Bill Williams
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I see no indication at all that this is what Marasca believes.
Who killed Meredith Kercher? part 23
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I see no indication at all that this is what Marasca believes.
1. Yes.
2. The Marasca CSC panel MR indeed suggests the ECHR may judge that Knox's rights were violated, but indicates (absurd) reasons why the conviction of Knox for "simple" calunnia against Lumumba was proper. The Marasca panel, in annulling without referral the Nencini court's new conviction and increased sentence of Knox for aggravated calunnia against Lumumba, restated that Knox's previous conviction and sentence of simple calunnia, made final and definitive by the Chieffi CSC panel, remained valid. Knox had already served this sentence of three years before her release under the "preliminary" acquittal for murder/rape delivered by the Hellmann court.
3. There was no procedural path under Italian law for the Marasca CSC panel to remedy the (wrongful) conviction of Knox for "simple" calunnia against Lumumba. Only a revision court could address this issue. The Marasca CSC panel could have been courageous and pointed out that there were flaws with the conviction based upon Italian law, Constitution, and the Convention, but they would not have been authorized to overturn it. However, the Marasca CSC panel MR actually injects prejudice against Knox in its discussion of a potential ECHR judgment in her favor.
4. Huh? And what does "soon enough" mean?
5. I must agree with Bill on this.
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Bill Williams
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Faint. dead. Away.
bagels
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Guessing Marasca's motivations seems like tea leaf reading to me. But I think the obvious outcome of confirming Nencini: an Italian citizen nobody cares about goes to prison for life, nothing happens to the subject of all interest Amanda Knox, was very much a factor.
Hellmann ended this case in 2011.
Hellmann ended this case in 2011.
LondonJohn
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On your points (2) and (3), this is in line with what I'm suggesting: the Marasca panel is unwilling to provoke a constitutional dissonance by contradicting the previous SC-affirmed findings in respect of Knox's criminal slander conviction. I also think that in addition to this procedural reason, there's a strong element of self-protection (of the Italian criminal justice system, and the SC in particular) in the way the Marasca panel approached this matter. I believe the Marasca panel took great care to support and back up the prior SC ruling; and I believe a good part of its motive in doing so was to protect the perceived competency, judicial inviolability and sanctity of the SC.
IMO, If Marasca had said - or even implied - that the SC had screwed up in its analysis and judgement on the criminal slander matter, this would obviously had raised questions about the competency and legitimacy of the SC in general. And that might have significant wider implications on the entire administration of justice: "If the Supreme Court itself doesn't know what it's doing and can't get things right, then what hope does anyone have for justice from any part of the system from first courts on upwards?" I think this accounts for the (as you say) bizarre and unfounded "reasoning" of the Marasca panel as to why the prior SC-affirmed ruling on Knox's criminal slander conviction was safe and proper.
But I do think there are pointers to the SC panel actually believing the criminal slander verdict to have been incorrect, unjust and unlawful. The first is the judgement and reasoning on the murder charges themselves: the Marasca court is forced to take the SC "reasoning" on the criminal slander charge regarding Knox's actual presence in the cottage at the time of the murder and assistance of the murderer, for example (which crops up in its "hypotheticals" section and in its judgement-proper), yet Marasca annuls Knox's (and Sollecito's) convictions entirely and declares the case null and void. And there are, IMO, other pointers. There is, for example, this paragraph, which explains why the Marasca panel cannot entertain any part of the defence appeal which questions the validity or lawfulness of Knox's criminal slander conviction:
"It is hardly necessary to add that the result of the judgement precludes consideration of any other defence plea, deduction or request as absorbed or implicitly rejected, while any other line of argument, among those not examined, are considered inadmissible as, clearly, it would enter in
to the merits of the judgement."
Of course I might be entirely wrong in my opinion of what the Marasca court really thinks - and after all, that's all it in in any case: an opinion and a supposition. And at the end of the day, what the Marasca court might or might not have "really thought" is somewhat irrelevant and moot anyhow. All that matters is the actual judgement it made (and the areas of prior SC judgement it either avoided or endorsed).
And ultimately, of course, all that matters is the final outcome, and the route taken to that outcome. I - like you - believe that the final outcome in this case will be that there will be no successful judicial challenge to the Marasca acquittals/annulments, and that the ECHR will rule in Knox's favour (meaning, in effect, that Italy will have no choice but to acquit and annul in respect of the criminal slander charge, unless it chooses to ignore the ECHR). And the net result of all of that will be that both Knox and Sollecito will (finally) stand entirely acquitted and exonerated on all charges.
Somewhat contradicting your view that the Marasca CSC panel held other CSC panel judgments unimpeachable, the Marasca CSC panel MR called the Chieffi CSC panel legally wrong - a violation of Italian Constitutional and procedural law - on the issue of Chieffi's and then Nencini's use of the Guede fast-track trial verdict in the Knox - Sollecito verdict. Of course, that violation of law had not been made final and definitive, while the use of Knox's statements in an interrogation without a lawyer - in violation of Italian Constitutional and procedural law - was made final and definitive by Chieffi's verdict accepting the Hellmann court conviction of Knox on the "simple" calunnia against Lumumba charge against Knox. What is arbitrary in the Marasca CSC panel MR is their going beyond merely stating that the final and definitive conviction on the "simple" calunnia is reinstated over the Nencini court's conviction for aggravated calunnia, but in Marasca's own violation of presumption of innocence, stating that a revision trial following an ECHR judgment that Italy had violated Knox's rights in convicting her of calunnia could not be reversed, and attributing this in part to a (false) claim that Knox had restated Lumumba's involvement during the preliminary arrest hearing. (Knox was actually silent during that hearing, on her lawyer's counsel.) These statements by a CSC tribunal must be viewed as an attempted violation of the independent judgment allowed to a revision court.
LondonJohn
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And Marasca had effectively no choice but to argue an error by Chieffi (endorsed by Nencini) in respect of importing the Guede verdict into the Knox/Sollecito trial process - since a) this was directly related to the Knox/Sollecito charges upon which the Marasca court was ruling; and b) Marasca had to contradict in order to reach the verdict that it reached. While Marasca had to contend with certain issues in respect of Knox's criminal slander charge, it was never central to the murder charges (not least because Knox's statements could never be used against her in any case, and her statements never mentioned nor implicated Sollecito in any way).
Any Supreme Court (or appeal court, for that matter) which overturns a verdict when that verdict has already previously been affirmed (or appeal rejected) by a court of the same level has the potentially-uncomfortable prospect of contradicting and criticising its own peers (unless it's a case of material new evidence coming to light). In this case, Marasca had effectively no choice but to criticise the Chieffi ruling in respect of the importing the Guede trial. But in respect of the criminal slander case, Marasca was only adjudicating the aggravation element found by the Nencini court. Once it had dismissed that, it had neither the motivation nor the authority (without causing constitutional problems) to criticise - let along contradict - the basic criminal slander conviction that had previously been signed off by the SC.
Aside from that, I agree totally with you that the Marasca panel went off-base in its comments on Knox's criminal slander, including that misguided and incorrect statement about Knox's repeated admissions before the preliminary arraignment court. And since this was beyond the remit of Marasca's court in any event, it's very strange as to why it deviated off in that direction. There are other areas of the Marasca report that I find equally strange, especially where it veers off into imagined scenarios that are based on nothing much more than unsupported opinion (e.g. where it suggests that Kercher's neck's knife wounds somehow could not have been inflicted by just one person - a bizarre, unsupported and fundamentally incorrect and improper piece of reasoning).
Bill Williams
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LondonJohn said:
It's one thing to say that the Marasca motivations report had to skirt around potential conflicts with judicial peers.....
It's quite another to imply, as you did in a previous post, that Marasca really in his heart felt that Knox was innocent of calunnia. So much so that he secretly hoped that ECHR would sort it out.
That's not my reading of the motivations report. At. All.
Marasca writes about the futility of using that route. (Numbers may believe it is not futile, but one cannot argue that Marasca saw it tha way, too.)
The hallmark of this whole process - Hellmann and the 5th Section of ISC included - is the times that they ride madly off in all directions. Many here have made the argument that Hellmann acquitted in 2011, but threw a bone to the prosecution by convicting on the Lumumba calunnia. (What did it matter, the pair were going to be released anyway.)
There is obviously something in Italian jurisprudence that seems wacky to us in the world descended from English law. I'd suggest it is us who do not "get" the peculiar "honour laws" in Italy, and therefore we default to the conspiratorial explanation.
Don't et me wrong - I am quite happy that I live in a world where one can criticize a prosecutor with little fear of prosecution. Of course, even that has limits in our world. But I like it that our system seems to lean heavily into the right of being able to offer a full defence, mostly unhampered by the whims of a prosecutor whose feelings may be hurt by it.
But, again, there's no reason to believe that Marasca was anything less than sincere in implying that the ECHR can take the calunnia application and shove it. Italy has already definitively decided, and now Italy's honour is at stake.
Bill Williams
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In all this, though, it can only be underlined how much the 2015 Italian Supreme Court completely trashed the Nencini court and its conviction of Sollecito and Knox.
Chief at the top of that is the Marasca/Bruno report saying that Nencini improperly took the 2013 ISC referral as a direction to convict. Just behind that is the way, acc. to Marasca/Bruno, Nencini substituted himself for the forensic experts.
But returning to dashing off madly in all directions for a minute..... then it comes to the calunnia aimed at Lumumba..... one of the chief reasons Marasca/Bruno say that that needs to be upheld is because the calunnia was made in a context, "institutionally immune" from abuse, "in conditions of
objective tranquillity, free from external conditioning".
Madly off in all directions. Marasca seems to agree with Vixen that an interrogation and aftermath are by their nature pleasant things.
Chief at the top of that is the Marasca/Bruno report saying that Nencini improperly took the 2013 ISC referral as a direction to convict. Just behind that is the way, acc. to Marasca/Bruno, Nencini substituted himself for the forensic experts.
But returning to dashing off madly in all directions for a minute..... then it comes to the calunnia aimed at Lumumba..... one of the chief reasons Marasca/Bruno say that that needs to be upheld is because the calunnia was made in a context, "institutionally immune" from abuse, "in conditions of
objective tranquillity, free from external conditioning".
Madly off in all directions. Marasca seems to agree with Vixen that an interrogation and aftermath are by their nature pleasant things.
Again, I find that I must agree with Bill.
Whether or not Marasca believed what the Marasca CSC panel wrote in their MR, the implication is that the ECHR can't touch Italy's judgment on the calunnia. And based on that MR section, the Italian judiciary will make it so, even by misstating (lying about) otherwise provable facts.
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LondonJohn
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But I'm suggesting that Marasca is only saying those things because those are part-and-parcel of the rationale underpinning Knox's conviction for criminal slander in the first place - as ratified by the Supreme Court. If Marasca were even to suggest that coercion and unlawful pressure had been used on Knox in that interrogation, this would effectively be attacking the previous SC-ratified verdict and motivation (which was wholly predicated on the supposition that this was indeed a "tranquil" "information-gathering" "conversation", within which Knox suddenly "decided" to accuse Lumumba (and implicate herself into the bargain).
Intent and context were absolutely central to the criminal slander conviction. If one believed (as did Massei, Hellmann and Chieffi) that Knox's statement came somewhat "out of a clear blue sky", and that Knox knowingly made that statement of her own free will, then that leads to a criminal slander conviction. If, on the other hand, one believes there's even a reasonable chance that Knox was improperly coerced into making that statement under duress, such that it could be argued that Knox might not reasonably have had the required intent (borne of free will) when she made that statement, then this would almost necessarily require an acquittal on the criminal slander charge.
Ergo: any suggestion by Marasca that Knox's statement was made under anything other than her uncoerced free will, or that it was the product of anything other than a "tranquil" "interview", would be to raise a challenge to the very validity of the conviction itself. That's why I'm suggesting Marasca was so ready to repeat all this stuff in respect of the criminal slander conviction.
And since the criminal slander conviction places Knox - by her own statement - within the cottage at the time of the murder, and since Marasca is pretty unequivocal in its (correct) reasoning that there's nothing whatsoever by way of evidence that points to the participation in any way of either Knox or Sollecito in the murder, this is what leads to my supposition that Marasca believes Knox's statement to be fundamentally false, and to therefore likely have been made under some form of duress. Why else, after all, would somebody who wasn't involved in a murder (and where evidence of their participation one would expect to have found but did not find) make such a statement of their own unfettered free will?
And, by the way, I never said or implied anything to the effect that "Marasca really in his heart felt that Knox was innocent of calunnia. So much so that he secretly hoped that ECHR would sort it out." (from an earlier post). All I ever said or implied was that Marasca was happy not to open any cans of worms in respect of the criminal slander conviction (which therefore necessarily entailed agreeing with the prior SC rationale driving the conviction), in the knowledge that the ECHR is currently examining it. In fact, what I precisely said was:
"My belief, based on the tone of the rest of the Marasca report, is that the Marasca panel believes there's no evidence that either Knox or Sollecito had anything to do with the murder. But it has to go along - for now - with the judicial reasoning driving the SC-affirmed verdict in the Knox criminal slander trial. Of course, the Marasca panel also knows full well that an ECHR application is well under way in that case. My reading is that Marasca expects the ECHR to sort things out properly and fairly in respect of the criminal slander conviction; and this (IMO) also informed the Marasca panel decision not to open an internal constitutional can of worms at this stage by contradicting the previous SC ruling on the criminal slander conviction - Marasca believes that the ECHR will fix this soon enough anyhow....."
And none of this imputes any suggestion that Marasca "felt in his heart that Knox was innocent of criminal slander", nor that he "hoped" the ECHR would resolve things in that direction. Rather, I was suggesting that Marasca knew this matter would be resolved by the ECHR, and that even though elements of the motivations for the criminal slander conviction tend to clash with Marasca's own motivations on the murder charges, the Marasca court deliberately steered clear of any conflict on this matter.
But anyhow, I think we're all risking getting too bogged down in this. My comment was only intended as a parenthetical throw-away speculative opinion (indeed, it was posted within parentheses as a clue.....). It was, and remains, nothing more than a speculative opinion. As others have said, it's of no relevance or importance to try to "get into the head" of the Marasca court - all that matters is its verdict and its motivations report, and the implications of both.
LondonJohn
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Maybe so. As I said, I was only voicing a speculative opinion, based on the apparent contradictory factors between key findings in the criminal slander conviction and the fundamental finding of the Marasca SC panel.
I do agree that the Marasca panel's report is hostile to the idea of the ECHR countermanding the verdicts of the Italian courts (a common reactionary stance among judiciaries everywhere, probably.....). But that is not to say that the Marasca court agrees with the verdict on the criminal slander per se. It's perfectly possible, for example, for the Marasca panel to disagree with the criminal slander conviction and motivation, and to not want to broadcast its disagreement (both because this is outside its remit and because it has no wish or appetite to contradict or challenge another SC ruling), but to be hostile to the idea of a non-Italian supra-national judicial body telling the Italian judiciary what to do.
Anyhow...................................................
Bill Williams
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(In parentheses as a further clue - I think it is a reasonable reading of the posts that the inference is being made that Marasca secretly believed them to be innocent, but was hampered by a judicial fraternity pledge of some sort.)
In any event, I'm not thinking clearly..... still trying to recover from Numbers agreeing with me!
Vixen
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(In parentheses as a further clue - I think it is a reasonable reading of the posts that the inference is being made that Marasca secretly believed them to be innocent, but was hampered by a judicial fraternity pledge of some sort.)
In any event, I'm not thinking clearly..... still trying to recover from Numbers agreeing with me!
It is irrelevant what Marasca 'secretly thought'. A judge's first duty is to the Court, not to the defendant. And even if the judge is corrupt (as I believe the Marasca and the Hellmann court were) the conspiracy to render guilty persons innocent isn't going to extend to Strasbourg in Switzerland. The ECHR is a completely independent court with a different mission. Whether guilty or innocent, their focus will be, 'Was it a fair trial' as defined by the scope of their jurisdiction.
They will not note what Marasca was trying to write between the lines.
Yet another Vixen error of fact. i await the Vixen post that does not contain at least one falsehood. Strasbourg is variably in France or Germany, depending on the year (or neither when a 'free' city), but NEVER Switzerland.
bagels
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What will the PGP fall back position be after the ECHR vanquishes the calunnia charge?
From what I've seen so far, I expect the official position to be "the right to silence hinders catching killers."
Ironically this case is probably the worst possible flagship case to make that argument. Because in this case the right to silence being observed would have lead to everyone receiving due justice. Meredith's killer would have been caught and prosecuted for his fatal actions (Rudy Guede) and he wouldn't have escaped scrutiny from a sideshow prosecution of two innocent people, who would now have their life back, and the victim's family would have gotten closure.
After every last thread of prosecution has been permanently severed the PGP still wont spend a single moment on retrospection. It's not a rational group. There isn't a rational mind among them.
There are probably rational people that think Amanda may have gotten away with something, or knows more than we do, but they're not PGP, because they look at the mess of a case with a healthy mind and go "Oh yeah, I see why she was acquitted" and then move on to something else.
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Vixen
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bagels,
To be fair, whenever there is a crime, should we really only convict the person of whom there is evidence? We can never be certain that there weren't an infinite number of unnamed suspects who cleaned up after themselves. And uh... left evidence of one person. That happened to match the circumstances of his previous crime.....
But anyway maybe there are a couple foreigners that don't speak the language that we could slap around and intimidate a confession out of. Don't you think we would all feel safer as a result?
Bill Williams
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I don't think I've ever read any of the PGP say anything other than praise for the prosecution and the convicting courts. Indeed, when it was pointed out to Vixen that Judge Nencini in his 2014 conviction of the pair, said that Raffaele's DNA was found on the knife**** the only thing that Vixen offered was that the motivations report should have been proof-read better.
When the PGP show they can critique the prosecution and the courts....
**** will save it for others to point out what was wrong with this assertion/invention of Nencini's
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