Cont: The Trials of Amanda Knox and Raffaele Sollecito: Part 32

[TruthCalls]

Professor Tagliabracci for the defence argued 'suspectcentrism'




Massei references Tagliabracci fifty-five times and quotes him in detail. At the end of the trial, the panel of judges and lay judges preferred Dr. Stefanoni's testimony. The DNA issue was revisited at the Nencini Appeal Court and once again, the 'suspectcentric' claim was rejected after being given full due and fair consideration by the court.

Massei, Nencini? Who are they? ...oh yeah, they're the two overturned convicting courts, so their opinions are pointless.

Interestingly, this got me reading the Massei MR once again, and it seems every time I read it I find more to object to. In this case, I read dozens of pages of testimony from Tagliabracci, all very technical and precise. Following that, we have Massei essentially saying he believes in Stefanoni instead because 'she would have no reason to not be honest'. In other words, all of the technical flaws and procedural violations cited by Tagliabracci and other experts for the defense were trumped by Massei's belief that Stefanoni was professional and had no motivation to lie. Well Vixen, if you find that reasoning reassuring, then that's on you. To me, the experts shot more holes in Stefanoni's work than a good block of swiss cheese.

In order to believe Stefanoni was not motivated by suspect centric analysis, one would have to explain why she repeatedly dropped alleles which were well above 50 RFU, but not consistent with Meredith or Raffaele, from her RTIGF report for sample 165B. She did this with locus D8S1179 (12, 14), D21S11 (29), D7S820 (10), CSF1PO (11), D16S539 (13), D2S1338 (19, 22), D19S433 (14, 15), D18S51 (13), D5S818 (13). That's a lot of alleles NOT making it into her RTIGF report. She never dropped an allele belonging to Meredith or Raffaele, so the only conclusion one can make is she didn't want the results to indicate contamination, so she drops all alleles not belonging to the victim and the suspect. How any court can look at this data and conclude Stefanoni was operating in an honest and professional manner is impossible to understand.

 

[Numbers]

Professor Tagliabracci for the defence argued 'suspectcentrism'




Massei references Tagliabracci fifty-five times and quotes him in detail. At the end of the trial, the panel of judges and lay judges preferred Dr. Stefanoni's testimony. The DNA issue was revisited at the Nencini Appeal Court and once again, the 'suspectcentric' claim was rejected after being given full due and fair consideration by the court.

As TruthCalls's post indicates, the Massei court verdict was quashed by the Hellmann Court of Appeal and the Nencini Court of Appeal verdict was quashed by the Marasca CSC panel. The suspect-centric DNA profile methodology was discredited by the Hellmann Court of Appeal's court-appointed experts, and the Marasca CSC panel accepted the views of those court-appointed experts.

The Hellmann Court MR noted that the Massei Court verdict was seriously defective, in large part because it failed to follow Italian law CPP Article 533, which requires that a verdict of guilt may only be pronounced if the evidence proves guilt beyond a reasonable doubt. The Massei Court MR employed an arbitrary evaluation of the court's subjectively determined probabilities of guilt and innocence, never showing that guilt was proven beyond a reasonable doubt, in reaching its verdict. In addition, the Hellmann Court, by commissioning a court-appointed review of the allegedly decisive DNA evidence on the knife blade and the bra clasp, unequivocally demonstrated that that allegedly decisive evidence was completely unreliable as evidence of guilt. Therefore, any "judicial fact" claiming to infer the guilt of the accused from the Massei Court trial was demolished, and nothing the Chieffi CSC panel or Nencini Court of Appeal stated could overcome the fact that the alleged knife blade and bra clasp evidence were not at all probative under Italian law (CPP Article 192, paragraph 2).

 

[Vixen]

Massei, Nencini? Who are they? ...oh yeah, they're the two overturned convicting courts, so their opinions are pointless.

Interestingly, this got me reading the Massei MR once again, and it seems every time I read it I find more to object to. In this case, I read dozens of pages of testimony from Tagliabracci, all very technical and precise. Following that, we have Massei essentially saying he believes in Stefanoni instead because 'she would have no reason to not be honest'. In other words, all of the technical flaws and procedural violations cited by Tagliabracci and other experts for the defense were trumped by Massei's belief that Stefanoni was professional and had no motivation to lie. Well Vixen, if you find that reasoning reassuring, then that's on you. To me, the experts shot more holes in Stefanoni's work than a good block of swiss cheese.

In order to believe Stefanoni was not motivated by suspect centric analysis, one would have to explain why she repeatedly dropped alleles which were well above 50 RFU, but not consistent with Meredith or Raffaele, from her RTIGF report for sample 165B. She did this with locus D8S1179 (12, 14), D21S11 (29), D7S820 (10), CSF1PO (11), D16S539 (13), D2S1338 (19, 22), D19S433 (14, 15), D18S51 (13), D5S818 (13). That's a lot of alleles NOT making it into her RTIGF report. She never dropped an allele belonging to Meredith or Raffaele, so the only conclusion one can make is she didn't want the results to indicate contamination, so she drops all alleles not belonging to the victim and the suspect. How any court can look at this data and conclude Stefanoni was operating in an honest and professional manner is impossible to understand.

I think you and I are approaching this issue from opposite ends of the telescope, as it were. Consider the following: Imagine for the sake of objectivity, we have a crime scene and a suspected perp with the initials BK. Now, a crime scene is not like a sterile laboratory. At this imaginary crime scene, say, we have a lot of blood, dirt and dust, not least from the perp having come in from off the street and walked through soil, which in turn has traces of dog muck because one of the murdered owns the dog found at the scene shut in a room, BK has planned this carefully and arrives wearing gloves, a mask and some overalls to quickly change out of and a bag in which to deposit his weapon, a knife. Now, a scientist used to working in a laboratory of a university, say, is used to sterile conditions, sterile apparatus, a set methodology, including sterile white coat, etcetera. But a forensic scientist working for the police is met with very different conditions. You are a forensic police officer. You arrive at the crime scene. You have appropriate coverings for your shoes and clothes, plus latex gloves by which to pick up evidence for evidence bags, But even so, you are wading through all kinds of debris, dirt and dust scattered about the victims. BK, despite his best efforts has left behind the knife sheath. That's a piece of good news for you as a forensic scientist! You take this piece of evidence away and it is the ONE piece of evidence that highlights BK's DNA. But wait the DNA is LCN and some of the RFU's have peaks lower than 50. There is even the noise of several other bits of DNA, presumably from the Amazon workers and delivery men who handled the order. OK, as a lab scientist in a university, sure this sample of DNA is rubbish and possibly 'contaminated' but to the forensic cop it's a freaking EUREKA! moment. Claiming it cannot be used because you don't have a second sample or because it is LCN or the RFU's are poor might be reasonable to a lab scientist but for the court, the criteria is a perp doesn't get away with crime just because they were careful to clean up or have a defence lawyer who can claim a dark shadow on a video image is dirt. This is the dilemma facing the court. Dr, Stefanoni was doing her JOB.

 

[Numbers]

OK. Here are my concerns so far:

• Any new application to find out whether the reconviction of calunnia would surely take as much time to get a judgment as the ongoing Knox v Italy case? We're talking years?
• The CM might regard Italy's use of the memoriale, if presented in an action plan or report, as not resolving the violations as confirmed in the ongoing Knox v Italy judgment. I.e. that it was still tainted with the previous and ongoing human rights abuses. In other words, the shortcomings might be considered self-evident with no need for any further referral or "application" to the ECHR.

In the event of a new application:

• I'd need to be reassured that Amanda can have 2 ongoing cases without the one influencing the other to the detriment of timescales and a favourable outcome. In other words that it might be possible that the ongoing Knox v Italy might be put on hold pending any new application to find out whether the reconviction violated Article 46 or not.
• I'd also need to be reassured that if Amanda doesn't submit a new application, it doesn't mean that the existing Knox v Italy case lapses or becomes invalid, or compromises any chance of success.
• That Italy wouldn't weaponise "the reopening of unfair court proceedings" as an apparatus to keep the current events in a perpetual loop of non-compliance, resulting in more human rights violations regarding timescales to resolve cases.
• The CM hasn't even received an action plan or report. It's conceivable that Italy might not even use the reconviction as part of any submitted action plan. Amanda might have to wait to find out what the contents of the action plan or report are before she applies again. In that case, any new application would miss the deadline of 4 months.
• Any new application might not show up in any Hudoc search results if it has not yet been accepted and communicated to Italy.

So, yes to another application as long as it can be evaluated concurrently with the ongoing Knox v Italy proceedings and doesn't compromise her chances of a favourable outcome
TomG, what I didn't discuss in any detail in my previous response was my big concern: without a new ECHR judgment, how would Italy lawfully reverse (quash) Knox's re-conviction for calunnia if the CoM, based on the 2019 ECHR final judgment Knox v. Italy, suggests that Italy must take that action to abide by that 2019 final judgment. It doesn't seem to me that there is a clearly available legal mechanism for Italy to do that.

Here are some of the candidate lawful methods and their limitations:

1. Revision under CPP Articles 629 and 630. Knox or the General Public Prosecutor of the Florence judicial district would need to apply for revision, according to CPP Article 632. However, under CPP Article 630, requests for revision must state a reason for revision that satisfies one of the four circumstances defined in that law. None of those circumstances are met clearly in Knox's case. The closest applicable one might be defined in CPP Article 630, paragraph 1, part d):

d) se è dimostrato che la condanna venne pronunciata in conseguenza di falsità in atti o in giudizio o di un altro fatto previsto dalla legge come reato.

Translation*

d) if it is proven that the judgment of conviction has been delivered as a consequence of false documents or statements provided during the trial or any other criminal act deemed an offense by law.

While there were plenty of false statements and false documents generated by the police and prosecutor in the case, starting with the 5 - 6 November interrogation, "proving" their falsity to the satisfaction of an Italian court may not be feasible.

2. Getting a decision of the Italian Constitutional Court that finds the re-trial and re-conviction for calunnia unconstitutional because the re-trial and re-conviction are contrary to Articles 10 and 24.

Article 10 states, in its first clause:

The Italian legal system conforms to the generally recognised principles of international law.

Itay has signed the CoE-ECHR treaty; therefore, it is obligated to abide by the final judgments of the ECHR (Article 46.1 of the Convention) under Article 10 of the Italian Constitution.

Article 24 states, in its second clause:

Defense is an inviolable right at every stage and instance of legal proceedings.

Of course, this is part of the Italian Constitution, along with the corresponding laws CPP Articles 63 and 64, that the police and prosecutor violated during the 5-6 November interrogation.

The problem with hoping for a Constitutional Court solution is that, in Italy, private citizens are not allowed under law to petition or request that a case be heard by the Constitutional Court. Only the Italian government, a province, or a judge may request a ruling of the Constitutional Court. Could the CoM get the Ministry of Justice to present the case to the Constitutional Court?

3. Failing the above, if and when Knox gets a final ECHR judgment Knox v. Italy (No. 2), she can return to request a retrial by the CSC under CPP Article 628-bis. I would hope that the hypothetical No.2 judgment has more explicit suggestions for Italy in how the case should be resolved to return Knox to her status prior to the violations of her rights.

Sources:

* The Italian Code of Criminal Procedure: Critical Essays and English Translation; ed. M. Gialuz, L. Luparia, F. Scarpa; Wolters Kluwer Italia (C) 2014

https://www.altalex.com/documents/news/2013/12/23/revisione

https://www.senato.it/documenti/repository/istituzione/costituzione_inglese.pdf

 

[Stacyhs]

I think you and I are approaching this issue from opposite ends of the telescope, as it were. Consider the following: Imagine for the sake of objectivity, we have a crime scene and a suspected perp with the initials BK. Now, a crime scene is not like a sterile laboratory. At this imaginary crime scene, say, we have a lot of blood, dirt and dust, not least from the perp having come in from off the street and walked through soil, which in turn has traces of dog muck because one of the murdered owns the dog found at the scene shut in a room, BK has planned this carefully and arrives wearing gloves, a mask and some overalls to quickly change out of and a bag in which to deposit his weapon, a knife. Now, a scientist used to working in a laboratory of a university, say, is used to sterile conditions, sterile apparatus, a set methodology, including sterile white coat, etcetera. But a forensic scientist working for the police is met with very different conditions. You are a forensic police officer. You arrive at the crime scene. You have appropriate coverings for your shoes and clothes, plus latex gloves by which to pick up evidence for evidence bags, But even so, you are wading through all kinds of debris, dirt and dust scattered about the victims. BK, despite his best efforts has left behind the knife sheath. That's a piece of good news for you as a forensic scientist! You take this piece of evidence away and it is the ONE piece of evidence that highlights BK's DNA. But wait the DNA is LCN and some of the RFU's have peaks lower than 50. There is even the noise of several other bits of DNA, presumably from the Amazon workers and delivery men who handled the order. OK, as a lab scientist in a university, sure this sample of DNA is rubbish and possibly 'contaminated' but to the forensic cop it's a freaking EUREKA! moment. Claiming it cannot be used because you don't have a second sample or because it is LCN or the RFU's are poor might be reasonable to a lab scientist but for the court, the criteria is a perp doesn't get away with crime just because they were careful to clean up or have a defence lawyer who can claim a dark shadow on a video image is dirt. This is the dilemma facing the court. Dr, Stefanoni was doing her JOB.

Try the Cliff Notes version next time and leave out all the unnecessary and often false commentary.

Short version: There was no plausible explanation for KB's knife sheath with his single source male DNA on it to be in the Moscow, ID house. No one in that house knew KB. The sheath was not collected 46 days after the crime with numerous people tramping through the house and bedroom. Nor was Mogen's bedroom turned upside down before the sheath was collected. The sheath was found in its original location next to Mogen's body, not across the room in a pile of debris. No video showed the sheath being picked up with dirty (not a 'dark shadow') gloves and passed around to several others.

 

[Numbers]

Let's talk a bit about Italian "judicial facts" as they are defined and obtained under Italian law. Of course, how they are lawfully defined and obtained is not necessarily how some Italian courts deduce (infer) judicial facts in practice, because in practice, some Italian courts don't follow all the laws all the time. That dysfunction is one reason why the Knox - Sollecito case has been such a mess.

As discussed many times before, Italian law defines how a "fact" - meaning a "judicial fact" (one meant to be meaningful in a criminal trial, not some irrelevant empirical fact not relevant to the trial) - is inferred from evidence in CPP Article 192, paragraph 2:

2. L'esistenza di un fatto non può essere desunta da indizi a meno che questi siano gravi, precisi e concordanti.

Google translation, with help from Reverso Context:

2. The existence of a [judicial] fact cannot be inferred from evidence unless it is serious, precise, and consistent.

Note that the Italian word "desunta" translates, according to Reverso Context, to "inferred", "derived", or "deduced". I've chosen "inferred" as this may most strongly imply that a logical process of deduction is intended. That must be true because one of the reasons CPP Article 606 allows the CSC to accept an appeal is if the grounds (such as the derivation of one or more judicial facts) of a judgment are illogical.

What do some of the other key words in the legal constraint on the inference of judicial facts mean? One poster, I am sure tongue-in-cheek, suggested that "serious" meant not comical. With a little help from a dictionary, I suggest non-comically the following:

1. "Serious" means important and relevant to the alleged criminal act and the identification, actions, or motivation of the alleged actors.

2. "Precise" means exactly or sharply defined, not ambiguous.

3. "Consistent" means in agreement with, or not contradicting, all the other evidence or judicial facts.

Thus, CPP Article 192, paragraph 2, does not permit the lawful inference that Sollecito's DNA on the bra clasp was equivalent to the "judicial fact" that he had handled that clasp, because of the DNA contamination and the improper method of collection.

 

[Bill Williams]

1. "Serious" means important and relevant to the alleged criminal act and the identification, actions, or motivation of the alleged actors.

2. "Precise" means exactly or sharply defined, not ambiguous.

3. "Consistent" means in agreement with, or not contradicting, all the other evidence or judicial facts.

Thus, CPP Article 192, paragraph 2, does not permit the lawful inference that Sollecito's DNA on the bra clasp was equivalent to the "judicial fact" that he had handled that clasp, because of the DNA contamination and the improper method of collection.

The one bona fide Italian legal expert who found the lower court convictions of Sollecito and Knox compelling was Prof. Stefano Maffei (Martha Grace Duncan, Harvard Journal of Law and Gender, Duncan interviewed Prof Maffei prior to the 2015 ISC acquittals, on Dec 9, 2014. Maffei has not to my knowledge commented since the acquittals. At the time he was a senior lecturer in criminal procedure at the University of Parma, and has a Ph.D. in Law from Oxford in England.)

He implied that the lower court, 'judicial fact' of their guilt could be inferred thusly:

“The case against Raffaele and Amanda is overwhelming; I’ve never seen so much circumstantial evidence! It’s not a very interesting case as a result.”

Duncan pushed Maffei to clarify, “you referred to the overwhelming case against Amanda, but wasn’t there doubt over every witness, over the supposed murder weapon, the tainted bra clasp, and the footprints?”

“When the Supreme Court nullified the acquittal (in 2013),” he sa(id), “it was as if they had a puzzle with five hundred dots. Every single dot could be something else, but taken all together, the dots can only mean one thing.”

Duncan immediately thought of the 'holistic' approach some Italian judges took, seemingly a holdover from the Inquisatorial system Italy once used, although Italy now uses a hybrid, Inquisatorial/Adversarial. The latter is the Westminster/USA style, which could be said to be atomistic, rather than wholistic.

Duncan concluded, "doubtless because of my immersion in the Anglo-American system, the “holistic” approach is unconvincing to me. I wonder how the sheer quantity of evidence can be compelling if every piece of evidence is ambiguous or compromised."

Me, I'm with Duncan.

The journal article can be found here.

What Not To Do When Your Roommate Is Murdered In Italy: Amanda Knox, Her “Strange” Behavior, and the Italian Legal System – Harvard Journal of Law & Gender

 

[Numbers]

The one bona fide Italian legal expert who found the lower court convictions of Sollecito and Knox compelling was Prof. Stefano Maffei (Martha Grace Duncan, Harvard Journal of Law and Gender, Duncan interviewed Prof Maffei prior to the 2015 ISC acquittals, on Dec 9, 2014. Maffei has not to my knowledge commented since the acquittals. At the time he was a senior lecturer in criminal procedure at the University of Parma, and has a Ph.D. in Law from Oxford in England.)

He implied that the lower court, 'judicial fact' of their guilt could be inferred thusly:

“The case against Raffaele and Amanda is overwhelming; I’ve never seen so much circumstantial evidence! It’s not a very interesting case as a result.”

Duncan pushed Maffei to clarify, “you referred to the overwhelming case against Amanda, but wasn’t there doubt over every witness, over the supposed murder weapon, the tainted bra clasp, and the footprints?”

“When the Supreme Court nullified the acquittal (in 2013),” he sa(id), “it was as if they had a puzzle with five hundred dots. Every single dot could be something else, but taken all together, the dots can only mean one thing.”

Duncan immediately thought of the 'holistic' approach some Italian judges took, seemingly a holdover from the Inquisatorial system Italy once used, although Italy now uses a hybrid, Inquisatorial/Adversarial. The latter is the Westminster/USA style, which could be said to be atomistic, rather than wholistic.

Duncan concluded, "doubtless because of my immersion in the Anglo-American system, the “holistic” approach is unconvincing to me. I wonder how the sheer quantity of evidence can be compelling if every piece of evidence is ambiguous or compromised."

Me, I'm with Duncan.

The journal article can be found here.

What Not To Do When Your Roommate Is Murdered In Italy: Amanda Knox, Her “Strange” Behavior, and the Italian Legal System – Harvard Journal of Law & Gender

The current Italian Code of Criminal Procedure (Codice di Procedura Penale) including CPP Article 192 are relatively recent; both went into effect on 24 October 1989. A judge who had completed law school in 1989 would be about 60 years old in 2025 but perhaps about 42 in 2007. I wonder if the previous inquisitorial judicial culture will be increasingly supplanted by a more adversarial judicial culture, or whether the judicial dysfunction and selective judicial legal ignorance of Italian law is baked in.

Another useful reference for the CPP (a website controlled by the office of the Italian Prime Minister):

DECRETO DEL PRESIDENTE DELLA REPUBBLICA 22 settembre 1988, n. 447 - Normattiva

Approvazione del codice di procedura penale.

www.normattiva.it

 

[Vixen]

Try the Cliff Notes version next time and leave out all the unnecessary and often false commentary.

Short version: There was no plausible explanation for KB's knife sheath with his single source male DNAon it to be in the Moscow, ID house. No one in that house knew KB. The sheath was not collected 46 days after the crime with numerous people tramping through the house and bedroom. Nor was Mogen's bedroom turned upside down before the sheath was collected. The sheath was found in its original location next to Mogen's body, not across the room in a pile of debris. No video showed the sheath being picked up with dirty (not a 'dark shadow') gloves and passed around to several others.

Whoooo-ooosh!!!

 

[AmyStrange]

Try the Cliff Notes version next time and leave out all the unnecessary and often false commentary.

Short version: There was no plausible explanation for KB's knife sheath with his single source male DNAon it to be in the Moscow, ID house. No one in that house knew KB. The sheath was not collected 46 days after the crime with numerous people tramping through the house and bedroom. Nor was Mogen's bedroom turned upside down before the sheath was collected. The sheath was found in its original location next to Mogen's body, not across the room in a pile of debris. No video showed the sheath being picked up with dirty (not a 'dark shadow') gloves and passed around to several others.

Well said, but unfortunately, guilters are too stupid to understand anything that isn't a lie.

 

[TruthCalls]

I think you and I are approaching this issue from opposite ends of the telescope, as it were. Consider the following: Imagine for the sake of objectivity, we have a crime scene and a suspected perp with the initials BK. Now, a crime scene is not like a sterile laboratory. At this imaginary crime scene, say, we have a lot of blood, dirt and dust, not least from the perp having come in from off the street and walked through soil, which in turn has traces of dog muck because one of the murdered owns the dog found at the scene shut in a room, BK has planned this carefully and arrives wearing gloves, a mask and some overalls to quickly change out of and a bag in which to deposit his weapon, a knife. Now, a scientist used to working in a laboratory of a university, say, is used to sterile conditions, sterile apparatus, a set methodology, including sterile white coat, etcetera. But a forensic scientist working for the police is met with very different conditions. You are a forensic police officer. You arrive at the crime scene. You have appropriate coverings for your shoes and clothes, plus latex gloves by which to pick up evidence for evidence bags, But even so, you are wading through all kinds of debris, dirt and dust scattered about the victims. BK, despite his best efforts has left behind the knife sheath. That's a piece of good news for you as a forensic scientist! You take this piece of evidence away and it is the ONE piece of evidence that highlights BK's DNA. But wait the DNA is LCN and some of the RFU's have peaks lower than 50. There is even the noise of several other bits of DNA, presumably from the Amazon workers and delivery men who handled the order. OK, as a lab scientist in a university, sure this sample of DNA is rubbish and possibly 'contaminated' but to the forensic cop it's a freaking EUREKA! moment. Claiming it cannot be used because you don't have a second sample or because it is LCN or the RFU's are poor might be reasonable to a lab scientist but for the court, the criteria is a perp doesn't get away with crime just because they were careful to clean up or have a defence lawyer who can claim a dark shadow on a video image is dirt. This is the dilemma facing the court. Dr, Stefanoni was doing her JOB.

The issue I was addressing was whether Stefanoni analysis was suspect centric. To that end, as noted in my post, there were numerous alleles that were detected on the clasp that were not noise, not stutter, they were actual alleles and Stefanoni deliberately left them off in her RTIGF report. Anything that wasn't a match to either Meredith or Raffaele was removed from the report. That's being suspect centric. She didn't want the other alleles in the report as that could indicate contamination. If she wasn't suspect centric, she'd have left all alleles >50, and let the chips fall as they may. Removing those alleles from the report was NOT doing her job, it was making the case for guilt against Raffaele.

However, I agree fully with Stacy's post as well. Your analogy of the knife sheath doesn't work because a competent forensic investigation team collected the sheath correctly, and immediately, whereas the list of forensic blunders committed by the SP with the clasp is long and unforgivable.

 

[Numbers]

The issue I was addressing was whether Stefanoni analysis was suspect centric. To that end, as noted in my post, there were numerous alleles that were detected on the clasp that were not noise, not stutter, they were actual alleles and Stefanoni deliberately left them off in her RTIGF report. Anything that wasn't a match to either Meredith or Raffaele was removed from the report. That's being suspect centric. She didn't want the other alleles in the report as that could indicate contamination. If she wasn't suspect centric, she'd have left all alleles >50, and let the chips fall as they may. Removing those alleles from the report was NOT doing her job, it was making the case for guilt against Raffaele.

However, I agree fully with Stacy's post as well. Your analogy of the knife sheath doesn't work because a competent forensic investigation team collected the sheath correctly, and immediately, whereas the list of forensic blunders committed by the SP with the clasp is long and unforgivable.

Stefanoni's actions were not a sign of incompetence but were her intentional framing of the accused.

Similarly, the actions of the police and their interpreter during the 5 - 6 November interrogation were not due to incompetence but were their intentional framing of the suspects.

Under international law (and Italian law), the authorities have an obligation not to frame suspects or accused persons (even if the authorities sincerely believe that the suspects or accused are guilty). That obligation of the authorities not to frame suspects or accused persons is an important aspect of the presumption of innocence. That's in part the intent of CPP Article 358:

Art. 358.

Attività di indagine del pubblico ministero.

1. Il pubblico ministero compie ogni attività necessaria ai fini indicati nell'articolo 326 e svolge altresì accertamenti su fatti e circostanze a favore della persona sottoposta alle indagini.

Google translation:

Art. 358.
Investigative Activities of the Public Prosecutor.

1. The Public Prosecutor shall carry out all activities necessary for the purposes indicated in Article 326 and shall also investigate facts and circumstances in favor of the person under investigation.

Google translations of CPP Articles 326 and 327; the prosecutor directly supervises the police in the investigation:

Article 326
Purpose of preliminary investigations.

1. The public prosecutor and the judicial police, within their respective responsibilities, conduct the investigations necessary for the determinations inherent in the conduct of criminal proceedings.

Article 327
Direction of preliminary investigations.

1. The public prosecutor directs the investigations and directly supervises the judicial police, who, even after the notification of the crime, continue to carry out their own activities according to the procedures indicated in the following articles.

Source: https://www.altalex.com/documents/news/2014/09/05/attivita-del-pubblico-ministero

 

[TomG]

TomG, what I didn't discuss in any detail in my previous response was my big concern: without a new ECHR judgment, how would Italy lawfully reverse (quash) Knox's re-conviction for calunnia if the CoM, based on the 2019 ECHR final judgment Knox v. Italy, suggests that Italy must take that action to abide by that 2019 final judgment. It doesn't seem to me that there is a clearly available legal mechanism for Italy to do that.

3. Failing the above, if and when Knox gets a final ECHR judgment Knox v. Italy (No. 2), she can return to request a retrial by the CSC under CPP Article 628-bis. I would hope that the hypothetical No.2 judgment has more explicit suggestions for Italy in how the case should be resolved to return Knox to her status prior to the violations of her rights.

At the moment I'm thinking along the lines that the CM will evaluate Italy's use of the memoriale as insufficient in resolving the violations in the current Knox v Italy case, with a referral from her lawyers that the reconvicton of the calunnia does not erase the violations, maybe with a Knox v Italy (2) in the process. In that case, as I see it, Italy would have to go back to the same article (Article 628-bis) that prompted the reconviction in the first place, since the prejudicial effects have not been entirely eliminated. If there aren't any domestic remedies to resolve the violations if they still exist, and it all gets more complicated, Italy would have to amend their legislation to accommodate the still unresolved violations. More time maybe, but it's something that Italy would be obliged to do according to European law.

One issue I am confident about from ECHR documents is that a second application can be evaluated concurrently with the ongoing Knox v. Italy CoM supervision, from the viewpoint of the ECHR. There have been several ECHR cases like that in the past, some of which I believe I have discussed on this thread. The main issue the ECHR must determine in such cases in whether the facts brought before the ECHR are in a real sense "new".

I'm wondering how that's the case. The memoriale has simply been recycled since Chieffi referred to it in his reasoning to convict Amanda of calunnia in 2013. Since the reconviction uses the memoriale again, I don't see what's new about it.

This is the only thing that's worth discussing at the moment; there are others who could pitch in on the subject. Petty bickering with Vixen is just a waste of keystrokes IMO.

 

[Stacyhs]

Whoooo-ooosh!!!

Why don't you explain it to me then without all the irrelevant word salad?

 

[SpitfireIX]

I think you and I are approaching this issue from opposite ends of the telescope, as it were.

That's correct, but that's only because, despite your protestations to the contrary, you're starting from an assumption that Amanda and Raffaele are guilty.

<snip> BK, despite his best efforts has left behind the knife sheath. That's a piece of good news for you as a forensic scientist! You take this piece of evidence away and it is the ONE piece of evidence that highlights BK's DNA. But wait the DNA is LCN and some of the RFU's have peaks lower than 50. There is even the noise of several other bits of DNA, presumably from the Amazon workers and delivery men who handled the order. OK, as a lab scientist in a university, sure this sample of DNA is rubbish and possibly 'contaminated' but to the forensic cop it's a freaking EUREKA! moment. Claiming it cannot be used because you don't have a second sample or because it is LCN or the RFU's are poor might be reasonable to a lab scientist but for the court, the criteria is a perp doesn't get away with crime just because they were careful to clean up or have a defence lawyer who can claim a dark shadow on a video image is dirt. This is the dilemma facing the court. Dr, Stefanoni was doing her JOB.

In other words, you're admitting that you believe it's okay for police and forensic investigators to use unreliable evidence as long as they think suspects are guilty. We already knew that you believe that, of course, but it's nice that you're being honest about it here.

 

[Numbers]

At the moment I'm thinking along the lines that the CM will evaluate Italy's use of the memoriale as insufficient in resolving the violations in the current Knox v Italy case, with a referral from her lawyers that the reconvicton of the calunnia does not erase the violations, maybe with a Knox v Italy (2) in the process. In that case, as I see it, Italy would have to go back to the same article (Article 628-bis) that prompted the reconviction in the first place, since the prejudicial effects have not been entirely eliminated. If there aren't any domestic remedies to resolve the violations if they still exist, and it all gets more complicated, Italy would have to amend their legislation to accommodate the still unresolved violations. More time maybe, but it's something that Italy would be obliged to do according to European law.




I'm wondering how that's the case. The memoriale has simply been recycled since Chieffi referred to it in his reasoning to convict Amanda of calunnia in 2013. Since the reconviction uses the memoriale again, I don't see what's new about it.

I agree with the general sense of your post.

One of my concerns is, as I mentioned in an earlier post, that Knox has already used CPP 628-bis to get her first final conviction for calunnia, the one finalized by the Chieffi CSC panel, quashed. The letter of that law states, in its paragraph 2, that the request to the CSC to retry (or quash) a trial and conviction found unfair by the ECHR must be submitted within 90 days of the ECHR judgment becoming final; otherwise, it is inadmissible. Knox v. Italy became final 24 June 2019. This rule was not applicable for Knox's request under CPP 628-bis because it was a new law. If Knox and her lawyers resubmitted a request under CPP 628-bis for the re-conviction to be quashed or even retried, the CSC could claim that request was not lawfully submitted because the re-conviction was "new" even if based on some evidence previously mentioned or considered in the Chieffi CSC panel MR, because the Knox's interrogation statements are left out. If the CoM were to state that it disagreed with the Italian position, the Italian government could state that the CoM has only the authority to supervise the execution of final judgments of the ECHR, and there is no final judgment of the ECHR that mentions the re-conviction or explicitly acknowledges the re-conviction. The CoM would have no authority to force Italy to take any action; the CoM could only petition the ECHR to evaluate whether or not Italy had violated Convention Article 46.1 by re-convicting Knox of calunnia. So I don't see that a quick result will be obtained by that path. Here's the relevant text of CPP Article 628-bis, paragraphs 2 and 3:

2. La richiesta di cui al comma 1 contiene l'indicazione specifica delle ragioni che la giustificano ed è presentata personalmente dall'interessato o, in caso di morte, da un suo congiunto, a mezzo di difensore munito di procura speciale, con ricorso depositato presso la cancelleria del giudice che ha emesso la sentenza o il decreto penale di condanna nelle forme previste dall'articolo 582, entro novanta giorni dalla data in cui è divenuta definitiva la decisione della Corte europea che ha accertato la violazione o dalla data in cui è stata emessa la decisione che ha disposto la cancellazione del ricorso dal ruolo. Unitamente alla richiesta sono depositati, con le medesime modalità, la sentenza o il decreto penale di condanna, la decisione emessa dalla Corte europea e gli eventuali ulteriori atti e documenti che giustificano la richiesta.

3. Le disposizioni del comma 2, primo periodo, si osservano a pena di inammissibilità.

Google translation:

2. The request referred to in paragraph 1 contains a specific statement of the reasons justifying it and is submitted in person by the interested party or, in the event of death, by a relative, through counsel with special power of attorney, with an application filed with the registry of the judge who issued the judgment or criminal conviction decree in the manner established in Article 582, within ninety days of the date on which the European Court's decision establishing the violation became final or the date on which the decision ordering the appeal's removal from the register was issued. The judgment or criminal conviction decree, the decision issued by the European Court, and any additional documents justifying the request are filed together with the request, using the same procedures.

3. The provisions of the first sentence of paragraph 2 shall be observed under penalty of inadmissibility.

For the ECHR, I believe that the re-trial, in leaving out the interrogation statements and re-convicting on the Memoriale itself, with the MR reasoning justifying that re-conviction, would indeed be "new" elements allowing a new ECHR case. My opinion is based on ECHR case law.

Considerations that the ECHR would consider could include:

Was the evidence presented against the applicant valid? If evidence presented was a subset of previous evidence in an ECHR case finding a violation, is the reasoning for use of the subset new?

Specifically, in using ambiguous evidence to re-convict the applicant, did Italy violate Convention Article 6.2, the presumption of innocence, an issue not at all discussed for this alleged evidence in Knox v. Italy (2019), and thus a new issue.

Were the applicant's arguments effectively heard as shown in the MR? This would be a new question.

Were the MR reasons and logic for dismissing the applicant's arguments and accepting the prosecution's arguments reasonable and not arbitrary? These would be new questions.

Also, there is a potential new complaint that the re-conviction trial was unfair in that it ignored or reinterpreted a final judgment of the ECHR; this complaint could not have been made in Knox v. Italy (2019), so it is clearly indicates that the re-conviction constitutes a new case.

See the ECHR cases MOREIRA FERREIRA v. PORTUGAL (No. 2) 19867/12 pargraphs 47 - 58 and BOCHAN v. UKRAINE (No. 2) 22251/08 paragraphs 33 - 39 for some of the relevant case law. Here's several paragraphs from the first cited case above:

56. In the light of the foregoing, the Court considers that the alleged lack of fairness of the procedure followed in examining the application for review, and more specifically the errors which the applicant claimed had vitiated the reasoning of the Supreme Court, constitute new information in relation to the Court’s previous judgment.

57. The Court further notes that a supervision procedure in respect of the execution of the judgment is still pending before the Committee of Ministers (see paragraph 23 above), although that does not prevent the Court from considering a new application in so far as it includes new aspects which were not determined in the initial judgment.

58. The Court therefore finds that Article 46 of the Convention does not preclude its examination of the new complaint under Article 6 of the Convention.

HUDOC - European Court of Human Rights

The HUDOC database provides access to the case-law of the Court (Grand Chamber, Chamber and Committee judgments and decisions, communicated cases, advisory opinions and legal summaries from the Case-Law Information Note), the European Commission of Human Rights (decisions and reports) and the...

hudoc.echr.coe.int

HUDOC - European Court of Human Rights

The HUDOC database provides access to the case-law of the Court (Grand Chamber, Chamber and Committee judgments and decisions, communicated cases, advisory opinions and legal summaries from the Case-Law Information Note), the European Commission of Human Rights (decisions and reports) and the...

hudoc.echr.coe.int

 

[Numbers]

Some readers or posters here may have some misunderstandings about the meaning of the various parts of Convention Article 35. This is the article that directs the ECHR to declare an application inadmissible under certain defined grounds listed in Article 35, and clarified in more detail in the ECHR case law. Some persons, possibly most frequently guilters, have misinterpreted provisions in Article 35, I have posted clarifications from the ECHR case law in this thread and its continuations. The ECHR-KS (ECHR Knowledge Sharing) website library does have a document providing the ECHR case law on Convention Articles 34 and 35: Practical Guide on Admissibility Criteria.*
There may be a concern by some that a new application to the ECHR by Knox her re-trial and re-conviction for calunnia will be considered inadmissible by the ECHR because it does not qualify as "new" compared to her application that led to the final judgment Knox v. Italy (2019).

The Practical Guide on Admissibility Criteria offers some additional citations to the ones I have discussed in previous posts. These are listed in paragraphs 239 - 244 of the Guide. Here I will post excerpts from those paragraphs, leaving out the inline citations, to give readers a better understanding of this topic. I have added emphasis by bolding.

239. The purpose of the first limb of Article 35 § 2 (b) is to ensure the finality of the Court’s decisions and to prevent applicants from seeking, through the lodging of a fresh application, to appeal previous judgments or decisions of the Court.... Moreover, in addition to serving the interests of finality and legal certainty, 35 § 2 (b) also marks out the limits of the Court’s jurisdiction. While certain rules on admissibility must be applied with a degree of flexibility and without excessive formalism the Court has adopted a more rigorous approach in applying those admissibility criteria whose object and purpose is to serve the interests of legal certainty and mark out the limits of its competence....

240. An application or a complaint is declared inadmissible if it “is substantially the same as a matter that has already been examined by the Court ... and contains no relevant new information”. This includes cases where the Court has struck the previous application out of its list of cases on the basis of a friendly settlement procedure.... However, if a previous application has never formed the subject of a formal decision, the Court is not precluded from examining the recent application....

241. The Court examines whether the two applications brought before it by the applicants relate essentially to the same persons, the same facts and the same complaints.... In order to determine whether an application or a complaint is substantially the same in terms of Article 35 § 2 (b) of the Convention, the complaint is always characterised by the facts alleged in it....

243. An application will generally fall foul of this Article where it has the same factual basis as a previous application. It is insufficient for an applicant to allege relevant new information where he has merely sought to support his past complaints with new legal arguments.... or provided supplementary information on domestic law incapable of altering the reasons for the dismissal of his/her previous application.... In order for the Court to consider an application which relates to the same facts as a previous application, the applicant must genuinely advance a new complaint or submit new information which has not been previously considered by the Court.... The relevant new information must be new factual information, which may include significant changes in the applicable domestic law....

Paragraph 244 provides an (incomplete) list of citations of cases where the ECHR found that the application was not the same as a previous one, and an (incomplete) list of cases where it found the application was the same.


* https://www.echr.coe.int/documents/d/echr/Admissibility_guide_ENG

 

[Numbers]

As a follow-up my previous post, here's a hypothetical example of two ECHR cases to consider: are they the same and thus the second inadmissible or is the second one new from an ECHR case law view point?

In the year 2007, the LittleBig Bank on Main Street in Country I, a member state of the CoE, is robbed. The police immediately suspect Mr. A of the crime, and arrest him, although they have no evidence to present in a criminal court. Since the police are convinced of his guilt, the exert some psychological pressure on him in an interrogation without a lawyer and which is not documented, except for his confession. He is convicted of the bank robbery solely on the strength of his confession, and is sentenced to 4 years. Soon after his confession, he writes a note to the police that he is unsure if his confession is true. He files an application with the ECHR, allleging his rights under Convention Articles 3 and 6.1 with 6.3c were violated. The ECHR accepts that application and in a final judgment finds that Country I violated his rights under Article 6.1 with 6.3c, and under Article 3 (procedural limb). At the end of 4 years, he is released. Soon after Mr. A is released, he requests a retrial based on the ECHR final judgment in his case. The courts in Country I retry him; first they must quash the previous conviction. In the retrial, the final judgment finds that he was guilty based soley upon his note to police. The court argues that the note was a defensive ruse to make it seem as though his confession was coerced, the courts can tell that it's fake because of the way he worded his uncertainty, and therefore it was actually proof that he had committed the bank robbery. Can Mr. A file a new application to the ECHR about the re-trial and re-conviction that is admissible under Convention Article 35?

 

[Vixen]

Why don't you explain it to me then without all the irrelevant word salad?

The poser to Truth Calls was, compare and contrast a lab scientist in a university department ~vs~ a crime scene forensic scientist. But never mind, you are too fanatically and blindly invested in your 'faith' to grasp a cool and objective perspective. Any rational view is perceived as a 'threat' by you. BTW you claim any DNA collected after 46 days is not permissible. Says who? You?

 

[AmyStrange]

Some idiots have no idea what being "objective" really means.