Continuation Part 4: Discussion of the Amanda Knox/Raffaele Sollecito case

[Grinder]

From Galati: At this point, in advance of our examination of the individual points of the C.A.A.’s motivation, it will be useful, by way of example, to give a preview of the ways in which the ruling under appeal makes its argument regarding Knox’s accusation of Patrick Lumumba. An accusation for which — it will be recalled — Knox was convicted of the crime of calumny precisely on the basis of the decision made by the C.A.A. itself.

In this case, the territorial Court maintains that Knox accused Lumumba because she was, in some manner, confronted with a [text] message exchanged between Knox herself and Lumumba.

If we analyze the reasoning of the ruling on this point, the Court reasons as follows: it hypothesizes that Knox accused[*] Lumumba only because he [recte: she] was confronted with the telephone message, therefore (conclusion) Knox accused[*] Lumumba because the person(s) listening to her told her that there had been a message between her and Lumumba.

Thus, as we see, the ruling does nothing but repeat in the conclusion what was in the premise, which moreover, remains unproven. Since, from a logical [logico-giuridico] point of view this is not a tautology, but rather a feigned inference, to reach a correct conclusion, the ruling would have to have, at the very least, demonstrated the truth/certainty of the premise. [But] of such a demonstration there is not only not a single trace, but not even an attempt at proof. The hypothesis is just posited, without any logical foundation.

Its repetition in the conclusion generates nothing but a “vicious circle” which leads nowhere.

Logical errors of this sort are common throughout the motivation of the C.A.A.’s ruling, and will be indicated in the individual points.

I must say that Hellmann's thinking on the calumny is so weird that it does undermine the credibility of his ability to think straight. How could anyone find her not guilty and still hold her guilty of calumny? Bizarre.

 

[acbytesla]

On this I agree totally Grinder. For the life of me, I couldn't understand why the Supreme Court earlier could rule that Knox's interrogation was improper for the murder trial but was somehow ok for the calumny trial.

This is where I think Italy is just plain nuts.

 

[LondonJohn]

I must say that Hellmann's thinking on the calumny is so weird that it does undermine the credibility of his ability to think straight. How could anyone find her not guilty and still hold her guilty of calumny? Bizarre.

In fact it's not bizarre at all. It may be wrong, but it's not bizarre. And the reason why it's not bizarre is directly linked to the mistaken decision made by Massei to try the criminal slander charge in continuance with the murder charges.

The simplistic - and incorrect - hypothesis goes as follows: Knox could only have knowingly falsely accused Lumumba if she herself had been involved in the murder (and thus knew for certain that Lumumba had not been involved). And the corollary of this is that if Knox was not involved in the murder, she would not have had the possibility of knowing for sure whether or not Lumumba had been involved, and thus could not knowingly commit a criminal slander.

The reality is very different. It's actually entirely possible for one person to make a false criminal accusation against another even when neither of the two people was actually involved in the relevant criminal activity. I've used a simple example before to illustrate this: suppose that there was a woman in Perugia in 2007 who was furious with her husband (perhaps he had cheated on her or had lost all their money on reckless gambling). Suppose that her husband had been out on the night of the murder, and had rolled back home drunk and abusive at midnight. Suppose that the wife had phoned the police on 3rd November 2007 and told them that her husband had been the one who murdered Meredith Kercher.

The above example would most certainly qualify as criminal slander under Italian law. Note that the wife did not have to KNOW FOR CERTAIN that her husband had not murdered Meredith in order to have committed the crime. She merely had to have had the mens rea ("guilty mind") to have made the accusation maliciously and without any reasonable reason to have done so.

So, with respect to Knox in particular, it is in fact perfectly logically possible in principle that she was not involved in the murder, but that she still committed a criminal slander in accusing Lumumba of participation. Hellmann's reasoning in this narrow area of law is correct: if Knox had indeed just blurted out the accusation against Lumumba in order to stop the police putting more pressure onto her, then this would constitute a criminal slander, even though Knox (since she wasn't involved in the murder) could not have known FOR CERTAIN whether or not Lumumba was involved.

So in principle, Hellmann's ruling is not bizarre in the slightest. However, it is wrong, but for other reasons: Knox didn't just accuse Lumumba out of the blue - she accused him because the police told her that they knew he was involved, and that she (Knox) was also there at the time, and they coerced her (possibly including physical intimidation) and coached her to "remember" this scenario. Because of this, Knox did not possess the necessary mens rea for the crime of criminal slander, and she should therefore never have been found guilty.

 

[Bill Williams]

I must say that Hellmann's thinking on the calumny is so weird that it does undermine the credibility of his ability to think straight. How could anyone find her not guilty and still hold her guilty of calumny? Bizarre.

As a recent convert to this line of thinking, I look back at my own posts - the ones which defended Hellmann finding Knox guilty of calunnia, while also defending Hellmann for acquitting Knox and Sollecito on the three other charges.

Like a lot of things in life, I try to reconstruct, "what the hell was I thinking." I cannot. At the time it seemed perfectly logical, consistent, and with integrity.

It was Mignini's own description of the night of the interrogation, as related in interview with CNN's Drew Griffin, that caused the "road to Damascus" reversal.... Jesus, Mary, and Joseph, I thought that I'd put together a timeline and narrative of the interrogation that would allow for Knox to be completely innocent of the three other charges, while still being guilty of calunnia.

Then I heard Mignini's narrative from his own mouth! For the life of me, I now cannot see how anyone would take Mignini seriously on anything to do with this case - and that's just evaluating Mignini's own words and nothing anyone else had said about the man.

His own words convict him. What the hell was I thinking?

 

[LondonJohn]

On this I agree totally Grinder. For the life of me, I couldn't understand why the Supreme Court earlier could rule that Knox's interrogation was improper for the murder trial but was somehow ok for the calumny trial.

This is where I think Italy is just plain nuts.

No, the SC was totally correct on this. The problems started when Massei ruled that the two crimes should, in essence, be linked - and that they should both therefore be tried together by the same triers of fact (i.e. the same judicial panel).

What should have happened was that there should have been an entirely separate trial of the criminal slander charge. In that way, the triers of the murder charges would never have heard the "accusation/confession" statements, and the triers of the criminal slander charge would never have heard evidence pertaining to the murder charges.

As I alluded to in my previous post, had Knox been tried entirely separately on the criminal slander charge, I think she would have had the proper opportunity to show the court that she did not have the necessary mens rea for the crime., since there would have been zero focus on the murder itself to cloud the issue. Knox could have used the interpreter's testimony to show that the police - and even the interpreter herself - were provably putting pressure on Knox to "remember" a traumatic event and to "recover" memories. And she could have focused far more heavily on the police misinterpretation of Knox's "see you later" text to Lumumba as indication that the police had already decided that Lumumba was involved.

 

[LondonJohn]

As a recent convert to this line of thinking, I look back at my own posts - the ones which defended Hellmann finding Knox guilty of calunnia, while also defending Hellmann for acquitting Knox and Sollecito on the three other charges.

Like a lot of things in life, I try to reconstruct, "what the hell was I thinking." I cannot. At the time it seemed perfectly logical, consistent, and with integrity.

But it IS logical and consistent - inasmuch as it IS entirely possible for someone who is not involved in a crime to commit the crime of criminal slander by accusing another person of that same crime. And since this is the issue that you (and others) appear to find fundamentally impossible in principle, then in my view you're wrong to think that way.

Where Hellmann's court did make the mistake (in my opinion) was in the way in which it found for guilt on the criminal slander charge. The court decided that Knox had essentially maliciously accused Lumumba simply to "get the police off her back" and redirect their focus towards Lumumba. Note that in principle, this would still be entirely logically consistent with Knox having had no involvement whatsoever with the murder.

However, what Hellmann's court failed to understand (again in my opinion) was that Knox's accusation of Lumumba was not malicious and was not used by her as some sort of deflection tactic. In fact, the evidence strongly suggests that Knox was subjected to sustained coercion and suggestion, and that she essentially only ended up "confirming" the version of evenst that the police had already put to her as the factual truth.

And if that's the case, then Knox did not have the necessary mens rea for the crime, therefore she did not commit a criminal act when she accused Lumumba, and therefore she should be acquitted on this charge.

 

[Grinder]

It is bizarre that Hellmann recognized that the police led her into the naming of Patrick and had only as a reason to falsely accuse Patrick the shortening of the interrogation. He clearly understands the basics of the interrogation being privy to the police chief's day after statements.

The interpreter's testimony was available to Hellmann further clarifying that she wasn't guilty of calumny.

Separating the trials while obviously a better approach wouldn't have changed much given the lack of restrictions on the judges.

The example of the wife is an otiose argument.

 

[Bill Williams]

But it IS logical and consistent - inasmuch as it IS entirely possible for someone who is not involved in a crime to commit the crime of criminal slander by accusing another person of that same crime. And since this is the issue that you (and others) appear to find fundamentally impossible in principle, then in my view you're wrong to think that way.

Where Hellmann's court did make the mistake (in my opinion) was in the way in which it found for guilt on the criminal slander charge. The court decided that Knox had essentially maliciously accused Lumumba simply to "get the police off her back" and redirect their focus towards Lumumba. Note that in principle, this would still be entirely logically consistent with Knox having had no involvement whatsoever with the murder.

However, what Hellmann's court failed to understand (again in my opinion) was that Knox's accusation of Lumumba was not malicious and was not used by her as some sort of deflection tactic. In fact, the evidence strongly suggests that Knox was subjected to sustained coercion and suggestion, and that she essentially only ended up "confirming" the version of evenst that the police had already put to her as the factual truth.

And if that's the case, then Knox did not have the necessary mens rea for the crime, therefore she did not commit a criminal act when she accused Lumumba, and therefore she should be acquitted on this charge.

I'll go you one better, LJ.

Think about it. Why should I change my mind about this based on Mignini's narrative as found in Drew Griffin's interview? Acc. to this narrative, Mignini wasn't even there during the crucial sub-narrative about how or why or by whom Lumumba was introduced!

For me it went well beyond trying to logically and legally parse this. It was a paradigm shift (cf. Thomas Kuhn) in understanding.

I had put this all together, back then, as a deflection tactic by Knox, perhaps even one brought on by extreme fatigue, language barrier, and as she said herself, "I was stressed out." The mens rea, I had thought, was there to the point, I argued, that she was convictable but perhaps not sentencable. (If that makes sense.)

Reading Mignini's own words about the narrative of that evening demonstrated what was really wrong. It strains credulity to think that Mignini, himself, can be sincere that after reading the requisite law to Ficarra (so he says), that he simply proceeds to do exactly what moments before, presumably, he'd quoted was not allowed.

The smoking gun, for me, is his use of the phrase, "I acted from that point on as if only a notary," so as to catch like butterflies in a net the so-called "spontaneous statements" Knox was presumably making with no inducement at all from Mignin - except for the fact that he encouraged her, by his own admission, to "keep going with all this spontaneous stuff."

This, combined with the differences in the first two memorandums that the ILE wrote for Knox, then asked her to sign, pretty much puts the lie to Mignini's whole reconstruction.... causing a paradigm shift in thinking as to what's what.

There's nothing like immersing oneself in the details of all this to point out what is now blindingly obvious.

Mignini's goal was to get spontaneous statements out of Knox, even if he had to slap her himself on the back of the head to get them. (Not that he did, but that's not my point.)

I not really arguing with you, LJ... it's just that for me there was a whole paradigm shift in understanding what was what that evening....

 

[acbytesla]

No, the SC was totally correct on this. The problems started when Massei ruled that the two crimes should, in essence, be linked - and that they should both therefore be tried together by the same triers of fact (i.e. the same judicial panel).

With all due respect John, it might make sense to you and the Italians, but I still think it's nuts. If the law says you must have a lawyer present then I see this as the fruit of the poisonous tree.

There is no maliciousness in her statement. There is nothing spontaneous about it. In fact Amanda didn't say that Patrick did anything. She said "after many hours of confusion that my mind came up with these answers. In my mind I saw Patrik in flashes of blurred images. I saw him near the basketball court. I saw him at my front door."

The key point is she said "in her mind" She in fact did NOT slander Patrick at all.

Are we to say that in Italy, it is a crime to have a hallucination or think the wrong thing? How is this slander? She has to deliberately know she is saying the wrong thing, but the fact she says she is confused. Clearly she didn't know what she was saying, so how could this be slander?

 

[Chris_Halkides]

Freedom of movement

With all due respect John, it might make sense to you and the Italians, but I still think it's nuts. If the law says you must have a lawyer present then I see this as the fruit of the poisonous tree.

acbytesla,

You make a couple of important points, but this issue bothers me even more than the others. Italian law says you must have a lawyer present when you are a suspect. Andrea Vogt interviewed Stefano Maffei on this question: "The law is very clear: A suspect must not be interrogated without a lawyer. Once a suspect, an interrogation must be interrupted, the suspect read his or her rights to remain silent and be provided a lawyer. Italian law does not allow waiver of one’s right to counsel. Even if a suspect doesn’t want a lawyer, the authorities are required to appoint one. If a suspect’s freedom of movement is hindered, the interrogation must be videotaped." If one were supposed to have a lawyer present, then what one says without one present should not exist as far as the law is concerned. IANAL. MOO.

 

[RWVBWL]

WHO REALLY CARES WHAT FRANK SFARZO HAS DONE SINCE?


Amanda Knox and Raffaele Sollecito are FREE from wrongfull imprisonment!!!

And it's been almost a year and a half since they were set free!

Who cares what Frank Sfarzo did since then or what Candace Dempsey did since then or what Barbie Nadeau did since then or what John Follian did since then.

Or Grinder, or Mary H, DanceMe, RoseM, Fine, DanO., Prof. H, LJ, RWVBWL or Fulcanelli, Skep, Tara, Quad, Alt+4, DonkeyBoB, Treehorn, Jacky, Zorba, Brulliski, old hottie Cape, Pilot Padron,-(of whom I just mighta, mighta have met,) or that old man with an apparent crush on Miss Kercher...


Raffaele Sollecito and Amanda Knox have been set FREE!!!
They were INNOCENT of involvement in Meredith Kercher's murder.

Do you not think that there any doubt of this in a courtroom in Italy when they were set FREE?

These 2 young adults were once held in solitary confinement, fer christs sake, on suspicion of participation in a horribly brutal, bloody murder of a foreign student in a college town.

And yet they were set FREE!

What country, state, county, providence, community, or city would set 2, yes 2 different people FREE if there was any doubt that they had sliced open that young womens throat???


I wanna go on a different tanget here:
Has Raf or Amanda done anything wrong since their release?
What's that?
I can't hear you!!!
Surely Amanda, that she-devil that she is, or Raf, he supposedly into animal porn, ninja comics and slick knives with sharp blades, musta done some wrong in society since their reease, NO???

What?
They they haven't even gotten a a jaywalking ticket since their relese??
Nor a disturbing the peace, celebratory house party with some rocks bein' thrown!?!

WOW...


Who cares about anyone else?
RW

 

[acbytesla]

acbytesla,

You make a couple of important points, but this issue has always bothered me as well. Italian law says you must have a lawyer present when you are a suspect. Andrea Vogt interviewed Stefano Maffei on this question: "The law is very clear: A suspect must not be interrogated without a lawyer. Once a suspect, an interrogation must be interrupted, the suspect read his or her rights to remain silent and be provided a lawyer. Italian law does not allow waiver of one’s right to counsel. Even if a suspect doesn’t want a lawyer, the authorities are required to appoint one. If a suspect’s freedom of movement is hindered, the interrogation must be videotaped." If one were supposed to have a lawyer present, then what one says without one present should not exist as far as the law is concerned. IANAL. MOO.

Well the whole Calumny charge seems insane to me. They seem to wield those charges recklessly in Italy. I can see Amanda, being charged with Calumny, if she went to the police headquarters voluntarily seeking to pin the murder on Patrik, but to charge a suspect of that specific charge as the result of an interrogation seems beyond absurd to me.

But hey, that's just me.

 

[Grinder]

It would have been less bizarre if Hellmann would have upheld the murder conviction and reversed the calumnia. He could have said that she didn't formulate this idea but rather had it force fed down her throat. It was obvious that the police "knew what was correct" and forced her to agree to stop the interrogation.

The line between person with information/witness and suspect seems bizantine. It should be concerning to the PIP that the Corte Suprema di Cassazione ruled her statements could be used at all and odd that a ruling wasn't issued to separate the trial even if everything would have been common knowledge anyway.

 

[anglolawyer]

Anglo, from Hellmann, apparently the PM could have called Raf

Furthermore, since no one — neither the Public Minister, nor the civil parties, nor even the attorneys for the defendants — requested the testimony [esame] of Raffaele Sollecito, no explanation on this point is available to be checked.

Thanks. That fits with what Follain wrote about Bongiorno criticising Mignini for not questioning him, his own book and a reply he has given in his current online Q and A. Caso chiuso. I can't make up my mind which is more alien: the prosecutor not wanting to question him or Raffaele not knowing why his own team didn't question him.

 

[anglolawyer]

It is bizarre that Hellmann recognized that the police led her into the naming of Patrick and had only as a reason to falsely accuse Patrick the shortening of the interrogation. He clearly understands the basics of the interrogation being privy to the police chief's day after statements.

The interpreter's testimony was available to Hellmann further clarifying that she wasn't guilty of calumny.

Separating the trials while obviously a better approach wouldn't have changed much given the lack of restrictions on the judges.

The example of the wife is an otiose argument.

Otiose?

A caution must be issued to LJ for wanton and reckless use of the word 'malicious'. Malice is a constituent of the mens rea for some criminal offences (in England we have 'malicious wounding' and 'malice aforethought' in murder) but not for calunnia, as Hellman explains:

However, this Court does not find that there is any significant objective evidence that, when she made her spontaneous statements and wrote her note, Amanda Knox was in not only a situation of considerable psychological pressure and stress but also even in a condition of not intending or wishing; so that, having accused of such a serious crime a person whom she knew to be innocent, she must in any case be held responsible for the crime of calumny, the constitution of which does not require any specific purpose from a psychological point of view, such as shifting the blame off of oneself [conseguire la propria impunità] (an aggravating circumstance alleged [here]). Generic criminal intent [il dolo generico] is sufficient, thus including the aim of escaping from a particularly oppressive personal situation.

I have used this passage before to try to construct the legal definition of the crime:

'A person commits calunnia when he falsely accuses another of a criminal offence in circumstances in which he knew or ought to have known the accusation to be false.'

If you want to put malice into it you add:

'A person commits calunnia when, with intent to cause harm to another, he falsely accuses that other of a criminal offence in circumstances in which he knew or ought to have known the accusation to be false.'

In this version, it becomes a crime of specific intent, which is a distinct conceptual category in English law, like murder, theft but unlike, say, common assault.

The last part, about the accuser's state of knowledge, comes from this:

This argument [that if guilty of calunnia Amanda must be guilty of murder] cannot be accepted: the circumstances under which Lumumba’s name emerged in the course of the police interrogation (a message directed to him taken from the cellular phone of Amanda Knox), and the lack of evidence of a connection between Lumumba and Meredith Kercher [should have] allowed Amanda Knox, even if actually innocent herself and far from the house on Via Della Pergola at the time of the crime, to be aware of Lumumba’s total innocence, and thus of the calumny that she was committing by pointing to him as the perpetrator of the murder.

The highlighted words suggest an objective standard of knowledge is being applied. That is, not: what did Amanda actually think when naming Lumumba but rather what should a reasonable person in Amanda's position have thought?

I don't find Hellman's reasoning at all convincing, not least because Lumumba did know Meredith and Amanda may well have been aware of this, so the 'evidence' that Hellman thought Amanda was supposed to be reasonably and dispassionately assessing in the middle of the night while being shouted at was to the opposite effect. Also, she may have been persuaded, in her own mind, that Lumumba had texted her not to come to work so he could go and see Meredith.

 

[Mary_H]

Otiose?

o·ti·ose
/ˈōSHēˌōs/
Adjective
1.Serving no practical purpose or result.
2.Indolent; idle.

oti·ose
adjective \ˈō-shē-ˌōs, ˈō-tē-\
1: producing no useful result : futile
2: being at leisure : idle
3: lacking use or effect : functionless

Origin of OTIOSE
Latin otiosus, from otium leisure
First Known Use: 1794

Synonyms
idle - useless - needless - superfluous - unnecessary

I had to look it up to learn its meaning (not to mention its pronunciation). Now Grinder's use of it strikes me as serendipitous in the context of Clive's question of whether Hellmann's reasoning is convincing.

Some may find Hellmann's reasoning convincing in light of the laws (or whatever they are) he cites, but the problem is the laws themselves may not be reasonable. For example, isn't this -- "Generic criminal intent [il dolo generico] is sufficient, thus including the aim of escaping from a particularly oppressive personal situation" -- the same as denying someone the right to self-defense?

I am going to guess that the concept represented by that legal reasoning originally (and possibly currently) has served some classes far better than it has served others. Who, for example, is more likely to be in an "oppressive personal situation" -- a "criminal" or a member of the police force? A woman or a man? An employee or an employer? I wonder how often that reasoning has been used to protect the police from charges of brutality, as opposed to how often it was ever used to protect a defendant from false accusations. Such legal reasoning can't stand up to scrutiny when laws in opposition to it, that is, laws protecting the powerful from the accusations of the weak, are often written into the books elsewhere.

Anyway, I call Grinder's use of otiose serendipitous because it reminds us to reflect upon how words, arguments, laws and actions usually do have purposes and results, often so traditional they become subconscious. When so few elements of a case stand to reason, examination and logic, we have to ask ourselves what purpose the case serves instead of the purpose it is CLAIMED to serve, that is, the purpose of justice.

 

[Mary_H]

Raffaele Sollecito and Amanda Knox have been set FREE!!!
They were INNOCENT of involvement in Meredith Kercher's murder.

Do you not think that there any doubt of this in a courtroom in Italy when they were set FREE?

These 2 young adults were once held in solitary confinement, fer christs sake, on suspicion of participation in a horribly brutal, bloody murder of a foreign student in a college town.

And yet they were set FREE!

What country, state, county, providence, community, or city would set 2, yes 2 different people FREE if there was any doubt that they had sliced open that young womens throat???

I wanna go on a different tanget here:
Has Raf or Amanda done anything wrong since their release?
What's that?
I can't hear you!!!
Surely Amanda, that she-devil that she is, or Raf, he supposedly into animal porn, ninja comics and slick knives with sharp blades, musta done some wrong in society since their reease, NO???

What?
They they haven't even gotten a a jaywalking ticket since their relese??
Nor a disturbing the peace, celebratory house party with some rocks bein' thrown!?!

WOW...

Who cares about anyone else?
RW

Must you be so logical, man?

P.S. I want to hear more about this:

old hottie Cape

 

[LondonJohn]

With all due respect John, it might make sense to you and the Italians, but I still think it's nuts. If the law says you must have a lawyer present then I see this as the fruit of the poisonous tree.

There is no maliciousness in her statement. There is nothing spontaneous about it. In fact Amanda didn't say that Patrick did anything. She said "after many hours of confusion that my mind came up with these answers. In my mind I saw Patrik in flashes of blurred images. I saw him near the basketball court. I saw him at my front door."

The key point is she said "in her mind" She in fact did NOT slander Patrick at all.

Are we to say that in Italy, it is a crime to have a hallucination or think the wrong thing? How is this slander? She has to deliberately know she is saying the wrong thing, but the fact she says she is confused. Clearly she didn't know what she was saying, so how could this be slander?

Firstly, for the sake of clarity, I think that Hellmann's reasoning on the guilty verdict for the criminal slander was incorrect in law. I think Knox should be acquitted on this charge.

But I also want to make it clear that I was only talking about a very specific issue that had been raised here: some people believe it's logically incompatible to have acquitted Knox on the murder charge but to have found her guilty of the criminal slander charge. That's simply not accurate. As I said, if Knox had "waltzed into the police station and accused her black boss" (as per a certain pro-guilt commentator), then she very probably would have been guilty of committing a criminal slander, despite not having been involved in the murder.

So my posts were purely aimed at trying to dispel the incorrect notion that it should have been impossible for Hellmann to reach these "opposing" verdicts - they are not opposing at all in principle. But the reason why Hellmann was wrong (in my opinion) is not to do with any such logical conflict between the various verdicts: it's because he got it wrong on the points of law as they pertained to the criminal slander charge on a stand-alone basis.

So with that in mind, I agree 100% with everything you've written here from your second paragraph onwards. Knox's "accusation/confession" was not malicious, it was not given with the requisite mens rea, it was confused and proposed only as a "vision", it was clearly the product of improper police coercion and suggestion. For all these reasons, it's clear to me that Knox should not be (and should never have been) found guilty of the criminal slander of Lumumba.

 

[anglolawyer]

I had to look it up to learn its meaning (not to mention its pronunciation). Now Grinder's use of it strikes me as serendipitous in the context of Clive's question of whether Hellmann's reasoning is convincing.

Clive?

Some may find Hellmann's reasoning convincing in light of the laws (or whatever they are) he cites, but the problem is the laws themselves may not be reasonable. For example, isn't this -- "Generic criminal intent [il dolo generico] is sufficient, thus including the aim of escaping from a particularly oppressive personal situation" -- the same as denying someone the right to self-defense?

In English law there are general defences of duress and necessity. They are 'general' because they apply to all crimes. Italian law must recognise these possibilities somehow. Say a doctor has to amputate a leg, even without consent, to save someone trapped under a collapsed building. The defence of necessity could be run against a charge of assault. Or, a person participates in a crime due to threats. Perhaps a bank manager assists in a robbery because his wife and kids are held hostage.

I don't know whether these defences are available nor whether they were advanced. There is no discussion of them in Hellman. Nor are they explicitly mentioned in Amanda's appeal, which centers on the mental element:

The defense argues that the mental element of intent is lacking, therefore the charge of libel is not warranted.

It is this that Hellman addresses in saying her mental capacity remained such as to enable her to form the required, general intent. This is after many paragraphs in which he sets out pretty convincingly all the reasons why she may not have been.

I am going to guess that the concept represented by that legal reasoning originally (and possibly currently) has served some classes far better than it has served others.

Cool. Another Marxist. Greetings comrade!

Who, for example, is more likely to be in an "oppressive personal situation" -- a "criminal" or a member of the police force? A woman or a man? An employee or an employer? I wonder how often that reasoning has been used to protect the police from charges of brutality, as opposed to how often it was ever used to protect a defendant from false accusations. Such legal reasoning can't stand up to scrutiny when laws in opposition to it, that is, laws protecting the powerful from the accusations of the weak, are often written into the books elsewhere.

Anyway, I call Grinder's use of otiose serendipitous because it reminds us to reflect upon how words, arguments, laws and actions usually do have purposes and results, often so traditional they become subconscious. When so few elements of a case stand to reason, examination and logic, we have to ask ourselves what purpose the case serves instead of the purpose it is CLAIMED to serve, that is, the purpose of justice.

I would not attribute so much significance to Grinder's employment of this particular word. He is probably mindlessly parroting this Clive guy you mention. Maybe the Italian law was passed against a background of widespread denunciation?

 

[LondonJohn]

acbytesla,

You make a couple of important points, but this issue bothers me even more than the others. Italian law says you must have a lawyer present when you are a suspect. Andrea Vogt interviewed Stefano Maffei on this question: "The law is very clear: A suspect must not be interrogated without a lawyer. Once a suspect, an interrogation must be interrupted, the suspect read his or her rights to remain silent and be provided a lawyer. Italian law does not allow waiver of one’s right to counsel. Even if a suspect doesn’t want a lawyer, the authorities are required to appoint one. If a suspect’s freedom of movement is hindered, the interrogation must be videotaped." If one were supposed to have a lawyer present, then what one says without one present should not exist as far as the law is concerned. IANAL. MOO.

Yes, absolutely.

However.......

On the particular issue of the criminal slander charge, there is a specific set of circumstances which means that Knox's accusation actually could potentially count in evidence (although I argue that it shouldn't but for other reasons). That's because if the court were to accept that Knox's 1.45am "confession/accusation" was a "spontaneous declaration", and that it was this statement which caused her legal status to change to that of "formal suspect", then the contents of her "spontaneous declaration" can indeed be used against both her and others.

If a man, for example, was being questioned in a police station as a person of interest in the disappearance of his wife, and he suddenly confessed to having murdered her and dumping her body in a river, this would clearly count as a "spontaneous declaration". If the police and PM moved to recategorise the man as a "formal suspect" on the weight of this statement, then its contents could be used against the man in evidence,with certain caveats.

In the above example, the correct procedure would be that immediately following this "spontaneous declaration", the man would have been informed of his rights and give a lawyer (either one of his choosing or one provided by the state). He would have the right to consultation with his lawyer, and would then be asked whether he wanted to make another statement with the benefit of legal counsel and full knowledge of his rights under the law.

It goes without saying. of course, that in Knox's case it's massively probable that her 1.45am statement was not the result of any sort of "spontaneous declaration", but that it was coerced and suggested to her by the police. Further, there's plenty of evidence that the police considered Knox a "formal suspect" in everything but name well before she made the oral or written statement. And that being the case, then the rules regarding admissibility of this statement no longer apply. And lastly, it's obvious that the correct procedures were not followed by either the police or the PM in the aftermath of this 1.45am statement - this further nullifies the weight and admissibility of the statement.