Who killed Meredith Kercher? part 23

[js202]

The nose knows...

I obviously agree there is full evidence of Knox's malice.
But if we just note the judges' findings, they say Knox's calunnia was a "prolonged behaviour". And there is not even a *claim* of coercion in this case - the defensive theory was false memory syndrome, not coercion.



What version of events? What she claimed in the trial? The version of events she presented in the trial was almost identical to the police version. The only difference was her memory of receiving a hit at the back of the head during the 1st police interrogation.
There was no other defensive claim about any other difference. The official version of events was undisputed. At least of those observable events (false memory syndrome cannot be observed). That was her position in the trial.

I'll only be fully persuaded when you reliably inform us you've gotten close enough to smell her. More than any mere ruling by the paltry ECHR, only your legendary olfactory talents will tip the scales as to Knox's true culpability.

 

[Machiavelli]

On the other hand, the Cassazione also issued a famous sentence on the *interpretation* of the concept of "reasonable doubt", on a famous case (the Cogne murder) that ended with the conviction of Annamaria Franzoni.
On that case the Court (United Sections) made a point of law defining when doubt is "not reasonable" (albeif theoretically possible). That way jurisprudence also established that not every doubt that is only "in rerum natura" is also a "reasonable doubt".
How to distinguish a doubt that is reasonable from one that is not?
The Court said: evidence depends on a comparison between two logical alternatives. If the alternative exculpatory theory which is possible in rerum natura would require a sequence of hypothesys that are remote or unlikely, the alternative explanation cannot be considered reasonable.

 

[Machiavelli]

I'll only be fully persuaded when you reliably inform us you've gotten close enough to smell her. More than any mere ruling by the paltry ECHR, only your legendary olfactory talents will tip the scales as to Knox's true culpability.

Evidence is about cases, not about qualities of people.

(I know assessing Guede's color - or Mignini's accent - might be enough to *your* legendary qualities).

 

[Machiavelli]

As for the existence of "beyond reasonable doubt" in Italian jurisprudence doctrine since the sixties:

http://www.penalecontemporaneo.it/upload/1403195064DELLA%20TORRE_2014.pdf

 

[Bill Williams]

But it is completely false. The inquisitorial system had nothing like a "presumption of guilt".

And by the way, the presumption of innocence has nothing to do with the principle of reasonable doubt: those two principles are just independent.

So, just so as to understand you, you are claiming that these quoted critical essays on the Italian system, written in Italy, is false?

 

[bagels]

And there is not even a *claim* of coercion in this case - the defensive theory was false memory syndrome, not coercion.

False memory brought on by coercion, they are not mutually exclusive claims.

Your opinion on the ECHR case is about as meaningful as the fox's opinion on the hen house security. I'll wait and see what Strasbourg actually decides.

 

[js202]

Evidence is about cases, not about qualities of people.

(I know assessing Guede's color - or Mignini's accent - might be enough to *your* legendary qualities).

Ah yes, your quaintly bizarre racism meme. I have a Roman friend - at whose upstate New York country home my family and I were guests just last weekend - who would guffaw in your general direction.

 

[acbytesla]

yes, it is now a proven fact that Amanda Knox was on the murder scene when Meredith was killed, that Meredith was killed by multiple persons (and Guede was not the one holding the knife) and Knox washed her hands of Meredith's blood.
It is also proven that she falsely accused an innocent voluntarily and that false accusation was a prolonged behaviour, and any alleged violation would be irrelevant to the evidence on the point.

It is also obvious that the trial was annulled for political reasons, just like the Andreotti trial, by a judge who was a former politician (and formerly investigated, but "saved"), and was annulled because, after the corruption with a political imprimatur of the Hellmann trial, that would have created a situation in which Sollecito would be the only person who goes to jail (while USA would refuse to extradite Knox), a situation obviously non sustainable on the international leval because in that situation those who "know" would blackmail and destabilize too many people.

Dream on. Revisionist history and sour grapes. None of your bs is true.

 

[Bill Williams]

Dream on. Revisionist history and sour grapes. None of your bs is true.

What the last vestige of conspiracist latches onto is the misguided view that the ISC "proves facts". What the ISC ruled on in 2015 was whether or not Nencini should have convicted with what Nencini had in front of him.

Rather than ruling on any of that stuff, Machiavelli should read the ISC report from Section 8 onwards, which the ISC uses to demonstrate the contradictory nature of the evidence, and as such annulled the conviction.

There are some who want to push that the ISC agreed that the evidence convicts the pair, but they decided to acquit anyways. Starting one's reading from Section 8 shows what a devestating critique the ISC had in store for a court, which believed it had been ordered to convict by the 2013 ISC. Source: Francesco Maresca's memoirs.

 

[Numbers]

On the relationship between the Public Prosecutor and the Criminal Police.

The Code gives the Public Prosecutor an active role as a leader of preliminary investigations. Firstly, the Italian Public Prosecutor can actively search informations relating to the offence (notitiae criminis), and not just passively receive information provided by the police (Article 330). Secondly, when he finds or receives a report of a criminal offence, he leads the investigation and directs the criminal police (Article 327).
....

Under the old Code, there was a very feeble link between the Public Prosecutor and the criminal police. Consequently, in 1988, to give effect to Article 109 of the Italian Constitution*, the new Code completely modified the relationship between these subjects.

In terms of personnel relations, criminal police officers and officials report to the criminal police corps they belong to, and, ultimately, to the competent Ministry ...; but the Code has strengthened the functional dependence of criminal police upon Prosecutors. {This includes but is not limited to police departments at the disposal or attached to each Office of the Public Prosecutor of the Republic (CPP Article 58).} The members of these departments are police officers, who can only play a criminal investigation activity and the Public Prosecutor can command them (CPP Article 59).

Also, there are the following procedural laws:

CPP Article 55 Functions of criminal police

1. The criminal police shall, even on its own initiative, receive notitae criminis {a notice conveyed to a prosecutor that a crime is alleged to have occurred}, prevent offences from producing further consequences, search for offenders, take any measures necessary to ensure sources of evidence and collect any other material which may be needed for the application of criminal law.

2. The criminal police shall carry out any investigation and activity ordered or delegated by the judicial authority.

3. The functions referred to in paragraphs 1 and 2 shall be carried out by criminal police officials and officers.

CPP Article 56 Criminal police units and departments

1. Criminal police functions shall be carried out under the supervision and direction of the judicial authority by:
A) criminal police units as established by law;
B) criminal police departments established at each Office of the Public Prosecutor of the Republic and made up of personnel from criminal police units;
C) criminal police officials and officers belonging to other bodies required by law to carry out investigations after receiving a notitia criminis.

CPP Article 326 Purposes of preliminary investigations

1. The Public Prosecutor and the criminal police, within their respective responsibilities, shall conduct the investigations necessary for deciding to conduct a criminal prosecution.

CPP Article 327 Management of preliminary investigations

1. The Public Prosecutor shall manage investigations and the criminal police shall be at his direct disposal. Even after notifying the notitia criminis to the Public Prosecutor, the criminal police shall continue to carry out activities on its own initiative following the procedures described in the Articles below. {The "Articles below" are Articles 347 - 357; for example, Article 350 Investigative questioning of the suspect, allows for the police to question a suspect who has not been arrested, but the police must follow the procedure of Article 64 and require the suspect to retain a lawyer prior to questioning and conduct the questioning only in the presence of the lawyer (CPP Article 350.3). If the person is questioned as a witness, CPP Article 351 applies, and also Article 63, regarding incriminating statements.}

*Art. 109, It. Const. The judicial authorities have direct use of the criminal police._____
Conclusion: The activities of the criminal police are managed and directed by the Public Prosecutor in an investigation, but the police may carry out some activities on their own initiative as well. This applies to all the police working on the investigation, and not only to those who may be at the disposal of the Office of the Public Prosecutor.
The Italian Public Prosecutor has the status of a magistrate and thus part of the judicial authority.

Source:
Gialuz, Luparia, and Scarpa, eds. The Italian Code of Criminal Behavior: Critical essays and English translation, Wolters Kluwer Italia (C) 2014, p. 23, 25 - 26

 

[Numbers]

The new Code of Criminal Procedure of 1988 represented a revolution, inspired by the Anglo-American adversarial system. The break with the past was clear: abolition of the investigating judge; preliminary inquiry conducted by both parties; adversarial presentation of evidence and cross-examination at trial; strong reduction of the judge's ability to introduce evidence (limited to the case of absolute necessity, such that he could not otherwise decide in favour of either party). Another primary difference is the strict separation of the trial phase from the preliminary investigation ....

The goal was to prevent judicial prejudice founded on knowledge of the investigations conducted by the prosecutor and by the police. ....

Source: The frustrated turn to adversarial procedure in Italy (Italian Criminal Procedure Code of 1988), Giulio Illuminati; 4 Wash U Glob Stud L Rev 567(2005)

An anonymous internet poster makes certain claims about Italian law, contradicting statements written by Giulio Illuminati, Professor of Criminal Procedure, Head of the Department of Law, University of Bologna, or Mitja Gialuz, Professor of Criminal Procedure, University of Trieste.

Who is correct and who is mistaken about these aspects of Italian law?

 

[Bill Williams]

An anonymous internet poster makes certain claims about Italian law, contradicting statements written by Giulio Illuminati, Professor of Criminal Procedure, Head of the Department of Law, University of Bologna, or Mitja Gialuz, Professor of Criminal Procedure, University of Trieste. Who is correct and who is mistaken about these aspects of Italian law?

This anonymous poster must have a source of knowledge unavailable to the rest of us. He's convinced Hellmann and De Nunzio from the Perugian Court of Appeals are criminals, even claims to know the size of the bribe one of them received to fix the 2011 trial. But what we don't have is sources, just allegations. It's amazing that some enterprising Italian journalist does not run with this story? Because surely this conspiracy must be known by more people than just this lone, anonymous poster. He's told us upthread that a plain reading of the text of the eventual 2015 ISC motivations report exposes it as illegal and subject to obvious political interference. Yet no one else in Italy seems to know about it. Or maybe everyone is simply too scared to do anything about it. Or maybe the conspiracy is simply all made up. It's hard to decide. It's been two years and except for things like Rudy's attempt to get a revision trial, the media doesn't much cover this any more. When they do, they routinely refer to the 2015 ISC action as an exoneration. You'd think they'd refer to it as a scandalous political farce, begun with the Hellmann trial, but the media seems cowed into silence about that. Must be Omerta.

 

[Sergei Walankov]

yes, it is now a proven fact that Amanda Knox was on the murder scene when Meredith was killed, that Meredith was killed by multiple persons (and Guede was not the one holding the knife) and Knox washed her hands of Meredith's blood.

What the court found was that even allowing for the strong suspicion that Knox was in the house that evening, based on the bathroom DNA swab, it cannot possibly be that the explanation for this is that Knox or Sollecito murdered Kercher, because the lack of biological evidence at the crime scene definitively rules this out. Invoking "proof" of multiple attackers merely demonstrates what a fraud you are, because it is "proved" by this very same logic Knox and Sollecito were not among those attackers. The only way out of this, for any of us, is to let go of the idiot notion that there cannot be possibly be any distinction between a legal fact and an actual one. But you cling to it like a limpet, because it's all you've got -- short of admitting you were wrong, which your monstrous ego will never allow.

 

[Numbers]

....

Must be Omerta.

It could be Omerta.

Or maybe it's Omelette.

An omelette made of facts that get beaten until frothy, all mixed together in a confused mess, beyond recognition of their original shape, by some biased anonymous internet posters who can't admit the truth that Knox and Sollecito were unfairly accused by incompetent police supervised by one very strange and devious prosecutor.

 

[Samson]

This was the only thing I used to agree on with Luca Cheli. The annullment is obviously political, this is manifest even just from the fact that it is completely nonsensical from a legal or logical point of view, contradicts factual findings and trial papers and is in egregious conflict with the res iudicata (definitive point of law established by !st chambers).
It even places the suspects on the scene of crime and fully embraces the findings like multiple murderers etc. as I pointed out.
It even states "530.2" which is nonsensical in a SC verdict.
The sentence says "political" at every line.

Yes, we agree for different reasons of course.
Charlie Wilkes says we pounded the state department corridors until lawyers at the highest level were left in no doubt the Italians had kidnapped an innocent American citizen. (my take on Charlie's posting)
How was that destined to turn out?

 

[Numbers]

False memory brought on by coercion, they are not mutually exclusive claims.
....

The Italian Code of Criminal Procedure has something to say about this.

CPP Article 188 Moral freedom of the person during evidence gathering

1. Methods or techniques which may influence the freedom of self-determination or alter the capacity to recall and evaluate facts shall not be used, not even with the consent of the person concerned.
Article 191 Unlawfully gathered evidence

1. Evidence gathered in violation of the prohibitions set by law shall not be used.

CPP Article 64 General rules for questioning

2. Methods or techniques which may influence the freedom of self-determination or alter the capacity to recall and evaluate facts shall not be used, not even with the consent of the person concerned.{The same wording as in CPP Article 188.}

CPP Article 350 Investigative questioning by police

1. Criminal police shall collect, following the procedure provided for in Article 64, summary information useful for investigative purposes from the suspect who has not been placed under arrest or temporary detention ....

CPP Article 388 Questioning of the arrested or temporarily detained person

1. The Public Prosecutor may question the arrested or temporarily detained person after promptly informing the retained lawyer or, in his absence, the court-appointed lawyer.

2. During the questioning, complying with the forms provided for in Article 64, the Public Prosecutor shall inform the arrested or temporarily detained person of the criminal act under prosecution and the reasons underlying the decision on his arrest or temporary detention and shall also notify him of the elements he is charged with and their sources....

 

[LondonJohn]

Thanks for these. I don't think London John was saying RS was a saint, but that his remarks were "stupid and immature". I think RS's remarks if true, are pretty awful actually, and while I am still a bit unclear about the context, any "jokes" that might allude to crime and murder in particular ("I will be nice and painless"- is it really true he said that?) are extremely thoughtless. I would want more context to lower my opinion of him further. I can see why you would want to post the links, and it might have been more effective if you had couched your commentary with a bit more caution (IMV).

Exactly. It seems to me that there's evidence of Sollecito writing things on that private FB group which were immature, inappropriate and idiotic. He really ought to know that he's still in the spotlight to some extent (albeit from pro-guilt obsessives who creepily follow his every move, rather than the general public or even the World/Italian media - though this latest story came to life courtesy of an agenda-blogger who, seeing that Sollecito was involved, passed the story to a magazine).

But Vixen wrote very specific and extreme claims, among which were the accusations that Sollecito was writing "disgusting misogynist filth", and - far worse in the context of the Kercher murder in particular - that he had written about "how he had got away with it (i.e. the Kercher murder)" and that he was "using (Kercher's) name to make the crudest suggestions on how to hide a body or cut it up". It was these types of extreme, inflammatory and explicit claims that I wanted evidence of - I already knew that Sollecito had been discovered writing stupid, immature stuff in a lame attempt at "humour".

And it transpires, apparently, that Vixen cannot provide any proof to back up her accusations. Which leads to the conclusion that Vixen took a story and then added her own agenda-led magnification and exaggeration to make it far, far more than it ever was. Who'd a thought it......?

 

[LondonJohn]

What the last vestige of conspiracist latches onto is the misguided view that the ISC "proves facts". What the ISC ruled on in 2015 was whether or not Nencini should have convicted with what Nencini had in front of him.

Rather than ruling on any of that stuff, Machiavelli should read the ISC report from Section 8 onwards, which the ISC uses to demonstrate the contradictory nature of the evidence, and as such annulled the conviction.

There are some who want to push that the ISC agreed that the evidence convicts the pair, but they decided to acquit anyways. Starting one's reading from Section 8 shows what a devestating critique the ISC had in store for a court, which believed it had been ordered to convict by the 2013 ISC. Source: Francesco Maresca's memoirs.

It seems that many Italians (and, in the Knox/Sollecito case, many/most pro-guilt commentators) still cling to the incorrect notion that courts prove (or fail to prove) the "truth" of what happened in a particular alleged criminal act. That is an abandoned relic of the inquisitorial system, as well as a fundamental ignorance of the purpose of adversarial courts in a modernised criminal justice system.

Criminal courts in places such as the US, England&Wales and Italy exist to do one thing and one thing only: to determine whether, in the court's judgement, any given defendant before the court has been proven guilty beyond a reasonable doubt of a particular criminal charge. That's it. Nothing more or less than that. In the course of making such a judgement - especially if there IS proof BARD - there may be a necessary element of the construction of a wider narrative of the crime.

And, likewise, the sole role of (final*) appeal courts is to examine whether the defendant really was correctly found guilty BARD or whether an acquittal or retrial is appropriate. In that respect, the appeal court can examine whether the lower court(s) acted correctly in law in its treatment and evaluation of evidence and argument, or (but not in Italy) if new evidence has since come to light which either a) casts sufficient doubt on the reliability/credibility of crucial inculpatory evidence in the original trial or b) is exculpatory in and of itself. But the focus is still solely about whether or not there is - in the light of an examination of the lawfulness of the lower court and/or any new evidence - still sufficient proof BARD of the defendant's guilt.


* i.e. not "appeal-level" courts in the Italian system, such as the Hellmann or Nencini courts, but rather courts such as US or E&W courts of appeal or the Italian Supreme Court.

 

[toto]

My position about Knox's ECHR appeal is actually that it is only meant to be a distraction for the media. She only wants to "play" it in the media, wants to use it to try "discredit" the calunnia convitcion - rather than to actually change it. The ECHR verdict itself might be even nouanced - might contain different observatons as for art. 6 and art. 3 - and it would be irrelevant as for the merits of a calunnia conviction.
Its findings would never change a guilty verdict - not even in the (remote) event that it would manage to obtain a review trial.

Personally I believe the art. 3 claim in the ECHR complaint is inadmissible, and the whole potential merit of the complaint depends on art.3. - but it doesn't really matter if there are violations or not on those points. These are points of law, which don't affect the findings about events, which are not going to change.
These things only matter in the pro-Knox narrative.
Those Knox supporters who "cling" to the ECHR verdict are just dishonest. They know the ECHR points are factually independent from the evidence of the calunnia case. They use them to shift attention - to put "the police" (or anyway someone else) on trial, to "blame" someone else - in order to make Knox look better in the media.

So if I read you right,you think the chances of an ECHR verdict pro Knox are remote, but you are not totally discounting it because you understand the public relations victory it will be for her, so you seek to undermine it in advance. I think you are right that it would be definitely seen as a major positive for Knox: it has already been established that she did not slander the police when she accused them of being a bit rough. It will all help to contextualise her calunnia case. I also note that you are aware of no major book, properly sourced, being written that explains the story of the conspiracy theory regarding the alleged corruption behind AK and RS's eventual definitive acquittal. Not that I asked for it, but you do not allude to any court case challenging the Supreme Court either.

 

[abaddon]

Oh dear. Please look at the phone logs - all available as part of the court records. Amanda was by the basketball courts when she read Patrick's message.

That is not what cell phone records work. It isn't even how the cell network works. Just how small do you think network cells actually are? Or are you gleaning your information from NCIS on the TV? Cell phone records cannot do what you claim.