Headsup: The first 8 episodes of the RAI/HBO production "My Brilliant Friend" about a supreme alpha-girl and her "moon" of a best friend airing in 60-plus countries are proving amazingly endearing. So many colorful elements of evolving post WWII Italy on display. Yes, some violence too, but peanuts compared to say New York in that era. A real must-see.

Series Italian system

Wednesday, March 30, 2011

Post-Trauma Example Of Italy As One Of The Fastest-Learning And Adjusting Societies

Posted by Peter Quennell


Here is an image of Elisa Benedetti whose sad death after crashing and then disabling her car in deep mud our poster Catnip profiled back here.

Two other post-accidents traumas have been much in the news in Italy as Il Giornale today describes.

Two drivers were in traffic accidents in which they feared they had caused the death of others, and both are now dead.

One after dying of cold in the woods after wandering aimlessly for days, and the other after jumping off a bridge. In the case of the first, nobody was even hurt, and in the case of the second, the child who was slightly knocked by the car was released from hospital the same day.

As one would expect in Italy, these incidents have been the subject of much public discussion and several TV chat shows, similar to those for missing people that we learned about in the case of the missing or murdered Sonia Marra.

Now hospital emergency rooms and police forces are moving to beef up their capacity to provide psychological support to those similarly traumatized.

In the case of Elisa Benedetti, the cops tried really hard to help her in the times when she called them for help on her cellphone. Next time they might have psychological knowhow on their side.

Few other countries in the world come close to Italy for a caring population driving constructive effects like these.

Posted on 03/30/11 at 12:31 PM by Peter QuennellClick here & then top left for all my posts;
Right-column links: Trials 2008 & 2009Other legal processesItalian relatedThe wider contextsPerugia contextItalian system
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Monday, January 17, 2011

Harvard Political Review Writer Alex Koenig Reproaches The Sliming of Italy’s Justice System

Posted by Peter Quennell


With the Pepperdine University and Washington University student newspapers consistently mis-reporting Meredith’s case, it is nice to see a Harvard publication getting it seriously right.

Alex Koenig writes a column for the Harvard Political Review. He is not commenting on the evidence of Meredith’s case as reflected for example on TJMK and in Massei. But he takes several deadly cracks at the arguments of the conspiracy theorists, which he doesn’t see reflecting the real world.

In 2008, 16,277 people were murdered in the United States. 1,176 of these murders were committed by women, of which about a third were confirmed to be white.

That means that in one year there were around 400 white female murderers on US soil— the majority of whom were convicted to no public outcry. What America needs to ask itself is: does the fact that Amanda Knox is a white sorority sister exonerate her from the murder she is alleged to have committed on foreign soil?

Knox is currently serving a 26-year sentence in Italian prison, in Perugia, for the murder of her then-roommate Meredith Kercher. Seemingly lost among the outrage towards the Italian justice system, the demands of US government intervention in her defense, and the constant assertions of Knox’s innocence is the possibility that, maybe this once, the trained professionals who investigated, tried, and convicted the 23 year old Knox got it right.

Without getting into the facts of the case, and conceding that people are wrongly convicted on a regular basis both in the United States and abroad, we must consider just how America’s treatment of this case reflects upon our society.

The fact of the matter is, those that immediately claim that Knox was wrongly accused and jailed by a corrupt justice system make two extremely arrogant assumptions that reveal perverse American exceptionalism. 

1) It is assumed that, as an American – an American woman no less – Knox is incapable of murder. This case differs, of course, from the 1,176 domestic murders committed by women because, well, who knows?

2) It is assumed that not only is the Italian justice system incapable of fulfilling its legal duties, but that the intentions of the court were swayed by anti-Americanism.

This is not merely an abstract sentiment, but was actually articulated by Senator Maria Cantwell (D) of my home state of Washington. Cantwell, whom I generally agree with ideologically, released a statement saying that she “had serious questions about the Italian justice system and whether anti-Americanism tainted the trial.” She went on to say that she would seek assistance from Secretary of State Hillary Clinton.

Regarding the first problem, I take Knox’s assumed innocence in the public eye to be a representation of national pride. I am as proud to be American as the next guy; I understand all the benefits being American has afforded me and appreciate the sacrifices men and women make each day to ensure that these benefits remain for me and my countrymen.

But assume the superiority of the same countrymen when compared to other citizens of the world I do not. It is as if Knox’s co-citizenship has absolved all her sins in the American court of public opinion. This, by itself, is difficult to grasp but can be forgiven.

What’s harder to forgive is the assumption that Knox has been wronged by a corrupt system because she is American.

Having lived in Italy for a year, I would never accuse the Italian justice system of being exceedingly efficient or flawless. However, I wouldn’t accuse the US justice system of this either.

Anti-Americanism does exist in parts of the world, but the chances of it being present in this trial are low. Are the judges supposed to see the conviction of an innocent American college student as a way to deter American tourists from coming to Italy?

“Putting this girl away for 26 years seems to be an easy way to get rid of those annoying tourists with their stupid hotel rooms, airplane tickets and restaurant bills. Good riddance!”

It’s not as if Knox is accused of murdering an Italian either. Kercher was a Brit. Raffaele Sollecito and Rudy Guede, Knox’s alleged accomplices who are both serving similar sentences for the same charges, are both Italian, although Guede emigrated from the Ivory Coast when he was five.

No, I doubt that anti-Americanism was involved in this conviction. It seems, instead, to be nationalism on the side of Knox’s supporters. Amanda couldn’t have possibly been the one at fault, she’s one of us.

And maybe they’re right. I really don’t know. What I do know is that the anger and offense that the American public has taken in response to this trial obscures the real tragedy at hand, the violent death of a young woman.

It’s possible that Knox has wrongly had her future taken from her. It’s a fact that Kercher has. As the appeal process continues and the story gradually slips out of the consciousness of the average American, with the protest left to the truly passionate among us,

I want to remind us all of one thing: Italy’s murder rate is 1/3 that of America. Perhaps, without the actions of one American there’d be one less death in Italy’s tally. I’ll leave that judgment up to the only court that really matters in such a case, the court of law.

One small correction to what Alex Koenig wrote. Italy’s murder rate is actually 1/6th that of the United States. It is a very law-abiding country with a very low crime rate and a very small prison population - less than 1/20th that of the United States.

But Alex is certainly right in his conclusions.Neither the Micheli not Massei Sentencing Reports show ANY sign of extreme nationalism. 

Posted on 01/17/11 at 10:50 PM by Peter QuennellClick here & then top left for all my posts;
Right-column links: Trials 2008 & 2009News media & moviesGreat reportingThe wider contextsN America contextKnox-Mellas teamMore hoaxersItalian system
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Saturday, August 28, 2010

From Shortly Before Last December’s Verdict: Our Poster Hopeful’s Moving Tribute To Italian Justice

Posted by The TJMK Main Posters




We have dozens of posts on TJMk illustrating how the Italian justice system is among the best in the world. Careful, humane, and in fact hardly ever wrong.

In part because police and prosecutors are very painstaking - read here of all the hurdles they have to get through.

In part because judges have to put their careers on the line with each judgment, as with Judge Massei now, and not simply hide behind an unexplained jury decision from 12 amateurs of random education levels.

Six weeks before the December 2009 verdict, Hopeful paid them this kind tribute.

Moved By Italian Justice: Doing The Very Best It Can For Meredith And Her Poor Family

Crestfallen and broken, Amanda and Raffaele react in visible distress in the latest courtroom photos.

Amanda looks sad, smitten, perplexed, astounded, with anger not far under the veneer, yet overall truly sorrowful for the first time in 2 years. Raffaele is weeping as the court denies more evidence do-overs. He feels the weight of this blow.

These two are probably guilty, but it still makes me sad to see what prison can do to human beings. Why, oh why, couldn’t they have let Meredith live and simply enjoy her sweet life? Mercy to her would have been multiplied back to them so very many times over.

I believe Prosecutor Mignini and his assistant, Mrs. Comodi, and all the Perugia homicide cops want to see JUSTICE done above all.

Surely they take no pleasure in the misery that native-son Sollecito is undergoing. They had to arrest him to redress a huge evil. I’m sure they regret the repercussions this has meant to his father, a fine medical doctor, an upstanding citizen of Italy. Despite this, and America’s loud outcries, they have proceeded.

I think the Italian police and prosecutors have acted with more intense caution and discretion in handling the evidence against Amanda because of her U.S. citizenship. I don’t think this is a case of two innocents being railroaded.

If the Italian police had wanted to score points politically, they could have closed the case after the arrest and conviction of Rudy Guede. The police saw undeniable proof to their practiced eyes that Amanda and Raffaele were very guilty.

And I don’t think forensic scientist Patrizia Stefanoni of the Polizia Scientifica in Rome is in the prosecution’s back pocket. I believe she acted in good faith. Patient and careful analysis of forensic lab samples requires real intelligence and excludes quick passion.

“To be or not to be??”. From Shakespeare’s play Hamlet. Methinks Amanda does look a little Danish.

It wasn’t fish blood or cat’s blood or pierced ear blood on their hands, it was the blood of honor. Meredith was defenseless in a foreign land. She was a great asset to her own family, to the Erasmus program, to Italy, and eventually to the world. She deserves the best efforts of her host country, and she’s receiving them here.

It now feels like justice is not only happening here - it’s convincingly SEEN to be happening. We all owed you this one, sweet Meredith. May you forever rest in peace.

Posted on 08/28/10 at 11:43 AM by The TJMK Main PostersClick here & then top left for all my posts;
Right-column links: Justice systemsItalian system
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Tuesday, December 08, 2009

Explaining How The Italian Appeals Process Works And Why It Consumes So Much Time

Posted by Commissario Montalbano


Above is Vincenzo Carbone, Prime President of the Italian Supreme Court of Cassation, addressing the Italian Supreme Court.

The appeal process in the Italian judicial system is disciplined by art. 593 et seq. of the Italian Code of Penal Procedure (CPP).

Both the defendant and the prosecution have the right to appeal a sentence, according to the principle of parity of the two parties in a judicial process. In 2006 a law passed by the Berlusconi government (known as “Pecorella Law”, from the name of his sponsor), intended to prohibit the right of appeal of the prosecutor, similarly to what happens in the US, however the Italian Constitutional Court struck down that law as unconstitutional since it is in violation of the parity of the two parties in the process, as explained above. As a result the CPP has been modified to reflect its original version.

It is to be noted however, that if only the defendant requests an appeal (and not the prosecution), then the appeal court can only confirm or decrease the sentence of the first trial, but not increase it.

Since Mignini has already said that they won’t appeal the case, Amanda and Raffaele are likely to see their jail sentence decreased by a few years, or at most confirmed, but not increased. Art. 575 of the Italian Penal Code however prescribes a minimum of 21 years for voluntary homicide.

The principle of “double jeopardy”, which is also guaranteed by Italian law and by the law of all members of the European Union as condition of membership, does not apply to the appeal trial, as such trial is interpreted as being a mere continuation of the same first trial. The double jeopardy principle will therefore apply only after the sentence is definitive, i.e. after the Supreme Court of Cassation decision. In other words if Amanda and Raffaele are found not guilty after all the appeals are exhausted, the Italian state will not be able to try them again in the future.

This characteristic is not unique to Italy, most European countries, in fact, apply the double jeopardy only after all appeals have exhausted, among these Germany and France, which also permit the appeal by the prosecution.

The competence of the appeal process is disciplined by art 594 of the CPP. Such article establishes that the Appeal Court of Assizes has jurisdiction over the sentences rendered by the Court of Assizes. The Court of Assizes is the court in Italy which tries serious crimes, that is those crimes for which the penal code provides a maximum punishment of at least 24 years.

In this case the Corte d’Assise d’Appello of Perugia will have jurisdiction over the case. However the defense may request a change of venue, if they can demonstrate just cause.

The terms of the request for appeal are disciplined by art. 595 of the CPP. Such article specifies, among other things, that the party requesting the appeal can do so within 15 days from the day the Sentence is communicated. If such sentence is particularly complex (as this case is) the judge can request that the “Motivazione della Sentenza”, often referred to in TJMK as the Judge’s Report, or be filed with the court within 90 days from the end of the trial. In this circumstance the terms to file an appeal is 45 days, instead of 15.

The Italian constitution requires that all sentences be accompanied by this Report, including appeal sentences. As we’ve seen with Judge Micheli’s Report on Rudy Guede’s trial, the Sentence Motivation Report must explain the entire rationale that the judges utilized to reach the decision. The lack of such report would invalidate the sentence.

Once one or more parties to the trial requests an appeal, within 15 days from the day such Motivation report is communicated, the competent court will then acquire all the documentation regarding the case. The court will then notifies all parties of the beginning of the hearing at least 20 days before the commencement day.

As mentioned above, the appeal process in Italy is a brand new trial where all evidence and testimony is analyzed in the same terms as the first trial. The standards are however higher. The president of the Appeal Court of Assizes is in fact a judge from the Supreme Court of Cassation (the members of the Supreme Court are actually called “Consiglieri”). The requisites for being one of the 6 jurors are also higher. They must be all holding a high school degree (in the first trial the minimum required is only a middle school education).



[Image Above: The Seat of the Italian Supreme Court of Cassation, in the Hall of Justice in Rome, also known as “Il Palazzaccio” or the Ugly Palace].

The extraordinary broad appeal rights awarded by the Italian system are all part of the 1989 reform, which intended to add even more guarantees to the right of the accused. This has resulted in an incredible increase in pending cases in the overburdened Italian justice system. According to the latest report to Parliament by Justice Minister Angelo Alfano the pending cases in the Italian justice system at the end of 2006 amounted to nearly 9 million cases.

Over 5.4 million were civil cases, and over 3.3million criminal cases. Of these 3.3 million penal cases, over 1/3 were first trials, the rest were appeals. Compared to the rest of Europe Italy’s pending workload amounted to 3 times the one from France, over 6 times the one of Germany, and 5 times the one from Spain. The criminal cases pending in the first trial alone are 1.2 million, a figure twice as large as the one of Germany, Spain and England combined!

This situation, coupled with the fact that the number of Italian magistrates is about the same as other similar European countries, has resulted in an incredibly slow process. On average a criminal trial lasts 426 days in the first trial, and 730 days at the appeal trial, a duration much longer than any other EU country. The Perugia case was therefore faster than average, having lasted less than a year.

This situation is exacerbated by the broad appeal rights guaranteed also on the 2nd level of appeal, at the Supreme Court of Cassation. Like other supreme courts around the world, such court does not re-examine the entire body of evidence, but only ‘errores in iudicando’ and ‘errores in procedendo’ (errors in procedure or application of the law).

However, unlike its American or English counterparts, the Italian Supreme Court cannot refuse to review a case, and defendants have unlimited appeal rights to the Supreme Court of Cassation. They don’t even have to wait for the Appeal Court. You can in fact appeal to the Supreme Court directly after the first trial.

To give an idea of what this creates I’ll cite some figures. The US Supreme Court renders annually about 120 decisions. The Supreme Court in England about 75. The Italian Supreme Court of Cassation issues over 30,000 sentences every year!! No surprise then about the huge backlog, in spite of the fact that the Italian Supreme court consists of over 400 judges (called Consiglieri), divided into various sections (each of 5 consiglieri), all nominated by the Consiglio Superiore della Magistratura (CSM), the Italian Magistrates’ self governing body explained in a previous post.

Besides the broad appeal rights granted by the Italian law, an ulterior incentive to appeal is given by the fact that Italy has a very high amendment rate during the appeal process. Approximately half of all sentences rendered in the first trial are amended during the appeal process, a percentage which is 3 times higher than France for example. The ones that are not amended often see a decrease in punishment.

No surprise therefore that Italians always appeal their sentences. And some analysts have even ventured to say that Italian appeal courts like to modify the sentences of the first trial just for the purpose of justifying their own existence.

Given these facts, coupled with the chronic lack of prison space, it shouldn’t be a surprise that in spite of the Cosa Nostra, the Camorra and N’drangheta (as the mafia is called in the various regions), Italy has maybe the absolute lowest prison population in the world in relationship to the total population.

Italy in fact has 66 inmates for every 1 million population, a figure matched only by Denmark, a country certainly not famous for their organized crime. By comparison, the US boasts a prison population of more than 750 inmates over 1 million inhabitants, a figure 12 times the one in Italy.

If Amanda and Raffaele really wanted to experience the thrill of committing a murder, Italy is definitely the place to do it, and get away with it!
 


[Image Above: Italian “Guardasigilli” (Justice Minister) Angelo Alfano]

Posted on 12/08/09 at 11:27 PM by Commissario MontalbanoClick here & then top left for all my posts;
Right-column links: The officially involvedThe judiciaryTrials 2008 & 2009Appeals 2009-2015Guede appealsHellmann 2011+Italian system
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Monday, November 30, 2009

Andrea Vogt Asks Some Useful Questions Concerning The Legal Process

Posted by Peter Quennell


Click here to read all of this well-researched report on the Seattle P-I website.

After presenting an overview of the system similar to those posted here by Nicki and Commisario Montalbano Andrea Vogt asks two experts on the system these questions.

Do jurors have to find Knox guilty beyond a reasonable doubt?

Yes. The concept of proof beyond a reasonable doubt has long been a part of Italy’s justice system. It was formalized and passed into law in 2006.

Knox’s defense lawyer Luciano Ghirga said his team will remind jurors that, even after more than 40 hearings, everything is still in doubt.

The court’s ruling (which is not called a verdict in Italy) is made by an eight-member jury: six laymen and two professional judges. They will vote, and the majority rules. In the case of a 4-4 tie, acquittal overrules.

Could Amanda Knox have plea bargained?

Knox maintains her innocence.

However, while not completely analogous to plea bargaining, Italy does have a similar alternative to trial, also a part of the 1988 reforms. The alternative is not applicable for serious crimes, such as murder, punishable by more than five years in prison.

Suspects who cooperate fully with the police, however, may become eligible for a bundle of mitigating circumstances that would lower prison sentences. A judge may also choose to apply aggravating circumstances to increase a sentence.

Negotiation on the evidence—in which both sides agree what can be admitted—is also available when defendants choose a fast-track trial, as did Rudy Guede, sentenced to 30 years last year for his role in the case for which Knox is on trial. Guede is appealing his conviction.

Why does the figure of prosecutor seem so powerful in Italy?

The prosecutor is a powerful figure in Italy connected to the judiciary, not elected or appointed. While there is a career separation between judges and prosecutors, the qualifying examination and training are common, That has made judges and prosecutors close both culturally and professionally.

In the U.S., prosecutors are appointed in federal system and typically elected in the state system, hence it is common to hear cases referred to as The State vs. X.

In Italy, protections were put in place precisely to prevent the state from pursuing or persecuting, hence the independence of prosecutors.

As a result, prosecutors haven’t shied away from taking on politicians. Italian Premier Silvio Berlusconi, for example, faces a series of criminal procedures in the courts.

That independence , some argue, is precisely the protection needed as a check against government power, and without it, corruption could not be exposed, said Maffei. But others argue that prosecutors wage their own political battles. using their independence to attack political opponents.

Another major difference: the prosecutor supervises the investigation rather than letting police handle it.

Further, he or she also has no discretion over the decision to seek charges. There is a constitutional principle of mandatory prosecution. If there is sufficient evidence to build a case against a defendant, a prosecutor must seek an indictment.

In the U.S. prosecutors can and do drop cases for such reasons as workload or because the defendant has agreed to help with a criminal investigation.

Was it legal for Knox not to have an attorney present when police questioned her?

Yes and No.

Amanda Knox’s interrogation falls into a gray area of the law because she came voluntarily to the police station and was being interviewed in the beginning as someone who could become be a witness, not a suspect.

Then, in the course of questioning by police in November 2007, she blamed Patrick Lumumba for the slaying, and said she was present at the scene of the crime. Lumumba was innocent. Knox has since denied she knows anything about the slaying and says she wasn’t in the flat the night Kercher was killed. Limumba is suing Knox for slander.

The law is very clear: A suspect must not be interrogated without a lawyer.

Once a suspect, an interrogation must be interrupted, the suspect read his or her rights to remain silent and be provided a lawyer. Italian law does not allow waiver of one’s right to counsel. Even if a suspect doesn’t want a lawyer, the authorities are required to appoint one.

If a suspect’s freedom of movement is hindered, the interrogation must be videotaped.

In Knox’s case, a video or audio recording of the entire police interrogation (authorities have denied that any such recordings exist) could identify when police began treating Knox as a suspect and what procedures were followed.

In fact, Italy’s Supreme Court has already said that some of her early statements may not be used against her because they were made without an attorney present.

 

Posted on 11/30/09 at 08:38 PM by Peter QuennellClick here & then top left for all my posts;
Right-column links: Appeals 2009-2015Hellmann 2011+Cassation 2013Florence 2014+News media & moviesGreat reportingItalian system
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Friday, November 13, 2009

Why The Italian Judiciary’s Probably Less Prone to Pressure Than Any Other In The World

Posted by Commissario Montalbano



Image above: The Consiglio Superiore della Magistratura in session

Some of the very best lawyers in the UK and USA and around the world are learning a lot about the Italian system by way of the Perugia trial - and are in many, many ways impressed.

Italian magistrates enjoy an extraordinary level of autonomy from the other powers of government (executive and legislative) and the point of this post is to explain why. This autonomy is above all due to the Italian constitutional framework.

That framework is intended to guarantee such an exceptional level of independence so as to avoid the abuses that occurred during Mussolini’s fascist regime, when Italian magistrates were forced by the executive to prosecute (and persecute) political opponents to the fascist dictator.

The source of such independence is set forth in Title IV of the Italian Constitution which in particular provides for an independent body [image at top here] which is called the “Consiglio Superiore della Magistratura” or C.S.M. (Superior Council of Magistrates). This is the self-governing body for Italy’s judiciary, and it comprises ordinary (civil and criminal) judges and prosecutors.

Its competence is based upon Articles 104 and 105 of the Italian Constitution, as well as several ordinary laws. Article 105 says that the C.S.M. is responsible for the hiring, training, assignments, transfers, promotions, appointments to the Supreme Court of Cassation, disciplinary actions and terminations of all Italian judges and prosecutors.

Article 104 opens with the statement: “Magistrates constitute an order autonomous and independent from any other power”. The article then proceeds to provide norms relating to the composition of such a self-governing body.

In order to guarantee the independence of magistrates and in accordance with the general principle of the balance of powers, the constitution establishes a mixed composition of the members of the CSM.

According to the constitution, two thirds of its components are in fact judges elected by all magistrates (judges and prosecutors) in special nationwide elections of the CSM (these are called “membri togati”, i.e. judicial members).

And one third is chosen by Parliament among law professors and attorneys with at least 15 years of experience (these are called “membri laici”, i.e. lay members). And in addition, there are three so called ‘De Jure’ members:

  • the President of the Republic, who is the President of the CSM
  • the President of the Supreme Court of Cassation
  • the General Prosecutor before the Supreme Court of Cassation

The CSM then elects the Vice President of the Council choosing among its lay members appointed by Parliament. The Vice President is the real acting President of the CSM, since the role of the President of the Republic is primarily symbolic. The current Vice President of the CSM is Nicola Mancino [image below} who is a former Speaker of the Italian Senate.



Image above: Nicola Mancino, Vice President of the C.S.M., addressing the Council

The constitution establishes the above mentioned proportions, but not the number of members. However a law passed in 2002 sets the number of elected members at 24. Therefore at present there are 16 members (all judges) elected by magistrates and 8 members appointed by Parliament. With the three “De Jure” members the total is therefore 27 members.

The position of member of the CSM is incompatible with that of legislators, therefore CSM members cannot be members of Parliament or members of the Regional Assemblies.

Art. 107 reiterates the extraordinary independence of magistrates (judges and prosecutors) by stating: “Magistrates are not removable. They may not be dismissed or suspended or transferred to other locations or functions if not after a decision of the CSM, adopted either for reasons and with the guarantees established by law or with the magistrate’s consent.”

Ordinary laws also confer other powers to the C.S.M. including the power of giving opinions to the Government and to Parliament on proposed laws affecting the order of magistrates and the judiciary in general.



Image above: Palazzo dei Marescialli in Rome. The Seat of the C.S.M.

The extraordinary independence of Italian magistrates, especially considering that Italy is probably the only country in the world where not even State prosecutors report to the executive power, has created a lot of tensions between magistrates and politicians.

The Italian Prime Minister, Mr Silvio Berlusconi, who is indicted and undergoing prosecution in over twenty separate cases, some of which already concluded (for bribing of judges, illegal campaign financing, tax evasion, fraudulent accounting) dating back to the time before he entered politics in 1994, has often accused magistrates of having proceeded against him for politically motivated reasons.

His pressures on the CSM to discipline those magistrates whom he alleges are politically motivated in their prosecutions against him, have not succeeded, and the CSM has always defended the actions of magistrates against the frequent attacks from the executive power and from the many politicians who are under investigation for corruption and other crimes.

Recently Mr Berlusconi’s coalition passed a law to guarantee immunity from prosecution to the four highest offices of the Republic, including that of the Prime Minister, but the Supreme Constitutional Court struck it down as unconstitutional.

Currently out of 945 Members of Parliament in the two houses, there are about two dozen convicted felons and over 70 more under investigation by Italian magistrates. They’re all holding to their seats very tightly, since all members of the Italian parliament are immune from arrest, if not from prosecution.

Pressure on this extremely powerful and immune judiciary has not worked where real heavy-handed political and media persuasion was attempted. Be assured, the judiciary in Perugia will take no notice of it at all.

Posted on 11/13/09 at 10:06 AM by Commissario MontalbanoClick here & then top left for all my posts;
Right-column links: The officially involvedThe judiciaryTrials 2008 & 2009Italian system
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Thursday, October 01, 2009

Why The Prosecutors In Italy Are Relatively Popular

Posted by Peter Quennell


Italy’s a tough country with, albeit dwindling now, a legacy of violent crime, and many brave prosecutors over the years have been assassinated.

And the Italian legal system is not particularly weighted in their direction, with a large number of hurdles they have to climb over before a case ever gets to trial.

And the Italian prison system is relatively lenient, heavily pro-prisoner-remediation and early release, and proportionally only 1/10 the size of the US’s.

So the endemic attempts to undermine Prosecutor Mignini have invariably won only MORE popular support for him and his case in Perugia and Italy in general.

And the only “criminal charge” against him (it isn’t) seems to flow from his guessing right in the Monster of Florence case - and apparently no charge of this kind has ever won a “conviction”.

Above is Milan Prosecutor Armando Spataro.

He is in the news now because he has demanded prison sentences for TWENTY-SIX Americans.

Between them they seem to have colluded in grabbing Osama Moustafa Hassan Nasr, an Egyptian in Italy, back in President Bush’s day, and taking him off to be tortured.

Not to the United States where torture is not legal, but to Egypt where it more-or-less is.

Human rights advocates charge that renditions were the CIA’s way to outsource the torture of prisoners to countries where it was practiced.

The CIA has declined to comment on the Italian case, and all the Americans are being tried in absentia and are considered fugitives.

As we remarked in this post it is pretty hard for a foreign government and especially now the American government to throw sand in the Italian wheels of justice. 

The American government is really just sitting this one out. And it may be covertly delighted when Amanda Knox and her clan fade to silence.

Posted on 10/01/09 at 12:36 AM by Peter QuennellClick here & then top left for all my posts;
Right-column links: Crime hypothesesThe officially involvedThe prosecutorsTrials 2008 & 2009The wider contextsItalian system
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Thursday, September 24, 2009

How This Cable Car In The Dolomites Hangs Over The Trial In Perugia

Posted by Peter Quennell


The Dolomites (image below) are a spectacular range of mountains east of the Alps in north-east Italy.

In 1998 a squadron of American Prowlers (image at bottom) based in Italy as part of the US NATO presence was roaring up and down those valleys, when one cut the cable of the cable car shown above. Twenty people in a gondola died when it crashed to the ground 350 feet below.

The US military has a huge presence in Italy (scroll down to “Conditions in Italy”) and good US-Italian relations are extremely important as a result. But in this case, the airmen were yanked back to the US, under NATO rules, tried by other military officers - and found not guilty of anything except destroying a videotape.

Outrage in Italy and across Europe and even in the US was intense. There have since been very, very few US interventions in any judicial process in Italy.

Now suddenly there is a new US intervention and Italian emotions are getting stoked.

If the FOA campaign ever thought the US government would spring Amanda using political pressure, they could not have picked a worse country in Europe to ridicule and try to strong-arm.




Tuesday, September 22, 2009

A Well-Informed New Voice On The Relevant Italian Law

Posted by Peter Quennell


[click for larger images]

Above: the street up from the station - probably the first road in Perugia Meredith ever traveled, just a few short weeks before her death.

Informed foreign commentary on the Italian legal system has been very thin on the ground in this case and we have posted what still remains one of the best.

Now in the the Comments section of a post on The Daily Beast that in passing compares the Italian system negatively with the American system, a new commenter, MacK MacK (not registered on TJMK in that name) has posted a number of informed comments worth reading before they scroll away.

Here is the first of MacK MacK’s comments - right under another which reads “I really do hate this perception that America has the highest legal system in the world” - and several of the responses, including his or her own.

MacK-MacK

This is not a very well though out article, poorly written by an author who assumes that a civil law system (i.e., Italy) should be like a common system, i.e., the US.

First, the presumption of innocence does apply since Article 6 of the European Convention of Human Rights, to which Italy is a signatory, and which is enforced by the European Court in Strasbourg provides detailed rights (1) to a fair trial, including the right to a public hearing before an independent and impartial tribunal within reasonable time, (2) the presumption of innocence, and (3) other minimum rights for those charged with a criminal offence (adequate time and facilities to prepare their defence, (4) access to legal representation, (5) right to examine witnesses against them or have them examined, and (6) right to the free assistance of an interpreter) - which makes Italy better than say Texas with appeal to the US Supreme Court.

Second, in a civil law country trial is a two step process. There is a preliminary proceeding conducted by an investigating magistrate (in some civil law countries called a juge d’instruction) who is like a grand-jury in the US system, but with added powers, since he/she can cross examine the police and prosecutor and will only allow a case to go to trial if there is prima facie evidence that the defendant has a case to answer - and which point the defendant gets a trial with the presumption of innocence.

The confusion among bad reporters that leads to the idea that when on trial one is “guilty until proven innocent” is because the investigating magistrate only lets a case go to trial if he/she thinks the defendant is guilty, but the trial is a fresh one - that is what is going on now.

The Knox family, who are fairly well off in fact, are being badly advised by Washington based criminal lawyers to use publicity in her case, and the publicists they have hired have decided to put the Italian justice system on trial. They have spread potentially libelous stories about the prosecutor and tried to muddy the waters in public. The problem for Knox is that this may well antagonize the court - it is a stupid tactic, being used by people who are trying Seattle court tactics in Italy.

The civil trial system is heavily run by the judges, who have to make the decisions. What this means in practice is that they ask a lot of the questions and will when there are problems with evidence keep recalling people to get to the bottom of the issue. This is in contrast to the US system where a witness is heard, examined and cross-examined, and the defense and prosecution tries to score some points during that testimony. In the Italian system, if a question mark is raised, the judges will often call a few witnesses back to ask for explanations.

Knox and Sollecito to me, and I have read most of what has come out in this case, have very serious problems. The trouble Knox has is that ab initio she told the police a pack of lies, implicating an innocent black man (and demonstrably so) as the killer (by the way her choice of Mr. Lumumba is particularly telling since in a country with a smallish black population she chose someone of the same race as Guede - why?) Her alibi is to put it mildly piss-poor and in both her and Sollecito’s case they don’t match facts that can be established (e.g., cell phone records, computer use.) Sollecito has avoided supporting her alibi in court.

The only reasonable conclusion that can be reached is that she and Sollecito were in some way present or involved in at least part of the events on the fatal night - the nature of that involvement is not clear, but the confessions seem to be a starting point for working out what it might be.

It is this inescapable involvement that presents the huge problem - Knox is not telling the truth and Sollecito has stopped really talking at all - however, what Knox now says and Sollecito’s lawyers argue are inconsistent with some known facts—why? What you see the court heading towards is that Knox is trying to tell a false story because the truth must be worse.

I do notice by the way that the fact that Knox fingered Lumumba as the murderer, and that he had a solid alibi is simply not mentioned in this or other press accounts in the US.

citivas

Best post I have read here on this subject.

AmericanPravda

MacK-MacK:

A fine post, indeed! It’s not often on TDB that a post is actually more informative than the original article.

You seem to know what you’re talking about. So, correct me if I’m wrong, but does civil law not focus more on answering the three questions: what happened? Why did it happen? And how did it happen? as opposed to our common law where prosecuting lawyers and defence lawyers rely more on precedent.

I absolutely buy into your point that the Knox family are being badly advised by Washington- based criminal lawyers to use American-style negative publicity in her case and this potentially will backfire on them. It is a stupid tactic, as you say!

Sample of one here, but I think she is very guilty and should pay the price.

mblips

This is an excellent post - in fact much better than the original article.

I have followed this case from the beginning, and I am certain that they are guilty. Here are some details that came out early in the story, but now seem to have been forgotten:

1. In the early hours of the morning after the murder, Knox and Sollecito made two separate trips to the store to buy a bottle of bleach. Why would they be consuming so much bleach if they weren’t trying to scrub forensic evidence?

2. Knox originally said that she was at the crime scene and covered her ears to block out the sound of the victim’s screams. Then she changed her story and said that she wasn’t there at all. How is it possible to be mistaken about this?

3. Their behavior immediately after the discovery of the body was bizarre. Firstly police found both of them at the crime scene when they turned up to investigate the victim’s found mobile phone, but the accused hadn’t contacted police. Surely, upon discovery of a body, it is something you would do immediately. Secondly, at the crime scene, the accused made-out in front of police - surely a misguided attempt to act innocent. Immediately after this, they went lingerie shopping, and then at the police station, Knox passed the time, but doing the splits.

They are guilty, and I think they will not escape this.

The most interesting thing to wait for is Guede’s appeal, which will be heard after the Knox/Sollecito trial is over. I think some fine dirt will be dished at that one.

AmericanPravda

mblips:

No…I remember these details, which you itemize in your post. Regarding your second point, I believe that she’s (Knox) claiming that she gave the statement ‘under duress’. I don’t believe that she, or her legal team, mentioned what caused the duress; perhaps she was in a state of duress, because she had just murdered somebody!

Regarding your third point, her bizarre behaviour on her shopping trip directly after the initial police investigation, was caught on tape, so it’s around for perpetuity.

I suspect that we haven’t been hearing about these issues on this side of the Atlantic because her father’s attempts, via professional media relations firms that he has hired, to obfuscate the key issues has indeed been working, at least with the US public. (The strategy here is to create a over swell of public opinion in the US in favour of her innocence so that the Italian justice system will be somehow intimidated into either letting her go, or allowing her to be tried in the US, where she would, presumably, get a more lenient trial.)

I hope that the Italians stick to their principals and give her the deserved punishment.

MacK-MacK

There is also in a lot of the reporting a misunderstanding about rules of evidence in the common law system versus the civil law system.

To explain, rules of evidence in common law cases, generally heard for the most part before lay-jurors, that is to say ordinary non-legally-trained people, are very very strict, with principles such as the hearsay rule, high requirements for scientific evidence before it will be considered, etc. This is because of a concern that lay-jurors may be unable to place proper weight on evidence - that they will regard things as unduly prejudicial. Thus in a US case “motions in limine” have a big role - these are motions before trial to exclude evidence - and the usual argument is that evidence is more prejudicial than probative. To explain in a US case the argument would be that this individual piece of DNA evidence should be excluded because there might be something wrong with it, or this statement to the police should be excluded because it makes the defendant look bad and proves less than the prejudice it might create.

The evidence about Knox’s sex life, sex toys and vibrators, etc., relevant to explain her problems with her roommates (who were uncomfortable with an apparent parade of men at the breakfast table) would have been excluded in the US, because even though they had at least some relevance to the circumstances of the murder and Knox’s risky behavior, also make her look bad. In an Italian court they take the view that they can exclude the issue of her morality as a matter of sexual behavior (i.e., do they not like her) from the question of her guilt or innocence.

In a civil law system the jurors are in effect professionals. They are expected to know things like eyewitness identifications are inherently unreliable and the system trusts them to weigh the evidence and its reliability in toto, so for example hearsay is usually allowed. Thus if there is an issue about say this bloodstain - yes they take account of that, but they do not exclude the bloodstain, they simply regard it as less reliable - but they consider it in context. So the defendants are disputing multiple examples of DNA evidence - the judges will consider each separately, but also collectively - as in how likely is that that all of these separate bloodstains would exist, each supporting Knox and Sollecito’s presence. Knox made a statement - she says it was under duress; OK, maybe it was, maybe that makes it unreliable - but some of this physical evidence found after the statement supports the story in the statement - maybe it is reliable. A US court might simply exclude Knox’s confession absolutely, and then not consider it in the context of the other evidence.

If you are used to the common law system where evidence is attacked and excluded in isolation you write this sort of [Daily Beast] article, where you talk about the Sollecito’s hammertoe, but not how that matched in with other things. If you understand the civil system you consider it in the context of Knox’s challenged confession and you wonder does each corroborate the other.

In effect everything is relevant and most things admissible, they are just given different weights as evidence. Things like including Knox’s weird behavior in court may have an impact - this continued until someone told her she was not doing herself any favors. Now this [Daily Beast] article has a demure photo of Knox (presumably from the Knox family publicists)—other articles, often in the British press (who want to present her as guilty) show her with weird grins on her face and wearing flippant slogans on T-shirts.

You are in effect talking about a fundamentally different system. The most important thing to know is that if a case is brought against you in a civil system, although you have still the presumption of innocence, you have in effect already been tried by the investigating magistrate, who after seeing all the evidence has already concluded that you are guilty. That does not mean that you do not have the presumption of innocence at trial, just that if you do go to trial you have lost once already before an impartial pro (the investigating magistrate) - by contrast in the US New York state Chief Judge Sol Wachtler famously observed that district attorneys have so much influence over grand juries that “by and large” they could get one to “indict a ham sandwich.”

By the way, does it occur to anyone that given all the publicity, Sollecito’s well connected family, a US citizen, etc., the path of least resistance for the Italians would have been to do what Knox’s lawyers want them to do, and simply to have accepted that Guede acted alone—that is what most criminal justice systems might have done, avoiding the headache of trying these two as well. They had their “goat” why go for more unless they did think Knox was guilty?

Posted on 09/22/09 at 04:24 AM by Peter QuennellClick here & then top left for all my posts;
Right-column links: News media & moviesGreat reportingItalian system
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Monday, March 23, 2009

Impressive Public Push In Italy, Anti Crime, Pro Stronger Justice System

Posted by Peter Quennell


Four months ago now, Nicki presented us with this very enlightening picture of Italian justice.

Two of the important conclusions of Nicki’s piece relevant to the case in Perugia:

  • The Italian system of justice is not only fair and cautious, it is painstakingly so, almost to the n’th degree.
  • Prosecutors do not have an easy time of it, and they have to clear hurdle after hurdle to make their case.

The system may not be ripe for any great changes, but the Italian public certainly seems to be favoring law and order.

Now there’s been a huge anti-Mafia turnout in Naples. Click above for the BBC’s report.

Posted on 03/23/09 at 09:00 PM by Peter QuennellClick here & then top left for all my posts;
Right-column links: The officially involvedPolice and CSIThe prosecutorsThe judiciaryKnox-Mellas teamItalian system
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Wednesday, November 26, 2008

“They Were Held For A Year Without Even Being Charged!!” How Italian Justice REALLY Works

Posted by Nicki



[Above and at bottom: the Italian Supreme Court Of Appeals}

A misleading mantra

This frequently quoted claim above is maybe the most mindless and misinformed of all the mantras on the case.

Much of the US media and some of the UK media - sometimes enthusiastically, sometimes with reserve - has parroted the claim that Raffaele Sollecito and Amanda Knox were “held without charges” for nearly a year.

Perhaps bringing to mind the notion of two innocent bystanders to the crime being arbitrarily arrested? Locked up in cockroach-infested jails by abusive police? Led on by an evil prosecutor with endless powers up his sleeve, and nothing at all to slow him down? Lost and forgotten by any judges in the case?

Well, good luck with that one, if it’s designed to sway the process.

It irritates just about everybody here in Italy, the judiciary and the media included. And it is doing the defendants no good at all.

Negative stereotypes like these really should not be applied to a country that is one of the founding members of the EU, of NATO, and of the European Council, and of the G-7, G-8, OECD, and United Nations (the non-permanent member of the Security Council in 2007-2008).

So for media reporters and commentators, please let us get the facts straight. Once and for all?!

Origin of Italian jurisprudence

Italian jurisprudence developed from Roman Law. It was shaped in the course of history to become a modern and very fair system. Judicial powers are subjected to a very complex and extremely pervasive set of checks and balances, which really assure maximum protection of every citizen’s rights.

Comparing the US and UK common law system - a model founded on non-written laws and developed through judicial proceedings - with this system which arose from the Roman Law model - based on a written civil code - is really like comparing apples to oranges.

They were both conceived to protect individual’s rights at a maximum level, while seeking justice for the victims. But with entirely different processes.

One is not necessarily better or worse. But there are legal experts who think the Italian system is distinctly fairer - much more weighted toward the defendants. In the US and the UK the prosecutor usually has to make it through only one pre-trial hoop. In Italy the prosecutor has to make it through a whole row of pre-trial hoops.

Legal status of a witness and a suspect

Let’s see what happens in Italy to the legal status of a person who, while considered a “persona informata dei fatti” which means “a person who could yield useful information” in relation to a brutal murder, suddenly becomes a suspect in the eyes of the police.

If while interviewing the “person who could yield useful information” the suspicion arises that such person could have played an active role in the crime, their status then turns into that of a suspect. The police can then detain that suspect up to 48 hours.

Those 48 hours are the period within which a prosecutor - if he believes that the evidence of guilt is meaningful - can request a validation of the arrest by the Judge of Preliminary Investigation (the GIP).

If the judge agrees with the prosecutor that a serious indication of guilt exists, a warrant for the arrest is issued by the judge, and the person’s detention is thus validated.

Immediately, as soon as the status of “person who could yield useful information” status changes into the status of a suspect, the suspect person has a right to legal counsel. This legal counsel normally immediately appeals for the release of the suspect.

Subsequent hearings by different judges

Thus setting in motion what can be a LONG sequel of hearings - for which in US and UK common law there is no such equivalent. Each hearing is headed by a different judge. This judge examines prosecution and defence arguments, and decides if the suspect may be released on any of these bases:

  • Seriousness of the clues presented by prosecution

  • Likelihood of repeating a similar crime

  • Likelihood of fleeing the country during the ongoing investigation

  • Danger of tampering with, or fabricating evidence

If every one of the defence appeals fails, in front of a number of different judges, in a number of different hearings, and the investigation is officially closed, the suspect then goes on to a pre-trial hearing.

Once again here, yet another judge rules either to clear and release the suspect by rejecting the submitted evidence, or to send the suspect to trial on the basis of that evidence, thus making the charges official.

Judicial decisions on bail, house arrest, or jail

Now that the charges are official, the judge can decide if the defendant must await trial under house arrest, or in freedom, of if the defendant must remain in jail.

If the judge, based on their knowledge of the crime and the defendants, estimates that the chances of re-offending or fleeing the country are high, the suspect must remain in jail.

So nobody in Italy can be detained without a reasonable suspicion, a long series of judicial hearings (any one of which could set them free) or eventual official charges.

Amanda Knox and Raffaele Sollecito have not in fact been incarcerated for over one year due to zealous police or a bizarre prosecutor or the complicity of a number of judges throughout the process.

They have been incarcerated because an articulate and balanced process of law has officially and very fairly established there are strong indications that they willingly participated in the vicious murder of Meredith Kercher.

Failure of defenses to persuade judges

Their own lawyers have put up a tough fight for Raffaele Sollecito and Amanda Knox throughout the judicial process.  But they have simply failed to convince the judges throughout that process.

One that actually seems strongly weighted in their favor.




Wednesday, October 29, 2008

Next-Day Press: A Good Take By Andrea Vogt For Hearst’s Seattle Post-Intelligencer

Posted by Peter Quennell



PERUGIA, Italy—A little more than a month from now, Amanda Knox and Raffaele Sollecito will stand trial for murder in an Italian courtroom. For Americans following the case, it’ll seem a little strange.

The trial is expected to be open to the public—in stark contrast with the series of closed-door hearings held over the past year just to get to this point.

Under Italian law, Knox and Sollecito could be held in prison for several years during the trial and appeals, if any, but this case is likely to take only months to play out because there’s already been an unusual amount of trial preparation, according to legal observers.

Unlike a typical criminal trial in the United States, the Italian version is longer—often taking months to get to a verdict.

Until two decades ago, the trial process here was similar to that of France, but recent reforms have brought the system closer to what might be expected in an American trial.

There are usually six civilian jurors and two judges, one of whom serves as the “president” of the jury and helps manage the procedural elements of the trial. All of the jurors, including the judges, are chosen randomly.

Although it’s a sensational case, Knox and Sollecito will probably be tried in Perugia, a central Italian city with a population of about 340,000. A change of venue to another city jurisdiction is seldom granted.

The capital of the region of Umbria, Perugia is known for its high-profile jazz festival each summer, its chocolate fair in the fall and as a magnet for international students. But the influx of foreign students and tourists belies how the real Perugia operates, many say.

“It is a paradoxical city,” said veteran Italian journalist Meo Ponte, who is covering the case for the Italian daily La Republica and lived several years in Perugia before transferring to Turin.

“It has the dimension of a small town,” he said, “but because of its large student population, it also has the openness of a large, cosmopolitan city.”

Posted on 10/29/08 at 10:00 AM by Peter QuennellClick here & then top left for all my posts;
Right-column links: Justice systemsItalian systemTrials 2008 & 2009Prelim hearingsMicheli trial etcMassei prosecutionNews media & moviesGreat reporting
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