Continuation Part 5: Discussion of the Amanda Knox/Raffaele Sollecito case

[Mary_H]

Coulsdon no formal allegation was made. Why exactly we don't know but as I recalled and Mary verified she mentioned the slapping BEFORE she had seen a lawyer.

Someone here could detail all the people charged by the ILE for defamation or other similar crimes. One specific was that Mignini threatened the West Seattle Herald for quoting someone that said Mignini was a bit off.

Now if you were honest about this, it is clear that Amanda mentioned the cuffing before she knew the interrogation wasn't recorded or at least before knowing no recording still existed.

Maybe one of the crime novelists has a quote in which the police say they told her the interrogation wasn't recorded so she could have a free hand while writing her notes

All the evidence we can gather, not withstanding the police themselves, indicates clearly that the police badgered her including a couple whacks to the head and led her to tell them what they knew to be correct.

I don't think Coulsdon is disputing any of that, Grinder.

Now, could someone please try to answer my question of why the police would be loath to admit they cuffed a suspect?

 

[anglolawyer]

I don't think Coulsdon is disputing any of that, Grinder.

Now, could someone please try to answer my question of why the police would be loath to admit they cuffed a suspect?

because it's against the law?

 

[Chris_Halkides]

investigation? we don't need no stinkin' investigation

I recall reading at Perugia-Shock that Frank asked one of the prosecutors (probably Comodi) if there would be an investigation. She replied with words to the effect, "Of course not, she said it in open court." Meaning that the actual incident itself would not be investigated, just the fact of Amanda's saying that she had been cuffed. You can't make this stuff up, but then again, you can't read about it any more either, thanks to Mignini's shutting Perugia-Shock down.
ETA
On January 19, 2010, Frank Sfarzo of Perugia-Shock posted a short interview with Co-Prosecutor Manuela Comodi, about the nature of the investigation into this charge.

The revelation? There was no investigation. A short snippet:
Q: What was done as investigation?
A: Nothing, what should we have done? She did it in front of everyone.
Q: You didn't think you could maybe investigate if what she said was true?
A: And what should we have done, interview the interpreter?
Q: The interpreter and all other witnesses, the suspect, the victims. Run the investigation, you know how to make them.
A: Please... there's nothing to investigate, she did the slander in public. And everybody was already heard at the trial.
Link here.

 

[CoulsdonUK]

I don't think Coulsdon is disputing any of that, Grinder.

Now, could someone please try to answer my question of why the police would be loath to admit they cuffed a suspect?

I am not saying it didn’t happen, I just don’t understand how lodging a formal complaint with the court would have resulted in Calunnia.

 

[Grinder]

I am not saying it didn’t happen, I just don’t understand how lodging a formal complaint with the court would have resulted in Calunnia.

Defamation. Unlike our system one can be charged with a crime for making a defense that can't be proven. In this case she was charged with defaming the cops because she couldn't prove they hit her.

Much was written at the time about why the lawyers didn't bring it in.

 

[Chris_Halkides]

not sure whether or not this works

I don't think Coulsdon is disputing any of that, Grinder.

Now, could someone please try to answer my question of why the police would be loath to admit they cuffed a suspect?

This may or may not answer your question. For some, the alpha and the omega of this case is that Amanda accused an innocent man. When one acknowledges that there was physical coercion, one is also forced to admit that this weakens slightly the idea that she accused Patrick because she was guilty, because it at least admits the possibility of an alternate explanation. Also, people who believe she was cuffed are likely to feel more sympathy for her than people who believe that she was not.

 

[Grinder]

I don't think Coulsdon is disputing any of that, Grinder.

Now, could someone please try to answer my question of why the police would be loath to admit they cuffed a suspect?

Even more than being against the law, had they admitted they slapped her when combined with the "we questioned her until she BUCKLED and told us what we knew to be correct" really, really looks bad. I think it looked bad from day one but had they admitted...

 

[CoulsdonUK]

This is weird. No matter how pose the question, no one seems to want to address it.

“I just don’t understand how lodging a formal complaint with the court would have resulted in Calunnia?”

 

[Chris_Halkides]

checking the premises

This is weird. No matter how pose the question, no one seems to want to address it.

“I just don’t understand how lodging a formal complaint with the court would have resulted in Calunnia?”

Are you certain that your premises are correct? One, I think Amanda was charged with slander with respect to the police, not calunnia. Two, I don't think that Amanda would have had to file a formal complaint; apparently, just speaking in open court was enough to generate the charge (see my revised comment above).

 

[Grinder]

This is weird. No matter how pose the question, no one seems to want to address it.

“I just don’t understand how lodging a formal complaint with the court would have resulted in Calunnia?”

In Roman law during the Republic, calumnia was the willful bringing of a false accusation, that is, malicious prosecution.[

Had she filed charges against them it could and would have resulted in a calumnia charge against her.

She was charged with defamation/slander. So just mentioning it resulted in the suit against her by the cops. IIRC 8 out of the 12 there that night were part of the action.

Why is it so important to you?

 

[anglolawyer]

In Roman law during the Republic, calumnia was the willful bringing of a false accusation, that is, malicious prosecution.[

Had she filed charges against them it could and would have resulted in a calumnia charge against her.

She was charged with defamation/slander. So just mentioning it resulted in the suit against her by the cops. IIRC 8 out of the 12 there that night were part of the action.

Why is it so important to you?

He is insinuating that since there is no good reason why she did not make a formal complaint, her allegation is not credible. It's a PGP meme.

 

[Bill Williams]

I don't think Coulsdon is disputing any of that, Grinder.

Now, could someone please try to answer my question of why the police would be loath to admit they cuffed a suspect?

This may or may not answer your question. For some, the alpha and the omega of this case is that Amanda accused an innocent man. When one acknowledges that there was physical coercion, one is also forced to admit that this weakens slightly the idea that she accused Patrick because she was guilty, because it at least admits the possibility of an alternate explanation. Also, people who believe she was cuffed are likely to feel more sympathy for her than people who believe that she was not.

Thank you for this, halides1. In fact, this is the only unknown left, really.

Raffaele and Amanda were not involved in the murder, nor were they involved with a staged break-in, a clean-up or a transporting of the knife. We know this because there is no evidence, really, that these things happened. (It's just not good enough anymore to challenge me to prove that there is no evidence of these things.... the prosecution in Florence simply will have to provide proof that they DID happen, other than the allegation itself.)

And if the case teetters on some sort of fulcrum, all there is, really, is this - Amanda claims they biffed her twice, and they take offence to this enough to have her charged with defmation.

Why?

It's because as halides1 says, this is all that's left, really. If the biff(s) DID happen, then Amanda really does have a case alleging coersion over the naming of Lumumba. Imagine Anna Donnino being embarrassed that she acted not as a translator, but (as she testified to) a mediator between Amanda and Ficarra. I think I'd want to charge someone with defamation if they accused me of not simply translating, but immersing myself in getting the sespec.... ah, er, witness to remember things she was not remembering.

If the biff(s) DIDN'T happen, then there is perhaps one sliver of light left that perhaps, against the evidence, that Amanda named Lumumba because she was reluctant to otherwise tell all she knew about the murder.
And that only assumes that she knew something, even the most minimal thing, about the murder. Maybe she lost her key at the Hallowe'en party on Dec 31 and that's what she's not telling us. That the key got into the wild, and some unknown person did this crime - but the point would be that Amanda is withholding the temporary misplacement of her key but was otherwise not involved. Then under interrogation leading up to 1:45 am Nov 6, she realized the loss of key might be connected to the crime, and because so desperate to hide this that she lied about Lumumba to divert attention.

It all turns on the reality of the biff(s), really. No wonder the cops have drawn THAT line in the sand.

ANGLOLAWYER - No, it's not really illegal. No court ANYWHERE is going to convict cops for biffing a murder suspect, not really. Now, if the cop who threatened to leave Raffaele in a pool of blood had delivered on that promise, which he did not, THAT might have been an illegality that the courts might have slapped their wrists for....

But a biff? Two biffs? Just to stir the memory from an uncooperative suspec..... ah, er, witness?

C'mon. There's Lawyer-law and then there's cop-law.

 

[Skind]

This is weird. No matter how pose the question, no one seems to want to address it.

“I just don’t understand how lodging a formal complaint with the court would have resulted in Calunnia?”

Because the court is a judicial authourity, a formal complaint is an attempt to direct them to blame, and making a formal complaint without evidence is indistinguishable from making a complaint when you know the complaint to not be true.

A formal complaint about the police would meet all the criteria to be eligible for a callunia charge. The prosecutor had already slapped Knox and family with additional charges, some of which are still ongoing AFAIK. He would undoubtedly jump at the chance of slapping another callunia against her.

 

[Bill Williams]

Could someone remind me why the alleged cuffing or hitting wasn’t part of Amanda’s defence team strategy, as I recall the accusation was made by Amanda whilst testifying in the 1st level trial, I have always found it puzzling? It could have been like this

Because without the video recording, the defence team themselves could be charged with either defamation or calunnia, especially if they were seen to be accusing the cops of criminal behaviour which they knew did not exist.

 

[Grinder]

Here one explanation of calunnia - Anglo do you remember the aggravating circumstances? Just found it - attached at end

Calunnia (Italian pronunciation: [kaˈlunnja]), meaning "calumny", is a criminal offence under Article 368 of the Italian Penal Code (Codice Penale), which states:
Anyone who with a denunciation, complaint, demand or request, even anonymously or under a false name, directs a judicial authority or other authority that has an obligation to report, to blame someone for a crime who he knows is innocent, that is he fabricates evidence against someone, shall be punished with imprisonment from two to six years. The penalty shall be increased if the accused blames someone of a crime for which the law prescribes a penalty of imprisonment exceeding a maximum of ten years, or another more serious penalty. The imprisonment shall be from four to twelve years if the act results in a prison sentence exceeding five years, from six to twenty years if the act results in a life sentence.[1][2]
The mens rea of calunnia requires awareness and a willingness to blame someone of a crime that the accused knows is innocent.[3]
Calunnia should be distinguished from criminal slander (ingiuria) and criminal libel (diffamazione) which relate to offences against personal honour in the Italian Penal Code.[4]
Protection of legal interests[edit source | editbeta]

Traditionally, the crime of calunnia is said to protect a plurality of legal interests. The major protected legal interests are, at the same time, both the proper administration of justice and personal honour, and also possibly the personal freedom of the falsely accused. Historically, the Italian legal system has treated calunnia as detrimental to the interests of the State and the correct administration of justice. This is evidenced through the crime of calunnia being included among other crimes against the administration of justice in the Italian Penal Code,[3][5] unlike in the French Penal Code or Belgian Penal Code, which place the equivalent of calunnia with crimes against honour.[6][7]


Massei - Finally, under chapter F of the charges is ascribed to Amanda Marie KNOX alone the crime of criminal defamation to the detriment of Diya Lumumba, known as ‚Patrick‛, a crime brought in by continuation [reato contestato nella forma continuata]5, insofar as the alleged false accusations in relation to the responsibility of Lumumba for the murder of Meredith Kercher is held to have been contained in several statements made by Knox to the investigators on November 6, 2007; a crime aggravated in the sense of Article 61 section 2 of the Criminal Code, it being
Here the evidence that comes from the calunnia case is brought into the murder, and vice-versa, because of the aggravation link.

expected that, with this false accusation, Amanda Knox was allegedly attempting to obtain impunity for herself, for Sollecito, and also for Rudy Hermann Guede.

 

[anglolawyer]

Yes, the aggravating circumstance, which is one of a list set out in the penal code that applies to all offences (or, if not all, more than just calunnia) is making the false allegation with intent to evade her own or another's responsibility for the crime.

This is why there is still such a battle around the calunnia charge and why Mach is cock-a-hoop that Hellman's conviction for the basic offence was upheld. For how can she have known Patrick was innocent if she was not herself involved as she is now in law deemed to have known? It no longer lies in her mouth to say she did not know. It has been found against her that she did. If she returned and gave evidence of lack of knowledge she would be silenced by the court, quite correctly.

If she's not going back, or even if she is, how is the defence going to deal with this? It's no good arguing the cops told her they knew Patrick was there and as a result she came momentarily to beleve he was implicated. The ISC has ruled that out and Florence is bound hand and foot by the ruling.

 

[Bill Williams]

Yes, the aggravating circumstance, which is one of a list set out in the penal code that applies to all offences (or, if not all, more than just calunnia) is making the false allegation with intent to evade her own or another's responsibility for the crime.

This is why there is still such a battle around the calunnia charge and why Mach is cock-a-hoop that Hellman's conviction for the basic offence was upheld. For how can she have known Patrick was innocent if she was not herself involved as she is now in law deemed to have known? It no longer lies in her mouth to say she did not know. It has been found against her that she did. If she returned and gave evidence of lack of knowledge she would be silenced by the court, quite correctly.

If she's not going back, or even if she is, how is the defence going to deal with this? It's no good arguing the cops told her they knew Patrick was there and as a result she came momentarily to beleve he was implicated. The ISC has ruled that out and Florence is bound hand and foot by the ruling.

The Florence court can choose to say that the cops told her something she momentarily believed, as this is essentially Hellmann's ruling. Yes, the ISC ruled that out - but it would only belong to some future sitting of the ISC to either confirm the Florence ruling or uphold the former sitting of the smaller group of the ISC. They then could sort this out by a full sitting of the ISC, say, in 2016.

Is a future sitting of the ISC bound by previous ruling of the ISC? Why would it be as there is no appeals body above it?

 

[anglolawyer]

The Florence court can choose to say that the cops told her something she momentarily believed, as this is essentially Hellmann's ruling. Yes, the ISC ruled that out - but it would only belong to some future sitting of the ISC to either confirm the Florence ruling or uphold the former sitting of the smaller group of the ISC. They then could sort this out by a full sitting of the ISC, say, in 2016.

Is a future sitting of the ISC bound by previous ruling of the ISC? Why would it be as there is no appeals body above it?

Respectfully disagree here Bill:

This Court therefore finds that Amanda Knox had indicated Lumumba as the perpetrator only because, at that moment, it appeared to be the quickest and easiest way to put an end to the situation in which she found herself, her interrogators having insisted on an explanation of the message she sent to him.

and

According to the prosecution’s theory, it would be contradictory to find Amanda Knox guilty of calumny while acquitting her of the other crimes, since (it is argued) Amanda Knox could know that Patrick Lumumba was innocent of the murder only because she herself had participated in the crime, and thus was aware of its true perpetrators; if she had not participated in the crime or had not been present in the house on Via Della Pergola at the moment of the murder, she could not have known that Lumumba was innocent.

This argument 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.

IOW she knew her exchange with Patrick was totally benign and she knew there was no connection between him and MK. She cannot at the same time momentarily have believed something the cops told her ('we know he was there' and btw. it's not her evidence they said that) and that Patrick could not be involved for the reasons above.

Why isn't she stuffed?

ETA she comes before the Florence court convicted of calunnia. The court cannot go behind that finding.

 

[Bill Williams]

Respectfully disagree here Bill:



and



IOW she knew her exchange with Patrick was totally benign and she knew there was no connection between him and MK. She cannot at the same time momentarily have believed something the cops told her ('we know he was there' and btw. it's not her evidence they said that) and that Patrick could not be involved for the reasons above.

Why isn't she stuffed?

ETA she comes before the Florence court convicted of calunnia. The court cannot go behind that finding.

I was reacting to the part where you are assuming, in effect, that the ISC has directed the lower court to order a conviction on the murder charge (or one of the others) because of their ruling on calunnia.

If that is true, the ISC could have just convicted her last March, as part of overturning Hellmann.

And does it also hold that ordering a conviction for Knox, is the same as ordering a conviction for Sollecito for whom the calunnia does not apply?

My claim is that the Florence court can still decide what it wants.... because the check and balnace for the Florence court perhaps violating the direction of the ISC, is the ISC itself, which will meet as a different sub-set of the whole in 2016, or perhaps as the whole ISC.

Which led me to ask: is a future sitting of the ISC bound by a former sitting?

For instance, if the Florence court says something different about calunnia, and the next sitting of the ISC agrees.... well, I won't go there because that's a long, long shot, but in theory cannot a future ISC simply overrule a former judgement it made, esp. if new evidence is found?

If not, that means that even new evidence in Italy cannot undo a wrongful conviction.

 

[anglolawyer]

I was reacting to the part where you are assuming, in effect, that the ISC has directed the lower court to order a conviction on the murder charge (or one of the others) because of their ruling on calunnia.

If that is true, the ISC could have just convicted her last March, as part of overturning Hellmann.

And does it also hold that ordering a conviction for Knox, is the same as ordering a conviction for Sollecito for whom the calunnia does not apply?

My claim is that the Florence court can still decide what it wants.... because the check and balnace for the Florence court perhaps violating the direction of the ISC, is the ISC itself, which will meet as a different sub-set of the whole in 2016, or perhaps as the whole ISC.

Which led me to ask: is a future sitting of the ISC bound by a former sitting?

For instance, if the Florence court says something different about calunnia, and the next sitting of the ISC agrees.... well, I won't go there because that's a long, long shot, but in theory cannot a future ISC simply overrule a former judgement it made, esp. if new evidence is found?

If not, that means that even new evidence in Italy cannot undo a wrongful conviction.

I was just posing the problem. Florence is not starting off where Hellman did. They already have her guilty of calunnia before she walks in. I guess they could just repeat Hellman's findings but if they do they will be, as you say, arguing with the ISC. What a dog's breakfast. I still blame Hellman for it. He should have gone the whole hog and acquitted of calunnia.