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

[Bill Williams]

Much of you what you assert is kind of undermined by the simple fact that Amanda testified, she had as much reason as Raffaele not to testify?

True.

Yet at the first trial, the separate defence teams presented different cases, really. Key for Amanda was getting on the record what really happened at interrogation, because she faced calunnia and Raffaele did not.

Amanda still was under the misapprehension that her innocence was obvious, and ifshe could only explain it again, it would become obvious to others. Raffaele on the other hand was completely forgotten by everyone....

To testify or not to testify is a tricky call, so I'm told. They made differing calls. She faced calunnia, he did not.

My own bias is that it pretty much did not matter what they did. For some reason they need to be found guilty no matter what.

I'm still haunted by no less than Barbie Nadeau's comments to CNN on the night of the 1st conviction in Dec 2009. You can find it on YouTube for accuracy, but she essentially said, "They were convicted because the prosecution case was weak, but the defence case was weaker. The two defenses were not coordinated and it allowed the judges more easily to side with the weak prosecution case. This could very well be overturned at appeal."

Nadeau's crystal ball, like many, did not extend to the ISC or to Nencini's court.

But the main reason, I think, that Amanda had to testify was because of the simultaneous calunnia... which then opened her up to the whole shooting match - which of course was the strategy Mignini adopted by getting Lumumba to "see things properly".

 

[Desert Fox]

Neither do I, but my point is that the extradition treaty put conditions on our getting him back. Perhaps a case could be made for having certain restrictions with, say, Italy.

I agree but argue that Canada does the same thing with us. . . .Laurie Bembenek for example

 

[LondonJohn]

I wish I knew. I have no theory that explains why Raffaele is complaining that no one wanted to question him. It's his case! He gives orders to the lawyers, not the other way round. I infer that, acting unprofessionally, they never communicated this to him.

Nor do I understand Bongiorno's allegedly scathing critique of Mignini, delved when summing up to Hellman, I think, for his failure to schedule Raff for cross. What, if anything, stopped her putting him up?

Baffling.

It's entirely clear to me that the reason why Sollecito was remarking about this issue was solely because Nencini had specifically brought it up in his ill-judged press comments after the verdicts. Nencini essentially implied that he found it hard to find Sollecito's story accurate or reliable on account of the fact that Sollecito had never subjected himself to cross-examination in the courtroom.

Sollecito basically replied - correctly - that nobody had ASKED to cross-examine him. The prosecutors and the courts had the right to ask. Neither party did so. So he was trying to make the point that it was hard to reconcile Nencini's implied criticism with the fact that neither Nencini nor any other judge or prosecutor had ever requested Sollecito to testify and be cross-examined.

And this whole issue speaks once more to the intrinsic structural problem that very clearly exists within the Italian criminal justice system: the uneasy amalgam of inquisitorial and adversarial systems. Under the old inquisitorial system, accused persons were supposed to "put their case", and in the absence of them doing so, the court was essentially entitled to take the prosecutor's case at face value (remember, the prosecutor in this system was supposed - in theory - to have no dog in the fight, to be purely concerned with finding the judicial truth).

But in a properly-functioning adversarial system, the entire onus is on the prosecution (and the court, by extension) to demonstrate guilt beyond a reasonable doubt. It's therefore entirely possible for a defendant to say not a word during the trial process without harming his/her defence in any way. And it's also entirely possible for the defendant to offer no defence whatsoever, save for claiming to the court that the prosecution has not proven the charge beyond a reasonable doubt, and be acquitted. There are certain circumstances in which a court can reasonably infer a defendant's silence to be a factor in favour of guilt, but those are narrowly-defined and specific.

In Sollecito's case, therefore, his failure to testify and subject himself to cross-examination should in no way have been taken as a pointer towards guilt. Indeed, it was probably a good option on his (and his lawyers') behalf. It has been shown over and over again that factually-innocent defendants can actually do their defence a great deal of harm by testifying in court and subjecting themselves to cross-examination. It's extremely simplistic and ignorant to suggest that all innocent people should testify in their own trials on the basis that they should have nothing to hide if they are innocent.

 

[LondonJohn]

I'm still haunted by no less than Barbie Nadeau's comments to CNN on the night of the 1st conviction in Dec 2009. You can find it on YouTube for accuracy, but she essentially said, "They were convicted because the prosecution case was weak, but the defence case was weaker. The two defenses were not coordinated and it allowed the judges more easily to side with the weak prosecution case. This could very well be overturned at appeal."

This is a clear indication that Nadeau is either ignorant of the way adversarial-based criminal justice works (and that's what the Italian system is essentially supposed to be these days), or horribly biassed against Knox/Sollecito, or both.

If "the prosecution case was weak", then it should - under an adversarial system where the defendants are presumed innocent until proven guilty beyond a reasonable doubt - be game over right there. Acquittal. It shouldn't matter whether the defence case is "strong", "weak" or for that matter totally non-existent (apart from a plea of not-guilty).

Simply put, if the prosecution puts a "weak" case before the court, then the court must by definition acquit. The court can, after all, only find for guilt if the charges are proven beyond a reasonable doubt - and in turn this by definition must imply that the prosecution case is strong.

 

[Diocletus]

It's entirely clear to me that the reason why Sollecito was remarking about this issue was solely because Nencini had specifically brought it up in his ill-judged press comments after the verdicts. Nencini essentially implied that he found it hard to find Sollecito's story accurate or reliable on account of the fact that Sollecito had never subjected himself to cross-examination in the courtroom.

Sollecito basically replied - correctly - that nobody had ASKED to cross-examine him. The prosecutors and the courts had the right to ask. Neither party did so. So he was trying to make the point that it was hard to reconcile Nencini's implied criticism with the fact that neither Nencini nor any other judge or prosecutor had ever requested Sollecito to testify and be cross-examined.

And this whole issue speaks once more to the intrinsic structural problem that very clearly exists within the Italian criminal justice system: the uneasy amalgam of inquisitorial and adversarial systems. Under the old inquisitorial system, accused persons were supposed to "put their case", and in the absence of them doing so, the court was essentially entitled to take the prosecutor's case at face value (remember, the prosecutor in this system was supposed - in theory - to have no dog in the fight, to be purely concerned with finding the judicial truth).

But in a properly-functioning adversarial system, the entire onus is on the prosecution (and the court, by extension) to demonstrate guilt beyond a reasonable doubt. It's therefore entirely possible for a defendant to say not a word during the trial process without harming his/her defence in any way. And it's also entirely possible for the defendant to offer no defence whatsoever, save for claiming to the court that the prosecution has not proven the charge beyond a reasonable doubt, and be acquitted. There are certain circumstances in which a court can reasonably infer a defendant's silence to be a factor in favour of guilt, but those are narrowly-defined and specific.

In Sollecito's case, therefore, his failure to testify and subject himself to cross-examination should in no way have been taken as a pointer towards guilt. Indeed, it was probably a good option on his (and his lawyers') behalf. It has been shown over and over again that factually-innocent defendants can actually do their defence a great deal of harm by testifying in court and subjecting themselves to cross-examination. It's extremely simplistic and ignorant to suggest that all innocent people should testify in their own trials on the basis that they should have nothing to hide if they are innocent.

In other words, Nencini drew an adverse inference against Sollecito because Sollecito chose to exercise his right not to testify.

 

[RoseMontague]

So it is stated here that Amanda mentioned Patrick only in these dates and times - Nov 2 at 15:30, on 7 Nov 3 at 14:45, then, there was another one, Nov 4, 14:45, and 8 then there's Nov 6, 1:45.

Originally Posted by AK evidence transcript p.137
2 MIGNINI: Why did you speak about Patrick only in the
3 interrogation of Nov 6 at 1:45? Why didn't you mention him
4 before? You never mentioned him before.
5 AK: Before when?
6 MIGNINI: In your preceding declarations, on Nov 2 at 15:30, on
7 Nov 3 at 14:45, then, there was another one, Nov 4, 14:45, and
8 then there's Nov 6, 1:45. Only in these declarations, and then in
9 the following spontaneous declarations, did you mention the name
10 of Patrick. Why hadn't you ever mentioned him before?
11 AK: Because that was the one where they suggested Patrick's name
12 to me.

I'm sure that Mignini erased the record of her mentioning Patrick.

Hey wait a minute. How would they have the times down like this without recording it?

 

[Diocletus]

Hey wait a minute. How would they have the times down like this without recording it?

Why do almost all of the statement times end at :45?

What, do they have :45 minute tapes or something?

 

[Bill Williams]

I agree but argue that Canada does the same thing with us. . . .Laurie Bembenek for example

Canada puts conditions on extradition requests to US jurisdictions all the time. If the US does agree to them, then the US can go suck eggs.

Either that or employ Seal Team 6. A couple of scarlett-tuniced constables with service revolvers would handle them easily; all the while serenading Tess Trueheart.

 

[CoulsdonUK]

In other words, Nencini drew an adverse inference against Sollecito because Sollecito chose to exercise his right not to testify.

Not really, it points out that he had the same opportunity to testify as Amanda did, mind you I guess some folk will try and spin it differently.

 

[Bill Williams]

This is a clear indication that Nadeau is either ignorant of the way adversarial-based criminal justice works (and that's what the Italian system is essentially supposed to be these days), or horribly biassed against Knox/Sollecito, or both.

If "the prosecution case was weak", then it should - under an adversarial system where the defendants are presumed innocent until proven guilty beyond a reasonable doubt - be game over right there. Acquittal. It shouldn't matter whether the defence case is "strong", "weak" or for that matter totally non-existent (apart from a plea of not-guilty).

Simply put, if the prosecution puts a "weak" case before the court, then the court must by definition acquit. The court can, after all, only find for guilt if the charges are proven beyond a reasonable doubt - and in turn this by definition must imply that the prosecution case is strong.

LJ - you've done the impossible. You've forced me to defend Nadeau. What next? Defending Grinder? Never!

Please note Nadeau's follow-up, "this could very well be overturned at appeal."

She apparently does understand why a weak prosecution case should not prevail.

As an aside, it's this case in 2009 which formed the basis of the BBC3 documentary!!

 

[GWCarver]

Not really, it points out that he had the same opportunity to testify as Amanda did, mind you I guess some folk will try and spin it differently.

Not really. It's the Italians who are questioning it:

http://www.independent.co.uk/news/w...mments-raise-partiality-concerns-9105312.html

 

[CoulsdonUK]

It's entirely clear to me that the reason why Sollecito was remarking about this issue was solely because Nencini had specifically brought it up in his ill-judged press comments after the verdicts. Nencini essentially implied that he found it hard to find Sollecito's story accurate or reliable on account of the fact that Sollecito had never subjected himself to cross-examination in the courtroom.

Sollecito basically replied - correctly - that nobody had ASKED to cross-examine him. The prosecutors and the courts had the right to ask. Neither party did so. So he was trying to make the point that it was hard to reconcile Nencini's implied criticism with the fact that neither Nencini nor any other judge or prosecutor had ever requested Sollecito to testify and be cross-examined.

And this whole issue speaks once more to the intrinsic structural problem that very clearly exists within the Italian criminal justice system: the uneasy amalgam of inquisitorial and adversarial systems. Under the old inquisitorial system, accused persons were supposed to "put their case", and in the absence of them doing so, the court was essentially entitled to take the prosecutor's case at face value (remember, the prosecutor in this system was supposed - in theory - to have no dog in the fight, to be purely concerned with finding the judicial truth).

But in a properly-functioning adversarial system, the entire onus is on the prosecution (and the court, by extension) to demonstrate guilt beyond a reasonable doubt. It's therefore entirely possible for a defendant to say not a word during the trial process without harming his/her defence in any way. And it's also entirely possible for the defendant to offer no defence whatsoever, save for claiming to the court that the prosecution has not proven the charge beyond a reasonable doubt, and be acquitted. There are certain circumstances in which a court can reasonably infer a defendant's silence to be a factor in favour of guilt, but those are narrowly-defined and specific.

In Sollecito's case, therefore, his failure to testify and subject himself to cross-examination should in no way have been taken as a pointer towards guilt. Indeed, it was probably a good option on his (and his lawyers') behalf. It has been shown over and over again that factually-innocent defendants can actually do their defence a great deal of harm by testifying in court and subjecting themselves to cross-examination. It's extremely simplistic and ignorant to suggest that all innocent people should testify in their own trials on the basis that they should have nothing to hide if they are innocent.

That applies to Raffaele’s own counsel, why didn’t they put on the stand?

 

[LondonJohn]

Not really, it points out that he had the same opportunity to testify as Amanda did, mind you I guess some folk will try and spin it differently.

No, I'm afraid you've misunderstood it by a very wide margin.

Firstly, the judge should not have drawn an adverse inference from Sollecito not testifying. Full stop.

Secondly, if Nencini (or any of the prosecutors or other judges) had problems believing Sollecito's defence, they could and should have called him to the stand, as is their right in Italy. None of them did so. So it's therefore doubly out of order for Nencini to draw adverse inferences.

Had Nencini (or anyone else) asked Sollecito to testify and be cross-examined, he could have refused (in which case the judges would obviously have more of a case for adverse inferences). Or he could have agreed to testify and be cross-examined, and the court could have drawn appropriate inferences from the testimony and responses he gave.

This is not about "spin". It's about what is legally/judicially correct and proper, and what is not. And, frankly, your repeated small digs like this one are getting a little........ frustrating. Your prerogative though, I guess....

 

[LondonJohn]

That applies to Raffaele’s own counsel, why didn’t they put on the stand?

I do not understand this question. Can you rephrase it?

 

[Bill Williams]

Not really, it points out that he had the same opportunity to testify as Amanda did, mind you I guess some folk will try and spin it differently.

Then you are in favour of a judge being allowed to infer a biased reason for someone not testifying.

That's good to know.

 

[Diocletus]

One of the problems with extraditing Einhorn was that France does not allow trials in absentia as well. Looking at Holly Maddux, she is a pretty attractive lady.

Need to understand that I don't support the death penalty

Wait. France has an extradition treaty with the US, but refused a request for extradition because the person was tried in abstentia contrary to French practice?

Gee, a conviction by an empaneled jury following acquittal by an empaneled jury is contrary to US practice.

I just looked at the France-US extradition treaty, and there is no exception for in abstentia convictions (to the contrary, the Treaty anticipates extradition based on abstentia convictions). So, this resistance to extradite was not based on the Treaty (it is contrary to the Treaty), but rather, must be a condition added at the French executive level.

BTW, Einhorn was actually guilty.

 

[CoulsdonUK]

No, I'm afraid you've misunderstood it by a very wide margin.

Firstly, the judge should not have drawn an adverse inference from Sollecito not testifying. Full stop.

Secondly, if Nencini (or any of the prosecutors or other judges) had problems believing Sollecito's defence, they could and should have called him to the stand, as is their right in Italy. None of them did so. So it's therefore doubly out of order for Nencini to draw adverse inferences.

Had Nencini (or anyone else) asked Sollecito to testify and be cross-examined, he could have refused (in which case the judges would obviously have more of a case for adverse inferences). Or he could have agreed to testify and be cross-examined, and the court could have drawn appropriate inferences from the testimony and responses he gave.

This is not about "spin". It's about what is legally/judicially correct and proper, and what is not. And, frankly, your repeated small digs like this one are getting a little........ frustrating. Your prerogative though, I guess....

Addressed in post #10092. A pretty simple question, why didn't Raffaele's counsel place him on stand. Seems like spin to me.

 

[LondonJohn]

LJ - you've done the impossible. You've forced me to defend Nadeau. What next? Defending Grinder? Never!

Please note Nadeau's follow-up, "this could very well be overturned at appeal."

She apparently does understand why a weak prosecution case should not prevail.

As an aside, it's this case in 2009 which formed the basis of the BBC3 documentary!!

No, I interpret this entirely differently.

What I believe Nadeau meant (and I remember the quote at the time) was nothing to do with the unlawful and contra-judicial nature of convicting on a "weak" prosecution case. I believe that what she meant was that since the prosecution case was "weak", there was a higher chance that there would be reversals in the appeal - on the basis of facts rather than law.

In other words, I think that Nadeau's flawed and ignorant reasoning was "Well they got convicted (correctly), but "only just", so I guess there's a good chance that since it was such a close-run thing, the defence might have success in the appeal."

And that's a totally different position from taking the correct line of saying "The prosecution, since it had a weak case, plainly failed to prove guilt beyond a reasonable doubt, so the court should never have convicted - and this is why they should get acquitted on appeal."

 

[Diocletus]

Not really, it points out that he had the same opportunity to testify as Amanda did, mind you I guess some folk will try and spin it differently.

Well, what's the point in making the statement if he didn't mean something by it?

I'm sure that he'll try to cover his ass on this point in his Motivations report. Should be interesting.

BTW: He never heard Amanda testify, either. In fact, Nencini never heard any meaningful live evidence of any kind. What a silly "trial." And I understand the concept of the three-level appeal process (two trials and then a ISC ruling), but the point of this whole exercise seems to have been to have the decision made by the court that knows the least about the case. How dumb is that.

 

[Diocletus]

Canada puts conditions on extradition requests to US jurisdictions all the time. If the US does agree to them, then the US can go suck eggs.

We would gladly allow you to keep any of our criminals in exchange for several pounds of back bacon and the recipe for beaver tails.