Thursday, December 29, 2022
Dr Mignini’s Book On How The Supreme Court Got Meredith’s Case So Wrong In 2015
Posted by KrissyG
1. The Fifth Chambers Reports
Dr Mignini’s legal observations on the Fifth Chambers’ written report on Knox’s & Sollecito’s final appeal fill a big information gap in this controversial legal area.
He had already written very damningly back in 2015 shortly after the Marasca court presented its oral report back in March.
That was some months prior to the written report (which was published almost three months after the official deadline). This is his first written comment on the full report.
2. The Contamination Contention
With Meredith’s body having been discovered, the pathologist Dr. Lalli, and the Scientific Police, headed by Dr Stefanoni, arrives.
Dr Mignini, the prosecutor leading the investigation, deems that it more important to preserve on-scene evidence at this point than to determine exact time of death, so priority is given to collecting samples with the body still in situ. Mignini states:
“I did not know, at that time, that, for the judges of the [2011] Perugia appeal and the [2015] Fifth Chamber of Cassation, the one that intervened after the final annulment of the judgment of the Perugia Appeals Court and the judgment of the [2014] Florentine referring court, as well as for the official defense counsel and for those “unofficial” intervenors such as Peter Gill and others, the abstract possibility of contamination and the reality of contamination could be the same thing.
That is absurd, I know, but that was exactly what was being been said. p.34”
After the 2009 trial of Knox and Sollecito, with the Massei finding a ‘guilty’ verdict, the 2011 appeal court, called-for by the defendants, of Hellmann & Zanetti, appoints its own ‘experts’, Vecchiotti and Conti. They argue that contamination is an abstract possibility, but fail to explain how such contamination could have occurred, as would be expected in a trial court.
This is on top of Zanetti opening proceedings in 2011 by asserting that ‘the only certainty is the death of Meredith Kercher’, and not least, by Hellman failing to explain his rationale – as excoriated in 2014 by the follow-up Supreme Court I of Chieffi – of why Hellmann had appointed his own experts, as is required.
The scientific illiteracy of Hellmann (a business judge) was compounded only by his ignorance of criminal law and of how criminal evidence should be weighed up.
In getting Hellmann to agree to the defence demand for ‘independent experts’ – which Prosecutor Comodi argued against, saying there were many experts for both sides already - Hellmann argues that a judge does not have sufficient expertise to evaluate the experts’ opinions.
Having achieved the appointment of Conti & Vecchiotti, the paired delivered the coup de grace: international standards were not met, contamination could not be ruled out and the DNA profile of Meredith Kercher on the knife could not be reliable.
This faulty reasoning was reversed by the 2014 Chieffi Supreme Court (Chamber I). And yet the final Marasca-Bruno Court returns to it, notwithstanding the intervening Nencini Court (with Prosecutor Crini) upholding Massei’s and thus Stefanoni’s treatment of scientific evidence as legally sound.
3. The Sample Size Contention
As Dr Mignini explains.
“Marasca of the Fifth Chamber seems not to understand the difference between ‘identity’ and ‘compatibility’ (the latter is a statistical standard which should be used in court), demanding the former and rejecting Novelli’s, to the astonishment of Stefanoni.
Likewise, claiming that the Kercher sample size on the knife was too small showed him seemingly unaware of the penal code: ‘unrepeatable findings’ is provided for in Article 103 EC. 360 cp, similar to rules for the autopsy inspection. p 279
If, on the other hand, the finding must be reproducible, as the Fifth Chamber claims, then I could have carried it out without any contradiction, in accordance with Article 108 EC 359 CPP.
The Italian Criminal Code CPP 360 allows for an otherwise minute sample size to be tested once, on the grounds that the testing itself will destroy the sample – as often happens in an autopsy, for example - with the proviso that the defense must be allowed to send its own experts to witness the testing event.
Sollecito’s witness was Valter Patumi, with Francesca Torricelli for the Kercher family. There was no Knox witness there.
Article 360 “Non-repeatable technical ascertainment
1. If the ascertainment provided for in Article 359 involves persons, objects or places which are subject to change, the Public Prosecutor shall inform, without delay, the suspect, the victim and the lawyers of the day, time and place set for the assignment of the non-repeatable technical ascertainment and of the right to appoint technical consultants.” Cpp 360 Italian-Code-of-Criminal-Procedure-CanestriniLex
Clearly, Hellmann and Marasca-Bruno, along with Vecchiotti and Conti, do not know their own criminal code when they complain the sample was ‘too small’ or ‘unrepeatable’. Mignini says:
“if it were true that the genetic test must be repeatable but it is quite clear that it is not, if only because, regardless of its quantity, there is a risk that, pending any judgment, the genetic material will be altered.
That is precisely why the Code provides for a non-repetitive finding and the Court cannot claim that, in accordance with highly questionable scientific considerations, a procedural rule provided for by the law can be eliminated.”
Ex Judge Marasca
4. The Typographical Error Contention
Mignini’s frustrations are compounded by Marasca-Bruno’s inability to spot a simple typographical error.
In typing up its late-2014 motivational report, Nencini’s Appeal Court upholding the guilty verdicts inadvertently attributes a Y-chromosome (obviously male) to a female.
Such a proof-reading error requires a simple correction, an appeal is not necessary. However, Marasca choose to create a big scandal out of it:
“There are even obvious material errors, i.e. oversights, which can frequently be found in an elaborate report, such as the attribution to Sollecito as well as Meredith, of genetic traces in the famous knife referred to in the finding n. 36 contained in the Florentine judgment.
It is clear that the author of this crime report inadvertently wrote “Sollecito” instead of “Knox”. It was a simple clerical error, but the Fifth Chambers, in an attempt to dramatize the negativity of the sentence of Judge Nencini, presented it as one of several flagrant errors in the “motivational fabric”. p 280
5. The International Protocols Contention
Mignini makes similar criticisms about Marasca’s treatment of so-called ‘international’ protocols:
‘Genetic investigations were acquired in breach of the rules established by international protocols’, the Court expresses with the logical characteristic of ‘circular reasoning’ in p. 33 of the judgment, where it also adds that the obsolete principle of ‘judex peritus peritorum’* should be revised.
If this is not a “break” in the substance, regardless of the objectionability of the assumption, then it can no longer be understood how it can be said of “legitimacy”, whose assessment is left to the Supreme Court, and “merit” instead to the judges, specifically “of the merits”.
And what are these international protocols? This is the penalty, you have to be precise, you can’t be vague, as the fifth section are. p 277
*[“The judge is the expert of experts “. The judge, in fact, is not bound by the result of the expert’s report, since he can deviate from or completely disregard the conclusions reached by the expert. Legal Wiki]
6. The Inadequate Evidence Contention
Mignini explains how it is not the legal prerogative of the Supreme Court of Cassation to set aside evidence found by lower courts.
“Thus, the profile relating to the assessment of evidence for the purposes of the decision is not known by the Court of Cassation.
It is legally concerned only with the fairness or otherwise of the process which led to the verdict and, if it finds, in particular, a defect or defects of a logical nature which vitiated the decision, it must set aside the defective judgment, and refer the substance of the case back down to the referring court.” p 272
Mignini states wryly of Marasca-Bruno:
“Never has the definition of the limits of the Court’s knowledge of legality been more correct in the preamble, and so much disregarded with the same determination in the body of the reasoning of the judgment that has in no way sustained that correct premise.” P272
If you look at the Marasca-Bruno report you can see its faulty reasoning in respect of repeatability or replicability of genetic sampling (compare and contrast it with the aforesaid Italian Criminal Code 360):
“Also, the traces observed on the two items, which the analysis of has produced outcomes that will be discussed further, were very small (Low Copy Number; with reference to the hook CFR.Ff222 and 248), so little that it didn’t allow a repetition of the amplification¸ that is the procedure aimed to “highlight the genetic traces of interest in the sample” (f. 238) and attribute the biological trace to a determined genetic profile.
On the basis of the protocols of the matter, the repetition of the analysis (“at least for two times” testimony of Major CC Dr Andrea Berti, an expert nominated by the Appeal Court, f. 228; “three times” according to Professor Adriano Tagliabracci, technical adviser for Sollecito’s defense, f.126) is absolutely necessary for a reliable analysis result, in order to marginalize the risk of “false positive” within the statistical limits of insignificant relevance.” Marasca-Bruno
This is the Chamber V reasoning – if you can call it that - despite CPP 360 allowing a one-off testing, and Taggliabracci’s claims of the evidence testing being ‘suspect-centric’ twice being dismissed in the lower courts, both by Massei and again by Nencini.
When PCR testing is carried out, the analysis is by computer. Stefanoni could not possibly have known in advance whose DNA profile or what effluorescant peaks (RFU’s) the machine readings will throw out.
Ex Judge Bruno
7. The Use Of “Compatibility” Contention
Likewise, the term ‘compatible’ to or with - or otherwise - is used in all criminal jurisdictions and is based on statistical probability as the scientific method assesses the probability of getting any particular scientific result by chance.
Hence, Nencini states the probability of the genetic profile 165B not being Sollecito’s and as calculated by Prof. Novelli, as:
“The probability that a random individual from the population would also be compatible (the inclusion probability) [245] was calculated, and came out to be equal to 3.05592 x 10^-6, which is about 1 in 327 thousand.
This computation is considered to be extremely conservative, since all of the allelic components are taken into consideration together with their frequency in the reference population.”
(Pages 15-17 of the technical report submitted at the 6 September 2011 hearing before the Court of Assizes of Appeal of Perugia)”
Yet Marasca-Bruno appear completely ignorant of this convention, and write: “the outcomes of the analysis don’t arrive at a firm identity result, but merely a compatibility one.”
8. The Limits of Jurisdiction Contention
Mignini further notes of the (final) Fifth Chamber:
“Another disconcerting aspect was the fact that the Court, although only dealing with the Florentine judgment [Nencini] under appeal, wanted to revisit the whole process, even and perhaps above all those aspects that were now definitively covered by the judgment of the First Chamber, as well as the investigations on which the Court of Legality, in the doubly terminating seat moreover, could not say anything, also because it did not have the relevant acts….
“in p. 23 of the judgment, the V Chamber speaks of an “objectively wavering course” of the trial…” p 273
“[It was] anything but wavering. In a system of three sets of proceedings, the Kercher process indeed had an absolutely uniform decision-making content, with the exception of the Perugian appeal [Hellmann] and the last judgment. [Marasca-Bruno]” p 274
“The First Chamber [Chieffi] for its part had rightly taken into account the actions of the experts Conti and Vecchiotti, criticizing them with embarrassing expressions. And the decision of the First Chamber [Chieffi] was final and unassailable.
On the other hand, the Fifth Chamber, which intervened only after the order for reference, considered that it should reconsider everything, and “objectively” disprove even the judgment, which was also final, of the First Chambers.
The vulnus [wounding] of the judgment of the First Chamber is perhaps the most disconcerting aspect of the final judgment.” p 274
9. The Rudy Guede Contention
As well as the issues with the genetic testing, contamination and compatibility, Mignini explains how Marasca-Bruno gets it wrong about Guede in the following passage:
“In p. 28 of the judgment, the Court states that, in the course of the Peruvian appeal, Guede failed to be examined by the defendants.
But at the hearing on 27 June 2011, this was not the case, because although it is true that Guede did not at first intend to answer the questions of the advocate Bongiorno, Sollecito’s defender, on the murder of Kercher (see pp. 18 and 19 of the minutes of the hearing of 27.06.11 before the Court of Assizes of Appeal of Perugia), however then he faced the questions addressed to him by the lawyer.
From Guede’s own memorandum:
‘…finally I hope that sooner or later the Judges will realize my total estrangement from what was a horrible murder of a wonderful girl such as Meredith by Raffaele Sollecito and Amanda Knox. Signed. Rudy’. P 276.
At the Hellman appeal session, Rudy specifically confirmed this letter and its contents!
10. The Referral-Back-Down Contention
Dr Mignini holds that Guede’s claim alone makes it a legal imperative that the case should be referred back down to a merits court, even if the Knox-Sollecito appeal is upheld, as it was.
[Coming soon: another post, on Mignini’s view of the press and the media.]
Posted by KrissyG on 12/29/22 at 12:32 PM in Hoaxes Sollecito etc
Comments
Lovely work. Clear as a bell. Dr Mignini repeatedly explains why as a justice operative still at work within the system he can only take his book and interviews so far in Italy even now.
He sure is managing to get Italy intrigued and hungry for more.
James R has a great post in draft that essentially sums up what was left out - what might make it into the forthcoming English-language edition of the book.
These are five mysteries, the subjects of undying Italian buzz, which I am sure all English speakers would be delighted to see publicly resolved.
1. How did the Fifth (Domestic Disputes) Chamber get assigned this, its one and only murder case? Was this Bongiorno using some wise-guy ties?
2. Why did Bongiorno’s appeal document for Sollecito differ so radically from Dalla Vedova’s appeal for Knox? It really reads like the intention was to drop Knox in the soup and see Sollecito home free - well, back down to the Nencini court with enough quibbles to make sure he got off.
3. Why on the evening of the oral presentation late in March 2015 was there a sudden delay of several hours? Was this when the President of the Republic as head of the justice system dictated to the court what the US would be happy to see as an outcome?
4. Why did Bongiorno have a conniption when it was announced that both RS and AK were free to go? Did she see that as a bridge too far, the seeds of a cloud that would hang over the pair for years to come?
5. Why did Bruno “fall ill” during the drafting of the report? Had he downed tools because of the nonsense he was being forced to write which he knew the entire legal community would see as a legal joke?
Were you a hostage, Bruno?! If so, blink twice…
Posted by Peter Quennell on 12/29/22 at 10:39 PM | #
The DNA in 36B (from the blade of the knife) was Low Copy Number.
However the DNA in 165B (from the hooks of the bra clasp) was not. It was over 5 nanograms (5.775, or 5775 picograms), and even if Sollecito’s contribution to the mix there, at it’s lowest, was in a ratio of 1 : 10 (according to Professor Tagliabracci, Sollecito’s DNA expert) then his DNA was still not LCN. As a matter of simple arithmetic his proportion on a ratio of 1 : 10 means that the quantity of his DNA was over 577 picograms, well over the 200 picograms as the guideline below which we can talk about LCN DNA.
It is only with LCN that the guidelines recommend re-amplification of the sample,for a full repeat of the analysis.
As it is, the independent experts could only identify 4 loci (out of the 15 to be found in the autosomal (the nuclear DNA unique to an individual) profile) where they said there had been a mistaken interpretation. But that still leaves sufficient for a very probable identification of the unique profile. To top it off, the 16th chromosome (the Y haplotype - indicative of gender - and inherited through the male line from a common male ancestor) had a full range of matches in it’s 17 loci.
The statistical probability that the profile was not that of Raffaele Sollecito (and that, as to the Y haplotype, some distant male relative of his, who just happened to share a significant, and sufficient, number of the same autosomal markers, was in the cottage on the night of the murder, rather than Raffaele) is so exceedingly low, that it can be accepted that his DNA was on the bra clasp.
As for 36B the guidelines would recommend a repeat because it was Low Copy. That would not be possible as Stefanoni used all the DNA to increase the chances of finding a profile. The result was astonishing, and justified her decision. Of the 15 autosomal loci she got a match in 14 and a half of them. In saying that there were matches we are saying that the STR repeats in each allele in a locus (there are 2 to a locus) (and other than for one allele) were identical with Meredith’s profile. That is, in 29 out of 30 (30 plus the sex chromosome is a complete genetic profile, or fingerprint as it used to be known).
The statistical improbability of any of these STR matches being randomnly produced, and even, for it to be problematic, in 4 of these loci, which is a total of 8 numbers, let alone in just about all 30, is mind blowing. You would have a better chance of winning a National Lottery.
Furthermore the loci (which can be tagged and identified) appear in sequence on the DNA thread, the sequence being different for each individual. And there is a complete match there as well.
Repeats are recommended as a guideline, but obviously they are not always necessary. For any court to elevate the recommendation into some sort of gold bar standard in all circumstances, in order to exclude the results as being in any way relevant, is just drivelling nonsense.
But that is precisely what the two acquitting courts did. Incompetent or corrupt? You decide.
Posted by James Raper on 12/30/22 at 01:36 PM | #
James might agree to add a key point to his short and precise take which Hellman in 2011, Marasca in 2015, and those myriad American deniers who signed up with speakers’ bureaus from 2012 for $10,000-plus a talk, always leave out.
When doing her DNA collection & lab work, Dr Stefanoni always had experts defense witnesses sitting and observing right there. So. How many complaints did they record? None.
(The deniers incessantly say even now that only Guede’s DNA was found in Meredith’s room so case closed. That does not guarantee that none of AK & RS was ever there. First, not every inch was swabbed - some areas were instead dusted for prints. And second, there was an OBVIOUS clean-up, and very little of Knox’s DNA was found anywhere in the house - including none at all in her own room.)
Posted by Peter Quennell on 01/01/23 at 04:36 PM | #
Hi, Pete
Well, I do not know that defence experts were present for every test. However they were certainly given the opportunity to be present for tests that would involve the destruction of the sample, and that was the case in respect of samples 36B and 165B.
In his book Mignini names the experts present for the test on 36B. He did not do the same for 165B which lends credence to my belief that although the defence were given due notice none of the defence experts turned up.
As for 36B Mignini does make some further points.
Meredith’s reference DNA profile was analysed in the lab on the 6th November. The knife was swabbed and the sample from the swab analysed on the 13th November. In the intervening week there were 103 other findings from samples in the case (and from other files) analysed in the lab and Meredith’s profile did not appear in any of them. That, the negative controls, and the fact that the analysis was carried out in front of experts for the defence, all make it extremely unlikely that 36B was the consequence of accidental lab contamination.
As for contamination prior to the lab analysis, the opportunities for that were extremely limited. In fact, entirely within the realms of mere speculation.
Meredith had never been to Sollecito’s apartment. All the forensic operatives who went to his apartment on the 6th Nov had never been to the cottage. They all wore gloves and shoes. The knife was placed inside a bag and then into a folder and taken back to the police station where the folder was given to Gubbiotti.
Massei -
“Therefore, with those gloves on [ed : a pair of new gloves], he removed the knife from the bag and put it inside a box that he sealed with scotch tape. He specified that the box had previously contained a “desk diary” and no other items. The box was then sent, along with other findings, to the Scientific Police in Rome.”
There was not much opportunity there for the contamination of the knife with Meredith’s DNA, even though Gubbiotti had been in the party which had visited the cottage on the 4th Nov. He had worn gloves then, as they all had. Contamination could, hypothetically, have occurred prior to collection of the item. Could Knox have touched Meredith, shaking hands with her, say, and deposited Meredith’s transferred DNA on to the blade of the knife? How often does one hold a kitchen knife by the blade? If one were to do this, one would think pressure would be required so as to avoid any accidents with it. On the hypothesis that this could be the case, where is Knox’s DNA? Absent. There was not even the suggestion of another profile.
Posted by James Raper on 01/02/23 at 05:46 AM | #
Hi James, more depth still. Re witnesses I’ll see if I can get the cumulative proof and the wording of the rule for us. Witnesses had to sign off each time, so its right there on each of the test results. This was the reason the bra clasp took so long to collect: gaming the rule by the defenses. (FAO then twisted the videos.)
Posted by Peter Quennell on 01/02/23 at 03:34 PM | #
As to the “Rudy Guede Contention” at the end of Krissy’s article, I would like to introduce some clarity.
Yes, Guede did appear at the Peruvian Appeal, and, yes, he was cross-examined by the defence lawyers. Guede’s own conviction, for murder “in complicity with others” was already a definitive conviction by the Supreme Court by then.
Guede’s appearance was so that he could testify as to the contents of a letter he had written to his lawyers concerning allegations that the prison snitch Alessi had made against him. He confirmed the authenticity of the letter and denied the allegations vigorously.
The letter concluded -
“I hope that sooner or later the judges realize my complete lack of involvement in what was a horrible murder of Meredith, a lovely wonderful young woman, by Raffaele Sollecito and Amanda Knox.”
Here Guede is obviously expressing his opinion. It can not be taken as the testimony of an eye witness, be it Guede was definitely there at the time of the murder. He was given the opportunity by Bongiorno (Sollecito’s lawyer) to tell the court what had actually happened. The exchange was as follows -
Bongiorno : “I believe it is my right to at least ask Mr Guede whether, after years in which we pursued it, if he wants to tell us the truth about this murder.”
RG : “May I respond? Well, since this letter has been read, I think I’m here today to answer Mario Alessi’s false statements in criminal proceedings. And therefore, just as is written in the letter everything I had to say I have already told the judges, already told my lawyers, therefore I don’t plan on answering this topic.”
Bongiorno : “Therefore you don’t plan on answering?”
RG : “Yes.”
I am afraid that Guede’s answer here renders the accusation, in so far as it might amount to evidence, and certainly in so far as it implicates Sollecito, as inadmissable because he clearly indicates that he refuses to accept cross-examination on what happened that night, and that includes the involvement of the two he has just accused.
Dalla Vedova (Knox’s lawyer) then had a go, but did not get very far. However the following exchanges are interesting.
Vedova : “Well, why did you write it?”
RG : “ I wrote it because it was a thought that has always been in my mind.”
Vedova : “But therefore it is not true ?”
RG : “No, it is absolutely true.”
———————-
RG : “If I am permitted one final word, you see, the problem is this; it’s not as though there is my truth, or the truth of Tom or Dick or Harry. There is only one truth; the one I lived through that night, the one I have always described, that’s all.”
It is certainly arguable that he was cross-examined here, at least as to the truth of what happened that night. The truth is in all of the statements that he had ever made, to the police, during his own trial and appeals etc.
Again the trouble is that we do not get, in any of that, a firm ID of the presence at the cottage of Knox and Sollecito. All we get is that he heard a girl’s voice that sounded like it could be Knox, and afterwards he saw a girl with “flowing hair outside the cottage etc.
Nor do we get anything different in the self serving kindle book he has published since his release from prison.
So what we get from Guede is his opinion (he can surely do better than that since he was there that night) and innuendo. Frankly I never expected anything more from him, and that for an understandable reason. No progress was ever going to emerge from a further referral.
Posted by James Raper on 01/02/23 at 04:09 PM | #
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