Continuation Part 14: Amanda Knox/Raffaele Sollecito

[carbonjam72]

It puzzles me though how the Kerchers lawyer would know about this.

The defense counsel may have informed them, either as a courtesy, or possibly required by protocol. Or, the reporter could have phoned them up and asked, which I think may be more likely, because the counsel was reported as being in shock. If they were aware of it, why would they be in shock? Unless shock lasts a long time.

 

[Chris_Halkides]

Sub-source versus activity level and mixed DNA

In his chapter on this case Dr. Peter Gill wrote about Massei's incorrect inferences regarding the DNA in the bathroom on p. 147: "To reiterate these are statements that relate to the activity of transfer--not backed up by scientific evidence beyond the sub-source inference. The expectation is that mixtures of DNA will be observed as natural background when people share premises."

 

[Kaosium]

Well you could be right of course, but I don't see that being a mechanism before Cassation. Whereas we know there is a mechanism at the ECHR for precisely this situation - all be it that its application in these circumstances may not work.

I dunno, they managed to delay it for two days already after delaying it for a day the last time they ruled; after seven and a half years what would be the big deal delaying it a few more weeks or months? If there's anything the Italian Court System would seem to have in spades it's the ability to delay justice!

The ECHR would have to be persuaded that Ms Knox would be placed in fairly immediate jeopardy, as far as I remember, and that's a stretch here.

I'll look into this more.

Fair enough. I actually like it better your (and CJs) way, it possibly implies more positive things about a favorable ruling from the ECHR, but I don't want to get too excited when another explanation is that a Daily Mail writer got sloppy explaining something.

 

[carbonjam72]

In his chapter on this case Dr. Peter Gill wrote about Massei's incorrect inferences regarding the DNA in the bathroom on p. 147: "To reiterate these are statements that relate to the activity of transfer--not backed up by scientific evidence beyond the sub-source inference. The expectation is that mixtures of DNA will be observed as natural background when people share premises."

Can we just please admit that Elvis has left the building?

Italy has failed to grasp the particulars of DNA evidence, collection, and processing. They have a tentative conviction based on selective clean-ups, ignored definitive evidence limiting TOD, destroyed and hidden exculpatory evidence, refused to test a presumed semen stain in a sexual assault case or hidden the result if they did, had a revolving pu-pu platter of motives ranging from halloween to poo in the toilet to nothing at all to whatever the only confirmed Killer wants to tell us;

It's hard to imagine a case that violates more ECHR protections, or does so more absurdly.

Italy's process is out of control. They are clowns in black robes, piling out of their clown car.

I really think "Italian justice" has reached the breaking point: no one finds it credible.

Just seems like a free for all at this point.

 

[griffinmill]

The Daily Mail reads pretty clear to me. DV is petitioning Cassazione to delay their ruling until the ECHR rules on the calunnia. Not too likely Cassazione cares, but it's worth a try, and of course it sounds good in the press.

That said, who knows how accurate the Daily Mail is in their reporting.

 

[carbonjam72]

I dunno, they managed to delay it for two days already after delaying it for a day the last time they ruled; after seven and a half years what would be the big deal delaying it a few more weeks or months? If there's anything the Italian Court System would seem to have in spades it's the ability to delay justice!



Fair enough. I actually like it better your (and CJs) way, it possibly implies more positive things about a favorable ruling from the ECHR, but I don't want to get too excited when another explanation is that a Daily Mail writer got sloppy explaining something.

Just to clarify, Amanda's case is before ECHR for calunnia. But its related to the murder convictions, should they be confirmed. The issues in both arise from the same set of facts, so its a clean intervention.

Amanda may not be in immeidiate physical risk, although the procedural risk of a final confirmation could add years or possibly decades to the legal process.

But Raf is in immediate jeopardy of imprisonment. And his cause of actions would be identical to Amanda's IIUC, should their case be confirmed.

However, ECHR could intervene if they wanted, even without the calunnia case coming up for consideration. AND, ECHR could accept the case even if there were a final acquittal, because they spent four years in prison and a tub of money on legal fees, based on the same conduct from Italy.

Well, Italy does love a soap opera. I wonder if they do it deliberately? Could it maybe be the influence of the coliseum and the ghosts of gladiators past entertaining the bloodthirsty mob with mortal combat and bloodsport?

 

[Kauffer]

Just to clarify, Amanda's case is before ECHR for calunnia. But its related to the murder convictions, should they be confirmed. The issues in both arise from the same set of facts, so its a clean intervention.

Amanda may not be in immeidiate physical risk, although the procedural risk of a final confirmation could add years or possibly decades to the legal process.

But Raf is in immediate jeopardy of imprisonment. And his cause of actions would be identical to Amanda's IIUC, should their case be confirmed.

However, ECHR could intervene if they wanted, even without the calunnia case coming up for consideration. AND, ECHR could accept the case even if there were a final acquittal, because they spent four years in prison and a tub of money on legal fees, based on the same conduct from Italy.
Well, Italy does love a soap opera. I wonder if they do it deliberately? Could it maybe be the influence of the coliseum and the ghosts of gladiators past entertaining the bloodthirsty mob with mortal combat and bloodsport?

Actually, that's quite interesting. I think it would depend to what extent the violation of rights was remedied by Italy following an acquittal - what there would be left to refer to the court. Numbers will know more about this than me. But if he gets damages, apology, obviously no criminal record etc, then arguably there is nothing much left to complain about. Obviously, there is nothing preventing an application being made in any circumstances, but the point of applications is to get violations remedied.

 

[griffinmill]

Is Fabiani a real lawyer? That has to be one if the most obtuse statements I've ever heard. More kercher rubbish.

The filing makes me think that dellavadova had a bad reaction to the proceedings today. I also can't believe that the echr would grant this relief; however, if they do, the case is over.

What about Fabiani's statement (that if the ECHR rules in favor of Knox, it would mean nothing) is obtuse?

The ECHR rarely has any impact on sentences. They largely slap wrists and impose fines.

All Fabiani is doing is contextualizing the actual power of the ECHR. Which has no jurisdiction whatsoever over any of its member countries' court proceedings.

 

[Numbers]

Interim measures?

Well you could be right of course, but I don't see that being a mechanism before Cassation. Whereas we know there is a mechanism at the ECHR for precisely this situation - all be it that its application in these circumstances may not work.

The ECHR would have to be persuaded that Ms Knox would be placed in fairly immediate jeopardy, as far as I remember, and that's a stretch here.

I'll look into this more.

Well, this development, if it is true - may be stunning.

First of all, though, I don't trust the Daily Mail in terms of their reliability for presenting factual news. Even when they don't simply invent news, they (and other media, sometimes even responsible media) get things wrong. Also, the DM strives to put a sensational slant on what it prints.

It's possible that Amanda Knox and her lawyers have requested interim measures from ECHR. Those are orders to a State to not do something, and they have immediate effect. But they are generally (always, I thought) reserved for what ECHR considers life-and-death emergencies, such as extradition from a Council of Europe country, where supposedly one will not be tortured and/or killed, to another country where there is a real risk of such treatment. Here is an excerpt from the ECHR fact-sheet on interim measures:

What are interim measures?
The Court may, under Rule 39 of its Rules of Court, indicate interim measures to any State party to the Convention. Interim measures are urgent measures which, according to the Court’s well-established practice, apply only where there is an imminent risk of irreparable harm. Such measures are decided in connection with proceedings before the Court without prejudging any subsequent decisions on the admissibility or merits of the case in question.
In the majority of cases, the applicant requests the suspension of an expulsion or an extradition. The Court grants such requests for an interim measure only on an exceptional basis, when the applicant would otherwise face a real risk of serious and irreversible harm. Such measures are then indicated to the respondent Government. However, it is also possible for the Court to indicate measures under Rule 39 to applicants (see, for example, the judgment in Ilaşcu and Others v. Moldova and Russia (§ 11), where the Court asked the applicant to stop a hunger-strike).

So I tend to think that interim measures are not involved. Also, I would think that interim measures are announced by the ECHR, and not publicly stated as requested by one's lawyer, but that is my guess on the protocol and procedure. I have been wrong before.

My thought is that in her recent (rumored) appeal supplement, Amanda and her lawyers pointed out that she had lodged a complaint with the ECHR about the violation of her human rights by Italy with regards to the simple calunnia conviction. Since ECHR case-law is overwhelmingly in favor of Italy being found in violation (IMO, and I've a read a fair amount of ECHR case-law), Amanda and her lawyers may have suggested that the CSC delay any final decision until the ECHR acts. This act might be the communication of the case to Italy or it might be the judgment by ECHR. Such a suspension, especially until a judgment by ECHR, would lessen harm to the defendants, and certainly to Raffaele, who would probably be imprisoned if the conviction were finalized, and also to the reputation of Italy when it otherwise would be found to be in violation of multiple human rights protections of the Convention. But again, this is guessing on my part.

If the suggestion on suspension of the case to await ECHR action was in the appeal supplement, I assume that the civil lawyers and the prosecutor learned of it when they received their copies of the appeal supplement document.

If someone else has ideas or knowledge they are free to contribute, I would welcome learning more about this development.

 

[Kauffer]

The Daily Mail reads pretty clear to me. DV is petitioning Cassazione to delay their ruling until the ECHR rules on the calunnia. Not too likely Cassazione cares, but it's worth a try, and of course it sounds good in the press.

That said, who knows how accurate the Daily Mail is in their reporting.

I may be wrong, but the reason why I don't think this is so is because the response is obvious even if Cassation understands the significance of an ECHR ruling - There is no clear timescale for the ECHR to consider the case. It could be years. We're not waiting that long to issue a decision, which has been on our calendar for a year.

Furthermore, they could have petitioned Cassation weeks or months ago with the argument, but haven't done so.

I think they've gone to the ECHR...but I may be wrong.

 

[Diocletus]

What about Fabiani's statement (that if the ECHR rules in favor of Knox, it would mean nothing) is obtuse?

The ECHR rarely has any impact on sentences. They largely slap wrists and impose fines.

All Fabiani is doing is contextualizing the actual power of the ECHR. Which has no jurisdiction whatsoever over any of its member countries' court proceedings.

If the echr rules that Italy committed an HR violation, then Knox will never be extradited. Also, if an Art 6 violation is found, then restitutio integrum will be ordered, which as a practical matter means that Italy will vacate the Calunnia conviction.

 

[Strozzi]

Don't read too much into a Daily Mail article, especially regarding this case. The ECHR isn't that kind of court, it requires a conviction to be finalized before they'll even consider it, it has no power to do anything like what one possible reading of that suggests.

More likely CDV is just subtly reminding them that the Grown Ups will eventually be sitting in judgement of their kangaroo court.

I agree. This is the defense attorney's way of telling the court that their ruling, if adverse to his client, will surely be reviewed and overturned by the ECHR. (In other words, ECHR is watching and Court of Cassation better sober up.) They know earlier trials have violated Art. 6 which concerns the right of a defendant to a fair trial.

 

[Kauffer]

What about Fabiani's statement (that if the ECHR rules in favor of Knox, it would mean nothing) is obtuse?

The ECHR rarely has any impact on sentences. They largely slap wrists and impose fines.

All Fabiani is doing is contextualizing the actual power of the ECHR. Which has no jurisdiction whatsoever over any of its member countries' court proceedings.

You're wrong - Article 6 violations lead to convictions being set aside - nobody stays in prison with that judgement. See Dorigo V Italy.

A later decision confirmed that no conviction or sentence is safe when an art 6 violation judgement is handed down.

In this situation, the calunnia case and the murder case share evidence. A judgement in favour of Ms Knox over calunnia will effectively end the murder case.

 

[acbytesla]

The Daily Mail reads pretty clear to me. DV is petitioning Cassazione to delay their ruling until the ECHR rules on the calunnia. Not too likely Cassazione cares, but it's worth a try, and of course it sounds good in the press.

That said, who knows how accurate the Daily Mail is in their reporting.

Wow, we agree on something. While I could imagine the court finding some reason to delay their decision, their is no way that they would state that this was their reason even if it was. That would be announcing to the world that their decisions were irrelevant. This would be giving up their own sovereignty....something that they would never do publicly. They would want to maintain at least the illusion to the Italian public that they are not being ruled from Strasbourg.

 

[Diocletus]

I agree. This is the defense attorney's way of telling the court that their ruling, if adverse to his client, will surely be reviewed and overturned by the ECHR. (In other words, ECHR is watching and Court of Cessation better sober up.) They know earlier trials have violated Art. 6 which concerns the right of a defendant to a fair trial.

I agree with this, if the application is to cassation.

 

[Diocletus]

They would want to maintain at least the illusion to the Italian public that they are not being ruled from Strasbourg.

But they signed a treaty!

 

[Numbers]

Actually, that's quite interesting. I think it would depend to what extent the violation of rights was remedied by Italy following an acquittal - what there would be left to refer to the court. Numbers will know more about this than me. But if he gets damages, apology, obviously no criminal record etc, then arguably there is nothing much left to complain about. Obviously, there is nothing preventing an application being made in any circumstances, but the point of applications is to get violations remedied.

1. Here's the DM text (others may have already posted it):

...It has now been revealed Knox's lawyers have turned to the European Court of Human Rights in a last ditch attempt to stop the final ratification of her conviction for murder.

They have asked for the case to be suspended, pending the acceptance of her appeal to the European Court against a conviction for slander.

2. Generally, if someone is finally acquitted, there is no case left for the ECHR. However, there can be a case under some circumstances:
a) The person acquitted was not compensated or not fully compensated;
b) The trial was not conducted in a timely manner by the State;
c) The person had been abused, or kept under inhuman or degrading conditions, and this had not been redressed;
d) Other stuff I don't know about.

 

[griffinmill]

If the echr rules that Italy committed an HR violation, then Knox will never be extradited. Also, if an Art 6 violation is found, then restitutio integrum will be ordered, which as a practical matter means that Italy will vacate the Calunnia conviction.

These are your hopeful assumptions. The reality is the ECHR frequently rules against countries, applies fines, and the sentences of the victimized parties don't change.

Additionally, the ECHR certainly has nothing to do with extradition. You're merely assuming that political pressure will help her cause. I very much doubt that.

 

[acbytesla]

I agree. This is the defense attorney's way of telling the court that their ruling, if adverse to his client, will surely be reviewed and overturned by the ECHR. (In other words, ECHR is watching and Court of Cassation better sober up.) They know earlier trials have violated Art. 6 which concerns the right of a defendant to a fair trial.

I also think that this maybe CDV's reasoning. Basically a shot across the judicial bow sorta No judge likes the idea that their decisions will be overruled.. so why put themselves in a position where that would probably happen?

 

[griffinmill]

You're wrong - Article 6 violations lead to convictions being set aside - nobody stays in prison with that judgement. See Dorigo V Italy.

A later decision confirmed that no conviction or sentence is safe when an art 6 violation judgement is handed down.

In this situation, the calunnia case and the murder case share evidence. A judgement in favour of Ms Knox over calunnia will effectively end the murder case.

The ECHR has no jurisdiction over Italy. If Italy decided to reverse their decision in the case you mention, it was their own decision borne out of a legal process that was already playing out.