Thursday, November 05, 2015

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

Posted by James Raper



Image is of busy Rome at night

The Fifth Chambers Motivation Report

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

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

Key Decisions Of The Court

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

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

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

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

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

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

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

    7.  No selective cleaning.

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

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

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

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

My Own Overall Reaction To The Report

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

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

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

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

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

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

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

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

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

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

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

My Critique Of The Decisions Part #1

On The Nencini Appeal

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

The Report claims that the Nencini appeal was -

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

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

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

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

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

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

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

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

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

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

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

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

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

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

All these assertions require to be demonstrated. Are they?

On The Claimed Media Impact

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

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

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

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

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

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

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

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

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

On Multiple Attackers

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

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

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

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

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

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

On The Trial Process

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

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

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

They then proceed to set these out.

1. The Issue Of Motive

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

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

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

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

Marasca-Bruno continue -

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

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

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

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

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

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

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

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

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

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

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

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

***

Please click here for the next post.




Comments

Brilliant Analysis James - and this is only the 1st of 5 Parts.

Not only do you corroborate our impressions, you amplify them with your practiced-Lawyer’s sensitivity to M&B’s sneaky INclusion of the CONclusion-to-be-proven within a not-easily-apparent-premise of M&B’s argument.(“Begging-the-Question”)

Posted by Cardiol MD on 11/05/15 at 12:03 PM | #

Thanks a lot James, very useful and informative - it must have entailed a lot of work on your part.

I’m mostly skipping the boxed report translations (can’t afford the Paracetamol) and just going straight to your incisive critiques underneath. Look forward to the next parts.

Posted by Odysseus on 11/05/15 at 03:19 PM | #

@James Raper, thanks for your highly readable rendition of an otherwise obscure report. This well honed version gets down to the nitty gritty of items that have caused outrage.

They are:

  Knox was there.

There were multiple attackers. Guede was one of the attackers. Knox was there.

The break-in was staged. Knox was there.

The pretend break-in would not have been done by Guede, it might point to his possible prior bad acts. It would remove suspicion from residents of the home if police believed the house had been broken into by outsiders. The only person actually “living” in the cottage was Amanda Knox. So who most likely to feel the need to make the crime seem it was done by strangers to the cottage? And the Court declares that Knox was there!

This is a much needed post clarifying an unwieldy report that is tailor made to be referred to the Council of Magistrates by the Italian President, for a thorough analysis and perhaps corrective action.

Posted by Hopeful on 11/05/15 at 04:45 PM | #

Congratulations, James, on an excellent analysis of this report, and a most lucid and succinct distillation of the acutely pertinent points.
It is indeed an achievement.

Even if one only has time to read your ‘Key Decisions’ and ‘My Own Overall Reaction’ - these are comprehensive, inclusive, and ‘key’.

In the latter - your own reaction - I found this sentence striking:

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

‘Inadequately researched and ill-considered’, as the report is, - is, in fact, an insult to every professional person who has painstakingly researched with objectivity and detailed conscientiousness, and who has addressed the subject with the serious and deep consideration it deserves.

No one should ever forget that this was a grave crime which demonstrated the most utmost cruelty and indifference, -  and by being so definitive in your writing and analysis, you bring back the gravity that should be given to the deliverance of justice here.
Whoever is most responsible for this judgement and consequent report should be deeply ashamed, in my opinion.

From a perspective of their own psychology, the authors of the report are in deep trouble. Unless they are devoid of conscience, what they have done will weigh upon their souls for ever, even if this is never publicly acknowledged.

And in the writing above, James, you have shown clearly why.

Posted by SeekingUnderstanding on 11/06/15 at 05:51 AM | #

Good work.

Why are they so obtuse? Imagine a US Supreme Court Justice writing a Bruno-Marasca judgment. They’d be laughed out of court. Maybe even investigated for perverting the course of justice. Not to mention violating the defendants’ right to a fair trial, a matter which in Italy the European Court of Human Rights would have an interest in. And the Constitutional Court.
 
On a purely rational level, there may be undoubted reasonable statements scattered here and there like crumbs throughout the judgment, and which make sense on their own, or in some other case, but there is no cake of logic overall, nothing coherent, just thise scattered crumbs, and many Dummkopf assertions (one could say, scatter-brained assertions) masquerading as not-even-student-entry-level essay concepts (and if a student had actually written them, said student would have earned a failure for each one, on so many different levels).

There is also the strong suspicion arising that they were written with more than half an eye on their media/publicity-friendly nature, if an innocent reason is needed to deflect suspicion from anything more corrupt. Witness Hellmann banging on about his decision as if he doesn’t understand what the word ‘annulled’ would mean.
 
On the matter of persisting with maintaining the charade, Bruno/Marasca have failed in the most fundamental duties accruing to the high regard and public importance of the position and office they hold and they are not worthy to be considered judges.
 
One wonders what else they have touched has been eaten away like this.
 
If the floor of the stage they are posturing on is made of planks as flimsy as their ‘reasons’ are, it is only a matter of time before they fall through a hole of their own making.

How did they, as rational beings, get to that point? “Every dog is allowed one bite”, as the rule says. And perhaps that one bite is the point, with them being used (and perhaps discarded, career-wise) like single-use gloves. The long-term view can have it no other way.


In the short term, since they are demonstrably expert at it, it seems that a new collective noun has been coined: “a Bruno/Marasca of stupidities”.

Posted by catnip on 11/06/15 at 06:49 AM | #

Many thanks James for the point by point analysis. This is the kind of rebuttal this babbling heap of illogic requires, using relevant case evidence as needed. Again, it is notable that despite all the defense lawyers involved, complete with obfuscating tactics by defense consultants, the judges with penal case experience found merit in the prosecution’s case. It was only the 4 judges with only civil case experience that couldn’t see the forest through the trees and wound up tying themselves into knots.

Regarding Supreme Court justice writing in general, one would have to have read all previous SC decisions to see if there is anything like the MB report. There may or may not be. That said this is a resoundingly bad decision, mostly because it violates Cassazione procedure and uses pretzel logic. That it’s language is laughably obtuse is just “decoration”.

Even so, a well written judgment is no guarantee of a good SC decision. I continue to cite Citizen’s United as an equally bad, if not far worse SC decision, primarily because of its scope and impact. It is well worth reading Steven’s dissent of this extremely dumb decision.

https://en.wikipedia.org/wiki/Citizens_United_v._FEC

Posted by Olleosnep on 11/06/15 at 07:49 AM | #

Excellent piece.

Your ‘paraphrasing’ is helpful, and taken together with Catnip’s similar approach to ‘translate-explaining’ paragraph by paragraph we have ended up with something much more useful and honest than a ‘translation’.

The fact that Romanelli and Mezzetti had alibis was something which struck me as rather important when I first read the report. I’m glad you too spotted this cavernous void in the report’s reasoning!

Posted by Sallyoo on 11/06/15 at 08:12 AM | #

Excellent analysis, James. I wasn’t sure what I could add to the reasoned comments here but this caught my eye:

“1.  The standard of “beyond any reasonable doubt” was not met due to insufficient and/or contradictory evidence.”

The concept of reasonable doubt has existed in one form or the other for ages. From Babylon to Mohammed and Maimonides reasonable doubt was interpreted to mean one must convict only when there was absolute certainty in the mind of the judge and juror. But that interpretation has since evolved in the adversarial law system to allow for convictions or findings of innocence based on a reasonable compilation of the evidence.

From http://caselawquotes.net/S/Standard_of_Proof.html

In Miller v Minister of Pensions [1947] 2 All ER 372 Denning J summarized requirements for the standard of proof to convict the accused in a criminal case, as below:

It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of a doubt. The law would fail to protect the community if it permitted fanciful possibilities to deflect the course of justice.

If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “Of course it is possible but not in the least probable”, the case is proved beyond reasonable doubt; nothing short will suffice.”

It seems the court, in this case, has allowed ‘fanciful possibilities to deflect the course of justice’.

A pity the Italian Supreme Court, which only recently created a hybrid inquisitorial/adversarial system of justice should issue such a perverse verdict, a horrible precedent for future cases.

As we saw in the Andreotti acquittal, Article 530, section 2 of the Italian Code of Criminal Procedure can now be used to acquit anyone the state wants to acquit.

I look forward to reading the rest of your series.

Posted by Ergon on 11/06/15 at 03:43 PM | #

Hi everyone. 1st time posting. This horrible murder seemed at such a remove because it happened in Italy and I had no idea that behind the scenes manipulation could actually impact on a true verdict. Hopefully the continuing trials which AK and RS face next year will regenerate interest from the media. Your persistence in making an English speaking, easily understandable and well debated resource is so commendable. I join with you all in believing that justice must be found for Meredith. The alternative, that you can buy the right to murder another and achieve a vicarious infamy which generates income for yourself, is disgusting. I’m working my way through the site and am continually stunned by the enormity of the dirty tricks and lies. I’m getting a reasonable understanding of the Marasca/Bruno report now. Do they really think that people can be hoodwinked so easily?

Posted by YorkshireLass on 11/07/15 at 10:53 AM | #

@YorkshireLass.  Welcome

Posted by SeekingUnderstanding on 11/07/15 at 12:20 PM | #

Seconded.

Posted by Odysseus on 11/07/15 at 12:49 PM | #

This is an excellent analysis of Bruno and Marsaca’s ridiculous report.

Bruno and Marasca wrote:

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

The comment above is nonsensical for a number of reasons: (1) Bruno and Marasca don’t know that Sollecito had never met Guede; (2) Meredith’s DNA was found on the blade of Sollecito’s kitchen knife and there’s no evidence of contamination; (3) Sollecito’s DNA was found on the exact part of Meredith’s bra clasp that had been bent out of shape during the attack on her and there’s no evidence of contamination; (4) Sollecito gave three different alibis which all turned out to be false; (5) Sollecito told numerous lies, including his claim that he had accidentally pricked Meredith’s hand with the knife whilst cooking; (6) the bloody footprint on the bathmat matched the precise characteristics of Sollecito’s foot; (7) one of the bare bloody footprints in the hallway which were revealed by Luminol matched Sollecito’s foot and (8) a reliable witness saw Sollecito near the cottage around the time of the murder.

Unlike Sollecito, Laura and Filomena had alibis that were verified and there’s no physical or DNA evidence that implicates them in Meredith’s murder.

Posted by The Machine on 11/07/15 at 01:44 PM | #

Hi, The Machine, it also is manifestly illogical of the court to include people who never were suspects.

Posted by Ergon on 11/07/15 at 02:55 PM | #

Thanks SeekingUnderstanding and Odysseus.

Posted by YorkshireLass on 11/07/15 at 04:52 PM | #

Good to see a new poster arrive @yorkshirelass. Your anger and incredulity will grow the further through the site you read. And the answer to the question you posed in your final sentence is a resounding yes. Sadly.

@James Raper, it truly is a pleasure to read your insightful analysis. This is the first time in a long time that I’ve managed to read a post about the motivation report that hasn’t induced a sore head and a sore heart. You’re a very clear thinker which clearly Bruno and Marasca are not.

More power to your elbow sir, I look forward greatly to the rest in this series.

Posted by davidmulhern on 11/08/15 at 07:19 PM | #


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