This article is intended to provide a critical analysis of the ruling of the Italian Supreme Court 26455/13 dated March 25, 2013 (announced the next day with publication of the motivation report on June 18, 2013 ) which annulled the acquittal of Amanda Knox and Raffaele Sollecito of the murder of Meredith Kercher directing a new trial, at the same time confirming the three-year sentence imposed at second instance on Knox for calumny against Diya Patrick Lumumba.
In this analysis the fourteen sections, or chapters, into which the ruling divides the reasons for the decision (from page 39 to page 74) will be examined one by one, pointing out for each one what are, according to the author, the omissions, contradictions and/or dubious aspects from a legal point of view.
The author has no legal training, except for what he taught himself while following this and other cases, so the approach will be based primarily on logic and on the fundamental principles of law, on which any person of good will may inform himself quite easily.
Moreover, in order to sweep away any misunderstanding or ambiguity, it is hereby clearly stated that the author is firmly pro-innocence in this case, and yet I will try to be as much as possible objective and neutral, presenting logical arguments that are the most widely shared as possible.
It is recognized, however, that complete objectivity is in general extremely difficult and probably impossible for someone who is definitely lined up on one side in a debate of this kind.
So let us begin, following step by step the arguments of the Supreme Court.
Chapter 1 – Preface on the limits of this Court’s jurisdiction.
Basically the Supreme Court Judges claim to have carried out their assessment only under the “evidential reasoning, that is the method of assessment of evidence, [they] not being allowed to trespass into the re-evaluation of the compendium of circumstantial evidence”, even though further on it is clarified that nothing prevents the judges of the Supreme Court “from determining whether the assessment which took place was done according to logical criteria”.
The borderline is very thin and in fact judgments of the Supreme Court can be found in which this limit is perceived in a certain way and others (including, in the opinion of the writer, this one) in which it is felt to be quite loose.
Another field in which the criteria of the Supreme Court do not appear to be always consistent is that of the evaluation of evidence based on the second paragraph of Article 192 of the Code of Criminal Procedure: in particular concerning the relationship between the first phase, in which the circumstantial evidence is evaluated individually to assess severity and precision, and the second one, in which all the elements are collectively (or “osmotically”, to use an adjective very dear to the drafters of the present judgment) assessed to evaluate their correlation further, whether such collective assessment can overcome any ambiguity that they may have if taken individually.
Particularly, the First Penal Section of the Supreme Court’s decision criticizes the judges at second instance because “the contested decision ictu oculi [i.e. “in a way that hits the eye”] presents a fragmented and atomistic evaluation of the evidence, considered one by one and rejected in their demonstrative potentiality, without a broader and more complete evaluation.”
Indeed the question is quite open to interpretation: other rulings have interpreted differently the relationship between the two phases and the problems of “atomization” or “fragmentation” of circumstantial evidence, for example, the Supreme Court with United Penal Sections (33748/2005, Mannino ), wrote:
“Having been privileged by the Court of Palermo the method of a unified and all encompassing reading of the entire collection of evidence, in the face of an alleged spraying and atomization of the sources of evidence allegedly made by the court of first instance, they ended up giving relevanceto a series of elements of circumstantial evidence which, although analytically examined at first instance and individually found to beuncertain, imprecise and not serious (or, in the case of direct or hearsay statements of collaborators of justice, not even backed by individualizing evidence) and therefore irrelevant as evidence, nevertheless they seemed connectable and consistent with the historical narrative of the events, as hypothesized by the prosecution and implemented by the courts of appeal. But such a method of assembly and of mere summing of circumstantial evidence violates the rules of logic and law in the interpretation of evidentiary results.”
What shall we think then? Perhaps that judgment depends on what judges form the Court that day and for that case?
However, beyond this aspect, very important to the Italian law in itself, in the real economy of this case, the above disquisition of principles assumes in the end a very secondary role since, as we shall see, it will not be decided whether elements of circumstantial evidence, each unreliable if individually taken, may be re-evaluated by an “osmotic” evaluation but instead that, due to the appreciation of the same elements made by this judgment, we are faced by elements of circumstantial evidence, each of them already reliable individually.
Chapter 2 – The conviction of Knox for the crime of calumny.
First, it must be said that the Supreme Court considered it particularly important, apparently even decisive, when affirming the conviction of the crime of calumny that Knox confessed to her mother in an interview in prison on November 10, 2007 to feel remorse for the accusation to Lumumba, without having communicated that before to the investigators, thus supposedly marking “the absolute unwillingness to clarify to the investigators the false indication”.
However, the Supreme Court seems to ignore (or at least certainly neglects) the existence of the memorial written by Knox on November 7 in which she says: “I didn’t lie when I said I thought the killer was Patrick. I was very stressed at the time and I really did think he was the murderer. But now I remember that I can’t know who the murderer was because I didn’t return back to the house. I know the police will not be happy about this, but it’s the truth”.
Having said that, we bring instead our attention on a point purely based on the law, which, though perhaps firmly established, as argues the ruling, in Italian law, may instead provide ample ground for an appeal to the European Court of Human Rights (‘the ECHR’); in the ruling it is indeed stated that:
“It is fit to start by stating, in refutation of the claims contained in the defendant’s grounds of appeal, a principle made by this Court repeatedly that the news of crime may well be drawn from the statements of the person subjected to preliminary investigations, although ex hypothesi inadmissible for the lack of the warning according to art. 64 Code of Criminal Procedure and that therefore it is possible to correctly charge the crime of calumny to the declarer on the basis of inadmissible accusatory statements or of statements contained in an act of interrogation declared void and null.”
One might ask what is the meaning of providing guarantees and rights to the accused if in any case statements made in violation of such rights or guarantees still eventually have value for the construction of an accusation and possibly of a conviction.
In this sense, an appeal to Strasbourg for violation of Article 6 (right to a fair trial) of the European Convention on Human Rights (ECHR) could have consequences far beyond this single case for the Italian judicial system, since the Italian Constitutional Court, in its ruling 113/2011 has effectively paved the way to a review of those trials that have violated, according to an ECHR judgment, Article 6 of the ECHR.
There is another aspect, eminently of law, which is puzzling: in the judgment it is written that “the passage of the judgment at second instance in which it was reasoned that Knox was to be considered sure of the innocence of Lumumba, although distant from the scene of the crime is therefore manifestly illogical”.
Now, to think the worst one could say that the judges have taken for granted a conviction for murder (or at least her presence at the scene of the crime at the time of the same), but if you exclude that evil thought one cannot help but notice that, since they demolished the explanation of why the defendant could know that Lumumba was innocent of the murder of Meredith Kercher (a necessary condition for the existence of the crime of calumny) if she herself was not involved (also physically) in the crime, if ever the new appeal trial should acquit Knox, one would have a conviction for calumny with no reasons underlying its fundamental element – knowledge of innocence.
Perhaps it would have been better to send back to trial the calumny conviction of Knox too…
Chapter 3 – The staged break-in.
The section dealing with the alleged staged break-in in the room of Filomena Romanelli essentially endorses the objections raised by the appeal of the Perugian Prosecutor General Galati and agrees almost completely with the reconstruction carried out in the first instance judgment.
A detailed dissertation on the elements indicating whether or not the break-in was staged is outside the scope of this article, instead I want to point out here some inaccuracies and contradictions of the judgment on this subject
First, it is stated that according to the court of second instance “only Guede had an interest in staging […] this entirely assertive allegation was not allowed, also because undermined by contradictions and being the product of a failure to take account of the data permanently acquired in the record. The judgment that convicted Rudy, not contradicted on the point by new elements of evidence, found that the bloody shoeprints of the said [Rudy] marked the path he followed from the room of poor Meredith to the outer door of the house, without going through Romanelli’s room, since, as it was written, the traces of the victim’s blood marked the path followed by Guede, without any deviation”.
Well, first of all the theory of a staging by Guede is only a very secondary alternative in the reasoning of the court of second instance (Hellmann), since it is stated explicitly that the court deems it not having been a staged but a real break-in, while the judges of the Supreme Court tend to present this secondary theory almost as a pillar of the quashed judgment.
It must also be said that it is not true that there have not been “new elements of evidence” outside the trial of Rudy that may undermine the reconstruction quoted above: on pages 103-104 of the second instance motivation Hellmann makes explicit reference to the fact that the expert Professor Vinci found blood stains on the bottom of the bath mat, not in correspondence with those very well known on the top, which could be perfectly compatible with Amanda Knox having dragged the mat with her wet feet from the shower up to her room, obliterating by this act a series of bloody footprints along that route on the morning of November 2 2007.
As a further inconsistency we can cite the assertion that photographs and video would show that the glass fragments were over and not under the clothes: in truth the fact that the pictures show the exact opposite is agreed both by the first instance judgment (Massei, p. 42-43) as by that of second instance (Hellmann, p 119), even if they then differ as to the value to be attributed to such images .
Finally it should be noted that the Supreme Court, while giving so much value to the glass shreds found over objects as supporting the idea of a staging, does not attempt to explain those found below in the context of a simulation.
Chapter 4 – The testimony of Curatolo.
The chapter dedicated to the now deceased homeless Perugian, in the opinion of this author is a mix of apparent misunderstanding of what is actually stated in the second degree judgment and of an excursion into fact finding, something from which, by its mandate, the Supreme Court should refrain.
Misunderstanding because, following the lines of the Galati appeal, they present the reasoning of the court of second instance as aiming to show that Curatolo would have seen the defendants in Piazza Grimana on Halloween night and not on the evening of November 1, something patently impossible given that their movements for the evening of 31 October are known and that they were nowhere in the vicinity that night.
The point however is that the second instance motivation was indeed prompted by the fact that the witness put the two defendants in an inconsistent and confused spatiotemporal context to argue that his whole testimony was unreliable and that one could not be sure when and if he had actually seen them at all.
Even if Curatolo may have, as the Supreme Court reiterates, recognized the two defendants in the courtroom as the two young people that he saw in Piazza Grimana, the fact that he places them (with plenty of details and claiming to have seen them several times) in a context, that of the Halloween evening, where they were definitely not where he says he saw them, should raise many doubts about the overall reliability of his testimony, that is to say about any point of it.
The Supreme Court instead deems that the truly important element to be referenced (“a datum with a high quotient of uniqueness, more than any other”) is the fact that in the memories of Curatolo he puts the sighting of men dressed in white overalls (the operators of the Scientific Police) around the cottage in Via della Pergola on the morning after the night when he claims to have seen the defendants.
It is difficult not to consider this as a deep incursion into the field of fact finding: it is one thing to criticize (perhaps without even understanding it well) the argument of the annulled judgment, quite a different thing is to categorically indicate which elements of a testimony should be considered of major or even absolute value.
From the chapter in question we see quite clearly that the Supreme Court believes that Curatolo saw the two defendants in Piazza Grimana the night of the murder, thereby re-affirming the full reconstruction of the judgment of first instance and it is difficult to imagine how such an implicit indication may be ignored by the judges of the new appeal trial.
Chapter 5 – The testimony of Quintavalle.
Concerning Marco Quintavalle, who at the time owned a minimarket near Piazza Grimana and who testified that he saw Amanda Knox enter his store very early in the morning of November 2, the criticism of the Supreme Court of the second instance ruling focuses on it having diminished the value of his testimony as circumstantial evidence, on it having neglected some details of the testimony and on the assessment of the progressive formation in time of Quintavalle’s conviction of having seen Knox that morning.
On the first point the Supreme Court ruling contends that “the court prefaced (p. 51 above) that the fact that Knox had shown up in the early morning to buy detergents on the day following the act of violence, even if established, was not of any relevance”. Well this is simply not true, because on page 51 of the second grade ruling it is in truth written: “In truth it would be, even if it were a true hypothesis, a weak circumstantial element, as in itself unable to prove guilt even presumptively”, which is something different.
Turning to the second point, the Supreme Court upholds the complaints of the PG on the omission, in the context of the ruling of the court of second instance of Perugia, of the fact that Quintavalle had claimed to have seen at some point the girl in the face at close range. You can accept the objection in itself, since the point was to be considered, but it would have been better to assess whether this omission could really result in illogicality or motivational deficiency of the whole discussion of Quintavalle by the second instance ruling.
Indeed, that motivation report also considered other critical aspects in the testimony of Quintavalle, such as his having hsaid that the alleged Knox wore a gray coat, which she never owned, and the fact that this girl had bought nothing in his shop (on this point Quintavalle is unclear but his sales receipts show no purchase at that hour), a detail which is difficult to reconcile with the alleged need, according to the prosecution and the judgment of first instance, for Knox to buy material for a crime scene clean-up.
It should be noted, in passing, that, with a certain degree of originality, the Supreme Court identifies that clean-up as the cleaning of garments, not of floors as was generally believed in the prosecution case.
But finally, the most important point is probably the third, that is, whether the conviction of Quintavalle of having really seen Amanda Knox was formed only gradually over time in his mind and if in such a case that belief can be considered credible.
The Supreme Court on this aspect seems a little ambiguous, because they in fact confirm that the belief was formed over time, but they seem to accept this evolution as a normal fact if not even a reinforcement of the testimony.
Specifically the judgment reads “the witness had to clarify during his testimony that he convinced himself of the identity of the girl who appeared in the newspapers with the one that appeared to him in the early morning of November. 2, 2007, but that since in the photo the color of the eyes was not shown, he [only] acquired certainty, once he saw the girl directly in the courtroom.[…] the witness explained the reasons for his doubts and the evolution of his belief in terms of certainty.”
Hence in the opinion of the Supreme Court Judges Quintavalle came to be certain of the identification of the girl he had seen as Amanda Knox only when he saw her in the courtroom and that is not just a year after the event, but rather a year and a half.
If Quintavalle’s main problem was in the fact that the pictures in the black and white newspapers did not show the color of Knox’s eyes, the question arises why the witness was not moved by his own uncertainty to get a copy of one of the many weekly magazines full of beautiful color photos that during that year put more than once on the cover as well as in the inside pages many photos, in color, of Knox, both drawn from the preliminary hearings and from American sources.
Chapter 6 – The insufficient consideration of Knox’s memorial.
The Supreme Court determined that the court of second instance did not evaluate carefully enough the memorial written by Knox in the morning of November 6, in which she apparently puts herself in the house on Via della Pergola at the time of the crime.
The Supreme Court acknowledges that those statements are written “placing oneself more in a dreamlike than in a real context” and that “they are reflections of doubtful substantial meaning”, but nevertheless states that “they could not be dismissed – as they were- on the assumption of the psychological pressure that was placed on the author and of psychic manipulation having been carried out [on her], primarily because the script was written in solitude after the inquisitorial excesses and also because that writing was used by the same court of second instance as the probative basis of the crime of calumny, on the assumption of a full capacity of willing and understanding, so much so that Knox was convicted on the basis of that paper too”.
There are two points where the grounds of the judgment appear at least dubious.
The first concerns how much the fact that the memorial was written a few hours after the end of the night interrogation can make its content free from the psychological effects of the “inquisitorial excesses“: the Supreme Court takes it for granted both in this section and in the previous one dedicated to calumny, but it actually is a highly debatable issue.
There is then a subtle point: the court of second instance indeed says that the memorial was not written in a state of incapacity (Hellmann p. 34), but this memorial is also described as “the confused narration of a dream” (Hellmann p. 32) and that in it the author “writes of a total confusion, of not being able to remember what she is asked [to remember]” (Hellmann page 33), so it is at least doubtful that the court of second instance really decided that this memorial was inculpatory evidence in the conviction for calumny.
Chapter 7 – Failure to evaluate the content of the final judgment against Rudy Guede.
One of the most controversial aspects of the judgment under review is undoubtedly the strong bond of dependence it rests on the final judgment of the fast track trial to which Guede was subjected separately from the other two defendants.
In truth this is a problem that could touch many other cases in Italy in the future and which has its roots in the creation itself, in 1990, of the “shortened proceeding” (aka the fast track trial).
The fast track trial is held at “the state of the documents”, i.e. in this case referring to the evidence collected up to the evidentiary hearing before the GUP Micheli (Judge for the Preliminary Hearing) in autumn 2008 and while additional expertise may sometimes be ordered this was not the case here, save for an assessment of the work done by the Scientific Police labs.
Now, it is clear that the shortened procedure is faster than the ordinary one and it is also almost always true that it is based on partial information, given that more evidence usually emerges in the ordinary proceeding during the trial (expert opinions, testimonies, etc.).
Consequently, it is almost inevitable that if for a given crime there are multiple defendants and one of them chooses (and it is his indisputable right) the fast track trial, the outcome of his judgment (which is almost always based on a more limited set of evidence or on outdated or superseded ones because they are corrected by subsequent evidence surfaced in the ordinary proceeding) will come to be confirmed by the Supreme Court prior to that of the other defendants who have chosen the ordinary proceeding and, as it is easily seen in this case, it will massively influence it.
This is a big problem of law in Italy, but in this case it could also have major consequences on any requests for the extradition of Knox as a result of an eventual conviction, since there could be a violation of her constitutional rights (which take precedence over the commitments of the extradition treaty) as the outcome of her case was highly dependent on what was decided in a trial in which she was not represented.
This is partially true even in Italy and in fact the Supreme Court admits that the Guede judgment cannot be considered “binding” in the other trial. However in the U.S. context this issue is much more sensitive.
I am not an expert on U.S. law (and not even Italian law, for that matter), but I paid close attention to a case which, by the way, was re-opened more or less simultaneously with that of Perugia, that of an American woman living in Arizona, Debra Milke, who was accused of conspiring with two accomplices in order to kill her four year old son in 1989.
Well, when the three “conspirators” were brought to justice after the fact you had three successive separated and virtually “airtight” trials, in the sense that the statements made in one of them or the results of one of them were not even mentioned in the others, despite the three defendants having been charged with conspiracy between them. It is very clear, therefore, how different is the American attitude about this issue.
Returning now to the Italian matters and to this specific ruling, the first thing that causes some concern relative to the reasoning of the Supreme Court about the undue neglect of Guede’s judgment by the court of second instance of Perugia is its insistence on the importance of the possession by Knox of the keys to Via della Pergola.
It generates perplexity because in the face of a quite extensive reasoning in the second degree ruling, which lists several reasons why the judgment of Guede as well as being non-binding must also be considered outdated from the point of view of the reconstruction of events, the first and foremost source of criticism by the Supreme Court is the failure to consider the availability of the keys.
Firstly this is an element that, despite having massively influenced the investigation from the outset, in itself is much less obvious than both the Supreme Court and the prosecution seem to believe, as if in the entire history of crime there never was occurrence of a crime by someone who had entered a home through a ruse or taking advantage of a casual acquaintance with the victim.
Secondly, it is also particularly debatable the way in which this element (the availability of the keys) should make more significant or of greater influence the Guede ruling in the context of the trial of Knox and Sollecito.
It is true that the Supreme Court Judges argue that “The conclusion of the second grade judges, according to whom ‘at any rate, even if we were to take it for granted that a conspiracy of persons was required, the [Guede] ruling does not thereby acquire decisive evidentiary value for recognizing the current defendants as the accomplices of Rudy Guede’, is the result of a reasoning based on insufficiency of argument, since the presence of other people had to be necessarily correlated with the availability [e.g. the possibility of access to] of the house locus comissi delicti [e.g. the cottage on Via della Pergola]“, however, even if one accepts that highly arbitrary “necessarily”, even if one therefore assumes that Knox and Sollecito are more likely candidates than others to fill the role of Guede’s accomplices because they had the keys, what is the additional contribution that the judgment of Guede gives on this point, since its alleged importance can be derived in full autonomy from it?
Perhaps the real answer lies in a later sentence of the judgment under review: “the acquired judgment [that of the Supreme Court on Rudy] ruled that Guede was not the author of the simulation of crime [the staged break-in] that was recognized as existent and attributable to other parties.”
A passage that sounds much like “the break-in was staged because it was decided this way in another trial which received the Supreme Court’s seal”.
It must be admitted that the Supreme Court quotes some details from the ruling on Guede which have been, according to them, neglected by the court of second instance in its assessment of the break-in, however others of opposite sign could be opposed to these ones and the general feeling that one draws from reading this chapter is that the Supreme Court Judges consider the existence of a staging as an established fact and one which the judges of the trial of Knox and Sollecito, past and future, must scrupulously follow.
With a rather ambivalent conclusion the Supreme Court Judges close the chapter by saying there is a ” lack of adequate reasoning in the crucial passage of the reconstruction of the crime that relates to the presence of accomplices in the crime, in the house which was in the availability, besides the victim, of Knox alone, in that cursed evening, an element which must not certainly be seen as an automatic proof [literally “probative automatism”], but which constitutes a significant segment in the reconstructive itinerary, to be assessed together with the other evidence.”
A shot at the rim and one at the barrel .
Chapter 8 – The evaluation of the statements made by Rudy Guede during the appeal trial.
In my humble opinion, this chapter starts with a misunderstanding, giving a wrong meaning to what the court of second instance said in its ruling about the statements of Guede.
Judges Hellmann and Zanetti had in fact written (p. 35): “As surprising as it may seem, Rudy Guede has never been questioned during the present trial about the facts that occurred on the night between 1st and 2nd November 2007 on Via della Pergola: neither previously under C.P.P. Article 210, nor afterwards under C.P.P. Article 197 bis, so that, regardless of his reliability or otherwise, no statements exist in this capacity concerning the main facts of the trial.”
This is a neutral statement: in it it is said that Guede has never testified about the facts in the context of the proceedings against Knox and Sollecito and articles of the Code of Criminal Procedure under which he could refrain from doing so are referenced. Nothing more.
Now instead we read the conclusions of the Supreme Court on the point, which moreover take up almost literally the text of the Galati appeal, which has also apparently fallen into the same misunderstanding:
“vice of violation of law that can be spotted, ictu oculi [as a hit in the eye], in the passage of the ruling in which the responsibility is placed on Guede (and probably on the prosecutorial body) never to have been cross-examined either at First, or Second Instance. As correctly pointed out by the public appellant, Rudy Guede at the time of the First Instance trial against the two lovebirds [best translation for “fidanzatini”], was a defendant in a connected process ex art. 12 c. 1 letter. a), so that article 210 C. 4 penal procedural code allowed him to remain silent. Moreover article. 197 bis c. 4 penal procedural code released him from the obligation to give evidence on matters for which his guilt had been affirmed with a verdict of conviction, having he denied his responsibility and having failed to make any statement [in his own trial].So no forcing of the procedure took place to please the co-defendant, to the detriment of Knox and Sollecito, but a strict observance of the normative parameters; neither can the unreliability of the same be deemed, on the simple premise that he had refused to testify, having just exercised his right, conferred on him by the law.”
Please take notice that they quote the same articles of the Code of Criminal Procedure to say the same thing: Guede had the right to remain silent and so he did.
Where in the second grade ruling is there any hint of “favors” made by the Public Prosecutor to Guede to the detriment of Knox and Sollecito?
Where in the judgment of second instance is it said that Guede is deemed unreliable for the mere fact of not having testified?
The remainder of the chapter demolishes the reasons by which the court of second instance had determined in the Skype conversation of Guede with his friend Benedetti contained elements favorable to Knox and Sollecito.
To do this, in addition to repeating, and upholding it, a particularly controversial point of the Galati appeal, i.e. that in which it is asserted that Guede, by placing himself at the crime scene at the time of the crime but at a time prior to that held true by the prosecution, wanted to sidetrack the investigation, the ruling then goes on to give a noteworthy “certificate” of total unreliability to Guede and even calling him “surely the main leading actor” of the crime.
The reason why the sidetracking argument of the causes strong perplexity is soon stated: one does not really understand what sidetracking effect one would obtain by placing oneself at the crime scene at the time of the crime, but shifting this time.
One could understand the sidetracking intent if Guede had stated to have left while Kercher was still alive and well, but claiming to have witnessed the crime and moving it to a couple of hours before (according to the Public Prosecution) renders unclear what sidetracking effect was supposed to be achieved at all.
On the contrary, given that he denies having participated to the murder, he would have had every reason to report the correct time just to gain credibility in the eyes of the investigators.
On the other hand moreover, the only sidetracking effect that one can get by placing oneself in the wrong place at the wrong time but changing the time is to appear as a mythomaniac, but someone who has left the traces that Guede left at the crime scene and who knows he is wanted because of those tracks, cannot really hope to be considered a simple mythomaniac.
We were saying then that Guede is given a “certificate” of total unreliability, and in fact the words “unreliability” and “general” or “total” are repeated three times in a page: it is therefore reasonable to expect that any future declaration of Rudy Guede will not have any influence on the trial of Knox and Sollecito.
Besides establishing his unreliability, the Supreme Court also attributes to Guede a level of responsibility in the crime that could have effects on the judgment about the other two defendants.
With what, to be honest, sounds a bit of a foray into the land of fact finding, the Supreme Court held in fact (p. 57): “The captured message could not be assessed as reliable, if only for the fact that the author was placing himself away from that act of violence [literally “of blood”] of which he surely was the main leading actor, because of the very many traces that he left at the crime scene“.
I spoke about a foray because the above mentioned passage could be read as an admission that Guede has left many more traces than his accomplices, and that therefore he has more responsibility, hence suggesting that the sentence given to his accomplices could be reduced compared to his.
This point is potentially a harbinger of significant practical consequences, as we shall see in the analysis of the final section, the fourteenth.
Chapter 9 – Rejection of the request for hearing Aviello Luciano.
Luciano Aviello was a previous offender and fellow prisoner of Sollecito, who was first presented as a defense witness, with a quite unlikely story according to which the murderer of Kercher was his brother for an affair of paintings; Aviello later recanted and became a witness for the prosecution, saying that Raffaele Sollecito in prison had confessed to him his and Knox’s responsibilities in the murder, which occurred for “sexual” reasons.
Now, regardless of the intrinsic reliability of a witness capable of such remarkable 180 degrees twists, on which the Supreme Court does not comment, saying only that from a possible hearing “a judgment of unreliability could also have been strengthened”, the rest of the chapter is a discussion on procedural matters of such a detail that it far exceeds the knowledge of the author of this article and therefore the conclusions of the Court will be accepted without further saying.
If we have to listen to his story, be it this or that version, we will listen to him in Florence.
Chapter 10 – The reparameterization of the time of death done in the second instance trial.
This is the chapter in which perhaps the Supreme Court enters most considerably into the realm of fact finding, even formulating its own alternative hypotheses and in that way raising broad concerns about the respect for the limits which it had itself set in accordance with the rules of law, in the first chapter of the motivation report.
Essentially, the Court considers that the determination of the time of the death of Meredith Kercher as formulated in the first instance judgment, that is relying mainly on the more or less converging evidence of Capezzali, Monacchia and Dramis, is more reasonable and reliable than that made by the court of second instance, which was based mainly on elements identified by an expert on the mobile phone of the victim, on Guede’s Skype chat with Benedetti and on some logical considerations.
The Supreme Court applies in respect of Guede’s Skype chat both an operation of denial of validity based on the judgment of total unreliability of Guede issued in the proceedings that concerned him, as well as a logic according to which the words of Guede can only be accepted completely or not at all.
Indeed the Supreme Court criticizes the court of second instance of Perugia for having relied on some statements made by Guede, in the chat quoted above, about the time of death (indicated by him around 9:30 pm), while not paying attention to the fact that in the same chat Guede put Amanda Knox at the crime scene and especially excluded “having seen the broken window of Romanelli’s room during the whole time of his staying at said house. A fact totally neglected by the court in an immediately following passage of the appealed ruling, when they concluded that it was Guede who had entered [the house] through Romanelli’s window, after having thrown the four kilograms rock from the embankment in front and below the window, in this way creating an irreparable internal contradiction which highlights the always more pronounced level of illogicality that permeates the ruling object of the present examination”.
So Guede for the Supreme Court is like the French Revolution to Clemenceau: he can only be accepted or rejected “en bloc”, as a single entity.
The Supreme Court Judges do not seem to think that the author of a break-in might have an interest in denying its existence rather than in admitting it nor, probably, do they realize that Guede in the chat does not speak explicitly of Amanda Knox but of a female voice that he hears in a spirited discussion with Meredith (in a language not specified, but it is doubtful that Guede would have been able to report the contents of a quarrel between two people whose mother tongue is English and who, in such a state of mind would certainly not try to put words into Italian) and who, by the way, was introduced into the house thanks to Kercher after having rung the bell, a detail this which should be expected to generate at least some doubt about the identity of the unknown woman among the stubborn supporters of the theory of the “availability of the keys.”
However, once having deprived of any value the time indication given by Guede in the Skype chat, the Supreme Court goes on to demolish the probative value of the study of the traces on the victim’s cell phone and here the judges make a particularly critical step, formulating their own alternative hypotheses on matters of fact: “it appears totally unlikely that one can found an alternative reconstructive hypothesis on the basis of the fact that since the victim did not repeat the call home after 8:56 pm, it would be necessary to suppose the intervention of a ominous event: the first missing answer by her relatives could have induced the young girl to remember some evening engagement of theirs which could stretch till late and hence it is totally reasonable to think that the young Englishwoman gave up, for reasons not necessarily connected with the fate she shortly after met.“
I recall your attention on what was written by the judges themselves in the eighth chapter of this same ruling on page 56: “it being not a matter of evaluation parameters which can be replaced with others no less valid and consistent (a situation that would preclude any incursion by this Court as per United Sections 31.5.2000, n. 12), but of…”.
Going a step further we will also quote an article
by Councillor of Cassation Giovanni Canzio on the issue of the limits of action of the Supreme Court towards a judgment of appeal and in particular the following passage on page 6 of the same:
“In order to define the boundaries of judicial review of a fact finding ruling, it can be moreover said that there is the well-established legal principle, repeated inmultiple judgments of the United Penal Sections (United Sections, 12/13/1995, Clarke; United Sections 06/19/1996, Di Francesco; United Sections 04/30/1997, Dessimone; United Sections,11/24/1999, Spina; United Sections, 06.21.2000, Tammaro;United Sections., 05/31/2000, Jakani; United Sections 09/24/2003, Petrella; United Sections 10/30/2003, Andreotti; United Sections 07/12/2005, Mannino)according to which the Supreme Court has the task of controlling theevidential reasoning and the justification of the decision of the fact finding court, notthe contents of the same, since it is not the judge of the probative result, butof the associated proceedings and of the cogency of the argumentative discourse. The grievances of an appellant may not lead to an impermissible re-reading of the acquired evidence, because the Court cannot proceed to a new and different assessment of the material elements and of the facts subject to the proceedings, and alternative reconstructions, as well as the complaints on the selection and interpretation of the evidence, are not eligible to enter the judgment of legitimacy, since, in the presence of a correct reconstruction of the story, no foray is permitted whatsoever into the proceedings’ fact finding in order to reach different hypothetical reconstructions of the facts, nor the possibility of scrutinizing the compliance of the rulingto the acquired evidence [acquisizioni processuali].”
Of course the reconstruction of the story must be “correct”, but in this particular section of the judgment of the Supreme Court, there is no arguing that the use made of the traces found on the victim’s cell phone is “illogical” or “contradictory”: there is simply the description of an alternative hypothesis, perhaps even possible but simply an alternative theory, not a replacement of illogical reasoning.
Having taken note of such an apparent anomaly, let us go ahead and move on to the central element of the chapter: the testimony of Capezzali, Monacchia and Dramis.
Capezzali reports having heard a harrowing scream and then, shortly after, steps on a iron ladder and on the gravel and the dry leaves of Via della Pergola.
Monacchia hears a scream, but no steps of any kind.
Dramis does not hear the scream but “running footsteps under the window, such as she had never heard before”.
Now, aside from wondering how these steps should have been to deserve such a qualification of uniqueness, we must also note that the three women do not look at the clock and report the timing of the events witnessed by them simply as occurred more or less after 10:30 pm in all three cases, but how much after we do not know if not with a margin of error of at least thirty minutes.
The Supreme Court considers these testimonies as concurrent and does not worry about the timeline, unlike the court of second instance, which wrote “half an hour more or less is not indifferent at all”.
Not satisfied with this, the Supreme Court makes another foray, one might say a quite explicit one, in the realm of fact finding, categorically stating (p. 63) “the harrowing scream surely belonging to poor Meredith”.
In practice the Supreme Court has established in this way the time of the death of Meredith Kercher for the benefit of the judges of the next trial.
In support of this remarkable assertion the Supreme Court Judges cite also the fact that “Amanda herself mentioned the harrowing scream in her memoir“, whose context defined “more dreamlike than real” the judges had spoken about a few pages earlier, and finally the detail that having the thanatological data indicated a range for the time of death from 6:50 pm until 4:50 am on November 2, a time of 11/11:30 pm on November 1, would fall perfectly in between.
It is instead not even considered, not even to refute it, the argument spent by the court of second instance in considering that the victim, when she was attacked, was still dressed in the same manner in which she was seen for the last time by her friend Sophie Purton and that Kercher had said to Purton that she was tired and wanted to go to bed early, making it unlikely that she stayed two hours on the bed, still awake and fully dressed.
Chapter 11 – Procedural rulings ordering new expert review of genetic evidence and denying new review of the new sample trace.
As in a crescendo here we come to one of the most controversial elements of the whole case (and also of the judgment), that is the genetic expertises.
The subject is divided into three chapters, this, the eleventh, deals specifically with the trace on the knife seized at Sollecito’s flat and supposedly the murder weapon, the twelfth chapter deals with genetic investigations in general and with contamination in particular, while the thirteenth chapter deals with fingerprints and other traces, especially those in the small bathroom in use to Knox and Kercher.
The Galati appeal had gone so far as to ask that the Conti-Vecchiotti expertise ordered by the court of second instance be declared illegitimate: on this point, the Supreme Court is very clear and while saying that its necessity was poorly motivated, considers such expertise perfectly legitimate from the point of view of law.
Instead, what the Supreme Court Judges censor in this chapter is the fact that the new track sampled by Vecchiotti on the knife was not tested, according to them this trace is even close to the one attributed “with strong objections” to the victim, while according to the memory of this author the new track “36I” should be located near the handle, while the old, famous, 36B was more near the tip of the blade.
However, aside from these details, it is interesting to analyze the argumentative logic of the Supreme Court on this issue.
The Supreme Court Judges repeat several times that this decision (not to test the new track) was a decision ” made solely by one of the experts, Professor Vecchiotti, without documented prior authorization by the Court […] This choice was, however, subsequently endorsed by the Court” and later in the ruling “In any event, one member of the expert panel could not assume responsibility for the decision to downgrade the mandate received”, it is hence unclear whether Vecchiotti had to ask for a written authorization by the Court to test or if she had anyway to test in any case.
From the further argumentations of the Supreme Court one seems finally to understand that she had to test it anyway and only after that eventually to discuss the reliability of the results.
In the course of this reasoning, the Supreme Court again enters significantly in the realm of factual evidence, going as far as to quote the ten picograms (or even less) that Novelli, consultant of the Prosecutor, deems as being the threshold sensitivity of current instrumentation in the diagnostic field (which the Supreme Court explicitly considers to be completely equivalent to the forensic one) and also the 120 picograms in which, unlike Vecchiotti, Professor Torricelli, consultant of the civil parties, quantified the useful substance on the new trace.
In the middle of this triumph of technical arguments in the context of a judgment of legitimacy, it is also said that the minutes in which Vecchiotti came to the conclusion not to proceed with the test, was “obviously” not signed by the consultants of the Prosecutor General and of the civil parties: a point sharply disputed by Sollecito after the publication of the ruling and of which we may hear talk again in the next trial.
However, there are two points on which we can base a critical assessment.
Firstly, what is an “established modern analysis technique” to which, according to the Supreme Court, the new trace should be submitted?
Are they the technical means mentioned by Novelli with their 8-10 picograms of threshold sensitivity, perhaps routinely used on embryos, but that does not seem to be equally established in the forensic field or perhaps those techniques on which there is a broad consensus in the scientific community more specifically devoted to forensic analysis?
Another judgment of the Court of Cassation, which has been considered important in recent years, the so-called Cozzini ruling (43786/2010), reads in the following way on how to treat opposing scientific theories (and such can also be considered theories about the methods to be applied to the analysis of DNA traces) (p. 35):
“On the other hand, in this as in all other critical cases, there is however a varietyof theories in opposition. The problem is, then, that after assessing the methodological reliabilityand integrity of intentions, one has to finally pull the strings and assess whether there isa theory sufficiently reliable and able to provide concrete, meaningful andreliable information that could sustain the evidential reasoning inherent to thespecific case examined. For short, a theory on which there is a predominant shared consensus.“
Definitely, from the literature presented in the motivation report of second instance the theory not to test if you could not carry out multiple amplifications seemed the one with the greatest consensus among the scientific community.
The First Penal Section of Cassation in the present judgment has instead adopted a logic of the type “first test and then discuss”. Well, we will see its fruits at the Florence trial.
And thinking to the next trial we come to deal with the second element of critical analysis, which is the famous knife as the murder weapon.
Let us start by pointing out that there is a whole chapter in the second instance judgment concerning that knife and treating all the reasons why, regardless of the genetic analysis, this instrument is very unlikely in the role of the weapon that killed Meredith Kercher.
All of these elements (the little or no compatibility with the wounds, the presence of starch, the improbability of the explanation with which the court of first instance justified its presence in Via della Pergola on the night of the murder, etc.) were not disputed by the Prosecutor General of Perugia in his appeal and hence they have not even been addressed by the Supreme Court in this judgment.
It follows then that these arguments will keep their effectiveness in the new trial.
In this sense, this author dares to criticize the fact that the Supreme Court has defined the new trace as an element of evidence “not only significant but decisive.”
Obviously, the Supreme Court was obliged to define such evidence as “decisive” in order to invoke Article 606 section d) Code of Criminal Procedure and justify the appeal of the Prosecutor on this point, however, this author disputes that it can be defined as “decisive” the test on trace 36I when many other elements of evidence to the contrary can make the knife at best an item of contradictory evidence but not a decisive one.
Having said that, and I admit to having committed an act of presumption by putting myself at the same level of the Supreme Court, even if we accept the definition of trace 36I as “decisive”, if it is tested and it comes out that it does not belong to Meredith Kercher, what happens?
Will be there an automatic acquittal because the “decisive” element went to the detriment of the prosecution and for the defense?
It would be too naive to believe in any such automatism, however this point will be discussed again, in a broader context, during the analysis of the final chapter, the fourteenth.
Chapter 12 – Genetic Investigations.
The chapter begins by criticizing the court of second instance of Perugia for having “slavishly accepted the indications of the experts [Conti and Vecchiotti], as to the mere inadequacy of the investigations carried out by the Scientific Police“ and then it says that in the (second instance) ruling the well motivated objections of professors Novelli and Torricelli, consultants of the Attorney General and of the civil parties, were not taken into account.
This first set of objections introduces a question of method that will certainly impact on the new trial, but also well beyond that, resulting possibly in an international debate.
Basically the Supreme Court adheres to the objections of Novelli and Torricelli to the strict adherence to protocols advocated by Conti and Vecchiotti.
The Supreme Court Judges seem to agree with Novelli, who “had agreed that there are protocols and recommendations, but he had [also] added that first of all had to contribute the skill of the operator and his good sense, otherwise all DNA analyses made since 1986 would be put into question” and with Torricelli who “had pointed out as such protocols can be waived, precisely because of the peculiarities of individual cases”.
On this subject, I feel compelled to say a few words, having a university degree in the field of physics that while lost in the mists of time as to details, has left at least some memory about the methods.
Of course physics is not biology, but I am absolutely certain that I never heard in an experimental context that “first of all must contribute the skill of the operator and his good sense”, having always been taught that the validity of a scientific measurement must depend on the methods and the tools used but not from individual qualities of the individual who performs the operation, because it is a fundamental requirement that it be repeatable by anyone with similar instruments and who follows the same protocols.
From the reading of these pages, but in truth from the whole diatribe on genetic investigations in this trial, one gets the feeling that in this field you are facing more an art (where much depends on the ‘”operator”) than an exact science (where the results should be independent of the “operator”), at least for what concerns the determination and attribution of genetic profiles, as it is clear from a reading of the proceedings that much is left to the interpretation of the individual “operator”.
However, if this is the state of affairs in forensic genetics then we cannot but accept it, but it should be quite clear, especially to the judges, professional and popular alike, that, contrary to what is shown in numerous extremely popular television series, there are no machines where you insert the sample and from which it emerges, after rigorous mathematical analysis, the picture of the suspect, but a series of individual interpretations with a wide margin of subjectivity.
This is very important because nowadays juries have an almost absolute faith in the value of the “queen of evidence”, i.e. DNA, imagining confusedly though, most of the time, that the attribution of a genetic profile follows the same steps as the resolution of a mathematical equation, which certainly is not true and this should be clear to the judges.
Perhaps even more important is the issue addressed immediately after by the Supreme Court in this chapter, namely that of contamination, on which we quote extensively the words of the Supreme Court Judges:
“The even more amazing aspect was that of accepting without any critical sense, the argument put forward by the experts on the possible contamination of the exhibits, a thesis completely unlinked to any scientific data that could concretely support it. The unproven hypothesis of contamination has been taken as an axiom, […] where the collected data did not allow to come to such a conclusion. It was excluded even by the experts [who? Conti and Vecchiotti?] that there had been contamination at the laboratory. Professor Novelli said that the source, the vehicle of the contamination had to be proven”.
There is then a long quotation of elements that should demonstrate the absence of contamination in the laboratory, but since the second instance judgment held to a much greater likelihood the contamination during evidence collection (Hellmann p. 89-93), they proceed to deny that one as well.
To begin with, since in the second instance ruling reference was made to the presence of Sollecito’s DNA on a cigarette butt, it is even ridiculed the possibility that such DNA “transmigrated” on Meredith’s bra clasp, without considering that for the second instance judgment that was just an example: ” but Sollecito’s DNA was certainly present in the rest of the house, so that it was found, for example, on a cigarette end; nor can it be excluded that it was on other objects which were not collected “(Hellmann p.93).
Even more incomplete appears then the absence of any reference to the presence of other male profiles on the bra clasp, an element which by the court of second instance was considered one of the key elements to assume contamination.
One could also say that no quantitative test of the possibility of contamination by multiple transfer has ever been carried out by the Scientific Police in the context of this case (and perhaps in no case at all).
But leaving now aside technically sophisticated issues (which by the way compete more to the fact finding judges than to those of legitimacy), we must turn our attention to a series of statements and arguments that will certainly have their consequences, even beyond national borders.
“Nor could it be said, as it was, that during the time between the first and the second inspection, carried out at a distance of more than forty days at the home locus commissi delicti, ‘everybody frolicked around’, since the house was sealed and in that interval no one had the opportunity to access it, as seen from the results of the proceedings.”
Granted that Sollecito, after reading the ruling has publicly stated that the trial data indicate quite the opposite, something that will surely be thoroughly examined in the new trial, what I want to point out here is that the footage shot during the second inspection shows a state of the site totally different from what you see in the movies of the early days.
Movies and photos do not say who and when altered the scene, but that it happened is evident and had in fact been said in the second grade ruling that ” it is certain that between the Scientific Police inspection immediately after the discovery of the murder and the second inspection by the Scientific Police on 18 December, the house on Via Della Pergola was subject to several searches with the aim of finding other elements possibly useful to the investigations, in the course of which the house was turned upside down, as also documented in the photographs shown by the defence of the accused but produced by the police themselves. And these searches were understandably carried out without the precautions which accompanied the Scientific Police investigations, in the belief that by this time the items to be subject to scientific investigations would [already] have been acquired. “(Hellmann p. 90-91)
“the objective data collected weighed in favor of the absence of evidence (already highlighted in the first instance ruling from page 281 onwards, where reference is made to the video recording of the operations of evidence collection, that took place with the precautions of the protocols of the scientific police, accustomed to interventions of this nature) sustaining the hypothesis of contamination”
Of all the things the Supreme Court Judges had to name those videos that in the hearing of 07/25/2011 Professor Conti examined in the courtroom step by step, pointing out the discrepancies with respect to what should have been the procedures to be followed.
Now, while on alleles, stutters and many other issues regarding DNA profiling, the great mass of the public is totally ignorant and cannot help but follow the experts, anyone with eyes cannot miss if you do not use tweezers when you should or if you do not change gloves when they are dirty or if you do not wear appropriate anti-contamination clothing when you should.
It is apparent in the statement quoted above a certain desire of protecting the reputation of the Scientific Police, an aspect also evident in the arguments of the substitute PG Riello at the Supreme Court hearing, however I wonder if they think they are really doing a great favor to these servants of the State by denying that there were errors even when these errors are obvious and visible to everybody without the need for any specialized training.
Since it is well known that such images have already been around the world once and it is certain that they will be around again a second time during the new trial, the question is whether, in this context, particularly abroad, the words “operations of evidence collection, that took place with the precautions of the protocols of the scientific police, accustomed to interventions of this nature” will be interpreted as “this is what they usually do and you have to be satisfied with it”.
“The court of second instance, supported the thesis of a probable contamination put forth by [the Court] experts, based on the ‘anything is possible’, which is not a serious argument […] the vehicle of contamination had to be identified […] it was not enough to assume insufficient professionalism by the operators during evidence collection […] but above all [the second grade ruling] is based on the erroneous belief that the burden of proving the absence of contaminants was on the prosecution, whereas the data […] were based […] on an activity of evidence collection done under the eyes of consultants of the parties who objected nothing. This framework was such as to accredit a correctness of procedure such that inevitably the burden of identifying and demonstrating the contaminant factor fell on those who wanted to sustain such a thesis […] The refutation of the scientific evidence had then, inevitably, to go through the demonstration of specific and concrete fact , accrediting the alleged contamination.”
Now, first of all the argument of contamination is not based on “anything is possible” (a phrase of Professor Conti cited in the Galati appeal and totally taken out of the context where it was rendered), but, as argued by the judgment of second instance, it is based on the literature on the subject and the examination of video evidence.
Secondly, apart from the additional inspections that have been mentioned above, surely the activity of evidence collection carried out since the afternoon of November 2 and up to the morning of November 6 was not carried out under the eyes of the consultants of the parties (here meaning specifically the defenses), for the simple fact that technically there were no suspects and hence neither their consultants.
Finally, for what concerns the claim that the contamination should be proven, that the vehicle should be identified and also the its detailed dynamics, in opposition to the concept of the court of second instance, appreciated on Italian legal reviews and sites during 2012, according to which the non-compliance to protocols that prevent contamination is sufficient as proof of contamination, well this will certainly generate substantial debate, in the media certainly, but also at the legal level.
Such a statement could in fact be the basis for an appeal to the Court of Strasbourg (the ECHR) on the basis of Article 6 § 3 letter b) of the ECHR, which says that “every accused has the right … to have adequate time and the facilities for the preparation of his defense”: indeed, if the accused is required to prove in detail how contamination occurred and at the same time is deprived not of so much as a full control of the crime scene, but even just of video recordings documenting any act of any operator at all times and from multiple angles, not to mention the possibility of carrying out its own sampling and analysis in order to document such transfers of contaminants, then the accused is deprived of “the facilities for the preparation of his defense.”
It is not so much a matter of inversion of the burden of proof, but of denying the means necessary to meet that burden.
This is all the more true when one considers that video footage, irrespective of quantity and quality, is not even a requirement under Italian law and that however evidence collection is done in most cases before anyone is accused and thus before an accused can have a direct or indirect control over the crime scene, even if the law gave him or her such a power.
Chapter 13 – Analysis of the fingerprints and other traces.
This section deals, rather summarily when compared to the more lengthy and thorough discussion in the second grade ruling, with the footprints detected with luminol and considered by the prosecution (and by the judgment of first instance) imprinted with the victim’s blood, as well with the bloody traces found in the small bathroom.
Besides being brief, the analysis of the Supreme Court focuses almost exclusively on two secondary and somewhat peripheral elements in the economy of the quashed judgment.
Having indeed admitted that the assessment of the footprint on the bath mat as not attributable to Sollecito cannot be discussed in this context since it is a matter of evaluation of material evidence, the Supreme Court however censors its attribution to Guede.
While the arguments that the Supreme Court Judges spend in this regard do not lack a certain logic, not necessarily those of the court of second instance are “against all evidence,” as alleged by the Supreme Court, which then, in its reasoning, in addition to assume that apparently the court of second instance has made confusion between Guede’s palmprints and shoeprints, which is not true, again relies heavily on the findings of the judgment concerning Guede, again stating that his footprints indicate a direct exit, without deviations, from the house and once again reiterating that Guede acted “in conspiracy with others, as has been stated in its judgment of conviction.”
But apart from all these details, the attribution of the footprint on the mat to Guede is a pure accessory factor in the context of a trial where the concerned defendant is Sollecito and where what really counts is that the footprint cannot be attributed to him.
But the most doubtful point, not just of this section but possibly of the whole ruling is touched when discussing the footprints detected by luminol: first they neglect to say that only two of them have given a mixed DNA profile Knox-Kercher (indeed, they incorrectly state that it is mixed in all of them and completely neglect the fact that those traces are Low Copy Number DNA, as was pointed out by the court of second instance), but above all they apodictically state that “luminol shows traces of blood and it is not really conceivable that Knox had her feet smeared with the blood of the victim on previous occasions.”
This sentence, apart from the bad taste worth of a morbid quip, certainly unintentional, takes up a similar statement in the Galati appeal, where, however, at least the author had bothered to say that “luminal enhances primarily traces of blood” while in the Supreme Court version every qualification is gone and it seems that luminol reacts exclusively with blood.
This is patently not true.
Nor is it possible not to notice that the Supreme Court, which in this chapter resorts with extensive quotations to the ruling of first instance in order to describe what acts Knox made to leave not only these bloody footprints, but also various other traces of blood in the small bathroom, totally neglects what instead was a fundamental element of the reasons for the second grade acquittal, that is the negativity of the alleged bloody footprints to the test of tetramethylbenzidine (TMB), defined by the court of second instance “very sensitive, so much as to give a positive result even with only five red blood cells present. Dr. Stefanoni herself, moreover, clarified (preliminary hearing of October 4 2008) that, while a positive test result could be deceptive due to reactivity of the chemical [evidenziatore] with other substances, a negative result gives certainty that no blood is present.”
Without going into technical disquisitions on the actual sensitivity of TMB compared to that of luminol, what I want to emphasize here is that such a fundamental aspect (not challenged even in the Galati appeal) is not dealt with at all, not even to refute it, by the Supreme Court, which however writes at the beginning of this chapter of believing founded “the criticisms advanced in terms of manifest illogical reasoning, concerning the criteria of evaluation on genetic subjects”.
Similarly, nothing is said, not even to refute them, of the objections raised by the judgment of second grade to the way in which the so-called mixed traces were sampled in the sink or in the bidet neither anything is said, not even to refute it, about the obvious consideration that the presence of the DNA of Kercher and Knox on bathroom fixture they used together is something quite natural.
The Supreme Court then concludes the chapter with an operation that can only raise strong doubts in this author: it makes an entirely secondary argument in the ruling of second instance a fulcrum of the court’s reasoning and then demolishes it (aka “straw man argument”).
The challenged point is that in the small bathroom no trace of Sollecito was found and the Supreme Court, upholding the first instance judgment, goes on to tear it apart by stating that he may have washed in the shower stall with plenty of water.
But the critical point is that this argument is just little more than an appendix, a small final note in the second instance ruling while in the judgment of the Supreme Court it is presented as the only answer of the court of second instance to the problem of mixed traces found in the bathroom, which certainly it was not, since the answers were others, these ones effectively ignored by the Supreme Court, as mentioned above.
Chapter 14 – Knox’s statements (and conclusions).
The last chapter of the ruling begins by stating that statements (or acts, such as a phone call) by Amanda Knox were not taken into due account and that they could constitute circumstantial evidence against her since indicating a knowledge of details of the murder that she should not have had if innocent.
Specifically, one returns once more on what Amanda Knox would have said at the police station on the afternoon of November 2 to the English friends of the victim and specifically that “she had found the corpse of her friend, which was in front of the wardrobe closet, and was covered by a quilt , with a foot sticking out, that her throat had been cut and that there was blood everywhere, while during her cross-examination on 06/13/2009 she had ruled out having seen anything”.
The first substantial inaccuracy is that Knox in truth said that her friend’s corpse was found in a wardrobe closet (the fact is reported correctly in the Galati appeal), which shows how much this alleged knowledge was indirect and derived from hearsay. The fact of saying “I found her” can be interpreted as an approximation for “I was present at the discovery”, while the throat-cut and blood details were certainly learnt from other people, who saw such details and with whom Knox was left chatting for an hour outside the cottage before going to the police station. Besides that, the transport to the police station was on a car with two other witnesses present at the discovery and with whom further transfer of information occurred.
These are obvious objections that should emerge clearly and easily in the new trial, even though they should have already been abundantly clear by now.
Finally, the Supreme Court takes up again the theme of the phone call made by Knox to her mother at 12:47 Italian time on 2 November, when it was night in Seattle, whose potential value as circumstantial evidence should lay, according to the Supreme Court, both in its time collocation and in Knox having been reticent or confused about it during her cross-examination and finally because it happened before the phone calls to the police.
Again the reasons of the Supreme Court raise deep concern in the author: “the understatement of the circumstance is not a matter of pure evaluation, if only it is considered that once more the data has not been correctly transposed from information flows, having the court of second instance considered that it had been a phone call simultaneous with the one Sollecito made first to 112 and then to his sister [actually it was the opposite]. Indeed from the documents it appears that the first one to manifest anxiety on the morning of 2/11/2007 was definitely Knox, who called her mother, catching her in the middle of the night, [and] that Sollecito called his sister three minutes later”.
So to the Supreme Court a three minutes difference makes those telephone calls not simultaneous: while it is true in a literal sense, it was evident that the ruling of second grade spoke of a growing concern in the context of which these phone call were made at short distance from each other and one cannot believe that the Supreme Court Judges of Italy are not able to understand it.
Finally, once completed its examination of the shortcomings of the quashed judgment, the Supreme Court provides what might be called “directives” for the next court:
“The Court of Review [the Florence Court] will therefore have to remedy, in its broadest powers of discretion, the aspects of argumentational criticity, operating a global and unitary examination of evidence [indizi], through which examination is to be ascertained if the relative ambiguity of each piece of evidence can be resolved, since in the overall assessment each clue is added to and integrated with others. The outcome of this osmotic assessment will be crucial not only to demonstrate the presence of the two defendants in the locus commissi delicti, but to possibly outline the subjective position of the co-conspirators [literally “of those acting together with him”] of Guede, in the face of the range of situations that can be hypothesized, which go from the genetic agreement on the option of death, to the modification of a program initially contemplating only the involvement of the young Englishwoman in an unwanted [by her] sex game, to just forcing [her] into a racy group erotic game, which [progressively] exploded, going out of control.”
Apart from the “osmotic” aspects, which we happily leave to chemistry, these “directives” maintain at least a semblance of impartiality: in fact they do not take for granted the presence of the two defendants at the crime scene, although this can be understood almost exclusively from that “eventually” put before the list of possible “subjective conditions”, i.e. more or less the possible levels of responsibility of the accused if their presence at the crime scene will be found proven by the new judges.
But we must say that the tone of the whole of the ruling, with its almost total criticism of the second instance ruling, its almost complete acceptance of the appeal of the Prosecutor, whose arguments are often re-proposed in an almost literal way and its repeatedly expressed appreciations of the first instance judgment, does not leave much space for a positive interpretation from a pro innocence point of view.
So if one wants to use this ruling as a key to the possible outcomes of the next trial, the most immediate way to do that is to examine the three possible scenarios of conviction that it outlines.
The first one, the “genetic” agreement on the option of death, uses a somewhat enigmatic expression to define what could be a scenario with premeditation, a thesis already abandoned during the second trial, if not already during the first and therefore it will be difficult to resurrect it in the new appeal trial.
The second, the modification of a program which initially foresaw only a sexual game not shared by the young Englishwoman, could be a new edition, revised and corrected, of the scenario presented by the ruling of first instance, maybe even lighter for what concerns responsibility, since the Supreme Court Judges, who are supposed to know well the value of words in a penal context, do not use the terms “rape” or “sexual assault”, but just “sex game”.
Finally, the third, the exclusive forcing of an erotic game, could envisage a simply passive participation of the two defendants to the homicidal act, in other words they were present but did not physically take part, while they put later in place sidetracking activities because they were afraid of being they too considered guilty of murder.
It is a bit surprising that in two out of three cases we have a resurrection of the “erotic game”, which, although considered an almost certain element in the initial stages of the case, over the years, and the trials, had appeared increasingly unlikely.
Having reached the end of this long analysis, we should reiterate what was said about the fact that the Supreme Court has openly described Guede as the main protagonist and the notes made on the knife in the comments to chapter eleven.
The trace 36I on the knife is likely to be tested and if it will fail to give the profile of Meredith Kercher, or even will just give an inconclusive result (there is an indication in the Conti-Vecchiotti report that it is a mixture of male and female DNA), the probable effect will be to exclude the famous knife as the murder weapon: this, coupled with the main role assigned by the Supreme Court to Guede, could relegate Knox and Sollecito to secondary offenders even if convicted.
I would like to thank Clive Wismayer and Rose Montague for their proofreading of the English version of this article and for their precious suggestions.