Saturday, October 17, 2015

The Marasca/Bruno Report, A Dissection In Four Parts: #3 Their Profound Evidence Muddle

Posted by catnip



Back of house, showing route in of 2 different burglars in 2009


My previous dissections of the Fifth Chambers explanation can be read here and here.

The next two sections (7 and 8) of the Bruno judgment span ten pages. Each sentence in the paraphrased gist below corresponds to one paragraph in the text.

Cassation (Bruno) – gist: As to the forensic evidence, it was collected in violation of international standards. Science is receiving too much weight in the legal sphere, the scientific method does not equate to procedural rules. The judge is no longer the ‘expert of experts’, and genetics is light years from the sphere of the judge.

There is no confidence over science, in the sense that it is no longer to be trusted uncritically. Science is a choice, it must be reasoned. Legal rules are not trumped by science, the court does not automatically accept science, and there are many sciences. Evidentiary rules must be followed. Legal testing of evidence is done by cross-examination.

The court accepts evidence according to various factors, and this reduces the distance between ‘procedural truth’ and substantive truth. Inference is any method which bridges two facts in question, allowing the unknown fact to become known, according to reasonableness and good sense. This bridging can be common experience and direct observation through repeatability, scientific laws of universal application, and logic. Trial judges go from item of evidence to result, giving reasons, with external checks (the validity of experience or scientific law) and internal checks (consistency). (7)

COMMENT: Most of this section is bland platitude (not that there’s anything wrong with that).The ‘violation of international standards’ is accepted as a given, and the emphasis on repeatability (as diagnostic of the scientific method) is preparation of the ground for rejecting any tests that weren’t or couldn’t be repeated. Rudy’s forensic evidence is never referred to, as if it has been sealed off in a cardboard box somewhere.

Cassation (Bruno) – gist: In the current case, there is no new scientific method to examine (like blood pattern analysis) but genetics. DNA is reliable. It is evaluated against international protocols, and their breach. The court below did not hesitate to consider the test results to be indicative evidence. This cannot be accepted by this court. Indicative evidence is not proof, genetic results which are not absolutely certain can be indicative. Identification is probative, compatibility can be indicative.

Collection, conservation and analysis of evidence must follow rules.  Criminal Procedure Code Articles 244 para 2, 254 bis. And Article 192 para 2: ‘weight, precision, consistency’, which translates as certainty; certainty cannot be assumed. It cannot be seen how genetic analysis – in breach of collection and preservation protocols – can be weighty and precise in an evidential sense.

There are standards, and there must be repeatability. “In the case at hand, it is certain that those methodological rules have not been absolutely observed (cf, amongst others, folios 206-207 and the results of the Conte-Vecchiotti [sic] tests, deposited with the Perugia Court of Appeal).”

It is enough to consider, in that respect, the knife and bra-clasp; there was a lapse in professional standards (f. 207). The coltellaccio [great big knife] was put in a cardboard box of the gift-organiser kind.

More worrying are the journeyings of the bra-clasp. 46 days, there were other accesses of the crime scene, it was stepped on or at least moved, and the video shows multiple handlings of it with dirty gloves. “Questioned on the reasons for the defective and hasty collection, Dr Stefanoni will say in testimony that, initially, it was not considered necessary to collect the bra-clasp because … [dots in original] the victim’s intimate garment as a whole had been collected.

Nothing of importance was attributed to that small particular, notwithstanding that, in the common perception, it is exactly that closure apparatus that would be of major investigative interest, being manually operated and, therefore, a potential carrier of biological traces useful for the investigation.”

The bra-clasp test is not repeatable (Law [sic] Copy Number), which repeatability is to avoid false positives. The validation/falsification method wasn’t applied; and, significantly, even the RIS of Rome did two amplifications of trace I on the knife-blade. Ask what value such a result is. Scientific truth is not transferable to procedural truth; science is not legal certainty; without precision and weight, it cannot be evidence in court.

An item of evidence can be considered. The court below erred in attributing probative value to genetic results incapable of amplification or which were the fruit of improper recovery and collection procedures. (7.1)

COMMENT: The term indiziario, which cross-maps to ‘item of circumstantial evidence’, I have rendered as ‘indicative’, to bring out how Bruno demotes it. The theme is transferability: transferability of methods, procedures, of truths is not possible; but transferability of DNA is.

The appeal court’s error was to give non-zero weight to zero-weight evidence. Evidence gains zero-weight by not being certain. Certainty is achieved by repeatability, or by following international standards. The three dots (…) are for dramatic anti-climactic effect: meaning Stefanoni is a nincompoop, in other words. Note the spelling of Conti, with an “e”.

And the Voyages of a Bra-Clasp idea is Bongiorno’s and too irresistible to leave out (as with much else).

Cassation (Bruno) – gist: Article 360 of the Code only governs sources of evidence that are mutable; the laws of science involve falsification; probative value is linked to repeatability (7.2)

COMMENT: Interesting jurisprudence. It’s almost as if Bruno is living on another planet. The trope/canard about repeatability in science is an interesting psychological crutch. The accumulation of bizarro-concepts is starting to mount. Individual sentences in the text make sense (sort of), but stringing them together in a too-much-something-in-the-coffee way is starting to ring alarm bells.

Cassation (Bruno) – gist: The judgment below was obviously illogical (8).

COMMENT: A leitmotiv.

Cassation (Bruno) – gist: The missing traces of the accused on the victim have valency. This is a monolithic roadblock on the path taken by the court below in reaching an affirmation of guilt for the current appellants, “already acquitted of the homicide by the Perugia Court of Appeal”. The “selective clean-up” argument is useless and manifestly illogical: it didn’t clean-up the Luminol traces (Luminol is useful for revealing traces of material different to blood).

The clean-up hypothesis is also disproved by the traces in the small bathroom, and since Amanda knew that the other two were outside Perugia and wouldn’t be coming back that evening, there would have been plenty of time to do a proper clean-up.

As for the corridor traces, the SAL cards [work logs] ruled out, on the basis of the use of a particular chemical reagent, that the traces revealed by Luminol were blood – and there is nothing of this in the judgment. Not only that, it is manifestly illogical for the lower court to overrule the defence objection that the bluish Luminol reaction can be produced by substances that are not blood (for example, detergent residues, fruit juice and so on) and that the fluorescent reaction cannot be anything other than blood.

The fragility of the argument is such that, no question, the house at Via della Pergola had never been cleaned. Therefore, it can be categorically ruled out that blood was removed.

Another glaring logical hole is the theft of the phones. The posited reason that it was to prevent the ringtones of the phone being heard could have been accomplished by switching them off or removing the battery. Disrespectful to the proceedings and clearly illogical is the notion of ill-feeling, including the English woman blaming her flatmate for letting Rudy in to use the toilet; Rudy’s “truth” (and admissible insofar as it does not involve third parties) is that he was in the bathroom when he heard Mr Kercher have an altercation with another, female-voiced, person, so that the reason for the altercation cannot have been his use of the toilet.

It is illogical to posit that, in order to support the ill-feeling scenario, the stolen money and credit cards be used, when Amanda and Raffaele were cleared of that charge (f. 316).

It is arbitrary to translate to Via della Pergola a situation Amanda described in a different location, Raffaele’s house: watching a film, taking light drugs, having sex and a good long sleep until late morning the following day; there is no evidence of the influence of drugs, and finding a mixed DNA trace (Amanda and Raffaele) on a cigarette butt instead of doing a DNA-destroying drug test that might have offered useful insights was absolutely irrelevant, given that Raffaele was a visitor to the cottage because of his girlfriend.

The preceding picture is emblematic of the complex architecture of the impugned judgment relating to the substantive reconstruction, starting at paragraph 10, with the title “Conclusive Evaluations”. It is certainly undeniable that the court below required interpretative effort and speculation to fill the large evidentiary holes in the investigation.

Now, it is undoubted that it is the court of merit’s task to reconstruct what happened, not Cassation’s; common sense must be used; it can be logical but must stick to (legal) reality and be based on admitted evidence. Logic and intuition cannot be a substitute for lacking evidence and investigative inefficiencies. In the face of lacking, insufficient or contradictory evidence, the court must acquit under Article 530 paragraph 2, even if morally convinced of the culpability of the accused.

Further, there are holes in the court’s reasoning, for example in saying that Raffaele’s and Meredith’s DNA was found on the knife (f. 321) when elsewhere in the judgment (ff 208) Amanda is trace A, Meredith is trace B, and finally, trace I (unjustifiably ignored in the Conte-Vecchiotti [sic] report) is also Amanda’s. Trace B cannot carry any certainty, being unrepeatable, but nowhere on the knife is there any biological trace attributable to Raffaele (8.1)

COMMENT: Missing evidence is evidence of being missing. Something proves the opposite. What’s the Perugia Court of Appeal (=Hellmann) got to do with anything? The ‘clean-up’ refutation has the hallmarks of Bongiorno technique: to the prosecution suggestion that there might have been a party, her response was, “Where are the balloons, the corks and the champagne glasses?”

Obviously, “clean-up” has a specific meaning to Bruno. Switching a phone off or removing the battery needs fingers and will likely leave traces behind; better a sock and sling-throw into the dark. It’s common sense.

Can Bruno really be so obtuse: the bra-clasp is super-important exactly because it requires fingers, but the phones aren’t (in the hypothetical user’s mind). Drug-testing the cigarette butt is a good idea. Until you think about it: if Raffaele was at the cottage before, after, during, but not at the murder, how can a cigarette butt (with or without ice or cocaine on it) be tied to anything, time-wise?

Applying Bruno’s logic about the typo about Raffaele’s DNA being on the knife, then Bruno’s reference to Conte-Vecchiotti is also a “gaping hole”, because there’s no such people, and refers to a nothing; it’s Conti-Vecchiotti. Same with the nonsense phrase ‘Law Copy Number’ – what’s that? An obvious absurdity.

Therefore Bruno’s judgment is as void as its voids are. That’s logic. Obviously, if someone is stoned in Garibaldi Street, they can’t be stoned at a place two minutes’ walk away. That’s also ‘logic’.

Overall impression so far…

“Suddenly a strange madness took hold of him, a yearning to look once more off the end of the world. It would be his last chance, he thought; …”

—  George R R Martin, A Game of Thrones, [HarperCollins, 1996], p 176. ISBN 9780002246576

There was an episode of Doctor Who last year, where one character was explaining the scientific beliefs of another, and the Doctor asked, ‘Why does he think that? Is he an idiot?’

Good question.

I can’t quite help thinking the choice is between whether Bruno is an idiot, or whether he is merely writing a satire for a student magazine and pretending to be an idiot. Perhaps, in my ignorance, I have not read enough yet, or I have misunderstood what I have read.

There is some logical analysis going on, - and the example of there being no clean-up because if it was Amanda, she would have known she would have had all night, and therefore would have done a proper job of it (!), so because she didn’t, there wasn’t (!!), is a good one – but joining two or more sentences into a coherent thought, and things start to disappear into the mists.

Another leitmotiv: The translation into “certainty” of what characteristics items of evidence must have to be admissible (in common law terms), erases the concept of ‘beyond a reasonable doubt’ from the picture.

Since he’s had multiple months to ‘get it right’, and these gaps remain, it looks as if Bruno’s condition is not a temporary one.




Comments

Catnip, excellent analysis.  It certainly gets to the core of Bruno-Marasca “logic”, if we can call it that.

B-M state by implication RS DNA on the bra clasp was LCN and not replicable.  They claim its analysis was unscientific.  The truth is, it was not LCN.  It was repeated.  Each time, it showed a full profile of RS.  17 alleles matched 17 alleles.  There were 1300 RFUs.  Given MK’s DNA would swamp any other by the profusity of her blood, it was a wonder the Y-haplotype was even spotted.  Well done, Dr. Stefanoni!  The idea this solid 3bn to one against odds of it being random and not RS is “uncertain” is pure Gill.

Yes, the braclasp later became unreplicable because it rusted.  However, it is a sleight of hand to claim RS’ DNA on it was not scientifically replicated because, it was.

Re selective cleaning: because AK missed specks on the light switch, tap, bidet and bathmat, together with those in FRs room, in no way logically proves “therefore no cleaning took place”.

B-M criticise the luminol which highlighted the footprints in blood.  The police use luminol precisely to identify blood not visible to the eye, precisely because it has been cleaned.  Bleach, (hypochlorite), bleaches out the red haematic substance that gives blood its characteristic colour.  The iron element in haemoglobin remains.  Luminol reacts with this, which causes a flourescent glow in night photography.  If the other common type of bleach is used, the iron element is oxidised and thus not identifiable by luminol.  This is why police suspected RS had surfed the internet in the early hours to research bleach, for they were puzzled by inexplicably wide gaps in the footprints (i.e., they *must* have been cleaned, but why cannot the luminol find them?).

Of course, other substances contain iron, which is why the defence suggested iron-containing fluids, such as turnip juice.  Bruno-Marasca are seriously suggesting this is the more probable explanation for the luminol reaction.

The phone rings: Bruno-Marasca believe a true murderer would have simply switched the phones off, or remove the battery, not remove them to avoid the victim calling for help.  Only an idiot would do that, for an injured victim could soon switch it back on.  Removing the battery and leaving the phones would mean cleaning off all DNA and prints first.  Really?

Bruno-Marasca say Nencini builds a scenario wherein a dispute over RG’s excrement leads to ill feeling, but could not have happened this way, as RG was on the toilet when MK was stabbed.  But no-one ever claimed the fight was over *RG*s excrement, but AK’s was an irritant to the roommates.

Bruno-Marasca state AK and RS cannot have stolen MK’s money as they were cleared of it.  But they were not.  The charge was just dropped.  B-M fail to
ask, how come MK’s rent was stolen from her drawer, but not AK’s, from her drawer?  After all, the drawer in LM’s room hung open and FR’s room was “ransacked”.

Bruno-Marasca claim there is no proof of drug influence.  However, both RS and AK testified they were under the influence of drugs.

Bruno-Marasca point out RS DNA was not on the large knife.  Any idiot could see that was a Nencini typo, as no-one at any time ever claimed it was RS’ DNA.

It is a fact, legal written reasons invariably contain typos, usually to do with people’s names.

How did these idiots come to represent Italy’s finest legal brains?

Posted by Slow Jane on 10/17/15 at 11:56 AM | #

Catnip

Thanks for this.

“I can’t quite help thinking the choice is between whether Bruno is an idiot, or whether he is merely writing a satire for a student magazine and pretending to be an idiot”.

As no one here is amused, presumably, I go for plain (bent) idiot. Here’s proper satire (apologies but I can’t resist reposting this clip - for the nth time !). Bruno and the rest are equally ridicule-ous, but totally unfunny.

https://www.youtube.com/watch?v=Kyos-M48B8U

Posted by Odysseus on 10/17/15 at 02:39 PM | #

Several emailers kindly sent links to reports that RS wants to file a petition to the President to have the handling of his case investigated, possibly as this Cassation report fell so far short and left him semi-pregnant on the guilt front.

Rocco Girlanda tried that too - he and several other MPs asked for an investigation of the Perugia police - and as with 90% or more of all such petitions he never even got a reply.

RS was quite a traitor to Italy in his book though that is not generally known in Italy - now we have it in Italian, and planned excerpts will come at a bad time for him.

Posted by Peter Quennell on 10/17/15 at 09:05 PM | #

Odysseus, you are being very very silly.  Bruno-Marasca are very very serious judges.  In fact, even more very very serious than this:

http://youtu.be/VPk7cpiMgbM

You can see they all went to the same very very sillyxxx serious law school.

Posted by Slow Jane on 10/18/15 at 11:57 AM | #

@Slow Jane

Ha! Very good grin

Do they have satire in Italy? If so, can they use it please to creatively mock the very very silly 5th Chambers, or would that be perceived as too anarchic?

Posted by Odysseus on 10/18/15 at 12:40 PM | #

“Do they have satire in Italy?”
Or… “Is Italy satire?”

Posted by Helder Licht on 10/19/15 at 10:05 AM | #

They do NOT have justice for Meredith and that’s a shame!

Posted by Helder Licht on 10/19/15 at 10:09 AM | #

Wonder work once again, Catnip.  Must have caused a few headaches putting this together.

To quote a high school teacher I once had: ‘‘If you can’t dazzle me with brilliance, baffle me with bulls**t.’’  5th Chambers seems to have copied that ‘‘essay writing guide’‘.

On an unrelated topic, AK/RS’s books have great reviews.  This is worth considering:

http://www.calgaryherald.com/business/amazon+sues+fake+reviewers+latest+salvo+against+fakereview+cottage/11449702/story.html

http://abcnews.go.com/Technology/amazon-cracks-1000-alleged-fake-reviewers/story?id=34573129

Posted by Chimera on 10/19/15 at 04:25 PM | #

@Slow Jane, Thank you so much for your comment above about the DNA on knife, the Luminol, the bra clasp DNA of Raffaele that was not LCN as Bruno complained of. You point out that the tests on bra had been repeated, so the results should be accepted. Repeated tests on bra clasp DNA proved 17 alleles out of 17, a clear match for Raffaele on bra clasp; your facts really trump the Bruno reasoning. A better verb might be your facts eviscerate the poor reasoning. You give Stefanoni her due, thanks.

It is especially odd that Bruno/Marasca conclude no cleanup was done at all, just because a few specks of blood were left behind. Also weak that he doesn’t accept Amanda and Raf’s own admission of drug use. Your above comment is almost a full prosecution case all by itself, the scientific facts that Cassation seems to misinterpret then underrate.

The final result of Bruno/Marasca is, as Peter Quennell aptly says (brought a chuckle), to leave Raffaele and Knox appearing semi-pregnant with guilt. Supreme Court falls back on lack of evidence as their reason to acquit, “even if morally convinced of the culpability of the accused”. Whew, a long way from a shout of “These two people are innocent!” Supremes err on the side of caution, as they see it.

Posted by Hopeful on 10/19/15 at 08:33 PM | #

It is not correct to maintain that the DNA test showing a mixed trace of Meredith and Sollecito on the bra clasp hook was repeated.

Posted by James Raper on 10/20/15 at 09:16 AM | #

Hi Hopeful,

You wrote:

“Supremes err on the side of caution, as they see it.”

They have done no such thing. A la Hellmann, they have bent over backwards in order to acquit Knox and Sollecito. Bruno and Marasca know full well that Knox and Sollecito took part in Meredith’s murder. They acknowledge that Guede acted with others. They also claim that Knox was at the cottage when Meredith was killed and Sollecito was probably there. It’s not difficult to work out who these others were. There’s no evidence that anybody else was involved in Meredith’s murder.

Bruno and Marasca have literally copied and pasted some of Bongiorno’s duplicitous claims. For example, they falsely claim that it is proven that there was no bus services was running.

A couple of nightclub owners testified at the appeal in Perugia that their clubs were closed on 1 November, so they didn’t provide any shuttle buses from Piazza Grimana. However, it’s completely illogical to conclude that there were no buses running from Piazza Grimana that night on the basis of the testimony of a few nightclub owners whose clubs were closed. What about the nightclubs owners whose clubs weren’t closed that night?

John Follain points out in his book that the defence lawyers couldn’t rule out the possibility that other club owners had hired buses or buses had been hired out for private parties. Follain also points out that municipal buses were running that night.

Bruno and Marasca pretend that Italian law doesn’t allow for non-repeatable tests. They all pretend there is an universally accepted set of DNA protocols. They can’t refer to these “international protocols” because they don’t exist. DNA protocols vary from country to country. Some countries accept LCN DNA tests i.e. United States (New York), New Zealand, Holland, Italy, Germany, Croatia, Austria and Switzerland and other countries don’t.

Different organisations have their own recommendations and guidelines. The Italian Scientific Police follow the guidelines of the ENFSI - European Network Forensic Science Institutes. Dr. Stefanoni observed that they followed these specific guidelines whereas Conti and Vecchiotti basically picked and mixed a random selection of international opinions:

“We followed the guidelines of the ENFSI, theirs is just a collage of different international opinions”.

Posted by The Machine on 10/20/15 at 12:04 PM | #

Hi James,

Sollecito’s DNA on Meredith’s bra clasp was identified by two separate DNA tests.

Judge Nencini explained why these two tests proved Sollecito touched the bra clasp on the night of the murder:

“Both by the quantity of DNA analyzed and by the fact of having performed the analysis at 17 loci with unambiguous results, not to mention the fact that the results of the analysis were confirmed by the attribution of the Y haplotype to the defendant, it is possible to say that it has been judicially ascertained that Raffaele Sollecito’s DNA was present on the exhibit; an exhibit that was therefore handled by the defendant on the night of the murder.” (The Nencini report, page 267).

Posted by The Machine on 10/20/15 at 12:15 PM | #

Quite true TM.

But that’s not what I meant by repeats.

If you have enough DNA then you divide the sample, take one and run it through the electropherogram. If you get an unambiguous result then there is no need to test the remainder. In the case of sample B from the knife there was no remainder.

In the case of the bra clasp there was an unambiguous result and it was possible to perform a chromosome analysis of the Y haplotype on the same sample. There was no need to test the remainder.

Indeed Stefanoni did not have to perform a single “repeat” analysis, that is, using any remainder, in any of her testing, which includes the positive results for Guede.

If the dogmatic assertion by Marasca and Bruno, that DNA testing has no probative or circumstantial value unless one can repeat the test, is now the law of Italy, then if I was Guede I would be demanding a repeat of all the tests that convicted him. Who knows? Maybe over the past 8 years any remainder has deteriorated to such an extent that a repeat is not now possible?

On the other hand perhaps he realizes that the new law was just a one off exception for Knox and Sollecito.

Posted by James Raper on 10/20/15 at 05:04 PM | #

@The Machine, Truth is our only goal, and after reading your comment I concur with your forthright argument that Bruno/Marasca have bent over backward to release Sollecito and Knox.

It’s good and bracing to hear the DNA discussed again from you and Raper. I’m still unsure about the repeatability issue, just due to my own mental confusion in the matter, but I’ll be glad to stand corrected. I’m convinced the 17 out of 17 placed Raffaele at scene of the crime, which adds more weight to the footprint on blue rug being his. 

Also I am heartened by a recent word by Mignini where he said, “I did nothing wrong,” and “I would do the same thing over again”, which I assume would include not allowing shoddy and uncertain DNA results to pass.

Further good news, the rumors over at PMF.net are that the Kerchers may be rallying for a civil suit. Their lawyer, Francesco Maresca, is calling for a new “battle”. This is the first real encouragement that Knox and Sollecito may be held accountable after all rather than sailing off into the sunset.

It seems Sollecito is stirring up more attention on TV shows claiming he wants an investigation into the investigation, and claims he has joined the Radical Party, whatever that is. Both sound like signs of defiance. Zorba’s marvelous satire yesterday on PMF.net of an imaginary discussion between Raf and his father is absolutely priceless and quite revealing.

The defense’s bus arguments were worthless and farfetched, I agree. Too many clubs, too many busses to rule out Toto’s sightings. 

@James Raper, your word on repeatability requirement being a non-law is noted. Good point, that single tests gave results that court accepted for Guede.

I think the Luminol footprints were wrongly handwaved away and were perfectly solid evidence of Knox’s feet in Meredith’s blood. The five mixed DNA spots including one in Romanelli’s room, that were in Meredith’s blood mixed with Knox’s DNA also should have weighed heavier with Bruno/Marasca.

Posted by Hopeful on 10/20/15 at 07:07 PM | #

...Following on from Hopeful, don’t forget, Curatolo was able to describe the forensics team in their white overalls arriving next day.

Yes, if RS’ DNA was a transfer from the door/cigarette butt, how much more was RG’s DNA caused by contamination from being invited in by AK,most likely.  Suddenly, contamination is highly improbable.

James Raper, it was a strong RS DNA match, so the defense bewailing the braclasp is now useless for further testing, is little more than a red herring.

The defense wete there when it was tested.  They raised no objections at the time.

Thanks for raising the point.

Posted by Slow Jane on 10/21/15 at 08:30 PM | #

This tweet is definitely worth retweeting:

https://twitter.com/twwitteria/status/657189258625728512

Posted by The Machine on 10/22/15 at 10:43 AM | #

Our next post follows tomorrow.

Apologies to Machiavelli, Chimera and several others who have posts pending, I was on the road for 3 weeks and it was tough in the past few days to advance the pipeline.

Do please see Machiavelli’s latest tweet on one possibility Marasca and Bruno opened the door to:

https://twitter.com/Machiavelli_Aki/status/656205636229865473

Posted by Peter Quennell on 10/22/15 at 12:13 PM | #


Make a comment

If you are reading this please log in to post a comment.

Smileys



Where next:

Click here to return to The Top Of The Front Page

Or to next entry Revenge Of The Knox, The Smear-All Book: We Get Down To Nailing ALL Her Invented Claims #8

Or to previous entry TJMK/Wiki Translation Of The Marasca/Bruno Report #4 Of 7: Continuing Dismissal Of Various Claims