That's how the Italian courts treated it in their re-conviction MRs. The clear confusion and wording such as "just dreams" were called "attractive" (if Google translation is correct) and the apparent doubts expressed were dismissed as defensive maneuvers, making the Memoriales equal to or more convincing expression of calunnia than Knox's (coerced) statements.
Because of that bizarre and unfair reasoning, I believe the ECHR should review the fairness of Knox's reconviction for calunnia.
The background of the hearing is that Knox’ defence had demanded the Calunnia conviction be quashed, owing to the ECHR finding , 24 Jan 2019, under Article 6, Right to a Fair Trial, and in part Article 3, freedom from psychological pressure. that (a) a lawyer was not provided as of the time Knox made her verbal allegations against Patrick Lumumba, and that (b) the interpreter provided, Anna Donnino, had exceeded her remit in providing Knox emotional support (the ECHR upheld). Florence Court points out: “
However, the Strasbourg Court did not find any infringement of Article 81 EC in substantive terms. 3 of the Convention, observing that there was "nothing to support the conclusion that the applicant had been subjected to the inhuman and degrading treatment complained of.”
The only remaining allowable evidence re the Calunnia charge, was the written document dated 6 Nov 2007, which Knox had handed to policewoman Ficarra, as ‘
a gift’, after having provided two statements earlier. It was decided by the Central Court of Cassation (Supreme Court) 10 Oct 2023 that the case should go back down to trial, with the oral statements impermissible and the remaining independently-written aforementioned one assessed on its merits as to whether it could be said to be a case of Aggravated Criminal Calunnia against Lumumba. Aggravated, as it relates to a serious crime that attracts more than two years imprisonment and in addition, “
and of teleological connection, ex art. 61 n. 2 cod. pen. for having acted in order to obtain impunity for all and, in particular, Guede Rudi Hermann for the crime of murder”. Knox was jailed for three years for ‘multiple aggravated slander’, with some aggravating elements excluded by the Fifth Chambers final report of 17 Mar 2015. The College of Legality had thus ruled that the convictions of 26 Mar 2013 and that of 27 March 2015 together with the Perugia Court of Appeal 3 Oct 2011 – the controversial Hellmann court that saw Knox freed to fly back to America but still convicted of Calunnia – should all be annulled. So, this hearing related to the retrial and re-conviction of Calunnia, albeit with time served.
Knox’s oral accusations against Lumumba had been made at around 01:00 and again at 05:45; these are the statements now barred as evidence because of the ECHR ruling. Knox’s claimed ‘retraction’ was written in private and in English at circa 13:00, the same day. The warrant executed for Lumumba’s arrest and subsequent imprisonment had been enacted at 08:30 that morning (6 Nov 2007) and thus, precedes the timing of the memo in question.
The Defendant’s Case – (Mr. Carlo Dalla Vedova del Foro di Roma and Mr. Luca Luparia Donati del Foro di Milano)
The defence for Knox argued that “
the memorial was a dream-like account of the fragments of a nightmare in which Amanda Marie Knox repeatedly admitted that she was unsure of having lived the confusingly reported experience, which re-emerged in the reality elaborated by her mind, badly prostrated after the last interrogation held the previous night. These were flashbacks which she herself doubted to the point of questioning who the real murderer was and of ruling out the possibility of being considered a witness against Diya Lumumba."
The Florence Appeal Court rejected this claim reasoning that the language deployed was
escamotage – a ploy. For something to be considered circumstantial evidence, there needs to be a logical chain of events that leads up to it and from it. The Court pointed out Knox’s use of the clear chain of events of:
seeing Patrick in the basketball court – seeing him at the door and hearing Meredith’s screams – couldn’t be claimed to be a ‘messy dream’, in particular because the event of Meredith’s screaming had been independently witnessed and verified by two separate neighbours and because Knox was the only person with the key to access the building that night.
The Civil Party’s Case (Mr. Carlo Pacelli del Foro di Perugia)
The counsel for Lumumba argued “
In this regard he highlighted the part of the writing in which Amanda Marie Knox claimed that she had not lied when she had said that she thought the killer was Patrick and added immediately afterwards: 'I really thought he was the murderer.'"
Arguments
The defence for Knox claimed the memo represented a retraction of the claims she had made during the early hours and a need to clarify that she was doubtful and confused. The Florence Court rejected this saying that far from being a retraction or a description of a dream state,
it was a reiteration, with the language used not expressing doubt but as ‘a ploy’ or a literary device, if you like. It explained that under the criminal code, a defendant was allowed to lie about their own involvement in a crime (= equivalent to the right not to incriminate oneself) but when an innocent third party is blamed it brings in the concept of risk brought to that person and Knox had endangered Lumumba with imprisonment and the risk of a conviction of a serious crime, of which he did unfairly serve fourteen days.
In its reasoning, it further points out the transcripts of police wire-tapping taken of Knox with her mother, in which she says she felt ‘
terrible’ about what she had done to Lumumba. Putting him
“in a horrible situation and in jail through her fault, reiterating that concept several times”. Yet, the court points out, Knox failed to mention Lumumba’s innocence at her later remand hearing, indicating a deliberate false accusation against Lumumba.
The court also notes, ‘The defendant told her mother - who spoke of possible lies spread artificially by the mass media -
"But it is stupid. I can't say any more, because I know that I was there and I can't lie about it, I have no reason to." (bold mine).
The defence had also argued that Knox’s memo written at circa 13:00 of the 6 Nov 2007 (four days after the murder, at the Questura) was
after the time of the order of detention of Lumumba, at 08:30, and thus, they argue, cannot be said to have caused his arrest, her earlier statements which caused this, now not being permitted as evidence.
The court dismisses this point stating,
“On the other hand, for the offense of slander to be capable of being characterized, it is only necessary that the false accusation contains in itself the necessary and sufficient information for the initiation of criminal proceedings against a person who is unequivocally and easily identifiable, as was certainly the case - even nominally and documentally - in the present case.”
It rejects the claim Knox was confused and bringing up false memories because of the logical nature of the sequence of events she describes, as pointed out above. In any case, a false memory typically occurs when a person suffers a traumatic event and is unable to remember what happened. Later, with the passing of time, one’s brain fills in the missing details to make sense of the forgotten parts, and these details may be false. For a memory to be false, a traumatic event must have happened in the first place, for example, early childhood abuse or a car crash. If Knox had never been at the cottage whilst Meredith was murdered, how could she have a false memory of it? It certainly wouldn’t qualify as a ‘false memory’ in its proper sense.
The court writes: “
To conclude on this point, it must be added that - a fortiori - the essential and direct nature of the false accusation does not make it either absurd or unlikely and confirms its suitability to integrate the material element of the alleged crime".
In Knox’s statement to the court she says,
‘'I wanted the police to know that I was doing my best to cooperate .”
Florence Court comments:
'It must be said that the crime of slander requires general intent, that is to say, the conscience and willingness to charge a person who is innocent of a crime, the reason for the false accusation being irrelevant (Cass. 2489 of 2000).
<snip>
Amanda Marie Knox was perfectly aware of Diya Lumumba’s innocence, as Patrick is known from a number of elements.
The first is that the defendant was at the time of the murder of Meredith Kercher at the house and, therefore, she knew that there was no Diya Lumumba there.
The figure is clear from Knox's own writing, which is located inside the house and reports a scream from Meredith ("I saw myself curled up in the kitchen with my hands over my ears because in my head I heard Meredith shouting").
That harrowing scream, which in her account required her to carry her hands to her ears and to curl up in the kitchen in an attempt not to hear it, was a fact that really happened and was clearly perceived by Capezzali Nara and Monacchia Antonella, two neighbors of the house, with dwellings located near the cottage of via della Pergola n. 7, who both heard her, deeming it anomalous and atrocious, so much that they were shocked.
<snip>
Meredith Kercher's harrowing scream, at the time of writing the accusatory statement against Diya Lumumba in the Knox memorial, was an element unknown to investigators and to anyone who could not hear it because they were not present in or near the house where the murder took place.
<snip>
That circumstance shows - first - the presence of Amanda Marie Knox in the house where homicide occurred, at the time when it occurred, a place where, moreover, she herself sits (‘curled up in the kitchen with her hands over her ears’) and, secondly, that the defendant was perfectly aware of the innocence of Diya Lumumba, known as Patrick, who was certainly not in that house.'
It concludes:
'The persistence of this attitude marks a clear departure from the behavior aimed at cooperation with investigators, often represented by the defense and by the defendant herself, most recently in her final statements.
3. In short, Amanda Marie Knox must be held liable for the crime of aggravated slander within the meaning of Article 2(2) of Regulation No 40/94. 368 cod. pen., ascribed to you in subpart F).
The judgment at first instance must, however, be reformed in part, first, by considering the definitive exclusion of the aggravating teleological link by reason of the formation of a final judgment on Knox’s acquittal from the charge of participation in the murder of Meredith Kercher, handed down by the Court of Cassation on 27 March 2015, and, second, from the point of view of the treatment penalized.'
[Follows various court costs orders.]
Thus decided in Florence on 5/6/2024
The Managing Director II President
Angelo Grieco Anna Maria Sacco
hudoc.echr.coe.int
