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

[anglolawyer]

Anglo -I'm not sure I said I had a particular problem with the Italian process. Please remind if I am in error claiming that.

I made particular mention of why a "not guilty" verdict in the USA stops the process, because of double jeopardy as interpreted there.

It still does seem strange, though, that aside from interference from The Masons one of the courts in the Italian process can find them unequivocally innocent, to the point of saying that some of the crimes of which they are accused "did not exist".....

.... and still with some confidence say they are guilty beyond a reasonable doubt at another trial in that same process.

It casts suspicion on the process itself. More important it casts suspicion on THIS particular playing out of an otherwise modern process..... so the whole process in general does not have to take a beating. Then again, that was the whole point of those pesky Masons paying off Hellmann. Zanetti is still waiting for his cut.

Well, what you said was:

One of the bases of double jeopardy is reasonable doubt, and if a court finds reasonable doubt, a prosecutor cannot simply go shopping around for another tribunal.

That sure looks like DJ to me but it's not the Italian system, I think. Not that I care for it but what shopping around has there been?

 

[anglolawyer]

That would be an exceptional case though. . . .

It is far more likely that you (the prosecutor) don't have better evidence but just don't like the verdict. You then find a new jury that will convict with the same evidence.

As far as resources, the state is almost certain to have the advantage.
Remember reading the West Memphis Three that the defense attorneys spent several million dollars in pro bono labor.

That's not quite what happened in Italy, although the perversity of the ISC does make me wonder. Let's say it's not what's supposed to happen.

 

[anglolawyer]

Yeah. I actually wondered if somebody hacked Dan O's login to post something so strange . . . her clothes came off by accident? I can't believe anybody would suggest that.

We'll, he hasn't disavowed it so I guess Dan really does think that. I agree, it's weird.

 

[Grinder]

Good for the friend. The issue here is also, If there is unequivocal proof of guilt, how is it possible for an Italian court to make a innocent judgement?

It is why in the U.S., an innocent finding (actually a "not guilty finding") stops the process. One of the bases of double jeopardy is reasonable doubt, and if a court finds reasonable doubt, a prosecutor cannot simply go shopping around for another tribunal.

I don't know what you mean by "One of the bases of double jeopardy is reasonable doubt". I've always thought the basis for DJ is the state's ability to fund endless trials. Just having to defend oneself is a punishment and cost. Even a simple civil case drains people and can cause them health issues.

To reverse your question, how could Hellmann have found guilt on the calunnia when it is so clear that guilty or innocent of the murder she was not guilty of accusing Patrick of her own free will.

The prosecutor doesn't exactly get to go "shopping" for another tribunal. When it was moved to Florence I was pleased and thought the jurisdiction that had convicted Mignini was not where he would wanted it.

Bill, suppose, hypothetically speaking, a trial court made an error of law when acquitting a defendant and the error was alone responsible for the acquittal. Let's make it even better - say the guy is actually guilty and the crime is heinous. Would it offend any particular principle of yours if the system allowed a prosecution appeal to correct the court's error? Would you consider it double jeopardy if it did?

Say it was OJ and he had confessed in convincing detail but the court had ruled, incorrectly, that his confession was not admissible. Would the world come to an end if that could not be corrected on appeal?

If you answer 'no' to these posers what is your issue with the Italian process? If 'yes' then please explain the difficulty.

The system on paper seems pretty good. I was pleased when the LA cops were charged with violating King's civil rights after being found innocent in state court.

But there needs to be a limit on how many trials can be conducted. If this verdict is sent back by the ISC and particularly if on grounds other than legal technicalities Bill's point does have weight. How many courts need to unsure to equal reasonable doubt? Two would certainly be enough for me. There should also be a time limit for them to finish the conviction. Since the defense has almost no ability to stretch out a trial (all of the presidents of the various courts refused the majority of defense requests) the onus should be on the prosecution.

The real failing of the Italian system is the lack of oversight of the courts. How could the evidence have been allowed in the first trial that was just compatible? Would any reasonable system allow foot prints that don't match and tested at best inconclusively for blood. And those prints didn't all test positively with MK's DNA.

The biggest problem I have with the Italian system besides it being run by Italians with their odd thought processes (three compatibles = match and the witness has no reason to lie or be wrong therefore it equals the truth) is that they allow things to be presented to the judges that shouldn't ever make it into a courtroom.

 

[anglolawyer]

It's not only that the state has more power (money, endless time etc) but also that giving it a second crack amounts to a huge advantage in that they have already seen the defence. I was shocked to discover the other day that our own system has become so perverted that the defence now has to give advance notice of it's case even though doing so tips the prosecutor's hand to a flaw which the prosecutor can then correct before trial. Unbelievable. The defence must alert the prosecutor to its own incompetence.

 

[Bill Williams]

Well, what you said was:

One of the bases of double jeopardy is reasonable doubt, and if a court finds reasonable doubt, a prosecutor cannot simply go shopping around for another tribunal.

That sure looks like DJ to me but it's not the Italian system, I think. Not that I care for it but what shopping around has there been?

I have no idea your (or Grinder's) shopping habits, but for me if I don't like the deal I get in a store, I go to another store. Sometimes I do that with malice aforethought, sometimes I just go into another store at random (assuming that it could only be as-bad as the last one, but could get lucky, as they did in Florence.)

The ISC certainly likes insisting that the prosecutors shop around. They like it so much that they ordered the Hellmann deal quashed.

What are we discussing?

 

[anglolawyer]

I have no idea your (or Grinder's) shopping habits, but for me if I don't like the deal I get in a store, I go to another store. Sometimes I do that with malice aforethought, sometimes I just go into another store at random (assuming that it could only be as-bad as the last one, but could get lucky, as they did in Florence.)

The ISC certainly likes insisting that the prosecutors shop around. They like it so much that they ordered the Hellmann deal quashed.

What are we discussing?

The difference between DJ and prosecution appeals.

 

[Bill Williams]

It's not only that the state has more power (money, endless time etc) but also that giving it a second crack amounts to a huge advantage in that they have already seen the defence. I was shocked to discover the other day that our own system has become so perverted that the defence now has to give advance notice of it's case even though doing so tips the prosecutor's hand to a flaw which the prosecutor can then correct before trial. Unbelievable. The defence must alert the prosecutor to its own incompetence.

In theory they are supposed to be at arms'-length, but the prosecution here and the court work for the same boss - The Crown. Hell, the prosecution is even called, "The Crown."

One of the differences in Italy is that the Italians don't need unanimity of a finding of guilt. Putting aside some egregious error of process that would deny a Crown a fair trial (!), one basis of double jeopardy is that if even one juror (finder of fact) disbelieves the Crown, then the perp walks.

In Italy, the first trial could acquit by 8-0, yet the second could convict by 5-3, and the ISC could uphold that acquittal by 5-3 (assuming 8 on the ISC panel).

That would mean the person is guilty by a vote of 10 to 14, 14 being in favour of acquittal.

In Canada, all it takes is one contrarian and the perp walks. Strangely, I prefer it that way.

 

[anglolawyer]

In theory they are supposed to be at arms'-length, but the prosecution here and the court work for the same boss - The Crown. Hell, the prosecution is even called, "The Crown."

One of the differences in Italy is that the Italians don't need unanimity of a finding of guilt. Putting aside some egregious error of process that would deny a Crown a fair trial (!), one basis of double jeopardy is that if even one juror (finder of fact) disbelieves the Crown, then the perp walks.

In Italy, the first trial could acquit by 8-0, yet the second could convict by 5-3, and the ISC could uphold that acquittal by 5-3 (assuming 8 on the ISC panel).

That would mean the person is guilty by a vote of 10 to 14, 14 being in favour of acquittal.

In Canada, all it takes is one contrarian and the perp walks. Strangely, I prefer it that way.

I think you are confusing things. The requirement of unanimity is not a safeguard against DJ but simply one of the hurdles the prosecution must overcome to convict. Funnily enough, we don't have it here. 10-2 majority verdicts are enough to convict so long as the jury first tries to achieve unanimity.

Don't you have hung juries?

 

[Bill Williams]

(This is worth reporting here....)

RAFFAELE SOLLECITO, A LIFE WORTH SAVING

Raffaele Sollecito did not kill Meredith Kercher. He was not present when the real killer, Rudy Guede, murdered her.

Raffaele was a half-mile away with his new girlfriend eating, drinking and making merry. Neither he nor Amanda Knox would know of Meredith’s death until she was discovered the next afternoon. He has exhibited forthright honesty throughout his ordeal. He helped Amanda contact authorities when she alerted him to odd occurrences at her apartment. He generously accepted the role as host when she was displaced. He endured four years in prison, as an innocent man, with grace and dignity. And he continues to stand firm against hostile currents within the Italian criminal justice system.

Raffaele is being used as a distraction. For the true account of how the real killer has been swept under the rug by Perugian authorities read the Forgotten Killer, a groundbreaking Kindle Single by Douglas Preston and John Douglas. Available on Amazon.com.

http://www.amazon.com/The-Forgotten-Killer.../dp/B00I3QZ7G0

Douglas Preston has first hand knowledge of being persecuted by Giuliano Mignini, and John Douglas is an FBI agent of considerable repute.

 

[sunmaster14]

<snip>

The issue isn't whether she should have started earlier than nine. The issue is whether something is wrong with the "facts". Did Meredith start eating when the pizza came out or did she wait. I can't find where they even asked. Did Lalli do a good job?

If there is something wrong with the facts, and I think there is a good chance there is based on the research posted here on T(lag), I think it is far more likely that Meredith ate later than suggested rather than Lalli (or whoever did the autopsy) misreported that there was a full meal still in her stomach.

Meredith may very well have felt somewhat ill and eaten a lot later than her friends. Who would have noticed? They're all watching a movie and chatting, not counting each other's calories.

What we do know is that she had finished her meal by the time she left for home, which means 8:30pm at the latest (and starting a bit before that), and that she was still alive shortly after 9:00pm.

Bottom line is that the variable here should be meal start/finish time, not whether the autopsy results were reported correctly.

Using 8:20pm as the time for beginning her meal, your research indicates that it is very unlikely that 100% of her meal would have remained in her stomach as late as 9:30pm.

I suspect that is the explanation. She didn't really eat anything at the time her friends did. Maybe picked at her food a bit, but didn't actually eat.

 

[Chris_Halkides]

volumes

It would be helpful to know the volume of gastric juices that are secreted when a meal is consumed. In other words, I don't think that the 500 mL volume is identical to the actual size of the meal. Apparently the stomach produces about 1-3 to 1.5 liters of fluid per day. One site gives 400 mL as the volume of secretion per meal.

 

[Bill Williams]

I think you are confusing things. The requirement of unanimity is not a safeguard against DJ but simply one of the hurdles the prosecution must overcome to convict. Funnily enough, we don't have it here. 10-2 majority verdicts are enough to convict so long as the jury first tries to achieve unanimity.

Don't you have hung juries?

Yes, I am perhaps confused. I missed a step. Even unanimity is not a safeguard against DJ in Canada, as the Morin case proved. The first jury acquitted (presumably unanimously, given that I as a spectator have heard judges instruct juries this way.... but do not know the nuances at all through lack of training....)

However, the theory still is that if one juror dissents, then the jury is, as you say, hung. This is distinguished from the act of execution which is referred to as "Hanged".

That accused can be re-prosecuted after a hung jury. So I'm told. So to amend things a tad, a jury's finding of "not guilty" (not just one lone dissenting juror) should be a protection against double jeopardy.

In Italy, even a judgment of "completely innocent" appears not to be.

 

[anglolawyer]

Yes, I am perhaps confused. I missed a step. Even unanimity is not a safeguard against DJ in Canada, as the Morin case proved. The first jury acquitted (presumably unanimously, given that I as a spectator have heard judges instruct juries this way.... but do not know the nuances at all through lack of training....)

However, the theory still is that if one juror dissents, then the jury is, as you say, hung. This is distinguished from the act of execution which is referred to as "Hanged".

That accused can be re-prosecuted after a hung jury. So I'm told. So to amend things a tad, a jury's finding of "not guilty" (not just one lone dissenting juror) should be a protection against double jeopardy.

In Italy, even a judgment of "completely innocent" appears not to be.

Your issue is with the principle of prosecution appeals, not DJ. So far as Italy goes anyway. The US entered into its treaty with Italy knowing their system and Diocletus has posted stuff to the effect that the ECHR does not regard prosecution appeals as intrinsically unfair.

We presently only have prosecution appeals against sentence although the way things are going I'm sure we will fix that soon. We already abolished (the rule against) DJ a while back. I don't know why we bother with trials TBH. The police should just be able to deem people guilty. If you have one, tear up your extradition treaty with us.

 

[Bill Williams]

You didn't quite answer. What's the issue with the Italian process? How is it double jep?

I believe I answered with the ISC's role in "court shopping". The protection against this in Italy is that the ISC is not supposed to dabble in fact-finding. Yet it is clear that the ISC in March 2013 rejected Judge Hellmann's findings of fact..... some couched in language of misusing judicial process.

If that is the case, then the ISC is the one shopping around for the right verdict: as supported by the facts.

The ISC said that Hellmann used the wrong process in relation to the Conti-Vecchiotti report; saying that the refusal to test 36i should have come from Hellmann, not accepted by Hellmann on the refusal of Vecchiotti to test it. On the face of it, the ISC is perhaps correct on an Italian point of law.

Hellmann is the dog and Vecchiotti is the tail, and the ISC is saying that the tail should not wag the dog.

Yet the ISC's other comments about "contamination" and all that is essentially a ruling on fact-finding.... albeit that the ISC couched it in language of process, incredibly saying that if Italian courts were to insist on anti-contamination protocols being observed, all decisions involving DNA and police labs since 1986 would be called into question. (!!!!) (Think about that one for a second.)

I believe the ISC just didn't like the facts as found by Conti-Vecchiotti, and as deemed judicially factual by Hellmann. So the ISC went court shopping.

The ISC, in my mind, gets partial vindication by sample 36i revealing useful information. So let's get that admission out of the way.

Yet, the RIS Carabinieri examination of sample 36i vindicates Conti-Vecchiotti's conclusions, even if the latter folk didn't think they needed sample 36i to accomplish that.

So, the result of this court-shopping should have been another acquittal.

Where's double jeopardy in all this? I, for one, would be willing to draw the line to right before Nencini's verdict.

I'd now be fully willing to suggest that Raffaele and Amanda were always in single jeopardy. It does not matter what the evidence is. Italy needs to convict them for some reason.

Raffaele particularly needs protection from single jeopardy.

 

[Bill Williams]

Your issue is with the principle of prosecution appeals, not DJ. So far as Italy goes anyway. The US entered into its treaty with Italy knowing their system and Diocletus has posted stuff to the effect that the ECHR does not regard prosecution appeals as intrinsically unfair.

We presently only have prosecution appeals against sentence although the way things are going I'm sure we will fix that soon. We already abolished (the rule against) DJ a while back. I don't know why we bother with trials TBH. The police should just be able to deem people guilty. If you have one, tear up your extradition treaty with us.

So? Entering into a treaty does not commit one nation to respect all the other nation's laws. All treaties do is provide a legal basis for one country to engage the other country. I don't know where this myth comes from that just because there is a treaty, now all of a sudden the US is bound by Italian law.

All the treaty does is give Italy standing in the U.S. to argue its case for retrieval of an accused or convicted. And unless something is specifically stated as binding in the treaty, then all is to be argued acc. to the laws of the state in which the arguing is being done.

Canada attached all sorts of conditions to the extradition of Laurie Bembenek to Wisconsin, which amounted to a huge embarrassment to that State. It also exposed corruption there, and helped Bembenek with a partial victory against them.

Prosecution appeals are not intrinsically unfair. True. What your own opinion about the way the Perugian appeal's process has been handled by the prosecution? How do you think it will do in an American court?

 

[Bruce Fischer]

I provided a detailed step by step theory of what could have happened that is consistent with the known evidence. But you are falling back on the fuzzy logic of "we can't know exactly what happened" to avoid having to show how ridiculous your own position really is. I'll set aside my theory when I see a better one. So far, my theory is the only one on the table.

Your theory is not consistent with the evidence. Clothes don't just fall off. Thumbs don't accidentally slip inside a person's body. Guede didn't accidentally strip Meredith and he didn't accidentally digitally rape her. You suggest it was all an accident and that Guede had no idea what he was doing. Somehow he got it together enough to get out of there and go dancing. He also managed to be coherent enough to flee Italy. His Skype communication is very coherent.

If you honestly believe that is what happened then I will keep that in mind when considering anything you have to say about this case in the future because your theory is absurd.

I am not falling back on anything fuzzy. You have repeatedly suggested that I am stating things that I am not stating. I said that we will never know exactly what Guede did that night. That is not fuzzy logic, that is a fact.

We do know from the evidence that Meredith's clothing was mostly removed. We know that Guede's DNA was found inside the victim. This is solid proof that Guede assaulted Meredith.

To say like you have that Guede was in a zombie state of mind and was just moving Meredith around and her clothes just happened to come off and then his thumb just happened to slip into her vagina, is by far the most illogical theory I have heard to date about this case and it insults the intelligence of anyone that has followed this case for the past 7 years.

You may feel that your theory is still on the table but it's not on anyone's table that has the ability to think clearly.

 

[Bruce Fischer]

We'll, he hasn't disavowed it so I guess Dan really does think that. I agree, it's weird.

I will never understand why people feel the need to make excuses for Rudy Guede. Who on earth believes that Guede accidentally stripped and accidentally digitally raped Meredith? According to Dan O, that is the ONLY theory on the table. Wow!

 

[anglolawyer]

So? Entering into a treaty does not commit one nation to respect all the other nation's laws. All treaties do is provide a legal basis for one country to engage the other country. I don't know where this myth comes from that just because there is a treaty, now all of a sudden the US is bound by Italian law.

All the treaty does is give Italy standing in the U.S. to argue its case for retrieval of an accused or convicted. And unless something is specifically stated as binding in the treaty, then all is to be argued acc. to the laws of the state in which the arguing is being done.

Canada attached all sorts of conditions to the extradition of Laurie Bembenek to Wisconsin, which amounted to a huge embarrassment to that State. It also exposed corruption there, and helped Bembenek with a partial victory against them.

Prosecution appeals are not intrinsically unfair. True. What your own opinion about the way the Perugian appeal's process has been handled by the prosecution? How do you think it will do in an American court?

As Mark Twain once said - happy to give a clear answer: I don't know. The treaty does not require Italy to show cause beyond delivering a certificate of conviction. Whether constitootional rights override that seems to depend which decade (or circuit) we're in. I don't think the Italian system per se will be the focus but maybe the ISC's perversion of it will. That's what I hope. I have no clue whether that's how it will work out. Oops, I already said that.

 

[anglolawyer]

I will never understand why people feel the need to make excuses for Rudy Guede. Who on earth believes that Guede accidentally stripped and accidentally digitally raped Meredith? According to Dan O, that is the ONLY theory on the table. Wow!

I don't think Dan is motivated by wanting to help Guede in any way but his usual sure-footedness has deserted him here methinks.