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

[christianahannah]

I just read through the testimony surrounding the reading of the letter in the Hellman court.

One interesting thing was the way it was entered. Knox's attorney objected to it and Hellman asked what was in the letter. Mignini volunteered to read it out loud and then after it had been read Hellman said let's admit it. It doesn't sound like unringing bells is much of a concern in Italian courts.

http://themurderofmeredithkercher.com/Rudy_Guede's_Testimony_(English)

On the ataraxia thing and whether Guede would have used that word: Knox's attorney asked him what it meant and he said: "I think that the word ataraxia means state of calm." I was surprised that Knox's attorney didn't follow up a bit on that but maybe the term is more common in Italian than English or perhaps he judged it unlikely that he could trip Guede up on that point, given that Guede either really wrote the letter or would have been well coached to withstand a cross examination about the letter especially when the area of cross examination was to be severely restricted.

There was video of Rudy's testimony which I have seen but I do not know if it is still available. His demeanor was different from what I expected - he appeared to speak well but I couldn't tell you if he used proper grammar or not.

Amanda and Raffaele were allowed to make spontaneous statements after Rudy was done and escorted out of court. They wanted to do this before Rudy testified but Hellmann said they could after (I am not completely certain Raffaele made a spontaneous statement after Rudy left).

 

[Diocletus]

That is kind of bogus isn't it? They leak the story to the press and then turn around and quote the story. As the Church lady on SNL says, "How convenient".

Well, I'm confused. The newspaper said that Mignini talked about a Satanic right. So that must be true, right? Or, at least it's admissible in court that Mignini said "Satanic rite."

 

[acbytesla]

Well, I'm confused. The newspaper said that Mignini talked about a Satanic right. So that must be true, right? Or, at least it's admissible in court that Mignini said "Satanic rite."

You're confused?? Now I have heard everything...

This whole case is confusing. I still can't get over the fact that Machiavelli still defends Stefanoni's right to withhold the EDF files forever. His logic that because defense didn't ask for them on November 7th 6 years ago, they are eternally screwed is crazy.

(I know the date is hyperbole, but what the hell.)

 

[Kaosium]

Which means that they don't care about cross-examination, either. Plausible. But certainly worthy of great criticism.

Yes, indeed it is worthy of great criticism. Or a flamethrower!

Here's a report of a man convicted in absentia on the basis of double hearsay evidence:

Enrico Mariotti, an Italian living in England for 14 years, was tried in his absence and convicted to 26 years for allegedly taking part in the kidnap and murder of an Italian duke in 1977. The only evidence against him was what his English barrister Helen Malcolm QC called "double hearsay" which would have been unacceptable in Britain.

Mr Mariotti's trial in Italy took 6 years, and if he had returned to stand trial he would almost certainly had to spend those years waiting in prison. He decided not to turn up for his trial.But last year he was extradited by John Reid, the Home Secretary.

Mr Mariotti is now 67 and faces 25 more years in jail. Yet no Italian court has ever heard what he may have to say and his case is closed.

Maybe Mariotti was guilty, I dunno, but here's another who most certainly wasn't who was convicted of murder on such specious evidence that was never cross-examined that ought to have embarrassed the hell out of the prosecutors and the entire Italian legal system. Café Davide is in Staffordshire, the one in England:

Employment records and an invoice signed by Mr Arapi proved he had been working at Café Davide near his home at the exact time of the stabbing in Genoa, northern Italy – a city he has never set foot in.

The Italian prosecution’s evidence was based on the testimony of a witness who said a man known as Edmond Arapi or Edmond Braka confessed over the telephone to killing Castillo Marcello.

Mr Arapi believes a man he once knew called Edmond Braka may have stolen his identity before fleeing after the murder.

But when Italy’s extradition request was considered at Westminster Magistrates’ Court in April, magistrates did not examine the evidence. They simply checked that the paperwork for the warrant had been filed correctly.

After that hearing Mr Arapi was told that he would be sent to Italy, with the prospect of waiting months or years for a retrial, if he was granted one at all.

 

[Machiavelli]

(...)Would you like him to answer questions in court Mach, to clarify the exact sequence?

Yes I would like that. But it's impossible. That would violate the principle nemo tenetur contra se edere, nobody can be compelled to accuse himself. You can't obligate a person to say "I'm a murderer", or whatever would accuse the person of a crime.
The law considers the public aspect of accusation, not just incrimination.

 

[Machiavelli]

(...)
One thing that I do agree with is that the accusation contained in the letter cannot be used as a basis for a conviction of Knox and Sollecito.

The letter is admissible. But written words by a person who refuses to testify have an obvious credibility problem.

 

[Machiavelli]

He wrote a letter. That's not silence.

The Italian legalism is "facoltà di non rispondere" (right to refuse to answer). He can write an say whatever he wants, outside the court or wherever. But he can refuse to answer about it.

 

[Diocletus]

The letter is admissible. But written words by a person who refuses to testify have an obvious credibility problem.

It's not just the credibility that's the problem. Neither the prosecution nor the court can use non-cross-examined evidence as a material part of its case against the defendants.

 

[Machiavelli]

It's not just the credibility that's the problem. Neither the prosecution nor the court can use non-cross-examined evidence as a material part of its case against the defendants.

I'm not sure what you mean by "cross examined evidence". In the Fortugno murder case, the defendants were convicted based on the testimony of a witness who could not be cross-examined, because he committed suicide before the cross-examination hearng.
There are some compelling circumsntances that may determine limits to what the court can do.

 

[Diocletus]

The Italian legalism is "facoltà di non rispondere" (right to refuse to answer). He can write an say whatever he wants, outside the court or wherever. But he can refuse to answer about it.

Of course. And that's all well and good until he starts accusing other people.

But once you get to the point where somebody can accuse other people of murder (in the course of a non-sequestered trial, no less), that accusation is admitted at trial, and the accuser can't be cross-examined . . . well, then you have a problem.

 

[LondonJohn]

The letter itself is admissible as a document, if the letter is about a topic that the defence decided to discuss or to bring in themselves.
Whatever is written in the letter can be assessed by the judge, whether it's reliable or unreliable as evidence this is another question.
Technicaly it's not Guede who "accuses" them, it's the document what "accuses" them; you cannot cross-examine a document, but you can find it irrelevant or false or unreliable.

Technically, it's not a witness on the stand in a courtroom who verbally accuses the defendant of the crime: it's the molecules in the air that are conveying the sound pressure waves which "accuse" the defendant. You cannot cross-examine molecules of air.

 

[Charlie Wilkes]

It's not just the credibility that's the problem. Neither the prosecution nor the court can use non-cross-examined evidence as a material part of its case against the defendants.

I understand why the Italian system is different in this regard. In the US, a judge rules on what evidence is admissible. The idea is to keep the jury from hearing evidence that cannot be tested in court.

In Italy, that ruling would be made by the same party rendering the verdict, so there's not much point.

Hellmann understood that Guede had written a letter accusing Amanda and Raffaele. He also understood that Guede refused to testify regarding his knowledge of the crime. He applied common sense to those facts. He gave this "evidence" the same weight as if it had never been introduced in the first place, which would have been the case in a US jury trial.

 

[Diocletus]

I'm not sure what you mean by "cross examined evidence". In the Fortugno murder case, the defendants were convicted based on the testimony of a witness who could not be cross-examined, because he committed suicide before the cross-examination hearng.
There are some compelling circumsntances that may determine limits to what the court can do.

LOL. What, he was so fearful of the cross-examination that he killed himself? And then some court decided that the guy was credible and convicted the defendant on these basis of his words?

I call BS on this. I think he just gave information to the cops.

 

[Mary_H]

Well I don't think this trial and the Italian is system that resembles fascism. At least how it is defined.

fas·cism noun \ˈfa-ˌshi-zəm also ˈfa-ˌsi-\
: a way of organizing a society in which a government ruled by a dictator controls the lives of the people and in which people are not allowed to disagree with the government

: very harsh control or authority

Full Definition of FASCISM
1. often capitalized : a political philosophy, movement, or regime (as that of the Fascisti) that exalts nation and often race above the individual and that stands for a centralized autocratic government headed by a dictatorial leader, severe economic and social regimentation, and forcible suppression of opposition
<snip>

I don't think this is a very good definition of fascism, especially the first part. Conformity is an essential component of fascism, that is, the people take on the authoritarian traits of the leader(s) and become authoritarian themselves, as with the Nazis, who behaved in ways they would not ordinarily have behaved if not under fascism. That phenomenon doesn't necessarily happen in a dictatorship.

Machiavelli reflects a strong cultural tradition of Fascism when he automatically respects the court and its officers without question because he identifies himself as part of the system.

 

[Diocletus]

ECHR:

3. Everyone charged with a criminal offence has the following minimum
rights:
(a) to be informed promptly, in a language which he understands and in
detail, of the nature and cause of the accusation against him;
(b) to have adequate time and the facilities for the preparation of
his defence;
(c) to defend himself in person or through legal assistance of his own
choosing or, if he has not sufficient means to pay for legal assistance,
to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain
the attendance and examination of witnesses on his behalf under the
same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand
or speak the language used in court.

 

[LondonJohn]

I understand why the Italian system is different in this regard. In the US, a judge rules on what evidence is admissible. The idea is to keep the jury from hearing evidence that cannot be tested in court.

In Italy, that ruling would be made by the same party rendering the verdict, so there's not much point.

And that's one more illustration of the deficiency of the inquisitorial system. The judge in an adversarial common-law system plays a vital role in being a highly-qualified - but totally disinterested - referee and "guide" for everyone in the court: defendant(s), lawyers for all sides, witnesses, observers, and - perhaps most crucially - jury.

In my opinion (and the opinion of most experts in jurisprudence and the application of criminal justice), this leads to a far, far higher chance of a fair trial, in which the defendant is afforded his full rights and obligations, and where the verdict is reached in a fair, reasoned manner.

Hellmann understood that Guede had written a letter accusing Amanda and Raffaele. He also understood that Guede refused to testify regarding his knowledge of the crime. He applied common sense to those facts. He gave this "evidence" the same weight as if it had never been introduced in the first place, which would have been the case in a US jury trial.

I would hope indeed that Hellmann and Zanetti would have had the insight, intellect and legal training to see something like Guede's letter for what it was. One also has to hope, in such a scenario, that the professional judges are also able to communicate this to the lay jurors. My concern would be that for many lay people, simply the hearing of this sort of evidence might well have a judicially-improper effect on their later reasoning. I suspect,for example, that the Lumumba criminal slander charge - and the evidence that was admitted via this charge which was inadmissible for the murder charges - could very well have had an adverse and unjust effect upon the reasoning of the Massei judicial panel which heard both sets of charges concurrently.

 

[Machiavelli]

Maybe Mariotti was guilty, I dunno, but here's another who most certainly wasn't who was convicted of murder (...)

Arapi was not convicted, he was arrested then released some weeks later like Lumumba. The real murderer was a man who had stolen his ID document.

But I point out that Alessi was called by the defence to tell what Guede told him about what happened. He should testify about something by saying what someone else said to him. This hearsay too.

 

[acbytesla]

Technically, it's not a witness on the stand in a courtroom who verbally accuses the defendant of the crime: it's the molecules in the air that are conveying the sound pressure waves which "accuse" the defendant. You cannot cross-examine molecules of air.

Now that is funny LJ.

It reminds me of a scene from the Tom Cruise movie Collateral. Right after a guy falls through a third story window onto the cab that Jamie Fox's character is sitting in Fox looks at Cruise who is his fare and says "you killed him". Cruise responds "no, the bullets and the fall killed him".

 

[kwill]

That is kind of bogus isn't it? They leak the story to the press and then turn around and quote the story. As the Church lady on SNL says, "How convenient".

Dick Cheney did this during the run up to the Iraq war. Gave a story to the NYT and then went on television a few days later to relay the same story, giving the Times as his source. It's on them that they took his word for it.

Which brings me to my question . . are there any rules at all as to what can be printed about a murder suspect in Italy, where juries aren't sequestered?

What is to prevent an unscrupulous prosecutor from pulling a Cheny -- planting half-truths with friendly reporters and then bringing the printed matter into court as evidence against the suspect?

 

[Machiavelli]

Dick Cheney did this during the run up to the Iraq war. Gave a story to the NYT and then went on television a few days later to relay the same story, giving the Times as his source. It's on them that they took his word for it.

Which brings me to my question . . are there any rules at all as to what can be printed about a murder suspect in Italy, where juries aren't sequestered?

I think there aren't.

But in Italy there are no juries.
There are only judges. Even lay members on panels are called judges. But professional judges are believed to be the backbone of the system on any decision and through the whole proceedings.
Judges mostly base their decision on documents and case files they have already read before a trial actually taks place. So in fact, all judges sitting on a panel already "know" the case file in its details before the trial starts.