• Quick note - the problem with Youtube videos not embedding on the forum appears to have been fixed, thanks to ZiprHead. If you do still see problems let me know.

Continuation Part 20: Amanda Knox/Raffaele Sollecito

Status
Not open for further replies.
Machiavelli said:
....
You are wrong, as I just proved.



As you can see, relevant citatios are not from CPP, but from SC case law.
Click to expand...

However, case law is of questionable merit in a civil law system such as Italy's.

The law CPP Art. 652 as quoted in Gialuz et al. is current as of 2013. It states that there is a binding effect of no future civil action whenever there is a FINAL judgment of acquittal with the specification "the accused did not commit the act" (among some other types of acquittal) as long as the injured party pursued, or had the possibility to pursue, civil action with the criminal proceedings.

The CSC case you present is from 2006, and another from 2008. And since I do not read Italian, I am unsure precisely what the text states.

Trying to make sense out of the Google translations of the Italian texts, I see that the first excerpt only relates to a CSC statement defensively claiming that CPP Art. 533.1 as revised in 2006 to provide the BARD standard of guilt was redundant since CPP Art. 530.2 exists for acquittal and should be cited when appropriate.

For the second Italian text, I can't make any sense out of the English translation. It sounds like some Italian judges pretending to be philosophers and not succeeding - or perhaps succeeding very well, by being incomprehensible.

The third text may be relevant. Google translate gives me:

"Criminal acquittal judged has preclusive effect in the civil action for damages only when it contains an effective and specific assessment concerning the non-existence or the fact or of the defendant's participation, and not even when an acquittal is determined by the different assessment of the absence sufficient evidence as to the commission of the offense or the attribuibilità it to the accused, and that is when the acquittal was pronounced in accordance with art. 530 Code of Criminal Procedure, paragraph 2 "

However, this is a CSC decision from Cass. 17401/2004 and Cass. 20325/2006, before the reforms of 2006. Furthermore it mentions a specific and effective assessment of the non-participation of the accused. In fact, this is provided by the Marasca CSC verdict including the motivation report.

Remember, also, Maresca (the Kercher lawyer) stated that it was all over last March, after the Marasca CSC panel verdict was delivered. An Italian lawyer of his skill and knowledge would not have said that if the possibility of civil action remained. He would have pressed a new civil suit.

So I conclude you are mistaken and presenting misleading information. You should know it is wrong because of the statements and actions of Maresca, the Kercher lawyer, since the acquittal of Knox and Sollecito.

If you are convinced you are correct, you should notify the Kerchers and their lawyer so that they can continue the civil action. Please, do that, rather than spread false information on the internet.
 
Last edited:
Grinder said:
Indulge and explain exactly what effectively moot means.
Click to expand...

This seems simple to me. That there is no practical difference between 1 or 2 and therefore it is is moot...meaningless

I must be missing something as you are so good with this kind of stuff.
 
Grinder said:
On what basis are you sure?
Click to expand...

Seriously Grinder? I can get access to King County Court documents simply by logging on.

These are judges, if they need or want some information to assist them in making a decision all they have to do is order it to be delivered...(unless we're talking about the EDFs ..lol)
 
Diocletus said:
I'll bet they don't have Stefanoni's lab protocols, negative controls and missing amplifications.
Click to expand...

Probably Stefanoni doesn't have them either. You don't keep the evidence of your own corruption. Not unless you're Nixon.
 
Grinder said:
On what basis are you sure?
Click to expand...

Whether or not they have paper or computer access, the CSC by law gets to see and read the relevant court documents, otherwise CPP Article 606 (E) would be meaningless, at a level even beyond the usual Italian screw-ups.

CPP Article 606 Cases of appeal to the Court of Cassation (CSC)

1. The appeal to the CSC may be lodged if it is based on the following arguments:

(E) the grounds of the judgment are lacking, contradictory or manifestly illogical, when the defect results from the text of the appealed decision or from other documents of the proceedings specified in the arguments for the appeal to the CSC.*

* Note: The CSC thus has the legal authority to review the way the evidence gathered in the lower courts was analyzed by those courts in reaching the appealed decision. This would include whether the evidence and its analysis was lacking, contradictory, or manifestly illogical.
 
Numbers said:
Whether or not they have paper or computer access, the CSC by law gets to see and read the relevant court documents, otherwise CPP Article 606 (E) would be meaningless, at a level even beyond the usual Italian screw-ups.

CPP Article 606 Cases of appeal to the Court of Cassation (CSC)

1. The appeal to the CSC may be lodged if it is based on the following arguments:

(E) the grounds of the judgment are lacking, contradictory or manifestly illogical, when the defect results from the text of the appealed decision or from other documents of the proceedings specified in the arguments for the appeal to the CSC.*

* Note: The CSC thus has the legal authority to review the way the evidence gathered in the lower courts was analyzed by those courts in reaching the appealed decision. This would include whether the evidence and its analysis was lacking, contradictory, or manifestly illogical.
Click to expand...

My point was a smart ass retort to Machiavelli's suggestion that the court documents are not even present at the Supreme Court. And maybe they are not...At least not in paper form.

But I'd be shocked if it's not all on computer these days. This is 2016.
 
Numbers said:
However, case law is of questionable merit in a civil law system such as Italy's.
Click to expand...

Sorry, a civil law system is based on the *interpretation* of the Code by a Supreme Organ, not by the reading of it on the part of a common citizen. The system applies a doctrine, and the doctrine consists of the jurisprudence made of case law interpretation of the code on the part of the Supreme Court.

The law CPP Art. 652 as quoted in Gialuz et al. is current as of 2013. It states that there is a binding effect of no future civil action whenever there is a FINAL judgment of acquittal with the specification "the accused did not commit the act" (among some other types of acquittal) as long as the injured party pursued, or had the possibility to pursue, civil action with the criminal proceedings.
Click to expand...

The Supreme Court (Civil branch) says differently, as I quoted their rulings.
Btw, the civl branch of the Supreme Court does not apply CPP, and interpretations by the penal branch does not have any power on jurisprudence of the civil branch. Gialuz is no jurisprudence source at all, and even your own interpretation of his explanation, as much as his exact words, are dubious.

Instead the jurisprudence that I cited, I quoted it explicitly, it is the current and valid one presented by all handbooks you find online, there is no ruling that contradicts it.

The CSC case you present is from 2006, and another from 2008. And since I do not read Italian, I am unsure precisely what the text states.
Click to expand...

Well actually the civil cases are of 2004 and quoted again in a 2006 case. I explaind what it means in a paragraph below it. The penal case about BARD is of 2008, it was a United Section ruling and was a definitive finding of guilt (there was doubt, but not reasonable).

(...)

For the second Italian text, I can't make any sense out of the English translation. It sounds like some Italian judges pretending to be philosophers and not succeeding - or perhaps succeeding very well, by being incomprehensible.
Click to expand...

The two are different quotes from the same text.

The rulings of 2004 and 2006 instead are very clear, and everywhere presented as the current jurisprudence in civil cases (no ruling contradicting them as far as I could find).
In fact you called it "relevant" and you tried to make a google translation of it:

"Criminal acquittal judged has preclusive effect in the civil action for damages only when it contains an effective and specific assessment concerning the non-existence or the fact or of the defendant's participation, and not even when an acquittal is determined by the different assessment of the absence sufficient evidence as to the commission of the offense or the attribuibilità it to the accused, and that is when the acquittal was pronounced in accordance with art. 530 Code of Criminal Procedure, paragraph 2 "
Click to expand...

But the quote of the English translation of Chieffi is also very clear, albeit you might not like its "philosohic" style.

However, this is a CSC decision from Cass. 17401/2004 and Cass. 20325/2006, before the reforms of 2006. Furthermore it mentions a specific and effective assessment of the non-participation of the accused. In fact, this is provided by the Marasca CSC verdict including the motivation report.
Click to expand...

First, there was no "reform" in 2006, and above all, second, we are talking about rulings issued by the SC civil branch, thus we are talking about two different offices, with two different law codes and independent powers. The civil branch does not apply the CPP at all, while rulings from SC penal branch do not have a power over the civil branch.
In fact Cass. 17401/2004 and Cass. 20325/2006 are unchallenged within the civl law system. There is no SC ruling that contradicts them.
Third, it would be anyway ridiculous in logical terms to speculate that the introduction of a "BARD" wording into the CPP should affect the jurisprudence of civil cases. This is fantasy and pure delusion.

Remember, also, Maresca (the Kercher lawyer) stated that it was all over last March, after the Marasca CSC panel verdict was delivered. An Italian lawyer of his skill and knowledge would not have said that if the possibility of civil action remained. He would have pressed a new civil suit.
Click to expand...

You can interpret a phrase of Maresca and his intentions the way you like. But drawing legal inference from a phrase stating his intention is a bit far fetched. The relevan point is I know the law, and whatever you cling to, you can't prove me wrong. I also know several other lawyers beyond Maresca.

So I conclude you are mistaken and presenting misleading information. You should know it is wrong because of the statements and actions of Maresca, the Kercher lawyer, since the acquittal of Knox and Sollecito.
Click to expand...

But you have no basis to conclude I am mistaken. You would need to find a Cassazione ruling that contradicts 2006 rulings, and you won't find any.

If you are convinced you are correct, you should notify the Kerchers and their lawyer so that they can continue the civil action. Please, do that, rather than spread false information on the internet.
Click to expand...

They cannot "continue" the civil action. They can start it again, if they want.
Instead, you should apologize for calling my information "false", while you have no basis of sorts to say so and disprove the validity of the civil law rulings that I quoted.
 
Diocletus said:
I'll bet they don't have Stefanoni's lab protocols, negative controls and missing amplifications.
Click to expand...

"missing amplifictions" of negative samples that were never amplified, don't exist.
Negative controls of knife and clasp can be find in the trial files at the chancellry of preliminary judge in Perugia (where they were deposited on Oct. 04. and 08).
 
acbytesla said:
Is it all on computer these days? I'm sure they have access to any and all the information.
Click to expand...

You were also sure that TMB negative test on a luminol stain is a proof that it is a substance different than blood.
You are sure of many things that fly in the face of reality.

Art. 609 Cpp says "cognizance of documents is limited to points assigned" and on limited material, and Cass. 155/2011 says SC can only check those pages and docs from the evidence file that are quoted and attached with sufficiently specific indications.
Chieffi's ruling reminds jurisprudence prevents SC from making an assessment about evidence.
 
Last edited:
Machiavelli said:
You were also sure that TMB negative test on a luminol stain is a proof that it is a substance different than blood.
You are sure of many things that fly in the face of reality.
Click to expand...

I am sure that a negative TMB test without any confirmatory test to suggest otherwise must be deemed as negative for blood. Nothing unreal about that. In fact, that is normal forensic protocol.
 
Machiavelli said:
Art. 609 Cpp says "cognizance of documents is limited to points assigned" and on limited material, and Cass. 155/2011 says SC can only check those pages and docs from the evidence file that are quoted and attached with sufficiently specific indications.
Chieffi's ruling reminds jurisprudence prevents SC from making an assessment about evidence.
Click to expand...

And yet you suggest that is exactly what Bruno Marasca did. So it appears that you are wrong ....again.
 
Machiavelli said:
Chieffi's ruling reminds jurisprudence prevents SC from making an assessment about evidence.
Click to expand...

This is the same Chieffi that said Quintavalle is a reliable witness because he pointed out Amanda had blue eyes a year later when she had been in on every newspaper and TV station in the world, despite Hellmann having heard Quintavalle and assessing that his failure to recognize Knox's photo the week of the discovery when directly shown it and asked about her, his employees seeing nothing, and him suddenly miraculously remembering he saw her a year later - all qualified him as an unreliable witness.

That is the SC reasoning about the evidence, no matter how you try to spin it. It couldn't be more blatant.
 
acbytesla said:
This seems simple to me. That there is no practical difference between 1 or 2 and therefore it is is moot...meaningless

I must be missing something as you are so good with this kind of stuff.
Click to expand...

Well my question was trying to get at whether 530 is moot (obsolete). Since M&B used 530 it would seem to be being used so what would effectively moot mean? Does that mean the kids were found not guilty using an obsolete law? If that were the case could the PGP argue they weren't acquitted at all?

I would answer that 530 is the law and the acquittal was done in a proper fashion at least to the extent 530 remains a non-obsolete part of Italian law.
 
acbytesla said:
Seriously Grinder? I can get access to King County Court documents simply by logging on.

These are judges, if they need or want some information to assist them in making a decision all they have to do is order it to be delivered...(unless we're talking about the EDFs ..lol)
Click to expand...

Actually generally you can't. If you want to read the contents of a case, you must go to the courthouse.

Mach's point was that the ISC only reviews the appeal documents which may refer to specifics of the case including evidence.

Are you basing the statement they have access on anything but your opinion?
 
Numbers said:
Whether or not they have paper or computer access, the CSC by law gets to see and read the relevant court documents, otherwise CPP Article 606 (E) would be meaningless, at a level even beyond the usual Italian screw-ups.

CPP Article 606 Cases of appeal to the Court of Cassation (CSC)

1. The appeal to the CSC may be lodged if it is based on the following arguments:

(E) the grounds of the judgment are lacking, contradictory or manifestly illogical, when the defect results from the text of the appealed decision or from other documents of the proceedings specified in the arguments for the appeal to the CSC.*

* Note: The CSC thus has the legal authority to review the way the evidence gathered in the lower courts was analyzed by those courts in reaching the appealed decision. This would include whether the evidence and its analysis was lacking, contradictory, or manifestly illogical.
Click to expand...

FIFY - the bolded section indicates that it is only what is specified in the arguments for the appeal., which I believe is what Mach said.
 
Grinder said:
Wouldn't they also have the defense appeal?
Click to expand...

Yes but if the SC is going to overturn a verdict because they disagree about an eyewitness they better have all the testimony he ever gave, like Hellmann had when he made his judgement and wrote his report.

Otherwise they are running their own personal little trial de novo based on a few tidbits from either side. Which is essentially what Chieffi did - or to be more precise - he just rubber stamped Galati because he didn't want that American witch he had seen on TV getting away with it.
 
Status
Not open for further replies.

Back
Top Bottom