Continuation Part 13: Amanda Knox/Raffaele Sollecito

[Machiavelli]

Well that is never going to happen. I do not know how they will finess it it but I cannot see either the judiciary or the government allowing this. This is something that will unite both left (women's rights) and right (anti Europe).

In this story tha man, a 33yo from Senegal and worked at the night club, had filmed the intercourse in the bathroom of the Florentine disco. As the woman filed a complaint for sexual violence, the man gave the video to the police and sued her for calunnia.
I think the man is slightly suspicious and frankly I don't believe him, and I don't know what's in his video. But there may be little alternative for the police but than investigate.
Anyway no request of extradition will be filed on such charge.

 

[Machiavelli]

I like the idea of courts in Italy "abolishing" laws as well

(In a proper democracy, the only body empowered to abolish (and enact) laws is the legislature (in most countries, that's the parliament). Courts can only apply and interpret laws.)

Well, in Italy also the People can abolish (and sometimes enact) laws through referenda.
The Constitutional Court can in fact repeal any law or part of it that it deems unconstitutional, upon request from a constitutional body (in this case, by a court), this power itself is granted to the Court by the Constitution, which was voted by a legislature.
The Constitutional Court has this peculiar power: that it votes only on laws, and not on cases. It has the specific power to cancel laws, but cannot enact them.

 

[Diocletus]

So, if Italy isn't allowed to extradite people to death penalty nations, then it can't extradite the marines back to India, right? And if it can't extradite the marines, then Italy lied to India, right?

 

[JREF2010]

First, I don't think the convictions will be affirmed. But if they are, I expect the US government will do what it does best: nothing. They won't lift a finger to extradite, or move the case forward.

You don't really see harsh or critical language between allies. Such language is reserved for "the axis of evil". Things might be muttered behind the scenes, but you'll never see an ally deliberately embarrassing another ally in public, it just doesn't happen. Try to think of an example.

When the UK denied extradition of that hacker Gary McKinnon, they didn't gloat, or boast. They just said IIRC its being denied on humanitarian grounds (and I say good for them, our laws on computer hacking and drug use are nutso).

Diplomacy is all about smoothing relations, not kicking up dust and making scenes. How fast and quietly can an issue be swept under the rug. That seems to be the SOP.

But as I say, I don't see the convictions affirmed. And in any event, Amanda will never spend another day in jail over this tragic fraudulent conviction, not one day.

Mignini on the other hand, well, time will tell...

Do you think Migninni , Stefphoni and Edgardo Giobbi, etc..Napoleoni(whose already been charged for being a rotten cop)....

is there any chance they will think twice before framing anyone again?

 

[Machiavelli]

So, if Italy isn't allowed to extradite people to death penalty nations, then it can't extradite the marines back to India, right? And if it can't extradite the marines, then Italy lied to India, right?

Well, the marines have already been back to Italy and then they got back to India again as they promised (they did go back, so they didn't lie).
Currently one of them is back in Italy again where he undergoes treatment for a heart disease.

But the marines are currently still not indicted of any crime. They are currently only suspected (of a non DP crime), and Italy does not recognize India's jurisdiction on international waters so there is even a jurisditional conflict.
I think however that relations between the countries by this time have quite deteriorated because of this unreasonable time lapse and I don't know what will happen next.

 

[AmyStrange]

-

Thank you all for explaining the US process.

I have no complaint about the process as laid out above, seems perfectly reasonable and I am sure impartial and fair.

-

It'll probably be fair, because one thing about the adversarial system, both sides (especially in a high profile case like this) will do everything they can to win.

If Italy ask for extradition, you'll see, or maybe I'll have to eat my shirt. Ha ha,

d

-

 

[Strozzi]

Do you think Migninni , Stefphoni and Edgardo Giobbi, etc..Napoleoni(whose already been charged for being a rotten cop)....

is there any chance they will think twice before framing anyone again?

The professional scrutiny and criticism in this case has of course been a nightmare for Stefanoni, as well as so many others. I think Stefanoni will try to be an exemplary forensic scientist, going forwards. She can't afford to be videotaped again picking up old evidence with a dirty glove. I assume her kit is now full of disposable tweezers.

ETA: Machiavelli, do you know if Stefanoni has processed evidence and presented analysis in testimony in any different way than before? (I am asking this as a serious question; not trying to make a gratuitous comment about Dr. Stefanoni.). Has she, for example, collected and processed LCN DNA in additional criminal cases and testified about that? That might show if she has tightened her evidence handling and processing procedures to conform to higher technical standards.

 

[Machiavelli]

The professional scrutiny and criticism in this case has of course been a nightmare for Stefanoni, as well as so many others. I think Stefanoni will try to be an exemplary forensic scientist, going forwards. She can't afford to be videotaped again picking up old evidence with a dirty glove. I assume her kit is now full of disposable tweezers.

ETA: Machiavelli, do you know if Stefanoni has processed evidence and presented analysis in testimony in any different way than before? (I am asking this as a serious question; not trying to make a gratuitous comment about Dr. Stefanoni.). Has she, for example, collected and processed LCN DNA in additional criminal cases and testified about that? That might show if she has tightened her evidence handling and processing procedures to conform to higher technical standards.

I don't know. What I know is in 2010 (and then in a subsequent testimony) she gave her contribution to send Pascali under trial for false expert report (this news from Jan 15. 2014):

http://www.lagazzettadelmezzogiorno.it/basilicata/non-trov-il-dna-di-restivo-pascali-alla-sbarra-no685643/

A piece of news from 2011:

http://www.tg1.rai.it/dl/tg1/2010/articoli/ContentItem-cfe2b000-59e2-4644-a552-d922d638bf5a.html

 

[Numbers]

Yet Another Italian Procedural Law Broken

Pay attention to para. 2-bis and 4 of Article 238; I believe these were violated in the use of Guede's fast-track trial findings in the trials (Massei, CSC quashing Hellmann, Nencini) of Amanda and Raffaele. For Article 238-bis, the roles of Articles 187 and 192 para. 3 were ignored. Also see Article 190, Right to Evidence, in the Notes & other Articles cited.

CPP Article 238 Minutes of evidence from other proceedings

1. The minutes of evidence from another criminal proceeding may be gathered, if such evidence has been taken during the special evidentiary hearing or the trial.

2. The minutes of evidence taken in a civil trial for which a final judgment has been delivered may be gathered.

2-bis. In the cases referred to in paragraphs 1 and 2, the minutes of the statements may be used against the accused only if his lawyer has taken part in evidence gathering or if a final civil judgment has been rendered against him.

3. Records of unrepeatable actions may also be gathered. If repetition of the action has become impossible due to facts or circumstances that occurred subsequently, evidence may be gathered if said facts or circumstances were unforeseeable.

4. With the exception of the cases provided for in paragraphs 1, 2, 2-bis and 3, the minutes of statements may be used in the trial only against the accused person provided that he gives his consent; if no consent is given, such minutes may be used for the challenges provided for in Articles 500 and 503.

5. Without prejudice to Article 190-bis, the parties maintain the right to obtain, under Article 190, the examination of the persons whose statements have been taken as evidence under the provisions of paragraphs 1, 2, 2-bis and 4 of this Article.

CPP Article 238-bis Final judgments

1. Without prejudice to Article 236, final judgments may be gathered as evidence of the facts therein ascertained and shall be evaluated in compliance with Articles 187 and 192, paragraph 3.
_____
Notes, the other Articles mentioned:

Article 500 Challenging witness statements {Statements of a witness may be challenged based on out-of-court statements he made that are in the investigative dossier.}

Article 503 Examination of private parties {Similar to Article 500}

Article 190 Right to evidence
1. Evidence shall be admitted upon request of a party. The judge shall decide without delay by issuing an order, excluding any evidence that is not allowed by law or manifestly superfluous or irrelevant.
2. The cases in which evidence shall be admitted ex officio are set by law.
3. Decisions concerning the admission of evidence may be revoked after hearing the parties.

Article 190-bis Requirements of evidence in particular cases

Article 187 Facts in issue
1. Facts concerning accusations, criminal liabilities and the determination of either the sentence or the security measure are facts in issue.
2. Facts on which the application of procedural rules depends are also facts in issue.
3. Facts concerning the civil liability resulting from an offense are also facts in issue if a civil party joins the criminal proceedings.

Article 192 Evaluation of evidence
1. The judge shall evaluate evidence specifying the results reached and the criteria adopted in the grounds of the judgment.
2. The existence of a fact cannot be inferred from circumstantial evidence unless such evidence is serious, precise and consistent.
3. The statements made by either the co-accused charged with the same offence or a person accused in joined proceedings according to Article 12 shall be corroborated by other elements of evidence confirming their reliability.
4. The provision of paragraph 3 shall apply also to the statements made by a person accused of an offence that is joined to the one being prosecuted, in the case referred to in Article 371, paragraph 2, letter b).

Article 12 Cases of joined proceedings
1. Proceedings are joined if:
a) the offence being prosecuted is committed by several persons acting jointly or in cooperation, or if several persons acting independently cause the event;
b) a person is accused of several offences committed in either a single action or omission or several actions or omissions related to the same criminal intention;
c) the offences being prosecuted are committed to carry out or conceal the joined offences.

 

[Numbers]

Some information about the incidente probatorio that has generated so many posts on ISF.

The text The Italian Code of Criminal Procedure: Critical Essays and English Translation, edited by Mitja Gialuz, Luca Luparia, and Federica Scarpa is the source for the following information.

The term "incidente probatorio" is translated as "special evidentiary hearing".

The Italian Code of Criminal Procedure devotes a chapter, Title VII of Book V to this topic.

CPP Article 392 Cases

1. During preliminary investigations [and preliminary hearings, in accordance with Constitutional Court judgment 77/1994], the Public Prosecutor and the suspect may request that the judge proceed by means of special evidentiary hearing to:
a) the taking of a person's testimony, if there are reasonable grounds to believe that the same person will not be able to be examined during the trial due to illness or any other serious impediment;
....
f) an expert report or a judicial simulation, if evidence concerns a person, an object or a place subject to unavoidable modification;
....

Article 393
Request
1. The request shall be submitted within the time limits set for the conclusion of the preliminary investigations and, in any case, within an adequate time for evidence gathering prior to the expiry of the same time limits and shall contain:
a) the evidence to be gathered, the facts in issue and the reasons of its importance for the trial decision;
b) the persons being prosecuted for the facts in issue;
c) the circumstances that, under Article 392, prevent the deferral of evidence to the trial stage.
2. The request submitted by the Public Prosecutor shall also indicate the lawyers of the persons concerned under paragraph 1, letter b), the victim and his lawyer.
2-bis. By means of the request for the special evidentiary hearing referred to in Article 392, the Public Prosecutor shall file all the documents related to the performed investigative actions.
3. The provisions of paragraphs 1 and 2 shall be observed under penalty of inadmissibility.
4. {Prosecutor and suspect may request an extension of the time limit if needed.}
_____
Since the "documents" produced by a DNA profile determination includes, in the general sense, the Electronic Data Files, such EDFs must be gathered by the prosecution and placed in the case file for examination by the defense.

To not do so is clearly a violation of providing the adequate facilities required by the defense, a violation of Convention Article 6.3b. There is ECHR case law that failure to provide original documents or original electronic files to the defense results in a violation of Article 6.3b. ETA: In another case, the failure to provide original electronic documents was classified as a violation of 6.3d, failure to allow examination of a witness.

 

[Kaosium]

Since the "documents" produced by a DNA profile determination includes, in the general sense, the Electronic Data Files, such EDFs must be gathered by the prosecution and placed in the case file for examination by the defense.

To not do so is clearly a violation of providing the adequate facilities required by the defense, a violation of Convention Article 6.3b. There is ECHR case law that failure to provide original documents or original electronic files to the defense results in a violation of Article 6.3b. ETA: In another case, the failure to provide original electronic documents was classified as a violation of 6.3d, failure to allow examination of a witness.

Wow, thank you for those two posts! I single out this particular passage because I find it so (potentially) interesting. Are you saying that the ECHR has ruled that failure to provide the original electronic documents constitutes a violation of Article 6?

Incidentally, this is (mostly) what I was referring to when I asked a while back if you thought it likely the ECHR might use this case to make a 'statement' on LT/LCN DNA. If I am reading this correctly it sounds like they may have already....

 

[MichaelB]

English translation of Alessandro Crini's shameful and insane reconstruction of the murder and Guede using the toilet.

http://www.amandaknoxcase.com/wp-co...i-Part2-The-Reconstruction-of-the-Murder.docx

 

[Numbers]

Wow, thank you for those two posts! I single out this particular passage because I find it so (potentially) interesting. Are you saying that the ECHR has ruled that failure to provide the original electronic documents constitutes a violation of Article 6?

Incidentally, this is (mostly) what I was referring to when I asked a while back if you thought it likely the ECHR might use this case to make a 'statement' on LT/LCN DNA. If I am reading this correctly it sounds like they may have already....

The electronic documents in question were not EDFs from a DNA profile, but in one instance were the electronic records of banking transactions. In another, they were the electronic records of phone intercepts, which the police may have cherry-picked to exclude exculpatory intercepts but to include ambiguous or seemingly inculpatory ones.

There is little relevant ECHR case-law relating specifically to DNA. The ECHR has, as far as I can determine from my database searches, been primarily concerned with privacy issues (whose DNA profile may be saved in a DNA database for how long) and paternity issues.

Another important point is that ECHR's mission is not to evaluate the reliability of evidence per se (intrinsically); it's mission, defined by the Convention, is to evaluate claimed violations of human rights, as defined in the Convention, by the States of the Council of Europe. One such right is the right to a fair trial (Article 6). If the alleged lack of reliability of the evidence used in a trial is alleged to have made the trial unfair, then ECHR will evaluate the reliability of that evidence and whether the evidence has indeed negatively influenced the fairness of the trial. And, of course, those of us with even a beginner's understanding of the DNA issues see that there have been gross problems with the reliability of the DNA evidence in this case, and that those problem have had a major influence on the trial. Independent experts with a professional level of understanding of DNA profiling have an even stronger view.

The DNA issue is only one of the factors of unfairness in this case. If and when it comes to the ECHR, the issues of use of Guede's fast-track trial verdict in this series of trials, the suppression of potentially exculpatory evidence (including, for example, the putative semen stain), the contamination of the trial with statements from an interrogation without counsel, conviction after acquittal on substantially the same evidence, and the unreasoned and arbitrary motivation reports, among other issues, will all play a role in a judgment against Italy.

 

[Bill Williams]

English translation of Alessandro Crini's shameful and insane reconstruction of the murder and Guede using the toilet.

http://www.amandaknoxcase.com/wp-co...i-Part2-The-Reconstruction-of-the-Murder.docx

Prosecutor Crini is lost in all this, and rightfully so. What a complete nonentity. Did he really prosecute this case? He doesn't even seem to follow the dictates of the previous Cassazione rulings... completely ignores "sex game gone wrong"....

It's hard to decide if he is phoning in his prosecution of this case, or if he truly understands what's going on. He probably cashed his paycheque and went on to other things.

Shameful? Insane? It is hard to make head nor tail of this translation.... does it reflect the discombobulation of his thinking or is it just a strained translation?

There are many many bizarre elements of this miscarriage: this is one of them.

 

[Kaosium]

The electronic documents in question were not EDFs from a DNA profile, but in one instance were the electronic records of banking transactions. In another, they were the electronic records of phone intercepts, which the police may have cherry-picked to exclude exculpatory intercepts but to include ambiguous or seemingly inculpatory ones.

Which is essentially what Stefanoni did with the DNA evidence. I'm trying to think of a rationale why the EDFs wouldn't be considered on the same level as those banking transactions and phone intercepts. The reliability of the physical evidence and the possibility others could have the the same sort of evidence mustered against them ought to be considered of the same sort of importance.

There is little relevant ECHR case-law relating specifically to DNA. The ECHR has, as far as I can determine from my database searches, been primarily concerned with privacy issues (whose DNA profile may be saved in a DNA database for how long) and paternity issues.

Another important point is that ECHR's mission is not to evaluate the reliability of evidence per se (intrinsically); it's mission, defined by the Convention, is to evaluate claimed violations of human rights, as defined in the Convention, by the States of the Council of Europe. One such right is the right to a fair trial (Article 6). If the alleged lack of reliability of the evidence used in a trial is alleged to have made the trial unfair, then ECHR will evaluate the reliability of that evidence and whether the evidence has indeed negatively influenced the fairness of the trial. And, of course, those of us with even a beginner's understanding of the DNA issues see that there have been gross problems with the reliability of the DNA evidence in this case, and that those problem have had a major influence on the trial. Independent experts with a professional level of understanding of DNA profiling have an even stronger view.

This is a real problem, in a jury trial the typical juror has to be able to comprehend this very complex subject for each and every trial where the prosecution (or defense) is relying heavily on DNA evidence.

The DNA issue is only one of the factors of unfairness in this case. If and when it comes to the ECHR, the issues of use of Guede's fast-track trial verdict in this series of trials, the suppression of potentially exculpatory evidence (including, for example, the putative semen stain), the contamination of the trial with statements from an interrogation without counsel, conviction after acquittal on substantially the same evidence, and the unreasoned and arbitrary motivation reports, among other issues, will all play a role in a judgment against Italy.

Does anyone know the details of the contents of the defense appeals to the Corte Suprema di Cassazione? Specifically, what issues they raised in the 400 or so (combined) pages? Before it gets to the ECHR it will go through them and it would seem the issues raised would be similar for both of them. I ought to know the answer to this but I've been busy the past few months and haven't been able to keep up.

 

[Kauffer]

The trial is not political. Where did I say that? You are starting to get visions too.

Italian governments do not have an option of not asking for extraditions. They don't have this political strenght, it's unpopular, and governments are weak. This is on any verdict, not just Amanda Knox.

You are wrong on two points.

First, it is not true that I said the government is legally compelled. In Italy, the government is politically compelled, they are not going to defy the judiciary, because they would loose votes.

Second, it is not true that Italy didn't request the extradition of Lady. They did seek extradition from Panama (Lady was not on US soil). Extradition was obviously refused in all instances. But then Lady was pardoned by the Italian president.

No extradition request was ever made for Lady - not to Panama with whom Italy had no treaty anyway and certainly not to the US.

What did happen was that your attorney general signed an order for Lady's arrest, which triggered an Interpol notice leading to the Panama detention, but despite the opportunity presented, no extradition request was forthcoming (Panama could have responded positively to such a request even without a treaty).

As always, you seek to manipulate the facts in order to have them fit your theories.

Was Lady pardoned? Really? If so, then this entire episode runs counter to your argument that the Italian government is too weak to stand up to the judiciary. We do know that Joseph Romano was pardoned in the same case.

I'm not defending Lady or his cohorts, of course; I am merely considering process and history.

The more I look at this, the more convinced I am that Italy would leave Ms Knox alone pending an ECHR application following any final conviction decision. What will be interesting then is how Mr Sollecito is treated if he too is convicted.

Fortunately and ultimately because of the operation of the European Convention, anyone or institution in Italy including its government who might want to take a further bite out of either or both of our wrongfully accused innocents is going to find that their mouths are not big enough.

 

[Kauffer]

Well, in Italy also the People can abolish (and sometimes enact) laws through referenda.
The Constitutional Court can in fact repeal any law or part of it that it deems unconstitutional, upon request from a constitutional body (in this case, by a court), this power itself is granted to the Court by the Constitution, which was voted by a legislature.
The Constitutional Court has this peculiar power: that it votes only on laws, and not on cases. It has the specific power to cancel laws, but cannot enact them.

Well...almost. Not quite. In the Dorigo case, the Constitutional Court went further than it had before and instead of simply striking down a law, issued what is known as an "additive" decision, declaring art. 630 cpp unconstitutional for not providing a possibility of reopening criminal proceedings under art. 46 of the Convention, in order to enforce a final decision via the European court through the Committee of Ministers. Effectively, it was forced into "making" law, as the legislature had failed, despite numerous attempts, to do so itself.

Remember this one, Machiavelli? When you tried to tell us that once a case is closed it is closed for ever and there is no possibility of it ever being opened again? Res iudicata, my foot!!

All together now, as the Italian judiciary sings that well known refrain..."Calunnia. You're breaking my heart. You're shaking my confidence daily...."

 

[Planigale]

Can someone (e.g. Mach) explain to me the right to silence of Guede when he was called as a witness in the appeal. Guide had already been convicted of murder. As far as we know there are no outstanding charges against him. Is the issue that if Guede gave witness evidence against Knox and she was found innocent he would be subject to charges of callunia? This would be a significant inhibition to witnesses, I would have thought there should be some immunity to callunia for evidence in court.

 

[Samson]

Can someone (e.g. Mach) explain to me the right to silence of Guede when he was called as a witness in the appeal. Guide had already been convicted of murder. As far as we know there are no outstanding charges against him. Is the issue that if Guede gave witness evidence against Knox and she was found innocent he would be subject to charges of callunia? This would be a significant inhibition to witnesses, I would have thought there should be some immunity to callunia for evidence in court.

There is a right to cross examine an accuser by the defence in all criminal cases worldwide as I understand it.
But the Italians are students of Catch 22, they learned well.

Mach, what is your honest opinion of how Rudy would have performed under cross examination by the Knox/Sollecito defence teams?
What are a few questions they might have asked?

 

[Kauffer]

Can someone (e.g. Mach) explain to me the right to silence of Guede when he was called as a witness in the appeal. Guide had already been convicted of murder. As far as we know there are no outstanding charges against him. Is the issue that if Guede gave witness evidence against Knox and she was found innocent he would be subject to charges of callunia? This would be a significant inhibition to witnesses, I would have thought there should be some immunity to callunia for evidence in court.

Wasn't at least one witness threatened on the stand by one of the prosecutors about the evidence he was thought likely to give?