Thursday, July 13, 2017

Justice Systems Comparisons #6: Common Law (US Etc) V. Civil (Italian) On Double Jeopardy

Posted by Chimera



Palazzo Giustizia above in Reggio Calabria, below in Naples

1. The Series Context

You’d think there’d be lots of comparisons at national level between the two great justice systems of the world. But really there are not.

The dishonest Knox and Sollecito PR often uses disparities between the Italian and US/UK systems to confuse, and to try to make the excellent Italian system look bad. 

The common-law lawyers from the US and UK who post here on Italy sometimes say they have to study quite a bit to get things straight. UK lawyer James Raper’s excellent book translates some of the key concepts that can be confused as he did here.

These are my previous five posts. I use the Canadian system as the common law example. But as the posts explain, the US and UK systems are pretty close. 

Click here for post:  Justice System Comparisons #1: Had Meredith’s Murder Taken Place In Canada 

Click here for post:  Justice System Comparisons #2: Canada’s Tough Penalties For Slander, False Accusations, Perjury 

Click here for post:  Justice System Comparisons #3: Bail, Extradition, and More Crimes In Canadian Law 

Click here for post:  Justice System Comparisons #4: How Canada And Italy Shape Up Against The USJustice System Comparisons #4: How Canada And Italy Shape Up Against The US 

Click here for post:  Justice Systems Comparisons #5: How Appeals Differ in Italy and Common Law Countries 

2. Double Jeopardy

Much angry noise has been made about the October 2011 “acquittal” of Amanda Knox and Raffaele Sollecito by the Hellmann appeal court in the murder of Meredith Kercher.  The claim was been made that an acquittal at trial means that under American law, it would be “double jeopardy” and hence, illegal, under American law.

While the “appellate trial” differs considerably from appeals in Common Law countries, it is still an appeal.  Portions of the case can be reopened, but the Trial Court’s original findings are the starting point.  It is not meant to be a “new trial”, nor to re-try the case.

“If” an Appeals Court releases a defendant, it is not double jeopardy, as it is not a Trial Court.  They do not try the case, but rather examine it for errors.  Further if a 1st level appeal releases someone, the prosecution can still seek a higher level of appeal.

Read Harvard Law School’s Alan Dershowitz here.

3. Legal Outcomes 2007-09

  • November 6, 2007—AK and RS were charged for rape and murder of MK, alongside PL, whom Knox has accused as the actual killer

  • November 9, 2007—AK/RS faced Judge Claudia Matteini, to see if they could be released conditionally (their 1st Court hearing), and to get a brief assessment of the Prosecution case.  While FoAK crow about there being no bail in Italy, this hearing seems eerily similar to a bail hearing.

  • November 30, 2007—AK/RS challenged Judge Matteini’s decisions (their 2nd Court hearing), and Judge Massimo Ricciarelli presided over a 3 Judge panel which confirmed the detention, but with Rudy Guede as the 3rd person, as opposed to PL.

  • April 1, 2008—AK/RS tried to get released again (their 3rd Court hearing on the matter), and the 5 Judge Cassation panel headed by Judge Torquato Gemelli denied the request, and even the lesser request of house arrest

  • September/October 2008—Pretrial (and Guede’s short form trial) presided over by Judge Paolo Micheli.  Judge Micheli convicted RG, and sent AK/RS to trial.

  • December 2009—AK and RS were convicted at trial by the Court of Judge Giancarlo Massei.


4. Legal Outcomes 2010-15

In 2010 AK/RS then chose to APPEAL those convictions and filed such an appeal.

  • October 2011—AK/RS were “acquitted” of murder by the Appellate Court headed by Hellmann and Zanetti, though the Calunnia conviction was upheld.

The Prosecution then filed a SECONDARY APPEAL to the Court of Cassation

  • March 2013—AK/RS had their “acquittal” by H/Z annulled, while the calunnia conviction was upheld, with aggravating factors added back on.

AK/RS chose to file ANOTHER APPEAL of the 2009 Trial Conviction, this time it went to Florence.  Not a new trial, but another appeal.  Knox didn’t show up.

  • January 2014—AK/RS had their 2009 conviction “confirmed” by the Court of Judge Nencini, with a small sentence increase for AK.

AK/RS then filed a SECONDARY APPEAL to the Court of Cassation.  The 5th Chambers took the case.

  • March 2015—AK/RS had their convictions thrown out by the panel of Bruno/Marasca.  However, the report released in September 2015 didn’t actually say they were innocent.  in fact, the report placed AK at the crime scene, and RS probably so.  The Court found both had lied repeatedly.


5. These Damning Posts Relate

Click here for post:  The Knox Interrogation Hoax #13: The First Two Opportunities Knox Flunked: Matteini & Ricciarelli

Click here for post:  Tape ‘puts Knox at Meredith murder scene’

Click here for post:  The Knox Interrogation Hoax #14: The Third Opportunity Knox Flunked: The Mignini Interview

Click here for post:  The Knox Interrogation Hoax #15: Dr Mignini’s Account Of Formal Warning Session Ending 5:45 AM

Click here for post:  The Knox Interrogation Hoax #16: The Fourth Opportunity Knox Flunked: The Supreme Court

Click here for post:  The Knox Interrogation Hoax #18: The Final Pre-Trial Opportunities Which Knox Flunked

6. Two Constitutions Compared

(A) U.S. Constitution, 5th Amendment

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.


(B) Canada Charter of Rights and Freedoms, Part 11(h)

11. Any person charged with an offence has the right…. (h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again;....

Notes: Both the U.S and Canadian Justice systems prohibit a person from being punished twice for the same offence.  The main distinction is the word “finally” in the Canadian system.  In the American system, an acquittal is the end of the matter, barring some obscene act, such as bribing a judge.  Is the Canadian system, an acquittal “may” be appealed in extremely limited cases, such as gross misconduct, or clearly inappropriate handling by the Trial Court.

7. Standard for Review

(A) U.S. Appeals

Click here for post:  Definitions: legal concepts for appeal

Matters of Fact—May be challenged if the they are reviewed in a clearly erroneous manner

Matters of Law—Must be considered “de novo” as if there was no finding before

Matters of Discretion—Judges are given wide discretion and it is usually accepted, unless there are clear errors, or the conclusion is illogical


(B) Canadian Appeals

The standard is set by Housen v. Nikolaisen

Click here for post:  Housen v. Nikolaisen Supreme Court Judgment

Factual Findings—These are typically “given deference”, unless the Appellant can show “overriding, palpable error”.

Legal Findings—The Standard is whether the law was “correctly” applied.

In layman’s terms, Appeals Courts “defer” to the Trial Court on the fact findings.  They assume that the Trial Court is in a better position to see and to examine the case.  They will not interfere unless there is a clear, and provable error that effected the outcome.  Surprisingly, it is a much higher standard than challenging the law.

Notes: In both US and Canadian appeals, the Courts tend to accept factual findings unless there is very clearly an error.  Both also tend to view potential legal matters as needing to be consistently applied.  Both Courts also tend to accept the Trial Court’s discretionary decisions unless something is obviously off.  Although the language used varies, the standards quite similar.

8. Cases of “Double Jeopardy”

(A) “Double Jeopardy” U.S.A.

Harry Aleman

This involved a man who was “acquitted” in a murder case.  However, it was later found that the trial judge, Frank Wilson had been bribed to the tune of $10,000, and that the trial had been rigged.  Prosecutors appealed, successfully, that since the case had been pre-arranged, the defendant had never been in jeopardy, and hence there was no “double jeopardy”.  Eventually this was confirmed by the US Supreme Court.

Click here for post:  Wikipedia: Harry Aleman

Click here for post:  Aleman v Cook County

Click here for post:  Man Faces 2d Trial on Murder Charge

Click here for post:  Exception To Double Jeopardy


(B) CANADA

Most of the cases which involved an acquittal being appealed were cases of sexual assault where the Trial Judge grossly mishandled the manner

Here is a particularly harsh appeal review:

Click here for post:  Reasons for judgment:  underage sexual attacker

Some media reports on the topic

Click here for post:  Crown appealing sex assault acquittal of taxi driver

Click here for post:  Judge asked complainant why she couldn’t just keep knees together

Click here for post:  Chief judge launches review of Edmonton judge

Click here for post:  Third Alberta judge faces review

Click here for post:  4 Alberta judges under scrutiny

Note: To a degree, this is comparing apples and oranges.  The US case of Harry Aleman was a case where a defendant literally “bought” a murder acquittal for a mere $10,000.  The Canadian cases listed were ones where the Trial Judge was grossly incompetent, and either unable or unwilling to handle a sexual assault case properly.  However, in both sets of circumstances, justice is not served at the trial court level, so it has to be “redone”.

Note: Also, in the cases of mistrials, re-trials of defendants are often permitted, depending on the circumstances.

9. How This Compares to Italy

(Some additional input from knowledgeable people appreciated)

1. The trial (the one and only trial), took place throughout 2009—the Massei Court—and it was to try the facts, and to hear testimony.

2. The 1st level appeal, an appellate trial (requested by AK/RS) was to determine if any major errors had been committed that would have changed the outcome.  And, unlike in the Common Law, the Defense could reopen portions of the case.

3. The 2nd level appeal—to the Court of Cassation—is to determine if there were any serious legal errors, or if the Lower Court rulings were based on illogical or contradictory thoughts.  It is not to retry the case, or rehear the evidence.

4. The “Appellate Trial” doesn’t exist in the Common Law systems, rather there is a clear distinction between “trial” and “appeal”.  Italy allows this step in a benefit to Defendants which would not otherwise be available.

5. Another benefit for Italian Defendants: those 2 appeals are available upon request.  Under the Canadian/US laws, defendants can immediately file notice of appeal on the 1st instance, though it can be dismissed before the hearing.  For 2nd level appeals, leave is required (“leave” is legalese for “permission”), which is difficult to get.

6. Acquittals in Italian Courts can be overturned if it was based on clear errors in law, or illogical conclusions, just as Canadian cases can.  That is what happened with the Hellmann ruling.

7. Acquittals in Italian Courts can be overturned if there was clear misconduct or illegal action which altered the outcome.

10. Footnote

The Italian appeal standard seems to be closer to the Canadian model.  The American system (so far) requires blatant criminal behaviour, not just incompetence.



Posted by Chimera on 07/13/17 at 02:22 PM in Justice systemsItalian systemUS etc systems


Comments

Double jeopardy was to be the first line of attack if a request for Knox’s extradition ever reached the US.

http://truejustice.org/ee/index.php?/tjmk/comments/Tips_For_The_Media_2_in_fact_knox_extradition/

If you google “double jepoardy” and “amanda knox” there are about 11,000 hits. Many writers actually got it right - she was TRIED only the once - but didnt fully quote chapter and verse for why, as Chimera does here. 

After y’all have finished absorbing Chimera’s superb nailing of that stupid lie, please go back to watching this year’s wonderful Tour de France!

Today an Italian (Rubio Aru) moved into the overall lead, and a French guy won today’s stage.

After years of disappointments over this race in their own country the French are winning a ton of points.

Along the way you can see how the entire population turns out.

I’ve encountered the Tour twice while cruising France and what you might not know is that for a full two hours before the pelloton turns up an endless stream of trucks and floats and clowns barrels along.

It’s pretty funny. They represent all the sponsors and try hard to amuse and they throw toys and candy and other junk endlessly into the crowd.

On the days I encountered this I couldnt find a hotel room within 50 miles.

Once the tour stage ended in Montpellier and although I was ahead I had to drive to Arles (think van Gogh) and then up to Avignon to get the last room.

Posted by Peter Quennell on 07/13/17 at 06:10 PM | #

Talking of France, what gives with Trump and Macron? Macron seems razor sharp. Trump seems so totally thrilled to have found a friend - well, other than the Saudi mullahs, who are stiffing him now over Qatar. Ex boyfriend Putin is in the back seat.

Perhaps Macron will send Trump back speaking French? There’s been an odd reversal here. It’s Republicans that would like to seem him gone right now - stay in France?! - while Democrats are really enjoying his plight and happy to keep turning him on the spit.

Posted by Peter Quennell on 07/13/17 at 07:07 PM | #

Wow. More re Trump & Macron.

It was reported just seconds ago that Trump may reverse himself on climate change and pulling the US out of the UN’s Paris Accord.

https://www.aol.com/article/news/2017/07/13/trump-says-something-could-happen-with-regard-to-paris-climate/23029036/

It’s said to be a fear among some Republicans that Trump could really flip, back to being a Democrat, which he was lifelong up to half a decade ago.

FWIW my own experience is that either way things are way too top-down for good performance and its hard top-down to encourage or impose bottom-up structures.

Especially with federal systems (US and EC). I was on the project to introduce the US federal planning, and wrote a whole manual about creating development structures.

Test processes worked perfectly. Nice reception (I was before one of those congressional committees) but the manual languishes. New website on this follows shortly.

Posted by Peter Quennell on 07/13/17 at 10:47 PM | #

The Emmies are annual awards in the US for primetime TV shows and the nominations (34 groups!!) for this year were announced yesterday.

Take a look here at category 28; see anything?

http://www.kiro7.com/news/partial-list-of-primetime-emmy-award-nominations-1/558882226

The Emmy awards ceremony is two months away on September 17.

We have our big media expose of the Netflix hoax in the works, planned for before that. So in a weird way this could be helpful.

Posted by Peter Quennell on 07/14/17 at 09:37 AM | #

I mega look forward to an expose of the Netflix hoax.

As far as I’m concerned, Netflix didn’t do their due homework. Or they deliberately omitted easily verifiable facts about this case.

Posted by DavidB on 07/14/17 at 07:16 PM | #

Hi DavidB

Right. Netflix did no homework and were eager to get this out. And mainly by omissions the production team lied - the draft list is hundreds long.

Maybe our series put a chill on the promotion - the production team were often promoting themselves and the report on US TV etc.

Then all of a sudden they disappeared. No effort at all was put into promoting the report for an Oscar and of course it did not win back in February.

Posted by Peter Quennell on 07/16/17 at 09:59 AM | #

One could wonder what is the point of the double jeopardy law in the US? The large majority of criminal defendants in the US don’t get a trial at all, they are plea-bargained (intimidated?) straight to jail!

And there IS an Italian law against double jeopardy. But it can only apply after the appeals are all done.

Barbie Nadeau explained this very well - including the right to AUTOMATIC appeals (a reaction to the Mussolini era kangaroo courts) which give Italian perps a huge break that American perps can only dream of.

http://www.thedailybeast.com/the-endless-trials-of-amanda-knox-a-key-decision-approaches-march-25

The Guardian (surprise surprise) and Telegraph got it right here.

https://www.theguardian.com/us-news/2015/mar/20/amanda-knox-ruling-by-italys-highest-court-could-lead-to-new-legal-battle

http://www.telegraph.co.uk/news/worldnews/europe/italy/11499689/Could-Amanda-Knox-face-extradition-to-Italy.html

The American Bar Association also got it right.

http://www.abajournal.com/news/article/would_double_jeopardy_claim_bar_amanda_knoxs_extradition/

But many more got it wrong. Examples of media wrongly claiming double jeopardy or “re-trial” in the case here.

Doug Longhini CBS
http://www.cbsnews.com/news/amanda-knox-and-double-jeopardy-does-it-matter-in-italy/

Innocence Project
https://californiainnocenceproject.org/2013/03/amanda-knox-double-jeopardy-and-innocence/

Johnny Brayson
https://www.bustle.com/articles/186353-why-were-amanda-knox-raffaele-sollecito-convicted-twice-italys-legal-system-is-complicated

Diamond CNN
http://www.cnn.com/2015/03/25/politics/amanda-knox-extradition/index.html

Messia CNN
http://www.cnn.com/2014/01/30/world/europe/italy-amanda-knox-retrial/index.html

Above post has this underneath: “Editors’ Note: This article has been edited to remove plagiarized content after CNN discovered multiple instances of plagiarism by Marie-Louise Gumuchian, a former CNN news editor.”

Fox News
http://www.foxnews.com/world/2015/03/25/amanda-knox-ex-boyfriend-on-hand-as-italy-high-court-hears-appeal-to-murder.html

Sharon Rice Duqesne Law
http://www.duqlawblogs.org/duqcrim/2013/03/amanda-knox-to-face-double-jeopardy-in-italy/

And those are merely from the first 3 pages of Google. 

Posted by Peter Quennell on 07/16/17 at 10:45 AM | #

As I posted above “One could wonder what is the point of the double jeopardy law in the US? The large majority of criminal defendants in the US don’t get a trial at all, they are plea-bargained (intimidated?) straight to jail!”

Actually even I was shocked at how many cases are plea bargained. NINETY-SEVEN PERCENT!

Posted by Peter Quennell on 07/17/17 at 09:28 PM | #

@Chimera, thanks for a concise nutshell version of the legal outcomes in smooth timeline. The 2007 to 2015 court hearings, trials, and appeals you carefully dated with names of the judge presiding. It forms an easy to follow thumbnail of the long and winding road of Knox in the Italian civil system. It’s a legal education comparing and contrasting Italy’s civil system with the US, Canadian and other common law systems.

I know nothing about law but it seems the Italian system is much more flexible with more options for both parties.

Thanks for links to prior posts about Mignini’s in depth interview with Knox.

Mignini certainly slogged through endless tedium with Knox in a most exhaustive interrogation. He spared no effort to ferret out every detail of her lifestyle in Perugia and beyond:

her hours working at Patrick’s at 5 euros per hour, finally cut back to two days a week, Tue and Thur

her Washington bank money from parents to pay her 300 euro rent on cottage, her 250euro ATM withdrawals which she kept in desk in bedroom of cottage

how she acquired the tenancy through Laura in October before Meredith arrived

He asked if she had ever been told by Patrick to not come to work before the night of November first. (once maybe when she was sick, she replied)

He took names of her German relatives she visited before entering Italy, Aunt Dorothy.

He probed about her prior record, about her fines for noise complaint in Seattle which she did admit to.

In front of Mignini she had a first class interpreter, a blue ribbon interpreter who was most cautious for Knox’s benefit about every single word and every question by Mignini. She had her lawyers present as well, Ghirgha and Dalla Vedova.

Knox got very dodgy with answers to Mignini about WHO she got her drugs from.

(Oh, I only borrowed from others when they had drugs or I gave Laura some money and she procured hash for me, that was the substance of her vagaries. The spliff she shared on the night of the murder was Raf’s not hers.)

She was already deceiving Mignini from the beginning about her drug use but no doubt he is used to the story of “only two beers, officer” from a reeling drunkard.

She limited herself to smoking one joint on the night of the murder in the first part of her Mignini interview.

One is left with the overall feeling of a very careful interrogation by Mignini and a commendable outlay of energy and effort on the part of the Perugian investigators to run DNA tests on evidence from the cottage.

Knox’s blood on the bathroom tap suggested strongly she was at the murder scene, not to mention the double DNA knife.

The Hellmann/Zanetti ruling that acquitted Knox had no leg to stand on compared to the facts but I guess by 2011 the Knox PR steamroller (and perhaps Sollecito family backroom deals, who knows?) had begun to take effect.

Knox dashed back to the States on a pre-arranged airplane and waited out the final decision of the courts at a safe distance, courts that finally acquitted her for lack of evidence but concluded she was at the murder scene!

Strange sleight of hand with that ruling.

Netflix docu is bizarrely unfair to shield Knox from the heavy guns of the case in order to paint a twisted portrait of the case against her and to airbrush her to suggest innocence. Ah, the poor maligned young lady, the martyr to prejudice.

Netflix is hiding the heinous facts like Knox did. With her, what is NOT said is always the main thing.

on different topic: I wish I could read Italian. Maresca’s book is on Amazon UK but not in English.

Posted by Hopeful on 07/21/17 at 10:58 AM | #


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Where next:

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Or to next entry Netflixhoax 19(a): Omitted The Vital Context Of A Genuine, Huge Justice Problem In The US

Or to previous entry Why The Italian Court System Is Very Unlikely To Do Any Favors For Sollecito & Knox Ever Again