Continuation Part 20: Amanda Knox/Raffaele Sollecito

[Grinder]

1. Italy is a member State of the Council of Europe and thus a signatory to the European Convention of Human Rights. Italy is thus obligated to follow the Convention and the ECHR case-law by treaty; the treaty is superior to all Italian law. Whether or not the Italian police, prosecutors, and courts actually follow the domestic Italian law or the Convention in each case is, of course, another issue.

The issue we have been discussing has nothing to do with the above. There is a distinct difference between 1 & 2 that the Italian people clearly understand. Not one example has been brought forward substantiating the contention there is no difference. Bongiorno mentions the law by para. Cheli points out the difference. The courts specify the para. The lawyer that wrote the book you use recognizes the law and the different paras and thinks they should changed...because they have a meaning he thinks should not be there.

So you are quite mistaken to ignore or claim that a case in Italy is not about the ECHR. As of 29 Feb 2016, there were 7550 applications alleging violations of the Convention pending before the ECHR; only Turkey, Russia, and Ukraine had higher numbers of applications pending. (Ukraine has the largest number: 14,900.)

When the verdict was announced how many people in Italy said "oh my god a para 2 what will the ECHR say?" For those that put a lot of value on the wording in Marasca, I would wager while millions read the acquittal being for insufficient evidence only a handful read the MR. The vast majority of Italians were left with a not guilty verdict because guilt couldn't be proven BARD.

2. As I showed in an earlier post, using information from Wikipedia, there are five levels or specification of acquittal in Italy and one level of guilty verdict. All acquittals are equivalent to a "not guilty" verdict. There is a confusion by some of the various paragraphs of CPP Article 530 with the levels of acquittal; the levels are in fact mixed among the paragraphs, for example, 530.1 and 530.2 can both be used for "the accused did not commit the act [crime]".

Not really. 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

Your translation clearly shows a 2 is when insufficient, contradictory or lacking proof and not the accused did not commit the crime.

The implication of the relevant wording of 530.1 is that the judge somehow knows that the accused did not commit the crime (without specifying that evidence was examined), while that of 530.2 is that the judge concludes that the accused did not commit the crime based upon an examination of evidence, and finds that the evidence does not support a finding of guilt, because the evidence is insufficient, contradictory, or lacking in proof.

Wow. If a defendant has an alibi that convinces the court he is entitled to a para 1 acquittal. If the evidence is not sufficient for a BARD conviction (even if the court is sure in their heart they are guilty) they must acquit para 2 as Marasca said.

The law is clear. It is clear that judges and attorneys are aware of the difference. It is clear that a non-lawyer like Cheli was aware of the difference.

Even one of the current posters here now maintaining there is no difference, the law doesn't really exist or some other way of trying to make the difference go away was absolutely convinced after the verdict that it must be a 1.

 

[Grinder]

Question:

What, if anything, does the Italian constitution say about 'discovery' which was, and still is, sorely lacking in the Knox/Sollecito prosecution? Or, is prosecutor Comodi's statement of "we (meaning the prosecution) determine what information the defense needs" a reality?

I seem to recall that it is all left to the judge(s) keeping in mid Mignini is a judge under their system.

 

[Bill Williams]

For those interested, here is Article 111 of the Italian Constitution, showing the language (in clause 2) that disallows a judge or court with "genuine moral conviction of guilt". (I have numbered the clauses.)

As an exercise, one may wish to identify all aspects of this article that the courts violated during the trials of Knox and Sollecito. Some (such as clause 8) but perhaps not all of those violations were pointed out in the Marasca CSC panel motivation report.

https://www.senato.it/documenti/repository/istituzione/costituzione_inglese.pdf

Constitution of the Italian Republic

This volume is published by the Parliamentary Information,
Archives and Publications Office of the Senate Service
for Official Reports and Communication

Art. 111
1) Jurisdiction is implemented through due process regulated by law.
2) All court trials are conducted with adversary proceedings and the parties are entitled to equal conditions before an impartial judge in third party position.

One immediately thinks of the times when Judge Massei wrote in his motivations report that it was hard for him to think that Stefanoni erred, cooked the booked, or was just incompetent:

Now, unless we want to acknowledge some kind of persecutory intention against a specific individual (this eventuality, though without the slightest foundation of any semblance of plausibility, was in fact expressly
denied by the same defenders during the course of the [legal] debate), we cannot see how or why, based on logic alone and for the sake of argument, Dr. Stefanoni would have had to cook the data supplied by the machine in order to identify incriminating evidence against any of these defendants, attributing this or that biological specimen to one or the other suspect, or else – as happened with many specimens collected – not attributing them to anybody at all.​

Isn't the prosecution supposed to bring in positive, demonstrable evidence - rather than creating a situation where the judge even has to defend the witness?

It's not exactly an independent, impartial judge who does that.

 

[Numbers]

Question:

What, if anything, does the Italian constitution say about 'discovery' which was, and still is, sorely lacking in the Knox/Sollecito prosecution? Or, is prosecutor Comodi's statement of "we (meaning the prosecution) determine what information the defense needs" a reality?

"Discovery" is covered by clauses 2 and 5 of Article 111 of the Italian Constitution: "equal conditions" (clause 2) and "the right to cross-examine ... and to summon and examine persons for the defense ... as well as the right to produce all other evidence in favour of the defense" (clause 5).

In ECHR case-law, what is called "discovery" in the US is included in the concept called "equality of arms". The meaning of "equality of arms" includes the right of the defense to produce any testimony or other information in court that the defense considers relevant, is not obviously irrelevant in the opinion of an impartial judge, and is not precluded by considerations of necessary secrecy. For example, special provisions may be required and allowed to maintain secret the identity of police confidential agents while obtaining their testimony.

The withholding of information such as test conditions and results of testing, including the raw DNA data and results from controls, as was done in the Knox - Sollecito case, is in my opinion a clear violation of the Italian Constitution and ECHR case-law.

ECHR case-law has specifically found that it is the defense, and not the prosecution, who determines the relevance of defense information to be presented in court. The defense is entitled to all prosecution information (with possible exceptions for national security or confidential agent identities). A judge may not arbitrarily rule against a defense request for admission of information.

 

[Numbers]

One immediately thinks of the times when Judge Massei wrote in his motivations report that it was hard for him to think that Stefanoni erred, cooked the booked, or was just incompetent:

​

Isn't the prosecution supposed to bring in positive, demonstrable evidence - rather than creating a situation where the judge even has to defend the witness?

It's not exactly an independent, impartial judge who does that.

The prosecution is, of course, obligated to demonstrate the credibility and reliability of its information.

They failed to do that in the Knox - Sollecito case, instead relying on "moral" prejudices of the judges. That is why there was such a concerted effort by the prosecution to present Knox as an "immoral" person, and in particular, with respect to her sexuality.

 

[Numbers]

I seem to recall that it is all left to the judge(s) keeping in mid Mignini is a judge under their system.

Another false or erroneous statement.

Mignini as a public prosecutor is legally a member of the judiciary in Italy. Neither he nor any other prosecutor was a judge of the trial and the prosecutors are not entitled to allow or reject evidence requested by the defense.

Trial judges - who are to be impartial third parties - decide whether or not to admit evidence upon the request of a party (the defense or the prosecution).

The specific procedural law is CPP Article 190, Right to evidence.

1. Evidence shall be admitted upon request of a party. The judge shall decide without delay by issuing an order, excluding any evidence that is not allowed by law or manifestly superfluous or irrelevant.
2. The cases in which evidence shall be admitted ex officio are set by law.
3. Decisions concerning the admission of evidence may be revoked after hearing the parties.

 

[Grinder]

Another false or erroneous statement.

Mignini as a public prosecutor is legally a member of the judiciary in Italy. Neither he nor any other prosecutor was a judge of the trial and the prosecutors are not entitled to allow or reject evidence requested by the defense.

Did I say he was a judge in the trial? No. The point is that both the judges and the public prosecutors are part of the judiciary which leads to a conflict of interest.

Trial judges - who are to be impartial third parties - decide whether or not to admit evidence upon the request of a party (the defense or the prosecution).

Yes that's what I said.

The specific procedural law is CPP Article 190, Right to evidence.

1. Evidence shall be admitted upon request of a party. The judge shall decide without delay by issuing an order, excluding any evidence that is not allowed by law or manifestly superfluous or irrelevant.
2. The cases in which evidence shall be admitted ex officio are set by law.
3. Decisions concerning the admission of evidence may be revoked after hearing the parties.

Why don't you requote ECHR or Thai law?

 

[Numbers]

Did I say he was a judge in the trial? No. The point is that both the judges and the public prosecutors are part of the judiciary which leads to a conflict of interest.



Yes that's what I said.



Why don't you requote ECHR or Thai law?

Sorry to disappoint you, but I know nothing about Thai law.

Why do you feel it could be relevant in this situation?

As for ECHR case-law regarding discovery aka equality of arms, I provided some information about that in an earlier post - perhaps you missed it. It's post 3884 in this continuation. The Italian law, CPP Article 190, seems consistent with ECHR case-law. Of course, that doesn't mean that the Italian courts follow their own laws or the ECHR case-law in every case. They certainly failed to do so in the Knox - Sollecito case in the Massei and Nencini courts, and even on some points in the Hellmann court.

 

[LondonJohn]

Holy cow.

1) 530 is irrelevant and arcane under the current Italian constitution.

2) However, judges are still obliged to quote which section of 530 they have used in an acquittal, since the code still requires it (even though it's now moot and irrelevant in law)

3) There's a difference in the way that 530.1 and 530.2 are used by acquitting judges, even though there's no difference in law in the acquittals.

4) 530.1 is used by acquitting judges where a) the court can be certain of the innocence of the defendant(s) (e.g. the defendant has a cast-iron alibi), or b) the court deems that no crime was ever committed (e.g. a rape trial where the court rules that it was consensual sex and thus no crime was committed).

5) 530.2 is used in all other acquittals. ALL OTHER ACQUITTALS. Whether there's zero evidence of guilt, or whether there's plenty of evidence of guilt but just not enough to prove guilt BARD.


In the circumstances of this case, and in the way that 530.1 and 530.2 is applied by acquitting courts, there was (and is) no way whatsoever that Knox or Sollecito could EVER have been acquitted under 530.1 That's because a) clearly a crime (murder) was committed, and b) neither Knox nor Sollecito can prove that they did not commit the crime (but then nor can probably thousands of other people/couples in and around Perugia that night who also don't have an independently-verifiable cast-iron alibi).

Luca Cheli, while he is an intelligent and thoughtful man who is knowledgeable about this case, IS NOT AN ITALIAN LAWYER, NOR A SCHOLAR OF ITALIAN LAW, NOR AN EXPERT IN ITALIAN LAW. It's therefore ludicrous to continue to appeal to his authority in this matter, just as it would be ludicrous to believe that any reasonably intelligent Spaniard must necessarily be an authority on the Spanish criminal codes.

 

[Planigale]

Not so. They have stood trial and were found to be guilty by two courts and "strongly suspicious" by the final supreme court, who did not find them innocent at all. They did not cite 530 para 1 "did not commit the crime", they cited 530 para 2, insufficient evidence.

It is what it is, not what you want it to be.

You are wrong.

Italian constitution art 27.

"A defendant shall be considered not guilty until a final sentence has been passed."

So Knox and Sollecito remained not guilty even after Massei trial had returned a guilty verdict. Knox and Sollecito were detained preventively pending confirmation of the verdict because of concerns they would flee. This guilty verdict was set aside by the Hellman appeal court who returned a verdict of not guilty ('for not having committed the act'). Sollecito and Knox were freed. Cassation then failed to confirm the verdict (except for confirming the conviction for callunia), and returned the case to appeal level to reconsider the verdict in light of further testing of the knife. Sollecito and Knox remained free as pending confirmation of a guilty verdict they remained legally not guilty. Nencini returned a verdict of guilt. Sollecito and Knox remained free as pending confirmation of the verdict they remained legally not guilty. The guilty verdict was not confirmed by cassation, Nencini was set aside. Constitutionally Sollecito and Knox (excepting the callunia verdict) are and legally were at all times not guilty.

 

[Grinder]

Luca Cheli, while he is an intelligent and thoughtful man who is knowledgeable about this case, IS NOT AN ITALIAN LAWYER, NOR A SCHOLAR OF ITALIAN LAW, NOR AN EXPERT IN ITALIAN LAW. It's therefore ludicrous to continue to appeal to his authority in this matter, just as it would be ludicrous to believe that any reasonably intelligent Spaniard must necessarily be an authority on the Spanish criminal codes.

And of course your credentials are so much better than his

Where's that proper translation or do you accept the one Numbers supplied?

Btw, you do recall being sure it was a one after the verdict?

It is the law used by lawyers, judges and informed members of the public.

YOU ARE NOT AN ITALIAN, AFAIK YOU ARE NOT A LAWYER ANYWHERE.

IT IS NOT AN APPEAL TO AUTHORITY BUT THE BEST EXAMPLE OF A PIP ITALIAN"S TAKE ON THE VERDICT AND THE DIFFERENCE IN PARAS. YOU PROVIDE NOTHING TO COUNTER HIM OTHER THAN PUFFERY.

The law is clearly still on the books and the paras have different meanings. Marasca makes that clear.

 

[Grinder]

In the circumstances of this case, and in the way that 530.1 and 530.2 is applied by acquitting courts, there was (and is) no way whatsoever that Knox or Sollecito could EVER have been acquitted under 530.1 That's because a) clearly a crime (murder) was committed, and b) neither Knox nor Sollecito can prove that they did not commit the crime (but then nor can probably thousands of other people/couples in and around Perugia that night who also don't have an independently-verifiable cast-iron alibi).

But in April you were sure it was a paragraph one acquittal.

 

[LondonJohn]

But in April you were sure it was a paragraph one acquittal.

No I wasn't "sure". And I was wrong. Jesus Christ.

 

[LondonJohn]

And of course your credentials are so much better than his

Hahaha as soon as I posted, I just KNEW you'd come back with exactly this crap

As you ought to very well know, that wasn't my point at all. My point was that you continually espouse the view that Cheli must somehow automatically be more cognisant and knowledgeable about the Italian Codes of Criminal procedure than the likes of me or Numbers. Your constant prevailing methodology is to do nothing more than say "Cheli says xyz, and his view trumps yours". And you have appeared to have arrived at this view by the dreadfully poor "reasoning" that Cheli is Italian.

Numbers and I are correct on this matter - and we have shown time and time again just how and why we are correct. You and Cheli are wrong on this matter. Cheli's Italian nationality doesn't give him any divine reason to be correct on this matter, and in fact he's incorrect on it.

 

[Grinder]

From March 30th - London John

But at the same time, the overwhelmingly prevailing opinion was that if this was a "reasonable doubt" case in the eyes of the SC, then the case would without doubt have been sent back down to the appeal court level for (yet) another trial. The fact that this didn't happen, and that the SC totally acquitted, would seem to strongly support a belief that the SC ruled that there was entirely no case to answer. In other words, a "Paragraph 1" acquittal. I wouldn't be at all surprised if the media were reporting Maresca's "creative" interpretation of the ruling, rather than anything explicitly issued by the SC itself.

Incidentally, don't these SC rulings only consist, at this stage, of extremely curt and brief verdicts, with little or no supporting explanation? If so, then surely the SC wouldn't even have gone into this much detail yet over exactly what sort of acquittal it was etc.

April 9th London John
As you say, the Hellmann acquittals were particularly noteworthy for their 530.1 nature. I suspect that this might even have played a part in the SC annulling Hellmann and sending the case back for another appeal trial. It's clear that Hellmann thought there was no way that Knox and Sollecito could have participated in the murder - and while he was correct to think so, it might have been too audacious of him to use 530.1 in his acquittals. I wonder if Hellmann also knows that 530.2 is still widely viewed as a "not proven" style of verdict, even though it's now not that at all, and that he wanted to make a bold statement by using 530.1

Hellmann used 530.1 hmmmm.

Here's the verdict:

FOR THESE REASONS [P.Q.M.]

The Corte di Assise di Appello of Perugia,

pursuant to C.P.P. Article 605 ,

in partial modification of the ruling announced on the date of December 4-5, 2009 by the Perugia Corte di Assise of first level in the matter of Amanda Marie Knox and Raffaele Sollecito, appealed by them and [also] incidentally by the Prosecutor of the Republic of Perugia,

DECLARES

Amanda Marie Knox guilty of the crime under Charge F, without the aggravating circumstance of C.P. Article 61 no. 2, and with mitigating circumstances equivalent to the aggravating circumstance under C.P. Article 368; and sentences her to three years of confinement; confirming, with regard to this charge only, the civil sanctions of the ruling under appeal, sentencing Amanda Marie Knox to the payment of court costs and attorney’s fees incurred at the present level [of appeal] by Patrick Diya Lumumba, in the total amount of 22,170 euros for rights and fees in addition to the reimbursement of general expenses and accessories of law;

ACQUITS

both of the defendants of the crimes attributed to them under Charges A,B,C, and D for not having committed the act, and of the crime under Charge E because the act did not take place; rejecting the request made against them by civil party Aldalia Tattanelli;

ORDERS

the immediate release of Amanda Marie Knox and Raffaele Sollecito if not detained for other cause;

[and] indicates the term of ninety days for the submission of the motivation.

Perugia, October 3, 2011

I can't find where Hellmann used 530 at all in the verdict.

 

[Grinder]

Numbers and I are correct on this matter - and we have shown time and time again just how and why we are correct. You and Cheli are wrong on this matter. Cheli's Italian nationality doesn't give him any divine reason to be correct on this matter, and in fact he's incorrect on it.

You and Numbers have not shown that 530 isn't the law. Numbers' translation makes even clearer that a para is a higher level acquittal. You have puffed about adversarial versus inquisitorial systems and how the law is just an oversight - but it is the law and is used by the Italian legal system. Bongiorno specifically asked for a para 1 as I quoted above. The defense lawyers hoped for a para 1 when the verdict came in. Marasca said it was a 2 and people here doubted him.

Cheli the well-educated Italian that wrote many FOA legal analysis should be dismissed because you say so. What a joke.

 

[Vixen]

1. Italy is a member State of the Council of Europe and thus a signatory to the European Convention of Human Rights. Italy is thus obligated to follow the Convention and the ECHR case-law by treaty; the treaty is superior to all Italian law. Whether or not the Italian police, prosecutors, and courts actually follow the domestic Italian law or the Convention in each case is, of course, another issue.

So you are quite mistaken to ignore or claim that a case in Italy is not about the ECHR. As of 29 Feb 2016, there were 7550 applications alleging violations of the Convention pending before the ECHR; only Turkey, Russia, and Ukraine had higher numbers of applications pending. (Ukraine has the largest number: 14,900.)

2. As I showed in an earlier post, using information from Wikipedia, there are five levels or specification of acquittal in Italy and one level of guilty verdict. All acquittals are equivalent to a "not guilty" verdict. There is a confusion by some of the various paragraphs of CPP Article 530 with the levels of acquittal; the levels are in fact mixed among the paragraphs, for example, 530.1 and 530.2 can both be used for "the accused did not commit the act [crime]".

The implication of the relevant wording of 530.1 is that the judge somehow knows that the accused did not commit the crime (without specifying that evidence was examined), while that of 530.2 is that the judge concludes that the accused did not commit the crime based upon an examination of evidence, and finds that the evidence does not support a finding of guilt, because the evidence is insufficient, contradictory, or lacking in proof.

There is no Italian verdict of "approximately not guilty" or "approximately guilty".

Here is a repeat of that information on Italian verdicts (originally posted 3 March 2016, post 3765):

1. Guilty (colpevole)

2. Not guilty (non colpevole)

2.1 Acquittal (assoluzione)
2.1.1 The act did not take place (there was no crime committed) - Perché il fatto non sussiste
2.1.2 The accused did not commit the act [crime] - Perché l'imputato non lo ha commesso
2.1.3 The action was not a crime, because the accused is excused (for example, self-defense) - Perché il fatto non costituisce reato
2.1.4 The action is no longer considered a crime under the law - Perché il fatto non è previsto dalla Legge come reato
2.1.5 The person is not criminally responsible, because of a mental condition [insanity] - Perché l'imputato non è punibile

2.2 Other dismissal (Non doversi procedere); such a dismissal may be because, for example: there has been an amnesty, the case has become time-barred under the statute of limitations, or the proper criminal complaint was not filed

Source: https://en.wikipedia.org/wiki/Italian_Code_of_Criminal_Procedure

Wiki is not a good source in this case because the above doesn't even mention "insufficient evidence".

If you are going to use wiki or google translate, you need to be discerning as to their accuracy. However, I do note, the above says dismissal. You do know what "dismissal" means in the context of law. It means case dismissed, not '"not guilty" never to be tried again'.

 

[Vixen]

"Discovery" is covered by clauses 2 and 5 of Article 111 of the Italian Constitution: "equal conditions" (clause 2) and "the right to cross-examine ... and to summon and examine persons for the defense ... as well as the right to produce all other evidence in favour of the defense" (clause 5).

In ECHR case-law, what is called "discovery" in the US is included in the concept called "equality of arms". The meaning of "equality of arms" includes the right of the defense to produce any testimony or other information in court that the defense considers relevant, is not obviously irrelevant in the opinion of an impartial judge, and is not precluded by considerations of necessary secrecy. For example, special provisions may be required and allowed to maintain secret the identity of police confidential agents while obtaining their testimony.

The withholding of information such as test conditions and results of testing, including the raw DNA data and results from controls, as was done in the Knox - Sollecito case, is in my opinion a clear violation of the Italian Constitution and ECHR case-law.

ECHR case-law has specifically found that it is the defense, and not the prosecution, who determines the relevance of defense information to be presented in court. The defense is entitled to all prosecution information (with possible exceptions for national security or confidential agent identities). A judge may not arbitrarily rule against a defense request for admission of information.

Stefanoni did not "withhold test results". That's a rich accusation to make when only Tatumi and Torricelli bothered to turn up to eyewitness Stefanoni testing.

 

[Vixen]

Deleted.

 

[Vixen]

You are wrong.

Italian constitution art 27.

"A defendant shall be considered not guilty until a final sentence has been passed."

So Knox and Sollecito remained not guilty even after Massei trial had returned a guilty verdict. Knox and Sollecito were detained preventively pending confirmation of the verdict because of concerns they would flee. This guilty verdict was set aside by the Hellman appeal court who returned a verdict of not guilty ('for not having committed the act'). Sollecito and Knox were freed. Cassation then failed to confirm the verdict (except for confirming the conviction for callunia), and returned the case to appeal level to reconsider the verdict in light of further testing of the knife. Sollecito and Knox remained free as pending confirmation of a guilty verdict they remained legally not guilty. Nencini returned a verdict of guilt. Sollecito and Knox remained free as pending confirmation of the verdict they remained legally not guilty. The guilty verdict was not confirmed by cassation, Nencini was set aside. Constitutionally Sollecito and Knox (excepting the callunia verdict) are and legally were at all times not guilty.

...and the final verdict passed is case dismissed because of a lack of evidence.