Continuation Part 13: Amanda Knox/Raffaele Sollecito

[Samson]

Another American law scholar weighs in.

Quote:

“While I was in Italy, I was working on a comparative law course book. One of the angles I was working on was comparing criminal procedures in Europe, the United States and China. So this case and all the attention it was getting really grabbed my interest,” Head said.

and

The first problem with most of the criticism, Head argues, was translational in character, in the sense that many observers are not able to “translate” their own expectations of criminal procedure into a foreign cultural setting.

Link: http://today.ku.edu/2015/01/28/law-...knox-trial-showed-lack-understanding-problems

Once more a "fine" legal mind sees plenty of trees but can't see that wood. Astounding for someone who claims the case "really grabbed my interest".

 

[Numbers]

Another American law scholar weighs in.

Quote:

“While I was in Italy, I was working on a comparative law course book. One of the angles I was working on was comparing criminal procedures in Europe, the United States and China. So this case and all the attention it was getting really grabbed my interest,” Head said.

and

The first problem with most of the criticism, Head argues, was translational in character, in the sense that many observers are not able to “translate” their own expectations of criminal procedure into a foreign cultural setting.

Link: http://today.ku.edu/2015/01/28/law-...knox-trial-showed-lack-understanding-problems

Once more a "fine" legal mind sees plenty of trees but can't see that wood. Astounding for someone who claims the case "really grabbed my interest".

Apparently an apologist for unfairness. Almost the same as an appeaser.

 

[Dougm]

Another American law scholar weighs in.

Quote:

“While I was in Italy, I was working on a comparative law course book. One of the angles I was working on was comparing criminal procedures in Europe, the United States and China. So this case and all the attention it was getting really grabbed my interest,” Head said.

and

The first problem with most of the criticism, Head argues, was translational in character, in the sense that many observers are not able to “translate” their own expectations of criminal procedure into a foreign cultural setting.

Link: http://today.ku.edu/2015/01/28/law-...knox-trial-showed-lack-understanding-problems

Once more a "fine" legal mind sees plenty of trees but can't see that wood. Astounding for someone who claims the case "really grabbed my interest".

I have found some really "smart" people, especially some in academia (not you Chris H) tend to focus on just one aspect of a subject that they find interesting, and totally ignore the larger issues. Not seeing the forest for the trees, so to speak.

I don't know Mr. Head, and he may be a great guy and smart, but I just wanted to weigh in that just because one has an advanced degree does not mean they are that smart or see things in the most logical fashion. As an example, most of the US Congress are lawyers!

 

[Numbers]

I would be interested to hear others opinions. I would like to see definite 'errors' and probable 'errors' separated out. My feeling is mixing definite with less definite gives the opportunity to dismiss the list by dealing with the less certain points.

I should point out that the title of the list,
The Seventeen-Plus Forensic Science Sins of Patrizia Stefanoni,
is a working title only and intended for entertainment.

However, if there is a movie made about the forensic work in this case, I would submit that could be a title for it. Or perhaps, to leave out any person's name, The Keystone Cops of Italy.

 

[Planigale]

In some instances, such as the apparent destruction or degradation of the DNA on the bra clasp, I would certainly consider indicating an uncertainty whether the action was deliberate or merely the result of gross incompetence.

But the point of the list is not to "indict" Stefanoni. It is to demonstrate why the DNA evidence allegedly against Ms. Knox and Mr. Sollecito is unreliable. And furthermore, the Italian courts, with the exception of the Hellmann court, did not allow an exploration of the reliability (or lack thereof) of the DNA evidence.

It is the use of unreliable evidence to convict, without a fair chance for the defense to challenge it, and to obtain and review all the evidence that is potentially exculpatory, that makes the trials, as conducted by the Massei and Nencini courts and as reviewed by the CSC after the Hellmann acquittal, unfair according to the European Convention of Human Rights and ECHR case-law.

The audience for this list is not the guilters, who are private citizens and expert in neither law nor forensic technologies such as DNA profiling.

A responsible agency would deal with all the issues, and the presence of potentially "less probable" deviations from international protocols does not invalidate the presence of "highly probable" deviations from international protocols.

If you find any statements in the list that are less probable as deviations from standard international forensic protocols than others, I would welcome your opinion.

Ok that makes more sense, whether deliberate or accidental, poor processing of the scene, poor laboratory practice and crappy analysis is worth pointing out.

 

[carbonjam72]

The Mayor of 'Cartwheel land'

Once again, the thread has grown lengthy, so this is a continuation from Part 12.
For further reference, see also Part 11, Part 10, Part 9, Part 8, Part 7, Part 6, Part 5, Part 4, Part 3, Part 2, and Part 1.

Posted By: Agatha

Et tu, Agatha?

How could you have forgotten the original:
Amanda Knox guilty – all because of a cartwheel.

Amanda writes in 'Waiting to be heard' that there was no cartwheel performed by her. Just a split, and performed at the seemingly leering suggestion of an older male policeman.

The police who say she did a cartwheel are of divided opinion. One, I think Ficarra, claimed she also did a back walkover or a back handspring?

So, assuming you believe there is something called the truth, exactly which version do you believe is actually true?

Amanda, who has never lied, and has a reputation for honesty from people who actually know her?

Or the Italian police, who have been caught repeatedly in lies throughout this and other cases, so much so that it is difficult to believe anything they say.

I already know your response, although I don't know how you will get there, much like Mr Pink's assessment of Nencini's motivation report, you will meander to your pre-set destination whilst driving your own little Yugo through your own little Cartwheel land.

 

[Desert Fox]

Another American law scholar weighs in.

Quote:

“While I was in Italy, I was working on a comparative law course book. One of the angles I was working on was comparing criminal procedures in Europe, the United States and China. So this case and all the attention it was getting really grabbed my interest,” Head said.

and

The first problem with most of the criticism, Head argues, was translational in character, in the sense that many observers are not able to “translate” their own expectations of criminal procedure into a foreign cultural setting.

Link: http://today.ku.edu/2015/01/28/law-...knox-trial-showed-lack-understanding-problems

Once more a "fine" legal mind sees plenty of trees but can't see that wood. Astounding for someone who claims the case "really grabbed my interest".

The funny thing is that the ECHR seems to make sense to Americans and in fact I wish some of their ideas (such as confessions without a defense lawyer present inadmissible) would be adopted in the US.

 

[carbonjam72]

Another American law scholar weighs in.

Quote:

“While I was in Italy, I was working on a comparative law course book. One of the angles I was working on was comparing criminal procedures in Europe, the United States and China. So this case and all the attention it was getting really grabbed my interest,” Head said.

and

The first problem with most of the criticism, Head argues, was translational in character, in the sense that many observers are not able to “translate” their own expectations of criminal procedure into a foreign cultural setting.

Link: http://today.ku.edu/2015/01/28/law-...knox-trial-showed-lack-understanding-problems

Once more a "fine" legal mind sees plenty of trees but can't see that wood. Astounding for someone who claims the case "really grabbed my interest".

Thanks for the link Samson, here's an extended quote below.

Seems like the professor Head recognizes the trial was "flawed" and "troubling", but then somehow manages to retreat into an obtuse fog of academic solipsism. The professor is able to see "flaws" in the process, but seems untroubled by the lack of evidence and open malfeasance in the manufacture of false evidence and bogus witnesses, and suppressed exculpatory evidence. The professor fails to see corruption, where it plainly is apparent. This is not Italian justice as it is by law, but how it was corrupted in practice. All I can say on Prof Head's behalf is, thank god for tenure -

... The original verdict was widely seen as flawed, especially in the United States. The first problem with most of the criticism, Head argues, was translational in character, in the sense that many observers are not able to “translate” their own expectations of criminal procedure into a foreign cultural setting.

The complaint was often made, for instance, that the jury in the Amanda Knox trial was not sequestered. What people failed to understand was that Italian juries are rarely sequestered as they are in the States. And instead of 12 jurors of the defendant’s peers, the Italian system employs three judges and six “lay assessors of facts,” Head said. The latter are allowed to consult with the former for a number of reasons, including offsetting any potential prejudice they may have from exposure to the media.
Another fundamental difference is that in European systems, the societal expectation if someone is found guilty is to decide what the criminal justice system can do to mend the tear in the fabric of society and reintegrate the person back into that society. That concept is all but forgotten in America, Head said. Those differences failed to translate to an understandable reality for most American critics, he added.

Those complications contribute to a second problem, transplantational misunderstandings. While it is true that Italian, European and many other justice systems around the world have been “Americanized” to a certain extent over the last three decades, it is difficult to pick and choose which aspects of a legal system to “transplant” or impart into another. A prime example of that problem was an aggressive prosecutor in the first trial who was similar to what one would see in American courts. “The rest of the system was not ready for that sort of aggressiveness,” Head said. “And many thought the other side — that is, the Amanda Knox side of the trial — was not ready for that, especially without an equally aggressive defense.”

Those problems and misunderstandings, when coupled with a changing society, can pose significant and unprecedented challenges for legal systems, such as the Italian criminal justice system. Growing immigration and multinationalism can stand at odds with nationalist and traditional understandings, Head said. While the tradition may be to re-integrate someone into society after committing a crime, people from other parts of the world may not want to be re-integrated.

“That, I think, throws questions on the tried and true system of criminal procedure and what the process will be 10, 20 years from now when things seem to be changing so quickly,” Head said.

On top of all that, the intense media scrutiny in multiple countries placed a strain on the legal system as well, he added. This also made the trial troubling
Head’s article was published in a “Festschrift,” or special journal published in celebration of the 70th birthday of Feridun Yenisey, a world-renowned legal scholar from Turkey. Yenisey, who has a long association with the KU School of Law, is well-known for his expertise in criminal procedure and in Turkey’s campaign for legal reform. This made an examination of a fascinating criminal procedure case especially appropriate, Head said.

Knox and Sollecito are still in the midst of legal battles concerning the case. Their murder conviction was reinstated, and they are awaiting a final ruling, which is expected as early as next month. In the meantime, Knox lives in Seattle and is working as a writer.

Cases such as the Knox trial are a poignant example of the value of comparative law and even more so the value of cross-cultural understanding.

“I think we simply miss a lot because we don’t pay close enough attention to the underlying cultural differences between legal systems and especially nations,” Head said. “Unfortunately, our response is often inadequate because of that....”

 

[platonov]

The Mayor of Perugia actually

Amanda writes in 'Waiting to be heard' that there was no cartwheel performed by her. Just a split, and performed at the seemingly leering suggestion of an older male policeman.

The police who say she did a cartwheel are of divided opinion. One, I think Ficarra, claimed she also did a back walkover or a back handspring?

So, assuming you believe there is something called the truth, exactly which version do you believe is actually true?

Amanda, who has never lied, and has a reputation for honesty from people who actually know her?

Or the Italian police, who have been caught repeatedly in lies throughout this and other cases, so much so that it is difficult to believe anything they say.

I already know your response, although I don't know how you will get there, much like Mr Pink's assessment of Nencini's motivation report, you will meander to your pre-set destination whilst driving your own little Yugo through your own little Cartwheel land.

Wow.
It appears I didn’t get my point across with sufficient clarity. Yet again

The point being that the original thread was not listed in Agatha’s info box.
It’s not a big deal but you must be aware of my principled approach to Historical Revisionism - even at the cost of disagreeing with the mods.

ps Did it ever occur to you that maybe I’m the ‘Mayor of Perugia’ and Mach is just running interference?

ETA Double Wow

 

[Desert Fox]

Another fundamental difference is that in European systems, the societal expectation if someone is found guilty is to decide what the criminal justice system can do to mend the tear in the fabric of society and reintegrate the person back into that society. That concept is all but forgotten in America, Head said. Those differences failed to translate to an understandable reality for most American critics, he added.

Few Americans who argue for Amanda's innocence are against that and many (at least I) despair of the idea of "lock them up and throw away the key."

 

[Numbers]

The funny thing is that the ECHR seems to make sense to Americans and in fact I wish some of their ideas (such as confessions without a defense lawyer present inadmissible) would be adopted in the US.

There are the Miranda rights or warning. Of course, the question can come up of whether this warning was effectively given and understood.

http://www.usconstitution.net/miranda.html

The Constitution reserves many rights for those suspected of crime. One of the fears of the Framers was that the government could act however it wished by simply saying an individual was a suspected criminal. Many of the rights in the Constitution and the Bill of Rights, such as habeas corpus, the right to remain silent, and the right to an attorney, are designed to ensure that those accused of a crime are assured of those rights.

Police were able to take advantage of the fact that not everyone knows their rights by heart. In fact, it is likely that most citizens could name a few of their rights as accused criminals, but not all of them. The police's position was that if the accused, for example, spoke about a crime without knowing that they did not need to, that it was the person's fault for not invoking that right, even if they did not know, or did not remember, that they had that right.

This was the crux of the issue in Miranda v Arizona. In 1963, Ernesto Miranda was accused of kidnapping and raping an 18-year-old, mildly retarded woman. He was brought in for questioning, and confessed to the crime. He was not told that he did not have to speak or that he could have a lawyer present. At trial, Miranda's lawyer tried to get the confession thrown out, but the motion was denied. In 1966, the case came in front of the Supreme Court. The Court ruled that the statements made to the police could not be used as evidence, since Miranda had not been advised of his rights.

Since then, before any pertinent questioning of a suspect is done, the police have been required to recite the Miranda warning. The statement, reproduced below, exists in several forms, but all have the key elements: the right to remain silent and the right to an attorney. These are also often referred to as the "Miranda rights." When you have been read your rights, you are said to have been "Mirandized."

Note that one need not be Mirandized to be arrested. There is a difference between being arrested and questioned. Also, basic questions, such as name, address, and Social Security number do not need to be covered by a Miranda warning. The police also need not Mirandize someone who is not a suspect in a crime.

 

[sept79]

.
.
.
I am not sure that she deliberately destroyed the bra hook (indeed i am not sure she did, I suspect DNA would still have been recoverable is anyone had wanted).
.
.
.

Does it matter whether the bra hook was destroyed on purpose or by incompetence?

 

[Desert Fox]

On Miranda Warnings

one problem we have is it that to people (Laymen, judges, and lawyers), it is just unthinkable that somebody might confess to a crime that they did not commit. Evidence though indicates that this is not the case. Most people, if pushed hard enough, will confess to crimes which they did not do.

Miranda warnings do not seem to protect against this. I don't know if people don't really think about the warnings or not.

A second problem is that even if one does not confess, it is almost impossible to be consistent with a story. Our memories are too prone to bias for this.

Having a defense lawyer present is one of the ways which one might be partially protected in such sitautions

 

[LondonJohn]

There are the Miranda rights or warning. Of course, the question can come up of whether this warning was effectively given and understood.

http://www.usconstitution.net/miranda.html

The Constitution reserves many rights for those suspected of crime. One of the fears of the Framers was that the government could act however it wished by simply saying an individual was a suspected criminal. Many of the rights in the Constitution and the Bill of Rights, such as habeas corpus, the right to remain silent, and the right to an attorney, are designed to ensure that those accused of a crime are assured of those rights.

Police were able to take advantage of the fact that not everyone knows their rights by heart. In fact, it is likely that most citizens could name a few of their rights as accused criminals, but not all of them. The police's position was that if the accused, for example, spoke about a crime without knowing that they did not need to, that it was the person's fault for not invoking that right, even if they did not know, or did not remember, that they had that right.

This was the crux of the issue in Miranda v Arizona. In 1963, Ernesto Miranda was accused of kidnapping and raping an 18-year-old, mildly retarded woman. He was brought in for questioning, and confessed to the crime. He was not told that he did not have to speak or that he could have a lawyer present. At trial, Miranda's lawyer tried to get the confession thrown out, but the motion was denied. In 1966, the case came in front of the Supreme Court. The Court ruled that the statements made to the police could not be used as evidence, since Miranda had not been advised of his rights.

Since then, before any pertinent questioning of a suspect is done, the police have been required to recite the Miranda warning. The statement, reproduced below, exists in several forms, but all have the key elements: the right to remain silent and the right to an attorney. These are also often referred to as the "Miranda rights." When you have been read your rights, you are said to have been "Mirandized."

Note that one need not be Mirandized to be arrested. There is a difference between being arrested and questioned. Also, basic questions, such as name, address, and Social Security number do not need to be covered by a Miranda warning. The police also need not Mirandize someone who is not a suspect in a crime.

In the UK, it's customary to give the caution statement at the same time as the announce of the arrest: "I am arresting you on suspicion of XYZ. You do not have to say anything, but anything you do say will be taken down and may be used in court at a later date. You have the right to a lawyer".

It's very rare - i.e. only in exceptional circumstances - that the caution is not given at the point of arrest. It's also then repeated before each interview. And someone can also be interviewed under caution without being arrested, meaning that if they do say something incriminating it can also be used in court. If the police interview someone not under caution and they incriminate themselves, then such incrimination is almost always unusable in court: what normally would happen is that the person is immediately arrested, cautioned, and asked if they want to repeat the testimony under caution.

And of course that's what makes Knox's treatment all the more unlawful and wrong. After all, even if the police had truly had no suspicions of her at the time she first made the "confession/accusation" (of course we know they certainly DID have suspicions, but let's for a moment pretend they did not), and if Knox truly had "blurted out" her accusations against Lumumba and herself out of a clear blue sky (again, she clearly did not, but let's pretend), then the correct action would have been to stop, arrest Knox, caution her, give her access to a lawyer, and ask her if she wanted to repeat what she'd said to them.

In the civilised world, that's the protection that private individuals have come to expect and deserve from the state. There are many and various reasons why it's a Very Good Idea, and there are similarly many reasons why its omission/distortion can often result in unjust outcomes. Indeed, that's exactly why such laws related to mandatory cautions and safeguards for suspects exist in the first place......

 

[LondonJohn]

one problem we have is it that to people (Laymen, judges, and lawyers), it is just unthinkable that somebody might confess to a crime that they did not commit. Evidence though indicates that this is not the case. Most people, if pushed hard enough, will confess to crimes which they did not do.

Miranda warnings do not seem to protect against this. I don't know if people don't really think about the warnings or not.

A second problem is that even if one does not confess, it is almost impossible to be consistent with a story. Our memories are too prone to bias for this.

Having a defense lawyer present is one of the ways which one might be partially protected in such sitautions

Indeed. IIRC, pretty much every known false confession on record was made outside the presence of a lawyer. And, ironically, it's not a stretch to suggest that the individuals in question felt they had no need to have a lawyer present, since they had done nothing wrong! Then, by the time they had been bamboozled and coerced by police interrogation techniques, they would probably have felt unable to suddenly request a lawyer - either because they felt that to do so would automatically indicate guilt, or because they thought that they had given up the chance to get a lawyer by not getting one from the start (the police are not obliged, after all, to keep repeating throughout an interrogation, that the suspect is still entitled to a lawyer at any time).

 

[Desert Fox]

Indeed. IIRC, pretty much every known false confession on record was made outside the presence of a lawyer. And, ironically, it's not a stretch to suggest that the individuals in question felt they had no need to have a lawyer present, since they had done nothing wrong! Then, by the time they had been bamboozled and coerced by police interrogation techniques, they would probably have felt unable to suddenly request a lawyer - either because they felt that to do so would automatically indicate guilt, or because they thought that they had given up the chance to get a lawyer by not getting one from the start (the police are not obliged, after all, to keep repeating throughout an interrogation, that the suspect is still entitled to a lawyer at any time).

I have seen several cases where they continue interrogating a suspect after the suspect either says that they want a lawyer and/or say that they do not want to talk. In such cases, the confessions get thrown out. That is why as well that all police questioning needs to be recorded. Recorders are getting so small that there is no excuse anymore. Actually that was already the case in 2007.

 

[JREF2010]

Why, in any case, should the EDFs not have been handed over without asking, in pre-trial discovery?

I wonder if the Judges are asking this now, as they review the case files.

 

[Bill Williams]

Why, in any case, should the EDFs not have been handed over without asking, in pre-trial discovery?

I wonder if the Judges are asking this now, as they review the case files.

Probably not. As Machiavelli reminds us, in Italy people giving evidence are not on trial. Especially police, they are simply giving the facts and no one has the right to ask how they came to the conclusions they did.

 

[Chris_Halkides]

when silence is not golden

LondonJohn or anglolawyer,

Would one of you clarify one thing for me? In Britain can the police ever say that if you are silent, that your silence can be used against you in some sense? I seem to recall this from some conversation or another.

 

[Bill Williams]

LondonJohn or anglolawyer,

Would one of you clarify one thing for me? In Britain can the police ever say that if you are silent, that your silence can be used against you in some sense? I seem to recall this from some conversation or another.

http://www.policestateusa.com/2014/california-v-richard-tom/

I don't know about the reputation of this website, but....

The Supreme Court of California has ruled that a suspect’s silence can be used as evidence of guilt during trial.

The 4-3 decision reversed an appellate court’s ruling and reinstated a man’s felony conviction for a 2007 vehicular manslaughter case. That case involved a motorist named Richard Tom, who broadsided another vehicle while speeding in Redwood City.

Following the collision, Mr. Tom chose to remain silent when confronted by police. While “the right to remain silent” is traced back to the Fifth Amendment and has received longstanding legal acceptance, courts have recently moved to curtail that right by claiming that a suspect must verbally invoke a condition of silence for the legal protection to apply, prior to the reading of the Miranda warning.​