Mike1711 said:
I followed this site from a few weeks before the B/M verdict. Before that researched the case on and off over the years, horrified at what was obviously a miscarriage of justice.
When the first translations of the B/M report started emerging I realized Mach was mistaken in his translation or he was being deliberately mischievous. I stated as much on this blog at the time. It's all there in the archives somewhere.
I pointed out very early on the fact that Section 9 was not what B/M were saying, but merely a synopsis of prior "judicial facts". It's customary for appeal courts to respect the law and work around judicial truths, which can be a weird system to grasp particular if you're from a country which doesn't embed judicial truths as immovable objects.
Machiavelli is a puzzle. I've crossed swords with him many times in this thread in past continuations. He's bested me a few times - but when he is bested he slightly modifies and ushers in formerly unspoken conditions to explain why he could claim to have been formerly "right" even without the conditions.
The contortions he's willing to enter into are incredible. The one which tops the cake is his view of Anna Donnino, the police translator from the night of Nov 5/6 2007. He readily admitted that she acted more than a translator - more than just someone who stayed with the project of ensuring that each side understood the nuance of idiom of each language.
He agreed wholeheartedly with Donnino herself that she was right to act as a **mediator** between two parties who were at an impasse. Mach was quite accepting that Donnino was right to insert herself into the interrogation in her suggestions to Knox that she had simply forgotten, because of trauma, much like Donnino herself had similarly forgotten because of her own trauma on another matter.
Indeed, Mach called her intervention like a diplomat would do.
Every time I've tried to quit this case and move on to something else, I've run into malarky like that which is, frankly, irresistibly intriguing!
Mach's take on the M/B report when all we unilingual-English speakers had were machine translations was similar. When a competent translation came out, it showed Mach was willing to massage the record to suit his agenda.
Bill,
This whole concept of "judicial facts" is a strange law indeed. What surprises me about Italian Law is that Judicial Facts seem beyond the scope of a defendant's appeal.
In South Africa only the State has no right to overturn erroneous facts of finding in lower court rulings. This I think is fair and correct in terms of double jeopardy. Even if new evidence comes to the fore this still does not allow for an appeal by the state.
In Italy it seems erroneous findings of fact remain cast in stone in the event of defendants appeal, as was the case in the AK/RS appeal. The only way around this for a defendant would be, I think, to go to the Constituional Court in Italy. This is the case in South Africa which has human rights embedded in the Constitution.
Similarly so in Italy as I understand things.
It's time for someone to challenge this absurdity of Italian Law in their Constitutional Court and the AK/RS would be a good start. There is a belief in South Africa that Oscar Pistorius may challenge his murder conviction in the Constitutional Court. I don't think he has much chance but he will do anything to delay going back to jail.
My own background is in professional accountability tribunals and policy, which has a different set of assumptions. I acted as a lay-judge in a professional accreditation hearing where the process was supervised by a staff-lawyer, and where the laws of evidence in our jurisdiction applied.
As the head-judge in one, it was my responsibility to write up what amounted to the "reason for judgement" for the case/decision based on preponderance of the evidence. As such, yes, it is limited experience - but I know something about the challenge of taking an already-decided-upon, quasi-judicial decision, and
THEN have to write up the reasons.
The staff lawyer's role was one I very much appreciated because he never once did our job for us - being essentially the triers of fact as well as the arbitrators of process - but he kept us on the straight and narrow; knowing that everything we decided was essentially the subject of appeal in a civil court.
As such it's been fascinating reading through the motivation reports of the various courts. In the AK/RS process alone, there have been 5. Five!
As such the one comment (I wish I remember who said it, because it deserves citation!) which made the most sense to me was something akin to, "All the evidence against AK/RS was judicially generated." This included the evidence which was generated by a faulty investigation and prosecution - eventually accepted as "judicial fact" by one of the courts.
This also includes the DNA evidence, in that early on one of the defence lawyers petitioned that court to have access to Stefanoni's DNA data, the electronic data files etc. Stefanoni offered a compromise to what in most places is standard full disclosure (!) and the court backed Stefanoni, basically telling the defence, "Either call her a liar, or quit asking for full disclosure!"
In a country where calunnia and defamation is thrown around like a football, the defence backed down... and volia, DNA evidence was now a "judicial fact", despite being judicially tainted.
"All the evidence against AK/RS was judicially generated." This includes the original investigators eye-balling the potential climb in through Filomena's window, and instead of testing it simply declared it impossible.
And on and on. Having written reasons for judgement myself which (apparently) survived the urge to have it appealed, all this intrigues me.... apparently with no end!
