Wednesday, February 05, 2025
The 2015 Cassation Annulment Revisited As A Matter Of Italian Law
Posted by James Raper
Florence Apeal Judge Nencini whose verdict was being overturned
My New Analysis
This relates to the “confirmed guilty” Knox verdict two weeks ago by the First Chambers, which should also have handled the final 2015 appeal that was whisked away to the Fifth Chambers for reasons widely seen as very murky in Italy. As further explained here, a bizarre sentencing report resulted.
The appeal’s lead judge was Gennaro Marasca, and the rapporteur (drafter of the report, sick during the writing phase which against regulation was extended) was Paolo Antonio Bruno. Both were political appointees, from Naples, and both have retired now. M-B below for short.
The “acquittal” was said to be, according to Marasca, after the verdict, due to Article 530, Section 2. In other words, insufficient and/or contradictory evidence.
In fact M-B did not state this explicitly at the time of the verdict, nor explicitly in their Motivation (as that would be beyond their remit – the Supreme Court can only affirm a verdict, or annul it and – other than in the circumstances provided for by Article 620, to which I will come in a bit - send it back to the appeal court for re-consideration).
Instead they inserted it into their Motivation with a heavy dose of sophistry, outright dishonesty and underhandedness. The Nencini Motivation was annulled because –
The intrinsic contradictory nature of the evidence, emerging from the text of the appealed verdict, in essence undermines the connective tissue of the same, leading to its annulment.
In fact, in the presence of a scenario marked by many contradictions, the referral judge should not have come to a verdict of guilt, but - as previously observed – should have reached a verdict of not guilty, given Article 530, section 2, Italian Code of Criminal Procedure.
The arrogance, intellectual dishonesty and the pernicious imposition of its own bias into the case that the above displays, and evident throughout the Report, is quite staggering.
“The intrinsic contradictory nature of the evidence (ed : much of which they have ignored) emerging from the text of the appealed verdict” is a sweeping and entirely untrue statement as it relates to Nencini’s Motivation.
There were a few insignificant factual mistakes in his Motivation but what contradictions are there, other than those M-B have conjured up out of thin air?
Well, I suppose there is M-B’s bizarre, and merit lacking, adherence to the Independent Experts’ conclusions, despite Nencini’s effective debunking of the same.
In my book, in Chapters 33 and 34, I show just how, and why, the 5th Chamber’s assertion, that 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”, is an assertion itself completely lacking in merit and, more importantly, has no conception in or connection with a valid ground for appeal.
The 5th Chamber’s judges would have known that too. One cannot find an error - that is, a manifest illogicality, defect or contradictoriness (as required for a valid ground for appeal - Section 1, paragraph (e), of Article 606 (grounds for appeal to the Supreme Court)) in Nencini’s take down of the 2011 Independent Experts’ Report and his re-affirmation of this evidence and it’s relevance.
If there is one the 5th Chamber does not state what it is.
As to the DNA on the knife blade having no probative or circumstantial relevance, such an assertion is most certainly an egregious error from which the 5th Chamber’s Motivation as a whole cannot recover.
Nor could it be true of the DNA on the bra clasp even if that evidence is, hypothetically, open to an argument about contamination.
It could never be the case that disagreeing with the Independent Experts and the 5th Chamber is an error in itself (which is basically how the 5th Chamber sees it), justifying an annulment.
That, and a host of other errors of logic, I submit, is why they ruled out a referral. After all, if I can demonstrate that, then a referral judge would have had no problem doing so.
But let us consider what they go on to say -
“At this point only one matter remains to be resolved, regarding the type of annulment - i.e., whether it should be decided with or without a new trial - which depends, obviously, on the objective possibility of further investigation which could unravel the perplexing aspects, and offer answers of certainty…”
The grounds for any annulment without further referral are stated in Article 620.
M-B choose para (l) of the Article to justify their decision to dispense with a referral.
“…. A new trial would be useless, thus the verdict of annulment without a new trial, in accordance with Article 620 para (l) of the Italian Code of Criminal Procedure, thus applying a sentence of not guilty which would also have been reached by any new referral judge….”
Para (l) states that an annulment without further referral can occur –
“(l) If the Court of Cassation (i.e the Supreme Court) holds it can either reach a decision if no further ascertainment of the alleged offences is needed, set a new sentence based on the decision of the merit court, or take any other necessary decision, and in any other case in which it believes referral is superfluous.”
There is quite a bit to unpack and interpret there as it relates to the 5th Chamber’s decision.
I am not entirely clear what “if no further ascertainment of the alleged offences is needed” means in our case. Is further evidence needed to ascertain the alleged offences?
It would appear that the 5th Chamber thinks not, or at any rate can be obtained to add to what we have.
However we have the evidence there is, not just the DNA evidence, and I submit, it is pretty compelling as to guilt.
Indeed no further ascertainment is needed. Amongst all the other things Meredith’s DNA was most certainly on the knife blade and Sollecito’s on the bra clasp.
As to “a new sentence based on the decision of the merit court”, that can surely only be a reference to the appropriate form of punishment (the decision being the verdict from Nencini’s appeal court – the merit court).
Setting a new sentence is not what is happening here.
But perhaps their justification falls within the remit of the wording “or take any other decision, and in any other case in which it believes referral is superfluous”.
The latter is most likely their lifebelt (which boils down to – certainly for M-B, given the content of their Motivation – “we will say and do what we like, no rationale required”), and remember, this is all about whether there should be an annulment without further referral.
Therefore the only justification seemingly available to them is this catch-all one, prone to misuse, as it is here (there is no “thus” at all about a not guilty verdict, as they would have it above), and deployed, I would submit, in a pathetic attempt to promote the ascendency of the 5th Chamber over the 1st Chamber.
An annulment without a further appeal hearing would, of course, leave us with the Massei trial verdict.
So M-B, as we have seen, simply impose their own preferred verdict upon the Florence appeal court as a matter of, as they would have it, logic.
Really?! That is gaslighting.
M-B did not annul and order a new appeal hearing because (and they knew it) their Motivation would have been torn to shreds.
If there had been a further referral would, as M-B say, gaslighting again, the referral judge have, as a matter of evidence and logic also have entered a not guilty verdict? Would he heck!
Or would the referral judge have had to comply with the terms of the referral were it in effect to include instructions to enter a not guilty verdict? Were such a referral to include such instructions then what would be the point of a referral?
It would indeed be superfluous. But such a fix would be a little bit too obvious.
Does Article 621 help?.
No. This Article states that “in the case provided for by para (l) of Article 620 the Court of Cassation shall proceed to the determination of the sentence or give the necessary instructions”.
However since the word “sentence” (rather than decision, or verdict) is being used here surely the provision must be construed as a reference to the applicable punishment.
The words “sentence” and “decision” are distinguished from each other and given, without any confusion, their usual meanings elsewhere in the Articles and so I see no reason for there to be any confusion here.
The M-B Motivation would and certainly could have been torn to shreds by a, be it brave, no nonsense referral judge, if only for the bit mentioned earlier about the DNA evidence having “no probative or circumstantial relevance”.
At any rate there is no provision in the Italian Code of Criminal Practice that I can find that could have pevented that from happening and a guilty verdict being re-affirmed.
Attentive followers of the case will recall Article 628 and understand that it’s provision in no way ties the hands of the referral judge, applyimg, as it does, to any appeal to the Supreme Court against his verdict.
And any appeal would be unlikely to find its way back to the 5th Chambers. Knowing, and fearing, the foregoing is the real reason why the 5th Chambers ruled out a referral.
These judges on the 5th Chamber’s appeal panel were completely lacking in integrity and a disgrace to their high office.
Posted by James Raper on 02/05/25 at 09:25 AM in Hoaxes Sollecito etc