Headsup: Disney's Hulu - mafia tool?! First warning already sent to the Knox series production team about the hoaxes and mafia connections. The Daily Beast's badly duped Grace Harrington calls it "the true story of Knox’s wrongful conviction of the murder of her roommate". Harrington should google "rocco sollecito" for why Italians hesitate to talk freely.

Category: Supreme Court

Saturday, December 09, 2017

Exoneration Hoax: Murder Apologists Should READ The Supreme Court’s Final Words

Posted by The Machine

Emory Law Dean Schapiro; Martha Grace Duncan; Harvard Law Dean Manning

1. Overview Of This Post

This flows from our first post ten days ago.

Martha Grace Duncan credits many dozens for their research help. Really? For precisely what? 

This is more about the research that Martha Grace Duncan and the huge group she thanks (see Part 4 below) should have done.  We will see here how she makes false claims that even a mere hour or two of checking if the courts actually said what she claimed would have stopped those claims dead in their tracks.

Did neither Duncan nor any of those hapless dozens now associated with her fraud think to do that? Below, with quotes, I will show how it is done.

2. Misrepresentation Of Supreme Court

It is blatantly apparent from reading Martha Grace Duncan’s academic paper bizarrely titled “WHAT NOT TO DO WHEN YOUR ROOMMATE IS MURDERED IN ITALY: AMANDA KNOX, HER “STRANGE” BEHAVIOR, AND THE ITALIAN LEGAL SYSTEM”  that she hasn’t actually read Judge Marasca’s final Supreme Court report.

She is ignorant of what that court actually said, and so she thoroughly misrepresents it.

Remember: (1) An acquittal under paragraph 1 of article 530 is a definitive acquittal or exoneration, the much stronger outcome. (2) An acquitted under paragraph 2 of article 530 is an insufficient evidence acquittal or dropping of charges for now. 

Also remember: Knox received TWO convictions: (1) for murder and (2) for calunnia. Duncan falsely claims in her academic paper that Amanda Knox has been “fully exonorated by Italy’s highest court” implying both. Knox was not exonerated for either conviction in fact.

If Martha Grace Duncan had read the final Supreme Court report, she would have known that Amanda Knox and Raffaele Sollecito were merely acquitted for murder for now under paragraph 2.

(That is appealable, as is overuling of the Nencini court and dabbling in the evidence, as both are against the code.)

Martha Grace Duncan further highlights her ignorance with regard to the contents of Marasca’s Supreme Court report by falsely claiming that the Supreme Court dropped all charges against Amanda Knox and Raffaele Sollecito.

“March 29, 2015: The Supreme Court of Cassation overturns the murder convictions of Amanda and Raffaele and drops all charges against them.”

The Supreme Court actually reconfirmed Amanda Knox’s conviction for calunnia. She served three years in prison for repeatedly accusing Diya Lumumba of murder despite the fact she knew he was innocent.

“It is restated the inflicted sentence against the appellant Amanda Marie Knox, for the crime of slander at three years of prison.”

Judge Marasca pointed out in his report that Amanda Knox’s conviction for calunnia cannot be overturned.

“On the other hand, in the slanderous declaration against Lumumba, which earned her a conviction, the status of which is now protected as a final judgement”.

There is a common misconception amongst Amanda Knox’s supporters that the European Court of Human Rights (ECHR) might overturn Knox’s conviction for calunnia.

However, she is believed not even to have asked for that. And the ECHR cannot quash or reverse verdicts anyway, it can only recommend. In other words, Amanda Knox will remain a convicted criminal, a felon, for the rest of her life. That cannot be wound back.

Appeal Judge Nencini pointed out in his report that Amanda Knox didn’t retract her false and malicious allegation against Diya Lumumba the whole time he was in prison, and the motive for her allegation was to deflect attention away from herself and Sollecito and avoid retaliatory action from Rudy Guede.

“Amanda Marie Knox maintained her false and malicious story for many days, consigning Patrick Lumumba to a prolonged detention. She did not do this casually or naively. In fact, if the young woman’s version of events is to be relied upon, that is to say, if the allegations were a hastily prepared way to remove herself from the psychological and physical pressure used against her that night by the police and the prosecuting magistrate, then over the course of the following days there would have been a change of heart. This would inevitably have led her to tell the truth, that Patrick Lumumba was completely unconnected to the murder. But this did not happen.

“And so it is reasonable to take the view that, once she had taken the decision to divert the attention of the investigators from herself and Raffaele Sollecito, Amanda Marie Knox became fully aware that she could not go back and admit calunnia. A show of remorse would have exposed her to further and more intense questioning from the prosecuting magistrate. Once again, she would bring upon herself the aura of suspicion that she was involved in the murder.

Indeed, if Amanda Marie Knox had admitted in the days following to having accused an innocent man, she would inevitably have exposed herself to more and more pressing questions from the investigators. She had no intention of answering these, because she had no intention of implicating Rudy Hermann Guede in the murder.

“By accusing Patrick Lumumba, who she knew was completely uninvolved, because he had not taken part in the events on the night Meredith was attacked and killed, she would not be exposed to any retaliatory action by him. He had nothing to report against her. In contrast, Rudy Hermann Guede was not to be implicated in the events of that night because he, unlike Patrick Lumumba, was in Via della Pergola, and had participated [100] in the murder. So, he would be likely to retaliate by reporting facts implicating the present defendant in the murder of Meredith Kercher.

“In essence, the Court considers that the only reasonable motive for calunnia against Patrick Lumumba was to deflect suspicion of murder away from herself and from Raffaele Sollecito by blaming someone who she knew was not involved, and was therefore unable to make any accusations in retaliation. Once the accusatory statements were made, there was no going back. Too many explanations would have had to be given to those investigating the calunnia; explanations that the young woman had no interest in giving.”

The Marasca/Bruno court took no issue with that. Judge Marasca also believed Amanda Knox wanted to avoid retaliatory action from Rudy Guede and stated it was a circumstantial element against her.

“However, the said calunnia is another circumstantial element against the appellant, insofar as it can be considered a strategy in order to cover up for Mr. Guede, whom she had an interest to protect because of fear of retaliatory accusations against her.”

Apart from these two significant factual errors concerning the Supreme Court’s rulings in her academic paper, it’s clear that Martha Grace Duncan is labouring under the misapprehension that Amanda Knox was “fully exonerated” by the Supreme Court because there is some exculpatory evidence that provides definititve proof that Amanda Knox is innocent. However, she never explains what this exculpatory evidence is.

If Martha Grace Duncan had taken the time to read Marasca’s report, she would have known that the Supreme Court didn’t fully exonerate Amanda Knox at all. On the contrary, it actually implicated her in Meredith’s murder.

It ascertained the following: (1) there were multiple attackers (2) it’s a proven fact that Amanda Knox was at the cottage when Meredith Kercher was killed (3) she washed Meredith’s blood off in the small bathroom (4) she lied to the police (5) she falsely accused Diya Lumumba of murder to cover for Rudy Guede in order to avoid retaliatory action and (6) the break-in at the cottage was staged.

I’ll substantiate each and every one of the claims above with quotations from Judge Marasca’s report to show Martha Grace Duncan how it is done and to give her the full picture of what’s in the report rather than the partial one that has been given to her presumably by Amanda Knox and her supporters.

1. There Were Multiple Attackers On The Night

“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 multiple elements linked to the overall reconstructions of events, which rule out Guede could have acted alone.

Firstly, testifying in this direction are the two main wounds 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 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 pointed out in the appealed ruling.

“And in fact, the same ruling (p323 and 325) reports of abundant blood found on the right of the wardrobe located in Kercher’s room, about 50cm above the floor. Such occurrence, given the location and direction of the drops, could probably lead to the conclusion the young woman had her throat literally “slashed” likely while she was kneeling , while her head was being forcibly held 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 the neck - caused her death, due to asphyxia following 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 blade action - with consequent dyspnoea” (p.48).

“Such a mechanical action is hardly attributable to the conduct of one person alone.” (p.49)

2. Amanda Knox was there when Meredith was killed

“Given this, we now note, with respect to Amanda Knox, that her presence inside the house, the location of the murder, is a proven fact in the trial, in accord with her own admissions, also contained in the memoriale with her own signature, in the part where she tells that, as she was in the kitchen, while the young English woman had retired in the room of same Ms Kercher, together with another person for a sexual intercourse, she heard a harrowing scream, so piercing and unbearable that she let herself down squatting on the floor, covering her ears tight with her hands in order not to hear more of it. About this, the judgement of reliability expressed by the lower [a quo] judge [Nencini] with reference to this part of the suspect’s narrative, [and] about the plausible implication from the fact herself was the first person mentioning for the first time [46] a possible sexual motive for the murder, at the time when the detective still did not have the the cadaver examination, nor the autopsy result, nor the witnesses’ information, which collected only subsequently, about the victim’s terrible scream and about the time when it was heard (Nara Capezalli, Antonella Monocchia and others), is certainly to be subscribed to. We make reference in particular to those declarations that the current appellant [Knox] on 11.6.2007 (p.96) inside the State Police headquarters. On the other hand, in the slanderous declaration against Lumumba, which earned her a conviction, the status of which is now protected as a final judgement [giudicato] [they] had a premise in the narrative, that is the presence of the young American woman, inside the house in via della Pergola, a circumstance which nobody at that time - except obviously the other people present in the house - could have known (quote p.96). 

“According to the slanderous statements of Ms. Knox, she had returned home in the company of Lumumba, whom she had met by chance in Piazza Grimana, and when Ms. Kercher arrived in the house, Knox’s companion, directed sexual attentions toward the English woman, then he went together with her to he room from which the harrowing scream came. So, it was Lumumba who killed Meredith and she could affirm this since she was on the scene of the crime herself, albeit in another room. (p.97)

3. Amanda Knox washed Meredith’s blood off in bathroom

“Another element against her [Amanda Knox] is the mixed traces, her and the victim’s one, in the ‘small bathroom’, an eloquent proof that anyway she had come into contact with the blood of the latter, which she tried to wash away from herself (it was, it seems, diluted blood, while the biological traces belonging to her would be the consequence of epithelial rubbing).

“The fact is very suspicious, but it’s not decisive, besides the known considerations about the sure nature and attribution of the traces in question.”

4. Cassation confirms Amanda Knox lied to the police

“Elements of strong suspicion are also in the inconsistencies and lies which the suspect woman [Amanda Knox] committed over the statements she released on various occasions, especially in the places where her narrative was contradicted by the telephone records which show different incoming SMS messages”.

5. Knox accused Lumumba of murder to avoid Guede’s retaliation

“However, the said calunnia is another circumstantial element against the appellant, insofar as it can be considered a strategy in order to cover up for Mr. Guede, whom she had an interest to protect because of fear of retaliatory accusations against her.”

6. The break-in at the cottage was staged

“And moreover, the staging of a theft in Romanelli’s room, which she is accused of , is also a relevant point within an incriminating picture, considering the elements of strong suspicion (location of glass shards - apparently resulting from the breaking of a glass window pane caused by the throwing of a rock from the outside - on top of the clothes and furniture) a staging, which can be linked to someone who as an author of the murder and flatmate [titolare] with a formal {“qualified”] connection to the dwelling - had an interest to steer suspicion away from himself/herself, while a third murderer in contrast would be motivated by a very different urge after the killing, that is to leave the dwelling as quickly as possible.”

3. Duncan’s Misrepresentation Of Supreme Court

Writing an academic paper on the Amanda Knox case without having read Judge Marasca’s Supreme Court report is akin to writing an academic paper on the assassination of JFK without having read the Warren Report and relying on Oliver Stone’s film and some books written by conspiracy nuts.

The fact Martha Grace Duncan hasn’t even read Marasca’s Supreme Court report, but has instead relied primarily on Amanda Knox and her PR and partisan supporters for her information is embarrassing, to say the least.

Amanda Knox admitted lying to the police in her Waiting to Be Heard. She was convicted of lying by all courts, including the Italian Supreme Court. Since when did the word of a convicted liar trump the official court reports?

Martha Grace Duncan is a professor of law, although you couldn’t tell that from reading her academic paper. Her mistakes e.g. getting basic facts wrong and not bothering to read Marasca’s Supreme Court report or any other official court reports for that matter are unforgivable.

An early version of this Article received the Judith Siegel Pearson Award for Nonfiction in 2014. I am grateful to the judges. Previous versions of this Article were presented at the Dipartimento di Giurisprudenza, Università  degli Studi di Torino; the European University Institute, Fiesole, Italy; the Emory Law Faculty, the Emory Psychoanalytic Studies Program, and the Emory Workshop on Geographies of Violence. My thanks go to the participants. My thanks also go to Robert Ahdieh, Giulia Alagna, Cathy Allan, Flavia Brizio-Skov, Michele Caianiello, Elisabetta Grande, Joe Mackall, Stefano Maffei, Alice Margaria, Claudia Marzella, Gaetano Marzella, Colleen Murphy, David Partlett, Lucia Re, Bob Root, Elena Urso, and Liza Vertinsky. Deep appreciation goes to my research assistants: Stefania Alessi, Mary Brady, Andrew Bushek, Peter Critikos, Sarah Kelsey, Tess Liegois, Zishuang Liu, Mike McClain, Jon Morris, Kaylie Niemasik, Sarah Pittman, Faraz Qaisrani, Deborah Salvato, Shannon Shontz-Phillips, Anthony Tamburro, and Michelle Tanen.

Monday, May 02, 2016

Revenge “On” The Knox: Judges Bruno And Marasca Of The Supreme Court Strike Back

Posted by Chimera

Judge Bruno the drafter of the seriously bizarre Fifth Chambers report “Who, me?!!!”

1. Overview Of The Post

We have posted both multi-part analyses of the Amanda Knox book (extended 2015 edition) and also multi-part analyses of the 2015 Supreme Court verdict attempting to apply closure to the case.

Primarily because they both make so much up and leave so much out, both efforts appear to Italian lawyers and observers and our own team to have fallen far short.

Worse, as I demonstrate here, Knox and the Supreme Court were not even on the same page. They used different arguments which tend to cancel one another out.

In effect the report of Judges Bruno and Marasca late in 2015 pulled the rug out from under Knox’s book published a few months before.   

2. Arguments Of The Supreme Court

The final report from the 5th Chambers of Cassation was released in September 2015, several months late, with rumors swirling in Rome that it was proving a tough task. 

Our five critique series were put together by (1) the Perugia prosecution, (2) Machiavelli, (3) Catnip, (4) James Raper (the longest of those four), and (5) in draft by Olleosnep.

From James Raper critique Part 1

The Fifth Chambers argued as follows:

1.  The standard of “beyond any reasonable doubt” was not met due to insufficient and/or contradictory evidence - pursuant to Article 530, section 2 of the Italian Code of Criminal Procedure.

2.  Multiple attackers upheld. Guede was guilty with others unknown.

3.  The break-in in Romanelli’s room was staged.

4.  Amanda Knox was present in the cottage at the time of the murder but there is insufficient evidence that she played a participatory role.

5.  The DNA profile of Meredith Kercher on the knife and the DNA profile of Raffaele Sollecito on the bra clasp have “no probative or circumstantial relevance”

6.  “Motive is not irrelevant” and motive was not established.

7.  No selective cleaning.

8.  No purpose would be served in remanding the case back to the 1st instance court of appeal (as had occurred on appeal against acquittal)

From James Raper Critique Part 5

The Fifth Chambers argued as follows:

1.  Knox was present in the cottage at the time of the murder but in a non-participatory role. Very probably (if this is not a held fact) she had scrubbed Meredith’s blood off her hands in the small bathroom.

2.  Sollecito was very probably there as well, but it cannot be known when.

3.  There was certainly an assailant (and perhaps more than one) in addition to Guede.

4.  There was a staging of the break-in in Filomena’s room.

While this seems (in a very tortuous way), to assert an “insufficient evidence” finding rather than an “innocence” finding, the findings of the 5th Chambers are now considered final, unless they are overturned.

That being said, these findings directly refute the bulk of Knox’s book “Waiting to be Heard”

3. Arguments of Amanda Knox

Our 12-part series taking apart the claims in Knox’s book can be found here.

(1) Chapter 5, 6: The Evening and Morning After Meredith Died

Knox Version (A): AK/RS were at his apartment, watching Amelie, smoking pot, reading Harry Potter and f***ing.  AK returned to her home late the next morning.

Knox Version (B): AK was in the kitchen while PL was murdering Meredith

Knox Version (C): AK was in the kitchen while PL was murdering Meredith, and RS was probably there

Knox Version (D): AK has no clue what was going on, and doesn’t remember anything.

Version (A) is the story AK told in her book and on television—though the details are flexible.  Versions (B), (C), and (D) are the 3 statements she made November 5th/6th.

However, the truth Bruno and Marasca think is closest to the truth (pun intended), is version (C), with Guede as the killer instead of PL.

Other courts: Pre-Trial Judge Micheli (October 2008), Trial Judge Massei (2009), Appeal Judge Nencini (2014) all found that Knox was not only involved, but that she personally killed Meredith.  Even if you accept the Cassation ruling that AK wasn’t actually involved, the final ruling did place her at the crime scene, and RS probably so.

Bullshit level: COMPLETE

(2) Chapters 7, 8, 9: The Ensuing Investigation

AK goes on and on in WTBH about how she was trying to help the police.  She complains about how she was subjected to repeated and very lengthy interviews.  However, she never shared any of the insider information she had about that night.  The police officers involved noted that she and RS seemed particularly unhelpful.

Bullshit level: COMPLETE

(3) Chapters 10, 11: The Knox Interrogation Hoax

AK goes on in great detail especially in Chapter 10 about how she was lured to the police station, and brutally interrogated.  In her December 2013 email to Judge Nencini, she refers to it as “torture”.

Interesting how she remembers it with such lurid detail.

  As AK points out, there is no recording or video
  All of the officers involved give “very” different accounts
  AK claims to be traumatized and have her memory go blank

AK’s performance was convincing enough to make Judge Claudia Matteini (November 2007) believe PL was the killer.  But since then ....

(a) the 3 judge panel headed by Judge Massimo Ricciarelli (November 2007);

(b) the 5 judge Cassation panel headed by Judge Torquato Gemelli (April 2008);

(c) pre-trial Judge Paolo Micheli (October 2008);

(d) trial jury headed by Judge Giancarlo Massei (December 2009);

(e) appellate jury headed by Hellmann/Zanetti (October 2011);

(f) Cassation panel headed by Judge Chieffi (March 2013);

(g) appellate jury headed by Judge Alessandro Nencini (January 2014);

(h) Cassation panel headed by Bruno/Marasca (March 2015)

.... have ALL ruled that AK framed PL, and that she did it willingly, and wasn’t tricked or coerced.

Bullshit level: COMPLETE

(4) The Afterword: Everything After Hellmann’s Ruling

AK triumphantly declares that Cassation (2015) found her and RS innocent.  But once again, AK releases her book prior to the Cassation report.  Idiot.

Se especially here.

AK does misrepresent far more than just the 2015 Cassation findings in the Afterword.  More on that later.

Bullshit level: COMPLETE

(5) Understanding the Bruno/Marasca Ruling

At a minimum, Chapters 5, 6, 7, 8, 9, 10, 11 and the Afterword of “Waiting to be Heard” are complete bullshit.

Considering that these bogus claims are repeated throughout the book, it can reasonably be inferred that much of the rest is made up as well. 

This is not me talking.  This is referencing the Bruno/Marasca ruling, which as it stands, is final.

(6) Author’s Note

This is a lot of speculation on my part, (as Andrew Gumbel would say “hearsay and speculation abound”), but feel free to comment

The B/M report can be understood in one word: finality.  They don’t want any one else looking at it.

(A) B/M rule “insufficient evidence” rather than “innocent” hoping to placate the Italian public.

(B) B/M sabotage AK’s ECHR appeal chances, as they don’t want another court looking to carefully at it

(C) B/M ruling essentially says “just short of guilty” to stop AK/RS from crowing about their innocence.

(D) B/M ruling claims AK/RS lied and obstructed to ward off any potential wrongful imprisonment lawsuit.

(E) B/M do strongly imply AK/RS are guilty to try to give a “moral win” to the Kerchers.

(F) B/M appear to bend over backwards to acquit, trying to look “incompetent, at worst”, rather than corrupt.

(6) The problem is: Bruno and Marasca haven’t taken into account the personalities of everyone involved

(a) The Hellmann/Zanetti ruling (October 2011) stunk of corruption, so Italy would be immediately suspicious of anything remotely similar.

(b) AK’s ECHR appeal seems to warded off for now, but AK seems hell bent on going ahead anyway.

(c) AK/RS did start parading around again, and AK re-released her book

(d) RS and Papa Sollecito sued anyway.

(e) Far from giving a “moral win”, this ruling and the accompanying report just leave a bad taste.

(7) Bullshit in WTBH (Beyond Bruno/Marasca)

Chapter 1: Before Leaving Italy

Questions For Knox: Why The Huge Lie About Your ZERO Academic Intentions In Europe?

Chapter 2: Federico Martini (a.k.a. Cristiano)

US And UK Media Wrongly Attribute Italian Report Of Knox/Cocaine-Dealer Link To Trial Prosecutors

Multiple: Capanne Chapters

The Amanda Knox Book: Good Reporters Start To Surface Amanda Knox’s False Claims In Droves

Chapter 31-35: The Hellmann Appeal

A Summary Of The Cassazione Ruling On Annulment Of The Knox-Sollecito Appeal

4. Final Thoughts

I stand by my claim that WTBH is 90-95% bullshit.

Fair to say, Bruno and Marasca would likely agree.

Thursday, November 05, 2015

A Critique In Five Parts Of The Fifth Chambers Motivation Report By Judges Marasca And Bruno #1

Posted by James Raper

Image is of busy Rome at night

The Fifth Chambers Motivation Report

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

This is the 54 page report released by the Fifth Chambers of the Italian Supreme Court late in September. For a full translation of the Report which can be referred to or downloaded please click here.

Key Decisions Of The Court

These are the eight main decisions I found In The Report -

1.  The standard of “beyond any reasonable doubt” was not met due to insufficient and/or contradictory evidence - pursuant to Article 530, section 2 of the Italian Code of Criminal Procedure.

2.  Multiple attackers upheld. Guede was guilty with others unknown.

3.  The break-in in Romanelli’s room was staged.

4.  Amanda Knox was present in the cottage at the time of the murder but there is insufficient evidence that she played a participatory role.

5.  The DNA profile of Meredith Kercher on the knife and the DNA profile of Raffaele Sollecito on the bra clasp have “no probative or circumstantial relevance”

6.  “Motive is not irrelevant” and motive was not established.

7.  No selective cleaning.

8.  No purpose would be served in remanding the case back to the 1st instance court of appeal (as had occurred on appeal against acquittal)

I am going to examine the 34 pages in which Marasca-Bruno present their rationale for the above. These pages also include reasons for the dismissal of various appeal submissions, which are of no interest to this critique.

Central to the acquittals is of course the claim that that the evidence was insufficient and/or contradictory and I shall look closely at how the Report sets out to demonstrate this.

We shall discover that a number of these co-called contradictions are not plausibly inherent in the trial evidence or in previous reports but are in fact the result of illogical reasoning, dogmatic assertion, indeed simply plucked from the air, by the 5th Chambers itself.

My Own Overall Reaction To The Report

My overall reaction to the Report is that it is quite unlike any other reasoning I have seen produced by a court of law. 

It smacks of a desperate attempt to bring home an incomprehensible verdict.

The language and the dogmatic assertions, unsupported by any evidence, are quite startling.

The competence of the investigators, the forensic service and the judges who have adjudicated previously in the case, is called into question, frequently in a preposterous way. 

I suspect that the Report was written with a view to the media being able to lift headlines from it, and many such potential headlines are to be found loaded towards the front of the Report. The busy tabloid editors dream.

Indeed the Report (when it actually has anything to say) is akin to opinion based journalism; inadequately researched and ill-considered.

There is a substantial amount of ponderous, self indulgent, and obfuscatory “scholastic” waffle in the Report. It forms a turgid barrier (like thick treacle) for the reader and, of course, the Courts’ affirmation that Knox was present when the murder was committed is only to be found deep into the Report.

Remove this waffle and padding however and the illogical and self -defeating nature of the reasoning stands out.

It is odd that some of the lengthy legal citations appear to conflict with the point that the Court is trying to make.

The Report challenges, if not overturns, some settled and well understood legal concepts in criminal law and natural justice and violates aspects of the Italian Code of Criminal Procedure. This must be of some concern to the Italian judiciary in general.

If ever there was a Supreme Court judgement that needed to be referred by the Italian President to the Council of Magistrates for review, this is it.

My Critique Of The Decisions Part #1

On The Nencini Appeal

So, let’s start. We begin with Marasca-Bruno setting the stage for their play (which as it progresses, bears a marked resemblance to Hamlet).

The Report claims that the Nencini appeal was -

“conditioned by the prospect of the factual profile unexpectedly included in the sentence of annulment ( i.e annulling Hellmann); such that the stringent and analytical evaluation of the Supreme Court might unavoidably force one towards affirming the guilt of the two accused. Misguided by this basic misunderstanding, the same judge is drawn into logical inconsistencies and obvious errors of judgement that are here reported.”

The Report refers to “the troubled and intrinsically contradictory path” of the history of the trial, by which, of course, they mean the acquittals at the Hellmann appeal.

“An objectively wavering process, whose oscillations, however, are also the result of clamorous failures, or investigative “amnesia” and culpable omissions of investigative activity. Had they been carried out these would, in all probability, have led to a picture, if not of certainty, to at least of tranquil reliability, pointing to either the guilt or innocence of today’s accused. Such a scenario, intrinsically contradictory, constitutes in itself, already, a first and eloquent signal of an investigation that was never capable of reaching a conclusion that was beyond any reasonable doubt.”

There are many carefully crafted layers of deception, supposition and “begging the question” in the above two quotes.

The first is that there was a factual profile (without stating what this was) emerging from the sentence of annulment.

That would not be true since all that the Supreme Court 1st Chambers did was annul Hellmann’s verdicts having accepted the prosecution’s grounds of appeal, one of which, incidentally, was that Hellmann was riddled with examples of “begging the question”, a trait which Marasca and Bruno are by no means averse to themselves.

That left the judicial process with the factual profile that emerged from the Massei trial, modified, if at all, by trial evidence from Hellmann.

Marasca-Bruno also quite arbitrarily assert that Nencini was “conditioned” and “misguided” by the terms of the annulment.

Whatever errors Nencini may have made in his Report (and there were a few) I can only find one (see later) that could have been potentially significant, an error in law, that is certainly censurable, but it is highly subjective and offensive to assert that these were conditioned by and a consequence of the annulment, or imply that they had an impact on the verdict. That assertion is simply begging the question and is clearly an affront to the appeal judge.

It is, of course, perfectly true that the Hellmann annulment came with a request from the 1st Chambers of the Supreme Court for the Florence appeal court to consider, (to paraphrase), “within it’s broadest discretion, the possibility of determining the subjective positions of Guede’s co-conspirators within a range of hypothetical situations, from premeditated intent to kill to an unwanted sex game that got out of control”.

To be clear, being asked to consider someone’s subjective position is not just an invitation to consider motive but more broadly an invitation to consider that person’s understanding of the nature and consequences of his interaction, or non-interaction, with a situation.

As it happened Nencini demonstrated latitude and independence in considering an entirely different and just as likely, if not more so, hypothesis. The hypothesis was not an affirmation of guilt, let alone proof, but was an element in the picture, and was certainly not forced upon the court by the terms of the annulment.

Marasca-Bruno may not have cared much for Nencini’s hypothesis (see later) but they can hardly, to be consistent, deplore the motivation given that they come up with (be it on little evidence) a subjective and puzzling scenario of their own for Knox (see the end of this critique) that leaves a lot of questions begging.

Equally begging the question is that the Hellmann acquittals were the consequence of an investigation that was never capable of reaching a conclusion that was beyond reasonable doubt. Marasca-Bruno also seem to accept, they certainly imply, that even an annulled verdict is evidence of reasonable doubt. Again there is no logical connection for that given that the verdict - they accept this - was correctly annulled..

All these assertions require to be demonstrated. Are they?

On The Claimed Media Impact

Next the Report claims that the media impacted on the conduct of the investigation and the judicial proceedings. There was “an unusual media clamour” of an international nature that -

“led to a sudden acceleration of the investigation, in the frantic search for one or more guilty people to placate international opinion, and certainly did not help lead to the truth”¦”¦”¦”¦”¦”¦”¦”¦media attention led to “prejudicial reflexes”, “procedural deviations”, generating “illicit noise” in the provision of information. This is not so much from the late discovery of witnesses, as of the raiding of the trial by the impromptu propulsion of detainees with proven criminal records, who are certainly not people averse to moments of pathological lying”¦”

The media, take note. But it is the investigators that are once again being called to account here.

Marasca-Bruno do not identify the point at which the aforesaid sudden acceleration is supposed to occur but I would hazard a guess that it was when the investigators discovered the body of a girl who had been brutally murdered. The only propulsion required would be the perfectly natural need to identify and detain the perpetrators, and not what the media was saying about the case.

Marasca-Bruno do not produce one convincing iota of evidence that the investigators were unduly influenced by the media attention rather than the evidence they were obtaining.

There is, of course, more than a nod to the defence PR myth of a Rush to Judgement about the above. However it is overlooked that there was a period of 7 months between the arrest of Knox and Sollecito and the prosecution notifying all concerned that they were ready to press charges.

Marasca-Bruno are, of course, perfectly right about Alessi and Aviello but omit to mention their names and that these were witnesses called by the defence. The media had nothing to do with that, but rather the evidence of multiple attackers.

Thus ends the setting of the stage for a play within a play.

We should now be aware that there is something rotten in the State of Denmark, with which a theatrical Marasca-Bruno, the personifications of Hamlet, are about to grapple. Nencini becomes Claudius who, as revealed by a supernatural apparition, had murdered Hamlet’s father (Hellmann).

On Multiple Attackers

We now come to a clear and unequivocal endorsement of multiple attackers. Well done.

And then, and here I somewhat reluctantly have to agree, Marasca-Bruno identify an error in law in the Nencini Report.

Nencini referred to Guede’s appearance at the Hellmann appeal when Guede was questioned as to the letter he wrote in response to the allegation concerning him made by Alessi. In this letter, read out to the court, Guede wrote “I hope that sooner or later the judges realize my complete lack of involvement in what was a horrible murder of Meredith a lovely wonderful young woman, by Raffaele Sollecito and Amanda Knox.”

Guede had not specifically said as much before and when cross-examined on the matter he declined to answer, referring the court to his previous statements. Nencini’s error was to treat the letter and those previous statements, in as much as they contained accusations placing Knox and Sollecito at the cottage at the time of the murder, as admissible circumstantial evidence.

That, however, is expressly excluded by the rule that states that incriminatory statements made by a witness of another are inadmissible unless the witness submits to cross-examination on them.

It should, however, be remembered that Guede did not give evidence at the Massei trial (nor were his previous statements admitted) and so it cannot be said that the error was that significant in the context of the evidence as a whole.

On The Trial Process

Having set the stage and dealt with points of law Marasca-Bruno now turn to the “merit of the trial process” which, of course they have already, and without merit, managed to sully.

Particularly this involves looking at the “Motivational structure of the ruling under appeal”.

“Discrepancies, inconsistencies and errors in judgement do not escape notice.”

They then proceed to set these out.

1. The Issue Of Motive

“Erroneous, in the first place, is the assertion regarding the substantive irrelevance of ascertaining the motive for the murderous act. This cannot be accepted in the light of the unquestioned doctrine of this regulating court, relating to the relevance of motive as the glue that links the various elements of which proof is made, especially in circumstantial cases such as the one at hand”

Well, Nencini did not maintain that motive was irrelevant, or even substantially irrelevant, per se. What he did say was this -

“Regarding motive, first it is necessary to quote the teaching of the Court of Legitimacy on whose opinion the precise indication of a motive for the crime of murder loses relevance when the attribution of responsibility to a defendant derives from a precise and concordant evidentiary framework (see Supreme Court, section 1 Criminal Sentence No. 11807, 12th February 2009).”

Marasca-Bruno ignore the above but quote another bit of law which, to paraphrase it,  because it becomes complicated in translation, states that motive, whilst capable of constituting an element, has to be congruent with and capable of pointing all the elements of the evidence in a single direction, in a clear, precise and convergent manner, failing which any motive so postulated attains an air of ambiguity unable to fulfill it’s purpose.

Marasca-Bruno continue -

“”¦..which as we shall see shortly, (such purpose) cannot be maintained in the case at hand, in the face of a body of evidence which is ambiguous and intrinsically contradictory.”

If my paraphrasing is correct, then this does not contradict Nencini. Indeed the quotes, taken together, are complimentary and encapsulate what just about every criminal lawyer understands to be correct about the relevance of a motive in criminal proceedings. Nencini is not erroneous. Motive is not central. It is an element which may be useful. Futile and trivial motives are difficult to pin down to a specific cause. There are, indeed, glues other than motive, which fulfill the same purpose, such as the behaviour, lies, inconsistencies and contradictions referable to the words and actions of the accused themselves.

Finally, on motive, Marasca-Bruno make another point.

Guede had a sexual motive but this cannot be extended to others. To demonstrate the point they present the following argument, but here, again, I encounter a difficulty with the translation into English, and so I paraphrase:

“If it would be manifestly illogical (ed: as it would be) to hypothesize the involvement of Romanelli and Mezetti in the murder, and in complicity with a complete stranger, then it is equally illogical not to extend the same argument to Sollecito who had never met Guede.”

According to M-B, Nencini’s failure to advance this argument is a judicial error.

However I can quite understand why he did not advance it.

Firstly, the argument is based on Guede’s sexual motive and the implied premise that gender and sexual assault are related, which does render the involvement of Romanelli and Mezetti unlikely but does not help Sollecito.

Secondly, the lack of a link to Guede, in either case but particularly in Sollecito’s case, has nothing to do with whether or not the hypothesized perpetrator would in fact possess such a motive. Thirdly there is a link anyway, Knox,

The argument might conceivably operate on another plane, leaving aside sexual motive. Would anyone commit murder with a stranger?  Well it happens in fact, particularly if there is a party who can link the strangers together.

The reason, of course, why one cannot hypothesize the involvement of Romanelli and Mezetti in the murder is that they both had proven alibis, whereas Sollecito did not, and that would seem to be the more pertinent fact.

It is a suggestive argument but one that is flawed. In any event it is not significant and Marasca-Bruno are not averse from making significant judicial errors themselves, as we shall see.

***

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Wednesday, November 04, 2015

A Critique In Five Parts Of The Fifth Chambers Motivation Report By Judges Marasca And Bruno #2

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. A full translation of the Report can be read here.

Time of Death

“Another judicial error is the finding that the establishment of Kercher’s exact time of death was irrelevant, in the belief that the approximate timing offered by the expert investigators was sufficient, for all that this may have been correct at the trial stage”¦”¦”¦”¦”¦.time of death is an unavoidable factual pre-requisite for the verification of the defendants”˜ alibis.”

Once again, this is to entirely misrepresent Nencini.  He did not say that the TOD was irrelevant, and as for an exact TOD this would be impossible, even if the temperature of the body had been taken by the pathologist as soon as he arrived at the scene of the crime, which I am sure any intelligent and informed observer would understand. That would have narrowed the time frame very probably, but it was not a “judicial error”.

We could go on and delve into the evidence, particularly the expert and other evidence which became available over time and which conditioned Nencini’s observations, but Marasca-Bruno do not, instead resorting to a banal statement that does not take account of any of the foregoing.

“Deplorable carelessness in the preliminary investigative phase”¦”¦[ ed: not taking body temperature, yes, but other forensic considerations had to apply as well]”¦....a banal arithmetic mean between a possible earliest time and a possible latest time (from around 6.50 pm on the 1st Nov to 4.50 am of the following day), thus fixing the time at about 11 -11.30pm”

At the time of the Massei trial the pathologist, Dr Lalli had concluded that death may have occurred between 8 pm on the 1st Nov and 4.00 am the next day. This was based on calculating temperature decrease in the cadaver, taking the Henssge nomogram into account, rigor mortis, hypostatic marks etc. The Henssge nomogram also allows one to calculate back a specific number of hours from the time of first measurement and this permitted an intermediate valuation of about 11 pm. It was not simply an arithmetic mean.

But in any event, the decision not to take the body temperature but rather preserve the scene for forensics for about 11 hours had no detrimental impact upon the defendants’ alibis. It is accepted that Meredith was certainly alive at 9 pm on the 1st Nov and there is nothing to corroborate an alibi for the accused from 9.15 pm onwards on the 1st Nov until 5. 30 am the following day.  Body temperature taken, and rigor mortis observed, earlier, would not have been able to narrow TOD down to a period of 15 minutes ( 9 to 9.15 pm), and hence prior to the last temporal reference point for a credible alibi, the interaction on Sollecito’s computer, or anything like that.

On The Scientific Evidence

Marasca-Bruno observe that there is a debate to be had here as to -

“The legal value attributable to scientific evidence, with particular reference to the genetic investigations, acquired in violation of the rules established by international protocols.”

The terms of the debate therefore define it”˜s conclusion.

There are, they say, two theories which have to be balanced -

(1) “that which puts an increasing amount of weight on the contribution of science, even if not validated by the scientific community,” 

and

(2)  “that which insists on the primacy of law and postulates that, in deference to the rules of criminal procedure, only those scientific experiments validated according to commonly accepted methodological canons may be allowed to enter.”

No cigars for guessing which self- formulated option they prefer. It is, of course, (2), but still they have already both begged and loaded the question with their insistence on “validation” (which in this context means repeating the scientific test to obtain the same result) according to “international protocols”

Then, to disguise that selection, we have this -

“The court concedes that this delicate problem”¦..must find a solution in the general rules that inform our legal system”¦.and not”¦.in an abstract insistence on the primacy of science over law or vice versa”¦”¦”¦”¦”¦”¦”¦. Scientific proof cannot, in fact, aspire to an unconditional credit of self-referential trustworthiness in the trial setting, by the very fact that a criminal trial renounces all notion of legal proof.”

Marasca-Bruno would not be so stupid as to insist that science has primacy over law in a trial setting.  Would they? The law, having primacy, must find the means to accommodate the maxims of science, but within the general rules that inform the legal system.

They continue -

“The reference co-ordinates will have to be those attaching to the principle of cross examination and to the judge’s control over the process of formation of evidence, which must respect preordained guarantees, the observance of which must strictly govern the judgement of the relevant results’ reliability.”

Interesting. “Cross-examination”? Perhaps they are reminded of the decisive inadmissibility of the previously discussed section of Guede’s letter. Can the DNA traces on the knife and the bra clasp fall into the same category? Can “validity according to international protocols” be a preordained guarantee, in the same manner as the rights of an accused not to be incriminated by a witness who refuses cross-examination is guaranteed by Article 526 of the ICCP?

If so, then some compelling reason will have to be advanced - abiding by the rules of evidence that inform the legal system. They cannot refer to an Article on the point in the ICCP. There is none, and if there were, and if it stated that the repeatability of a scientific test was a guarantee for the test to be reliable and/or admissible, then sample 36b from the knife would not even have made it into the trial. And this is not the fault of the ICCP. There is no other body of law in the world that I am aware of that embodies any such guarantee, even for Low Copy DNA. And the reason for that, in part, is that there is no internationally recognized protocol, and precisely because there is no agreement in the scientific community as to this as yet.

Marasca-Bruno tend to treat “reliability” and “admissibility” as interchangeable concepts, and indeed, given the manner in which they consider these concepts, in the context of the topic under discussion, there is some logic to this, for surely if a piece of evidence is pre-ordained as unreliable then it must be inadmissible as well.

There then follows a lot more pompous waffle that need not detain us, other than to comment that none of this advances, and indeed does not even consider, any compelling reason for regarding repeatability as a pre-ordained guarantee from the point of view of admissible, or reliable, evidence.

Indeed, the ICCP does specifically take into account non-repeatable tests for we can find in Article 360 that provided the conditions therein are complied with then the results of non-repeatable technical tests are admissible.

Why the insistence on repeatability despite Article 360?

Does the testimony of an eye witness to a crime have to be corroborated by a video of the incident, or other eye witness testimony, before his testimony can be considered reliable and admissible?

Why is the result of a scientific test, conducted in accordance with a method which has already been repeatedly used in the scientific community to establish the validity of the method, be treated any differently?

The eye witness, of course, does not have a video of the incident by which to check his memory, whereas a biological trace may well be sufficient to allow for repeated tests. However in such cases, if there is no repeat, the result is not automatically ruled unreliable or invalid. It is for the defence to request a repeat and if they do not, then it does not happen.

There would, of course, be a capacity for repeat, which Low Copy Number might not have, but if repeats do not occur when the capacity exists, then this is because the result is unambiguous, as the results were, for the judge a quo, in the case of Meredith’s profile on the knife and Sollecito’s profile on the bra clasp.

However, Marasca-Bruno move on to declare that they do not share Nencini’s lack of hesitation in attributing evidentiary value to the knife and bra clasp results.

They quote the jurisprudence of the Supreme Court, in genetic investigations, about it’s degree of reliability -

“full value of proof, and not merely as an element of circumstantial evidence according to Article 192.”¦”

adding that

“in cases where the genetic investigation doesn’t provide absolutely certain findings, circumstantial value can be attributed to it’s results (section 2,n. 8434 of 05/02/2013, etc”¦”¦)”¦”¦which mean that where identity is established, the findings of the genetic investigation assume significant evidence, while in the case of mere compatibility with a specific genetic profile, they only have circumstantial importance.”

It is at this point that I had to pause and consider the very real possibility that Marasca-Bruno may have the combined denseness of two planks of wood nailed together. 

The compatibility of trace B on the knife with the genetic profile of Meredith Kercher is such that it is full proof of the “identity” of the trace, certainly established, and that by any scientific protocol. That was acknowledged by all the trial experts and even, though with some reluctance, by Vecchiotti.

Even if not full proof of ID it certainly has significant circumstantial relevance, according to the above and pursuant to Article 190 (which is mentioned later).

With that uncomfortable thought perhaps lurking in the back of their minds, they seek to obfuscate matters -

“As a general rule it is possible to adhere to these conclusions, on the condition, though, that the activity of collecting samples, storage and analysis of the exhibits has respected the regulations approved by the protocols of the profession.”

They then, rather bizarrely, go on to aver that that the correct methods, to preserve authenticity, were stated by the Supreme Court”¦..“even if only on the subject of information technology evidence” 

Eh ?!

They refer to Article 192, section 2 -

“The existence of a fact cannot be deduced from pieces of circumstantial evidence unless they are serious, precise and consistent.”

They opine -

“Taking into account such considerations [ed: “such considerations” need not concern us - they were just preceding waffle] one really cannot see how the results of the genetic analysis - that were performed in violation of recommendations for the protocols regarding the collection and storage - can be endowed with the characteristics of seriousness and preciseness.”

John McEnroe and “You cannot be serious!” springs to mind.

They are also confusing the information obtained from the electropherogram with sample collection methods.

It is, of course, important to maintain clarity of thought by keeping the issue of the value of the evidence [ed: it’s seriousness, precision and consistency] apart from the issue of contamination. As Nencini and others were able to do. Marasca-Bruno are running these issues together.

“It is absolutely certain that these methods were not complied with [cites the C-V Report] -

(a) The knife collected and then preserved in a cardboard box, of the sort used to package Xmas gadgets, agendas “¦”¦”¦.

(b) The bra clasp [collected 46 days after] “¦”¦”¦”¦..the photographic documentation demonstrating that at the time of collection, the clasp was passed from hand to hand”¦. In addition wearing dirty latex gloves.”

Shall I comment? Oh, alright. What is the relevance of the cardboard box unless it was a conduit for contamination?  That was not even hypothetically plausible.

Yes, as we all know the bra clasp was recovered after 46 days. But where are these collection protocols that are internationally recognized and are a pre-ordained guarantee recognized by law?

As for dirty gloves the only evidence of this that I have seen is a photograph of the bra clasp being held in one gloved hand whilst the glove on another hand, patently belonging to the same operative, shows spots of some substance on it, which spots are most probably, in the circumstances, blood derived from the clasp the operative is holding.

Where is the common sense of the 5th Chambers?

What exactly was wrong with the in-depth common sense analysis of Massei and Nencini?

And so we swing back to the conclusion that was their premise.

“In essence, it is nothing less than a procedure of validation or falsification typical of the scientific method, of which we have talked before. And it is significant, in this regard, that the experts Berti-Berni, officials of the R.I.S Roma, carried out two amplifications of the trace (ed: 36I) retrieved from the knife blade.

In the absence of verification by repetition of the investigative data, it is questionable what could be the relevant value to the proceedings, even if detached from the scientific theoretical debate, of the relevance of outcomes carried out on such scarce or complex samples in situations not allowing repetition.”

Let us recall what actually happened with sample 36I. In 2013 this sample, which had not been analyzed by the Independent Experts, was analyzed by Berti-Berni. The sample was Low Copy Number and the quantum of DNA present was significantly less than was present with sample 36B. However they were able to carry out the test with a repeat because since 2007 there had been further technical advances in the equipment.

The repeat confirmed the evidential value of the first test (Knox) despite the low level of DNA. Low Copy Number, as an inherent problem per se, and as evidence of contamination per se, as argued in the case of 36B (Meredith), was shown not to be an issue. That was what was truly significant about the test, and it underscores that the result of the test on 36B had significant evidential value.

The knife and the bra clasp -

“”¦.cannot take on either probative or circumstantial relevance precisely because, according to the aforementioned laws of science, they necessitated validation and falsification.”

The primacy of the rules of evidence has just been jettisoned with this dogmatic assertion, which is not even derived from the logic of the argument they have presented in support. Indeed much of the argument (or rather, the waffle) is merely this dogmatic assertion in numerous different guises and tediously extended formulations of itself.

Not only that but Guede was also convicted on the basis of DNA tests that were not repeated!

One wonders what criminal judges in Italy will make of this, and of the fact that judges from the 5th Chambers, who deal primarily in matters other than criminal law, have presumed to lay down law to them in this field.

The reality is that despite this nothing will change as to the rules of evidence and how forensic evidence is evaluated in the criminal courts. The system, understandably, will not countenance that. That will leave this case, as it pertains to Knox and Sollecito, as an exception, a bizarre anomaly in the judicial record.

Perhaps, in the future it will not present a practical problem, given that developments in technology are able to detect even smaller amounts of DNA, thus allowing for repeats.

***

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Tuesday, November 03, 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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Monday, November 02, 2015

A Critique In Five Parts Of The Fifth Chambers Motivation Report By Judges Marasca And Bruno #4

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.

The three previous posts can be read here and here and here. A full translation of the Marasca-Bruno Report can be read or downloaded here.

The Critique Part 4

The Simulated Break In

This is all too briefly treated by Marasca-Bruno (whom by now I am beginning to think of as Zaphod Beeblebrox from The Hitch-hikers Guide to the Galaxy) and by way of a sidetrack really.

They in fact affirm the circumstances of simulation without actually having the gumpf to explicitly say so.

They are more concerned to turn their attention to the inference that only a “qualified” person would have an interest in a simulation so as to remove suspicion from him/herself.

Marasca-Bruno are not interested in Guede.

They acknowledge that Knox and Sollecito are “qualified” persons”¦”¦”¦”¦

“Yet this element is also substantially equivocal, especially in the light of the fact that, when the postal police arrived it was”¦.Sollecito - whose trial position is inextricably bound to Knox’s - who pointed out the anomaly to the police officers, that nothing had been stolen from Romanelli’s room.”

And that’s it? The smoking gun, the bull in the appellants’ china shop, brushed aside - because of an anomaly? Pathetic.

It was staged but sadly not staged to perfection, by way of something actually being stolen. A stager, knowing this, would not countenance revealing this information to the police, although it may have been an inadvertent slip due to Sollecito being an idiot.

An inadvertent slip aside, he would have no reason to mention that nothing had been stolen, unless he was as aware as others were that the staging had it’s flaws in other respects as well, in which case he could have thought that his comment had the appearance (Marasca and Bruno fall for it) of innocence.

And how did he know that nothing had been stolen - which only subsequently turned out to be true when Filomena checked the contents of her room-  unless he was involved in the staging?

Even if one accepts the anomaly and extremely dubious reasoning above, it only applies to Sollecito. There is nothing equivocal about the logical inference applying to Knox. That is so despite the illogical connection in asserting that their trial positions are inextricably linked.

Is Knox a ventriloquist and Sollecito her dummy?

Curatolo & Quintavalle

“Nevertheless, the presence of intrinsic contradiction and poor reliability of witnesses [ ed: ie the above named] do not allow unreserved credit to be attributed to (their) respective versions, to the extent of proving with reasonable certainty the failure, and therefore the falsity, of the accused’s alibi, who insisted she stayed in her boyfriend’s home from late afternoon on the 1st November until the following morning.”

Here Marasca-Bruno effectively reprise the reasoning of Hellmann.

Curatolo was a tramp, a drug addict and pusher, and a prosecution witness stooge. The same evening he had seen Knox and Sollecito together in Piazza Grimana (1st Nov) he had seen revellers wearing Halloween masks, and the special buses to take them to discos and nightclubs, referenced by the witness, were not running that night.

Marasca -Bruno overlook the improbability that Curatolo could have seen the two together on Halloween, given that it was established as a trial fact that on that evening Sollecito was attending a friend’s anniversary dinner outside Perugia, and Knox was meeting up with her friend Spiros.

Perugia is a student town. There are numerous discos and nightclubs catering to this market. The defence did produce nightclub owners testifying to their clubs not being open the day after Halloween, and shuttle bus operators testifying that they were not running special buses to them, though these witnesses did not exclude the possibility that other nightclubs had some, or that other buses could have been hired for a private party.

There were indeed still a good few discos and nightclubs open (these can be listed if required), with a normal bus service for Perugia as well. Guede, himself, was seen dancing at the Domus hours after the murder.

[ Halloween is a relatively new festivity in Italy. All Saints Day (Nov 1st) and All Souls Day (Nov 2nd ) are holidays in Italy.]

“This contradicts the balanced assessment - but always in a context of uncertainty and ambiguity - of the witness referring (regarding the context of when he saw the two accused together) to the day before he saw (in the afternoon) unusual movements of police and Carabinieri and, in particular, men wearing white overalls and headgear (they looked almost like aliens) enter the house on via della Pergola.”

As regards Quintavalle, Marasca-Bruno are brief and equally dismissive. This is all they have to say -

“Quintavalle - apart from the lateness of his statements, initially reticent and generic - offered no contribution to certainty, not even as to the product bought by the young woman he noted on the morning after the murder, when his shop opened. The fact he recognized Knox is worthless as her image had appeared in every newspaper and television news broadcast.”

There was no evidence that the young woman had bought, or had tried to buy, a product.

No, his identification testimony was not worthless on that account. If it was worthless for that reason then a lot of ID witness testimony would go by the board in today’s world of rapid 24 by 7 news coverage.

Quintavalle was able to describe the clothes that the young woman was wearing, which description, blue jeans, grey jacket and scarf, was a match for the articles of clothing that the crime scene investigators had photographed scattered on the top of Knox’s bed at the cottage and which had immediately became material evidence along with everything else.

Since Knox was wearing different clothes, including a long white skirt, when she and Sollecito were photographed outside of the cottage by the press, it is difficult to gauge how Quintavalle might have been influenced in his description.

Raffaele Sollecito At House

“In Sollecito’s case too the evidentiary frame work which emerges from the judgement under appeal is marked by inherent and irreducible contradiction”¦”¦”¦”¦”¦”¦”¦However, the strong suspicion remains that he was present in the house on via della Pergola on the night of the murder, albeit it has not been possible to determine when. On the other hand, if Knox’s presence in the home was certain, it would hardly be credible that he was not with her.”

And More On Other Matters

Marasca-Bruno return to the question of the knife again despite the fact that they have excluded it as having any “probative value or circumstantial relevance”.

This is an inconsistent element in their own reasoning, such as their reasoning is.

They remind us that no trace of blood was found on it, and assert that it was a questionable choice to go for a DNA test rather than establish the nature of the biological trace.

“An extremely questionable option, given that the finding of blood traces, coming from Kercher, would have given the trial an element of strong evidentiary value, showing for certain that the weapon had been used to commit the murder.”

One begins to wonder whether they are mentally fatigued at this point. But no, that can’t be it. They have had over 130 days to write 34 pages of reasons, and that wouldn”˜t be particularly taxing, provided that there had been reasons for the verdict in the first place, and that they had remembered them.

They are waffling, padding and turning to risible argument. Particularly given that they should know exactly why Dr Stefanoni had only one sensible option available to her. They had even referred to this in the preceding paragraph.

Even if it had been blood in sample 36b then, without establishing whose blood it was, the knowledge that it was blood would be totally useless as a piece of evidence, as the blood could have come from anywhere, at anytime.

“What is certain is that no traces of blood were found on the knife. Lack of which cannot be traced to meticulous cleaning. As noted by the defence, the knife showed traces of starch, a sign of ordinary domestic use and of cleaning that was anything but meticulous. Not only this, but starch is famous as a substance with a high absorbance rate, thus it is highly likely that, in the event of a stabbing, it would have retained blood traces.”

As we come towards the end of their reasoning the dogmatic assertions start to pop up thick and fast out of nowhere.

Why can lack of blood traces not be connected to meticulous cleaning? Isn’t that, by definition, what meticulous cleaning does?  Was there any expert evidence to the contrary? How can Maresca and Bruno be so sure that their version of common sense is shared universally?

Yes, starch does absorb liquids. However, how do they know that the starch was there on the knife at the time of the murder? It is not improbable that having cleaned the knife it was used again for ordinary domestic use. The starch could also have got there as a consequence of the investigators handling it with latex gloves, which contain traces of starch, and this was pointed out at the Hellmann appeal.

“Finally, the footprints found at the murder scene can in no way be traced to the appellant.”

Another dogmatic assertion. They are, I should point out talking about Sollecito at this point, not Knox.

The bloody footprint on the bathmat and a luminol enhanced footprint in the corridor were useful for negative comparison purposes and both were attributed by the prosecution experts to Raffaele Sollecito because of points of comparison with his foot and because neither had similar points of comparison with Knox and Guede.

Their evidence was disputed by a defence expert witness.

Massei and Nencini agreed with the prosecution experts, Hellmann did not.

However, remember the bit about fact-finding being for the fact-finding judge and not the Court of Legitimacy?

Not only do Marasca-Bruno break the rules at to their remit but they do not even give reasons for their assertion.

“The computers of Amanda Knox and Kercher, which might have been useful to the investigation were, incredibly, burned by the careless actions of the investigators.”

Another unjustified and dogmatic assertion. 

Four computers were found to have sustained damage - probably an electrical burn-out - but it is not in evidence that they were damaged by the investigators.

Indeed, I do not recall any trial evidence that they were working before they were recovered by the investigators. Certainly Sollecito’s Asus was not. That had been damaged for months. Filomena’s computer was found to have been already damaged when it was switched on in her presence at the police station.

It may be the case that Knox, somewhere in her testimony, asserted that her computer was in working order when she last used it, or something like that. But then she would say that, wouldn’t she?

Of all the computers that had problems, the data was ultimately recovered from all but Knox’s Toshiba.

And realistically, what potential information relevant to the investigation did Marasca-Bruno think could be found? Photos of Knox together with Meredith? If there were such photographs, had they been deleted from the camera?

Knox communicated with her family at home by means of an internet café because it had skype available.

E-mail communication is recoverable whether or not the user’s computer is broken.

Marasca-Bruno also opine that in respect of their alibis, what we are talking about is a failed alibi rather than a false alibi. Is this a necessary and relevant distinction?

They both maintained, for trial purposes, that they had been together at Sollecito’s flat from about 9 pm onwards on the 1st November, that both had slept and that Knox had been the first to rise at about 10.30 am the next morning. Of course, Sollecito had contradicted this in his statement to the police. He said that Knox had gone out and not returned until 1 am. However this was not admissible as trial evidence.

In relation to the crucial period of time in which TOD is ascertained to have occurred there is no independent corroboration of their alibi. In that sense it is a failed alibi.

However the reliability of their alibi can certainly be assessed from the trial evidence. Sollecito’s phone was switched on at 6.03 am and earlier heavy music had been played on his computer for half an hour at 5.30 am, on the 2nd November. That manifestly contradicts the alibi. In short the pair were lying when they said that they had slept and that neither had risen until 10.30 am.  Accordingly, it is a reasonable inference that their alibi is not to be trusted.

There is, in addition, the evidence of Curatolo and Quintavalle.

What In Part Marasca-Bruno Left Out

Finally Marasca and Bruno declare that -

“The panorama of the declared evidence is complete.”

Except that this is not true.

They have not for example mentioned the following, which are certainly part of the declared evidence, and which certainly have to be taken into account if we are to consider the sufficiency of the evidence -

1. The presence of Knox’s table lamp on the floor in Meredith’s room.

2.  The police photograph of Knox’s throat and the statement of Laura Mezetti that what is seen in the photograph, as she had noticed at the Police Station, is a scratch.

3.  Knox’s dried and congealed blood on the tap in the small bathroom next to Meredith’s room.

4.  Knox’s e-mail to the world with it’s implausible aspects and which exposes crucial contradictions in the respective accounts of the appellants.

5.  The phone records which expose a suspicious pattern of behaviour on their part and which show that the cell phones of both the appellants had been switched off, or rendered inoperative, between 8.42 pm on the 1st November and 6.03 am on the 2nd November.

6. The luminol enhanced mixed DNA trace for Knox and Meredith on the floor in Filomena’s room, certainly requiring an explanation.

***

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Sunday, November 01, 2015

A Critique In Five Parts Of The Fifth Chambers Motivation Report By Judges Marasca And Bruno #5

Posted by James Raper

Image is of busy Rome at night

The Fifth Chambers Motivation Report

I conclude my critique of the final 34 pages of the Motivation Report, the decisions and verdict parts.

The four previous posts can be read here and here and here and here. A full translation of the Marasca-Bruno Report can be read or downloaded here.

The Critique Part 5

So, let’s do a brief recap now

1. The Report starts with sensationalized general slurs on the competence and motives of the investigators and judges.

2.  Marasca and Bruno misunderstand the relevance of motive. Nencini was not in error. It is not relevant, or of less relevance, if the evidentiary framework of guilt is by itself sufficient to establish guilt. In such circumstances the normal formula is to attribute futile and trivial motives that require no further definition. Conversely motive does acquire importance, an element in itself, if that framework is insufficient.

3. Their section on TOD produces nothing that is relevant.

4.  Having failed to establish a convincing connection between “the primacy” of rules of evidence and a guarantee of the repeatability of DNA analysis, such that the latter is required by the former, or at least can be tolerated by it for some specific reason, they assert that the latter must prevail anyway. It requires numerous inconsistencies, a failure to follow the ground rules of evidence, and the illogicality of failing to follow their own argument, such as it is, to assert that Meredith’s DNA on the blade of the knife, and Sollecito’s DNA in a mixed sample from the bra clasp, have no probative or circumstantial value simply because they were not capable of repetition. That is simply a dogmatic assertion and one, as we shall see, that has no connection with the permitted grounds for appeal.

5.  As if the foregoing was not enough, and perhaps conscious of it, they bring up the matter of contamination again. Which would not be relevant if the foregoing were true. The contamination argument has long been shown to have no mileage in it. The cardboard box (from the police station) is a stupid reference and that there was pre-existing dirt on a latex glove mere speculation, without context.

6. The section on luminol hits and removal of blood traces is characterized by many misrepresentations and a chronic misunderstanding of the evidence and the inferences that can be drawn from it.

7.  On the simulated break-in, which they accept, they declare that they are then stymied in the necessary inference by the feeblest of anomalies.

8.  Now up to this point we have encountered few, if any, mistakes, inconsistencies and contradictions, of any significance, other than those that Marasca-Bruno are making, or making up, themselves. 

———————————————————————

Remember this?  -

“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.”

In fact appeals to the Supreme Court can only be made under the precise circumstances provided for by the Italian Code of Criminal Procedure.

These are governed by Article 606. Of the provisions in this Article, only section 1, para (e) is applicable, as follows -

“(e)  defect, contradictoriness or manifest illogicality of the judgement reasoning, when the error results from the text of the provisioning appealed, or from other documents in the proceedings specifically noted in the reasons of encumberment.”

Therefore, although fact finding is the preserve of the lower courts, the Supreme Court can enter into the merits of the judgement appealed against on this ground.

The question arises as to what constitutes a fact to which para (e) would not relate.

There are probably not many, for most facts determined would require an element of reasoning. For instance, to hold that a particular witness was reliable, or otherwise, would require explanation, that is, reasoning, and so on.

To be clear, “defect”, “contradictoriness” and “illogicality” all relate to the judgement reasoning.

For instance, a failure to take into account contradictory evidence in the judgement reasoning must obviously be included as a defect.

Another defect would, of course, be misapplication or misinterpretation of the law in the judgement reasoning, an error to which the 5th Chambers have already shown themselves prone.

I am not quite sure how “contradictoriness” in the judgement reasoning is to be construed, but I suspect that there would be contradictoriness in asserting something contrary to the weight of the evidence, or indeed in the absence of any evidence in support. Another case might be in making a point which is then undermined elsewhere in the reasoning

In any event a clear restriction on the Supreme Court entering into the merits of the judgement appealed against, apart from the foregoing, would appear to be that in the case of illogicality, that it has to be manifest.

However, no particular instance of manifest illogicality is likely, on it’s own, to invalidate a verdict, unless it amounts to a serious defect from which the reasoning, as a whole, on the verdict, cannot recover.

Effectively, there have to be numerous manifest illogicalities in the reasoning of the judgement appealed against, for this to happen. Under those circumstances one might actually describe the judgement as “perverse” at one end of the scale, and “unsafe” at the other. Setting aside a conviction for such reasons I would understand.  Usually, at least in the UK, an unsafe conviction would result in a re-trial if the prosecution requested it.

However even the Supreme Court has to motivate it’s decision making process, free from such defects. Clearly that has not been the case.

The banal peppering of the Report with references to “manifest illogicality” and “intrinsically contradictory”, and so on, may impress the undiscerning reader, but the repetition and context are, frankly, “manifestly” unconvincing to the discerning reader.

What we find, on analyzing the 5th Chambers’ motivation, is that when it enters into the merit, it does not do so in a balanced way, and without logical inconsistency on it’s own part, but simply by making dogmatic assertions on the merit. That is hardly extending an acceptable latitude to the fact-finding judge nor is it explaining why his reasoning is incompatible with common sense.

In particular, I do not see how one can make the assertion that the DNA on the knife and the bra clasp has no probative or circumstantial relevance, because the tests were not repeated, when this can scarcely be described as a product of the application of section 1 (e) of Article 606.

————————————————————————

Furthermore, one also has to consider the effect of Article 628. The 2nd paragraph states that -

“In any event a verdict issued by a court following a Cassation order of remand may be appealed only on the reasons that do not concern those that had already been decided by Cassation on the order of remand”¦.”

At the very least this should have served as a warning to the 5th Chambers.

The Chieffi ruling annulling Hellmann was not intended as a foray into the merit but it was a criticism of the procedural defects and reasoning methodology of the Hellmann court, which errors we can see repeated in the Marasca-Bruno Report.

The most obvious and most frequent error is the use of dogmatic assertion, the starkest example of the deployment of self-contained circular reasoning it is possible to have. Indeed, it does not warrant the description “reasoning”.

Another important error was the “atomizing” or “parceling out” of the circumstantial evidence in an attempt to exclude items prior to assessing it in an overall evaluation. This error underwrites the 5th Chambers’ approach to the case, manifestly in it’s use of dogmatic assertion to achieve the aim of eliminating or reducing the evidence.

Abstract hypothesizing on contamination is another.

The reprise of Hellmann’s reasoning as to the reliability of the witness Curatolo is another, and most objectionable, one.

Interestingly, the “validity” of the DNA testing was not an aspect raised by Galati and consequently not touched upon by Chieffi. The only conclusion has to be that the State (subsequently confirmed by Nencini) deemed the reliability of the results as perfectly safe.

————————————————————————————

Article 530, Section 2 and Conclusions

I now turn to the matter of the sufficiency of the evidence.

There is no formula as such.

The evidence is sufficient if the bar of culpable beyond a reasonable doubt is met, insufficient if it is not.

The starting point is clearly the evidence itself, and then the inferences that are drawn logically from it.

As to the evidence and inferences, we are assisted by the fact, under the Italian system, that all verdicts, whether at trial or appeal stage, are required to be motivated in writing. 

The final motivation, prior to the 5th Chambers, is, of course, the Nencini report. It seemed to me that Nencini, despite a few flaws, did an excellent job in unifying the evidence in a global way, as is required of what is essentially circumstantial evidence, fully in accordance with the jurisprudence of the Supreme Court on the matter, and with all the arrows pointing in the same direction and substantially corroborating each other. It left no reasonable doubt, in my humble submission, that the Florence court’s affirmation of the guilty verdicts was correct.

Now, we have already discussed the grounds on which an appeal can be made to the Supreme Court. The sufficiency of the evidence is not one of the stated grounds.That is a matter for the fact-finding judges of the lower courts. The 5th Chambers therefore knowingly exceeded their remit.

We also find, having gone through the Marasca-Bruno criticism of the Nencini Report, in some detail, that many, if not most, of these criticisms lack substance and lack logical consistency in their own right.

The overall effect has been to produce an improper, if not fraudulent, weighting (for want of a better word) on the matter of sufficiency, which should not have even been considered anyway.

In addition the result of the Report has been to produce an interesting scenario based on the following conclusions.

1.  Knox was present in the cottage at the time of the murder but in a non-participatory role. Very probably (if this is not a held fact) she had scrubbed Meredith’s blood off her hands in the small bathroom.

2.  Sollecito was very probably there as well, but it cannot be known when.

3.  There was certainly an assailant (and perhaps more than one) in addition to Guede.

4.  There was a staging of the break-in in Filomena’s room.

As to Knox having blood on her hands (literally rather than metaphorically) there are inconsistencies to be derived from this because, according to the Report, this would have been as a result of contact with blood outside Meredith’s room. Why? Where is that blood? Such blood could, of course, have been there prior to it being removed. However, to affirm that would be to prejudice a number of assertions they have already made. More likely is that Knox had been in Meredith’s room, during or after the event and without, we would have to observe with some interest, leaving any trace of herself there. That would also be the logical explanation for her lamp being on the floor there.

Guede was not charged with, and hence was neither acquitted nor convicted of, the offence of staging, but in any event Marasca-Bruno did not attempt to attribute the staging to him. This leaves either Knox, an unknown person, or Sollecito. As to an unknown person it is manifestly difficult to see how he would be “a qualified person” for the purpose of the inference that only someone with an interest in removing suspicion from himself would do this. Knox and Sollecito qualify whether there is an anomaly or not.

As to who Guede’s unknown accomplices may have been, Marasca and Bruno are silent. This is not surprising as there was no forensic trace of them. There were, in fairness, unidentified genetic profiles, male and female, obtained from cigarette stubs taken from the ashtray in the lounge/kitchen, but as with the mixed genetic profile of Knox and Sollecito on one of these, they cannot be dated and therefore cannot be placed within the time frame for the murder. For all we know they could belong to Romanelli and her boyfriend Marco Zaroli, both of whom were at the cottage earlier on the day of the 1st Nov, with Knox and Sollecito.

More pertinently, however, is this scenario regarding Knox.  It is not one that her defence team, even in their wildest dreams, would have considered advancing on her behalf. She had, throughout the proceedings, maintained that she was not there, whether or not in a non-participatory role.

That is not surprising. The scenario we have is that Knox and perhaps Sollecito were at the cottage with Guede, and at least one other, and that Guede and this other saw fit to commit a horrendous murder in their presence, without encouragement nor opposition from either of them it would seem, but certainly in the knowledge that such action, even if it met with cowed submission from them in the first instance, would meet with the utmost reprobation, and then they leave, trusting to Knox and Sollecito not spilling the beans. That really is stretching credulity well beyond the bounds of breaking point. Even more so if there was no unknown accomplice.

Furthermore, and if that is nevertheless so, then Knox has had more than enough chances to put the record straight, particularly since her return to Seattle. She still has the opportunity to do so.

What we have, therefore, is a fact that neither the defence nor the prosecution has ever advanced in the entire history of the proceedings, and not one that any previous judge has drawn.

Now it may be something that can be justified by a fact-finding judge, on remand, and in the light of the Marasca-Bruno Report.  Not.  But it is surely beyond the remit of the 5th Chambers to hold that as a fact and without even permitting prosecution and defence submissions on it. That runs counter to the principle of natural justice, a violation inherent in the final appeal and in the decision not to permit a remand to a 1st instance court of appeal.

It would have been interesting to have seen the defence submissions.

————————————————————-

I said at the beginning that the Marasca-Bruno Report was a desperate attempt to bring home an incomprehensible verdict. It has been described elsewhere (by a reputable american reporter who had been present throughout the proceedings) as superficial and intellectually dishonest. It is not only that, it is a charade that sullies the good name of Italian justice.

A question to arise is what truly motivated the verdict? It seems to me that the only “glaring investigative omission” in the case, is this. However that is a murky world of connections and undue influence about which we can only speculate at this stage.

Had it been incompetence and had the five Supreme Court judges held up their hands and simply admitted that they had made a mistake, I might have had some sympathy for them. Instead they have persisted with a charade which is essentially corrupt.

By “corrupt” I mean that they have knowingly acted in bad faith. They cannot otherwise have been such simpletons. It is also abundantly obvious why they did not dare risk remanding the case to another appeal court.

As for Knox and Sollecito, sadly for them, they are anything but exonerated.

Saturday, October 31, 2015

The Marasca/Bruno Report, A Dissection In Four Parts: #4 Their Findings - Ambivalent In Spades

Posted by catnip

Sollecito & Bongiorno: reported as very un-thrilled at the findings RS was at crime scene and lied

Overview

This is my dissection of Part 9, the final 10 pages of the report.

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

Dissections

Each sentence in the paraphrased gist of the repoirt below corresponds to one paragraph in the text.

Cassation (Bruno) ““ gist: Errors in law and logical inconsistencies mean that the impugned judgment merits being cassated [quashed]. The evidential picture does not reach the standard of beyond a reasonable doubt. It’s not an innovative or “revolutionary” principle and is already present in Italian law, implicitly in Article 530 para 2. Remote possibilities are not “˜beyond a reasonable doubt’(Segura case, 2014) and mere conjecture, even though plausible, cannot found alternative reconstructions (Gurenelli case, 2014, etc) (9).

COMMENT: Citing from cases is a good technique, even to including their names, à  la common law systems. Not reaching the BARD standard is the crux of the matter.

Cassation (Bruno) ““ gist: The contradictory evidence as illustrated by the up-and-down nature of the proceedings through the courts does not reach the BARD standard (9.1)

COMMENT: This is disingenuous. The Perugia Court of Appeal judgment was annulled (except for the calunnia), so calling it into play again as one of the, presumably, “up” side of the “˜swings-and-roundabouts’ of the case as if it were a valid judgment is misleading.

Cassation (Bruno) ““ gist: An overview of the for-and-against positions can be given (9.2)

COMMENT: Given the appearance of a balanced handling of the matter is a good technique. The assumption that there are for-and-against positions is not clarified or explained, though, merely asserted.

That is, a reading of the evidence as “˜not guilty’, to stand and be opposed to and contrasted with a reading of the evidence as “˜guilty’, involves a circularity of reasoning: it is the ultimate contradiction for the same evidence to support both positions simultaneously.

The result of a “˜not guilty’ conclusion is that the evidence leads there, and away from a conclusion of “˜guilty’. A for-and-against view begins with the conclusion, in order to prove the conclusion: circularity.

Cassation (Bruno) ““ gist: Presence does not equate with guilt. Passive participation is different to active participation (Benocci case, 2013 etc). The subjective element can be found in voluntary participation and cooperation (Mazzotta case, 2012) (9.3)

COMMENT: Absence of evidence does not equate with innocence (meaning evidence of absence). Quoting from cases is good: it gives the impression something legal is going.

Cassation (Bruno) ““ gist: Even given their presence, FOR the accused is the absence of their traces in the room or on the body (excluding the bra-clasp, of which more later), and likewise FOR the accused is the presence of Rudy’s evidence. The room is so small that is impossible not to leave any traces if they were murderers. Nothing of theirs was found on the victim’s top or the piece of clothing underneath, whereas Rudy’s trace was found on a sleeve of the top. This makes a clean-up impossible. (9.4)

COMMENT: Declarations of certainty about the consequences of the size of the room are not evidence, no matter how close such declarations seem to be in going “˜beyond a reasonable doubt’. Given an erroneous starting point, impeccable reasoning can be applied, and a conclusion reached.

Cassation (Bruno) ““ gist: Amanda’s self-described presence is credible in that she described, for the first time, a possible sexual motive for the murder, and the piercing scream. In her calunnia she puts herself on the scene which no-one else (other than those others present, obviously) would have known. According to the calunnia, the scream and the murder is due to Patrick Lumumba. AGAINST: the mixed traces (dilute blood, skin cells) in the small bathroom.

Suspicion is not decisive. The trace is not equivocal ““ there could have been posthumous contact with the blood.  There was no trace in the murder zone or on the body. The reason why she accused is incomprehensible ““ the psychological pressure theory is weak (fragile). She couldn’t think it would stand up, since she knew well that Patrick had no relationship with Meredith, or that Patrick wouldn’t have a cast-iron alibi. Maybe to cover for Rudy (both men being black), perhaps hypothesising that Rudy had been seen.

The staged burglary scene, for the prosecution, pointed to somebody who knew the victim, but this is ambiguous because it was Raffaele who pointed out to the police that nothing had been carried off. Lies revealed by SMS and Curatolo and Quintavalle are suspicious, but they are scarcely credible witnesses. The enigmatic drug-dealer Curatolo, coming late to the case and no stranger to cases with a strong media presence, is contradicted by the lack of buses, and the masks and joking around of Halloween, apparently counterbalanced by seeing the accused the day before forensic spacemen arrived. Quintavalle, another tardy witness, has nothing specific to add, not even what purchases were made, and identifying in Amanda in the courtroom has no relevance since her image had appeared on all the newspapers and TV news.

The “A” and “I” traces on the knife are neutral, given she lived with Raffaele, and (as said) there were no traces of Ms Kercher on the knife, contrasting with the prosecution hypothesis that it was the murder weapon. It was an arguable choice to test the trace for DNA rather than for what substance it was. Attributing the trace to Amanda is not unequivocal, and is indifferent, since she lived with Raffaele. Even attributing trace “B” to Meredith is not decisive (not being blood), since, with students, it’s plausible that convivial gatherings and other events would require the transport of a knife for domestic use. Starch implies ordinary use; lack of blood cannot lead to a cleaning action since starch is well-known to be absorbent and would have absorbed blood if it had been there.

It’s implausible that Amanda would carry the kitchen knife for protection in her big bag, rather than carry a small flick knife like knife-collector and knife-fan Raffaele certainly had in his possession. Attributing the print in the homicide location to her is, finally, anything but certain. (9.4.1)

COMMENT:  “˜All over the place like a dog’s breakfast’. Where to begin? The strong suspicion, reinforced with every statement made, is that Bruno is one sandwich short of a picnic. The main cause is due to taking the defence claims in their appeal papers as if they were the factual basis of a new trial. Which makes Bruno two sandwiches short of a picnic. For a Cassation judge, the picnic hamper and its contents is a serious matter. This whole section, and the following one, are destined to become a classic example.

Cassation (Bruno) ““ gist: For Raffaele, the picture is likewise. The bra-clasp, the only trace of his, has no certainty, since there is no 2nd amplification, there is no probative value. There is a strong suspicion he was there on the night, but when is not possible to determine. Given Amanda was present, it’s scarcely believable he wouldn’t be with her. Amanda had versions of the “something strange” story and other versions of being present, it’s strange she wouldn’t have called her boyfriend, presumably being ignorant of Italian emergency procedures and having her boyfriend close by. No call, there was no phone record, implies he was with her.

But presence at the scene is not certain proof. Defence arguments are insufficient to remove doubt. Even if Raffaele watched everything, it does not rule out his presence ““ he could have been at the house, it’s a short distance away, ten or so minutes. Amanda’s claims to have been at Raffaele’s house, countered by Curatalo’s and Quintavalle’s testimony, raises strong suspicion against Raffaele. But their strongly approximative and ambiguous statements cannot, reasonably, lead to certainty, notwithstanding the appeal court’s problematic subjective view on the matter. Suspicions rise from the substantive failure of the alibi about the computers, although it’s not a case of speaking about failed alibis, but rather alibis that didn’t make it. No certainty either about Raffaele’s prints, with their “probable identity”, rather than certainty. (9.4.2)

COMMENT: Reasonable minds can (and often do) come to different conclusions on the same facts. But: Highly trained professional lawyers applied the incorrect methodology?! If Bruno thinks Florence did that, then what’s to stop anyone thinking that Bruno has done the same thing? Curatolo is an enigmatic drug-dealer (and again the media get a look-in), but the enigmatic drug-taking Raffaele isn’t, even with his knife-fetish?

Luckily, enigmas, according to common experience, are not generally the convivial party-going kind, whereof large kitchen knives for domestic use are easily transported. Bruno, and the Bruno Cafe-and-Bar Specials, are ripe for satire (which may be the underlying ulterior intention, subconsciously-speaking: to make a mark, or a stain or a trace, no matter how indeterminate, or, keyword, indecisive.

Cassation (Bruno) ““ gist: Since the main charge is unsupported, the subsidiary charges also fall. (9.4.3)

COMMENT: True, as a principle.

Cassation (Bruno) ““ gist: Contradictory probative elements must compel an acquittal. One last question remains to be resolved. Remand of the case to another court is logically linked to the objective possibility of further tests. The response is definitely negative. The traces are so small they cannot guarantee reliability. Amanda’s and Meredith’s computer were burned by the investigators, probably through the wrong electric current causing irreversible damage. The declaratory evidence is exhaustive. Rudy refused and cannot be compelled to testify.

Defence technical requests cannot guarantee clarity, not only because of the amount of time, but the problematic testing (possibility of selective clean-up); obvious irrelevance (tests on Raffaele’s computer), given the possibility, no matter what the interaction, of going over to Meredith’s house; or clearly superfluous, given the completeness of the examination undertaken (for example, the autopsy and subsequent medico-legal tests). Remand of the case would be useless. Annulment of the conviction under charge (A)  [=aggravated murder] implies a redetermination of the sentence imposed, which will be set as the same one handed down by the Court of Appeal of Perugia, adequate and just.

And so all other defence submissions petitions requests are to be considered denied, while any lines of argumentation, including those not examined, are inadmissible as being, clearly, related to the mertis. (10)

COMMENT: Repeating of the same wallpaper pattern starting to occur. Which means, there is nothing more to say. Literally.

Cassation (Bruno) ““ gist: It only remains to dispose the case (11):

Charge (B): extinction of the charge by prescription
The impugned judgment, excluding aggravated calunnia, annulled without remand on charges (A), (D)and (E) on the grounds on not having committed the deed
Re-determine the sentence inflicted on Amanda for the crime of calunnia to three years of imprisonment.
So decided 27/03/2015
Signed
(Bruno, Recorder) (Marasca, President)

COMMENT: Only Bruno initialled each page; Marasca limited himself to signing at the end.

Observations

What have we learned on the first read-through of (the legal part of) the Cassation decision?

• That the court is not slave to science, yet Bruno pronounces about repeatability and its scientific significance (which he mistakes for the significance of falsifiability). He makes repeatability a judicial truth. I expect Bruno will be surprised to “learn” that there are sciences where repeatability is not an option, yet they are still science.


• That the court is not slave to the expert, yet when the defence claim that international standards have been breached in the collection of evidence, that is accepted as judicial truth.


• That a person is not slave to their DNA: the presence of DNA (Raffaele’s on the cigarette butt) is proof of nothing since he was a visitor to the cottage, and the absence of DNA (in the room) is proof of everything since it “shows” (with certainty) that they weren’t there as murderers.


• That the court is adept at applying common experience and associated physics, yet Bruno does not hesitate to declare what is and isn’t physically possible (in a small room, say; or with starch grains).


• That the court applies logic and common sense and everyday knowledge, yet, in continuously describing the crime as senseless, incomprehensible, and indeed not of the everyday, Bruno looks for sense and rationality, and the not finding of it doesn’t alert him to the possibility that it isn’t there.


• That the copy-paste function on junior judge’s computers should be switched off in cases of non compus mentus, or that at the least that copyright payments should be made to defence clerks for usage of the material, to offset their costs.

Others here will pick up the baton on this. I look forward to seeing them run.

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.

Friday, October 09, 2015

The Marasca/Bruno Report, A Dissection In Four Parts: #2 The Strange Two Unrelated Tracks Approach

Posted by catnip

The Bruno demon in the cage…

Initial impressions of the legal reasoning

A closer reading, or later pages, may reveal a change in opinion might be required. If so, those changes in the post will be noted. Based on experience, the likelihood is that, how a thing starts, is how it will tend to continue. Changing horses in mid-stream, though theoretically possible, is not an everyday occurrence.

Cassation (Bruno) ““ gist: A European Court of Human Rights decision in Amanda’s favour won’t affect the calunnia conviction, since the accusations were repeated to the Prosecutor (such interviews are institutionally immune to psychological pressure), and she confirmed them again when writing in her note, signed by her, in a moment when she was alone with herself and her conscience. (2.2)

COMMENT: To the defence allegation that it was police pressure that caused Amanda to falsely claim that Patrick was the murderer, the obvious and common sense response that the claim was repeated in situations where no pressure was possible, deflates the allegation.

However, note Bruno’s implicit assumption, that Amanda was behaving rationally, that is, not affected by drugs, impaired mental states, or delusional or incorrect beliefs, is not raised, let alone examined and a factual finding made. (Not that it is in the Court of Cassation’s general remit to make findings of fact, but that is another matter.

And Bruno specifically addresses that point later, so he is not unaware of it.)  This way of treating assumptions forms a characteristic pattern, and has implications later. Note that while the murder charges were dismissed, the calunnia conviction was confirmed. This would not be a matter that any PR push for Raffaele would need to be concerned about, as we indeed find.

Cassation (Bruno) ““ gist: The request is refused to have the Grand Chamber consider the probative value of evidence collected in breach of international forensic standards; witness statements made under a strong media spotlight; and the admissibility of accusatory statements made in the judgment of another court and received into evidence. (2.3)

COMMENT: Bruno can handle the forensics methodology question, Alessi’s bag-of-hot-air statements, and the legal implications of the explicit accusations made in the judgment reasons confirming Rudy’s conviction.

Cassation (Bruno) ““ gist: The appeal court did not follow Cassation’s ruling on the principles of law involved, namely that the court is not to rely on the original (annulled) reasoning, the court must not trespass into the merits of the case, the court retains the original scope of enquiry, all the facts must be looked at, and the action to take depends upon the type of annulment because there can be errors of law, and errors of logic. (3)

COMMENT: The Florence Court of Appeal did not follow the instructions set down for it by Cassation. This aspect of the rules of law and procedure will take some detail to examine fully, but suffice to say here that Bruno’s own methodology is not automatically immune from the same defects he is accusing Florence of having, merely because it is him saying so. How well does Bruno himself follow the rules?, in other words. Verbal gymnastics and semantic yoga poses are presaged.

Cassation (Bruno) ““ gist: There were glaring errors. (3.1)

COMMENT: This becomes his leitmotiv, and he actually uses that word when talking of others.

Cassation (Bruno) ““ gist: There is only one irrefutable certainty in this case: Amanda’s guilt as regards her criminal calumny (calunnia) against Patrick Lumumba; the investigator’s glaring errors and omissions ““ the intrinsically contradictory complex of evidence is anything but beyond a reasonable doubt (4).

COMMENT: Amanda’s crime against Patrick remains; the evidence is intricate and, due to errors, incomplete, therefore the standard of “˜beyond a reasonable doubt’ has not been met. How it is that the investigator’s actions were in actual error is not established: the implication is that the defence appeal claims are simply being taken on copy-paste trust.

A fair assessment would entail examining the basis of claims that there was forensic error, hearing any counter-arguments, weighing the significance and importance of any such error if it were found to exist, and deciding if it has a bearing and impact on the legal question to be decided ““ this is all trial-court matter.

People being driven by the media spotlight is another leitmotiv of Bruno’s. It’s almost as if he is embodying what he is saying that others have done.

Cassation (Bruno) ““ gist: The absurd and incomprehensible death of Meredith Kercher in mysterious circumstances and the international media spotlight forced an increase in the pace of the investigation and a knee-jerk search for someone guilty to display to the international media, and lack of regard for international protocols about possible contamination, led to hurried, incomplete and incorrect investigative activity. The lack of repeatability, breaking one of the most fundamental requirements of the scientific method as established by Galileo, was a flaw. (4.1)

COMMENT: Here is the first clue that the search for a rational motive is not going to be successful: the murder was senseless. The media spotlight provides the logical underpinning, the motive if you will, of why the police made errors: they needed a quick result, and so therefore cut corners. The “˜international standards’ (which are never named explicitly) provide the yardstick against which these cut corners can be measured.

(Which leads to a circular-logic paradox scenario: At the scriptwriters’ workshop for Detectives 101: Writer A: “I’ve got them on the scene now, ready to decide what to do. So how do I get them to cut corners? What are the corners, the international standards?” Writer B: “I don’t know. Make “˜em up. Or download something official-looking off the Internet.” Writer A: “What are their guidelines in real life, though? Surely they don’t go about breaching guidelines on every callout. How did they know about putting on gloves, for instance?” Writer B: “.”)

Cassation (Bruno) ““ gist: The media and its associated “noise” (in it computer science sense) induced a mythomane seeking to break the long grey day of an incarceration regime, at least for a day; and Rudy the half-truth teller is key: definite traces of him were found in the room and on the victim. (4.2)

COMMENT: Alessi, believed to be a full-truth teller, wanted some fresh air for a couple of hours, so a trip to the courtroom was organised. The media’s fault. Rudy, the known half-truth teller, knows more, because actual traces of him were found in what can be referred to as the “˜murder zone’. Notwithstanding that a person’s traces can be found on a victim, and the person is not a murderer. Bruno is also performing some literary yoga poses in this passage.

Cassation (Bruno) ““ gist: Rudy’s finalised, definitive, judgment, and his statements, attract questions of admissibility. (4.3)

COMMENT: This is the crux of the legal use of the inferences available in terms of Bruno’s reasoning. Rudy’s trial and conviction are being treated by Bruno as separate and distinct from the trial of Amanda and Raffaele, rather than logically interlinked: if the forensics against Amanda and Raffaele are flawed, then those against Rudy are not, because his conviction has become definitive. That is an artificial way of looking at it. Inferences can go both ways: if Raffaele’s DNA is the result of contamination, then so could Rudy’s be, for exactly the same reasons; if a person has the victim’s blood on their hands, then that does not make them the (or a) murderer.

Indeed, Rudy explicitly stated he got blood on him while trying to help Meredith (implicitly, this must be the untrue part of one of Rudy’s half-truths). So then Rudy’s conviction becomes a legal fiction, not a representation of what actually happened, and Rudy’s definitive judgment voids itself into nothingness. Bruno avoids discussing this line of thought, for some reason. He also, conveniently, has somehow forgotten about the phrase “acting in company with” in the Criminal Code, again, for some reason (presumably).

Cassation (Bruno) ““ gist: Rudy’s judgment: The search for a motive for the murder has yielded nothing, in proportion to what has been conjectured: mere disagreement among flatmates, sexual desires (an at least initial consensual act cannot be excluded); and even less for an unknown burglar who graduates from theft, to uncontrollable sexual assault, to gratuitous homicide with such brutal ferocity, unless there was a serial killer in action, which there is no evidence of in the documents that in Perugia, at that time, other homicides of other young women in identical circumstances were being committed. (4.3.1)

COMMENT: This counts as a straw man within a straw man. The Perugian Serial Killer angle almost qualifies as a laughable joke. And what are the chances of finding a traditional rational motive for an irrational (“senseless and absurd”) act? Close to zero, would be the statistician’s answer. The key word is “gratuitous”. Although, the lone-burglar scenario defence gambit gets a drubbing.

Cassation (Bruno) ““ gist: Rudy’s statements—made in the absence of the people whose rights are affected (a denial of rights), not always coherent and constant (a denial of logic), and somehow involving Amanda (but never Raffaele explicitly), while continuing to maintain his innocence notwithstanding his forensic presence at the scene and on the victim ““ can only be rejected as inadmissible, and in breach of the requirements for a fair trial. In fact, Rudy as a witness violates his right not to testify after finalisation of his sentence or undergo cross-examination. (4.3.2)

COMMENT: There’s legal yoga posing in this section. The interlinked nature of the trials works both ways: accusations made by the Amanda and Raffaele defence against Rudy in his absence can’t be responded to and cross-examined by him. The bit about “˜not always coherent and constant’ also applies to Amanda and Raffaele. And the bit about Rudy never mentioning Raffaele being on site and present does not sound like it came from Amanda’s defence. On the plus side, Bruno, as editor, did manage to condense the 600-and-more pages of the (Bongiorno) defence appeal down to a couple of dozen paragraphs.

Cassation (Bruno) ““ gist: The procedural rules were violated when the defence request to re-open argument was refused. The term “relevant”, as in relevant evidence as mentioned in the Code, is mere linguistic decoration (4.4)

COMMENT: There might be some merit in the idea that witnesses are recalled and argument re-opened only when it’s relevant, and not otherwise. The assertion of procedural violation remains just that, though, an assertion. In any case, opposing views are not examined. So how did Bruno reach his decision? A set of reasons without the actual reasons being given ““ is that what we are looking at?

Cassation (Bruno) ““ gist: The charge relating to unlawful transport of a knife has exceeded the time limit set by the statute of limitations. (5)

COMMENT: The limitations period expiry gambit is a widely-used defence strategy. Lots of people, including very many in the media spotlight, have taken advantage of it and benefitted from it.

Cassation (Bruno) ““ gist: The judgment appealed from, the subject of multiple censures by the parties, exhibits mistakes, incongruities and errors of law. (6)

COMMENT: The prosecution are strangely absent from all of this. Did Bruno only have the transcript of the second day’s hearing, after misplacing the prosecution’s or leaving it at the bus stop? In any case, he does not give any indication that he has read it.

Cassation (Bruno) ““ gist: In first place, the affirmation that determining the motive is substantively irrelevant is an error. Automatically transferring Rudy’s sexual motive to the others doesn’t hold up; the erotic game scenario finds no corroboration; extending a shared and definite set of interpersonal relationships amongst the co-participants is also a species of transfer.

The love-story between Amanda and Raffaele is obvious and even if it appears certain that she somehow, somewhen, knew Rudy, there is no evidence that Raffaele knew him or ever visited him. If Laura and Filomena didn’t know Rudy and are ruled out as murderers, not to do the same with Raffaele is illogical and irrational. (6.1)

COMMENT: The other judges got it wrong about the importance of motive. If motive is essential, then no motive means no crime. And if one person had motive, it doesn’t mean the others must have had the same motive. The love-story appears obvious, but appearing so doesn’t make it so. Calling it a love-story is an interpretation, in any case. How was the conclusion reached and alternative hypotheses rejected? And how does not knowing Rudy socially (beforehand) have a bearing on anything (even motives)? A straw straw-man being invoked?

Cassation (Bruno) ““ gist: Holding that the exact time of death was irrelevant was also an error. From the phone records, it emerges that the time of death can be set between 21:30 and 22:13. (6.2)

COMMENT: The exact time is needed for a fair trial so the accused can supply an alibi. The prosecution method of picking the middle of the estimated time range is “˜mere’ arithmetic, not science (including gastric).  Perhaps Bruno read along the line underneath by mistake on the phone call log printout (if he actually read anything)? Perhaps he just accepted the defence claim at their word? Who can tell?

Pause here and re-energize, before we continue in another post. Bruno’s pattern seems to be shaping up as:

Make assertions as if they are conclusions; show no reasoning for them; exhibit a predilection and fondness for posing (of which more, when we get to the detail); and embody what he alleges the prosecution (and Alessi) have done, namely hastening under pressure and influence of the media spotlight and not following international standards, in this case, of legal reasoning and fairness (plus the implicit backhanders to all those who “got it wrong”).

It’s almost as if this case has provided him with the opportunity of at least a small break from long grey days of unproductive solitude. If so, it’s no wonder his sympathy with Raffaele’s situation of watching mould growing on his cell wall shines through so brightly.