Tuesday, November 10, 2015

A Critique In Five Parts Of The Fifth Chambers Motivation Report By Judges Marasca And Bruno #3

Posted by James Raper



Image is of busy Rome at night

The Fifth Chambers Motivation Report

I continue critiquing the final 34 pages of the Motivation Report, the decisions and verdict parts.

My first post can be read here and the second read here.  A full translation of the Report can be read here.

Traces in the Murder Room, the Small Bathroom and the Corridor

A selection of quotes from the Report -

“Total absence of biological traces attributable with certainty to the two defendants in the murder room.”

“An insurmountable monolithic barrier on the path taken by the fact finding judge.”

Selective cleaning - “an hypothesis that is patently illogical”

“Selective cleaning not capable of escaping detection by luminol is, for sure, impossible”

It follows, of course, that if the knife and bra clasp have no probative or circumstantial value (effectively rendered inadmissible as far as the incriminating traces on them are concerned) then there are no biological traces attributable to Knox and Sollecito in Meredith’s room. However it is an exaggeration to present this as an insurmountable monolithic barrier to the fact finding path.

Marasca-Bruno misrepresent and trivialise what was undoubtedly a manipulation of the crime scene (i.e the cottage) by the removal of traces of blood, and in this limited sense “selective”, by insisting on using the word “selective” across the board, and in the main to refer to removal of DNA, in both a derogatory and confusing manner and to sidestep the real issue.

The removal of traces of blood, whether selective or not, is not capable of escaping detection by luminol, as they appear to explicitly acknowledge.

Therefore the comment that “selective cleaning” is an hypothesis that is patently illogical is patently deceitful and unworthy of their station as Supreme Court judges.

Having just done a bit of misrepresenting themselves Mascara-Bruno then claim to have unearthed “an obvious misrepresentation of evidence” - presumably by judges previously involved in the case. They say that the SAL had excluded (because of the TMB test) that the luminol enhanced traces were of an haematic nature.

This, of course, is a manifest misrepresentation. TMB is a specific presumptive test for blood. However, that the TMB testing was negative (no result) does not exclude that the traces were haematic in nature, even if the presumption must be that they were not.

They then criticise Nencini -

“Not only that, but it is patently illogical, in this context, the reasoning of the fact finding judge, who reckons being able to overcome the defensive objection that the luminescent bluish reaction generated by luminol can be produced by substances different from blood (for instance leftovers of cleaning detergents, fruit juice and many others), by arguing that the reasoning, while theoretically correct, has however to be contextualised, meaning that if the fluorescence occurs at a place where a murder occurred, the reaction cannot but be connected with haematic traces.

The weakness of the argument is such, already at first sight, that it does not require any confutation, since to reason in that way one should also surmise that the house on via della Pergola was never the object of cleanings nor was a lived in location.

This observation hence allows us to categorically exclude that those traces were made of blood and wilfully removed in that circumstance.”

Oh dear. What is this Court of Legitimacy doing?  Cherry picking, misrepresenting the evidence, entering into a discussion of the merits in line with desperate defence submissions, and drawing conclusions on that basis, that’s what.

I have refrained so far from bringing under discussion glaring omissions of evidence for the reason that I am responding to argument.

However it’s time for the gloves to come off because the above is simply unacceptable.

Reading through this report one gets the impression that Marasca-Bruno think it is sufficient that they are only responding to the Nencini Report and that it is sufficient to pick holes here and there, as if they were marking a student‘s exam paper, and with the defence submissions as a model answer. That is manifestly inappropriate, even for a Court of Legitimacy.

So here are other reasons to support Nencini‘s contextualising.

1.  If the luminol fluorescence was due to non-haematic substances such as bleach, fruit juice etc ( due to the fact that the cottage was lived in) then it is remarkable indeed, since the investigators could not see what they were looking for, and therefore where to spray, and therefore sprayed everywhere in the corridor and elsewhere (but not in Meredith’s room, it seems), that fluorescent patches did not appear in smears all over the place but instead were limited to and grouped in specific places, and in a specific way, that is, in the shape of footprints.

2.  There were 4 obvious bare footprints located by the luminol and 3 of these were of a shape and size attributable to a woman - compatible with Knox in fact. One was in Knox’s bedroom, the other two in the corridor, that is, between Knox‘s room and Meredith‘s room. The two in the corridor contained Meredith’s DNA.  It is not possible to obtain DNA from bleach or fruit juice etc.

3. The 4th was compatible with Sollecito and the bloody print on the bathmat in the small bathroom.

4. The luminol hits took place on the 18th December whereas the murder occurred on the 1st Nov. The hypochlorite in bleach responsible for luminol emitting light evaporates naturally after just a few days and therefore bleach as a source for the fluorescence can be excluded.

5.  If the fluorescence was due to the peradoxise in fruit juice or other vegetable matter then there should at least be some rational explanation as to why Knox had such substances on the sole of her foot, and why does the peradoxise not show up where she had not stepped in it? What would be the source for these substances and how would they have got there? No explanation has ever been advanced.

6.  As already mentioned the TMB tests on the luminol hits do not categorically exclude blood. Indeed TMB applied after luminol is less likely to bring up a positive result because the chemical reaction for both applications is the same, and luminol is far more sensitive than TMB. That was made clear by, amongst others, Dr Gino who was in fact an expert witness for the defence.

All in all, given the considerable quantity of blood in Meredith’s room, and the fact that it had certainly been tracked outside of her room, visually obvious in the small bathroom, Nencini’s “contextualizing” is not at all illogical. It is plain common sense.

Indeed relevant observations here - before I leave the topic - are that there were no visible connecting bloody footprints between Meredith’s room and the bloody footprint on the bathmat in the small bathroom, and whilst there was blood on the inside handle of her door, there was none on the outside handle, although the door was closed and locked.

When discussing the relative merit of presumptions arising from the luminol and TMB tests, context and the trial evidence are everything. If Marasca-Bruno are relying on some other source of information, then they should - if they are acting in good faith - have disclosed this.

I will leave the last word on this to Nencini, who opined that the defence attempts to argue that the luminol hits were the consequence of a non-haematic source were “from an objective point of view a remarkable exercise in dialectical sophistry rather than trial evidence on which any judge might base reasoning that would be beyond criticism.”

The Selective Search for Other Logical Inconsistencies

“Another big logical inconsistency” is the explanation for why Meredith’s cell phones were removed; if to prevent them ringing, then the goal could have been achieved by switching them off or removing the battery.

OK, point taken, but if that goal could have been achieved simply by switching them off or removing the battery, then why take them with them? The answer, if the perpetrators were thinking straight, would be that in switching them off or removing the battery, the perpetrator could have left his fingerprints on them.  So they would have had to take them anyway. So why bother with the manipulation? A logical inconsistency?

Marasca-Bruno return to the Prosecution’s argument on motive at the Nencini appeal. We can recall that Crini had suggested that there could possibly have been an argument between Meredith and Knox over Guede’s use of the large bathroom. M-B say that the reason for a quarrel could certainly not have been this, as such an incident is not referred to in Guede’s evidence.

Marasca-Bruno argue that the hypothesis of the theft of the money and credit cards that Meredith would have blamed Knox for is illogical and contradictory, given that Knox (and Sollecito) were acquitted of the charge.

OK, but Nencini was not seeking to re-convict them. The hypothesis was based on trial facts and has a high degree of probability even if it did not reach the bar of “beyond a reasonable doubt”. Meredith’s credit cards and rent money were never recovered.  He was simply looking for a plausible reason for a quarrel - on the basis of what Meredith would have thought – whether or not Knox was the responsible party. Nothing illogical or contradictory in that.

Marasca-Bruno maintain that it is arbitrary to argue, just because Knox and Sollecito were at Sollecito’s flat viewing a movie, taking light drugs and having sex, that they were later at the cottage for a reason which included a sexual motive and destabilized by drugs.

Marasca-Bruno maintain that there was another investigative omission in the failure to analyze the content of the cigarette stubs (presumably for drugs?) or to ascertain the biological nature of the trace, but just to go for a DNA test, on the basis that such tests would render the sample unusable.

OK, but I am not sure that was the basis for not conducting the further tests. Establishing whether or not Knox and Sollecito had smoked a reefer, or a cigarette whilst under the influence of drugs, at the cottage, at some time, is really not that important. The biological nature of the trace was obviously saliva whether or not it contained drugs.

“And all this was done with the brilliant result of delivering to the trial a totally irrelevant piece of information”  ……[given that the cottage was where Knox lived and where Sollecito “hung out”.]

Irrelevant as it turned out, I agree. It seems a bit harsh to criticise the DNA test though. I am sure that M-B would have been ecstatic if the mixed trace had turned out to be Guede and an unknown, rather than Knox and Sollecito. And wasn’t the trace postulated as a source for contamination of the bra clasp?

A Few General Remarks

Get a load of this -

“It is, surely, undeniable the interpretative effort displayed by the fact finding judge in order to remedy the unbridgeable investigative gaps and the significant shortfalls of evidence with shrewd speculations and suggestive logical arguments, even if merely assertive and apodictic.”

As we are discovering, “shrewd speculations and suggestive logical arguments, even if merely assertive and apodictic” is exactly what Marasca-Bruno are up to.

What investigative gaps and significant shortfalls of evidence are they talking about? Have we come across any yet? Anyway I will come to discuss this and other matters raised by the Report when I discuss the sufficiency of the evidence at the end of this critique.

Marasca-Bruno then assert (to paraphrase) that fact finding is a task pertaining exclusively to the fact-finding judge, and not up to the Court of Legitimacy. The Supreme Court has to limit itself to whether the fact-finding judge’s reasoning is compatible with common sense and within the limits of an acceptable latitude (law cited) as well as compliant with the limits of evidence.

That’s right. Remember that.

“Faced with missing, insufficient or contradictory evidence, the judge should simply accept it and issue a verdict of acquittal, according to Article 530, section 2 of the Italian Code of Criminal Procedure, even if he is really convinced of the guilt of the defendant.”

Note the surprising inclusion of “missing” evidence, although M-B have merely been speculating wistfully about that and, for obvious reasons, it is not referenced in the wording of Article 530.

Marasca-Bruno then spend far more words than is necessary on Nencini’s mistake of referring to Sollecito’s DNA being found on the knife blade.

There is then a bit of sense but a lot of pompous waffle about the “beyond reasonable doubt” standard.

“It is certainly useful to remember that, taking for granted that the murder occurred in via della Pergola, the alleged presence at the house of the defendants cannot, in itself, be considered as proof of guilt”

This is the precursor for what comes a bit later.

Marasca-Bruno note that there is a difference between “passive behaviour” and “positive participation”.

“It is indisputedly impossible that traces attributable to the appellants would not have been found at the crime scene [ed: by which they mean “the murder room”] had they taken part in Kercher’s murder.”

This is not a remark but a dogmatic assertion which is patently unconvincing. Had Knox and Sollecito been -

    (a) egging Guede on to a sexual assault
    (b) exhorting him to finish her off
    (c) whether with his own knife or one that was handed to him,

then it is improbable in the aforesaid scenarios under (a),(b) and (c) that they would have left traces, but in the event of any one of the aforesaid (a),(b), and (c) they would be participating positively in the commission of the crime, and hence as guilty as Guede.

So, the assertion is not just dogmatic but manifestly illogical.

The Presence of Amanda Knox

“With this premise, with regards to Amanda Knox’s position, it can now be observed that her presence in the house at the scene of the crime is considered an established fact from the trial, in accord with her own admissions…………….on this point the reliability of the judge a quo is certainly to be subscribed to.”

Developing this affirmation, Marasca-Bruno hold that she was there at the time of the murder but in a different room.

“Another element regarding her (presence) is represented by traces of mixed DNA, her’s and the victim’s, in the small bathroom; an eloquent confirmation that she had come into contact with the latter’s blood, while the biological traces belonging to her are a result of epithelial rubbing.”

Also:

“Nevertheless, even if attribution is certain, the trial element would not be unequivocal as a demonstration of posthumous contact with the blood in circumstances where she would be attempting to remove the most blatant traces of what had happened, perhaps to help someone or deflect suspicion from herself, and thus entailing her certain direct involvement in the murder…….her contact with the victim’s blood would have occurred after the crime and in another part of the house.”

I will comment on this later.

As regards the false accusation against Patrick Lumumba - 

“It is not understood what pushed the young American to make this serious accusation. The hypothesis that she did so to escape the psychological pressure of the investigators appears extremely fragile……………….nevertheless the calumny in question also represents circumstantial evidence against her in so much as it could be considered as an initiative to cover for Guede, against whom she would have had an interest to protect herself due to retaliatory accusations against her. All is underpinned by the fact that Lumumba, like Guede, is black, hence the reliable reference to the former, in case the other was seen by someone, coming into or going out of the flat”

Yes, indeed, but despite a clear run in to the try line M-B still manage to drop the ball. Nencini had no doubt that it was not just an initiative to cover for Guede, but also an opportunity to deflect the investigators from ascertaining her active participation in the murder. Lumumba, after all, would not be able to provide the investigators with any information on that score, or indeed about any others that might have been involved. M-B fail to mention that.

***

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Comments

Re: “reasons to support Nencini‘s contextualising”.

“2. There were 4 obvious bare footprints located by the luminol and 3 of these were of a shape and size attributable to a woman - compatible with Knox in fact. One was in Knox’s bedroom, the other two in the corridor, that is, between Knox‘s room and Meredith‘s room. The two in the corridor contained Meredith’s DNA.”

I never knew that (or I’d forgotten it). Presumably M-B leave it open that the footprints could belong to either of AK’s totally absent flatmates,  Filomena or Laura. Why not? If you’re intent on constructing a grand ‘Alice in Wonderland’ scenario why worry about each trifling impossibility?

Posted by Odysseus on 11/10/15 at 04:21 PM | #

More great work, James. (It was my mistake about the knife traces in my last comment.) Your description of the Luminol evidence is excellent. This seals the deal. Context and common sense and Luminol itself acting on blood showed Knox left 3 bloody footprints in the house that had been wiped away. But Luminol revealed them. She was there walking in Meredith’s blood. Yet she joins exoneree events and thinks her family believes her.

Posted by Hopeful on 11/10/15 at 06:49 PM | #

Superb, surgical destruction by James Raper of Marasca/Bruno and their bloated balloon of excrement masquerading as a motivation report.

Looking forward to your expansion on the MB explanation of Knox’s possible innocent post mortem contact with Meredith’s blood in another part of the house. I wonder how Messrs Bruno and Marasca sleep at night?

Posted by davidmulhern on 11/10/15 at 09:07 PM | #

The knife is interesting. It has an active social life for innocent and convivial purposes but couldn’t be taken out for murder? Meredith’s DNA on the blade isn’t denied but starch grains would have soaked up her blood if it had been used in her murder. Why couldn’t the starch grains have been introduced to the knife post murder cleaning? Too macabre to imagine such respectable students reusing a murder weapon for food preparation? More seriously - these critiques, together with comments and links I have been directed to, are exploding any myth that reasonable doubt could, or should, have been applied.

Posted by YorkshireLass on 11/10/15 at 09:39 PM | #

There are a number of Italian breads, consumed and bought everyday in Italy - including ciabatta and velletri - which have a dusting of flour/starch.
The simplest thing in the world for this starch to drift around the kitchen and drawers etc.
Has any common sense thinking, let alone comphrehensive thinking, been engaged for this report?

Posted by SeekingUnderstanding on 11/11/15 at 02:05 AM | #

Excellent! Thank you James. Yes, the luminol prints are indisputable proof that both Knox and Sollecito were at the crime scene when it happened and were walking around in Meredith Kercher’s blood. That evidence alone would be enough to convict in any US or UK court and would easily result in a life sentence without parole. And then when we add the rest of the overwhelming evidence, all juries would have unanimously convicted them. IMHO, if all of this had all happened in the US or the UK, the two killers would have been vilified by the media and there would have been no support for them at all. It would have been an open and shut case in and out of the news very quickly. Thank you again.

Posted by Johnny Yen on 11/11/15 at 12:00 PM | #

Nicely done James.  You see through the B.S.

1. You are right, B/M do ignore the most obvious motivation for the false accusation: to cover up her own involvement.  Hellmann did the same thing, blaming the non-existant ‘‘brutal interrogation’‘.

2. If B/M establish (partly through her own statements), AK was there, wouldn’t that mean that every story she told since was a lie?  The most obvious reason being to avoid admitting her own involvement?!

3. B/M hypocritically condemn Nencini all the way as illogical, but they are the ones bending over backwards to find any error or grounds to throw the case out.  A little projection here?!

4. About the footprints in the hall:

Knox has made the argument several times that the footprints in the hallways weren’t blood, and hence irrelevant to the crime.  She says they could have been a cleaning solution, or bleach.

Okay .... to raise the obvious question, why are AK/RS walking around with bleach on their feet?

Posted by Chimera on 11/11/15 at 03:51 PM | #

If Nencini’s logic is illogical, my name is Alice in Wonderland…. Projection indeed!

Posted by SeekingUnderstanding on 11/11/15 at 07:15 PM | #

Perhaps AK and the other residents of the house should just be asked when the last cleaning of the corridor took place. If prior to the murder then surely traces of Meredith’s footprints/shoe prints would have been found in cleaning products as her bedroom and the shower room she used were in that precise area. As they weren’t there any cleaning products would have to be used post murder and AK has never said that she arrived back at the cottage and began to clean the floors.
Thanks SeekingUnderstanding for the bread comment, it can be scientifically proved that bread flour will float around, unlike DNA!

Posted by YorkshireLass on 11/11/15 at 08:07 PM | #

On the possibility of bleach, James did explain (and the Scientific Police did testify) that it decays, as much discussed on the PMF forums.

Had there been any picked up and spread around by bare feet, not exactly an everyday occurrence, it would have been long gone by the time the luminol was applied.

On this at trial in 2009 the defenses had no comeback. Nor did they explain away this one.

http://truejustice.org/ee/index.php?/tjmk/comments/Tips_For_The_Media_in_fact_theres_far_more_evidence/

Mainly they tried to convince the judges that outside Meredith’s bedroom there was no “there” there.

Who swallowed their arguments, hook line and sinker?

Only Hellmann, Zanetti, Marasca, and Bruno - four “non murder case” judges with zero experience of DNA who heard and read Bongiorno at great length twisting things.

In March, the Perugia and Florence prosecutions were meanwhile several hundred miles away. Who did they have to rely on to convey their case honestly?

Bruno.

Posted by Peter Quennell on 11/12/15 at 11:08 AM | #

Bongiorno seems very high profile and if she continues to misrepresent evidence to achieve her goals, what chance for a reliable verdict where she is involved. Her reputation must have taken a hit, at least in some quarters, surely. Hopefully, these critiques in the right hands, the upcoming book trials and the challenge from Mignini, will cause her some discomfort.

Posted by YorkshireLass on 11/12/15 at 03:54 PM | #

The knife retrieved from Sollecito’s drawer always intrigued me.

I recall reading that the police noted that it had been scrubbed clean with bleach and could smell it when they retrieved it.

Of all the people I have ever known in my life, and that’s a lot, I have never, not once, heard of anyone cleaning a knife that is used for food preparation with bleach. The taste that would be imparted on to any food would be horrendous. Not enough to poison perhaps but certainly enough to taint the food. What’s wrong with washing up liquid if it’s just an innocent cleaning you’re after?

That always struck me as a very obvious indication that this was very likely one of the murder weapons.

Posted by davidmulhern on 11/13/15 at 07:38 AM | #

@ davidmulhern: Bleach-Indicative-of-Coverup-&-of-Guilt.

AK/RS hoist with their very own combination of Ignorance and Arrogance.

Thanks for yet another Clear & Convincing nail in their Coffin.

Posted by Cardiol MD on 11/13/15 at 10:58 AM | #


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