Continuation Part 20: Amanda Knox/Raffaele Sollecito

[Numbers]

There is a little guessing an confusion on the point here. The wording "BARD" was added in 2006, but as for jurisprudence this was not a reform of the standard.
The standard remained the same - albeit Hellmann is one who appears to try to make an argument about this - that was the previous acquittal formula "on insuficient proof" that was abolished in 1988, that was just the old wording for "reasonable doubt". Nothing changed in its definition.

Why the words were added in 2006? Many legal scholars expressed the opinion the "change" was merely stylish and futile.
Once could speculate that maybe was the situation of the code, perceived by some as ambiguous after the disappearence of the old formula what prompted some politicians to insert the words "BARD" maybe in order to emphasize that cases that would have the old "insufficient proof" formula should be all conflated under the 530 umbrella, or in practice, in order to forge some kind of modern-looking wording that could work as an expedient to help politicians who hope to get off in corruption and mafia trials.

But the point is that art. 533 has actually little or nothing to do with 530 and its "reform". There is no link between the two.
And srt. 530 already established that all cases specified under it are legally considered acquittals that must be under one of its five formulas. The 530.2 paragraph is *not* an additional formula - this is important to make clear: "reasonable doubt" ("insufficient proof") is *not* a formula, it is instead a condition, like another coordinate, that can be added to the formulas like two coordinates of a point in a plain would tell you the information about its position. An acquittal on "insufficient proof" (530.2) is legally either within the area "not having committed the fact" or of another formula (like "crime was not committed"). This is valid, however, only in Penal law. The positions of 530.1 and 530.2 have very different status as for their effects in civil law.

Some of what you have posted here is true and some is false.

The information about the reform of Article 533.1 in 2006 to conform to the BARD standard and complete the transformation of the Italian inquisitional system to an adversarial system comes from an essay by Professor Mitja Gialuz, Professor of Criminal Procedure at the University of Trieste.

If you believe that you can inform him of any errors in his essay, please contact him. Here is what I believe to be his web page:

http://www.penalecontemporaneo.it/gliautori/82-mitja_gialuz/

He seems to have only about 40 publications on law listed - I didn't try to translate their titles - but I'm sure you'll be able to set him on the right legal path. Of course, who knows, he may be in one of those conspiracies of the Masons or Friends of Amanda so he won't be able to appreciate your legal arguments.

As far as I have been able to tell from my reading of the CPP in English translation, edited by Gialuz, Luparia, and Scarpa, your statement:

The positions of 530.1 and 530.2 have very different status as for their effects in civil law.
is false.

CPP Article 652 provides the binding end to any civil action against all persons finally acquitted under the specification "the accused did not commit the crime" as long as the civil action occurred during the criminal proceedings.

If you maintain your statement is somehow true, please provide the citations from the CPP to prove your point.

 

[bagels]

[The Cassazione's judgemet consists in] verifying whether the court judge has indicated the reasons for his conviction and whether these are plausible: the verification must be carried out in terms of ascertaining whether the judge took into [40] consideration all the relevant information present in the court files

In other words, they look at the evidence

 

[Numbers]

....

You are the wrong one, and I am right. ....

So if any of the nonsense you have put into your post is true we shall see some change relative to the Marasca CSC panel verdict?

Will there be a law suit or some other action?

Will the High Council of the Judiciary or the Minister of Justice discipline Marasca and Bruno?

Will all the Masons be arrested?

Let us know when any of that happens, please.

 

[acbytesla]

Criminal code is not the law. Funny sure seems they can still declare someone innocent. What exactly does effectively moot mean?

Huh? Since when? Am I missing something? Effectively moot seems self explanatory to me.

 

[Mike1711]

In other words, they look at the evidence

Of course they look at evidence. What kind of appeal would it be otherwise?

I think Mach. confuses evidence with facts.

 

[Numbers]

....
Yes they were acquitted but not declared innocent....

You may be coming close to understanding some of the issues.

Acquitted means found LEGALLY NOT GUILTY which means THEY DID NOT COMMIT THE CRIME based upon a LEGAL DECISION.

Innocent is a word you like to beat upon. That is you particular issue. Not necessarily that of anyone else. Acquittals are LEGAL decisions, not some absolute magical assurance that an acquitted person has not committed a crime, but a decision based on human reasoning, the evaluation of evidence, and legal principles.

Note that one dictionary definition of acquit was:

When a person accused of a crime is legally freed by a court generally as a result of LACK of evidence. {http://thelawdictionary.org/acquit/}

That dictionary claims to incorporate Black's law dictionary, which I believe has a good reputation among lawyers

I did a little online research to find out a bit about the editors of my favorite book on the Italian Code of Criminal Procedure.

I found some information that made me think of you, Grinder, and I think it is so relevant I would like to share it.

As you may recall, Luca Luparia, Professor of Criminal Procedure at the University of Milan, is one of the editors of my favorite book.

He has edited a new book of interest to some of us. It is:

Understanding Wrongful Conviction
The Protection Of The Innocent Across Europe And America
A cura di Luparia Luca
— CEDAM — Anno 2015

There's that word!

 

[Bill Williams]

B/M cannot assess evidence, and cannot even see it.
B/M also said a number of things that you don't like to accept, like that it is a proven fact that Knox was at the murder and heard Meredith's scream, that she washed her hands from Meredith's blood, that it is incontrovertible that she is guilty of voluntarily accusing an innocent and that there are multiple murderers and so on.



See above. B/M cannot assess evidence - and what they declared to be certain is not something you like.



Not yet (except for Chieffi, which is valid and definitive, or jurisprudence).
We need to be patient for that.
Nevertheless, I could well point out things that B/M states that are factually false and/or manifestly contrary to the law.

What is remarkable about this post - fresh off of saying, "B/M cannot assess evidence, and cannot even see it," Machiavelli says that B/M, "B/M also said a number of things that you don't like to accept, like that it is a proven fact....."

Which is it?

 

[Planigale]

This is nothing more than a quoting of CPP. It adds nothing to what I said, and doesn't refute anything.



You are the wrong one, and I am right.
The Cassazione does cannot assess trial evidence. Period.
By "trial evidence" I mean the "old" case evidence. A re-assessment by SC of evidence already assessed is absolutely prohibited by jurisprudence. Evidence assessing is *exclusive* power of the courts of merits. The SC has wide powers, but those are powers that extend to the sphere of legitimacy; they never deal with the merits of the case.

It's not me who needs to explain this. Chieffi (p.54-56) itself has a paragraph on the power of the SC, explains it by reporting established jurisprudence:



Let's repeat the part with the limiting rule:

[The Cassazione's judgemet consists in] verifying whether the court judge has indicated the reasons for his conviction and whether these are plausible: the verification must be carried out in terms of ascertaining whether the judge took into [40] consideration all the relevant information present in the court files, thus respecting the principle of completeness; whether the conclusions reached can be said to be consistent with the material received and prove themselves to be founded on inferential criteria and logical deductions (that are) beyond criticism from the perspective of respecting the principles of the non‐contradiction and of the logical consistency of the reasoning. The object of the Supreme Court judge’s scrutiny is therefore the probative reasoning, (and) accordingly, the method used to assess the evidence, digressing in the reappraisal of the circumstantial evidence not being permitted.

The Cassazione verifies the method used to assess the evidence, in terms of consistency with logic and law, not the evidence; the Cassazione Panel is not permitted to assess the evidence.

The Cassazione can obviously verify consistency between the judge's writing and the trial evidence, but this hapens only on those single bits of the trial documents that are cited and submitted by the parties themselves in their recourse to the Supreme Court. The Cassazione does *not* access the trial file. It also cannot make its own assessment or digression on the validity or meaning of the bits of evidence themselves.



No. It is as Chieffi says: not the evidence, but instead only its "analysis" (that s its reporting correctly of it, its using it within a reasoning and explaining the reasons for its use).



This has nothing to do with the point.



§1 of the above only points at the jurisprudence I am referring to. The SC cannot have cognissance of the documentation excapt for those points that are assigned and limited to those documents that are attached in the appeals. There is established jurisprudence on this matter however. The principle is that: the SC does not make "research" into the files, does not find out documentation not addressed by appeals, and does not find facts.
§ 2 refers to issues raised ex officio at different stages or instances that could not have been risen, so it's not what we are talking about.

My understanding of what B/M or M/B ruled (limited by reading translation) is whatever way the evidence was interpreted even if Knox was present etc. there was insufficient evidence for a conviction BARD. They did not re-evaluate the evidence, what they evaluated was the reasoning based on this evidence.

 

[Antony]

The PGP really act as if Hellmann didn't happen. It's actually kind of weird.

Oh the kids were fully acquitted in a year long trial that examined the key evidence and heard all the witnesses? *whistles like nothing happened* How about that M&B reversing Nencini?

Not only that, but they act as though Conti and Vecchiotti had never reported - as did Nencini in January 2014. Now, Hellmann's verdict was annulled in March 2013 on the basis that the CSC disagreed with Hellmans reasoning, but (IIUC) all evidence heard by the Hellmann court remained valid, including the C&V report.

After C&V, the Stefanoni evidence could not, legally, be rehabilitated. Nencini disregarded this - even going against evidence in his own court that Stefanoni's result on the knife could not be considered reliable. So the March 2015 CSC decision - that the only verdict Nencini could reach was one of "not guilty" - was perfectly correct and cannot be criticised.

The PGP see the courts purely as an extension of the prosecution. Any time (Hellmann and Mascara/Bruno) the courts have shown independence and impartiality, they cry "foul!"

 

[Vixen]

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.)

This is not correct as 530.2 was used for Berlusconi 2007.

In any case, a law remains a law until such time it is amended by the legislature.

Sure we have some archaic laws in England & Wales, but they still technically actionable.

 

[Vixen]

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.

It didn't need to be tested twice as all parties were agreed the results were sound.

Fingerprints are not tested twice, either.

 

[Vixen]

Planigale was not talking about the incompetent delay in the collection of the bra clasp (shocking and inept as that was). Rather, she was referring to the incompetent and entirely improper way in which not-a-real-doctor Stefanoni stored the now-recovered-and-tested bra clasp in a sealed plastic vial immersed in a liquid buffer solution. Which caused it to rust and become entirely useless for any further examination.

This is a concrete and blatant exhibition of Stefanoni's serious shortcomings and failures as a forensic lab scientist working on crime exhibits. It is a routine and important part of such individuals' jobs to ensure that all items they are given to examine are subsequently stored properly and appropriately, such that they will be preserved in the optimum condition - at least until the end of any trial process in which they may be relevant, and usually well beyond that point too.

And there are two other examples that immediately spring to mind in this area also. Firstly - as Planigale also pointed out - there's no doubt (photographic evidence) that the blood-soaked towels were viable potential sources of evidence at the time they were collected from the crime scene. It's also manifestly true that only Stefanoni can have caused them to rot and decay to the point where they became useless for analysis - if those towels had been collected the day after the murder (or even two days after), and then carefully dried out in sterile conditions, they would have effectively lasted indefinitely for examination purposes (notwithstanding the ludicrously incorrect claim that dried blood quickly becomes useless for any analytical purposes.....). The towels could in fact have been significantly helpful in this case - either to the prosecution or the defence - had Stefanoni treated them properly. But now we'll never now, thanks to Stefanoni's incompetence (coupled perhaps, in this case, with the incompetence of others).

And we must not also forget the comical (if it hadn't been so shocking and potentially serious) sight - captured on video - of Stefanoni wrapping a mop that was going to be taken for analysis in wrapping paper that was found within the girls' cottage! It's hard to know how to express just how fundamental a breach of standard practices that was. It could have had serious ramifications.

So yep, Stefanoni was serially incompetent at even a basic operating level in the investigation into the Kercher murder. Many of her errors would embarrass a 1st year forensic science student.

Nonsense. You are making a lot of unsubstantiated assumptions out of an irrational hatred of the prosecution.

 

[Vixen]

This is pretty much exactly my own interpretation and opinion. And I strongly suspect that (as per the failings of the Massei court in particular) various courts and judges in Italy - and perhaps a certain section of the Italian population themselves (who also sit on judicial panels) - have certain inbuilt conceptual difficulties in adapting to a different set of standards in the application of criminal justice.

And, as you suggest, I think that there's still a large overhang in the system (and again, perhaps also in Italian public perception) of "if you're charged and tried, then you'd better be able to prove you didn't do it, otherwise you're going down" - a form of the "no smoke without fire" mantra.

LOL I rather think it is you and Numbers who cannot grasp the difference between 530.1 and 530.2, not the "backward Italians". Or should that read "will not". LMAO

 

[Vixen]

Erm...... which part of this says (or even implies) that "it really wasn't a law"?

What the above (which I wrote) states is that 530.1 and 530.2 clearly ARE part of the law (but, once again, the criminal code is not, strictly speaking, the law......), and that acquitting judges are still required in law to state which paragraph of 530 has been employed. But that 530 is now effectively moot in practice, since one can only be pronounced "guilty" or "not guilty", and that it ought therefore to be either extensively rewritten or scrapped.

Keep those strawmen coming though. It's quite entertaining

This really is unadulterated nonsense. The law is the law is the law. Full stop.

Not knowing how to interpret it, or bending it, as the Fifth Chambers did, doesn't make it less so.

 

[Vixen]

Apparently you are wrong.

...because...?

 

[Vixen]

M/B here said that the evidence before Nencini should never have led to a conviction. M/B was clear that judges cannot substitute their own sense of logic for a lack of evidence, such lack which should not lead to a conviction.

On the matter highlighted - can you provide a link to any court or other official body which has ruled - or even proposed, that the M/B ruling is illegal and fraudulent. Thanks.

There was no evidence presented that contamination had taken place or that the investigation was fatally flawed,or even flawed to a material degree. Where it might have been flawed, for example, the mouldy towels, it was to the benefit of the accused. Dozens of expert witnesses testified for five different parties. There was a plethora of evidence.

Bruno-Marasca prattling on about Gallileo, just because he's Italian, when Isaac Newton is more relevant to modern day scientific method, or even Popper, regarding the empirical method, doesn't really cancel out the findings of Massei and Nencini. Their MR and verdict is totally perverse and embarrassing.

 

[Vixen]

I regret if I put too many words in one paragraph of explanation.

Let me walk you through it slowly and gently.

I have numbered your questions/comments (numbers in parentheses) for ease of reference.

(1) Indeed Art. 530.3 is for self-defense. But note that 530.3 begins with the words "The judge shall deliver a judgment of acquittal under paragraph 1" if the specification called out in 530.3 is pertinent.

That means self-defense, or other reason for justification for the act, or even some reasonable doubt favoring the accused that there was such a reason, is cited under Article 530.1. I have no idea why the Italian parliament set up this round-about citation procedure. But there it is.

(2) No offense intended, but I believe you should read 530.4 more carefully. It states "By means of the judgment of acquittal, the judge shall apply the security measures". And "security measures" is not a typo or error. It refers to imprisonment or other detention, including house arrest, throughout the CPP.

Why would there be "security measures" for someone who has been acquitted? I can only believe that this would be for an accused who had been acquitted because of a deficit in mental capacity - that is, insanity or mental illness - and who may pose a continuing danger to himself or others.

There is a provision, CPP Article 286, Precautionary detention in a healthcare centre, that states that a judge may order a person who is subject to precautionary detention but suffers from a mental illness to be held in a prison psychiatric hospital, until such time as the person recovers from the mental illness. I have not found a similar article with specific information for hospitalization of an accused acquitted because of a deficit in mental capacity or mental illness, although there are CPP Article 656 Enforcement of custodial penalties and Article 658 Enforcement of security measures ordered by judgment.

(3) The wording in CPP Article 530.2 is: "The judge shall deliver a judgment of acquittal also in case of insufficient, contradictory or lacking proof that ... the accused committed it [the criminal act]."

The legal (and ordinary) meaning of these words is that since the accused is acquitted, the accused is not guilty. The definition of acquit:

to discharge completely (as from an obligation or accusation) <the court acquitted the prisoner> {www.merriam-webster.com/dictionary/acquit}

Free (someone) from a criminal charge by a verdict of not guilty: she was acquitted on all counts the jury acquitted him of murder {http://www.oxforddictionaries.com/us/definition/american_english/acquit}

To set free, release or discharge as from an obligation, burden or accusation. To absolve one from an obligation or a liability; or to legally certify the innocence of one charged with a crime. {http://legal-dictionary.thefreedictionary.com/acquit}

When a person accused of a crime is legally freed by a court generally as a result of lack of evidence. {http://thelawdictionary.org/acquit/}

So for this part of 530.2, the meaning is clear that the court (judge) has declared, by the acquittal, the person has, in LEGAL terms, not committed the criminal act.

(4) The different outcome for civil and administrative damages for an accused acquitted on the basis of a deficit of mental capacity (mental illness) may be inferred from the fact that acquittal specification is omitted from the list of acquittal specifications in CPP Article 652, while acquittal specifications for the criminal act did not occur, the accused did not commit it, and that the act was carried out to perform a duty or to exercise a legal right are each included.

I am assuming that that last acquittal specification, to perform a duty or to exercise a legal right, includes self-defense.

Cornell has the definitive definition(if that's not a tautology):

Acquittal
Definition

At the end of a criminal trial, a finding by a judge or jury that a defendant is not guilty. An acquittal signifies that a prosecutor failed to prove his or her case beyond a reasonable doubt, not that a defendant is innocent. Thus, a person may be acquitted of a crime but found civilly liable in a civil case regarding that same crime, e.g. O.J. Simpson, because civil cases have a lower burden of proof than criminal cases.

 

[Vixen]

Chieffi disproved this utterly. You have a dysfunctional judicial system. Sorry.

Chieffi assessed Hellmann-Zanetti court as being irrevocably defective on the grounds of its reasoning and protocols, or lack thereof.

It was nothing to do with evidence.

 

[Annella]

Cornell has the definitive definition(if that's not a tautology):

Acquittal
Definition

At the end of a criminal trial, a finding by a judge or jury that a defendant is not guilty. An acquittal signifies that a prosecutor failed to prove his or her case beyond a reasonable doubt, not that a defendant is innocent. Thus, a person may be acquitted of a crime but found civilly liable in a civil case regarding that same crime, e.g. O.J. Simpson, because civil cases have a lower burden of proof than criminal cases.

Let us use a British dictionary definition shall we? I imagine you searched high and low for something that would go a wee way to confirm your bias. This from the Cambridge version.

Meaning of “acquittal” in the English Dictionary

British

American
"acquittal" in British English
See all translations
acquittal
noun [C or U] UK /əˈkwɪt.əl/ US /əˈkwɪt̬.əl/

› the ​decision of a ​court that someone is not ​guilty.

Simple.

 

[Vixen]

In other words, they look at the evidence

No. If a party uses a point of law in appeal that not all the evidence was looked at, the supreme court will weigh up whether (a) completeness of evidence was achieved materially and (b) whether the 'missing' or 'suppressed' evidence prejudiced the verdict. Bearing in mind, the onus is on each party to ensure the evidence they want included is brought up as an issue at a preliminary hearing, or even during the trial.

For example, in the Kercher case, Bongiorno deliberately did not bring up the issue of the vaseline(?) stained pillow, and then bleated when Nencini dismissed her late application, post-first instance court, to suddenly include it.