Continuation Part 21: Amanda Knox/Raffaele Sollecito

[Numbers]

...
1) "I learned that Amanda Knox really was a suspect in the murder before she said anything to the police on November 5th and that she should have had a lawyer present. I learned this because I was directed to the Italian Supreme Court statement, which said that she was a suspect and should have had a lawyer."
....

Amanda Knox was declared a suspect from the beginning of the interrogation by the Gemelli CSC motivation report of 1 April 2008 - maybe. While these paragraphs call out CPP Article 63.2, there are some following paragraphs that seem to indicate that CPP Article 63.1 is being relied upon. In either case, the person's statements cannot be used against him. However, for the apparent application of Article 63.1, the Gemelli CSC panel held that a first incriminating statement can be used against others, but a second one, where there has been no implementation of defense rights and safeguards, may not.

Here is the excerpt of the first part of the text in Italian:

2. Con riferimento alla seconda censura difensiva la Corte osserva che le dichiarazioni indizianti {sic; translated "indiziati"} sono caratterizzate da un differente regime di utilizzabilita sotto il profilo soggettivo. Nel caso in cui esse provengano da persona a carico della quale gia sussistevano indizi in ordine al medesimo reato ovvero a reato connesso o collegato con quello attribuito al terzo le stesse non possono essere utilizzate, oltre che contra se, neppure dei confronti dei coimputati dello stesso reato (o degli imputati di reati connessi o collegati).

Il regime di inutilizzabilita assoluta di cui all' art. 63, comma secondo, c.p.p. e, invece, da escludere nell' ipotesi in cui il dichiarante sia chiamato a rispondere, nello stesso o in altro processo, per un reato o per reati attribuiti a terzi, che non abbiano alcun legame processuale con quello per cui si procede, rispetto ai quali egli assume la qualifica di testimone.

Here is a translation (Google translated with my clarifications):

2. With reference to the second defense complaint, the Court notes that the suspect's statements are characterized by a different regime of usability subjectively. In the event that they come from the person against whom there were already indications {clues or evidence} regarding the same offense or offenses linked to or connected with the one attributed to the third, the statements can not be used against himself, nor against the co-accused of the same crime (or one accused of related to or connected crimes).

The absolutely unusable regime referred to Art. 63, second paragraph, Code of Criminal Procedure, excludes cases where the declarant is called to respond in the same or in any proceedings {trial}, for a crime or crimes attributed to third parties, which have no connection with the trial for the case, for which he takes the status of witness.
_____
Text of CPP Article 63, paragraph 2:

If the person should have been heard as an accused or a suspect from the beginning, his statements shall not be used.

Sources:

Gemelli CSC motivation report, in Cassazione confirming pre-trial detention: Knox {Italian}
http://www.amandaknoxcase.com/motivation-reports-appeal-documents/

CPP Article 63, translation from Gialuz, Luparia and Scarpa, editors, The Italian Code of Criminal Procedure: Critical essays and English translation, Wolters Kluwer (c) 2014

 

[Numbers]

Here are the paragraphs from the Gemelli motivation report that follow the ones posted above. The same sources were used.

Infatti, mentre nel primo caso, in forza dell' intima connessione e interdipendenza tra il fatto proprio e quello altrui sorge la necessita di tutelare anche il diritto al silenzio del dichiarante, nel secondo caso, invece, la posizione di estraneita e di indifferenza del dichiarante rispetto ai fatti causa lo rende immune da eventuali strumentalizzazioni operate da parte degli organi inquirenti (Cass., Sez. Un. 13 febbraio 1997, Carpenelli).

Alla stregua di questi principi, le dichiarazioni rese da Amanda Marie Knox alle ore 1,45 del 6 novembre 2007, all' esito quali il verbale venne sospeso e la ragazza venne messa a disposizione dell' Autorita giudiziaria procedente, emergendo indizi a suo carico, sono utilizzabili solo contra alios, mentre le "dichiarazioni spontanee" delle ore 5,45 non sono utilizzabili ne a carico dell' indigata ne nei confronti degli altri soggetti accusati del concorso nel medisimo reato, in quanto rese senza le garanzie difensive da parte di una persona che aveva gia formalmente assunto la veste di indagata.

In fact, while in the first case, by virtue of the intimate connection and interdependence between the fact itself and that of others is the need to also protect the right to silence of the declarant, in the second case, however, the extraneousness {or strange} position and indifference {or apathy} of the declarant with respect to the facts in the declaration makes it immune from any possible exploitation by the investigative bodies (Cass., Sec. A. 13 February 1997, Carpenelli).

In the light of those precepts, the statements made by Amanda Marie Knox at 1.45 on 6 November 2007, resulted in the minutes being suspended, and she was placed at the disposal of' the judicial Authority {prosecutor} proceeding, since {the statements included} evidence that had emerged against her, and therefore are usable only contra alios {against others}, while the "spontaneous declarations" of 5.45 hours can not be used against the suspect nor against other people accused of complicity in the same crime, as there were no defensive guarantees given to the person who had already formally assumed the role of a suspect.

 

[Numbers]

CPP Article 63.1

If a person who is not an accused or suspected makes statements before the judicial authority or the criminal police that raise suspicion of guilt against him, the proceeding authority shall interrupt the examination, warn him that, following such statements, investigations may be carried out on him, and advise him to appoint a lawyer. Such statements shall not be used against the person who has made them.

 

[LondonJohn]

She wasn't 'reporting' a crime. She was being interrogated by the police in the absence of a lawyer, being confronted with 'evidence' against her (the texts for example) and her statements were the product of it. They convicted Knox for them. The ECHR says they can't do this. These Italians obviously thought they could. We will find out soon if they are going to defend the position or if they will roll over like submissive puppies. Either way, they're cooked. If you want the case law, let me know and you can read all about it for yourself.

If Vixen really is so incapable as to understand the underlying principles, I'll make it even easier for her.

There is a bank robbery. The police suspect Mr A of being at least one of the robbers. Mr B is an associate and friend of Mr B. Mr B has been questioned a number of times already by the police, and has repeatedly stated that Mr A was round at his (Mr B's) house watching a DVD together at the time of the robbery.

The police call Mr B in again for an interrogation. They tell Mr B that they have evidence that Mr A participated in the robbery, and that Mr B must therefore be lying to them about having been watching a DVD with Mr A. The police tell Mr B that he will be in very grave trouble if he doesn't now "tell the truth".

OK so far Vixen? Can you comprehend it this time? Hopefully so.

Now, the question is this: should Mr B have been considered (and treated as) a criminal suspect from the start of that last interrogation? And the answer is a great big "YES". The police clearly suspect that Mr B has been lying to them up to that point about having been watching a DVD with Mr A at the time of the robbery. That's potentially a serious criminal offence all by itself. And the police must, by extension, suspect that Mr B has been lying for one of two reasons: either to protect Mr A, or to protect both himself and Mr A (i.e. because Mr B himself was also involved in the robbery).

So from the very start of that last interrogation, the police clearly considered Mr B a criminal suspect - whether the crime in question was related to lying to police, obstructing/perverting justice, protecting an offender or participation in the robbery itself. And therefore, at the very start of that last interrogation, Mr B should have been cautioned and permitted access to a lawyer. No question.

Maybe Vixen (and so many other biased, ignorant, low-intellect pro-guilt commentators) can now understand. I'm not putting much money on that though, based on precedent..........

 

[Kauffer]

Amanda Knox was declared a suspect from the beginning of the interrogation by the Gemelli CSC motivation report of 1 April 2008 - maybe. While these paragraphs call out CPP Article 63.2, there are some following paragraphs that seem to indicate that CPP Article 63.1 is being relied upon. In either case, the person's statements cannot be used against him. However, for the apparent application of Article 63.1, the Gemelli CSC panel held that a first incriminating statement can be used against others, but a second one, where there has been no implementation of defense rights and safeguards, may not.

Here is the excerpt of the first part of the text in Italian:

2. Con riferimento alla seconda censura difensiva la Corte osserva che le dichiarazioni indizianti {sic; translated "indiziati"} sono caratterizzate da un differente regime di utilizzabilita sotto il profilo soggettivo. Nel caso in cui esse provengano da persona a carico della quale gia sussistevano indizi in ordine al medesimo reato ovvero a reato connesso o collegato con quello attribuito al terzo le stesse non possono essere utilizzate, oltre che contra se, neppure dei confronti dei coimputati dello stesso reato (o degli imputati di reati connessi o collegati).

Il regime di inutilizzabilita assoluta di cui all' art. 63, comma secondo, c.p.p. e, invece, da escludere nell' ipotesi in cui il dichiarante sia chiamato a rispondere, nello stesso o in altro processo, per un reato o per reati attribuiti a terzi, che non abbiano alcun legame processuale con quello per cui si procede, rispetto ai quali egli assume la qualifica di testimone.

Here is a translation (Google translated with my clarifications):

2. With reference to the second defense complaint, the Court notes that the suspect's statements are characterized by a different regime of usability subjectively. In the event that they come from the person against whom there were already indications {clues or evidence} regarding the same offense or offenses linked to or connected with the one attributed to the third, the statements can not be used against himself, nor against the co-accused of the same crime (or one accused of related to or connected crimes).

The absolutely unusable regime referred to Art. 63, second paragraph, Code of Criminal Procedure, excludes cases where the declarant is called to respond in the same or in any proceedings {trial}, for a crime or crimes attributed to third parties, which have no connection with the trial for the case, for which he takes the status of witness.
_____
Text of CPP Article 63, paragraph 2:

If the person should have been heard as an accused or a suspect from the beginning, his statements shall not be used.

Sources:

Gemelli CSC motivation report, in Cassazione confirming pre-trial detention: Knox {Italian}
http://www.amandaknoxcase.com/motivation-reports-appeal-documents/

CPP Article 63, translation from Gialuz, Luparia and Scarpa, editors, The Italian Code of Criminal Procedure: Critical essays and English translation, Wolters Kluwer (c) 2014

Gemelli's ruling is rather esoteric and the translation is difficult. It's not entirely clear to me what his argument is based on. However, he clearly believes he has found a way to contrive that the callunia case against Knox is unconstrained by Italian law with regard to the normal protections flowing from her procedural rights prohibiting the use of her statements. He says that 1:45 cannot be used against her for the murder, but it can be used 'against others'. So, oddly, this use against others (Lumumba), it seems, effectively reverses and is used against her for the callunia, which the use of it against him is taken to mean.

If we read the first three paragraphs of Hellman on callunia in his MR,

https://hellmannreport.wordpress.com/contents/reasons-for-the-decision/calumny/

it seems to me that he is saying that Knox was a suspect prior to the 1:45 statement. And of course, this must be true, because it was Knox's verbal utterance prior to its writing up as the 1:45 statement that, at the latest, means she has transitioned from 'a person informed of the facts' to 'a suspect'. So, she was indisputably a suspect at some point before the 1:45 statement exists. So, we may usefully ask, why was she given that statement to sign? Minimally, she should have a lawyer the moment she says she was at the cottage and names Lumumba. The lawyer would tell her to say nothing and to sign nothing. But she didn't, she signs it and it is used against her.

But, actually, it's all used against her - what she said before 1:45, the 1:45 statement, the 5:45 statement and the 1st memoriale. The court records from testimony through to motivation reports are littered with references to all of these events and she is convicted for the interpretation placed upon the narrative from the continuum of events approximately from the arrival of Anna Donnino until she hands over the 1st memoriale before she is taken to prison.

Yet, we learn this from ECHR case law:

"During Interrogations. In Brusco v France the ECtHR confirmed that the right to legal assistance includes having a lawyer during any interrogations.6 In that case, the ECtHR found that even though the adult applicant was permitted to see his lawyer directly after the interrogation, preventing the lawyer from being present during police questioning was a breach of Article 6(3)(c). In 2011 the Court made similar rulings against Croatia.7

In Pishchalnikov v Russia the ECtHR explained why it is fundamental that a suspect be provided with a lawyer during the initial investigation stage of the proceedings, and especially during any questioning or interrogations by the police:

“[A]n accused often finds himself in a particularly vulnerable position at that stage of the proceedings, the effect of which is amplified by the fact that legislation on criminal procedure tends to become increasingly complex, notably with respect to the rules governing the gathering and use of evidence. In most cases, this particular vulnerability can only be properly compensated for by the assistance of a lawyer whose task is, among other things, to help to ensure respect of the right of an accused not to incriminate himself”"

So, this question of suspect status is really rather a red herring. As:

"When Significantly Affected. In Shabelnik v Ukraine, the ECtHR held that the right to legal assistance arises at the point that the person’s position is significantly affected, even if they are not formally placed in custody as a suspect.10 The ECtHR explained that a person’s position will be significantly affected as soon as the suspicion against him is seriously investigated and the prosecution case is compiled. In this case, the applicant was questioned as a witness, not as a suspect or accused person. The ECtHR found a violation of Articles 6(1) and (3) of the ECHR on the grounds that the point at which the right to legal assistance arises does not depend on the formal designation of the person.11 The Court similarly found violations in Brusco v France, in which a person who was interviewed as a witness confessed to a crime.12"

https://www.opensocietyfoundations.org/sites/default/files/legal-tools-early-access-20120424.pdf

Yet we know, in the late evening and early morning of 5/6 November, Knox is being questioned adversarily about her communications with Lumumba and is being confronted with the knowledge that Raffaele is no longer her alibi witness (we know this from Donnino's testimony, even though others present denied it). This is clear evidence of her changed status and it is before Lumumba has been named, that Knox's position has been 'significantly affected'.

The ECHR cannot but rule that Knox's procedural rights kick in before she says anything that is used against her. To hold that the statements relating to the callunia case are permitted to be used against her because, as Gemelli argued, they are in some sense to be ascribed to some different, unconnected, unprotected realm untouched by rights, unduly limits their practical effect, which in this case means that if she had a lawyer, there could have been no case against her for callunia rather than the idea that there would have been a case but it would have been more difficult to prove.

 

[LondonJohn]

CPP Article 63.1

If a person who is not an accused or suspected makes statements before the judicial authority or the criminal police that raise suspicion of guilt against him, the proceeding authority shall interrupt the examination, warn him that, following such statements, investigations may be carried out on him, and advise him to appoint a lawyer. Such statements shall not be used against the person who has made them.

It's strange that the code doesn't say anything about - in the period prior to the warnings, the cautions and the right to consult a lawyer - the police typing up the statement and making the person sign it, and nor does it say anything about the Prosecuting Magistrate paying a cosy visit to the person and cajoling him/her into recounting events once again, such that they can be framed as a "spontaneous declaration".

And of course all of this is predicated on the presumption that the person truly was being considered nothing more than a "witness" at the time he/she makes the incriminating statement. In our case, it's abundantly clear that Knox was being considered a suspect of a serious criminal offence (whether that offence was lying to protect Lumumba or direct involvement in the murder) from the very moment that she walked into that interrogation room. There's cast-iron proof that the police were accusing Knox of lying to them about her movements on the night of the murder, in the form of Donnino's court testimony recounting her suggestion to Knox that she may have been experiencing traumatic amnesia. And then there's de Felice's asinine triumphalist statement to journalists (notwithstanding Machiavalli's hilarious and embarrassing attempts to spin it in a different direction) about Knox "buckling" and telling the police "what we already knew to be correct".

Truly, caso chiuso.

 

[LondonJohn]

Gemelli's ruling is rather esoteric and the translation is difficult. It's not entirely clear to me what his argument is based on. However, he clearly believes he has found a way to contrive that the callunia case against Knox is unconstrained by Italian law with regard to the normal protections flowing from her procedural rights prohibiting the use of her statements. He says that 1:45 cannot be used against her for the murder, but it can be used 'against others'. So, oddly, this use against others (Lumumba), it seems, effectively reverses and is used against her for the callunia, which the use of it against him is taken to mean.

If we read the first three paragraphs of Hellman on callunia in his MR,

https://hellmannreport.wordpress.com/contents/reasons-for-the-decision/calumny/

it seems to me that he is saying that Knox was a suspect prior to the 1:45 statement. And of course, this must be true, because it was Knox's verbal utterance prior to its writing up as the 1:45 statement that, at the latest, means she has transitioned from 'a person informed of the facts' to 'a suspect'. So, she was indisputably a suspect at some point before the 1:45 statement exists. So, we may usefully ask, why was she given that statement to sign? Minimally, she should have a lawyer the moment she says she was at the cottage and names Lumumba. The lawyer would tell her to say nothing and to sign nothing. But she didn't, she signs it and it is used against her.

But, actually, it's all used against her - what she said before 1:45, the 1:45 statement, the 5:45 statement and the 1st memoriale. The court records from testimony through to motivation reports are littered with references to all of these events and she is convicted for the interpretation placed upon the narrative from the continuum of events approximately from the arrival of Anna Donnino until she hands over the 1st memoriale before she is taken to prison.

Yet, we learn this from ECHR case law:

"During Interrogations. In Brusco v France the ECtHR confirmed that the right to legal assistance includes having a lawyer during any interrogations.6 In that case, the ECtHR found that even though the adult applicant was permitted to see his lawyer directly after the interrogation, preventing the lawyer from being present during police questioning was a breach of Article 6(3)(c). In 2011 the Court made similar rulings against Croatia.7

In Pishchalnikov v Russia the ECtHR explained why it is fundamental that a suspect be provided with a lawyer during the initial investigation stage of the proceedings, and especially during any questioning or interrogations by the police:

“[A]n accused often finds himself in a particularly vulnerable position at that stage of the proceedings, the effect of which is amplified by the fact that legislation on criminal procedure tends to become increasingly complex, notably with respect to the rules governing the gathering and use of evidence. In most cases, this particular vulnerability can only be properly compensated for by the assistance of a lawyer whose task is, among other things, to help to ensure respect of the right of an accused not to incriminate himself”"

So, this question of suspect status is really rather a red herring. As:

"When Significantly Affected. In Shabelnik v Ukraine, the ECtHR held that the right to legal assistance arises at the point that the person’s position is significantly affected, even if they are not formally placed in custody as a suspect.10 The ECtHR explained that a person’s position will be significantly affected as soon as the suspicion against him is seriously investigated and the prosecution case is compiled. In this case, the applicant was questioned as a witness, not as a suspect or accused person. The ECtHR found a violation of Articles 6(1) and (3) of the ECHR on the grounds that the point at which the right to legal assistance arises does not depend on the formal designation of the person.11 The Court similarly found violations in Brusco v France, in which a person who was interviewed as a witness confessed to a crime.12"

https://www.opensocietyfoundations.org/sites/default/files/legal-tools-early-access-20120424.pdf

Yet we know, in the late evening and early morning of 5/6 November, Knox is being questioned adversarily about her communications with Lumumba and is being confronted with the knowledge that Raffaele is no longer her alibi witness (we know this from Donnino's testimony, even though others present denied it). This is clear evidence of her changed status and it is before Lumumba has been named, that Knox's position has been 'significantly affected'.

The ECHR cannot but rule that Knox's procedural rights kick in before she says anything that is used against her. To hold that the statements relating to the callunia case are permitted to be used against her because, as Gemelli argued, they are in some sense to be ascribed to some different, unconnected, unprotected realm untouched by rights, unduly limits their practical effect, which in this case means that if she had a lawyer, there could have been no case against her for callunia rather than the idea that there would have been a case but it would have been more difficult to prove.

Absolutely. And I'd add that the ECHR should also have sufficient evidence to satisfy itself that the police were in fact more-or-less ordering Knox to accuse Lumumba. There's ample evidence to show that the police were instructing Knox to "remember" the "truth" that she'd met up with the recipient of the "see you later" text message and taken that person to the cottage, whereupon that person had assaulted and murdered Kercher. Whether the police of Knox ever first actually said the words "Patrick" or "Lumumba" is moot and irrelevant: the police had already concluded that whoever the text message recipient was had been the murderer.

So, IMO, we have not only clear evidence that Knox should have been considered a criminal suspect - and afforded the appropriate rights and protections - right from the start of that 5th/6th Nov interrogation, but we also have clear evidence that the police improperly coerced - to the point of effectively ordering - Knox into "buckling" and making her infamous "confession/accusation" involving Lumumba.

 

[NotEvenWrong]

Absolutely. And I'd add that the ECHR should also have sufficient evidence to satisfy itself that the police were in fact more-or-less ordering Knox to accuse Lumumba. There's ample evidence to show that the police were instructing Knox to "remember" the "truth" that she'd met up with the recipient of the "see you later" text message and taken that person to the cottage, whereupon that person had assaulted and murdered Kercher. Whether the police of Knox ever first actually said the words "Patrick" or "Lumumba" is moot and irrelevant: the police had already concluded that whoever the text message recipient was had been the murderer.

I doubt it will be possible to get a straight answer, but...

Vixen and Machiavelli:

When the police saw the "see you later" text, did they believe that that it meant Amanda was going to meet up with Patrick later that same evening? [yes/no]

Were they correct in believing this? [yes/no]

Before the police brought Amanda in for questioning, did they believe she sent Patrick this "see you later" text and it was related to the muder? [yes/no]

 

[Kauffer]

Meredith Kercher

I found myself, yesterday close to the cemetery where Meredith Kercher is buried. So, I went there. I felt I should. Incredibly, I realised that I had been there a couple of years ago for the cremation service of a relative, but hadn't realised it was Meredith's cemetery at the time.

It's a huge place, with grave sites in numerous different parts of the grounds. They are well tended and cared for.

But there are so many graves, I had to go to the office for directions. As soon as I mentioned the name, "Kercher", a man in the back of the office, immediately said, "Ah, Meredith!". He gave me a map and highlighted her plot. It was so far away from the office, I had to drive there, park and walk down a narrow path between two sections of plots. There was a mechanical digger nearby and a mound of earth; a new grave, just prepared

But Meredith's grave is quite a natural monument. The first line written in white on the grey black headstone reads, "We will always love you", and of that, I'm very sure. There is much greenery, long, fibrous green stems and a single, large red bloom. There is much love here and yet so much sadness. A piece of litter had blown in from somewhere, so I picked that up. And the card with a message written by Meredith's sister, now, nearly nine years ago, is still on the soil, slightly faded but still readable inside a neat, plastic wallet.

I do not believe in God and so the few minutes I spent there had no religious meaning for me. Yet, they were deeply affecting and at least in one sense, spiritual. Meredith's grave reflects and represents love, desperate, unhealable loss and terrible injustice. It will still be here a hundred years from now and I wonder if anyone who sees it then will ever come to know the many tragedies connected to it.

When I got home last night, I found out that they had released Guede on a 36 hour pass, the first of many. It didn't seem appropriate. It really didn't.

 

[acbytesla]

Absolutely. And I'd add that the ECHR should also have sufficient evidence to satisfy itself that the police were in fact more-or-less ordering Knox to accuse Lumumba. There's ample evidence to show that the police were instructing Knox to "remember" the "truth" that she'd met up with the recipient of the "see you later" text message and taken that person to the cottage, whereupon that person had assaulted and murdered Kercher. Whether the police of Knox ever first actually said the words "Patrick" or "Lumumba" is moot and irrelevant: the police had already concluded that whoever the text message recipient was had been the murderer.

So, IMO, we have not only clear evidence that Knox should have been considered a criminal suspect - and afforded the appropriate rights and protections - right from the start of that 5th/6th Nov interrogation, but we also have clear evidence that the police improperly coerced - to the point of effectively ordering - Knox into "buckling" and making her infamous "confession/accusation" involving Lumumba.

One need only to look at the latest police callunia case for a prediction about the ECHR.
(From Google translate ) Rights denied writes the judge Giampaolo Boninsegna in the written judgment: "In a professional environment like that probably has not realized that the only required careful approach towards Knox, indeed, imposed, should be to inform the suspect of its rights of defense, declared inviolable, not surprisingly, by our Constitution.

The omissions of the police Florentine ruling highlights the "singular omissions' of investigations. "In addition to the non-compliance of the procedure for the recruitment of subject information already suspect - has explained - is missing in all the minutes to closing time." It 'also been "omitted the fact on the phone Amanda, examined without a formal order of attachment. All records and statements provided voluntarily to prosecutor are very short for assets hour durations in some cases; this approximation ended inevitably does not faithfully represent the activity carried out in its details. "
Judge Giampaolo Boninsegna was particularly distressed that not only was there no audio recording of the session, but the minutes or written transcripts were far too short for such a session. I can't find it at the moment but another Italian article showed only 4 pages of notes of the interrogation where he was accustomed to seeing as many as 60 to 100 pages for similar sessions of other interviews. The simple brevity of the transcripts suggests that the police not Knox were hiding something.

No evidence "for investigatory choices led nell'imputata the conviction to have suffered a planned investigative action vexatious and unjust

 

[Numbers]

I found myself, yesterday close to the cemetery where Meredith Kercher is buried. So, I went there. I felt I should. Incredibly, I realised that I had been there a couple of years ago for the cremation service of a relative, but hadn't realised it was Meredith's cemetery at the time.

It's a huge place, with grave sites in numerous different parts of the grounds. They are well tended and cared for.

But there are so many graves, I had to go to the office for directions. As soon as I mentioned the name, "Kercher", a man in the back of the office, immediately said, "Ah, Meredith!". He gave me a map and highlighted her plot. It was so far away from the office, I had to drive there, park and walk down a narrow path between two sections of plots. There was a mechanical digger nearby and a mound of earth; a new grave, just prepared

But Meredith's grave is quite a natural monument. The first line written in white on the grey black headstone reads, "We will always love you", and of that, I'm very sure. There is much greenery, long, fibrous green stems and a single, large red bloom. There is much love here and yet so much sadness. A piece of litter had blown in from somewhere, so I picked that up. And the card with a message written by Meredith's sister, now, nearly nine years ago, is still on the soil, slightly faded but still readable inside a neat, plastic wallet.

I do not believe in God and so the few minutes I spent there had no religious meaning for me. Yet, they were deeply affecting and at least in one sense, spiritual. Meredith's grave reflects and represents love, desperate, unhealable loss and terrible injustice. It will still be here a hundred years from now and I wonder if anyone who sees it then will ever come to know the many tragedies connected to it.

When I got home last night, I found out that they had released Guede on a 36 hour pass, the first of many. It didn't seem appropriate. It really didn't.

Thank you for posting this.

 

[Numbers]

Amanda Knox was declared a suspect from the beginning of the interrogation by the Gemelli CSC motivation report of 1 April 2008 - maybe. While these paragraphs call out CPP Article 63.2, there are some following paragraphs that seem to indicate that CPP Article 63.1 is being relied upon. In either case, the person's statements cannot be used against him. However, for the apparent application of Article 63.1, the Gemelli CSC panel held that a first incriminating statement can be used against others, but a second one, where there has been no implementation of defense rights and safeguards, may not.....

Gemelli's ruling is rather esoteric and the translation is difficult. It's not entirely clear to me what his argument is based on. However, he clearly believes he has found a way to contrive that the callunia case against Knox is unconstrained by Italian law with regard to the normal protections flowing from her procedural rights prohibiting the use of her statements. He says that 1:45 cannot be used against her for the murder, but it can be used 'against others'. So, oddly, this use against others (Lumumba), it seems, effectively reverses and is used against her for the callunia, which the use of it against him is taken to mean.

If we read the first three paragraphs of Hellman on callunia in his MR,

https://hellmannreport.wordpress.com/contents/reasons-for-the-decision/calumny/

it seems to me that he is saying that Knox was a suspect prior to the 1:45 statement. And of course, this must be true, because it was Knox's verbal utterance prior to its writing up as the 1:45 statement that, at the latest, means she has transitioned from 'a person informed of the facts' to 'a suspect'. So, she was indisputably a suspect at some point before the 1:45 statement exists. So, we may usefully ask, why was she given that statement to sign? Minimally, she should have a lawyer the moment she says she was at the cottage and names Lumumba. The lawyer would tell her to say nothing and to sign nothing. But she didn't, she signs it and it is used against her.

But, actually, it's all used against her - what she said before 1:45, the 1:45 statement, the 5:45 statement and the 1st memoriale. The court records from testimony through to motivation reports are littered with references to all of these events and she is convicted for the interpretation placed upon the narrative from the continuum of events approximately from the arrival of Anna Donnino until she hands over the 1st memoriale before she is taken to prison.

Yet, we learn this from ECHR case law:

"During Interrogations. In Brusco v France the ECtHR confirmed that the right to legal assistance includes having a lawyer during any interrogations.6 In that case, the ECtHR found that even though the adult applicant was permitted to see his lawyer directly after the interrogation, preventing the lawyer from being present during police questioning was a breach of Article 6(3)(c). In 2011 the Court made similar rulings against Croatia.7

In Pishchalnikov v Russia the ECtHR explained why it is fundamental that a suspect be provided with a lawyer during the initial investigation stage of the proceedings, and especially during any questioning or interrogations by the police:

“[A]n accused often finds himself in a particularly vulnerable position at that stage of the proceedings, the effect of which is amplified by the fact that legislation on criminal procedure tends to become increasingly complex, notably with respect to the rules governing the gathering and use of evidence. In most cases, this particular vulnerability can only be properly compensated for by the assistance of a lawyer whose task is, among other things, to help to ensure respect of the right of an accused not to incriminate himself”"

So, this question of suspect status is really rather a red herring. As:

"When Significantly Affected. In Shabelnik v Ukraine, the ECtHR held that the right to legal assistance arises at the point that the person’s position is significantly affected, even if they are not formally placed in custody as a suspect.10 The ECtHR explained that a person’s position will be significantly affected as soon as the suspicion against him is seriously investigated and the prosecution case is compiled. In this case, the applicant was questioned as a witness, not as a suspect or accused person. The ECtHR found a violation of Articles 6(1) and (3) of the ECHR on the grounds that the point at which the right to legal assistance arises does not depend on the formal designation of the person.11 The Court similarly found violations in Brusco v France, in which a person who was interviewed as a witness confessed to a crime.12"....

It's strange that the code doesn't say anything about - in the period prior to the warnings, the cautions and the right to consult a lawyer - the police typing up the statement and making the person sign it, and nor does it say anything about the Prosecuting Magistrate paying a cosy visit to the person and cajoling him/her into recounting events once again, such that they can be framed as a "spontaneous declaration".

....

Absolutely. And I'd add that the ECHR should also have sufficient evidence to satisfy itself that the police were in fact more-or-less ordering Knox to accuse Lumumba. There's ample evidence to show that the police were instructing Knox to "remember" the "truth" that she'd met up with the recipient of the "see you later" text message and taken that person to the cottage, whereupon that person had assaulted and murdered Kercher. Whether the police of Knox ever first actually said the words "Patrick" or "Lumumba" is moot and irrelevant: the police had already concluded that whoever the text message recipient was had been the murderer.

So, IMO, we have not only clear evidence that Knox should have been considered a criminal suspect - and afforded the appropriate rights and protections - right from the start of that 5th/6th Nov interrogation, but we also have clear evidence that the police improperly coerced - to the point of effectively ordering - Knox into "buckling" and making her infamous "confession/accusation" involving Lumumba.

All of the above posts are correct. The problem is that the Gemelli CSC panel motivation report is flawed, and it is flawed to allow or promote a miscarriage of justice.

What is neglected is that Knox should have been questioned from the beginning of when she was in the interrogation room under the information and warnings of CPP Article 64, which includes a warning that the person's statements can be used against him, he has the right to remain silent, and a warning about the responsibilities of becoming a witness - presumably a warning against calunnia, and the questioners are prohibited from using methods or techniques that can influence the freedom of self-determination or alter the ability to recall and evaluate the facts of the person being questioned.

There are a number of indications that Knox should have been questioned as a suspect from the very beginning of the interrogation. Those include VQA Giobbi's testimony; seizing her cell phone; the actions of the police toward her, including calling her a liar while holding her hand (Good Cop/Bad Cop method); the police interrogating Raffaele at the same time, to break his alibi for her (a classic police method) and informing her that this is evidence she was not at his apartment as she claimed; informing her that the police know things she does not, as evidence she is lying; having a "Good Cop", the interpreter, tell her about traumatic amnesia, a suggestive method; suggesting that the innocent text response on Amanda's phone to Lumumba was evidence of her involvement in a crime; threatening her with 30 years in prison; slapping her, which is another kind of threat, that of physical violence - the intent is to show her that she will be subject to any kind of measures the police choose, even violence.

All this will lead the ECHR to find against Italy, under all of Knox's claims.

 

[Mike1711]

We were discussing someone reporting a crime allegedly committed by someone else. Presence of lawyer not needed.

LondonJohn comes along spouting off about a man reporting himself as killing his wife.

Clear now?

No .... Not clear. ALL crimes are committed by someone. Else or not.

 

[toto]

I found myself, yesterday close to the cemetery where Meredith Kercher is buried. So, I went there. I felt I should. Incredibly, I realised that I had been there a couple of years ago for the cremation service of a relative, but hadn't realised it was Meredith's cemetery at the time.

It's a huge place, with grave sites in numerous different parts of the grounds. They are well tended and cared for.

But there are so many graves, I had to go to the office for directions. As soon as I mentioned the name, "Kercher", a man in the back of the office, immediately said, "Ah, Meredith!". He gave me a map and highlighted her plot. It was so far away from the office, I had to drive there, park and walk down a narrow path between two sections of plots. There was a mechanical digger nearby and a mound of earth; a new grave, just prepared

But Meredith's grave is quite a natural monument. The first line written in white on the grey black headstone reads, "We will always love you", and of that, I'm very sure. There is much greenery, long, fibrous green stems and a single, large red bloom. There is much love here and yet so much sadness. A piece of litter had blown in from somewhere, so I picked that up. And the card with a message written by Meredith's sister, now, nearly nine years ago, is still on the soil, slightly faded but still readable inside a neat, plastic wallet.

I do not believe in God and so the few minutes I spent there had no religious meaning for me. Yet, they were deeply affecting and at least in one sense, spiritual. Meredith's grave reflects and represents love, desperate, unhealable loss and terrible injustice. It will still be here a hundred years from now and I wonder if anyone who sees it then will ever come to know the many tragedies connected to it.

When I got home last night, I found out that they had released Guede on a 36 hour pass, the first of many. It didn't seem appropriate. It really didn't.

Thanks for this. Just for the record this is a quotation by a pro guilt poster on another site:

"I would peacefully spend time in Guede’s company…for an informal interview, say, in an Italian bar, or a day trip to some beautiful place in Italy. I believe we could converse respectfully, even if I might have to accept that not the whole truth, or embroidered stories, were being said."

I appreciate the posts on the ECHR and can see that a lot depends on whether Italy succeeds in their claim that the calunnia is a separate crime to murder and that therefore she couldn't possibly be seen as a suspect for that until she actually committed that crime. It seems unfair but legally? Also it seems very clear to me listening to the prison visit audios on IIP that she was very scared during those interviews and that she was cuffed a couple of times by a specific individual, but how would she prove this? And does it matter to any eventual decision?

 

[Bill Williams]

Absolutely. And I'd add that the ECHR should also have sufficient evidence to satisfy itself that the police were in fact more-or-less ordering Knox to accuse Lumumba. There's ample evidence to show that the police were instructing Knox to "remember" the "truth" that she'd met up with the recipient of the "see you later" text message and taken that person to the cottage, whereupon that person had assaulted and murdered Kercher. Whether the police of Knox ever first actually said the words "Patrick" or "Lumumba" is moot and irrelevant: the police had already concluded that whoever the text message recipient was had been the murderer.

I doubt it will be possible to get a straight answer, but...

Vixen and Machiavelli:

When the police saw the "see you later" text, did they believe that that it meant Amanda was going to meet up with Patrick later that same evening? [yes/no]
Were they correct in believing this? [yes/no]
Before the police brought Amanda in for questioning, did they believe she sent Patrick this "see you later" text and it was related to the muder? [yes/no]

N.E.W. - you will never get an answer to this, not from someone still (after all these years) peddling either the "she did it" line, or even the "she knows something she's not telling us" line.

Regardless of the ECHR discussion of late, regardless of when Knox became a suspect entitled to legal protections afforded to all in Italy suspected of a crime.....

And against the very "osmotic" standard that guilters seem to spout.... the two questions as posed above simply cannot be part of an osmotic accounting for either Knox's guilt, and especially Sollecito's. For his part, Sollecito was quite right to pursue the "separation strategy" leading up to the eventual acquittal..... because....

What do the answers to those questions have to do with him?

There is no guilter timeline - esp. an osmotic one! - where those two questions (doesn't really matter how they are answered) don't cause their house of cards to collapse.

Good one.

 

[Numbers]

Thanks for this. Just for the record this is a quotation by a pro guilt poster on another site:

"I would peacefully spend time in Guede’s company…for an informal interview, say, in an Italian bar, or a day trip to some beautiful place in Italy. I believe we could converse respectfully, even if I might have to accept that not the whole truth, or embroidered stories, were being said."

I appreciate the posts on the ECHR and can see that a lot depends on whether Italy succeeds in their claim that the calunnia is a separate crime to murder and that therefore she couldn't possibly be seen as a suspect for that until she actually committed that crime. It seems unfair but legally? Also it seems very clear to me listening to the prison visit audios on IIP that she was very scared during those interviews and that she was cuffed a couple of times by a specific individual, but how would she prove this? And does it matter to any eventual decision?

1. ECHR case-law is very clear on statements obtained in an interrogation without a lawyer present for the defense, when those statements are the basis for a conviction. The ECRH case-law is that the practice of using those statements for a conviction is a violation of the Convention, Articles 6.1 with 6.3c (unfair trial as result of denial of the right of defense). It doesn't matter to the ECHR what the interrogation was about compared to what the conviction was about. It is the violation of defense rights by denial of a lawyer to obtain statements that result in a conviction that makes the difference.

2. It is likely that the ECHR will find a violation of Convention Article 3, under the prohibition of "inhuman or degrading conduct" on the total basis of the police treatment of Amanda, including the slaps, because it was a treatment meant to overcome her will and freedom to voice her will. There is ECHR case-law on this as well.

 

[Kauffer]

Thanks for this. Just for the record this is a quotation by a pro guilt poster on another site:

"I would peacefully spend time in Guede’s company…for an informal interview, say, in an Italian bar, or a day trip to some beautiful place in Italy. I believe we could converse respectfully, even if I might have to accept that not the whole truth, or embroidered stories, were being said."

I appreciate the posts on the ECHR and can see that a lot depends on whether Italy succeeds in their claim that the calunnia is a separate crime to murder and that therefore she couldn't possibly be seen as a suspect for that until she actually committed that crime. It seems unfair but legally? Also it seems very clear to me listening to the prison visit audios on IIP that she was very scared during those interviews and that she was cuffed a couple of times by a specific individual, but how would she prove this? And does it matter to any eventual decision?

Thanks. The question is when did Knox's procedural rights attach and do they extend to callunia and the answer is rather clear:

"In Brusco v France the ECtHR confirmed that the right to legal assistance includes having a lawyer during any interrogations."

And:

"The right to silence cannot be confined to direct admission of wrongdoing, but any statement which may later be deployed in criminal proceedings in support of the prosecution case (Aleksandr Zaichenko v. Russia, §§52-60)."

And (cited by Numbers from the same case):

"Bearing in mind the concept of fairness in Article 6, the Court considers that the right not to incriminate oneself cannot reasonably be confined to statements of admission of wrongdoing or to remarks which are directly incriminating.... Testimony obtained under compulsion which appears on its face to be of a non-incriminating nature - such as exculpatory remarks or mere information on questions of fact - may later be deployed in criminal proceedings in support of the prosecution case, for example to contradict or cast doubt upon other statements of the accused or evidence given by him during the trial or to otherwise undermine his credibility."

 

[Vixen]

I doubt it will be possible to get a straight answer, but...

Vixen and Machiavelli:

When the police saw the "see you later" text, did they believe that that it meant Amanda was going to meet up with Patrick later that same evening? [yes/no]

Were they correct in believing this? [yes/no]

Before the police brought Amanda in for questioning, did they believe she sent Patrick this "see you later" text and it was related to the muder? [yes/no]

As of the time of Amanda blurting out Patrick raped and murdered Mez, the police awareness was that she was a passive, innocent witness to a crime, terrified of this dangerous man.

Why would she have needed a lawyer at this stage?

However, after consultation amongst themselves, the police terminated the session and acted entirely correctly and properly.

 

[Diocletus]

But, actually, it's all used against her - what she said before 1:45, the 1:45 statement, the 5:45 statement and the 1st memoriale. The court records from testimony through to motivation reports are littered with references to all of these events and she is convicted for the interpretation placed upon the narrative from the continuum of events approximately from the arrival of Anna Donnino until she hands over the 1st memoriale before she is taken to prison.

I think this is what's going to really bother the ECtHR. "Okay, Italy: you said that her rights were violated, and that means that you can't use her statements, and you even said so, but then you used them anyway . . . WTF. You didn't even bother ginning up a coherent excuse."

 

[Kauffer]

As of the time of Amanda blurting out Patrick raped and murdered Mez, the police awareness was that she was a passive, innocent witness to a crime, terrified of this dangerous man.

Why would she have needed a lawyer at this stage?

However, after consultation amongst themselves, the police terminated the session and acted entirely correctly and properly.

It's part of the trial record that she was being confronted with her communication with Lumumba. The cops said she went to meet him; then according to the police interpreter, the cops confronted her with the news that Raffaele had taken away her alibi. Why would she need an alibi if she was a passive, innocent witness in the minds of her interrogators?

And why didn't she get a lawyer immediately after Lumumba was named? Why didn't she get a lawyer until the day after next, immediately before she saw the judge? Why wasn't she allowed to consult with him before she saw the judge?