Who killed Meredith Kercher? part 23

[acbytesla]

Machiavelli may sound authoritive but he clearly is not...because..?

You really must stop making these didactic statements.

This is self explanatory. The only actual authority is the Marasca court. At least as far as legally in regards to the murder. The rest of us are couch quarterbacks.

 

[Machiavelli]

And we have a saying in English: "He who laughs last, laughs hardest."

And you know it is now a proven fact Amanda Knox was on the scene of murder, washed her hands from Meredith's blood, she heared Meredith's scream and it is incontrovertible that Meredith was killed by multiple persons. (Guede was not holding the murder weapon).
And all this, is definitive.

 

[Vixen]

Mach, you are excellent on providing an Italian perspective. I have a great deal of respect for your opinion, unlike other posters here you do and try and stick to the facts.

BUT

When you get to science you are terrible. Knox had a cold sore, this is reactivation of previously acquired HSV1, in a white middle class american girl this would have almost certainly have been acquired in childhood probably from another family member by kissing or other close face to face contact. It is NOT a primary herpes infection which in HSV1 usually causes a sore throat and ulcers of the throat NOT herpes labialis as seen in the pictures. HIV ELISA do NOT cross react with herpes and in any case the suggested false positives historically (tests used in 1990's) were related to primary herpes infections. (Due to a non specific elevation in antibodies in primary infections that does not occur in reactivation).

Interestingly primary childhood HSV1 oral infection provides cross reacting resistance against genital HSV2 infection in adulthood.

So, NO having a cold sore is NOT a reason for a false positive HIV test, not then, not now, not ever.

If Amanda had a false positive HIV test, then of course her Herpes may have been the cause. You can't know it was 'a simple childhood one'.

 

[Vixen]

Nope. Nice try, but 628 sec 2 doesn't say that a preliminary judgment is "final" and also doesn't say anything about binding a subsequent session of cassazione.

The results here tell us very clearly that you are wrong. Yet again.

Chieffi was not a 'preliminary judgment'. That is an oxymoron. You mean 'preliminary decision', which Chieffi would not have presided over, unless there was a pre-hearing leading up to the Chieffi Supreme Court hearing.

Is Chieffi a lower court? The answer is resoundingly, no!

 

[bagels]

(Guede was not holding the murder weapon).
And all this, is definitive.

How do they know this bit? What if Amanda handed Guede the knife and instructed him to deliver the fatal blow? Didn't Guede have cuts on his hands, whereas Amanda didn't?

It seems like the prosecution is ruling as if they had a CCTV camera of the crime.

 

[Machiavelli]

CPP Article 609 Cognisance of the Court of Cassation {CSC}

1. The appeal to the CSC assigns cognisance of the proceedings to the CSC, exclusively with regard to the arguments raised.

2. The CSC shall also decide on the issues raised ex officio at any stage and instance of the proceedings and on those issues which could not have been raised at the appeal stage.


Legal definition of cognisance (also spelled: cognizance)

1.1Law The action of taking judicial notice.

examples of use
‘Any discreet watching brief must take full cognisance of an individual's right to privacy and independence.’
‘Most international human rights instruments subsequently adopted by the United Nations have a basis in the Universal Declaration and give further definition and cognisance to those rights.’
‘The law takes no cognisance of carelessness in the abstract.’
‘It is bound, of course, to give cognisance to the fact of the order that is being enforced.’
‘Taking cognisance of the charge-sheet filed by the Delhi police, the magistrate asked them to appear before him on September 8.’

Source: https://en.oxforddictionaries.com/definition/cognizance

Cognizance

The power, authority, and ability of a judge to determine a particular legal matter. A judge's decision to take note of or deal with a cause.

That which is cognizable to a judge is within the scope of his or her jurisdiction.

Source: http://legal-dictionary.thefreedictionary.com/cognizance

Don't suggest the SC could access the full trial record or assess the evidence, because they could not.

 

[bagels]

Chieffi was not a 'preliminary judgment'. That is an oxymoron. You mean 'preliminary decision', which Chieffi would not have presided over, unless there was a pre-hearing leading up to the Chieffi Supreme Court hearing.

Is Chieffi a lower court? The answer is resoundingly, no!

I don't really know anything about Italian legal procedures (and I don't want to know) but it seems the more cemented Chieffi's decisions become, the more weight given to the PIP view of the M&B report. I don't know if you're aware of that or that you're potentially supporting a PIP position. Just trying to help.

 

[Machiavelli]

CPP Article 609 Cognisance of the Court of Cassation {CSC}

1. The appeal to the CSC assigns cognisance of the proceedings to the CSC, exclusively with regard to the arguments raised.

2. The CSC shall also decide on the issues raised ex officio at any stage and instance of the proceedings and on those issues which could not have been raised at the appeal stage.
(...)

Cass. n. 8276/1995
Il comma 2 dell'art. 609, ultima parte, del vigente codice di rito conferisce alla Corte di cassazione la facoltà di decidere anche le questioni non dedotte nei motivi di appello, la cui deducibilità sia divenuta possibile solo successivamente; tale facoltà si riferisce a nuove questioni di diritto che sorgano per ius superveniens ovvero per circostanze - non emerse prima - che abbiano un'indubbia valenza di legittimità sul piano della congruità della motivazione.

It means the SC can be made cognizant on issues that could not be raised at the Appeals stage, insofar as they have become inferrable only subsequently. Those questions can be points of law that were created subsequently to the Appeals (ie. new jurisprudence) or circumstances that were unknown at the time of Appeals and that have an implication on legitimacy (not just on merits).

 

[Vixen]

You warm the cockles of my heart. It's comforting watching such hubris in being wrong. It reminds of the Christians who believe that evolution is false and the earth is 6 to 10,000 years old. Thanks.

Christianity isn't about challenging scientific theory, or gazing at the sunset, it is about following the 'Way'.

It's assinine to equate faulty scientific logic with Christians.

 

[Numbers]

Chieffi points of law are definitive. I know perfectly well what I say. The definitive status of points of law established by cassazione is recognized by jurisprudence of art. 628 § 2 cpp.

Nope. Nice try, but 628 sec 2 doesn't say that a preliminary judgment is "final" and also doesn't say anything about binding a subsequent session of cassazione.

The results here tell us very clearly that you are wrong. Yet again.

CPP Article 628 Possibility to appeal the judgment of the referral judge

2. The judgment of the referral judge may only be appealed for arguments which do not concern the issues already decided by the CSC or due to failure to comply with the provision of Article 627.3 {the referral judgement fails to conform to conform to the CSC decisions on issues of law}

CPP Article 609 Cognisance of the Court of Cassation {CSC}

1. The appeal to the CSC assigns cognisance of the proceedings to the CSC, exclusively with regard to the arguments raised.

2. The CSC shall also decide on the issues raised ex officio at any stage and instance of the proceedings and on those issues which could not have been raised at the appeal stage.


Legal definition of cognisance (also spelled: cognizance)

1.1Law The action of taking judicial notice.

Source: https://en.oxforddictionaries.com/definition/cognizance

Cognizance

The power, authority, and ability of a judge to determine a particular legal matter. A judge's decision to take note of or deal with a cause. That which is cognizable to a judge is within the scope of his or her jurisdiction.
Source: http://legal-dictionary.thefreedicti...com/cognizance

The provisions of CPP Article 609.2 overrides any issue of CPP Article 628.2. That is, the CSC hearing the appeal of a referral court trial may decide on any issue of law that could not have been presented at the referral trial because of a previous CSC decision.

Here is the text of Article 609 in Italian:

Art. 609 - Cognizione della corte di cassazione
1. Il ricorso attribuisce alla corte di cassazione la cognizione del procedimento limitatamente ai motivi proposti.
2. La corte decide altresi' le questioni rilevabili di ufficio in ogni stato e grado del processo e quelle che non sarebbe stato possibile dedurre in grado di appello.

Source: http://www.leggeonline.info/leggi/procedurapenale/art609/cognizione_della_corte_di_cassazione/

If the Marasca CSC panel motivation result was defective, violating Italian procedural law, one would think there would have been considerable mention of this in the Italian media or by the Superior Council of the Judiciary.

Anyone know of such mention?

 

[acbytesla]

Christianity isn't about challenging scientific theory, or gazing at the sunset, it is about following the 'Way'.

It's assinine to equate faulty scientific logic with Christians.

No, in fact it is spot on. From Galileo to Newton to Darwin. The church has fought science with its head in the sand. It's so much like this case.

 

[abaddon]

Never trust anyone who confuses units of distance with time.

Shades of the Kessel run.

 

[abaddon]

Christianity isn't about challenging scientific theory, or gazing at the sunset, it is about following the 'Way'.

It's assinine to equate faulty scientific logic with Christians.

Wow. Not a word of that was true.

 

[Vixen]

No, in fact it is spot on. From Galileo to Newton to Darwin. The church has fought science with its head in the sand. It's so much like this case.

From wikipedia:

Isaac Newton (4 January 1643 – 31 March 1727) was, as considered by others within his own lifetime, an insightful and erudite theologian. He wrote many works that would now be classified as occult studies and religious tracts dealing with the literal interpretation of the Bible.

You can have the last word, as I don't want to upset Agatha.

 

[Planigale]

A complaint against the police should have nothing to do with your trial. In the UK a police complaint goes to the Independent Police Complaints Committee (or similar). It is not a public process, unlike a court of law.

There is no need for anyone at your trial to even know you have lodged a police, prison officer, or medical professional complaint.

As to your last point, Stefanoni tested the DNA in the presence of defence witnesses.

(They did not raise any objections at the time.)

The best thing for a defence observer witnessing an error by the police scientist is to say nothing, note it and then raise it in court. They are not there to teach the police scientists how to do their job correctly. They have no authority to direct the testing. They are merely there to observe. They are fully entitled (and indeed it is their function) to note errors or deliberate falsification and bring it to the attention of the court. Their presence does not validate the testing and put it beyond questioning, indeed in the Italian system (and Machiavelli will quickly put me right if i veer from the true path), when an observer is not present then the defence loses the right to question the process.

There are clearly some limitations on the observer status, the ideal would be if the observer videotaped the process (or the laboratory did), then any issues such as the order of testing, the presence of unreported samples could be confirmed. My understanding is observers are only allowed to observe, not record, not direct, not object, not obstruct.

 

[Machiavelli]

(...)

The provisions of CPP Article 609.2 overrides any issue of CPP Article 628.2. That is, the CSC hearing the appeal of a referral court trial may decide on any issue of law that could not have been presented at the referral trial because of a previous CSC decision.

The highlighted part is ruled out by quoted Cass. jurisprudence, where it makes clear what the reasons why for an impossibility to deduce the arguments could be. That is: new points of laws that occurred subsequently to the appeal (such as new jurisprudence) or circumstances with clear implications on legitimacy that were not known at the time of the appeal.

Notice by the wat that §2 says: che non sarebbe stato possibile dedurre. The word dedurre does not mean "present", it means to deduce, that is to logically derive from some premises.

 

[Planigale]

If Amanda had a false positive HIV test, then of course her Herpes may have been the cause. You can't know it was 'a simple childhood one'.

No herpes does not cause false positive HIV tests can we just stop this nonsense.

1) She did not have primary herpes at the time.

2) The EIA tests for HIV at that time did not cross react with herpes.

This makes as much sense as saying she was having her period or the moon was full and that is why the test was a false positive. The likeliest cause are mislabelling the sample or laboratory error. True false positives by this time were excessively rare. (For a blood test carried out in a laboratory not saliva based testing or a near patient test - when false positives would be rare.)

 

[TruthCalls]

Yes. Correct. In the context I think it was an understandable decision.



Maybe I didn't express myself exhaustively, but in my 1st and 2nd paragraph was talking abut two different things.
Knox also wrote in her diary when she was in prison, but she also released a list of acuantances to the police when she was at the police station (a "note" she gave to Rita Ficarra I think).
Pleas note she was not asked about "sexual partners" - she was asked about acquaintances, people she knew they had something to do with the cottage or who knew Meredith. She did not write the name of Rudy Guede, despite they were together at the cottage in the downstairs apartment reportedly "talking very friendly" just a week before.



I didn't lie at all.
I obviously don't know the full "real" list of her sexual partners but I know there would be no reason to trust her prison diary list, I think it would be illogical to take it at face value.
I also know that she did not provide the name of Guede in the list of acquaintances she provided, when she was asked about people who might have been at the cottage, and she did not mention - neither in her prison diary or in her book - the existence of the unknown Perugian "most beautiful black man she ever met", despite they promised each other they would meet again as soon as she would be back in Perugia.
So she certainly omits things, she does not provide complete information.



I do not assume that she needed. It's actually almost the contrary. What I do is that I note that she does not. And from the fact that she does not, I may draw a guess about the reason, which is, maybe, exactly that she needs to keep her mouth shut about meeting this "someone".

Maybe she didn't include Guede because she didn't really know him, didn't remember his name, and forgot he was downstairs that one time. She was under enormous stress, having had her roommate murdered and all. All of the evidence shows Guede was essentially an unknown to Amanda, Meredith and Raffaele. A brief chance encounter doesn't change that, and that is exactly when that time in the basement was. Did anyone else who was there that night mention Guede? I don't think so...

She didn't mention this black man but the police asked her for a list of people who she knew they had something to do with the cottage or who knew Meredith (your words). That's twice you bring this guy up yet you still can't articulate why she should have named him, and to this you try to imply she is deliberately omitting things. It is you who, by way of your biased view of things, finds it somehow telling she doesn't mention someone when there is absolutely no reason why she should have.

 

[Numbers]

Based on art. 350, 351 cpp investigators can collect information also in conditions of diminished defense rights and without a lawyer, if deemed urgent for investigation purposes.
Statements collected this way are not usable contra sè for trial purposes. But they are usable for investigation and pre-trial purposes.

You better not suggest that collecting statements was a violation of some law, it was not.

Your claims distort the actual wording of the CPP Articles you cite.

CPP Article 350.1 states that the police shall follow the procedure provided for in Article 64, which calls for the presence of the defense lawyer during the questioning, prohibits any method that interferes with the free will or alters the ability to recall and evaluate facts of the person questioned, and requires three warnings to that person (1. his statements can always be used against him; 2. he has the right to remain silent; 3.if he makes any statement about facts concerning the liability of another, he will become a witness). According to Article 350.5, only at the scene or immediately after the crime has occurred may the person be questioned without a lawyer, but the information gained without the lawyer present may not be recorded or used (for trial).

Obviously the police did not follow CPP Article 350 at all in their questioning of Knox and Sollecito on Nov. 5/6.

CPP Article 351 relates to questioning of witnesses, including someone accused in a joined proceeding as detailed in Article 351.1-bis. If the person is an accused in a joined proceeding, he must have a lawyer who has the right to be present during the questioning.

Obviously the police did not follow CPP Article 351 at all in their questioning of Knox and Sollecito on Nov. 5/6.

Also, if a witness makes an incriminating statement, the procedure of CPP Article 63 must be followed, including warning the person that an investigation will be started and advising the person to obtain a lawyer. The incriminating statement shall not be used against the person who made it. If the person interviewed as a witness should have been heard as a suspect from the beginning, his statements may not be used at trial.

Obviously the police did not follow CPP Article 63 at all in their questioning of Knox and Sollecito on Nov. 5/6.

Because of these violations of defense rights, the CSC only allowed Knox's statements to be used against her for the alleged crime of calunnia against Lumumba, based on the fact that she had written about the questioning in a Memoriale.

 

[Machiavelli]

The best thing for a defence observer witnessing an error by the police scientist is to say nothing, note it and then raise it in court. They are not there to teach the police scientists how to do their job correctly. They have no authority to direct the testing. They are merely there to observe. They are fully entitled (and indeed it is their function) to note errors or deliberate falsification and bring it to the attention of the court. Their presence does not validate the testing and put it beyond questioning, indeed in the Italian system (and Machiavelli will quickly put me right if i veer from the true path), when an observer is not present then the defence loses the right to question the process.

I'd say a defence objection, in order to be credible, needs to take into account the default points of the system and so it has to be construed based on reality of past events. So if they want to question the process, they would have to do it in a way that is credible.

There are clearly some limitations on the observer status, the ideal would be if the observer videotaped the process (or the laboratory did), then any issues such as the order of testing, the presence of unreported samples could be confirmed. My understanding is observers are only allowed to observe, not record, not direct, not object, not obstruct.

As far as I know the defence can be allowed to videotape or document the test in the way they see fit, as the forensics documentation might be flawed or insufficient, and they may also request documentation during the investigation phase.