he wraps up a big bundle and claims they are all lies without examining any of them.
Bill Williams
Penultimate Amazing
- Joined
- Nov 10, 2011
- Messages
- 15,713
Diocletus said:
The troubling thing is that on occasion, Machiavelli has had information not available to us up here in the cheap seats. By this, I do not mean his latest conspiracy theory about Bruno.....
That Machiavelli says this will either mean something on Friday or it won't. There - that's the sum total of my genius for today.
This is all Kremlinology to me.
Last edited:
So yet another attempt to mislead from Mach/Yummi....
Clander on.ORG writes....
"Yummi should have added that the Italian State was forced to pay damages to Judge Bruno for the completely unfounded accusations made by then prosecutor De Magistris (current mayor of Naples)"
- Status