Continuation Part 19: Amanda Knox/Raffaele Sollecito

[Machiavelli]

Well I somewhat disagree with your final sentence, but I entirely agree that if any lawyers - in Italy, US or UK thought there was a good case to being civil action against Knox and/or Sollecito, they would be keen to take the work. And as you say, there are plenty who would be prepared to take it on either pro bono or (more likely) on a contingency fee (no-win-no-fee) basis.

So I therefore agree with you that Machiavelli's premise here is fundamentally flawed. Furthermore, his assertion that "lawyers know it's easy to win against Knox" smacks comically of a kid in the schoolyard puffing up his chest and saying "Yeah, I could beat you in a fight any day...... but erm I can't do it right now because something urgent has just come up"

I can demonstrate that your assumptions are wrong about the Italian context even just by showing what the B/M verdict says, if you accept that this element of reality challenges your prejudicial view. Look how you assumed that B/M cannot really say those things, otherwise the press would say, people would do, etc. I suggest you climb down from your theories - no matter how beautifully consistent they look and how dear to you - and check them through an experiment, accepting that they may fall. The most beautiful theory and all common sense intuition can be blown down on falsification test.
You need to accept falsification tests. It's not about ego, it's about telling false from true.
What I find, well, curious ( won't say comical) is that your arguments, about what the text says others arguments about whether a civil action is possible, are based on avoidance of checking reality directly.

 

[Vixen]

I bet if the 11 things Massei found that even gulters deny was posted again, Vixen would also find herself in disagreement with Massei on those eleven issues.

This leads into a primary intrigue in reading about this for as long as one has - how much of the police/prosecution/convicting-judges "case" that the remaining guilters do not believe. It's not just that PIP disbelieve the case-against AK/RS for the past 8 years, it's that even guilters have to "gussy-up" the record from what was either presented or decided at the various courts against them.

That is the real headscratcher. As you observe, Grinder, Vixen is now calling the cops liars.

Hoots!

Of course, in the real world cops step out of line, prosecutors are over-zealous, judges make errors of reasoning: all of this is down to normal human behaviour.

There will always be the judicial version of what happened, yet years later, new info comes to light, or a perspicacious journalist hunts down new facts.

That does not add up to "Italy conspired to railroad the kids".

Sure, my opinions will differ from Massei and even Nencini in places. Hey, I am not a slave to other people's opinions.

 

[acbytesla]

Nowhere in the Bruno-Marasca case is the civil ruling overturned.

They don't have to say it. The law of Italy does that for them.


Thus, the final CSC judgment of acquittal by the Marasca CSC panel can not be appealed by the prosecution or any other party. Revision trials only address convictions considered miscarriages of justice according to certain elements, CPP Art. 630.}

CPP Art. 652
1. The final criminal judgment of acquittal delivered after a trial shall have binding effect, with relation to either the ascertainment that the criminal act did not occur, or the accused did not commit it ... in the civil or administrative trial for restitution and compensation for damages brought by the injured person or in his interest, provided that the injured has joined the proceedings as a civil party or has been given the possibility to join the proceedings , unless the the injured has already brought the action in civil court....
CPP Art. 654 The final criminal judgment of conviction or aquittal delivered after a trial shall have binding effect in the civil or administrative trial on the accused person, the civil party and the person with civil liability for damages who has appeared or intervened in the criminal proceedings. ....

 

[Machiavelli]

Machiavelli is right. Bruno and Marasca do not have the power to trump the ruling of another Supreme Court judge.

Art. 628 cpp states that very clearly: the SC does not have a power to decide again a point that they have already decided.

 

[Vixen]

You don't understand law and the phrasing of Judgements.

Machiavelli is right. Marasca and Bruno DO:

seemingly emphasize they are quite convinced that there are multiple perpetrators.
B/M also emphasizes that Knox falsely accused Lumumba in order to conceal the presence of Guede, not because of psychological factors nor because of coercion, B/M seem to believe that from what they write.

That part of their report is in plain language.

 

[Vixen]

Unless I have a reading comprehension problem, this seems to me that the Kerchers have no options in Italy. Or am I missing something in the text?

The civil issue has not been adjudicated. ISTM Bruno-Marasca left open scope for the Kerchers to sue for wrongful death, even if Amanda and Raff are walking free.

 

[Grinder]

Nowhere in the Bruno-Marasca case is the civil ruling overturned.

counselor Enrico Fabiani Veri, defence attorney for the civil party of the Kercher
family, who asked for the inadmissibility or, subordinately, the rejection of the
appeals and the upholding of the appealed ruling as per written conclusions he filed
together with expenses;
counselor Francesco Maresca, for the same civil party, who concluded by asking
for a declaration of inadmissibility or, in any case, for the rejection of the appeal,
with the conviction of the defendants to pay monetary compensations, as per
written conclusions and expenses.​

Pursuant to Article 620 letter A) Italian Code of Criminal Procedure; annuls the
ruling under appeal with respect to the crime under charge B) of the rubric because
the crime is extinct due to statute of limitations;
pursuant to Articles 620 letter L) and 530, section 2 Italian Code of Criminal
Procedure; excluding the aggravating circumstance under Italian under Article 61 n.
2 Penal Code, in relation to the crime of calumny, annuls the ruling under appeal
without referral with respect to the crimes under charges A), D) and E) of the rubric
because the appellants did not commit the act.
Recalculates the sentence imposed upon appellant Amanda Maria Knox for the
crime of calumny in three years of confinement.
Thus decided 27/03/2015​

As clear as a foggy bog. Apparently the civil parties didn't want the appeal court decision rejected and had standing.

ETA - Vixen do you see where M&B granted what the civil parties were asking for?

 

[Desert Fox]

Machiavelli is right. Bruno and Marasca do not have the power to trump the ruling of another Supreme Court judge.

That makes no sense at all. . . Let us say that in 1999 someone is found guilty of a crime, say rape, based on the witness testimony of the victim. They had biological material but it could not be tested at that time. In 2015, they have the testing technology and they find that the evidence matches to a known serial rapist who has a passing resemblance to the person convicted.

What you are arguing is that actual innocence cannot overturn the original conviction

 

[Vixen]

So then you agree that B/M have not made any proclamation regarding "judicial facts". They merely repeat them, remaining silent (but in obvious contempt regarding these "facts"). If they did align themselves to the lunacy of the lower courts a verdict of innocent would not have been forthcoming.

Bruno and Marasca have confined themselves to the issues sent down by Chiefi, namely, the DNA issue, witness credibility and sundry issues.

Bruno Marasca state clearly that the issue of the verdict of "guilty" of murder is not fixed even if the prior fact-finding merits are.

So, the essential facts found remain the same, save the issues set out, above.

It is on the Nencini issues, the Marasca-Bruno court voided the verdict.

 

[Vixen]

How did I omit it?

LG:
So we’re at the evening of the 5th, then the night between the 5th and the 6th. To us it appears from other points of the investigation, also from the witness [evidence], that on that evening, around 21:30 only Sollecito had been called to the Questura. You, on the contrary, said that they were both made to be questioned/heard together.
EG:
No, I remember having said that they were called together on purpose.
LG:
You, but [sic] to us it appears from the testimony of your colleagues that only Amanda was called, and Raffaele Sollecito insisted on coming.
EG:
I gave direct orders to the investigators to take them. I, look, I remember it very well, because it was the first time that we carried out a sort [sic], of doing two SIT [recaps/summaries] in a simultaneous manner, and I said go get them. I seems to me they were in a pizzeria. I can tell you mathematical certainty. I remember perfectly well having arranged a technical tactic.​

From your favorite source site.

http://themurderofmeredithkercher.com/Edgardo_Giobbi's_Testimony_(English)

OK, fair enough. Clearly, the guys at the questura were not aware of the order, as they only invited Raff.

 

[Grinder]

OK, fair enough. Clearly, the guys at the questura were not aware of the order, as they only invited Raff.

Or there is another alternative...

 

[Vixen]

Aahhhh.So Galileo was wrong. I get it now. "Proven Facts" in the legal sense are not facts. They are simply rulings that may not be overturned.

A legal fact is not the same as a scientific fact. For example, a marriage certificate is a legal document that conveys legal facts and legal rights.

In the real world, a couple living together may or may not be in a closer relationship than the married one.

Now do you see it? If you are married, no judge can determine you are not, unless it has been revoked by the proper court.

So, if Chiefi upheld various facts found by the two lower courts, it is a legal fact, in the same way a marriage certificate is. A judge does not have unfettered powers. Whilst wide-ranging in terms of how they can arrive at a verdict, they are limited in other ways, inasmuch they must follow legal protocol.

To help you understand, a judge's first duty, as a barrister and judge, is to the Court, the Court being an instrument of the State.

 

[Vixen]

The the Chieffi court had no right to overturn Hellmann's decision, by Vixen's view. Out of many things, Chieffi ruled that Hellmann should not have applied any weight to Rudy saying, via Skype, that AK was not involved in the crime. He also ruled that Hellmann improperly arrived at TOD by applying improper weight to ear-witness testimony, therefore the Chieffi court overturned the "fact" as found by Hellmann and ordered it reassessed.

Vixen also believes that the Chieffi court acted illegally. Could it be that the issue might be Vixen's?

You are under a misapprehension. Hellmann was an appeal court judge, second instance. Chief outranks him, as a Supreme Court judge.

Clear now?

 

[Vixen]

The above statement should be treated with skepticism.

There has been a misunderstanding of Italian procedural law by some persons on both sides of the "debate" on the Knox - Sollecito case. Italian procedural law allows the CSC to review appeals on certain grounds or arguments, including whether there has been a failure to gather decisive evidence and whether the grounds of the judgment - the interpretation of the evidence (that is, each "fact") - were lacking, contradictory, or manifestly (that is, obviously) illogical.

The relevant Italian procedural law is CPP Article 606:

1. The appeal to the Court of Cassation may be lodged if it is based on the following arguments:
....
d) decisive evidence is not gathered, when a party has requested its gathering also during the trial evidentiary hearing, exclusively in the cases provided for in Article 495.2;

e) the grounds of the judgment are lacking, contradictory or manifestly illogical, when the defect results from the text of the appealed decision or from other documents of the proceedings specified in the arguments for the appeal to the Court of Cassation.

The rules you quote are to cover the possibility of the evidence being improperly collected or applied. It doesn't change the thrust of the principle of the merits court (first instance) being the key court to establish facts, with the second stage court with back up should this be found lacking at first instance.

A party to a court case would be wise to ensure that all the evidence they want heard is presented at the trial stage, as appeal courts have the power to dismiss late applications.

 

[Vixen]

Questioning Guede as a witness is vastly different from questioning him when he is the accused. My reference was to questioning him in his own trial....which would be lunacy for AK and RS.

It is the principal of the right not to incriminate self. Rudy took that right. The court accepted that Raff and Amanda were hostile witnesses. They were allowed to cross examine all other witnesses except Rudy, because he declined.

You note Raff declined to be cross-examined at all during his trial.

 

[Numbers]

Art. 628 cpp states that very clearly: the SC does not have a power to decide again a point that they have already decided.

This is incorrect in that the Italian Constitution, Italian law, and the European Convention on Human Rights and ECHR case-law are superior to any CSC judgment. One panel of the CSC may correct the illegal or unconstitutional decision of another, as expressed or interpreted in an appeal court judgment, such as that of the Nencini court.

If that were not true, why would a country have a Constitution or Laws, or sign a treaty to respect the final judgments of the European Court of Human Rights?

 

[Vixen]

The the Chieffi court had no right to overturn Hellmann's decision, by Vixen's view. Out of many things, Chieffi ruled that Hellmann should not have applied any weight to Rudy saying, via Skype, that AK was not involved in the crime. He also ruled that Hellmann improperly arrived at TOD by applying improper weight to ear-witness testimony, therefore the Chieffi court overturned the "fact" as found by Hellmann and ordered it reassessed.

Vixen also believes that the Chieffi court acted illegally. Could it be that the issue might be Vixen's?

You are wrong. I have never said Chieffi "had no right to overturn Hellmann's decision". I have never claimed "the Chieffi court acted illegally". Your acknowledgement of my correction would oblige.

As the superior court, Chieffi had every power to overturn Hellman. They acted properly and remitted the case back down (to Nencini).

 

[Bill Williams]

You are wrong. I have never said Chieffi "had no right to overturn Hellmann's decision". I have never claimed "the Chieffi court acted illegally". Your acknowledgement of my correction would oblige.

As the superior court, Chieffi had every power to overturn Hellman. They acted properly and remitted the case back down (to Nencini).

Please follow the thread. I said that by your logic, then Chieffi would have had no right. That you default into saying you've never said those things indicates an inability to follow the argument.

 

[Vixen]

One point of potential confusion should be cleared up - the hearing where all three accused apparently were present may be called the "pre-trial preliminary hearing" to avoid confusion with the "preliminary arrest hearing".

The fast-track trial is based primarily upon the documents and statements from the pretrial preliminary hearing. The Italian procedural law for fast-track (or summary) trial is given in CPP Articles 438 - 444. Here are some relevant excerpts:

CPP Art. 438
1. The accused may request that the decision on the accusation be taken at the preliminary hearing based on the available elements of evidence {but certain other evidence may be gathered at the decision of the judge} ....
2. The request may be submitted, orally or in writing, until the time when {conclusions are formulated by the judge on the pretrial preliminary hearing}....
3. {The accused's intention shall be authenticated by his signature.}
4. The judge shall decide on the request by means of an order whereby he directs a summary trial.

CPP Art. 441
3. The summary trial shall be held in closed sessions; the judge shall order that the trial be held in open court if requested by the accused persons.

So, the summary or fast-track trial is a trial that follows, perhaps immediately, the pretrial preliminary hearing. It may include elements of evidence beyond the pretrial preliminary hearing, but is based primarily on the evidence as presented at the pretrial preliminary hearing. The fast-track trial is normally closed (unless a public trial is requested by the accused), so that only the motivation report is available to the public.

The lack of information on exactly what happened during Guede's fast-track trial is explained if the trial was closed as allowed by CPP Art. 441.

Micheli was the judge for Guede's fast-track trial and for the pretrial preliminary hearing. The motivation report (Micheli court MR) is available:

http://www.amandaknoxcase.com/motivation-reports-appeal-documents/

Technically, there can be any number of 'pre-hearings'. Most usually to determine directions and issues.

 

[acbytesla]

The civil issue has not been adjudicated. ISTM Bruno-Marasca left open scope for the Kerchers to sue for wrongful death, even if Amanda and Raff are walking free.

You'll need to be more specific. Articles 652 and 654 seem to clearly say that you are wrong. The Kercher's lawyer recognized this immediately.