Continuation Part 14: Amanda Knox/Raffaele Sollecito

[Kauffer]

Mach might be a better resource on this point, but is it possible that the crime of calunnia was confirmed by cassation in 2013, but the sentencing was sent back to nencini to consider the aggravated circumstance that would enhance the sentence?

So cassation in 2015 was not confirming the calunnia conviction, but affirming the previous sentence of 3 years, without aggravation (which is the only possible consistent outcome that can go with the acquittals - since the aggravation would require an effort to deflect attention from one's own guilt)?

Yes, they must have thrown out the aggravating element, as you point out, so it would have got a mention.

 

[Bill Williams]

I heard it mentioned Bill, but the matter was not before the ISC to confirm. The ISC had already confirmed it, before sending the murder case to Nencini.

Mach might be a better resource on this point, but is it possible that the crime of calunnia was confirmed by cassation in 2013, but the sentencing was sent back to nencini to consider the aggravated circumstance that would enhance the sentence?

So cassation in 2015 was not confirming the calunnia conviction, but affirming the previous sentence of 3 years, without aggravation (which is the only possible consistent outcome that can go with the acquittals - since the aggravation would require an effort to deflect attention from one's own guilt)?

I think carbonjam72 has it right..... which should cause carbonjam72 some pause that I think that!

However, there is this little description in the Wiki-article on the Italian court of Cassation:

The Italian judicial system is based on Civil law within the framework of late Roman law, and not based on Common Law. Its core principles are entirely codified into a normative system which serves as the primary source of law, which means judicial decisions of the supreme court, as well as those of lower courts, are binding within the frame of reference of each individual case submitted, but do not constitute the base for judicial precedent for other future cases as in Common Law. It is worth noting that while in Civil Law jurisdictions the doctrine of stare decisis (precedent) does not apply, however, in practice the decisions of the Supreme Court of Cassation usually provide a very robust reference point in jurisprudence constante. The two essential aims of the Supreme Court of Cassation are to ensure that lower courts correctly follow legal procedure, and to harmonize the interpretation of laws throughout the judicial system.​

The legal-beagles here can interpret the highlighted part better than moi, but that seems to indicate that, yes, the March 2015 version of Cassazione WAS bound by the decision of March 2013.

My views these days may be very ill-informed, but they were very ill-informed in days I was saying that Knox was guilty of calunnia, but perhaps not sentencable given the circumstances.

I've moved from there. I now agree with the view that Hellmann actually did think it was no skin off-of Knox's nose to convict and sentence to time served, given that he knew he was upsetting the apple-cart by adjudicating the larger case on the facts, and nothing but the facts; and therefore sending her back to Seattle.

The March 2015 ISC was locked into that - strangely, it is a fair guess that Bruno's 2015 Section 5 court is mad as a March Hare at Chieffi's 2013 Section 1 court for swallowing Galati whole. But there was nothing it could do about the other unjust ruling in March 2013, as per above.

So off to ECHR as above. Maybe Bruno will write a letter saying, "We would have if we could have, but would you do Italy the great favour of....."

 

[Kauffer]

I think carbonjam72 has it right..... which should cause carbonjam72 some pause that I think that!

However, there is this little description in the Wiki-article on the Italian court of Cassation:

​

The legal-beagles here can interpret the highlighted part better than moi, but that seems to indicate that, yes, the March 2015 version of Cassazione WAS bound by the decision of March 2013.

My views these days may be very ill-informed, but they were very ill-informed in days I was saying that Knox was guilty of calunnia, but perhaps not sentencable given the circumstances.

I've moved from there. I now agree with the view that Hellmann actually did think it was no skin off-of Knox's nose to convict and sentence to time served, given that he knew he was upsetting the apple-cart by adjudicating the larger case on the facts, and nothing but the facts; and therefore sending her back to Seattle.

The March 2015 ISC was locked into that - strangely, it is a fair guess that Bruno's 2015 Section 5 court is mad as a March Hare at Chieffi's 2013 Section 1 court for swallowing Galati whole. But there was nothing it could do about the other unjust ruling in March 2013, as per above.

So off to ECHR as above. Maybe Bruno will write a letter saying, "We would have if we could have, but would you do Italy the great favour of....."

It's not quite as you have it - the Bruno court was not bound on the matter - the matter was simply not before it - conviction for calunnia and sentence of 3 years were res judicata. What was before the court were aggravating circumstances and the additional one year sentence, which they did not confirm, an action they had to take having thrown out the murder case.

 

[Samson]

No, what Hellman showed was the futility of compromise with those responsible for this saga. He tossed them a bone but they didn't crawl back under their rock. Lesson learned.

He tossed them a bone, then Amanda went to ECHR with it, then Velladova frightened Cassation with ECHR threat. Logical but weak argument that Hellmann unwittingly saved them.

 

[acbytesla]

Well I think he's on record now as saying he wished he had acquitted. He was obviously (with hindsight and in my opinion) trying not to suggest the police committed criminal offences. It was disappointing.

His reasoning was somewhat peculiar.

Whether or not it is criminal as opposed to being illegal are two different things. From what I've read up to now is under Italian law, Amanda should have been provided an attorney and the interpreter shouldn't have gone beyond interpretation of the languages, But I am unaware that their mistakes rose to the level of being criminal, punishable by incarceration or fines.

 

[Kauffer]

Whether or not it is criminal as opposed to being illegal are two different things. From what I've read up to now is under Italian law, Amanda should have been provided an attorney and the interpreter shouldn't have gone beyond interpretation of the languages, But I am unaware that their mistakes rose to the level of being criminal, punishable by incarceration or fines.

I think assault probably counts. But I would be surprised if there wasn't also some sort of abuse of public office charge that could have been brought.

 

[acbytesla]

I think assault probably counts. But I would be surprised if there wasn't also some sort of abuse of public office charge that could have been brought.

You can't prove the assault. Although I'm sure it happened .

 

[anglolawyer]

He tossed them a bone, then Amanda went to ECHR with it, then Velladova frightened Cassation with ECHR threat. Logical but weak argument that Hellmann unwittingly saved them.

That's not how I see it. If they had stopped at Hellman, maybe she would not have gone to the ECHR but they had to keep trying to destroy her with Galati's bull ****, now it's their turn, or it should be.

 

[Kauffer]

That's not how I see it. If they had stopped at Hellman, maybe she would not have gone to the ECHR but they had to keep trying to destroy her with Galati's bull ****, now it's their turn, or it should be.

Are you suggesting if the ISC had confirmed Hellmann, then Amanda might not have taken the calunnia to the ECHR? I really don't think that is right. Her father made the point most assertively much earlier in the trial process that they would make sure his daughter would have no stain on her character when it was all over.

 

[komponisto]

I'm not sure whether you translated the relevant part of his report

(N.B. The translator of each section of the Hellmann report is credited at the beginning of that section. So, in this instance, we find that

CALUMNY

[Calunnia, pp. 29-35; translated by komponisto]

yes, indeed, I was responsible for that section.)

is it possible that the crime of calunnia was confirmed by cassation in 2013, but the sentencing was sent back to nencini to consider the aggravated circumstance that would enhance the sentence?

That is exactly what happened.

It's been quite a frustrating experience trying to get people to understand just how bad the Cassation 2013 ruling was. I heard (and continue to hear) people talking about "sending the case down for further review", as if were an administrative matter, or as if they somehow wanted to know what further evidence would reveal. No. They issued the strongest possible ruling they could theoretically have issued against Knox and Sollecito. That is, they

- overturned Hellmann's acquittal of AK and RS on the charge of murder;
- confirmed Hellmann's conviction of AK on the charge of calumny; and
- overturned Hellmann's rejection of the aggravating circumstance on the charge of calumny

It was literally the closest possible thing they could have done to ordering the Nencini court to convict the defendants. The only reason they didn't actually write that is because it wouldn't technically have been legal for them to do so.

If they were merely being scrupulous, they would have overturned the entirety of Hellmann, including all the considerations related to calumny. Instead, they specifically left that in place, and -- moreover -- ordered the new court to consider increasing the sentence. How much more of a hint do you think Nencini needed?

After the Nencini conviction Hellman said he wished he had acquitted Amanda of the calunnia too.

Really? Where? I would greatly appreciate a link -- this would nontrivially boost my opinion of him.

 

[acbytesla]

That's not how I see it. If they had stopped at Hellman, maybe she would not have gone to the ECHR but they had to keep trying to destroy her with Galati's bull ****, now it's their turn, or it should be.

What I really love about this case is now the predators become the prey. I'm with the consensus that the ECHR will rule in Amanda's favor leaving no choice but for the ISC to throw out the callunia conviction. My guess that Italy will settle before the ECHR rules because the writing is on the wall.

 

[Strozzi]

I think Hellman did the best he could manage. This all but tees up an ECHR appeal, with allowing Amanda to be safely out of the country. Not visiting Italy until ECHR resolves it all, is a small price to pay - one could imagine Hellman reasoning.

After the Nencini conviction Hellman said he wished he had acquitted Amanda of the calunnia too. I don't think the climate of freedom in Italy is comparable to the US or the UK. There is a residual stench of fascism, as others have pointed out.

Listening to Hellman describe the treatment he received after he acquitted Amanda and Raf was an eye opener. His colleagues wanted these convictions to stick, and many probably still do. Except now they will keep a low profile and hope they are not criticized too badly in the investigations that will surely be coming.

Most likely, Stef and other cops, maybe Finzi for example, will get blamed for misleading their superiors, like Mignini.
Big Mig may ultimately have to accept responsibility for the whole fiasco, as the person in charge of it all - and who supplied the satanic element, but the question is will they chalk it up to mere incompetence or actual intentional malice?

Either way, I think Mignini will not be a judge for very much longer, and quite possibly, not even a free man. Amanda and Raf beat that mad pompous idiot after all.

If an investigatory body confronts co-prosecutor Commodi with her involvement in poor decision-making and wrongdoing, do you think she will try to save herself by telling the investigators of the crazy things Mignini tried to do, including the Satanic conspiracy he wanted to go with? "Look, I reigned in Mignini's excesses. The guy is crazy!"

 

[komponisto]

It's not quite as you have it - the Bruno [recte: Marasca] court was not bound on the matter - the matter was simply not before it - conviction for calunnia and sentence of 3 years were res judicata. What was before the court were aggravating circumstances and the additional one year sentence, which they did not confirm, an action they had to take having thrown out the murder case.

Exactly.

 

[Kauffer]

What I really love about this case is now the predators become the prey. I'm with the consensus that the ECHR will rule in Amanda's favor leaving no choice but for the ISC to throw out the callunia conviction. My guess that Italy will settle before the ECHR rules because the writing is on the wall.

I have mentioned this before, but there really does seem to be a problem with Italy 'settling' the case before the ECHR rules, because Amanda and her advisers will indeed want the conviction over turned. Yet it is not in the gift of the Republic of Italy to provide this. The executive and the judiciary are separate entities and the executive is bound by legislation, as indeed are the judiciary, which in this case requires an adjudicated violation of Article 6 in order to employ a mechanism to retry or vacate.

The only thing Italy could promise, I believe, via an agreement with the President, is a pardon, which does not go far enough as it does not erase the conviction or sentence.

I have looked for ways in which a friendly settlement might be able to achieve the essential goal. Perhaps someone else has found something I haven't considered.

 

[Rhea]

What I really love about this case is now the predators become the prey. I'm with the consensus that the ECHR will rule in Amanda's favor leaving no choice but for the ISC to throw out the callunia conviction. My guess that Italy will settle before the ECHR rules because the writing is on the wall.

If I understood correctly Countries often don't comply with such verdicts by the ECHR ... especially Italy I think.

 

[Rhea]

There's a lot of discussion going on in Italy now about standards for handling DNA evidence. I don't see any corresponding discussion going on about coerced confessions and the uselessness of witness statements made under the duress of police interrogation, despite the fact that the latter was probably an even greater contributor to the injustice of this case than the former. This was a gigantic educational opportunity which Hellmann missed, and thanks to him, the media and public missed it too.

That's true, the one thing that really has been the nail in the coffin of the public conviction of Raffaele and Amanda, but also of the convicting courts, the self-incriminiating statement, ist still being seen as Amanda's fault, which she even served time for.

To really understand this mess and have a fair resolution to it she finally needs to be acquitted of calunnia, and the police has to be made morally, if not legally, accountable for it.

 

[davefoc]

The issue is four-fold. One, would the court view your statements as an opinion and two, iis Amanda Knox considered a public or private citizen. Three, can and would Amanda want to prove again in a US court not just that she wasn't convicted of murder but that there is a preponderance of evidence that confirms her innocence. And 4 and probably most important can she convince the court that she is a private citizen..not a public citizen. Look carefully at NY Times v Sullivan. This is the court case that says public citizens must prove in a libel case that not only must public citizens prove that the offender had made libelous statements, but theyear also must prove that they were malicious. That they knew that they were wrong. Tough standards for the plaintiff.

I realize the thread has moved on, but I thought acbytesla did a pretty good job of summarizing why libel suits by Knox are unlikely to scare anybody. There might be some weird exceptions where somebody just makes highly defamatory stuff up without any reasonable basis, but for the most part I think this is one of those rare times where London John is wrong at least with regard to US libel law. I thought this before I got to thinking about the possibility that Knox might be classified as a public person with regard to libel laws, but I think her book and her public comments about wrongful convictions have made it likely that with regard to libel laws she would be viewed as a public person. And this seems like it would make the possibility of a successful libel suit in the vast majority of cases impossible.

 

[Rhea]

Now I could see them arresting Raffaele and Amanda based on their impression that Raffaele's shoes were a match to the bloody shoe prints, but they didn't make that mistake until later.

No, Raffaele was in fact arrested because of the bloody shoe print, they said, as he was not integrated in Amanda's "story". They took his shoes from him during the night of the interrogation and arrest and erroneously considered them a match, even though the shoes tested negative for blood.

 

[Samson]

I have mentioned this before, but there really does seem to be a problem with Italy 'settling' the case before the ECHR rules, because Amanda and her advisers will indeed want the conviction over turned. Yet it is not in the gift of the Republic of Italy to provide this. The executive and the judiciary are separate entities and the executive is bound by legislation, as indeed are the judiciary, which in this case requires an adjudicated violation of Article 6 in order to employ a mechanism to retry or vacate.

The only thing Italy could promise, I believe, via an agreement with the President, is a pardon, which does not go far enough as it does not erase the conviction or sentence.

I have looked for ways in which a friendly settlement might be able to achieve the essential goal. Perhaps someone else has found something I haven't considered.

What if they offer to fix the cable car?

 

[Bill Williams]

It's not quite as you have it - the Bruno court was not bound on the matter - the matter was simply not before it - conviction for calunnia and sentence of 3 years were res judicata. What was before the court were aggravating circumstances and the additional one year sentence, which they did not confirm, an action they had to take having thrown out the murder case.

Ok - the legality I missed.

Still, it will be interesting to see if Bruno makes mention of calunnia (writ large) in his motivations. What would he have said IF if had been before his court? Section 1 of ISC was a defence-unfriendly court, so was predisposed to sign-off on Hellmann's conviction. What would Section 5 have done?

Who knows.