TJMK/Wiki Translation Of The Marasca/Bruno Report #4 Of 7: Continuing Dismissal Of Various Claims
Posted by The TJMK Main Posters
Another Italian masterpiece on justice (in this case brutal justice, by Caravaggio)
Overview Of The Post and the Series
Only two more posts after this one (we promise!).
Machiavelli already posted what constitutes Part #7 and also the first few paras of this one.
Translation was by a professional translator with extensive finalization by Machiavelli with some help from the Wiki team of the judicial terms used and the accuracy of the English relative to what is in the report.
Again this seems like a lot of furious backpedaling away from the imperial, magisterial announcement by Judge Marasca back in late March.
Our further critiques will be posted separately in Comments and other posts. Please consider this pre-final. Suggestions for improved translation are welcome. The PDF version to go on the Wiki will be the final.
On Further Appeal Grounds
4.3.1 As for the first question, the use of the [Guede’s] definitive verdict in the current judgement, for any possible implication, is unexceptionable , since it abides with the provision of art. 238 bis of Penal Code [sic]. Based on such provision “(…) the verdicts [p. 26] that have become irrevocable can be accepted [acquired] by courts as pieces of evidence of facts that were ascertained within them and evaluated based on articles 187 and 192 par 3”.
Well, so the “fact” that was ascertained within that verdict, indisputably, is Guede’s participation in the murder “concurring with other people, who remain unknown”. The invoking of the procedural norms indicated means that the usability of such fact-finding is subordinate to [depends on] the double conditions [possibility] to reconcile such fact within the scope of the “object of proof” which is relevant to the current judgement, and on the existence of further pieces of evidence to confirm its reliability.
Such double verification, in the current case, has an abundantly positive outcome. In fact it is manifestly evident that such fact, which was ascertained elsewhere [aliunde], relates to the object of cognition of the current judgement. The [court’s] assessment of it, in accord with other trial findings which are valuable to confirm its reliability, is equally correct. We refer to the multiple elements, linked to the overall reconstruction of events, which rule out that Guede could have acted alone.
Firstly, testifying in this direction are the two main wounds (actually three) observed on the victim’s neck, on each side, with a diversified path and features, attributable most likely (even if the data is contested by the defense) to two different cutting weapons. And also, the lack of signs of resistance by the young woman, since no traces of the assailant were found under her nails, and there is no evidence elsewhere [aliunde] of any desperate attempt to oppose the aggressor; the bruises on her upper limbs and those on mandibular area and lips (likely the result of forcible hand action of constraint meant to keep the victim’s mouth shut) found during the cadaver examination, and above all, the appalling modalities of the murder, which were not adequately pointed out in the appealed ruling.
And in fact, the same ruling (p. 323 and 325) reports of abundant blood spatters found on the right door of the wardrobe located inside Kercher’s room, about 50 cm above the floor. Such occurrence, given the location and direction of the drops, could probably lead to the conclusion that the young woman had her throat literally “slashed” likely as she was kneeling, while her head was being forcibly held [hold] tilted towards the floor, at a close distance from the wardrobe, when she was hit by multiple stab wounds at her neck, one of which – the one inflicted on the left side of her neck – caused her death, due to asphyxia following [to] the massive bleeding, which also filled the breathing ways preventing breathing activity, a situation aggravated by the rupture of the hyoid bone – this also linkable to the blade action – with consequent dyspnoea” (p. 48).
Such a mechanical action is hardly attributable to the conduct of one person alone.
On the other hand such factual finding, when adequately valued, could have been not devoid of meaning as for researching the motive, given that  the extreme violence of the criminal action could have been seen – because of its abnormal disproportion – not compatible with any of the explanations given in the verdict, such as mere simple grudges with Ms. Knox (also denied by testimonies presented, [even] by the victim’s mother); with sexual urges of any of the participants, or maybe even with the theory of a sex game gone wrong, of which, by the way, no mark was found on the victim’s body, besides the violation of her sexuality by a hand action of Mr. Guede, because of the DNA that could be linked to him found inside the vagina of Ms. Kercher, the consent of whom, however, during a preliminary phase of physical approach possibly consensual at the beginning, could not be ruled out.
Such finding is even less compatible with the theory of the intrusion of an unknown thief inside the house, if we consider that, within the course of ordinary events, while it is possible that a thief is taken by an uncontrollable sexual urge leading him to assail a young woman when he sees her, it’s rather unlikely that after a physical and sexual aggression he would also commit a gratuitous murder, especially not with the fierce brutality of this case, rather than running away quickly instead. Unless, obviously, we think about the disturbed personality of a serial killer, but there is no trace of that in the trial findings, since there are no records that any other killings of young women with the same modus operandi were committed in Perugia at that time.
4.3.2. With regard to the second matter, relative to the option of akkowing – as article 238 bis of the code of criminal procedure allows – declarations “against others” made by Guede in the context of his own procedures in absence of other defendants (with reference to declarations, not always coherent and consistent, during the preliminary investigations and noted in his sentencing reports, somehow involving Knox in the homicide, but never explicitly Sollecito, while continuing to plead innocence, despite the presence in the crime scene and on the victim’s body of multiple biological traces attributed to him), the ruling can only be negative. Such a mode of allowance would result in an evasion of the guarantees dictated by article 526 chapter 1- bis, of the code of criminal procedure, according to which “the defendant’s guilt cannot be proved on the basis of declarations produced by anyone who, in free will, had always voluntarily avoided the examination by the accused or his defense team”. And furthermore, it seems a clear violation of article 111, chapter four. of the Constitution, which dictates identical an prescription in order to harmonize judicial processes according to article 6 letter d) of the European Convention for Human Rights (Section F. n. 35729 of the 1st August 2013, Agrama, Rv 256576).
In this regard, it appears useful to refer to the principle of “non-substitutability”, accepted by the United Divisions of this Supreme Court under the category “legality of the proof”, meaning that, when the code establishes an evidentary prohibition or an expressed non-usability, it is forbidden to resort to other procedural instruments, typical or atypical, with the purpose of surreptitiously avoid such obstacle (Section U, n. 36747 of the 28 May 2003, Torcasio, Rv. 225467; cfr,, also, Section U, n. 28997 of the 19 April 2012, Pasqua, Rv. 252893).
And also during this trial, Guede – asked to speak as contextual witness, following the accusative declarations of the convicted offender Mario Alessi (sentenced for the horrible homicide of a child) – after denying the accusations of the aforementioned, confirmed the content of a letter sent by him to his attorneys which was then, surprisingly, shared with a television news service, in which he accused the current contestants - has then, substantively, avoided cross-examination by the defendants. And in fact, after recognizing the authenticity of the missive, where he denied what was stated by Alessi, regarding some asserted confidences related to the innocence of Raffaele Sollecito and Amanda Knox, he didn’t wanted to be cross-examined by the accused’s defense, claiming his presence (as contextual witness) was limited to the content of Alessi’s declarations, which was with regard to him. So, the non-usability of what he declared – in the part concerning the letter that related to the current contestants – that is not useable in a different procedural context because it was produced absent the prescribed guarantees.
Furthermore, facing such unmoving and non-cooperative behavior, the appeal judge [Hellmann] did automatically insist on cross-examination of the Ivorian, despite the final irrevocability of the sentence against him, and failed to resolve the incompatibility of speaking in the present proceeding, according to article 197 of the code of criminal procedure.
And in fact, according to article 197 bis chapter 4 of the same standard code of procedure, he could have not been obliged to depose on the facts for which he had received a sentence, having always denied, during the proceeding against him, his responsibility and, not being able, in any way, to depose on facts involving his responsibility regarding the crime for which he was accused.
4.4 Finally, continuing on the preliminaries, the matter of standards must be faced, as claimed by the defense, regarding the denial of the claim for renewed court hearings during the appellate trial, on the request of carrying out new external investigations as requested.
The appeal exception was founded upon the observance of the presumed obligatory nature of the request of evidential integration of article 627, chapter 2, second part, according to which “[….] if a sentence in appeal has been annulled and the parties request it, the judge can order a reviewing of the court hearings by obtaining proofs relevant to the decision”
Clearly, the letter of this norm is far from the discipline of the regular powers of the appellate judge regarding this matter under article 603 of the code of criminal procedure “non-decidability of the state of proceedings”, in the hypothesis above in part 1, that the defense request referred to evidences already collected or new; referring to the criteria of article 495, chapter 1, on the hypothesis of new evidences found after the first instance ruling; there is “absolute necessity” of its integration with supplementary investigations, in case of review ex officio, beyond the special subject matter (originally in application and now canceled, according to article 11 law 28 April 2014, n. 67) of the requested review in favor of a defendant absent from the trial in the first instance.
The Supreme Court here states that the particular formulation of the aforementioned rule does not require the appellate judge, in the hypothesis of annulment of the first instance ruling, to be obliged to renew the court hearings just because the parties request it. A different interpretation would not have a rational basis and, instead, would introduce a dystonic element in the discipline of the institution.
In fact, the first part of the second chapter of article 627 of the code of criminal procedure highlights that the appellate judge decides with the same powers of the judge whose ruling has been annulled, except only for limitations originating in the law.
For a harmonic reconstruction that follows the code’s architecture it is imperative, then, to consider that the specific observance of the trial ruling renewed during the appeal judgment should not create an exception to the general requirement dictated in article 603 of the code of criminal procedure.
Furthermore it is clear that the reference, in chapter 2 of article 627 of the code of criminal procedure, to the assumption of “relevant” evidence for the decision constitutes a mere repetition, given that the trial judgment is, necessarily, central to the evaluation by the appeal judge charged with the requirement of evidentiary integration and the same appreciation of absolute necessity inspiring the appeal. And in fact, in case of renewing of the trial hearings on appeal no evidence that is not “relevant” to the decision may enter the proceeding; and the same thing applies, more generally, to the whole evidential section of the criminal proceeding, according to the fundamental principle stated in article 190 of the standard code of procedure, according to which the judge has to approve the evidence requested by the parties, excluding, beyond the instances prohibited by the law, any “manifestly irrelevant or unnecessary” evidence.
In this sense, with this clarification, it is worth, therefore, restating the orientation expressed, regarding this matter, by this Supreme Court on similar occasions
(Section 5, n. 52208 of 30 September 2014, Marino, Rv. 262116, according to which “the appellate judge, charged with the proceeding following the annulment declared by the Court of Cassation, is not obliged to reopen the court hearings every time the parties demand this, because his powers are identical to the ones of the judge whose sentence was annulled, and he has to accept assumption of the suggested new evidence only if it is necessary for the new decision” according to article 603 of the code of criminal procedure, and article 627, second chapter, of the code of criminal procedure; Section 1, n. 28225 of 09 May 2014, Dell’Utri, Rv. 260939; Section 4, n. 20422 of 21 June 2005, Poggi, Rv, 232020; Section 1, n. 16786 of 24 March 2004, De Falco, Rv. 227924)
Also, without question, the use of the powers conferred upon the appellate judge regarding new investigation, has as always to be concretely motivated and the relative motivation is, of course, again contestable by the Supreme Court.
In this specific case, the appeal judge [Nencini] has given a concrete reason for denying further evidentiary incorporation, considering it irrelevant for his decision purpose.
Furthermore the motivations for the denial of appeal implicitly emerged from the judge’s motivational construct, which declared complete the evidentiary compendium.
Furthermore, there is no reason to assumne, even within the specific appellate judgment, that the general principle of neutral expertise separated from the viewponts of the parties and remitted to the discretional power of the judge, was not observed because “it doe not come within the category of decisive proof and the consequent ruling of denial is not arguable according to article 606, chapter 1, let. d), of the code of criminal procedure, because it represents the result of a factual judgment which, if supported by adequate motivation, cannot be reversed by Cassation” (Section 6, n. 43526 of 3 October 2012, Ritorto, Rv. 253707).
5. Now having resolved, in the sections above, the defense’s prejudicial claims, and the preliminary standard ones, the “merit” of the judgment can now be considered, in relation to the substance of the appealed matters
Firstly, it has to be assumed that, according to the loss of rights claimed under point b), relative to the charge of illegal carrying of the knife, this is now beyond the statute of limitations.
This has to be accepted, even in absence of more favorable reasons for acquittal on the merit, referring to article 129, second chapter, of the code of criminal procedure, and also the declarations of guilt in the trial sentence and the second appeal court.
Moreover, according to the undisputed decision of this Court of Cassation “the acquittal formula on the merit prevails on the statute of limitations in appeal cases where, with a mere analysis, the absolute absence of the proof of guilty against the defendant that is in fact positive proof of innocence can be observed, though not in the case of mere contradiction or insufficiency of the evidence which requires a pondered judgment between opposing conclusions, n.10284 of 22 January 2014, Culicchia, Rv. 259445).
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