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

[Bill Williams]

Speaking of Woods, if your reply had been a golf shot if would have headed off target and directly into them. And there likely to remain lost.

At any rate, it appears to me you don't know anything about the Guy Morin case and Douglas' involvement in it. But any sensible person who does likely will have serious reservations about Douglas' supposed "impeccable credentials".
.
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What Kaosium said.

It would seem a stretch to hang the Morin wrongful conviction on Douglas. You're somewhat right, I don't know the case in the detail you seem to... . But my point stands.

 

[anglolawyer]

He didn't see squat on Halloween or the day after. He read it in the newspaper while he was tripping out on heroin and he thought he really saw it. Unfortunately, in Italy, to prove the infirmity of a heroin-addled witness, you need "scientific" testimony. Also, when the lab doesn't follow the right procedures, nevertheless, the defendant has to "prove" contamination.

Pedophile rape is A-Okay, though, as long as the rapist says it was "true love."

Clowns.

Or he lied.

 

[anglolawyer]

I have heard that Mary is moving to China...that or she has decided to stop wearing underwear. One or the other.

I would love a tour of the Boeing plant!!! I wanted to be a pilot in the worst way but my nearsightedness could not be overcome back then. Since, I have had lasik and now have 20/15 in both eyes. But sure...now I'm too old. Sigh....

That would be Peggy the bush counter right? I bet she floats.

Who is Mary? Oh wait. Mary_H you mean. He's a guy, actually.

 

[lionking]

I don't think this case is of major significance to many Italians. For one thing, it's been made too complicated. There's too much spaghetti stuck to the wall -- or too many traces of old spaghetti stains.

I predict: immediate reaction either way, forgotten in a week either way.

Agreed. There will be more protests in Italy if they are acquitted rather than convicted, but either way, it will be soon forgotten there.

 

[Kaosium]

Or he lied.

Anglo, have you been studying up on the (main) calunnia charge?

Here's what I'm wondering: is it possible for the Nencini court to acquit her on that charge and send it back to Cassation?

Also, can you think of a way to convict her on that charge and still find her innocent of murder? Hellmann could not, that was the weakest reasoning from his court, and I suspect his hands were tied as he wanted to stick with the actual facts but a full exoneration from his court might be too embarrassing for police and prosecution.

This is what frightens me: my reading of the calunnia statute states to be guilty of calunnia (in a case like this) the person must know the victim to be innocent of what is accused. In reality there was no way for Amanda to know that Patrick was innocent of the murder, she wasn't there. Cassation wouldn't accept Hellmann's reasoning that Amanda should have known better and sent it back for another motivations (as I understand it).

Therefore is it possible that this court will be caught in a 'logical' trap being as they cannot possibly find Amanda innocent of murder because the only way she could have known Patrick was innocent was if she was actually there when Rudy murdered Meredith? Since they must convict her of calunnia, there's no way out of it? I find that abhorrent and I'd like to believe such a travesty of justice is impossible even in Italy, but there have been bunnies suggesting something like that for years and it just so happens they turned out to be right regarding how Cassation would view the calunnia verdict with the acquittal on other charges.

 

[Antony]

-


-

WRONG!!! The real venom was on display when the death photo of Meredith was projected by Maresca in court. Why doesn't anyone from the PGP camp condemn that?

That's because this is not about TJMK but really about GWAK,

d

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The "unrelenting stream of venom" is typical guilter projection. In reality, there has been an unrelenting stream of venom against the victims of wrongful prosecution and their families.

 

[anglolawyer]

Anglo, have you been studying up on the (main) calunnia charge?

Here's what I'm wondering: is it possible for the Nencini court to acquit her on that charge and send it back to Cassation?

Also, can you think of a way to convict her on that charge and still find her innocent of murder? Hellmann could not, that was the weakest reasoning from his court, and I suspect his hands were tied as he wanted to stick with the actual facts but a full exoneration from his court might be too embarrassing for police and prosecution.

This is what frightens me: my reading of the calunnia statute states to be guilty of calunnia (in a case like this) the person must know the victim to be innocent of what is accused. In reality there was no way for Amanda to know that Patrick was innocent of the murder, she wasn't there. Cassation wouldn't accept Hellmann's reasoning that Amanda should have known better and sent it back for another motivations (as I understand it).

Therefore is it possible that this court will be caught in a 'logical' trap being as they cannot possibly find Amanda innocent of murder because the only way she could have known Patrick was innocent was if she was actually there when Rudy murdered Meredith? Since they must convict her of calunnia, there's no way out of it? I find that abhorrent and I'd like to believe such a travesty of justice is impossible even in Italy, but there have been bunnies suggesting something like that for years and it just so happens they turned out to be right regarding how Cassation would view the calunnia verdict with the acquittal on other charges.

I have not been studying but my understanding is that calunnia, having traversed the three stage process, is now final and is not even live before Nencini save only with respect to aggravation. Amanda having exhausted her own remedies in Italy (a necessary pre-requisite) has filed an appeal in the ECHR.

There may be room for calunnia alongside a murder acquittal but not if Nencini upholds the prosecution appeal on aggravation. That is, if he holds she named Patrick only in order to terminate the unpleasant experience of interrogation but not to get away with murder. Perhaps he doesn't need to resolve your problem since Hellman already did that (I agree, unsatisfactorily) and his decision was affirmed when Cassazione rejected Amanda's appeal.

The likes of Mach want the tail wagging the dog, with calunnia being used to leverage a murder conviction but, surely, it's the other way round. If she committed murder, then she named Patrick to get away with it and, if not, she didn't.

The manifest unfairness of the arguments that

1 she must have named Patrick because she was guilty and
2 she cannot be guilty of knowingly making a false allegation unless she was involved in the murder

will infuse any further ECHR appeal she may be forced to pursue against a finally affirmed murder conviction.

ETA if you have to know someone is innocent in a deeply philosophical sense in order to be guilty of calunnia then I can't see how the offence could be made out in unaggravated form most of them time. I might denounce you for living off immoral earnings, say, having not the slightest grounds for believing in the truth of my allegation. There remains a non zero chance that you are, in fact, a pimp. How can I know?

We have the offence of handling stolen goods and this requires 'knowing or believing' the goods to be stolen. The texts says that 'believing' adds nothing to 'knowing' so we can forget that. Knowledge is proved circumstantially. If someone sidles over to you in a bar and offers you a new iPad for £20 there and then you can pretty much forget about claiming not to know it was half inched. 'Know' must mean 'lacking grounds for belief that' something is true. That is not how I recall Hellman dealing with it but that's the only way the law can be made to work sensibly.

 

[Kaosium]

Agreed. There will be more protests in Italy if they are acquitted rather than convicted, but either way, it will be soon forgotten there.

You may be correct, at least in the short term. However Amanda and Raffaele are not being persecuted in isolation, there's two other high profile cases currently still in the courts there which are similar: the Misseri case and the Stasi case. The former were convicted on reasoning so ludicrous they've not been able to produce the required motivations report for nine months or so now, they're supposed to be due ninety days after the conviction. The latter was basically convicted on no evidence other than he was the boyfriend and had porn on his computer, he's been acquitted twice of murder and again on a 'satellite' charge of the porn being 'child pornography.' Incidentally like Mignini was, Stasi's prosecutor was up on charges too, and the prosecutor on the Misseri case may be the worst of the lot! This all may come to a critical mass, and there's those who say Italians can be mercurial at times. One can go from magnate to the meathook in a wink of an eye, ask Berlusconi!

 

[Wildhorses]

Doctors lose patients.... profilers get a few wrong.

His credentials are impeccable.

A few?

I thought criminal profiling had been fairly roundly dismissed. I admit I base that opinion on Malcolm Gladwell's New Yorker article:
http://www.newyorker.com/reporting/2007/11/12/071112fa_fact_gladwell?currentPage=all

He thinks profiling is pretty much the equivalent of psychic readings.

Gladwell is no dummy, but his style is to overstate matters -- so just now I googled a bit to see how others view the accuracy and efficacy of profiling. The only favorable views I came across were those of Douglas, himself.

But what do I know? Got anything that shows it mostly works? I mean anything not by Douglas.

 

[Planigale]

Anglo, have you been studying up on the (main) calunnia charge?

Here's what I'm wondering: is it possible for the Nencini court to acquit her on that charge and send it back to Cassation?

Also, can you think of a way to convict her on that charge and still find her innocent of murder? Hellmann could not, that was the weakest reasoning from his court, and I suspect his hands were tied as he wanted to stick with the actual facts but a full exoneration from his court might be too embarrassing for police and prosecution.

This is what frightens me: my reading of the calunnia statute states to be guilty of calunnia (in a case like this) the person must know the victim to be innocent of what is accused. In reality there was no way for Amanda to know that Patrick was innocent of the murder, she wasn't there. Cassation wouldn't accept Hellmann's reasoning that Amanda should have known better and sent it back for another motivations (as I understand it).

Therefore is it possible that this court will be caught in a 'logical' trap being as they cannot possibly find Amanda innocent of murder because the only way she could have known Patrick was innocent was if she was actually there when Rudy murdered Meredith? Since they must convict her of calunnia, there's no way out of it? I find that abhorrent and I'd like to believe such a travesty of justice is impossible even in Italy, but there have been bunnies suggesting something like that for years and it just so happens they turned out to be right regarding how Cassation would view the calunnia verdict with the acquittal on other charges.

I guess they could leave this conundrum for the supreme court. Return a finding of innocent for murder, and see how the supreme court balances the two verdicts, after all they created the problem. They could have returned both to a lower court.

There is talk about appealing to EHRC if a guilty verdict comes in. The EHRC is not an appeal court. The appeal will got to the supreme court. In the mean time the case against Italy for breach of rights will continue. If successful this would impact on a murder conviction. If successful the likely consequence is that the conviction would be annulled, Italy may decide of course to pursue a retrial. Sadly there is every prospect this thread may run and run. This will also give rise to a claim to ECHR on length of court case, which Italy will almost certainly lose. Given there is criticism of the average duration of 1300 days for a criminal case in Italy. I hesitate to think what the final duration of this case will be.

 

[Kaosium]

I have not been studying but my understanding is that calunnia, having traversed the three stage process, is now final and is not even live before Nencini save only with respect to aggravation. Amanda having exhausted her own remedies in Italy (a necessary pre-requisite) has filed an appeal in the ECHR.

There may be room for calunnia alongside a murder acquittal but not if Nencini upholds the prosecution appeal on aggravation. That is, if he holds she named Patrick only in order to terminate the unpleasant experience of interrogation but not to get away with murder. Perhaps he doesn't need to resolve your problem since Hellman already did that (I agree, unsatisfactorily) and his decision was affirmed when Cassazione rejected Amanda's appeal.

The likes of Mach want the tail wagging the dog, with calunnia being used to leverage a murder conviction but, surely, it's the other way round. If she committed murder, then she named Patrick to get away with it and, if not, she didn't.

The manifest unfairness of the arguments that

1 she must have named Patrick because she was guilty and
2 she cannot be guilty of knowingly making a false allegation unless she was involved in the murder

will infuse any further ECHR appeal she may be forced to pursue against a finally affirmed murder conviction.

ETA if you have to know someone is innocent in a deeply philosophical sense in order to be guilty of calunnia then I can't see how the offence could be made out in unaggravated form most of them time. I might denounce you for living off immoral earnings, say, having not the slightest grounds for believing in the truth of my allegation. There remains a non zero chance that you are, in fact, a pimp. How can I know?

We have the offence of handling stolen goods and this requires 'knowing or believing' the goods to be stolen. The texts says that 'believing' adds nothing to 'knowing' so we can forget that. Knowledge is proved circumstantially. If someone sidles over to you in a bar and offers you a new iPad for £20 there and then you can pretty much forget about claiming not to know it was half inched. 'Know' must mean 'lacking grounds for belief that' something is true. That is not how I recall Hellman dealing with it but that's the only way the law can be made to work sensibly.

Thank you for your analysis. I wonder if the 'wagging of the dog' effect regarding calunnia and the murder charges might be similar to findings from Rudy's court affecting Raffaele's and Amanda's though? Although it may seem alien to us, their system is rooted in the assumption their prosecutors are incorruptible and their courts produce 'Truth.'

On the other hand your point regarding the aggravation is compelling. I think it may instead be the murder conviction determining whether the calunnia is aggravated or not. However in that case I wonder how their motivations will differ from Hellmann's if they acquit of murder? His basically amounted to saying she should have known better, like your friend with the Twenty Pound iPad.

 

[Kaosium]

I guess they could leave this conundrum for the supreme court. Return a finding of innocent for murder, and see how the supreme court balances the two verdicts, after all they created the problem. They could have returned both to a lower court.

A very good point, though they need a motivations report from a lower court to rule on, they don't write that themselves as they never evaluated the evidence.

There is talk about appealing to EHRC if a guilty verdict comes in. The EHRC is not an appeal court. The appeal will got to the supreme court. In the mean time the case against Italy for breach of rights will continue. If successful this would impact on a murder conviction. If successful the likely consequence is that the conviction would be annulled, Italy may decide of course to pursue a retrial. Sadly there is every prospect this thread may run and run. This will also give rise to a claim to ECHR on length of court case, which Italy will almost certainly lose. Given there is criticism of the average duration of 1300 days for a criminal case in Italy. I hesitate to think what the final duration of this case will be.

Incidentally there's another mechanism after Cassation to retry cases that have been convicted at all levels, Hellmann served on one of those judicial panels.

I've also wondered just how long this could possibly take.

 

[anglolawyer]

A very good point, though they need a motivations report from a lower court to rule on, they don't write that themselves as they never evaluated the evidence.



Incidentally there's another mechanism after Cassation to retry cases that have been convicted at all levels, Hellmann served on one of those judicial panels.
I've also wondered just how long this could possibly take.

Even if there is a residual jurisdiction to reopen concluded cases I don't think that means the accused has not exhausted their remedies since she will not enjoy any right to this reopening. The ECHR becomes available once domestic remedies have been exhausted and that word signifies something for which the individual may apply as of right. Alan Turing (father of modern computing) was recently pardoned here after 50 years or so but that was not a remedy he was entitled to seek (had he not bumped himself off after being chemically castrated).

So the theoretical possibility that the Italian courts may bounce a case around ad infinitum should not preclude an application to the ECHR provided only that the remedies of the accused have been used up. Even in England the door is never closed on renewed appeals in criminal cases. You just need new evidence (usually) that you could not have unearthed before but if you have been unfairly convicted in a flawed process (as in our case) then it's off to the ECHR as soon as you've lost your final (normal) appeal.

 

[Kaosium]

Even if there is a residual jurisdiction to reopen concluded cases I don't think that means the accused has not exhausted their remedies since she will not enjoy any right to this reopening. The ECHR becomes available once domestic remedies have been exhausted and that word signifies something for which the individual may apply as of right. Alan Turing (father of modern computing) was recently pardoned here after 50 years or so but that was not a remedy he was entitled to seek (had he not bumped himself off after being chemically castrated).

So the theoretical possibility that the Italian courts may bounce a case around ad infinitum should not preclude an application to the ECHR provided only that the remedies of the accused have been used up. Even in England the door is never closed on renewed appeals in criminal cases. You just need new evidence (usually) that you could not have unearthed before but if you have been unfairly convicted in a flawed process (as in our case) then it's off to the ECHR as soon as you've lost your final (normal) appeal.

I think you're right, my thought was a ECHR ruling might trigger one of those extraordinary panels to grant relief.

 

[LondonJohn]

I think you're right, my thought was a ECHR ruling might trigger one of those extraordinary panels to grant relief.

It's worth reminding ourselves that the ECHR cannot constitutionally order acquittals or retrials. But actually, in practice it has the power to do just that. If the ECHR rules that a person's human rights have been violated in relation to a criminal conviction, it can order the state in question to apply a remedy. The state in question is legally bound to comply with that order, unless it elects to withdraw as a signatory to the convention.

In Knox's criminal slander case, therefore, if the ECHR rules that Knox's right to a fair trial was violated, it will order the Italian state to apply a proper remedy. In practice, this means that Italy will either have to quash the conviction (and almost certainly pay monetary compensation), or order a retrial on the charge, excluding any elements that related to abuse of Knox's human rights. And since the state's case against Knox would crumble to almost nothing if she were retried with an exclusion of those areas which related to an abuse of her human rights, she'd without doubt be acquitted in such a retrial anyhow. Which, in turn, means that pragmatically, Italy would be almost certainly bound to quash the conviction totally without going through the farce of a retrial and acquittal.

The only other choices Italy would have would be a) refuse to comply with the ECHR remedy order - which would spark a significant constitutional and judicial crisis. or b) withdraw as a signatory to the European Convention on Human Rights, which would also have significant wider ramifications for Italy and Europe.

In short, if the ECHR finds that Knox's human rights were violated, this would in practice mean that Italy would have little choice but to quash her conviction.

 

[anglolawyer]

Thank you for your analysis. I wonder if the 'wagging of the dog' effect regarding calunnia and the murder charges might be similar to findings from Rudy's court affecting Raffaele's and Amanda's though? Although it may seem alien to us, their system is rooted in the assumption their prosecutors are incorruptible and their courts produce 'Truth.'

On the other hand your point regarding the aggravation is compelling. I think it may instead be the murder conviction determining whether the calunnia is aggravated or not. However in that case I wonder how their motivations will differ from Hellmann's if they acquit of murder? His basically amounted to saying she should have known better, like your friend with the Twenty Pound iPad.

I am a bit of a critic of Hellman and often wonder whether he would be so well regarded among the PIPs if the background facts were altered slightly so as, for example, to have her acquitted by Massei for calunnia but convicted by H-Z. Anyway, it is useful to remember what he said when severing the link between the murder and calunnia (a link urged upon him as a logical necessity by the prosecution and parroted here from time to time by Machiaevlli):

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.

I wonder where the highlighted words in square brackets came from? Why the brackets? They make a huge difference. They bring constructive knowledge into the picture. As Donald Rumsfeld might have said, there are things we know (actual knowledge) and things we ought to but may not actually know (constructive knowledge). If the bracketed words fairly translate from Hellman (and I trust kompo) then Hellman clearly thought constructive knowledge enough. As you put it - she should have known better.

ETA - if H-Z's decision on calunnia was a sop to the prosecution it teaches the lesson that no quarter should be given to some people. The fight sometimes has to be to the death.

 

[anglolawyer]

It's worth reminding ourselves that the ECHR cannot constitutionally order acquittals or retrials. But actually, in practice it has the power to do just that. If the ECHR rules that a person's human rights have been violated in relation to a criminal conviction, it can order the state in question to apply a remedy. The state in question is legally bound to comply with that order, unless it elects to withdraw as a signatory to the convention.

In Knox's criminal slander case, therefore, if the ECHR rules that Knox's right to a fair trial was violated, it will order the Italian state to apply a proper remedy. In practice, this means that Italy will either have to quash the conviction (and almost certainly pay monetary compensation), or order a retrial on the charge, excluding any elements that related to abuse of Knox's human rights. And since the state's case against Knox would crumble to almost nothing if she were retried with an exclusion of those areas which related to an abuse of her human rights, she'd without doubt be acquitted in such a retrial anyhow. Which, in turn, means that pragmatically, Italy would be almost certainly bound to quash the conviction totally without going through the farce of a retrial and acquittal.

The only other choices Italy would have would be a) refuse to comply with the ECHR remedy order - which would spark a significant constitutional and judicial crisis. or b) withdraw as a signatory to the European Convention on Human Rights, which would also have significant wider ramifications for Italy and Europe.

In short, if the ECHR finds that Knox's human rights were violated, this would in practice mean that Italy would have little choice but to quash her conviction.

Thanks for the reminder. I completely agree with your understanding and prognosis.

 

[Charlie Wilkes]

A few?

I thought criminal profiling had been fairly roundly dismissed. I admit I base that opinion on Malcolm Gladwell's New Yorker article:
http://www.newyorker.com/reporting/2007/11/12/071112fa_fact_gladwell?currentPage=all

He thinks profiling is pretty much the equivalent of psychic readings.

Gladwell is no dummy, but his style is to overstate matters -- so just now I googled a bit to see how others view the accuracy and efficacy of profiling. The only favorable views I came across were those of Douglas, himself.

But what do I know? Got anything that shows it mostly works? I mean anything not by Douglas.

Profiling has been oversold, without a doubt. IMO it is mostly useful for helping the police organize their thinking in difficult cases. A profiler will start by trying to establish what type of crime has been committed, e.g., personal cause, criminal enterprise, a sex crime, or some combination. How much planning and organizing was involved? Did the perpetrator choose a particular victim, or did he choose a particular location where he knew he could find a suitable victim? Answering those kinds of questions can help direct an investigation and rule out misguided ideas. It can afford a broad indicator of what kind of person might have committed a given crime.

It will not solve a crime in the absence of a viable suspect, and it can lead to prejudice against an innocent suspect.

Douglas was part of an FBI group that made a study of killers, and I am familiar with the research they did. They found that certain types of crimes match certain types of offenders. For example, someone who commits a sexual homicide and leaves the body at the crime scene will usually be low-functioning, with little education, a chaotic personal history, and a menial job if he is employed at all. At the other end of the spectrum, the person who abducted Jessica Heeringa last year is probably an intelligent, disciplined individual with well-developed skills - someone like Israel Keyes or Russell Williams.

Profiling is most widely used in the cases that are the hardest to solve. Look at the Heeringa case as an example. She was probably abducted and killed by a sexual predator. He planned ahead to minimize his risk. He chose a place where he knew there was no surveillance camera, and a time when he was unlikely to be interrupted or seen by witnesses. He probably killed her and then disposed of her body such that it has not been found. It happened almost a year ago, and the cops have no clue who did it.

Those are the kinds of cases where Douglas gets called in. Nothing is easier than to point out his mistakes and say he's no good.

Douglas's thinking has changed a great deal over the course of his career. He has seen the exoneration of people who he thought were guilty, and he has seen the relentless persecution of people who are clearly innocent. He is a man who is willing to learn, and who will admit when he is wrong. He talks about some of his mistakes and revised opinions in his most recent book. I have learned a lot by reading his books.

 

[Diocletus]

ETA - if H-Z's decision on calunnia was a sop to the prosecution it teaches the lesson that no quarter should be given to some people. The fight sometimes has to be to the death.

I think he was trying to draft a decision that would not be appealed by either party. In retrospect, I'll bet he knows he should have put a beat down on the prosecution.

 

[Diocletus]

Or he lied.

Yeah, that too. I think that reading the supreme court's opinion did something to my mind that erased any thought that Curatalo lied. Either that or I was high. You decide.