Continuation Part 20: Amanda Knox/Raffaele Sollecito

[Planigale]

Oh dear. Bill you stated there was no mixed blood. How do you know? Saying the prosecution didn't prove there was mixed blood isn't the same as saying there was no mixed blood. I can see why the para 1 and 2 is so difficult for you. Are you part Italian?

Whilst I do not wish to get into a lover's tiff between you and Bill, it did strike me the one example of "Not guilty / Not innocent" is the case dismissed because of the statute of limitations. This would be a para 1 verdict? Yet more than any other this leaves doubt of innocence. Mignini was being prosecuted for abuse of office yet eventually the case was struck out because of the statute of limitations. In this case however strong the evidence was the case is struck out.

 

[Vixen]

I do not think one can really say that the smudge is more compatible with Sollecito or Guede. I do think that the prosecution measurements are verging on the corrupt, and that a true interpretation of their measurements excludes Sollecito (although since I disagree with their measurements I would not exclude Sollecito).



This is the issue, you can presume as much as you want, but this is not evidence. I can presume the moon is made of green cheese. There is no way one can attribute trace DNA to a source. One can certainly not say whether one drop or one litre was lost. This is simply illogical nonsense. What we can say is that there was no visible blood at the site of the Luminol positive marks, so if there was blood it must have been so little as to be invisible. It had to be so little as to be undetectable by TMB. (We know that TMB will detect blood at a level that DNA is undetectable). There is a simple logical inconsistency; either there is so little blood that it is invisible and undetectable by TMB, or there is so much blood that it would be visible. Stefanoni may be experienced in DNA testing but her conclusions are fantasy.



This demonstrates Steffanoni's lack of forensic experience. The towels should have been packaged in paper; allowed to dry preventing mould growth. Certainly they had not turned mouldy in the few hours between the murder and the discovery of the crime. But this is not primarily Steffanoni's fault. She was not head of the department, there should have been proper SOP in place on packaging evidence.

How do you know they weren't damp and mildewed already?

 

[Vixen]

Deleted.

 

[Vixen]

Whilst I do not wish to get into a lover's tiff between you and Bill, it did strike me the one example of "Not guilty / Not innocent" is the case dismissed because of the statute of limitations. This would be a para 1 verdict? Yet more than any other this leaves doubt of innocence. Mignini was being prosecuted for abuse of office yet eventually the case was struck out because of the statute of limitations. In this case however strong the evidence was the case is struck out.

In a case where the statute of limitations has run out, there wouldn't be a verdict, or even a trial. The case would just be dismissed. A hearing might be convened to say so, which no-one need turn up at.

 

[Planigale]

Not to be too picky, but we don't know whether there were no proper SOPs in place or whether there were proper SOPs in place but Stefanoni chose not to follow them (or was not aware of them, for example, because she had not been properly trained in scene-of-crime forensic collection procedure).

It seems really odd that the Italian police sent the crime lab technician, Stefanoni, to collect evidence from the crime scene. Usually such collection is done by specially trained police in the US or UK. The lab people stay in the lab awaiting the specimens. (Except in TV programs and crime novels, where the lab people even get to be detectives - "CSI", "Bones" and Kathy Reichs' books.)

OK I accept you are correct.

 

[Bill Williams]

...but there were goblins.

Is this one of those them that "in the context of the criminal case", thingies?

 

[Planigale]

How do you know they weren't damp and mildewed already?

I guess they were damp. They were not obviously mouldy on imaging. They should have been tested promptly and appropriately preserved. One competency of a forensic scientist is knowing how to preserve evidence. Steffanoni failed in the case of the towels and the bra hook, once might have been bad luck but twice looks like...

 

[Planigale]

In a case where the statute of limitations has run out, there wouldn't be a verdict, or even a trial. The case would just be dismissed. A hearing might be convened to say so, which no-one need turn up at.

Again you are wrong. In fact the offences of theft against Knox were struck out by cassation as the statute of limitations had been exceeded. This seems to happen often in Italy the system is so slow that by the time the case gets through the process and gets to cassation it is dismissed as beyond limitation. This will be under para 1 the crime does not exist as it is now beyond the statute of limitations.

 

[Vixen]

I guess they were damp. They were not obviously mouldy on imaging. They should have been tested promptly and appropriately preserved. One competency of a forensic scientist is knowing how to preserve evidence. Steffanoni failed in the case of the towels and the bra hook, once might have been bad luck but twice looks like...

I don't think it is fair for you to target Stefanoni. She and her team wanted to carry on their first forensic stint. Mignini ordered them to finish up. With over 500 samples of evidence, Stefanoni realised the bra clasp was missing and this was because it was under the body and they were shoo-ed out to make way for Lalli.

Stefanoni had to make an application to Mignini and justify it, as to why she needed to return.

It's unkind to assume everything is done in malice. Nine times out of ten, it is human error and has nothing to do with competence. Everybody is allowed to make a mistake.

 

[Vixen]

Again you are wrong. In fact the offences of theft against Knox were struck out by cassation as the statute of limitations had been exceeded. This seems to happen often in Italy the system is so slow that by the time the case gets through the process and gets to cassation it is dismissed as beyond limitation. This will be under para 1 the crime does not exist as it is now beyond the statute of limitations.

No, it was already struck out by Massei, and Nencini upheld it. There was no appeal in this matter. The Fifth Chamber merely summed up the final legal position of the original charges.

 

[Numbers]

Whilst I do not wish to get into a lover's tiff between you and Bill, it did strike me the one example of "Not guilty / Not innocent" is the case dismissed because of the statute of limitations. This would be a para 1 verdict? Yet more than any other this leaves doubt of innocence. Mignini was being prosecuted for abuse of office yet eventually the case was struck out because of the statute of limitations. In this case however strong the evidence was the case is struck out.

Planigale, you raise a good point about what procedural law applies to the statute of limitations dismissals. The Italian legal language as translated in Gialuz uses "exinguishment" to mean "time-barred by statute of limitations".

The CPP has Article 531 Declaration of extinguishment of the offense

1. Without prejudice to the provision of Article 129.2, if the offense is extinguished, the judge shall deliver a judgment of non-prosecution, mentioning the cause in the operative part.
2. The judge shall follow the same procedure if there are doubts regarding the cause for extinguishing an offense.

However, the Marasca CSC panel in their verdict properly cited CPP Article 620 (A) to annul without referral Charge B (carrying a knife) which was time-barred. I posted this article earlier, here is a summary:

CPP Article 620 Annulment without referral

1. ...the CSC shall deliver a judgment of annulment without referral:
(A)...if the offence is extinguished....

One point - some here, such as Vixen, and IIRC Mach, have stated that the CSC are not allowed to use Art. 530. Of course, this is absurd.

What those posters fail to acknowledge is that the CSC used Art. 620 (L) with Art. 530. Article 620 (L) gives the CSC wide lattitude to "take the decisions necessary" which may of course include using Article 530, as it did in this case.

Interestingly, Vixen's literature citation (A. Bull's book) shows how over the years the CSC many times used an "insufficient evidence" acquittal (probably Art. 530). It was not unique to the Knox - Sollecito case.

 

[acbytesla]

I am not going to patronise you by dumbing down.

Not possible. It's unbelievably dumb already.

 

[Numbers]

How do you know they weren't damp and mildewed already?

I guess they were damp. They were not obviously mouldy on imaging. They should have been tested promptly and appropriately preserved. One competency of a forensic scientist is knowing how to preserve evidence. Steffanoni failed in the case of the towels and the bra hook, once might have been bad luck but twice looks like...

The proper forensic collection procedure with a damp specimen is to allow (under mild controlled temperature and low humidity) the specimen to dry and to package it in sterile water-vapor permeable material (may be paper or special plastics) but not in impermeable plastic.

 

[acbytesla]

Delete

 

[Grinder]

Do you have a citation for a post on ISF maintaining that "it really wasn't a law"? Or, if this is from elsewhere, do you have a cite?

I would like to find out who might be stating that an article in the Italian Code of Criminal Procedure is not an Italian procedural law.

Or is this "it really wasn't a law" an exaggeration or satirical statement you are making, which has no basis in reality?

I don't know why this needs to be repeated so very often, but I'll bold it to make it more visible: 530.1 and 530.2 are, in practice, outdated clauses which are meaningless in respect of the final finding of the court (guilt or non-guilt). There are no longer any degrees of acquittal in Italian criminal courts. That section of the code needs to be either rewritten or struck out entirely. But while it's still there, and while judges are required to refer to it in their motivations, the adopted convention appears to be that they employ 530.1 where there is clear-cut innocence on the part of the accused or where it was judged that no crime was ever even committed, and 530.2 for every other type of acquittal on the facts.​

 

[Planigale]

I don't think it is fair for you to target Stefanoni. She and her team wanted to carry on their first forensic stint. Mignini ordered them to finish up. With over 500 samples of evidence, Stefanoni realised the bra clasp was missing and this was because it was under the body and they were shoo-ed out to make way for Lalli.

Stefanoni had to make an application to Mignini and justify it, as to why she needed to return.

It's unkind to assume everything is done in malice. Nine times out of ten, it is human error and has nothing to do with competence. Everybody is allowed to make a mistake.

I think you missed the point it was not the failure to collect it the first time round, but having collected it Steffanoni failed to store it correctly so it became rusted and untestable.

 

[Numbers]

I don't know why this needs to be repeated so very often, but I'll bold it to make it more visible: 530.1 and 530.2 are, in practice, outdated clauses which are meaningless in respect of the final finding of the court (guilt or non-guilt). There are no longer any degrees of acquittal in Italian criminal courts. That section of the code needs to be either rewritten or struck out entirely. But while it's still there, and while judges are required to refer to it in their motivations, the adopted convention appears to be that they employ 530.1 where there is clear-cut innocence on the part of the accused or where it was judged that no crime was ever even committed, and 530.2 for every other type of acquittal on the facts.​

I don't see any words to the effect that "this is not Italian law". There are some value judgments about the law: these are "in practice, outdated clauses".

And in fact, there is a too broad statement "there are no longer degrees of acquittal" but in fact there are five specifications of acquittal, such as "the accused did not commit the crime", "the crime did not occur", "the act is no longer a crime", "the person committing the crime was not responsible due to mental illness", and "because the act was not a crime (e.g., self-defense)".

But there are no degrees of acquittal as "partly guilty" and "totally not guilty" in Italian law. There may never have been such degrees in Italian law, but only perhaps a perception of such degrees.

 

[Numbers]

Here is a comparison of CPP Article 530, paragraphs 1 and 2, to show the five specifications. Below, I have used "I/C/L proof" to indicate the phrase "in case of insufficient, contradictory, or lacking proof". The first line under each Acquittal Specification is from Article 530, paragraph 1, and the second from Article 530, paragraph 2. Also included, as Acquittal Specification 5, for the self-defense type reason - that is, the person is justified or exempt from punishment - the language of Article 530, paragraph 3 is included. This last Acquittal Specification, from paragraph 3, must be listed under Article 530 paragraph 1 in a verdict, according to the wording of paragraph 3; and that applies to the case of doubt (in favor of the accused).

1. Aquittal Specification: The criminal act did not occur
1.1 The criminal act did not occur
1.2 I/C/L proof that the criminal act occurred

2. Acquittal Specification: The accused did not commit the act (crime)
2.1 The accused did not commit it (the criminal act)
2.2 I/C/L proof that the accused committed it (the criminal act)

3. Acquittal Specification: The act is not deemed an offence by law
3.1 The act is not deemed an offence by law
3.2 I/C/L proof that the act is deemed an offence by law

4. Acquittal Specification: The person who committed the act cannot be punished due to a lack of mental capacity
4.1 The act has been committed by a person who cannot be accused or punished for a different reason
4.2 I/C/L proof that the offence was committed by a person with mental capacity

5. Acquittal Specification: The person who committed the act was justified in committing the act or is exempt from punishment
5.1 The underlying causes of the committed act are either a reason for justification or a personal reason for exemption from punishment
5.2 There is doubt [in favor of the accused] on the existence of such reasons.

Are all these Acquittal Specifications legally the same in terms of consequences? Certainly there are some important differences. A person acquitted under the "lack of mental capacity" specification would be subject to confinement in a mental hospital or similar facility, in accordance with Article 530, paragraph 4. And that specification of "lack of mental capacity" is not listed in Article 652 among those acquitted who are permanently immune to civil or administrative damages for compensation of an injured party.

 

[LondonJohn]

Interesting.
The title of the book is: Italian Neofascism: The Strategy of Tension and the Politics of Nonreconciliation

If one looks at page 24, one can see that the author notes the Italian pattern of a first-instance court convicting, an appeal court acquitting, and then the CSC finalizing an acquittal, generally citing "insufficient evidence" (under CPP Art. 530.2[?]), for trials of some individuals (alleged or actual members or supporters of neofascist organizations) for alleged terrorist acts.

While I have only skimmed a few pages (from Vixen's kind cite of the google books cite), I note that the author, Anna Bull, calls the "insufficient evidence" verdicts equivalent to "not proven", states that such verdicts show that the judges doubted the lack of guilt* of the defendants, but indicates that the "insufficient evidence" verdicts have the same legal consequences as "real" not guilty verdicts.

Also noteworthy is that some (many?) of the trials too place before the reforms of 1988 and the "complete" conversion to the adversarial system by adoption of the current BARD standard in CPP Art. 533.1.

*Bull does not seem to subscribe to the "guilty only if guilt proven BARD" concept. This may be because prior to 2006, this standard was not the law in Italy, and the cases she reviews are pre-2006 (generally, from the 1970s, 1980s, with some going into the 1990s).

And I wouldn't be surprised if the courts were obliged to follow the procedures in existence at the time the (alleged) crimes were actually committed, rather than those in existence at the time the cases were tried at the various levels.

And that in turn might also partly explain why there might have been such a clumsy and bungled adoption of the new codes and practices - one can imagine that between 1988 and even the mid 1990s, various Italian courts were still applying the "old" rules in cases where the alleged crime took place prior to 1988. After all, we know very well that it seems to be the norm for the more serious criminal trials in Italy to take many years from start to finish.

(As a corollary indicator to this concept, the recent spate of trials of (mainly public) figures in the UK for alleged sex offences committed as long ago as the 1970s and 1980s has meant that the courts have been obliged to use the laws and sentencing guidelines that were in existence at the time the alleged crimes were committed, rather than those that are in existence at the time of the trials.)

 

[Grinder]

Here is a comparison of CPP Article 530, paragraphs 1 and 2, to show the five specifications. Below, I have used "I/C/L proof" to indicate the phrase "in case of insufficient, contradictory, or lacking proof". The first line under each Acquittal Specification is from Article 530, paragraph 1, and the second from Article 530, paragraph 2. Also included, as Acquittal Specification 5, for the self-defense type reason - that is, the person is justified or exempt from punishment - the language of Article 530, paragraph 3 is included. This last Acquittal Specification, from paragraph 3, must be listed under Article 530 paragraph 1 in a verdict, according to the wording of paragraph 3; and that applies to the case of doubt (in favor of the accused).

1. Aquittal Specification: The criminal act did not occur
1.1 The criminal act did not occur
1.2 I/C/L proof that the criminal act occurred

2. Acquittal Specification: The accused did not commit the act (crime)
2.1 The accused did not commit it (the criminal act)
2.2 I/C/L proof that the accused committed it (the criminal act)

3. Acquittal Specification: The act is not deemed an offence by law
3.1 The act is not deemed an offence by law
3.2 I/C/L proof that the act is deemed an offence by law

4. Acquittal Specification: The person who committed the act cannot be punished due to a lack of mental capacity
4.1 The act has been committed by a person who cannot be accused or punished for a different reason
4.2 I/C/L proof that the offence was committed by a person with mental capacity

5. Acquittal Specification: The person who committed the act was justified in committing the act or is exempt from punishment
5.1 The underlying causes of the committed act are either a reason for justification or a personal reason for exemption from punishment
5.2 There is doubt [in favor of the accused] on the existence of such reasons.

Are all these Acquittal Specifications legally the same in terms of consequences? Certainly there are some important differences. A person acquitted under the "lack of mental capacity" specification would be subject to confinement in a mental hospital or similar facility, in accordance with Article 530, paragraph 4. And that specification of "lack of mental capacity" is not listed in Article 652 among those acquitted who are permanently immune to civil or administrative damages for compensation of an injured party.

CPP Article 530 Judgment of acquittal

1. If the criminal act did not occur, the accused did not commit it, the act is not deemed an offence by law or it has been committed by a person who cannot be accused or punished for a different reason, the judge shall deliver a judgment of acquittal, mentioning the cause in the operative part of the judgment.

2. 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, the act is deemed an offence by law, the offence was committed by a person with mental capacity.

3. The judge shall deliver a judgment of acquittal under paragraph 1 if there is proof that the underlying causes of the committed act are either a reason for justification or a personal reason for exemption from punishment or there is a doubt on the existence of such reasons.

4. By means of the judgment of acquittal, the judge shall apply the security measures, in the cases provided for by law.​

I read that 530.3 is for self defense. 530.4 is for security service people - maybe police or undercover people but it has never been clear to me.

Under two where do you get "the accused did not commit the act" for a .2? The wording is I/C/L the accused committed it.

The fact that under 3 there is clearly a different legal status than a .1 or .2 when for "personal reason" (mental) and even within .3 a different outcome for self defense. Where is the different outcome for mental specified?