Wednesday, October 28, 2015

TJMK/Wiki Translation Of The Marasca/Bruno Report #5 Of 7: Some “Incongruencies” By Previous Courts

Posted by The TJMK Main Posters



Painting by Paride Pascucci of Siena on the theme of justice

Overview Of The Post and the Series

This represents pages 32 to 37 of the original, which is 53 pages in total. Machiavelli already posted the final few pages so two posts of 5 pages will see the completion.

Translation was by a professional translator with extensive finalization by Machiavelli with some help from the Wiki team of the judicial terms used and the accuracy of the English relative to what is in the report.

Please consider this pre-final. Suggestions for improved translation are welcome. The PDF version to go on the Wiki will be the final. 

On Further Appeal Grounds

6. The examination of the motivational structure of the appealed sentenced, the object of multiple claims by the defenses, can now be proceeded with.

Even from a very first reading, we can identify contradictions, incongruencies and errors in rulings which deeply permeate the whole argumentative structure.

6.1 Firstly, the judges’ statement is erroneous that the motive for homicide does not have to be determined with precision

The assumption is not acceptable in relation to the indisputable principle of this regulatory Court (from Section 1, n. 10841 of the 24 September 1992, Scupola, Rv. 192865) regarding the relevance of the motive as bond between multiple elements that the proof has constituted, during evidential procedures like the one examined here.

Furthermore, the value in this as one of the strengthening elements of the evidence is, obviously, contingent on verification of the reliability coefficient of the evidences, by way of clarity, precision and concordance, with analytic and resulting appreciation of these, individually considered and subsequently placed in a global and unitary perspective (Section 1, n. 17548 of 20 April 2012, Sorrentino, Rv. 252889 in the wake of Section U, n. 45276, Andreotti, Rv. 226094 according to which the “cause”, representing a confirming element of the involvement in the crime of the subject intent on the physical elimination of the victim as it converges in its specificity and exclusivity in an unequivocal direction, nevertheless, but still preserving a margin of ambiguity, in the meantime can work as a catalytic and strengthening element of the evidential value of the positive elements of proof of responsibility, from which can be logically deduced, on the basis of known and reliable experience rules, the existence of an uncertain fact (that is the possibility of attributing the crime to the instigator), when, after analytic examination of each one of them and in the framework of a global evaluation, the evidences in relation to the interpretation supplied by the motive reveal themselves as clear, precise and convergent in their univocal significance).

This, as will be stated below, cannot be confirmed in this case, because of an evidential compendium which is equivocal and intrinsically contradictory.

Specifically, none of the possible motives in the scenarios of the appealed sentence have been firmed up in this case.

The sexual motivation attributed to Guede during the separate procedure against him is not wholesale extensible to the supposed other attackers; for as has been stated before the hypothesis of a group erotic game has not been demonstrated; it is not possible to presume for each contestant a shared or combined motive assuming a sharing in the attack. Such an extension would have to postulate the existence of trusting interpersonal relationships between the contestants, which within the particular and sudden character of the criminal pact would lend verisimilitude to such a move.

Now, though the sentimental relationship between Sollecito and Knox was fact, and though the girl had occasion to know Guede to some extent, there is no proof that Sollecito would have known or hung out with the Ivorian. On this point it is contradictory and clearly illogical to assume (see f. 91) the unreasonable hypothesis of participation in such a brutal crime with an unfamiliar person by the housemates Filomena Romanelli and Laura Mezzetti (who certainly didn’t know Guede), but not extend this argument to Sollecito, who also seems to have never known the Ivorian.

6.2. Another error of judgment resides in the supposed irrelevance of the verification of the exact hour of Kercher’s death, considering sufficient the approximation offered by the examinations, even if assumed as correct during the trial pohase.

With regards to this, Sollecito’s defense has reasons to appeal, since they signaled the necessity of a concrete verification specifically in the evidential proceedings, every consequential implication. Furthermore, the exact determination of the time of Kercher’s death is an inescapable factual prerequisite for the verification of the alibi offered by the defendant in course of the investigation aiming to verify the possibility of his claimed presence in the house at via della Pergola at the time of the homicide. And for this reason an expert verification was requested.

So, specifically on this point, it is fair to note a despicable carelessness during the preliminary investigation phase. It is sufficient to consider, in this regard, that the investigations carried out by the CID had proposed a threadbare arithmetic mean between a possible initial time and a possible final time of death (from approximately 6:50 PM on 1st November to 4:50 AM on the next day) setting the hour of death approximately at 11-11:30 PM.

The examinations of the gastrointestinal tract of the victim, who, in the late evening, had consumed a a meal with her English friends, has allowed – once again only with approximation, adjusted during the trial hearings – to much further circumscribe the temporal range.

The Appeal Court further reduced the temporal range, placing it in the hours between 9 PM of the 1st of November (time of Kercher’s farewell to her friend) and 12:10:31 AM of the next day, on the basis of the recording (resulting from the acquired phone records) of a signal of one of the cellular phones of Kercher intercepted in a telephonic cell covering the area of via Sperandio, where the cellular phones had been abandoned by the perpetrators of the homicide.

But this observation also suffers from approximation, because at the last indicated time, Meredith Kercher was already dead, even if only for a little time, precisely because the signal was registered in the area where the telephones had been abandoned, after being stolen, shortly after the homicide, within the house in via della Pergola, some hundreds of meters from the place of their retrieval.

The contestant’s defense has offered, in this regard, a more reliable analysis, backed up by incontrovertible facts.

From the examination of the telephonic traffic has emerged that, after the departure from her English friend’s house at 9 PM, the young woman had, in vain, tried to call her parents in England, like she used to do every day, while a last contact was registered at 10:13 PM, so that the temporal range has been further reduced to approximately 9:30/10:13 PM.

7.  The second critical observation, relative to the appealed judgment, introduces the central matter of the judgment value attributable to the results of the scientific examinations, with particular reference to the genetic investigations, acquired in violation of the rules dictated by international protocols.

The specific question falls within the doctrinal debate on the relation between scientific proof and criminal procedure, in search for an equilibrium between the orientation – which is amenable to certain foreign schools of interpretation – which tends to recognize ever more weight to the science contribution, even if not validated by the scientific community; and the orientation which claims the supremacy of the laws and postulates that, according to the rules of criminal proceeding, only scientific results tested according to methodological standards which are routinely accepted could be considered as relevant here.

The present cultural debate, even if respecting the principle of free conviction of the judge, also tries to critically revisit the notion, by now obsolete and of dubious credibility, of the judge as a super-expert. In fact, the archaic rule of thumb reflects a cultural model that is not current anymore and instead is anachronistic, at least in the measure of what is supposed to be handled by the judge’s real capacity to manage the scientific knowledge flow that the parties would enter into the proceedings, where, instead, a more realistic configuration wants him completely unaware of that contribution of the knowhow,  the result of scientific knowledge that doesn’t belong to him and cannot – and has not to – belong to him. And this is truer in relation to genetic science, in which complex methods postulate a specific knowledge in the fields of forensic genetics, chemistry, and molecular biology, which are part of a knowledge patrimony very distant from the prevalently humanistic and juridical education of the magistrate.

But the consequence of the inescapable acknowledgment of such a state of legitimate ignorance of the judge, and therefore of his incapacity of managing “autonomously” the scientific evidence, cannot be his uncritical acceptance, which would be equivalent – maybe for a misunderstood sense of free convincement and maybe also of a misunderstood concept of “expert of experts” – to a substantial renouncement of his role, through totally uncritical acceptance of the expert contribution to which is delegated the resolution of the judgment and therefore the responsibility for the decision.

But also, in a situation of a one-sided scientific contribution coming from just one of the procedural parties, and thus standardly disposed of by the same judge, this can be welcomed as a paraphrasing in a more or less rational way of the technical argumentations presented to support the procedure, a problem dramatically arises when in a situation of conflicting scientific contributions, the same judge is called upon to settle upon a choice, and, in this case, the paraphrase is more complex, requiring a pertinent and valid motivation to explain the reasons for which an alternative scientific prospection would not be shareable. (cfr. Section 6, n. 5749 of 09 January 2014, Homm, Rv. 258630, according to which the judge who considers to adhere to the conclusions of the expert, in discordance with the ones presented by the defense adviser, even if not obliged to provide, as a reason, an autonomous demonstration of the scientific exactitude of the firstly cited, and the erroneousness, on the contrary, of the others, “he is however called to” demonstrate the fact that the expert conclusions have been valued “in terms of reliability and completeness”, and that the advisers’ argumentations have not been ignored).

The court considers that this delicate problem, with regard to the present judgment, requires a solution within the general rules which compose our procedural system, and not from elsewhere in an abstract claim of a supremacy of the science over the law or vice versa. The scientific evidence cannot, in fact, aspire to an unconditional endorsement of reliability during the trial proceeding because the criminal procedure rejects every idea of legal proof. Also, known to everyone is that there doesn’t exist a single science, a bringer of absolute truth and immutability throughout time, rather various sciences and pseudo-sciences, both the official ones and the ones not validated by the scientific community because they reflect research methods not universally recognized.

And therefore the solution to this problem must result from the consideration of principles and rules which regulate the acquisition and the formation of the evidence in the criminal procedure and, then, of criteria which support the relative evaluation.

The citation points must be ones relating to the adversarial principle and the judge’s control over the path of formation of the proof, which has to respect predetermined guarantees, the observance of which must be a rigorous parameter of the judging and reliability of the relevant outcomes.

So, a result of a scientific proof can be considered reliable only when examined by the judge, at least with reference to the subjective reliability of those who advance it, and the scientific method employed, and a more or less acceptable error margin, and the objective value and reliability of the obtained result.

Therefore, observing a method of critical approach not different, conceptually, from the one required for the appreciation of ordinary evidence, aiming to elevate as much as possible the degree of reliability of the legal truth, or alternatively, reduce to reasonable margins the inescapable gap between procedural truth and substantial truth.

Moreover, in procedures of inductive-inferential logic, which allow one to trace back from the known fact to the unknown one to be proved, the judge, in his full freedom of convincement, can use any element which would work as a bridge or bond between the two considered facts and allow one to trace back from the known one to the unknown one, according to parameters of reasonability and common sense.

The connection can, therefore, be of the most varied nature: the so called “experience rule”, legitimated by common knowledge or by direct observation of the reality of a phenomenon, which registers the repetitiveness of specific events in constant, identical, determined, conditions; a scientific law, of universal value or more narrowly statistical; a law based on logic, which presides and orients the mental paths of human rationality and anything else useful to the purpose.

The evidential reasoning which allows passing from the element of proof to the result of proof it is an element of the exclusive competence of the judge of merit, who has obviously to supply a concrete motivation and who, with regards to evidential proof, is required to apply a duplicable confirming scrutiny: a first verification concerning the so called “external justification” by way of which the same judge has to test the validity of the experience rule, or scientific-logic law, or any other rule observed; and a further verification related to the so called “internal justification” through which must be demonstrated, concretely, the validity of the result obtained through the application of the “bridge-rule” (Section 1, n. 31456 of 21 May 2008. Franzoni, Rv. 240764).

 




Comments

Does common sense seem lacking?!

Imagine Twelve Angry Men or for that matter any common-law “black box” jury trying to apply Marasca & Bruno’s so-called logic and their jurisprudence reinventions.

Remember, though, this is pretty well their first murder case, ever, and neither came up via the demanding study-laden career-path which must now be followed by all top judges and prosecutors. So they do have insecurities…

Same with Hellmann & Zanetti. In their judge-shopping the defenses twice came up with extreme amateurs, who then gave them a lot less (or a lot more) than they bargained for. And so neither they nor their clients are happy campers.

If this report makes us mad, it is remorselessly making them much madder. 

Next up is Catnip’s further short critique, and after the final posting a very long critique by James Raper will follow.

Posted by Peter Quennell on 10/28/15 at 12:08 PM | #

Regarding point #6:

I humbly submit that the learned judges are science illiterates- they have not heard about the principle of physics called causality.

Basically it means that every effect must have a cause and the cause must precede the effect. The effect is the only observable AND the relation between the cause and effect is simply a hypothesis. In general, any given effect may have a number of causes and it is entirely possible that a different combination of causes can produce the same effect.

Readers familiar with the Newton’s laws of motion (forces and inertial systems) and also the principle of physical independence of forces will understand the idea. In the present case, we have the only effect that can be seen is that of the murder of an young girl. All other effects seen alongside are related to this main event. Any cause, howsoever convincing, will always remain an hypothesis. I doubt even Amanda can tell exactly why she did kill her flatmate.

It is still more funny to ask about the exact time of death. After all, death is an ill-defined concept and the learned judges should learn to focus on overall consistency of the evidences presented (how well they fit together) and whether any alternative cause (the effect cannot be changed now) has been advanced that can offer a better fit (of the available evidences).

But I think the learned judges have not been able to decide the set of acceptable evidences. Interestingly, a “good” hypothesis will fit (albeit poorly) even if you remove part of the evidences (provided they are reliable evidences) and there lies the trick…

Posted by chami on 10/28/15 at 02:06 PM | #

“The court considers that this delicate problem, with regard to the present judgment, requires a solution within the general rules which compose our procedural system, and not from elsewhere in an abstract claim of a supremacy of the science over the law or vice versa. The scientific evidence cannot, in fact, aspire to an unconditional endorsement of reliability during the trial proceeding because the criminal procedure rejects every idea of legal proof. Also, known to everyone is that there doesn’t exist a single science, a bringer of absolute truth and immutability throughout time, rather various sciences and pseudo-sciences, both the official ones and the ones not validated by the scientific community because they reflect research methods not universally recognized.”

There does exist only one, single science. Our understanding of science may perhaps be evolving (changes with time) but the underlying principle or philosophy of science remains invariant. Anything that changes unpredictably is not worth studying (perhaps except in an ergodic sense)- perhaps as good as stamp collecting.

But did the learned judges have to comment on science and the methods of science?

Posted by chami on 10/28/15 at 02:20 PM | #

Good points chami.

Alas the judges in Italy (and elsewhere) are not selected for their scientific knowledge. They are mostly selected for their (pathetic) complacency, lack of curiosity and unthinking agreement with the status quo, i.e the polar opposite of the scientific attitude. Enough to make Gallileo turn in his grave.

The other thing to consider is that the judiciary, in most countries, is considered second only to the monarchy/presidency in terms of social status, thus the attraction to all manner of dumb and creepy social climbers, freemasons included (and there are plenty in Italy).

For interesting background on how bent justice and freemasonry conspired to let Jack the Ripper go free in 19th century Britain, I recommend the new book “They all Love Jack” by Bruce Robinson.

I think I might send copies to Bruno and Marasca. Anyone got their addresses?

Posted by Odysseus on 10/28/15 at 06:26 PM | #

Insightful stuff Chami.

I’d almost forgotten that this tortuous motivation report hadn’t been finished off yet in terms of translation. I was only on the second paragraph when the hyperbole and obfuscation hit me in the face as usual.

It irks me enormously that this report has been peppered with so many superfluous adjectives and weirdly worded wrong think. The second paragraph showcases this perfectly.

“Even from a very first reading, we can identify contradictions, incongruencies and errors in rulings which deeply permeate the whole argumentative structure”

In a pathetic, obvious attempt to discredit what has gone before and highlight their own cleverness (they actually achieve the opposite of what they intend), they embellish this paragraph unnecessarily with “Even”, “very”, “deeply” and “whole”. The child like emphasis they place on their arguments is embarrassing and can’t be allowed to stand.

The inclusion of four superfluous words in one tiny paragraph is a microcosm of this disgrace of a motivation report as a whole. It’s sickening.

Posted by davidmulhern on 10/28/15 at 07:31 PM | #

“6.1 Firstly, the judges’ statement is erroneous that the motive for homicide does not have to be determined with precision.”

So begins this continuation of this Judicial Juvenilia.

Investigators customarily use motive to help identify criminal perpetrators but Motive, in itself, is not an element of any given crime and is not required to reach a verdict.

Legal systems typically allow submission of possible motives in order to add more human acceptability to the accused’s reasons for committing a crime, but recognizes that crimes may have no humanly acceptable reason, as in “I shot a man in Reno, just to watch him die”.

The motive for homicide (at least, these authors acknowledge that the subject IS homicide) does not Have-to-be Determined at all, let alone be determined with precision.
That’s what is “erroneous”.

(Here, we should not confuse “Motive” with “Intent”, which refers to the mental state necessary to prove liability, and which is an element of the crime.
When the knife was thrust into Meredith’s throat, did her attacker intend to thrust it into her throat?)

The Marasco Bruno report is a logorrheic House-of-Cards - a juvenile concoction of legalese, intended to impress impressionable readers, but is actually a caricature of legalese.
If submitted as an academic thesis it deserves only flat rejection.

Submitted as the ex-Cathedra pronouncement of the Final Court in the land it is farcical.

Posted by Cardiol MD on 10/29/15 at 12:35 AM | #

Beautifully put Cardiol, sums it up perfectly.

I suspect I’m not alone in thinking that you would make a superb legal advocate for the Kerchers. Even if you’re not formally qualified as a lawyer and are instead a doctor, you would still destroy 99% of the lawyers I’ve come across in my life. And I’ve dealt directly with many in my working and personal life.

I’ve always found it to be a wholly overblown profession, littered with people who were clearly good at passing exams but who would struggle to boil a kettle.

Posted by davidmulhern on 10/29/15 at 06:43 AM | #

Hi davidmulhern

Nice words to Cardiol. He does in fact also have a JD as for obvious reasons he became in demand in understanding evidence and was intent on truth.

I think that in this case we have seen, well, lawyers and lawyers. The prosecution lawyers and most of the judges are professional career-track and generally have done impressive work. The exceptions (Marasca, Bruno, Hellmann, and Zanetti, all underqualified) were explained in my comment at the top; the CSM (an amazing body, every country should have one, and an unsung hero here) has already eliminated their political career paths as routes to the top.

The two defenses have indeed played an amazing number of nasty tricks starting in early days when they delayed and delayed having observers available when Stefanoni went back to collect the bra clasp. They had observers at EVERY DNA test but still convinced Hellmann, Zanetti, Marasca and Bruno contamination could have taken place.

They spread rumors about the knife/knives and Knox’s HIV test. They did hold Knox back on her false claims about the Interrogation Hoax in 2007 and 2008 but allowed her to pursue them at trial - leading directly to her conviction for calunnia. The two instances of judge-shopping showed they would bend the whole system and humiliate Italy to win.

Bongiorno told numerous lies to Nencini (and about him) and to the Fifth Chambers face to face last March and in her written appeal. She abuses police and prosecution and they have no easy way to hit back AND she was head of the powerful Justice Committee in parliament, a massive conflict of interest no pro-victim country would have allowed, for much of this case.

Bad but except for this case Italy “lags” the US in what is increasingly done to win. Here’s a book on what is the par for the course in celebrity trials in the US:

http://www.amazon.com/And-Justice-For-Some-Dangerous/dp/1481849670

Posted by Peter Quennell on 10/29/15 at 07:20 AM | #

Hi Chami

Thanks once again for standing up for good science. Hellmann, Zanetti, Marasca and Bruno all swallowed a lot of DNA mumbo-jumbo and became world-class examples of the CSI Effect - on which the defenses and their experts (and the bent consultants C&V) and many pro AK and pro RS had labored hard.

Posted by Peter Quennell on 10/29/15 at 07:50 AM | #

Cheers Pete.

I’m aware of the things you outline in your post immediately above, but it’s always good to get a reminder. This case is so crammed full of detail that it’s impossible to retain all of it and be able to access it in the old brain instantly.

I had come back to add a codicil to my lawyer comment. That is to say that the people who have posted on here who are lawyers have always struck me as being in the higher percentile amongst their peers.

I don’t have a downer on lawyers per se, I just find the esteem in which they are generally held to be simultaneously nauseating and undeserved. Actuaries are similar in that they are lauded for very little reason in my experience. I say that having managed a team of actuaries in a previous role and it truly was like herding cats!

In fairness, I think the esteem in which both professions are held, is generally confined to the members of those professions rather than the public at large. Actuaries are probably worse than lawyers in this regard!

Posted by davidmulhern on 10/29/15 at 08:00 AM | #

@ davidmulhern, and Pete, thanks.

Re professions, “littered with people who were clearly good at passing exams but who would struggle to boil a kettle”, very true universally.

IMO, the besetting sin is “ignarrogance”.

Malcolm Gladwell puts the problem insightfully - passing exams is no substitute for accumulating enough field experiences to perform well.
He estimates that 10,000 hours of actual experience is necessary, (but not necessarily sufficient), for skilled performance.
Think Nelson; winning at Trafalgar in his 40’s, having started off as a Middy 30 years before.

Posted by Cardiol MD on 10/29/15 at 08:13 AM | #

@Cardiol MD

I also accuse the judges of using faulty logic; I do not wish to detail here but the point has been rather nicely explained in a Wikipedia article https://en.wikipedia.org/wiki/Causality - see under the section logic and you will see what I mean. The article on Causation (law) https://en.wikipedia.org/wiki/Causation_(law) is rather poorly written. But you will surely like the section on “Causation: law and science compared”.

I only wonder whether the confusion they have created is deliberate or purely due to incompetence. I do not know the answer and I leave that to the wise men.

Posted by chami on 10/29/15 at 11:02 AM | #

The judges who had experience with penal cases found merit in the evidence and were able to correctly interpret it as a web of coalescing elements.

The four judges who only had civil case experience didn’t know how to do that and were caught up in the defense lawyer fog of “doubt this + doubt that = doubt everything”. Hellmann, Zanetti, Bruno and Marasca failed to do their job properly due to inexperience.

Bruno seems to take that inexperience to a new level by trying to hide illogic behind silly verbiage. That’s called ‘sophomoric’.

The CSM has to recognize this is a complete travesty and sets a terrible precedent in which one section of Cassazione contradicts another within a two year time span. That can’t be good case law.

If there is no mechanism in place to correct this, CSM should invent one, even if it’s a one time exception.

Posted by Olleosnep on 10/29/15 at 11:49 AM | #


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