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Continuation Part 14: Amanda Knox/Raffaele Sollecito

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I see where you are going, but I can't see why the ISC, regardless of what they say in the motivation, will say that the murder "did not exist". They could say the staged break in "does not exist", as Hellmann did, but not the murder. That would be so outrageous I can't see it happening, even in Italy.

What they could do is to say that it is not clear if it was one or multiple attackers, or they could say they think it was multiple attackers, but those "others" were not Knox or Sollecito. Either way, it seems there are multiple ways to approach it that don't leave room for an exoneration of Guede.

If I were him, I would take what I got and be thankful.

Not that there wasn't a murder - no - the complicity or 'concorso'.

But, yes, none of this matters if the ISC do as you indicate, but to do so means that the whole truth has not emerged. And, more importantly, whilst acquitted, a fudged or errant motivation report on the issue of multiple attackers will leave lingering doubts on the record and therefore publicly and that would be to the detriment of Amanda and Raffaele going forward.

So the ISC could find itself on the horns of a dilemma, it seems to me, if indeed it is balancing these considerations at all. It might surprise us. It might say, the whole case was a barrel of nonsense from the start, concede all the rights violations and state unequivocally that there is no evidence of a staged burglary and that Guede acted alone. It would seem unlikely that they will go that far.

But I am merely suggesting that if there is an opening for Guede to do so, he would be able to attack his verdict with an interesting prospect of success and without himself risking any further penalty. Why wouldn't he try? Wouldn't you?
 
The downside would be his lawyers devoting time and energy - which they could have spent instead on profitable work - on someone without the means to pay them, on an application to the ISC that will inevitably be thrown out. It's called "opportunity cost".......

Maybe there could be an opportunity cost, but lawyers like high profile cases because it's good advertising and Guede's has arguably done very very well for his client and through this work, for himself. Also, I assume as the counsel of record, he would find it quite difficult to remove himself at this point.

Yesterday, he spoke to the press on behalf of Guede, chiding the representatives who publicly reported his conversation with them (does anyone in Italy actually know how to keep their mouths shut from time to time?).

“Those parliamentarians are not allowed to refer anything said by an inmate and I have asked for them to be censured. We are waiting to see the high court’s reasoning.”

http://www.telegraph.co.uk/news/wor...nox-acquitted-of-Meredith-Kercher-murder.html

He seems pretty motivated - and Guede's reported statements sound too sophisticated to have been thought up by him, despite Biscotti's denial of a plan.

There's also the small matter of Guede being entitled to legal aid if he is indigent - someone will always be available to represent him; he would have a case for denial of counsel otherwise.

At least, that's my take on it.
 
I see where you are going, but I can't see why the ISC, regardless of what they say in the motivation, will say that the murder "did not exist". They could say the staged break in "does not exist", as Hellmann did, but not the murder. That would be so outrageous I can't see it happening, even in Italy.

What they could do is to say that it is not clear if it was one or multiple attackers, or they could say they think it was multiple attackers, but those "others" were not Knox or Sollecito. Either way, it seems there are multiple ways to approach it that don't leave room for an exoneration of Guede.

If I were him, I would take what I got and be thankful.

Agreed. I, too, can't see them saying the murder didn't happen or any such thing. I don't see why his accomplices HAD to be the kids. He could have been driven there by Koko with another member of the Albanian drug gang that was helping Rudi raise some money to pay for drugs he had been fronted. This guy was the killer but as a pro left nothing the police ID'ed. Remember they didn't match all the DNA or prints to people. Rudi would never talk because they would kill him.
 
Chiara makes it clear

The argument is: He cannot be tried for a different crime on the same facts. He could only be tried again for the same crime, but that couldn't happen in the scenario we are discussing because the ISC would have said that the crime in question doesn't exist. So there is an irreconcilable contradiction which can only be dealt with by the over turning of his conviction and letting him go.

[...]

Nothing to do with this is particularly clear or pretty. As we all (or most of us) know, what should have happened is that Guede was charged and tried as the sole killer.

At this point, given that there still appears to be confusion about this, I think it's worthwhile to have a translation of (aptly-named Italian lawyer) Chiara's excellent comment on the Mostro di Firenze forum, so without further ado, here is one:

Chiara said:
I keep hearing people on TV and everywhere talking about M[eredith] not having received justice - I agree with Mercuzio's points [here] -- and about somebody being convicted of a conspiracy in which the conspirators haven't been found, so that the solution to this case has been "crippled" -- and I don't know if you've already discussed it; if so, I apologize.

Given that that's not the case, and how fed up I am with all the talk I've been hearing from people in the information business who are or ought to be well informed about the law, but [instead] prefer to try squeezing a bit more out of this case that's already been squeezed to death, I'd like to shed some light on the fundamentals of criminal procedural law without which a non-existent problem might appear to exist: Rudy Guede is legally the only one responsible for the K[ercher] murder, without any conspiracy with anyone whatsover; he was the only one with unquestionable substantive evidence against him and SURE ENOUGH chose the path of a reduction in sentence; the other two, who were SUSPECTED of participating in the murder have been acquitted following three (and more) levels of trial. ERGO the process has demonstrated -- as it is supposed to -- that the charges were partially wrong: there was one killer and it was -- as has been definitively established -- R[udy] G[uede] without any participation by K[nox] and S[ollecito] -- as has been definitively established.

So why does G[uede]'s record include a conviction of "murder in conspiracy"? The answer is obvious: because he was tried (like the other two) and then convicted in a fast-track process of that charge, i.e. the charge written in the "decree of citation at the preliminary hearing" that was served to the three suspects, G[uede], K[nox], and S[ollecito] ("... for the crime p.p. of C.P. Articles 110, 575 etc.". which in legalese means conspiracy (C.P. 110) in voluntary homicide (C.P. 575 + any aggravating circumstances, concurrent crimes, etc)..

At the preliminary hearing, every defendant who has received that decree with that charge arrives for themselves and each one makes the procedural choices that suit them the best: so you have defendant G[uede] who, in view of the evidence against him chooses the fast track; then you have defendant K[nox] who decides to confront the preliminary hearing and thus, in the event of referral to judgement, a trial; and defendant S[ollecito] does the same thing.

So G[uede]'s position gets taken out, which effectively means that a new file gets made, into which is inserted the charge served in the summons to appear at the preliminary hearing, his registry and criminal certificates, and the public minister's file given that he chose to be judged on the state of the record (note: on the other hand, when the GUP sends the record to the trial judge after referral to judgement, they send it empty, with only the decrees served with the charge, the certificates of the accused, any documents such as [the results of] special evidentiary hearings [incidenti probatori]); then they fix a later date for the hearing in which, normally (i.e. in the absence of any investigative initiatives by the judge deemed indispensable for deciding the case), arguments are made for the defendant who chose the fast track and the judge issues the ruling. OK, Mr. G[uede] and corresponding attorneys, you may leave the room, we'll see you at the scheduled hearing date, have a nice day. Now we take up the remaining file, still based on the charge served to the three suspects, i.e. that which concerns defendants K[nox] and S[ollecito] who decided to go through the standard routine. They get referred to judgement and will follow their own path. Best wishes, we won't be seeing you any more here at the GUP.

We will however see defendant G[uede] again before the GUP, at the appropriately scheduled hearing; we argue about his position in the PM's investigation papers, and we convict him, with a discount: R[udy] G[uede] is guilty of the murder of M[eredith] K[ercher]. Bye, and happy sentence-serving.

Before the Corte d'Assise, meanwhile (but more easily afterward), the trial to assess the position of the PRESUMED co-conspirators of R[udy] G[uede] begins. We go through 47 levels of trial and torture all the torturable evidence, and end up with nothing: there wasn't any conspiracy, K[nox] and S[ollecito] don't have anything to do with the crime.

So let's understand, legally, why there's no contradiction in the conviction of R[udy] G[uede]: he was convicted of the murder, for sure. Those who were suspected of also being present and participating have been acquitted, so they weren't there. The legal history of the murder of M[eredith] K[ercher] is therefore closed in a wholly PHYSIOLOGICAL manner: the prosecution had hypothesized the co-culpabilty of three persons; the trials have established the culpability of one and the non-culpability of the other two. BUT since this happened via two different paths by choice of the defendants (long for two, very short for one), this FALSE contradiction has arisen: G[uede] could neither substantively nor legally be convicted of a charge other than the one that was served to him, and nor could a single word be pronounced on the position of the other two defendants: THE DECISION ON THE HYPOTHESIS OF A CONSPIRACY OF MORE THAN ONE PERSON WAS ENTRUSTED TO THE TRIAL OF THE PRESUMED CO-CONSPIRATORS OF THE INDISPUTABLE CULPRIT, AND THE DECISION WAS: NO CONSPIRACY. FROM WHICH IT OBVIOUSLY FOLLOWS: ONLY ONE CULPRIT. If, at this point, the prosecution is really convinced that he had co-conspirators, they can put together an investigation of other presumed co-conspirators.....but something tells me they will pocket the embarrassment of having prosecuted a case based on nothing (personal opinion).
 
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At the sole trial in 2009 of Rudy Guede they quickly identify that all the other DNA-stuff on the bra-clasp was contamination, probably Raffaele Sollecito, but also three other men, the whole thing suggesting contamination. The kicker though was that they DID test the semen stain, and found it to be Rudy's.

If it went down this way, they never would have gone back for the bra clasp.
 
At this point, given that there still appears to be confusion about this, I think it's worthwhile to have a translation of (aptly-named Italian lawyer) Chiara's excellent comment on the Mostro di Firenze forum, so without further ado, here is one:

So it would appear that the "no crime committed" refers solely to the conspiracy part- they were charged with conspiracy to commit murder but there was none. Okay.
 
So it would appear that the "no crime committed" refers solely to the conspiracy part- they were charged with conspiracy to commit murder but there was none. Okay.

There isn't any "no crime committed". The word "conspiracy" is Guede's conviction simply doesn't have the effect people think it does.
 
At this point, given that there still appears to be confusion about this, I think it's worthwhile to have a translation of (aptly-named Italian lawyer) Chiara's excellent comment on the Mostro di Firenze forum, so without further ado, here is one:


And this is exactly the point. And it's precisely why Guede has zero chance of any review of his case. And it's why his lawyers realise just that (and, incidentally, in answer to another question about fees, it's highly unlikely that vexatious appeals - or appeals with no serious grounds - will be granted legal aid; I'm pretty sure they're not in the UK, for example).

As the article points out, Guede was in fact convicted and sentenced in the midst of a larger overall trial process. At the time of his conviction, the prosecution case was still that three of them had jointly participated - and since the other two (Knox and Sollecito) had not yet been tried, the courts convicting Guede had little choice but to convict him on the basis of acting in concert. As we've discussed here many, many times before, the whole issue of the number of participants was not even contested or properly addressed in Guede's trial process anyhow - let alone properly tested.

It is therefore entirely logical - and in my view extremely likely - that the SC will come to the sane judgement that at the time it confirmed Guede's conviction, it necessarily had to affirm the joint-participation angle, otherwise at a single stroke it would have utterly invalidated the trial process against Knox and Sollecito (which had not even started at court of assizes level at that point). It will point out that the final judgement on Knox and Sollecito was that in fact there's no evidence to suggest they participated alongside Guede. It will then justifiably state that the evidence which condemned Guede in his trial is wholly unaffected by whether or not other attackers also participated, and that the evidence is also entirely consistent with a sole attacker.

And by ruling as above, the SC will rationally and correctly sort out this ridiculous saga from a judicial-ruling perspective. Guede will have been correctly and safely convicted as the sole attacker/murderer of Meredith Kercher - which is indeed factually correct. Knox and Sollecito will have been correctly acquitted and found innocent. There will be no remaining contradictions.


Incidentally, it's been almost lost amidst the last couple of weeks' events that the SC also overturned the Nencini court's finding of aggravation in Knox's criminal slander conviction. That's important from the point of view of non-contradiction in judicial rulings, since it means that this criminal slander conviction is no longer tied to any notion that she accused Lumumba while knowing him to be innocent (because she had participated in the murder herself). Of course, the very issue of the criminal slander (unaggravated) conviction is a different matter, and one which I confidently expect the ECHR to (in effect) force Italy to overturn. But it's still important that it no longer stands in contradiction with the acquittals on the murder charges.
 
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There isn't any "no crime committed". The word "conspiracy" is Guede's conviction simply doesn't have the effect people think it does.

I was referring to reports that the ISC had stated the kids weren't guilty because no crime was committed. I certainly don't know the reports were accurate. I think Doug refers to it up-thread
 
At this point, given that there still appears to be confusion about this, I think it's worthwhile to have a translation of (aptly-named Italian lawyer) Chiara's excellent comment on the Mostro di Firenze forum, so without further ado, here is one:

I thought I had seen elsewhere, by a UK lawyer and an Italian judge I think, criticizing the fact that Rudy's trial was split off on a fast track. This post seems to suggest there was nothing exceptional about the process of having two separate trials. So who is right?

Other strange thing, is that Chieffi (IIUC) used the outcome of Guede's fast track trial, to suggest that Hellman's verdict was manifestly illogical, and thus could be annulled. So wouldn't we expect this commenter to be criticizing Chieffi for linking the outcomes of the two trials?

Great poster, but I confess I'm still a bit confused.

I don't believe Rudy is getting away from his murder conviction. Not because I understand the legal intricacies, just because I can't imagine that kind of calamity in reality, actually occurring.

(ETA: Didn't see LJ's post above, which nicely threads the needle. I buy LJ's analysis. I do expect cassation will put an end to all the ancillary trials as well, though I don't know how, I just think they will).
 
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There isn't any "no crime committed". The word "conspiracy" is Guede's conviction simply doesn't have the effect people think it does.


Indeed. The specific charge of "conspiracy" relates specifically (in criminal justice terms) to a joint planning of the crime - i.e. premeditation and joint agreement of what was to happen (or what was likely to happen). That's not what was ever found in this case (even though the prosecution tried to claim it).

For the purposes of this debate, we need to replace the term "in conspiracy with" with the term "in concert with" or just "together with". And as you say, Guede was convicted of the crime of murder, not of any crimes of conspiracy to murder.
 
So why does G[uede]'s record include a conviction of "murder in conspiracy"? The answer is obvious: because he was tried (like the other two) and then convicted in a fast-track process of that charge, i.e. the charge written in the "decree of citation at the preliminary hearing" that was served to the three suspects, G[uede], K[nox], and S[ollecito] ("... for the crime p.p. of C.P. Articles 110, 575 etc.". which in legalese means conspiracy (C.P. 110) in voluntary homicide (C.P. 575 + any aggravating circumstances, concurrent crimes, etc)..
 
I thought I had seen elsewhere, by a UK lawyer and an Italian judge I think, criticizing the fact that Rudy's trial was split off on a fast track. This post seems to suggest there was nothing exceptional about the process of having two separate trials. So who is right?

Other strange thing, is that Chieffi (IIUC) used the outcome of Guede's fast track trial, to suggest that Hellman's verdict was manifestly illogical, and thus could be annulled. So wouldn't we expect this commenter to be criticizing Chieffi for linking the outcomes of the two trials?

Great poster, but I confess I'm still a bit confused.

I don't believe Rudy is getting away from his murder conviction. Not because I understand the legal intricacies, just because I can't imagine that kind of calamity in reality, actually occurring.


In principle, there's nothing unjust or anti-judicial from one defendant in a joint enterprise trial (here, Guede) electing for a different trial process from the other defendants. Here in England & Wales it happens extremely frequently, if one defendant decides to plead guilty prior to trial.

BUT........ where it goes so spectacularly wrong in the Italian system is that the outcome of the "splitter-offer" (i.e. Guede here) is not only made public knowledge in advance of the trial of the remaining defendants, but it also is materially allowed to impact upon the verdicts of the triers of the trials of the remaining defendants.

What could and should have happened in this case would have been that Guede elected for a short track trial, which would have been held in camera (i.e. in a closed court with no reporting). The outcome of the trial would have been kept secret, not only from the public, but also from all judges involved in the Knox/Sollecito trials. Only once the Knox/Sollecito trials had been absolutely concluded (i.e. only after SC affirmation) should the results of Guede's trial process have been made public or made available to the judges trying Knox and Sollecito.
 
So why does G[uede]'s record include a conviction of "murder in conspiracy"? The answer is obvious: because he was tried (like the other two) and then convicted in a fast-track process of that charge, i.e. the charge written in the "decree of citation at the preliminary hearing" that was served to the three suspects, G[uede], K[nox], and S[ollecito] ("... for the crime p.p. of C.P. Articles 110, 575 etc.". which in legalese means conspiracy (C.P. 110) in voluntary homicide (C.P. 575 + any aggravating circumstances, concurrent crimes, etc)..


It's an imprecise translation. It should read "murder in concert". And in law, that is murder. The "in concert" part is narrative information which stands immaterial to the charge.

If I and my gang of three other friends (all of us carrying and using knives) stab a homeless guy to death together one night, and we're all tried and convicted, it could be said that we've been convicted of murder in a gang attack. But the charge upon which each of us will be convicted is murder.


ETA: The "in concert" part might indeed be taken into consideration for sentencing, but not for the verdict. It's an aggravating factor which might potentially result in an increased sentence. But in Guede's case, the prosecutors (strangely.....) did not push for aggravating factors to be taken into account, and they in fact were not taken into account by the sentencing judges. Strange huh? But the result is that Guede doesn't have a leg to stand on regarding the sentencing either. Shame.
 
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I was referring to reports that the ISC had stated the kids weren't guilty because no crime was committed. I certainly don't know the reports were accurate. I think Doug refers to it up-thread

I don't know anything about that. What I have read is reports that the ISC said they "did not commit the crime". But those are unconfirmed at the moment.
 
So why does G[uede]'s record include a conviction of "murder in conspiracy"? The answer is obvious: because he was tried (like the other two) and then convicted in a fast-track process of that charge, i.e. the charge written in the "decree of citation at the preliminary hearing" that was served to the three suspects, G[uede], K[nox], and S[ollecito] ("... for the crime p.p. of C.P. Articles 110, 575 etc.". which in legalese means conspiracy (C.P. 110) in voluntary homicide (C.P. 575 + any aggravating circumstances, concurrent crimes, etc)..
 
I don't know anything about that. What I have read is reports that the ISC said they "did not commit the crime". But those are unconfirmed at the moment.

That's what I meant because I thought you said that the ISC certainly couldn't be saying there was no crime so they were saying there was no conspiracy.
 
That's what I meant because I thought you said that the ISC certainly couldn't be saying there was no crime so they were saying there was no conspiracy.

Agree. The only previous time I remember a verdict of "did not commit the crime" was for the charge of the staged break in (Hellmann said there was no such thing).
 
It's an imprecise translation. It should read "murder in concert". And in law, that is murder. The "in concert" part is narrative information which stands immaterial to the charge.

Well in the good old US there is murder and conspiracy to murder but no charge for in concert to murder. Once again we will find out more when the motivation is produced but it seems clear that if the ISC actually said no crime was committed it would have to refer to the conspiracy to murder and not the murder, which doesn't need translation to know it happened.

Charles Manson was convicted for murder by conspiracy since he wasn't there.

In 1971 he was found guilty of conspiracy to commit the murders of seven people, actress Sharon Tate and four other people at Tate's home, and the next day, a married couple, Leno and Rosemary LaBianca, all carried out by members of the group at his instruction.​

So if Charles were Raf and Rudi was one of the actual murderers and Raf could be found innocent because there was no conspiracy.
 
Text of Dispositivo

I don't know anything about that. What I have read is reports that the ISC said they "did not commit the crime". But those are unconfirmed at the moment.

Good news: I have now, finally, seen the elusive dispositivo.

It reads:

Corte Suprema di Cassazione said:
VISTO L'ART. 620 LETT. A) C.P.P.; ANNULLA LA SENTENZA IMPUGNATA IN ORDINE AL REATO DI CUI AL CAPO B) DELLA RUBRICA PER ESSERE IL REATO ESTINTO PER PRESCRIZIONE; VISTI GLI ART. 620 LETT. L) E 530, COMMA II C.P.P; ESCLUSA L'AGGRAVANTE DI CUI ALL'ART. 61 N.2 C.P. IN RELAZIONE AL DELITTO DI CALUNNIA, ANNULLA SENZA RINVIO LA SENTENZA IMPUGNATA IN ORDINE AI REATI DI CUI AI CAPI A), D), ED E) DELLA RUBRICA PER NON AVERE I RICORRENTI COMMESSO IL FATTO; RIDETERMINA LA PENA INFLITTA ALLA RICORRENTE AMANDA MARIE KNOX PER IL DELITTO DI CALUNNIA IN ANNI TRE DI RECLUSIONE.

That is:

Supreme Court of Cassation said:
PURSUANT TO C.P.P. ARTICLE 620 LETTER A); ANNULS THE RULING UNDER APPEAL WITH RESPECT TO THE CRIME UNDER CHARGE B) OF THE RUBRIC BECAUSE THE CRIME IS EXTINCT BY PRESCRIPTION; PURSUANT TO C.P.P. ARTICLES 620 LETTER L) AND 530, PARAGRAPH II; EXCLUDING THE AGGRAVATING CIRCUMSTANCE UNDER C.P. ARTICLE 61 N.2 IN RELATION TO THE CRIME OF CALUMNY, ANNULS THE RULING UNDER APPEAL WITHOUT REMAND WITH RESPECT TO THE CRIMES UNDER CHARGES A), D), AND E) OF THE RUBRIC BECAUSE THE PETITIONERS DID NOT COMMIT THE ACT; RECALCULATES THE SENTENCE IMPOSED UPON PETITIONER AMANDA MARIE KNOX FOR THE CRIME OF CALUMNY AS THREE YEARS OF CONFINEMENT.

Charge B) is carrying the knife out of Sollecito's house; apparently the statute of limitations on this offense has expired. (I predict the guilters will have a field day with this, emphasizing that it is not a finding of innocence. Lol.)

The other headline (which the guilters will probably have even more of a field day with) is that, yes, indeed the infamous second paragraph of C.P.P. Article 530 was cited, which some will persist in thinking means that the acquittal is less than "full". (This is wrong; non-"full" acquittals have been abolished.)
 
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