Continuation Part 18: Amanda Knox/Raffaele Sollecito

[Vixen]

After reading this extremely well translated document it is difficult to see any problem with it other than minor and expected issues which I sincerely believe are those lost in translation.
It's a damning report. It tears down the prosecutions case and destroys it.
The only crumb for the doubters to grab at, is Clause 9, which read in the correct context and allowing for difficulties in translation is largely sensible and sane. To grab at anything in Clause 9 to underpin anyone's argument either for or against, without reading the entire document, is dishonest.

Since you are the only one here obsessed with clause 9, you must be addressing yourself.

 

[Vixen]

In other words.
Vixen acbytesla: "INCONCIEVABLE!"
Mike1711: "You keep using that word. I do not think it means what you think it means."

FIFY.

 

[Mike1711]

Stop putting words in my mouth.

Wrong again. I did not put words in your mouth. I said you misunderstood the report.
And you did.

 

[Vixen]

Not true. Read Clause 9 within its correct context.

Take your clause 9, and try reading things in their proper context.

 

[anglolawyer]

What word would you use? "Pontificating"?

If you are referring to what I'm doing, a better word would be 'educating'

 

[acbytesla]

I think I've said on this forum many many times most recently in a discussion with Grinder that in my book there is ZERO difference between a finding of "Not Guilty" and "Innocent"

 

[Numbers]

The law interpretation I gave was from a 2011 book that I cited.

Could you cite when the law was changed and exactly what it now says?

ETA - My searching finds a change in 1989 over twenty years before the book was published. Has there been more recent changes?

"With regard to the final decision, the CCP instead has solely eliminated the acquittal for insufficient evidence, which was inherited from the inquisitional system based on the presumption of guilt. The Code only established that 'the judge shall deliver a judgment of acquittal also in case of insufficient, contradictory or lacking proof that the criminal act occurred, the accused committed it, ....' It was not clear, however, which was the required standard to convict a person and therefore Article 530 was considered one of the least successful provisions of the 1988 reform

"Despite this failure, since the Nineties the Supreme Court has made reference to the beyond-any-reasonable-doubt standard....in a historic decision taken by the Joint Chambers {United Sections} in 2002, the B.A.R.D. standard was declared to be fundamental as standard of proof for conviction....

"In 2006, Law no. 46...changed Article 533, par. 1, by introducing...'the judge shall deliver a judgment of conviction if the accused is proven to be guilty of the alleged offence beyond a reasonable doubt'...."

Source: The Italian Code of Criminal Procedure: Critical essays and English Translation, ed. M. Gialuz, L. Luparia, F. Scarpa; Wolters Kluwer Italia (c) 2014. p.37-38

ETA: So one is either guilty or not guilty under Italian law. There is no "maybe, there is insufficient evidence" in current Italian law. "Insufficient evidence" must be interpreted to mean "not guilty" = innocent under current Italian law.

 

[Vixen]

If you read and understood the report you will understand this:-
Clause 9 is a presentation of the pros and cons of the case from both sides. Clause 9 reflects the arguments raised and how they are dealt with. It contains the trail of events as perceived by the court a quo.
The conclusion of the beliefs of the Marasca Court lies in the verdict...
NOT GUILTY.
In other words after considering the arguments of both sides as summarised in Clause 9 the ISC rejects the arguments of the prosecution in favour of the defence.
Contemplations of fact in Clause 9 are nothing more than legal musings considered by the ISC with reference to the court a quo.
In the end the arguments and pleadings as reflected in Clause 9 are considered. The ISC threw the arguments as presented by the prosecution and adopted by the court a quo (as per Clause 9)out of court and incorporated the defence arguments into their verdict,
which was???

Clause 9 seems to be Big Problem for you. Try reading the whole report, then maybe Big Confusion he go away.

 

[Mike1711]

No, judges do not plead, hence the IRONY of Bruno "pleading" on behalf of the defense, grounds that were never in the pleadings, nor even the appeal, which is, "the defendants' case, in the alternative, is that even if the court finds they were there, this in itself does not prove they were involved".

Hence, as Bruno does state this, they are in elementary legal error.

Clear now?

Bruno does indeed confirm Amanda was there as a legal fact.

Mike1711 "Bangs head on wall and threatens to jump off the roof"...
Uggghhhhhhhhh!

 

[Vixen]

Wrong again. I did not put words in your mouth. I said you misunderstood the report.
And you did.

You did put words in my mouth. You keep ranting on about clause 9, when I haven't even mentioned it.

 

[Vixen]

If you are referring to what I'm doing, a better word would be 'educating'

Irony is lost on some people. But from your witty quip, I see you now get it. Very droll.

 

[Vixen]

I think I've said on this forum many many times most recently in a discussion with Grinder that in my book there is ZERO difference between a finding of "Not Guilty" and "Innocent"

The difference will become apparent in how much compensation your idols get.

 

[carbonjam72]

Many of the police involved in this investigation - including very senior police officers and rank-and-file detectives - behaved in a variety of slipshod, incompetent, improper and neglectful ways. It is absolutely correct that they should be properly held to account for their actions and behaviour in this case. Who know, it might even make those of them who aren't sacked/prosecuted act more appropriately, professionally and honestly in any future investigations in which they might be involved.......

I think this case shines an unwelcome light on Italian police & judiciary. And it is systemic. For every Hellman and Marasca, how many Mignini's and Matteini's, Massei's and Nencini's?

There appears to be an element of lingering corruption, incompetence, and barbaric levels of stupidity that seems endemic to the institutions. It will literally take a new generation, carefully groomed, to erase the old guard.

And the media is absolutely part and parcel of the problem. (No less so in the UK with the tabloid culture of 'monstering').

Maybe with Berlusconi gone from the scene, an Italian awakening might be conceivable. But really, countries and cultures don't turn on a dime.

I'd look for incremental improvement in the standards of judicial reports. Police I'm afraid, are a whole nother kettle of fish. And to some extent, I do think its related to the mafia.

It's been said not to stare at what you hate for too long, lest you come to mirror it. Case in point.

 

[carbonjam72]

Once again, you're wrong. You simply don't have a correct understanding of the report. It is really largely well written, sensible and succinct.
Please ignore Clause 9 unless you read it in its correct context which is as a summary of the arguments of fact from both angles.
Clause 9 cannot be used as an argument for or against the Marasca report. Clause 9 is simply spotlighted as a frame of reference to be considered.
It's the "devils advocate" clause in the document.

Literally.

 

[Grinder]

"With regard to the final decision, the CCP instead has solely eliminated the acquittal for insufficient evidence, which was inherited from the inquisitional system based on the presumption of guilt. The Code only established that 'the judge shall deliver a judgment of acquittal also in case of insufficient, contradictory or lacking proof that the criminal act occurred, the accused committed it, ....' It was not clear, however, which was the required standard to convict a person and therefore Article 530 was considered one of the least successful provisions of the 1988 reform

"Despite this failure, since the Nineties the Supreme Court has made reference to the beyond-any-reasonable-doubt standard....in a historic decision taken by the Joint Chambers {United Sections} in 2002, the B.A.R.D. standard was declared to be fundamental as standard of proof for conviction....

"In 2006, Law no. 46...changed Article 533, par. 1, by introducing...'the judge shall deliver a judgment of conviction if the accused is proven to be guilty of the alleged offence beyond a reasonable doubt'...."

Source: The Italian Code of Criminal Procedure: Critical essays and English Translation, ed. M. Gialuz, L. Luparia, F. Scarpa; Wolters Kluwer Italia (c) 2014. p.37-38

ETA: So one is either guilty or not guilty under Italian law. There is no "maybe, there is insufficient evidence" in current Italian law.

Read the code I provided. There remains a difference between innocent and not guilty.

 

[katy_did]

Nope, I think this is an incorrect interpretation of 530.1 vs 530.2. Since the legislative reforms in Italy, 530.1 can now only be used where the judgement is that there was no crime committed (upon the victim). For example, suppose there was a rape trial where the state argued that Mr A raped Ms B, but Mr A argued that the sex was consensual. If the court agreed with Mr A's defence, then it would find him not guilty under 530.1 since it found that the crime of rape was not in fact committed (by Mr A, or by anyone else) upon Ms B.

In this instance, The court fully finds that Kercher was murdered and sexually violated, that certain things of hers were stolen, and that there was a break-in. But it finds that Knox and Sollecito bear no responsibility for those crimes (while others not before this court committed the crimes). Therefore the only acquittal option is 530.2. (i.e. the crimes under discussion WERE committed, but not by those before this court).

(In former times, 530.1 was effectively equivalent to "not guilty" and 530.2 was effectively equivalent to "not proven". But not any longer. In Italian law and criminal codes now, there is only guilty or not-guilty - and the accompanying presumption that not-guilty = innocent.)

No, 530.1 can be and is used where "the defendant did not commit the crime" as well as because "the crime did not take place" - as it was, of course, in the Hellmann verdict. So 530:1 certainly could have been used in this acquittal, though was perhaps unlikely to be so simply because the decision the court made was already radical enough.

Luca Cheli posted a clear explanation of the difference between 530:1 and 530:2 over at Massimo Prati's blog a while back, here's a quick translation:

In practice, an acquittal is always because "the crime did not take place" or "for not having committed the crime". The difference between the first and second paragraph is that (to put it very simply) acquittal with the first paragraph (usually never specified, only the second is cited) requires that the prosecution framework has absolutely no support, that it is fanciful, while acquittal with the second paragraph implies that the accusations have a certain level of support in the facts (the motivation will say how much), but in any case insufficient (by a little or a lot, again the motivation should make that clear) to reach a conviction which satisfies the condition of beyond any reasonable doubt, required by article 530 c.p.p. in order to convict.

Just to clarify that "usually never specified" here means that paragraph 1 is never mentioned in the verdict - as with Hellmann, in a paragraph 1 acquittal the judge will just announce an acquittal "for not having committed the offence". Whereas with paragraph 2, he or she will announce an acquittal "for not having committed the offence" AND reference paragraph 2, as Marasca did.

 

[Numbers]

Read the code I provided. There remains a difference between innocent and not guilty.

Yes, the words are spelled differently.

Your post does not take into account the presumption of innocence.

 

[Ken Dine]

Let me labour the issue. This is the way it should read (in my humble opinion and I mean that sincerely....
It doesn't matter how strong the suspicion of RS in the house (and then lists the suspicions) and even if we (The Marasca Court) can accept or agree that these suspicions do exist, it takes a quantum leap to go from suspicion to guilt given the absence of evidence in the murder room itself.

Ah, "labour", another clear sign that we're dealing with a Brit here.

Not that I care that you're (presumably) British, just that over the years it has surprised me how many (thinking) Brits eventually came over to the innocent side, despite the trash the UK press had peddled there – good for you!

Ironically, some of the worst 'Guilters' are located on American soil.

Also, some of the most harassed people arguing for innocence were Italians (e.g., Frank Sfarzo).

Rather comforting that so many people from different nations can unite under one logical conclusion, but it's also rather disturbing how many obvious nut-jobs we have within our respective midst.

 

[katy_did]

Read the code I provided. There remains a difference between innocent and not guilty.

Yep. Because of the formal introduction of "beyond reasonable doubt", both types of acquittal are now considered to be "because the defendant did not commit the offence" (or "because the crime did not take place" etc) and hence are to be treated the same way. However, as you say, the Code does still distinguish between the two kinds of acquittal.

The difference now, as Luca goes on to say in his comment, is that there are no legal consequences for being acquitted under one paragraph rather than the other, so it's much less significant. Previously if you were acquitted under paragraph 2, you could be tried again for the same crime if new evidence came to light, and you could also appeal against the decision to try to get a full acquittal. That's no longer the case.

 

[Mike1711]

Clause 9 seems to be Big Problem for you. Try reading the whole report, then maybe Big Confusion he go away.

No!
Clause 9 is the clause around which the whole case turns. The ISC contemplates the arguments (those parts you want to make into "facts") and concludes from the arguments....
that the verdict is overturned....and a verdict of "not guilty" is reinstated...
....which in effect means that all the arguments in Clause 9 which favour the prosecution are considered to be.....
RUBBISH!!!
Clause 9 should be quoted within the context of the final verdict which is that the prosecution's evidence as per Clause 9 was was repeated, enlarged upon, contemplated, considered, debated but ultimately dismissed by the ISC as a flawed argument containing a case based largely on suspicion (and maybe at times valid suspicion or even great suspicion) but also contaminated by conjecture, assumptions, inaccuracies, negligences, lies.....but ultimately it was DISMISSED.
To read Clause 9 outside of its context is to read distortion into a well written report reflecting a resounding rejection of guilty and a replacement of a NOT GUILTY verdict.
Those pondering a of the ISC regarding where, who, when and how are simply legal meanderings the conclusion of which is a resounding "not guilty".