Continuation Part 21: Amanda Knox/Raffaele Sollecito

[JREF2010]

If they cannot have their decisions overturns by the ECHR, why are they a member? I have asked this before without answer.

Why do they go to such lengthy trials and spend huge amounts on court costs only to let Rudy Guede, a rapist-murderer, go free after a few short years?
Why does Italy give him a free college degree for murdering and raping and burglary?
How does this Italian approach help prevent more murders and rapes in Italy?

It seems from here Italy is more concerned with the rapist/murderering predators than the victims and future victims. wow?

 

[Numbers]

Yes they did, as did all signatories to the Convention. And contrary to Vixen's semi-literate understanding of the situation, the ECHR absolutely DOES have the power to intervene in the affairs of a state, provided that the state is a signatory to the Convention. The ECHR acts as a supra-national court whose judgements and orders are absolutely binding upon the signatory states.

It's an often-parroted pro-guilt canard that the ECHR cannot overturn convictions. And while this is absolutely correct (in our case, for example, the ECHR cannot and will not tell Italy to annul Knox's criminal slander conviction), the ECHR can and does order signatory states to apply full and proper remedies to restore an individual's human rights. Clearly, if a conviction is significantly based on something that infringed the person's human rights, the very finding of the human rights breach by the ECHR makes the conviction, by definition, unsafe at the very least.

In some instances, it may be fair and appropriate to conduct a retrial of the person. For example, suppose that Mr A was accused of killing a man in a bar, and there was a good amount of eyewitness testimony that Mr A was the killer, but Mr A was unlawfully coerced into confessing, it's probably correct to retry Mr A without the now-discarded confession, to see whether the eyewitness testimony on its own will be sufficient in the eyes of a court to prove guilt beyond reasonable doubt. Likewise, if the ECHR rules that even though a person's human rights were breached, the breach wouldn't have had a material effect upon the conviction, it may be fair and acceptable to retain the conviction without any retrial (e.g. a man with a genuine mountain of reliable, credible evidence of his guilt of the crime who was unlawfully denied access to a lawyer during his first interrogation as a suspect).

But in the Knox case, the human rights breach under discussion is, in effect, the entire genesis of the crime for which she was convicted (i.e. the criminal slander). If when the the ECHR rules that Knox was unlawfully coerced into accusing Lumumba, and that she was unlawfully questioned as a "witness" long after she clearly should have been declared a suspect and afforded the appropriate rights and protections, the entire evidence base for the criminal slander conviction disappears into thin air. So in the Knox case, once the ECHR rules in Knox's favour, it will order Italy to apply full remedy to restore Knox's human rights and to compensate her for the breach. And the ONLY course of action open to Italy in this scenario will be to annul the criminal slander conviction without retrial (since there will now be zero usable evidence against Knox in respect of the criminal slander), and to pay her a large sum of money by way of compensation.

So no, the ECHR cannot (and will not) order Italy to quash Knox's criminal slander conviction. But in practice, the ECHR (by means of its judgement and ordering of a full remedy) will place Italy in a position where it has no choice but to quash the conviction.

I disagree about this detail. According to Italian procedural law, there may need to be a pro forma revision "trial". This revision trial would, in the case of an ECHR judgment against Italy (which according to case-law is unavoidable), consist of, I believe, a judge ruling that her conviction for calunnia is dismissed as an acquittal on the grounds that the crime did not exist.

The crime cannot exist because the Italian court system would be forced to state that there is no admissible evidence of the crime. Coerced statements or other evidence gathered in violation of procedural law cannot be used, according to Italian law, as evidence. Of course, in the original trials, the Italian courts did not bother to obey Italian law on this matter.

In fact, if the Boninsegna acquittal is final (which it may be if the prosecution did not appeal), Amanda and her lawyers could use that final verdict to request a revision trial. That may be advisable in order to exhaust domestic remedies.

The Italian procedural law on when a revision trial may be requested, relevant to the Boninsegna acquittal, is codified in CPP Article 630, paragraph 1a: Revision may be requested if the facts underlying the judgment or the criminal decree of conviction are incompatible with the facts established in another final criminal judgment issued by the ordinary judge or a special judge.

 

[Kauffer]

This is because laws are passed by state legislature. ECHR doesn't have the power to intervene in the affairs of a state. All it can do is issue judgments, directives, order member states to pay compensation and general publicity.

Wrong! You ignore the essential point, which is that Italy itself has decided, irrespective of pressure from the Council of Europe on a case by case basis from now on, but as a result of unremitting pressure in the Dorigo case, to incorporate the convention directly in its law. In fact, the legislature was bypassed! The COE in this groundbreaking case refers below. Do catch up.

"Noting in particular that certain requirements of Article 6 of the Convention were incorporated into the Italian Constitution in 1999, and that other changes in the law and subsequent case-law rulings have reinforced the direct effect of the Convention"

"Welcoming the judgment given, in response to this action, on 1 December 2006 by the Court of Cassation, which declared the applicant's detention unlawful, and ordered his final release, referring to the direct effects of the Convention in Italian law, noted Italy's prolonged failure to take action, in persistent violation of the Convention – in spite of the various interim resolutions adopted by the Committee of Ministers"

"noting that the applicant now has effective means of securing, as far as this is possible, erasure of the consequences of the violation"

http://hudoc.echr.coe.int/eng#{"dmdocnumber":["819157"],"itemid":["001-81277"]}

The ECHR causes states to comply with its will through the COE, which in turn, in principled manner, expects states to take their own responsibilities in righting wrongs. This is what Italy has signed up for; this is what it must do. It has agreed to do it.

 

[Kauffer]

I disagree about this detail. According to Italian procedural law, there may need to be a pro forma revision "trial". This revision trial would, in the case of an ECHR judgment against Italy (which according to case-law is unavoidable), consist of, I believe, a judge ruling that her conviction for calunnia is dismissed as an acquittal on the grounds that the crime did not exist.

The crime cannot exist because the Italian court system would be forced to state that there is no admissible evidence of the crime. Coerced statements or other evidence gathered in violation of procedural law cannot be used, according to Italian law, as evidence. Of course, in the original trials, the Italian courts did not bother to obey Italian law on this matter.

In fact, if the Boninsegna acquittal is final (which it may be if the prosecution did not appeal), Amanda and her lawyers could use that final verdict to request a revision trial. That may be advisable in order to exhaust domestic remedies.

The Italian procedural law on when a revision trial may be requested, relevant to the Boninsegna acquittal, is codified in CPP Article 630, paragraph 1a: Revision may be requested if the facts underlying the judgment or the criminal decree of conviction are incompatible with the facts established in another final criminal judgment issued by the ordinary judge or a special judge.

Interesting. But isn't there a problem with this? Whilst Boninsega has accomplished much and while the ECHR cannot permit Gemelli's ruling that the statements against Knox were usable in the callunia trial (because it rendered the trial unfair) he says nothing about Gemelli's ruling on that point of law. Indeed, in ruling out 1:45, Gemelli went as far as Boninsegna on this point. So, I doubt there is scope for a revision trial as per Art 630, (absent an ECHR ruling on the Art 6 matters) unless you have found something else in the article because on the Italian scene, nothing seems to have changed with regards to "facts underlying the judgement". The facts didn't support the judgement then and nor do they do now. But Gemelli and Hellmann both agreed Knox was entitled to her procedural rights, but still permitted the case to proceed based on the statements. Boninsegna did not say that case should not have proceeded.

 

[Kauffer]

Yes they did, as did all signatories to the Convention. And contrary to Vixen's semi-literate understanding of the situation, the ECHR absolutely DOES have the power to intervene in the affairs of a state, provided that the state is a signatory to the Convention. The ECHR acts as a supra-national court whose judgements and orders are absolutely binding upon the signatory states.

It's an often-parroted pro-guilt canard that the ECHR cannot overturn convictions. And while this is absolutely correct (in our case, for example, the ECHR cannot and will not tell Italy to annul Knox's criminal slander conviction), the ECHR can and does order signatory states to apply full and proper remedies to restore an individual's human rights. Clearly, if a conviction is significantly based on something that infringed the person's human rights, the very finding of the human rights breach by the ECHR makes the conviction, by definition, unsafe at the very least.

In some instances, it may be fair and appropriate to conduct a retrial of the person. For example, suppose that Mr A was accused of killing a man in a bar, and there was a good amount of eyewitness testimony that Mr A was the killer, but Mr A was unlawfully coerced into confessing, it's probably correct to retry Mr A without the now-discarded confession, to see whether the eyewitness testimony on its own will be sufficient in the eyes of a court to prove guilt beyond reasonable doubt. Likewise, if the ECHR rules that even though a person's human rights were breached, the breach wouldn't have had a material effect upon the conviction, it may be fair and acceptable to retain the conviction without any retrial (e.g. a man with a genuine mountain of reliable, credible evidence of his guilt of the crime who was unlawfully denied access to a lawyer during his first interrogation as a suspect).

But in the Knox case, the human rights breach under discussion is, in effect, the entire genesis of the crime for which she was convicted (i.e. the criminal slander). If when the the ECHR rules that Knox was unlawfully coerced into accusing Lumumba, and that she was unlawfully questioned as a "witness" long after she clearly should have been declared a suspect and afforded the appropriate rights and protections, the entire evidence base for the criminal slander conviction disappears into thin air. So in the Knox case, once the ECHR rules in Knox's favour, it will order Italy to apply full remedy to restore Knox's human rights and to compensate her for the breach. And the ONLY course of action open to Italy in this scenario will be to annul the criminal slander conviction without retrial (since there will now be zero usable evidence against Knox in respect of the criminal slander), and to pay her a large sum of money by way of compensation.
So no, the ECHR cannot (and will not) order Italy to quash Knox's criminal slander conviction. But in practice, the ECHR (by means of its judgement and ordering of a full remedy) will place Italy in a position where it has no choice but to quash the conviction.

This. We have, in fact, three courts, Gemelli, Hellmann and Boninsegna all referring to the disquieting circumstances of the interrogation. But, I think, what will make the process of wiping out the callunia conviction much easier this time, is Italy's own approach to these matters following the Dorigo case. They are bound to accept, constitutionally, the direct effects of the convention and specifically, that guilty verdicts cannot survive an Article 6 finding in favour of a complainant.

However, it may well be that a process of revision will in fact take place, procedurally. Such a revision would conclude there is no evidence for the prosecution to present and the court would rule summarily.

 

[LondonJohn]

I disagree about this detail. According to Italian procedural law, there may need to be a pro forma revision "trial". This revision trial would, in the case of an ECHR judgment against Italy (which according to case-law is unavoidable), consist of, I believe, a judge ruling that her conviction for calunnia is dismissed as an acquittal on the grounds that the crime did not exist.

The crime cannot exist because the Italian court system would be forced to state that there is no admissible evidence of the crime. Coerced statements or other evidence gathered in violation of procedural law cannot be used, according to Italian law, as evidence. Of course, in the original trials, the Italian courts did not bother to obey Italian law on this matter.

In fact, if the Boninsegna acquittal is final (which it may be if the prosecution did not appeal), Amanda and her lawyers could use that final verdict to request a revision trial. That may be advisable in order to exhaust domestic remedies.

The Italian procedural law on when a revision trial may be requested, relevant to the Boninsegna acquittal, is codified in CPP Article 630, paragraph 1a: Revision may be requested if the facts underlying the judgment or the criminal decree of conviction are incompatible with the facts established in another final criminal judgment issued by the ordinary judge or a special judge.

Yes I think you're absolutely correct. I was meaning that there won't be a conventional trial, but yes, it does seem that there will be an extremely short procedural court hearing which will simply consist of the state offering no evidence and the judge dismissing the case.

I might even fly to Perugia/Florence for that one

 

[Desert Fox]

Yes they did, as did all signatories to the Convention. And contrary to Vixen's semi-literate understanding of the situation, the ECHR absolutely DOES have the power to intervene in the affairs of a state, provided that the state is a signatory to the Convention. The ECHR acts as a supra-national court whose judgements and orders are absolutely binding upon the signatory states.

It's an often-parroted pro-guilt canard that the ECHR cannot overturn convictions. And while this is absolutely correct (in our case, for example, the ECHR cannot and will not tell Italy to annul Knox's criminal slander conviction), the ECHR can and does order signatory states to apply full and proper remedies to restore an individual's human rights. Clearly, if a conviction is significantly based on something that infringed the person's human rights, the very finding of the human rights breach by the ECHR makes the conviction, by definition, unsafe at the very least.
In some instances, it may be fair and appropriate to conduct a retrial of the person. For example, suppose that Mr A was accused of killing a man in a bar, and there was a good amount of eyewitness testimony that Mr A was the killer, but Mr A was unlawfully coerced into confessing, it's probably correct to retry Mr A without the now-discarded confession, to see whether the eyewitness testimony on its own will be sufficient in the eyes of a court to prove guilt beyond reasonable doubt. Likewise, if the ECHR rules that even though a person's human rights were breached, the breach wouldn't have had a material effect upon the conviction, it may be fair and acceptable to retain the conviction without any retrial (e.g. a man with a genuine mountain of reliable, credible evidence of his guilt of the crime who was unlawfully denied access to a lawyer during his first interrogation as a suspect).

But in the Knox case, the human rights breach under discussion is, in effect, the entire genesis of the crime for which she was convicted (i.e. the criminal slander). If when the the ECHR rules that Knox was unlawfully coerced into accusing Lumumba, and that she was unlawfully questioned as a "witness" long after she clearly should have been declared a suspect and afforded the appropriate rights and protections, the entire evidence base for the criminal slander conviction disappears into thin air. So in the Knox case, once the ECHR rules in Knox's favour, it will order Italy to apply full remedy to restore Knox's human rights and to compensate her for the breach. And the ONLY course of action open to Italy in this scenario will be to annul the criminal slander conviction without retrial (since there will now be zero usable evidence against Knox in respect of the criminal slander), and to pay her a large sum of money by way of compensation.

So no, the ECHR cannot (and will not) order Italy to quash Knox's criminal slander conviction. But in practice, the ECHR (by means of its judgement and ordering of a full remedy) will place Italy in a position where it has no choice but to quash the conviction.

I meed to make it clear, I am arguing the ultimate effect not the exact mechanisms.

 

[acbytesla]

Yes I think you're absolutely correct. I was meaning that there won't be a conventional trial, but yes, it does seem that there will be an extremely short procedural court hearing which will simply consist of the state offering no evidence and the judge dismissing the case.

I might even fly to Perugia/Florence for that one

That could make one hell of a party. Can you imagine a bunch of the members of FOA and those of us who know that Amanda is innocent being there cheering when the gavel is dropped. An act that should have happened when Rudy was identified.

You could say it was definitive and final proof of the absurdity of this farce.

 

[Desert Fox]

That could make one hell of a party. Can you imagine a bunch of the members of FOA and those of us who know that Amanda is innocent being there cheering when the gavel is dropped. An act that should have happened when Rudy was identified.

You could say it was definitive and final proof of the absurdity of this farce.

At least she has been cleared of the murder convictions - Three of the Norfolk Four still have rape and/or murder convictions when it is clear than Omar Ballard committed the crime alone.

 

[Numbers]

Interesting. But isn't there a problem with this? Whilst Boninsega has accomplished much and while the ECHR cannot permit Gemelli's ruling that the statements against Knox were usable in the callunia trial (because it rendered the trial unfair) he says nothing about Gemelli's ruling on that point of law. Indeed, in ruling out 1:45, Gemelli went as far as Boninsegna on this point. So, I doubt there is scope for a revision trial as per Art 630, (absent an ECHR ruling on the Art 6 matters) unless you have found something else in the article because on the Italian scene, nothing seems to have changed with regards to "facts underlying the judgement". The facts didn't support the judgement then and nor do they do now. But Gemelli and Hellmann both agreed Knox was entitled to her procedural rights, but still permitted the case to proceed based on the statements. Boninsegna did not say that case should not have proceeded.

You may have a point. Gemelli and the courts that convicted Knox of calunnia against Lumumba may have relied on her Memoriale 1 of Nov. 6, 2007 20:00 to introduce the content of the earlier statements. It's not totally clear if the Italian courts would now accept that this "logic" is defeated by the Boninsegna motivation report.

The question is, to assure admissibility by exhausting domestic remedies, should Knox go ahead and seek revision based on Boninsegna? There is a potential penalty - a fine may be imposed that may range from EUR 258 to EUR 2,065 - if the application for revision is ruled not admissible by the Italian court of appeal to which it is submitted (CPP Article 634).

However, the Marasca motivation report includes a statement claiming the futility of Knox seeking revision even if the ECHR rules that her rights were violated by Italy, because they claim her conviction for calunnia was based on statements she made even when not under pressure. They may be referring to Memoriale 1, but they specifically mention her arrest hearing. But she remained silent at her arrest hearing.

In other words, one may conclude that there is a faction among the Italian judiciary determined not to reverse Knox's calunnia decision, even if that requires misstatements by the CSC.

 

[acbytesla]

This.We have, in fact, three courts, Gemelli, Hellmann and Boninsegna all referring to the disquieting circumstances of the interrogation. But, I think, what will make the process of wiping out the callunia conviction much easier this time, is Italy's own approach to these matters following the Dorigo case. They are bound to accept, constitutionally, the direct effects of the convention and specifically, that guilty verdicts cannot survive an Article 6 finding in favour of a complainant.

However, it may well be that a process of revision will in fact take place, procedurally. Such a revision would conclude there is no evidence for the prosecution to present and the court would rule summarily.

I absolutely love the Boninsegna Motivations Report. It is very clear that the interrogation was in violation of Italy's Constitution. It also says what I've been saying all along. It's not really a confession but a description of a dream or images implanted through suggestion.

Beyond the formal aspect, the context in which those statements were made was clearly characterised by a psychological situation which for Amanda Knox had become an unsupportable burden: witness Donnino reports that an outright emotional shock on the part of Amanda Knox occurred when the matter of the exchange of messages with Lumumba was raised.

Now, since Lumumba was in fact uninvolved in the murder, the emotional shock cannot be considered to have arisen from her having been caught (doing what, exchanging a message with a person who had nothing to do with the crime?), but rather from having reached the limit of emotional tension.

In that context, it is understandable that Amanda Knox, yielding to pressure and fatigue, would have hoped to put an end to that situation by giving her interrogators that which, in the end, they wanted to hear: a name, a murderer.

But why Patrick Lumumba, exactly? Because the police had found, on Amanda Knox’s phone, the message “see you later”, sent by her to Lumumba on the evening of November 1; which could also mean she actually intended to see him later to go somewhere, maybe to the house on Via Della Pergola — whence the insistent questioning about that message, its meaning, and its intended recipient.

By “giving up” that name to those who were interrogating her so harshly, Amanda Knox probably hoped to put an end to that pressure, now a true torment after long hours, while adding details and constructing a brief story around that name would certainly not have been particularly difficult, if for no other reason than that many details and inferences had already appeared in many newspapers the next day, and were circulating all throughout the city, considering the modest dimensions of Perugia.

Furthermore, the very manner in which the story is told, as contained not only in the transcripts of the spontaneous statements but also in the note written immediately afterward, makes it seem like the confused narration of a dream, albeit a macabre one, and not the description of events that actually happened — which confirms the state that Amanda Knox was in at the time she made the spontaneous statements and wrote the note, and rules out the possibility that the purpose of either could have been to conceal the name of the actual perpetrator, Rudy Guede, [even] on the assumption that it was known to her, as a co-conspirator

It is indeed totally illogical to suppose that Amanda Knox, if she actually had been a participant in the crime, could have hoped that naming Patrick Lumumba — whom in such case she would have known to be entirely uninvolved and far, even physically, from where the crime took place — would have helped her position in any way; it would, if anything, have been easier for her to indicate the real perpetrator, even while stressing her own absolute innocence: after all, she lived in that house, and for her to have been in her own room at the time of the crime, perhaps actually entertaining Raffaele Sollecito as held by the first-level Corte di Assise, would have been entirely normal, and would certainly not have entailed responsibility for a crime committed by others in the next room.

Thus for Amanda Knox, in the event that she had been inside the house on Via Della Pergola at the time of the murder, the easiest way to defend herself would have been to indicate the true author of the crime, [who would have been] present in any case inside the house, because this would have made her credible; and not to instead indicate a totally innocent individual, whom she had no reason to hope would be without an alibi, and who might have been able to refute the account she had provided to the police.

This Court therefore finds that Amanda Knox had indicated Lumumba as the perpetrator only because, at that moment, it appeared to be the quickest and easiest way to put an end to the situation in which she found herself, her interrogators having insisted on an explanation of the message she sent to him.
It follows from this that, with regard to the murder, not only may the “spontaneous” statements not be used, but in reality neither may the note written later, since, although usable from a procedural standpoint, it does not deserve to be relied upon from a substantive one, as it does not represent what really happened in this case.

If the statements can't be used to substantiate the murder how can they be used to substantiate the callunia?

 

[Bill Williams]

I absolutely love the Boninsegna Motivations Report. It is very clear that the interrogation was in violation of Italy's Constitution. It also says what I've been saying all along. It's not really a confession but a description of a dream or images implanted through suggestion.

Beyond the formal aspect, the context in which those statements were made was clearly characterised by a psychological situation which for Amanda Knox had become an unsupportable burden: witness Donnino reports that an outright emotional shock on the part of Amanda Knox occurred when the matter of the exchange of messages with Lumumba was raised.

Now, since Lumumba was in fact uninvolved in the murder, the emotional shock cannot be considered to have arisen from her having been caught (doing what, exchanging a message with a person who had nothing to do with the crime?), but rather from having reached the limit of emotional tension.

In that context, it is understandable that Amanda Knox, yielding to pressure and fatigue, would have hoped to put an end to that situation by giving her interrogators that which, in the end, they wanted to hear: a name, a murderer.

<............... sinister deletia ...................>​

It follows from this that, with regard to the murder, not only may the “spontaneous” statements not be used, but in reality neither may the note written later, since, although usable from a procedural standpoint, it does not deserve to be relied upon from a substantive one, as it does not represent what really happened in this case.

If the statements can't be used to substantiate the murder how can they be used to substantiate the callunia?

What is totally remarkable about the Boninsegna report, is that one actually reads a jurist connecting the available dots, and never abandoning logic when moving from point to point. Even the Marasca/Bruno report has the occasional boner - and, no, it's not the stuff from 9.4ff to the end of section 9.

M/B makes the remarkable claim, even in exonerating the pair, ..... well, one of the "shadows" Luca Cheli speaks of puts it succinctly, when he says one of them ....

is the dogmatic assertion that an interrogation in front of the prosecutor is a “context institutionally immune to anomalous psychological pressures”.
Whatever that “institutionally” may mean, there are a few videos in Italy showing that that’s not exactly the case. Cases in which interrogations were recorded.​

What is it about this case that even when coming to the right outcome, people like M/B need to say something as ridiculous as that - defending the undefendable?

After eight years of judicial stupidity and taking PM's at their word regardless of the evidence, it's good to read something like what Boninsegna wrote.... just going step by step through what's what and seemingly not once making a misstep.

And most certainly not letting a former "judicial truth" lock him into an inanity. It's not so much the conclusion he arrives at that is so remarkable, it's the way he goes about it - given all we've read in the past 8 years!

So - let's cut the bull, lay all the judicial truths aside for a minute and consider what's what....... Boninsegna id's the elephant in the room with a simple and elegant......

It follows from this that, with regard to the murder, not only may the “spontaneous” statements not be used, but in reality neither may the note written later, since, although usable from a procedural standpoint, it does not deserve to be relied upon from a substantive one, as it does not represent what really happened in this case.​

A flash of the blindingly obvious. Compared with a claimed "context institutionally immune to anomalous psychological pressures" there is no contest.....

 

[acbytesla]

What is totally remarkable about the Boninsegna report, is that one actually reads a jurist connecting the available dots, and never abandoning logic when moving from point to point. Even the Marasca/Bruno report has the occasional boner - and, no, it's not the stuff from 9.4ff to the end of section 9.

M/B makes the remarkable claim, even in exonerating the pair, ..... well, one of the "shadows" Luca Cheli speaks of puts it succinctly, when he says one of them ....

​

What is it about this case that even when coming to the right outcome, people like M/B need to say something as ridiculous as that - defending the undefendable?

After eight years of judicial stupidity and taking PM's at their word regardless of the evidence, it's good to read something like what Boninsegna wrote.... just going step by step through what's what and seemingly not once making a misstep.

And most certainly not letting a former "judicial truth" lock him into an inanity. It's not so much the conclusion he arrives at that is so remarkable, it's the way he goes about it - given all we've read in the past 8 years!

There is something bizarre about these motivation reports with the exception of Boninsegna and to a lesser degree Hellmann. And that is convoluted language and logic. Massei was horrible, Nencini was outright bizarre, Chieffi was twisted and MB wasn't much better.

Boninsegna was the first motivation that I could read easily and watch his mind thinking through the case. While he didn't come out and say the police and Mignini was lying it's clear what he thought of them and this crappy case they brought to his courtroom. He basically said they should have been doing their jobs professionally not putting this poor girl through hell during the investigation let alone bringing this moronic case against her 8 years later.

 

[Bill Williams]

There is something bizarre about these motivation reports with the exception of Boninsegna and to a lesser degree Hellmann. And that is convoluted language and logic. Massei was horrible, Nencini was outright bizarre, Chieffi was twisted and MB wasn't much better.

Boninsegna was the first motivation that I could read easily and watch his mind thinking through the case. While he didn't come out and say the police and Mignini was lying it's clear what he thought of them and this crappy case they brought to his courtroom. He basically said they should have been doing their jobs professionally not putting this poor girl through hell during the investigation let alone bringing this moronic case against her 8 years later.

All I have this morning are well worn bon mots.

Remember when Einstein said that the best theories are as simple as possible, but no simpler? I read that in the Boninsegna report as well.

 

[acbytesla]

All I have this morning are well worn bon mots.

Remember when Einstein said that the best theories are as simple as possible, but no simpler? I read that in the Boninsegna report as well.

Not too complicated or too simple, but just right. Baby bear is happy.

 

[Kauffer]

I absolutely love the Boninsegna Motivations Report. It is very clear that the interrogation was in violation of Italy's Constitution. It also says what I've been saying all along. It's not really a confession but a description of a dream or images implanted through suggestion.



If the statements can't be used to substantiate the murder how can they be used to substantiate the callunia?

Re: your last point. This is a question that has been properly asked for a long time. The statements were ruled out by Gemelli. It's just that Boninsegna has gone even further than Hellmann in his critique of the final interrogation. He hasn't actually said the statements should not have been used. But the ECHR will.

 

[Kauffer]

You may have a point. Gemelli and the courts that convicted Knox of calunnia against Lumumba may have relied on her Memoriale 1 of Nov. 6, 2007 20:00 to introduce the content of the earlier statements. It's not totally clear if the Italian courts would now accept that this "logic" is defeated by the Boninsegna motivation report.

The question is, to assure admissibility by exhausting domestic remedies, should Knox go ahead and seek revision based on Boninsegna? There is a potential penalty - a fine may be imposed that may range from EUR 258 to EUR 2,065 - if the application for revision is ruled not admissible by the Italian court of appeal to which it is submitted (CPP Article 634).

However, the Marasca motivation report includes a statement claiming the futility of Knox seeking revision even if the ECHR rules that her rights were violated by Italy, because they claim her conviction for calunnia was based on statements she made even when not under pressure. They may be referring to Memoriale 1, but they specifically mention her arrest hearing. But she remained silent at her arrest hearing.

In other words, one may conclude that there is a faction among the Italian judiciary determined not to reverse Knox's calunnia decision, even if that requires misstatements by the CSC.

They will simply have no choice but to reverse the callunia once the ECHR rules that you cannot disallow statements for breach of procedural rights for one trial and yet use them for another. As for the memoriale, if Marasca really thinks that document will survive such that the ECHR will not conclude the callunia trial was unfair, he doesn't know the law. It was so unfair, Knox was sued for defending herself. Yet the Boninsegna court prefers her version of events over that of the police - which is perhaps the biggest power it has overall.

As for revision at this stage, I don't think she has grounds and I don't think it matters. The only real question I suppose may arise if Italy claims Knox should have raised a querala, but that's not going to be held as legitimate. The very memoriale to which Marasca refers contains the essence of the complaint, such a complaint having of course been raised again at trial.

 

[acbytesla]

Re: your last point. This is a question that has been properly asked for a long time. The statements were ruled out by Gemelli. It's just that Boninsegna has gone even further than Hellmann in his critique of the final interrogation. He hasn't actually said the statements should not have been used. But the ECHR will.

I'm reading between the lines a little Kauffer. I think he's definitely saying the statements should not have been used. But I think he's practicjng a little bit of double speak so he's consistent with the unconsistent previous rulings. That keeps his ruling safe from the moronic CSC.

But you're right the ECHR will make it clear.

 

[Numbers]

They will simply have no choice but to reverse the callunia once the ECHR rules that you cannot disallow statements for breach of procedural rights for one trial and yet use them for another. As for the memoriale, if Marasca really thinks that document will survive such that the ECHR will not conclude the callunia trial was unfair, he doesn't know the law. It was so unfair, Knox was sued for defending herself. Yet the Boninsegna court prefers her version of events over that of the police - which is perhaps the biggest power it has overall.

As for revision at this stage, I don't think she has grounds and I don't think it matters. The only real question I suppose may arise if Italy claims Knox should have raised a querala, but that's not going to be held as legitimate. The very memoriale to which Marasca refers contains the essence of the complaint, such a complaint having of course been raised again at trial.

Yes, I agree that the Boninsegna MR is not quite up to providing a strong enough case to allow for a revision trial. I was too enthusiastic about it in my earlier post. It is a good final judgment in favor of Amanda and of justice.

Boninsigna's MR can be characterized as: 1) Not overruling Gemelli about the procedural aspects of using the Memoriale to introduce Amanda's statements against Lumumba; 2) Not explicitly stating that Hellmann's judgment of conviction was arbitrary; 3) Pointing out the unreliability of the Memoriale as evidence of guilt of calunnia and its lack of substance regarding the facts of the murder; 4) Not commenting on the Marasca MR statement about revision not being justified by the evidence, even if the ECHR declared Italy had violated Amanda's rights. Boninsegna was limited since he could only address the issues most immediately relevant to calunnia against the police charge, and he would have had no need to rule against Gemelli's procedural sleight-of-hand for the calunnia against the police case.

 

[acbytesla]

Yes, I agree that the Boninsegna MR is not quite up to providing a strong enough case to allow for a revision trial. I was too enthusiastic about it in my earlier post. It is a good final judgment in favor of Amanda and of justice.

Boninsigna's MR can be characterized as: 1) Not overruling Gemelli about the procedural aspects of using the Memoriale to introduce Amanda's statements against Lumumba; 2) Not explicitly stating that Hellmann's judgment of conviction was arbitrary; 3) Pointing out the unreliability of the Memoriale as evidence of guilt of calunnia and its lack of substance regarding the facts of the murder; 4) Not commenting on the Marasca MR statement about revision not being justified by the evidence, even if the ECHR declared Italy had violated Amanda's rights. Boninsegna was limited since he could only address the issues most immediately relevant to calunnia against the police charge, and he would have had no need to rule against Gemelli's procedural sleight-of-hand for the calunnia against the police case.

I think he was also clear that Amanda's constitutional rights were not safeguarded and that the police and PM were not to be believed in their description of the interrogation. His pointed reference of the minutes recorded by the police as obviously too short for the duration of such an interview is telling. He was not in position to toss the callunia charge involving Patrick but it's clear to me that if he could, he would.