Friday, October 25, 2013

Questions For Sollecito: Do You Stand By Your Smear Of Reasonable Doubt In Italian Law?

Posted by The TJMK Main Posters



The Italian Supreme Court is seen here at rear-right with the Vatican in the foreground]


How the tough questions for you only grow, and grow… We have 12 posts already in our questions for Knox series and 11 posts already in our questions for Sollecito series.

We also have increasing confirmation that this thrust is paying off and is helping to meet a widespread felt need in the media. Ask Katie Couric, and Diane Sawyer, and the CNN legal talking heads, and the BBC, and an increasing number of others in the media.

Today’s post returns, certainly not for the last time, to your wildly inaccurate book.

1. What You Wrote in Honor Bound On Reasonable Doubt:

Amond the absurd legal babble in your absurdly titled book Honor Bound this legal babble especially stands out.

The meandering complexities of the Italian legal system, where speculation and hearsay are allowed to run rampant and time invariably slows to a maddening trickle, did little to help our cause. For reasons deeply embedded in the country’s history, the concept of proof beyond a reasonable doubt scarcely exists in Italy, and the very notion of undisputed fact is viewed with suspicion, if not outright aversion.


2. How Lawyer James Raper With Yummi Disagreed

From their post last January before Cassation uttered its final word, which also takes to task Hellmann’s and Zanetti’s interpretation. 

What he is implying (in a manner gratuitously insulting to the intelligence of his compatriots) is that were the above statement not true then he, and Amanda, would have been acquitted in the first instance.

Oh, really?

It seems that we are also being asked to believe that Sollecito and his ghostwriter, Gumbel, are historians of Italian jurisprudence. So, let’s quickly examine what substance there is to the claim.

It will be seen that the concept of “reasonable doubt” is understood well enough in the courts of Italy, though unfortunately less well understood by the former Umbria Appeal Court judges Hellmann and Zanetti.

Not only that but those two judges made pointed remarks at the outset of the appeal also garbling the concept, which were very disturbing. I shall look into that in a moment.

Sollecito‘s remark does have some context but it is wildly inaccurate and unfair. 

We know that the Italian legal system is based on the inquisitorial system common to continental Europe, whereas the anglo-saxons amongst us are used to the adversarial system. It is also true that the specific expression “beyond reasonable doubt” was not introduced into the Italian criminal procedure code until 2006.

It is Article 533 of the Criminal Procedure Code: “The judge pronounces sentence of conviction if the accused is guilty of the offence charged beyond all reasonable doubt.”

Now let me defer to our Italian poster Yummi who can explain the historical context. He writes -

The current Italian system is the result of a procedure code reform introduced in 1989. This reform introduced several features of the adversarial system into a new criminal procedure code. One of the features of the new code was the abolition of the “not proven” verdict. This factually had been working very effectively as the version of “reasonable doubt” in the Italian system.

In an inquisitorial system the court is a council headed by professional judges and it’s task is not just to deliver a verdict, but to deliver a written rationale or dossier aimed to provide “a judicial truth”.  Typically “reasonable doubt” is a formulation coming from systems where juries do not issue a written rationale while systems that have motivation reports on verdicts usually don’t have it: it was commonly agreed that the absence of doubt should be understood from the rationale. Absence of doubt is not a quality that is inherent in the internal conviction of a juror, but instead is understood to be a feature of the logical proof provided by the written rationale. It was believed that the absence of doubt in the judge’s mind should be shown by the fact that a motivation report is logical.

No Italian scholar would ever maintain that the “reasonable doubt” standard is a recent introduction in the Italian system.  Only the acknowledgement of it’s wording is relatively recent.  In the Italian system the formulation “reasonable doubt” was starting to be used explicitly in Supreme Court jurisprudence in the early nineties; a change of wording in honour of the adversarial reforms, but in fact a continuation of the long jurisprudence tradition of the “not proven” standard.”

In fact in the adversarial system “beyond reasonable doubt” is really an instruction to the jurors that they must arrive at a certain evidentiary standard if they are to convict. Any system that would produce a “not proven” verdict would mean that the standard has not been met.

In the adversarial system no written rationale for a verdict is required to accompany the verdict. That the Italian system retains this requirement is very much a safeguard for the accused as well as for the State both being thereby protected from perverse or capricious convictions or acquittals.

Second here is Judge Zanetti at first appeal:

The only certain and undisputed fact is the death of Meredith Kercher.

So said Judge Zanetti on the opening day of the appeal. It was a statement that brought gasps of astonishment from those in court, particularly from the reporters present who deemed it to be an admission that reasonable doubt existed.

In fact, of course, there were a lot of certain and undisputed facts. No one denied that there was evidence, most of it undisputed. What was disputed was the interpretation of that evidence.

That, being so, why did not Zanetti say that? Clearly the remark was injudicious, and cogent only in its intended impact.

What of the Massei Motivations Report one might ask? is it toast?

That remark not only helped to set the tone for the entire appeal - what was said soon after by his senior colleague was even worse. 

Compliance with article 533 of the Code of Criminal Procedure (Judgement of conviction only if the defendant is guilty of the offence complained of beyond a reasonable doubt) does not allow (us) to share fully the decision of the Court of Assize of First Instance.

(In Italian: il rispetto dell’articolo 533 del Codice di procedura penale (pronuncia di condanna soltanto se l’imputato risulta colpevole del reato contestatogli al di la ogni ragionevole dubbio) non consente di condividere totalmente la decisione della Corta d’Assize di primo grado”)

That was said by Judge Hellmann on the third day of the appeal before even the evidentiary and discussion stage had opened. And thanks again to Yummi for the above quote.

It seems that the presiding judge had felt compelled to expand upon his colleague’s stark opening remark but in doing so he had opened a can of worms. He had just made things even worse. Unfortunately the prosecution decided not to challenge the remark and the appeal proceeded. They should have done so.

Article 533 relates to verdict. The verdict (to be) is not to be hinted at or discussed at the opening of any trial or appeal and certainly not as pointedly as this. So serious is this faux pas that I have it on good authority that the prosecution considered impeaching the presiding judge for incompatibility and incompetence. It seems that they did not because of the furore this might have caused and perhaps also because they were confident of the strength of the case in any event. In retrospect a grave mistake.

What in fact was Hellmann saying? Let us consider.

“Compliance with article 533.…..…does not allow us to share fully the decision of the Court of Assize of First Instance.” 

I believe that what we see here is the first indication of the judges’ manifest misunderstanding of what should have been the correct approach to an evaluation of the evidence in the case and the application of the “reasonable doubt” standard.

I do not intend to deal with that in any detail. It is set out cogently in the Galati appeal.

Suffice to say that the “reasonable doubt” standard applies only to the culpability of the accused for the offence with which he/she is charged. Article 533 makes this abundantly clear and this is no different from how our own adversarial system deals with it. It is not a standard to be parcelled out to each item of evidence or inference drawn. That the appeal judges thought they could do (and did) precisely that is implicit in Hellmann’s remark.

How can one not “share fully the decision of the lower court”?

Hellmann could have said that he did not fully share the decisions of the lower court as regards each element of evidence rather than “the decision“, which can only be a reference to the actual verdict. But “the decision” is what he says, linking it specifically to article 533 where only the singular use of the noun would have any meaning. So on the face of it this can only be about the verdict of the lower court. And yet, how can one not fully share a verdict? A verdict cannot be parcelled out. One either agrees or disagrees with it.

Despite it’s manifest inappropriateness, no doubt the remark was meant to acknowledge that there was some doubt about the validity of the verdict in their minds. Well at least that’s honest but in that case, was it not incumbent on them to specify what it was that concerned them? I would have expected that. True, it was already clear that the DNA on the knife and bra clasp, and Curatolo’s credibility, were specific issues, as they had allowed these to be examined, but beyond that there was no disclosure as to what other doubts on the evidence they had in mind. We know now from the Motivations that there were others and what these were ( Quintavalle and the staged break-in, just for example) - and I think it would be pretty disingenuous of them to pretend that they did not exist at the time.

Already one sees elements of confusion, incompetence, mis-procedure, misleading the prosecution and coded messages (for the media and politicians?) to the effect that the appeal judges had already rationalized an acquittal in the appeal.

And if, with their doubts, they had in fact done so then what, pray, was the point of :-

1. Ordering a review of the DNA evidence on the knife and the bra clasp

2. Re-hearing Curatolo

3. Hearing from Aviello and Alessi

……other than that they were seeking that elusive “reasonable” element of doubt.

It is almost as if the entire appeal was tailored to suit and a sham. It certainly looks that way in retrospect, particularly as the element of reasonable doubt still remains elusive on close examination.

Yet it may just be that the appeal judges were just incompetent and that their incompetence (with the incompetent assistance of Conti & Vechiotti) infected the entire proceedings.

We shall see what Cassation thinks of the garbling of this fundamental concept when the prosecution appeal is entertained on 25 March.

3. How The Cassation Motivation Report Also Disagrees

The Supreme Court doesnt buy your smear of Italian law either, though we doubt your book was a hot item there. The concept of “reasonable doubt” was fully respected in the Massei trial where your guilt was firmly established - and the concept was trashed by the unlamented Hellmann & Zanetti.

This is from the Cassation report on the decision to annul the Hellmann appeal.

2.2.3 ‐ Manifest lack of logic and inconsistency in the reasoning in reference to the use of the principle of reasonable doubt in sustaining the order of 18.12.2010. [According to the lawyers for the Civil Parties], the verdict of conviction beyond a reasonable doubt could have been reached even after the outcome of the expert report arranged for in the second instance trial, inasmuch as the examination of the circumstantial evidence ought to have been global and consistent, the hypothetical defect of any one of these being acceptable, provided that the remaining elements were – as they ought to have been deemed – sufficient to reach the required level of certainty, [29] since what is asked of isolated elements of proof being evaluated is that they display the credentials of correspondence with real events, at least with predominant probability. Proof of guilt beyond reasonable doubt can rest on items of circumstantial evidence that are not all equally certain, that is, not all established with the same level of probability.

So, Raffaele Sollecito, you jobless failure in all walks of life: would you care to correct all these fine lawyers?




Comments

A ton of work went into all of those Questions for Knox and Sollecito posts.  Kermit was really the initiator with his Powerpoint advancing 150 Hard Questions for Knox.

James Raper, the Machine (2), Kermit (2), MediaWatcher and SeekingUnderstanding all contributed to the Knox series.  SomeAlibi, Marcello, the Machine again, and Kermit again (another two) all contributed to the Sollecito series.

We can now provide a PDF document of key questions to anyone that we have no reason to distrust in the media.

Posted by Peter Quennell on 10/25/13 at 03:55 PM | #

Thanks to James, Yummi, Peter, et al. for the great post. I am amazed at how twisted and unfair the Hellmann court was. Thanks for your legal insight on these issues. It shows that the Italian system IS quite fair, open, logical, and does honor the concept of reasonable doubt.

I did not know before of that statement of Hellmann’s at the start of the (first) appeal trial, that [paraphrase] he did not agree with the Massei verdict… wow. Exact wording: he did not “share fully the decision of…” I was shocked to hear that. Thanks again for the great post!

Posted by Earthling on 10/25/13 at 06:33 PM | #

Pratillo Hellmann mentioned art. 533 before the opening of the evidence discussion phase. This, alone, would be enough to outright impeach a judge.  Even the previous comment would have been enough.

Galati did not impeach the Hellmann court. He was understandably reluctant: he was an outsider who had just taken his post, he had arrived in Perugia from Rome since less than month, he didn’t know anybody yet and his first act would have been to throw out a colleague… He was afraid to do that.

He regretted his decision later, probably when he understood what Hellmann and Zanetti were up to, or when he read the C&V report as you can guess from this article where he calls C&V conclusions unfounded and says their report has obvious falures.

http://truejustice.org/ee/index.php?/tjmk/comments/an_overview_from_italy_of_the_galati-costagliola_appeal_to_the_supreme/

You can understand how pissed off he was with Hellmann & Zanetti from the scathing recourse he wrote to the Supreme Court.

Posted by Yummi on 10/25/13 at 09:13 PM | #

Italy has a net influx of people wanting to live there, and a huge tourism industry. I encountered many foreigners living there (UN staff of the FAO) but never encountered anyone there who had a dislike for the country and certainly not contempt.

The only three I am aware of who lived there for a while and then wrote lacerating articles and books were Preston, Burleigh and Popham. We have taken down all three a lot. Preston had his mind poisoned by Spezi and his mafia fellow-travelers, Burleigh had her mind poisoned by the Knox-Mellases who funded her, which resulted in this:

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

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

A fourth poisoned mind would seem to be Andrew Gumbel’s. He shadow-wrote the Sollecito book and those are almost certainly his “legal” opinions possibly mixed in with false interpretations of Bongiorno and Maori.

There were times on TV in the Us when Sollecito was fuzzy and vague as to what is actually said in the book (same with Knox). The sources given at the end are appalling - all of them are PR shills. No neutral sources or original documents are mentioned other than in scathing terms.

Posted by Peter Quennell on 10/25/13 at 10:03 PM | #

“The only certain and undisputed fact is the death of Meredith Kercher”

This also appeared as strange when I first saw it on these pages. I thought that the hon’able lordship is trying to begin at the beginning.

But this approach can be dangerous. We need to accept things that have been already accepted as true. Because science and logic works this way- the incremental nature of things that we see around.

Of course I did not express my concern at that time but followed the story more carefully. And we did land up in the “alternate universe” scenario. I could not figure out the motivation to jump into another universe but then I also know so little.

I squarely blamed that on external factors. I have not yet given up on that theory.

The best strategy for AK and RS would have been to stick to one lie for the rest of their life. But in all their hypocrisy they try to explain and justify everything and in the process they invent lies after lies. So many universes they live in.

Interesting, indeed.

Posted by chami on 10/26/13 at 06:57 AM | #

Quote Chami: ‘“The only certain and undisputed fact is the death of Meredith Kercher”

This also appeared as strange when I first saw it on these pages. I thought that the hon’able lordship is trying to begin at the beginning.’

It does smack of wanting to reinvent the wheel.

Posted by TruthWillOut on 10/26/13 at 07:11 AM | #

“The only certain and undisputed fact is the death of Meredith Kercher.”

Obviously, there were shenanigans going on with Hellman-Zanetti to make such an outrageous statement.  [Please bear with me in my comments below, as I am trying to have a better understanding of the Italian Judicial System.]

This statement was made at the beginning of the Appeal, which would mean that the Trial Court had already found Knox and Raf GUILTY of Meredith’s murder.

And I am “assuming” that the Trial Court is the “trier and finder of facts” in Italy.  Therefore, the Trial Court Jury’s GUILTY decision was based on the overwhelming FACTS and evidence of the case.

So, how can an Appeal Court Judge[s] decide this is the “only certain and undisputed fact” when the Trial Court had already determined the facts from the overwhelming evidence that was presented at Knox and Raf’s trial?

I do understand that the Italian Judicial System has differences than the US Judicial System.  However, in Louisiana where I am, we have “civil law” as opposed to “common law” that the other 49 states have.  At the Appellate level here in Louisiana, there is no “re-trial” so to speak, but the appellate courts can review a case “de novo,” along with “oral argument” by counsel.  Also, we have a 3 tier court system : Trial, Appellate, and Supreme Courts—which if my understanding is correct, this is what Italy has.

While I do understand there are differences in the judicial systems, the “bottom line” is the FACTS were already decided at Trial ... so how can 2 arrogant appellate judges totally and completely disregard a jury’s GUILTY verdict ?

In my opinion, no doubt there was some heavy-handed shenanigans going on.

Thank You !

Posted by MissMarple on 10/26/13 at 09:51 AM | #

Shenanigans indeed.

The defenses lobbied for Judge Hellmann to replace Judge Chiari who would never, never have attempted an illegal second trial; with some tiny differences an appeal in Italy should be short, sweet and simple as in US and UK. We are seeing that now.

Even the defenses might have been startled at how aggressively Hellmann and Zanetti started out on the wrong foot and they might have worried about an immediate Supreme Court appeal, though that would have been tough for Galati for reasons Yummi gives in his comment above.

Posted by Peter Quennell on 10/26/13 at 12:17 PM | #


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