Continuation Part 5: Discussion of the Amanda Knox/Raffaele Sollecito case

[RoseMontague]

Unsurprisingly perhaps, Machiavelli has chosen to omit a rather relevant part of the paragraph from which he earlier quoted.
You will note that the reasons outlined here are already specific and fairly extreme. You will also notice that the SC has ruled that the 104 measures can only be applied where the situation is EVEN MORE unusual and extreme than for 274 measures.

It only remains for me to wonder why Machiavelli chose to quote only selectively from the original text he had in front of him. I cannot for one moment think why that might have been.....

OK, now I am confused. Machiavelli has presented an argument which is not intellectually honest? Is that what you are saying here?

So this tap dancing by Migi is just another way he abuses his office. Not surprising.

 

[Bill Williams]

Thank you Mach. I will take you at your word. How is it that the UK and US have well-functioning systems which have no need of this extraordinarily widely-interpreted law? What cassazione is saying is that in any joint enterprise crime, whatever it may (the theft of a packet of sweets) the suspects can be denied access to advice in case their lawyers speak to each other. And women in jeans can't be raped either. What an absolute disgrace this system of yours is. A laughing stock. Hang on while we raise a few grand to bribe the Florence judges. There's as much chance of a just outcome that way and it will avoid the mockery of another show trial.

These laws impede the right to a fair trial. They are not human rights compliant. Italy's criminal justice system is a disgrace. It's that simple.

I should thank Mach as well. I never realized what a terrible system this is until he explained it.

Count me in as one thanking Machiavelli for this, and for Mach 2 as well.

In Italy from now on if you're suspected of ANY joint enterprise crime, not just an extreme one, you can be held without a lawyer until your first hearing, and the presiding judge does not have to even require the proper paper work justifying it.

Thanks Mach 1 for explaining this. I would have never figured this out on my own.

 

[LondonJohn]

The rulings actually - as I understand them - links the risk to the presence of multiple suspects that may "agree" a defensive version among themselves (or anyway a suspect that communicates with another suspect). Which does not imply that the defence attorney is a criminal. The attorney is a privileged contact that serves the interest of the accused, but is also a potential - obvious - source of information, because he/she knows things (related to other suspects' actions) that the suspect is supposed not to know. At least, not prior to appearing before the judge.

I take it that you haven't actually figured out that in order for this to happen, Suspect A would have to agree the version of events with Lawyer A, who would then either 1) have to act as the conduit to Suspect B (and C, D, etc), to tell Suspect B of the "agreed" version of events, or 2) would have to tell Lawyer B of the "agreed" version of events for Lawyer B to inform Suspect B.

And I suspect that you therefore haven't figured out that this would entail professional misconduct on behalf of Lawyer A (and Lawyer B if applicable), and quite possibly criminal conduct as well.

And I suspect that you therefore haven't figured out that this automatically implies that Lawyer A (and B) would have to be suspected as corrupt and capable of professional misconduct (at best) in order to suppose that separate suspects might be able to concoct a jointly-agreed version of events that was not the true version of events*.

And I suspect that you therefore haven't figured out that it takes rather exceptional circumstances for there to be a REASONABLE belief that the lawyers for the suspects might be corrupt and in cahoots with the suspects. And that these circumstances in no conceivable way could EVER apply to Knox, Sollecito, or their respective lawyers.

* Obviously if all the suspects told the truth, then by definition they would all be telling the same version of events without the need for any conduit between them...

 

[Machiavelli]

The part you "omitted" was DIRECTLY relevant - unless you have a subjective, vested interest in peddling half-truths, distortions and lies, that is....

And you didn't link to the original source in the post in which you included your quoted sections.

1) my quotes are more directly relevant thant our, because they are the conclusions, they are what comes after all your quotes (which are premises), they are what it comes after as distinctive, what makes the difference; they are the definitions of the "quid pluris" that makes the grounds be "exceptional"
2) But I also explained and summarized it into a paragraph. Shall I quote it again?

Anyway, I am ready to explain more about this "quid pluris" in a further post - which is what is explained in the links, they are there for everyone to read.

 

[LondonJohn]

OK, now I am confused. Machiavelli has presented an argument which is not intellectually honest? Is that what you are saying here?

Would I make such a claim? Me?!

No, what I'm saying *tries hard to assume straight face* is that Machiavelli merely "forgot" - quite innocently - to include (and translate) a portion of the text that points out that part of the SC ruling on the use of 104 was that its use should only ever be in circumstances that are even more extreme than listed in 274. In other words, the SC ruled that the circumstances for application of 104 are super-extreme and very unusual.

Of course, Machiavelli says that he only "forgot" to include this part because he judged that it was "not relevant" to the discussion. And I, for one, believe him wholeheartedly *muscles round mouth start to twitch violently*.

So this tap dancing by Migi is just another way he abuses his office. Not surprising.

Yes. He had no grounds for using 104 (i.e. in this case the denial of access to legal counsel) as it's defined in the code and as ratified by the SC.

He then neglected to produce the necessary documentation - a written motivation as to exactly WHY he had ordered an application of 104 rules - in Matteini's court or at any time afterwards.

And, it appears, Matteini found that to be acceptable - presumably using some sort of "logic" along the lines of: "Well if good ol' Giancarlo says it was necessary to use 104 rules, then that's good enough for me. Defence motion is dismissed. Now, how about that after-court drinkipoo, G-man?"

 

[christianahannah]

But LJ, I did not omit anything. I quoted only the relevant statments that contradict your theories, but I linked everything for you. So I urge you to try read the linked documents entirely, as well.

I point out that I already summarized your findings in a poste above, where I wrote:



So this is what I understood (from the links, which explain the SC jurisprudence on the point more o less thorughly) about the concept of exceptional and specific grounds for caution.

I have seen that you and others have translated the minutes of the hearing for the validation of arrest for Raffaele as linked below.

http://www.perugiamurderfile.org/download/file.php?id=8205

A few questions I have:

Is this document available in Italian?
Is there documents submitted by the prosecutor for the hearing available?
Are there documents for Patrick's and Amanda's hearing available?

There is mention of article 104 in the above translation. Do you know if this was also the same in Amanda's and Patrick's hearing?

 

[LondonJohn]

1) my quotes are more directly relevant thant our, because they are the conclusions, they are what comes after all your quotes (which are premises), they are what it comes after as distinctive, what makes the difference; they are the definitions of the "quid pluris" that makes the grounds be "exceptional"
2) But I also explained and summarized it into a paragraph. Shall I quote it again?

Anyway, I am ready to explain more about this "quid pluris" in a further post - which is what is explained in the links, they are there for everyone to read.

I really should stop now if I was you.

You left out important information from the SC rulings, which demonstrated that the use of 104 rulings must only be in situations more extreme and unusual than those listed in 274.

I don't care whether you think that's relevant/important or not: you're hopelessly biased and wedded to a particular *ahem* "intellectual" standpoint. To any objective observer, it's an extremely relevant/important point, since it explicitly sets the bar very high indeed for application of 104 rules.

 

[RoseMontague]

I have seen that you and others have translated the minutes of the hearing for the validation of arrest for Raffaele as linked below.

http://www.perugiamurderfile.org/download/file.php?id=8205

A few questions I have:

Is this document available in Italian?
Is there documents submitted by the prosecutor for the hearing available?
Are there documents for Patrick's and Amanda's hearing available?

There is mention of article 104 in the above translation. Do you know if this was also the same in Amanda's and Patrick's hearing?

Here is what I have....(OCR version/Italian) I may have the original non OCR Italian version somewhere if you need it.

 

[christianahannah]

Here is what I have....(OCR version/Italian) I may have the original non OCR Italian version somewhere if you need it.

Thank you. This is good.

 

[Machiavelli]

I quote again my interpretation on the point:

"Exceptional" is - both in Italian and in English - quite an unspecific word itself. It means that it is not the ordinary thing.
As for what I have read in the SC rulings, the legal accepted meaning for "exceptional" is that it must be something with a quid pluris compared to the simple ground for cautionary custody. That is, the same (usually unspecific) grounds for cautionary custody are not sufficient to apply § 3 and 4 art. 104. There must be some additional more specific reason. It must be "exceptional" in the sense that it is additional to the ordinary reasons for which cautionary custody applies, and it must be a reasons of the moment, related to the immediate needs to not jeopardize the investigation (it canot be a protracted reason).

Now, you may have a look at this book:

In google books

Just this pagereports and explains the SC jurisprudence on art. 104; it repeats all the preliminary conditions which LJ pointed out and quoted, says actually even more, explaining how jurisprudence points out what cannot be considered “exceptional” as a ground to apply that caution.
In the end the questions comes down to a “quid pluris” – a “something more” that must belong to the situation which makes the ground exceptional and specific enough for the application of par. 3 and 4., in addition to the simple arrest or cautionary custody.

And jurisprudence, in fact, enlists three specific “dangers” (“grounds”) which would make the reasons for caution “exceptional” enough for the application. So what is the “quid pluris”? This can defined by three situations (I quote from the text on google books):

Si richiede pertanto un quid pluris rispetto ai requisiti cautelari al fine di scongiurare
a) La precostituzione di una strategia comune a più coindagati
b) Tesi difensive di comodo
c) L’utilizzo di un linguaggio criptico fra più coindagati per comunicare tra loro

translation:

The “quid pluris” with respect to simple grounds for cautionary measure is required when there is a need to prevent (a danger of):

a) pre-constitution of a common defensive strategy between multiple co-suspected
b) setting of opportunistic defensive theories
c) the use of a cryptic language between co-suspects to communicate between them

A personal comment: about the cryptic language. As I read Amanda’s hand written memoir for the first time I jumped on the chair when I read about her “memory” of “bloods on Raffaele’s hands” that she says remembers, but thinks is tas “probably” “fish blood”. I felt chilled because this is exactly the kind of cryptic language which I associate to the most dangerous criminals (those who commit crimes in association) and I interpret it as pure mafia-style communication.

 

[Machiavelli]

I have seen that you and others have translated the minutes of the hearing for the validation of arrest for Raffaele as linked below.

http://www.perugiamurderfile.org/download/file.php?id=8205

A few questions I have:

Is this document available in Italian?
Is there documents submitted by the prosecutor for the hearing available?
Are there documents for Patrick's and Amanda's hearing available?

There is mention of article 104 in the above translation. Do you know if this was also the same in Amanda's and Patrick's hearing?

Some are available, but you have to pay at the cleark's office (each page). The investigation transcripts (like the Matteini hearing) however are not available. Only the court documents can be released.
The status of each document is classified "ostensible"/"not ostensible" (can be released to public - cannot).
I have Matteini in Italian and I did the translation with Clander.
I don't have the transcript of the hearing.
Documents of the prosecution, well there is the decree of arrest, and the spontaneous statement.
I don't remember as for Knox's hearing; there was no mention of art. 104 in Patrick defence submissions.

 

[LondonJohn]

And yet you still cannot seem to understand that any of these "quid pluris" examples would, by definition, require the explicit assistance of one or more corrupt lawyers?

You do understand that we're not talking about the possibility of co-accused being able to communicate either directly with each other, or even via families or any other third party, don't you??

You do understand that we are therefore only talking about defence lawyers as the only possible conduit of information between co-accused, don't you?

You do realise that - even in Italy! - lawyers are bound by a professional code of conduct to uphold the law, don't you?

You do realise that - even in Italy! - an attempt by a lawyer to pervert the course of justice by arranging/facilitating false versions of events between co-accused would see him/her disbarred and struck off, and very likely prosecuted criminally as well, don't you?

Oh, and do you think that Knox had read a book on "How to communicate in code like a Mafia master criminal" prior to writing about the fish blood?

Extraordinary. Like I said, probably time to stop digging...

 

[Machiavelli]

I really should stop now if I was you.

You left out important information from the SC rulings, which demonstrated that the use of 104 rulings must only be in situations more extreme and unusual than those listed in 274.

No, I did not leve it out: I actually said it, explained it in a paragraph (which I re-pasted more than once), and explained it then further in the posts above.

 

[Machiavelli]

[And yet you still cannot seem to understand that any of these "quid pluris" examples would, by definition, require the explicit assistance of one or more corrupt lawyers? (...)

This is your personal interpretation/deduction, but I disagree with you on this point. I find your conclusion restrictive. I don't think that would actually require a lawyer to be corrupt.

 

[Bill Williams]

[And yet you still cannot seem to understand that any of these "quid pluris" examples would, by definition, require the explicit assistance of one or more corrupt lawyers? (...)

This is your personal interpretation/deduction, but I disagree with you on this point. I find your conclusion restrictive. I don't think that would actually require a lawyer to be corrupt.

I can imagine you will find it restrictive. It's called "jail".

 

[RoseMontague]

A personal comment: about the cryptic language. As I read Amanda’s hand written memoir for the first time I jumped on the chair when I read about her “memory” of “bloods on Raffaele’s hands” that she says remembers, but thinks is tas “probably” “fish blood”. I felt chilled because this is exactly the kind of cryptic language which I associate to the most dangerous criminals (those who commit crimes in association) and I interpret it as pure mafia-style communication.

A personal comment about your personal comment. This is pure conspiracy theory (yet another one from you) silliness. The more of this you post the lower your credibility gets.

 

[anglolawyer]

This is your personal interpretation/deduction, but I disagree with you on this point. I find your conclusion restrictive. I don't think that would actually require a lawyer to be corrupt.

Yes, but if your interpretation gives rise to absurdity, it can't be the right one. Like I said, two kids acting together to steal sweets from a shop could be lawfully denied representation on your analysis. 'Exceptional' does not mean 'something more'. It means something out of ordinary experience, something in a special category, something we would not normally expect to encounter. There is nothing exceptional about two people committing a crime and nothing exceptional about murder per se.. Murder is serious, not exceptional.

On your definition, robbery with a gun is exceptional merely because it has something more than robbery without a gun. The same would apply if we replace the gun with a tooth pick.

In fact, you can give me an example of any crime at all and I will find an example with something more which, no matter how absurd, could be used to justify deprivation of legal representation.

Aren't you worried that Mignini can't find this crucial document? Isn't that suggestive of incompetence at best? The guy can't even keep a tidy office! How can he be trusted with a murder case?

 

[anglolawyer]

A personal comment about your personal comment. This is pure conspiracy theory (yet another one from you) silliness. The more of this you post the lower your credibility gets.

this is cruel but Mach, the expression is that you jumped from your chair, not on it. That's what women do when they see a mouse. Accept my apologies for pointing this out. It just made a funny image. I mean no disrespect.

 

[MDDVS]

I gave you references and even a couple of pages. Which is quite a lot.



Yes.

"Exceptional" is - both in Italian and in English - quite an unspecific word itself. It means that it is not the ordinary thing.
As for what I have read in the SC rulings, the legal accepted meaning for "exceptional" is that it must be something with a quid pluris compared to the simple ground for cautionary custody. That is, the same (usually unspecific) grounds for cautionary custody are not sufficient to apply § 3 and 4 art. 104. There must be some specific reason more. It mus be "exceptional" in the sense that it is additional to the ordinary reasons for which cautionary custody applies, and it must be a reasons of the moment, related to the immediate needs to not jeopardize the investigation (it canot be a protracted reason).



I think I understood properly. Matteini rejects a defence complaint. This is obvious and clear. Whereas she does not apply par. 3, she does not concede that Mignini violated the law by applying par. 4, on the contrary she accepts Mignini's decree as legal within his powers, and rejects the objection.



I think the PM actually referred his reasons in Matteini's hearing; there is a recording of the hearing. And apparently Matteini was satisfied with the reasons (which I guess are those cited in the SC rulings upthread).



Well everybody is entitled to their own opinions. However the defence instance about the nullity of cautionary custody was rejected by all subsequent courts. Including the Supreme Court.

Again the unjustfied deference to the opinion of corrupt courts. Why do you insist in doing it when, by your own admission, the italian judicial system is designed to fail?

 

[Machiavelli]

Yes, but if your interpretation gives rise to absurdity, it can't be the right one. Like I said, two kids acting together to steal sweets from a shop could be lawfully denied representation on your analysis. 'Exceptional' does not mean 'something more'. It means something out of ordinary experience, something in a special category, something we would not normally expect to encounter. (...)

It is not my definition. It is a apparently the definition by SC jurisprudence.
Agree that murder is not exceptional. I agree also that it is not exceptional enough even to the application of this rule. But I don't agree to your use of words to define rules, because to that extent, even terrorism is not exceptional, even organized crime is not exceptional. They are serious, but they are everyday phenomenons.
So the question cannot e put in rethoric or philosophical terms, because on some level nothing is exceptional; not even wars and genocide are, they occur on regular basis. We cannot use the common meaning of words, because that meaning is contextual and subjective; we must cling to legal terms.

Here, the word - as accepted by jurisprudence - is intended to mean the particular kinds of conditions indicated by the SC which would constitute the "quid pluris" defined by the SC as the "exceptional ground".

Aren't you worried that Mignini can't find this crucial document? Isn't that suggestive of incompetence at best? The guy can't even keep a tidy office! How can he be trusted with a murder case?

There isn't any "crucial document" which allegedly Mignini "can't find". I find it hard to belive you actually believe to your rethoric when you say things like that.