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

[Grinder]

That is my reading of it as well. It's not that he was acting beyond his authority, but the ISC seems to be saying that he acted "illogically" by subordinating the court to the experts. (Ie. not that he appointed them.)

The irony is that the ISC is silent on the fact that essentially the Massei court did the same thing in subordinating it's authority to the Scientific Police's lab under Stefanoni. Massei rules, basically, that if Stefanoni said it, he has no reason not to believe it.

Bill the difference is the wording in the motivations. Hellmann IIRC differed to the C&V report while Massei explained why he accepted Stefanoni over the defense experts. It's been a while but that's what I think mattered to the ISC. Mach and Galati made the point.

The ISC hasn't ruled on the Massei verdict and it doesn't seem that they will as they only need to review the appeals verdict but would be interested for an expert to comment.

When we discussed this years ago it seemed then as it does now that DNA must be reviewed by someone like Diocletus.

I think every case dealing with LCN/touch DNA should have a panel of three experts to review the work and best if done without knowledge of the case.

The PGP oft comment that we only have had DNA for a short time and that we were able to find for guilt or innocence without it. Obviously, many were convicted when not guilty as we see with Project Innocence cases, but what case would they have here without the DNA.

They might have been able to match the cigarette in some way and the DNA on it was abundant. They could have matched Amanda's and Meredith's blood types.

How much more powerful would the compatibles have been without DNA?

How would the case have gone if DNA didn't exist? Could it be that the "don't convict an innocent man rather free 10 guilty" stemmed from a time when cases like this were total guesswork?

 

[anglolawyer]

The prison condition issue is interesting. I would say that the US will use it as an easy out but does that mean she would have to serve the sentence here. Is that what is happening to the Italian Mafia guy?

Certainly not. That's not how it works. He has been re arrested now for something else but that's irrelevant. And AFAIK a further request can be made once the prisons are straightened out. I am not certain of that. There could be a kind of double jeopardy doctrine applying to extradition requests themselves. I haven't looked into it.

 

[anglolawyer]

In the past the courts here have ruled that in a system like Italy's being found not guilty along the way doesn't constitute double jeopardy. The courts change their minds over time.

Does a US citizen have all of his constitutional rights no matter where he is? I don't believe he does. In England, as we have discussed, libel/slander lawsuits are an industry and people from the US can sue someone from the US there. Anglo, please correct me if needed.

Now if that same person couldn't be sued in the US because of the 1st Amendment would the US court system refuse to accept the judgment against the losing side?

IIRC my passports have always indicated that I needed to aware of the laws of the country I was in and I needed to obey them and that I didn't have the same rights there as here.

Certainly we expect people to obey our laws and we afford them the same rights as we afford our own citizens.

Complicated. We had something going called 'libel tourism' which involved people with only a tenuous connection with E & W suing over some article which had achieved any kind of circulation at all here, no matter how small. Some US jurisdictions reacted with laws framed to deter anyone trying to enforce judgments obtained in these cases against US citizens.

In April 2013 The Defamation Act came into force and it made life tougher for the tourists.

 

[Diocletus]

IIRC independent forensic experts have been sought out in other cases (Perugia-Shock, circa 2009 might have something on this point). My reading of the CSC's motivations document is that they did not think that Hellman was acting beyond his authority to seek them out.

I've seen quite a few ECtHR cases where they discuss the appointment of experts. I would say that the ECtHR seems to favor the practice.

Btw: can anyone figure out what relevance some case from 1986 would have to the kercher case? Seems to be more of a political consideration, doesn't it.

 

[acbytesla]

This thing about not having your US Constitutional right when traveling abroad is a red herring.

You DO have you Us Constitutional rights when you are sitting in your living room in Paducah and the US Government stops by and wants to deliver you to some other government.

That's kind of obvious isn't it Diocletus? Amanda ISN'T in Perugia, or Florence or Rome. Amanda is a United States citizen in the State of Washington in the United State of America with all the Constitutional rights guaranteed a US citizen

 

[Grinder]

What you say it says isn't actually what it does say, although it might be what was intended . . . which might or might not be Constitutional.

The treaty says:

ARTICLE VI

Non Bis in Idem

Extradition shall not be granted when the person sought has been convicted, acquitted or pardoned, or has served the sentence imposed, by the Requested Party for the same acts for which extradition is requested.

This is from a pdf of a letter from the US President:

Article 6 provides that extradition shall be denied when the person sought has been in jeopardy in the requested State for the same offense​

It seems clear to me that 6 (six) is addressing a situation where the person has already been dealt with on the act that the requesting state (Italy) wants them for. If Amanda had been tried here that would be in force.

Now this is what Bassiouni wrote:

The 1983 U.S.–Italy Extradition Treaty states in article VI that extradition is not available in cases where the requested person has been acquitted or convicted of the “same acts” (in the English text) and the “same facts” (in the Italian text). Treaty interpretation needs to ascertain the intentions of the parties by relying on the plain language and meaning of the words. Italy’s law prohibiting ne bis in idem specifically uses the words stessi fatti, which are the same words used in the Italian version of article VI, meaning “same facts.” Because fatti, or “facts,” may include multiple acts, the Second Circuit Court of Appeals applied the test of “same conduct” in Sindona v. Grant, citing international extradition in US law and practice, based on this writer’s analysis.
Whatever the interpretation of article VI may be—“same act,” “same facts,” or the broader “same conduct”—Amanda Knox would not be extraditable to Italy should Italy seek her extradition because she was retried for the same acts, the same facts, and the same conduct. Her case was reviewed three times with different outcomes even though she was not actually tried three times. In light of the jurisprudence of the various circuits on this issue, it is unlikely that extradition would be granted.​

He is clearly an expert, but what he says doesn't seem to line up with the text of the treaty at least in English.

It seems he confuses the treaty language with the Italian law. It seems so clear that Article 6 doesn't address double jeopardy in one country but rather in two. The treaty says you can't be extradited if you have already dealt with the issue in the country that is being requested to extradite.

As for the our rights not applying abroad, I don't think they are a red herring but you may say that.

The Italians certainly could argue that since the US will try a person twice on the same facts even if found not guilty the first time that their three level system is no more a violation of DJ.

 

[Diocletus]

The treaty says:

ARTICLE VI

Non Bis in Idem

Extradition shall not be granted when the person sought has been convicted, acquitted or pardoned, or has served the sentence imposed, by the Requested Party for the same acts for which extradition is requested.

This is from a pdf of a letter from the US President:

Article 6 provides that extradition shall be denied when the person sought has been in jeopardy in the requested State for the same offense​

It seems clear to me that 6 (six) is addressing a situation where the person has already been dealt with on the act that the requesting state (Italy) wants them for. If Amanda had been tried here that would be in force.

The explanatory note is clear, but of course, that's not the law.

The use of commas in Art. VI is unfortunate and renders the provision arguably unclear.

The thing with Cheffi is that he may have a better understanding of the context of this provision and the doctrine of Non Bis in Idem generally.

 

[Diocletus]

When we discussed this years ago it seemed then as it does now that DNA must be reviewed by someone like Diocletus.

All they really need is transparency instead of record suppression.

 

[Bill Williams]

Bill the difference is the wording in the motivations. Hellmann IIRC differed to the C&V report while Massei explained why he accepted Stefanoni over the defense experts. It's been a while but that's what I think mattered to the ISC. Mach and Galati made the point.

The ISC hasn't ruled on the Massei verdict and it doesn't seem that they will as they only need to review the appeals verdict but would be interested for an expert to comment.

That's not how I read the ISC report. They said that Hellmann acted illogically in letting Vecchiotti "make the decision for him" in relation to Speciman 36I. In essence, Vecchiotti said that speciman 36I would not yield interesting results, and Hellmann differed to this opinion.

In hindsight, the ISC was right. The Speciman 36I *DID* reveal results. But that's not what the ISC ruled on, it ruled that Hellmann was differing to the independent analyst.

Massei, too, differed to the DNA analyst. It is illustrative to note the 176 times Massei makes refernce to Stefanoni by name in his 2010 motivations report. It is obvious that Massei is simply accepting Stefanoni point after point after point, especially the ludicrous claim that there has never been contamination in her lab.

In response to a specific question on this point, Dr. Stefanoni declared that she had
been working as a biologist for seven years, had always used the same methodology,
and had never heard that any problem of contamination of exhibits had occurred.

In the discussion on the certification of Stefanoni's lab (to Carabinieri standards) Massei accepted Stefanoni's explanation that such a certification did not exist at the time of the analyses.

True, Massei has an extended discussion in his motivations on why Stefanoni's work was sound. But he most certainly does not sxplain why he accepts it over defence experts. He merely says, "Stefanoni says......" and then goes on to accept what she has said. There is no "explanation" as to why....

.... except for....

The declarations made during the course of the present case by Dr. Stefanoni, a
biologist at the Police Forensic Service in Rome [Servizio Polizia Scientifica di Roma], as
well as those already referred to in the October 4, 2008 hearing before the
Preliminary Hearing Magistrate [GUP] and published in the Report dated June 12,
2008, were the subject of various objections by the Consultants for the defence of
Raffaele Sollecito and Amanda Knox.......

In the first place, it must be stressed that it is not possible to discern any reason for
which Dr. Stefanoni would have had any bias in favour of or against those under
investigation and, on the basis of such bias, would have offered false interpretations
and readings.......

It must also be emphasised that, as Dr. Stefanoni said, every technician in the
Forensic laboratories adheres to all precautionary measures to ensure that there is no
contamination from one sample to another. This was stated in reference both to the
handling method used for the various samples and their analysis. She also testified
and affirmed that the various tools and instruments were changed and underwent
customary maintenance, checks and replacements......

In the present case, none of any of this emerged, however, and Dr. Stefanoni’s
testimony rules out that any laboratory contamination could have occurred.

In short, Massei relied on Stefanoni's testimony and believed her.... without, really, offering a reason why, other than that he'd be hard pressed to know why she'd fidge things so badly.

So, short of defence lawyers allegeding she'd committed criminal acts (exposing themselves to calunnia, with Mignini being the one doing the charging.....) you get my drift.

Massei most patently does not explain why Stefanoni is to be preferred. He simply listens to her and believes her.

 

[GWCarver]

The Italians certainly could argue that since the US will try a person twice on the same facts even if found not guilty the first time that their three level system is no more a violation of DJ.

I don' t know about this. In the Watson case, Gabe Watson pleaded guilty in Australia to something like failure to render aid, and got a short prison sentence. In Alabama he was tried for murder, but was released when the judge granted a motion to dismiss after the prosecution rested. Same facts, but different crimes.

In the Rodney King case, the cops were found not guilty of use of excessive force and something else in the first trial (the jury hung on one charge for one of the cops IIRC), and the 2nd trial they were found guilty by the feds of civil rights violations. Mostly the same facts, but again different crimes.

 

[Diocletus]

That's not how I read the ISC report. They said that Hellmann acted illogically in letting Vecchiotti "make the decision for him" in relation to Speciman 36I. In essence, Vecchiotti said that speciman 36I would not yield interesting results, and Hellmann differed to this opinion.

In hindsight, the ISC was right. The Speciman 36I *DID* reveal results. But that's not what the ISC ruled on, it ruled that Hellmann was differing to the independent analyst.

Massei, too, differed to the DNA analyst. It is illustrative to note the 176 times Massei makes refernce to Stefanoni by name in his 2010 motivations report. It is obvious that Massei is simply accepting Stefanoni point after point after point, especially the ludicrous claim that there has never been contamination in her lab.

​

In the discussion on the certification of Stefanoni's lab (to Carabinieri standards) Massei accepted Stefanoni's explanation that such a certification did not exist at the time of the analyses.

True, Massei has an extended discussion in his motivations on why Stefanoni's work was sound. But he most certainly does not sxplain why he accepts it over defence experts. He merely says, "Stefanoni says......" and then goes on to accept what she has said. There is no "explanation" as to why....

.... except for....

​

In short, Massei relied on Stefanoni's testimony and believed her.... without, really, offering a reason why, other than that he'd be hard pressed to know why she'd fidge things so badly.

So, short of defence lawyers allegeding she'd committed criminal acts (exposing themselves to calunnia, with Mignini being the one doing the charging.....) you get my drift.

Massei most patently does not explain why Stefanoni is to be preferred. He simply listens to her and believes her.

I think I understand. It's OK for the ISC to say that the prosecution expert should be believed, and the independent expert should not be believed, even though the ISC didn't hear either of them testify. Clowns.

 

[Desert Fox]

So, short of defence lawyers allegeding she'd committed criminal acts (exposing themselves to calunnia, with Mignini being the one doing the charging.....) you get my drift.

Kind of the problem here. . . .One cannot really argue a rigorous defense.
In the OJ Simpson trial, if held in Italy, the defense attorneys would be tried for calunnia.

 

[katy_did]

I don' t know about this. In the Watson case, Gabe Watson pleaded guilty in Australia to something like failure to render aid, and got a short prison sentence. In Alabama he was tried for murder, but was released when the judge granted a motion to dismiss after the prosecution rested. Same facts, but different crimes.

In the Rodney King case, the cops were found not guilty of use of excessive force and something else in the first trial (the jury hung on one charge for one of the cops IIRC), and the 2nd trial they were found guilty by the feds of civil rights violations. Mostly the same facts, but again different crimes.

No, it wasn't failure to render aid which Watson pleaded guilty to, it was manslaughter. When he was sentenced to 18 months, there was an outcry in Alabama over the shortness of his sentence, so they (very dubiously) claimed jurisdiction on the grounds that the crime had supposedly been planned there, and tried him for murder when he returned to the U.S. As you say, the judge then threw the case out before even hearing the defence arguments, which only goes to show how politically motivated the whole thing was in the first place.

The reason he could be tried again had nothing to do with the charges themselves (arguing that they're two separate offences is pretty tenuous anyway, as you can hardly be guilty of the murder and manslaughter of the same person!) but was because his other conviction happened in a different jurisdiction. He could've been acquitted of murder in Queensland, and it would have made no difference to Alabama's right to try him again for the same crime.

There are plenty of other examples where people have been tried twice for the same crime in different states, or in Federal/state court, or in the U.S. and overseas courts: in this one, for example, the man pleaded guilty to murder in Georgia in exchange for a life sentence; then he was tried again for murder in Alabama, found guilty, and sentenced to death. From that ruling:

The dual sovereignty doctrine, as originally articulated and consistently applied by this Court, compels the conclusion that successive prosecutions by two States for the same conduct are not barred by the Double Jeopardy Clause. [...] This Court has plainly and repeatedly stated that two identical offenses are not the "same offence" within the meaning of the Double Jeopardy Clause if they are prosecuted by different sovereigns. See, e. g., United States v. Lanza, 260 U.S. 377 (1922) (same conduct, indistinguishable statutes, same "interests").

One offence magically becomes two offences if you're prosecuted for it in two different states, or by state and Federal courts. Often when people talk about double jeopardy and the constitutional protection against it they do it in a sort of idealistic way, as if not being tried twice is some kind of inalienable right for all U.S. citizens, but yeah, not so much.

 

[Grinder]

Certainly not. That's not how it works. He has been re arrested now for something else but that's irrelevant. And AFAIK a further request can be made once the prisons are straightened out. I am not certain of that. There could be a kind of double jeopardy doctrine applying to extradition requests themselves. I haven't looked into it.

The article I read said he was out on bail and under house arrest. When Italy requests an extradition here the person when found is incarcerated at the federal facility and the process moves forward. They can be released on bail but it is unusual., I believe.

 

[Desert Fox]

The article I read said he was out on bail and under house arrest. When Italy requests an extradition here the person when found is incarcerated at the federal facility and the process moves forward. They can be released on bail but it is unusual., I believe.

If that was to happen to Amanda, I think it would create a pretty loud public outcry. It would galvanize people in her defense.

 

[Grinder]

The explanatory note is clear, but of course, that's not the law.

The use of commas in Art. VI is unfortunate and renders the provision arguably unclear.

The thing with Cheffi is that he may have a better understanding of the context of this provision and the doctrine of Non Bis in Idem generally.

As Cheffi noted it is necessary at times to look at the intent. The letter was sent by the President at the time of the treaty and would be considered as indication of intent.

TRANSMITTING THE EXTRADITION TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE GOVERNMENT OF THE REPUBLIC OF ITALY, SIGNED AT ROME ON OCTOBER 13, 1983 TEXT: 98TH CONGRESS 2d Session SENATE LETTER OF TRANSMITTAL THE WHITE HOUSE, April 18, 1984. To the Senate of the United States:

I don't see any confusion in the English version of the clause. If a person has already been found guilty and served or found not guilty in the country where the person is being requested to be extradited from, no extradition will be forthcoming. If Amanda was found guilty in Italy for the murder and served her time the US couldn't ask the Italians to send her to the US to face charges for Meredith's murder. Before someone comments, that is of course nothing that would ever happen even if Meredith had been a US citizen.

 

[Grinder]

All they really need is transparency instead of record suppression.

I don't think you give yourself enough credit in this arena. Even if Stef had been totally transparent, DNA is confusing at the LCN level.

 

[Grinder]

from iip

The Galati appeal had gone so far as to ask that the Conti-Vecchiotti expertise ordered by the court of second instance be declared illegitimate: on this point, the Supreme Court is very clear and while saying that its necessity was poorly motivated, considers such expertise perfectly legitimate from the point of view of law.

he Supreme Court Judges repeat several times that this decision (not to test the new track) was a decision ” made solely by one of the experts, Professor Vecchiotti, without documented prior authorization by the Court [...] This choice was, however, subsequently endorsed by the Court” and later in the ruling “In any event, one member of the expert panel could not assume responsibility for the decision to downgrade the mandate received”, it is hence unclear whether Vecchiotti had to ask for a written authorization by the Court to test or if she had anyway to test in any case.

The chapter begins by criticizing the court of second instance of Perugia for having “slavishly accepted the indications of the experts [Conti and Vecchiotti], as to the mere inadequacy of the investigations carried out by the Scientific Police“ and then it says that in the (second instance) ruling the well motivated objections of professors Novelli and Torricelli, consultants of the Attorney General and of the civil parties, were not taken into account.

“The even more amazing aspect was that of accepting without any critical sense, the argument put forward by the experts on the possible contamination of the exhibits, a thesis completely unlinked to any scientific data that could concretely support it. The unproven hypothesis of contamination has been taken as an axiom, [...] where the collected data did not allow to come to such a conclusion. It was excluded even by the experts [who? Conti and Vecchiotti?] that there had been contamination at the laboratory. Professor Novelli said that the source, the vehicle of the contamination had to be proven”.



It seems to me that from the above which are just sections from IIP that the ISC questioned how C&V behaved and that Hellmann didn't motivate properly.

 

[Diocletus]

One offence magically becomes two offences if you're prosecuted for it in two different states, or by state and Federal courts. Often when people talk about double jeopardy and the constitutional protection against it they do it in a sort of idealistic way, as if not being tried twice is some kind of inalienable right for all U.S. citizens, but yeah, not so much.

Note to self: do not kidnap person in Georgia and kill her in Alabama.

 

[Desert Fox]

Note to self: do not kidnap person in Georgia and kill her in Alabama.

More like don't get implicated. . . .Always lawyer up instantly.