Understanding Why Guede’s Appeal For A New Trial Was Declined By The Florence Court

Posted by Machiavelli





A few days ago Guede’s requst for a trial review was declared inadmissible by the Florence court. As usual a written explanation will be issued by the court; meanwhile, this is my take.

A trial review is something that resembles what in the US would be called an “appeal”, in fact a kind of appeal that a person convicted might request, in the event that new evidence emerges that may change the verdict. The existence of new evidence is required in order to simply request a revew trial. The burden for presenting new evidence which is significant is fully on the convicted person (requesting party).

So this is what Guede was attempting to request. The “new evidence” that he was presenting as I understand was basically the points made by the Fifth Chambers of the Supreme Court, that is basically: the finding that presence at the murder is not sufficient evidence to convict beyond reasonable doubt; despite it being proven the suspects were there there is still no evidence beyond reasonable doubt of their active role in the act of killing.

If that point was applied to Guede too, he could argue that there is still reasonable doubt on his participation in the murder and guilt, despite the evidence of his being on the scene of crime (as the Fifth Chambers said about Knox).

In a situation of the normal functioning of the law - where the previous judges’ decisions are actually legal - there would be no room for a review of Guede’s conviction, because in order to obtain a trial review, a convicted person has to show that given the new evidence, the overall assessment of the evidence has a significant probability to change, meaning that a court assessing all the evidence would have a significant probability to come to a different conclusion.

Now, if evidence on Rudy Guede is assessed legally by a court, there would be no significant probability that any court would come out with a different verdict, because there is in fact sufficient evidence that he took part in a murder and that he is guilty in complicity along with other culprits as the courts have already found.

Before the Florence ruling my mind was open because the situation was not a normal legal situation: we had the Fifth Chambers verdict that was making those absurd points of law potentially changing the legal landscape, they created a precedent on which Guede could have requested a different assessment of his evidence, aligned with the standards set by the Fifth Chambers.

Those standards are not normal, not legal. They are delusional. But they are in the record, and so the decision on whether to allow a re-trial of Guede would depend on (1) whether the court decides based on the normal legal standards, or (2) whether they decide based on the verdict & rationale on reasonable doubt by the Fifth Chambers.

Since there is a conflict of res iudicata any possible rationale on Guede’s request was theoretically possible.

My guess is that the Florence judges could see that based on normal legal rules it was obvious that there is no actual room for a trial review of Guede’s verdict. So they declared his request inadmissible.

The question of how to fit the decision with the Fifth Chambers Bruno/Marasca verdict is an open question, upon which the court may decide to invent something so to make it look consistent in the pending report.

It is impossible to make it *actually* consistent with the Fifth Chambers verdict, but the Florence court can’t change the Fifth Chambers verdict and the verdict is not about Guede, therefore they might just ignore it, or mention it in a way that is vague, or write arguments that are either building pretexts about it or dismissive of its implications. What they write doesn’t really matter, actually because their decision is not about Knox & Sollecito.

The Florentine court can neither find AK & RS guilty nor “acquit” them, that is they cannot “take them away from the murder room” where the Fifth Chambers definitely placed them. This is true no matter what the Florence courts decides to write about AK & RS: it doesn’t matter what they write about them, since they only have power to assess the final verdict about Rudy Guede for retrial purposes and nothing else.

Whatever excuse they write about any other topic - such as the participation of Knox & Sollecito - is legally irrelevant, because they are not invested with the task of finding anything else. Whatever they write in their motivations might be useful for the media, but we shall bear in mind the Florence court is making no decision about Knox & Sollecito and cannot make any finding that could ever change the previous definitive judicial truths.

That included the definitive finding that Guede acted in complicity with others, that he was not the person who was holding the murder weapon, and that AK and probably RS were right there.


Posted by Machiavelli on 01/19/17 at 12:33 AM in


Comments

Sad to say but I think that Nencini’s broad brush style of writing and the obvious slips and omissions he made in presenting a completely balanced presentation of argument and evidence, were seized upon by the 5th Chambers to give some traction for it’s Motivation.

In my opinion had he done a slightly better job there would have been very little room for manoeuvre for the 5th Chambers. They would have been left with persisting that the result of the DNA analysis on 36B was “not scientifically validated” because it was not repeatable - an entirely shoddy argument if ever there was one.

That does not excuse the delusional and dogmatic assertions contained in the Motivation and certainly not the misapplication of law. That was all very glaring.

Their verdict could only really be challenged by a request for a review of the Motivation by the Council of Magistrates and I am surprised that this has not been forthcoming, given how that Motivation was both garbled and, on the face of it, set new, or at least conflicting, precedents in the law.

I will excuse the Kerchers from not making such a request. I think that they have had enough of it. But the prosecution, the judiciary generally?

I think that the 5th Chambers’ Motivation is so embarrassing that the State and the Judiciary, to their discredit, have decided to blot it out and carry on as if it had never happened. It will, however, be interesting to see how Florence deal with the historical record. We shall see if my suspicions are confirmed.

No, I am not surprised that Florence rejected Guede’s request. Those of us thinking that this might be a way of challenging the 5th Chambers through the back door were always being over optimistic.

Posted by James Raper on 01/20/17 at 07:14 AM | #

A sober and reflective summary of where we are from James Raper. Excellent, insightful stuff.

As the straws within clutching distance disappear in the wind, we can but hope that one of the prosecuting counsel or a member of the general judiciary wakes up one fine Italian morning and finds that they have magically changed from invertebrate and grown a spine. The transformation having been caused by a vicious attack of conscience.

Maybe then, someone, anyone, will request a review of the 5th Chambers Motivation. I won’t hold my breath but I will retain my hope.

The trouble with the legal profession is that they, understandably, and like members of the medical profession, are not really emotionally vested in this case. They see miscarriages of justice as an occupational hazard.

Like a gigolo or a prostitute, they are on to the next client in no time, with barely a thought for the last mug punter. As long as you can pay the asking price, orgasms will be faked and you will be seduced into believing you were special. Nothing could be further from the truth.

The sex worker analogy is allegorical incidentally; not something borne out of personal experience!

Posted by davidmulhern on 01/20/17 at 10:08 PM | #

Excellent comments by James and David. Some additional thoughts.

(1) Good that we have James’s first two paras about the shortfalls of the 2014 Nencini sentencing report on the record (once we are done with the exposure of Netflix which - their fault for being so misleading! - is taking time, we will be posting excerpts from his book).

(2) There is a problem in the Italian requirement for the judges’ reports. They eat up immense time, come out months after public attention has moved on, and in our case take more months to translate. Appeals judges are torn between repeating all of the trial report and just the key bits of the appeal proceedings that back up what outcome they choose. 

(3) Appeals normally are not even attended by the trial prosecution. So, again and again, another prosecutor has to take up the slack. Unusually, Mignini and Comodi were part of the team at the Hellmann appeal, but they did not even attend the First Chambers appeal, the Nencini appeal, or the Fifth Chambers appeal. As a result, at each stage the prosecution case disappears a bit more into the fog.

(4) Meanwhile, quite the opposite happens with the arguments of the defense. Like “Ground Hog Day” the defense continues right through to the end (eight years in this case) sharpening their arguments as they go. Giulia Bongiorno delivered long and very misleading rants full of false accusations at the Hellmann and First Chambers and Nencini and especially Fifth Chambers appeals. They could have been shot down by Comodi and Mignini but the system did not allow them to do that. (Mignini has got back at Maori though.)

(5) Bongiorno in effect played a trick on Nencini after his appeal court wound up in early 2015 by accusing him to the Council of Magistrates of a remark that might have biased the media (gimme a break!!) That meant he was off-balance while writing the report James says falls short, and it ALSO somehow resulted in the FIFTH Chambers (the chambers for petty crimes and family law) being handed the murder case!!

(6) I do think the police and prosecution and Kercher team were emotionally invested and at the end of 2009 had every reason to feel justice for Meredith had been done. Then they saw the bent Hellmann court - they publicly SAID it was bent - and with their trial power slipping away, some discouragement did set in.

(7) Despite all of the grind described above, there have been some pluses, and there should be more to come. For example:

    (a) The Renzi legal reforms would have cut down on appeals and reports, and one day they WILL make it into law; they only didnt a few weeks ago because they were embedded in the referendum with political restructuring issues which young people in particular didnt like.

    (b) The Council of Magistrates DID act as much as it could in response to the Fifth Chambers without being asked - it sealed off the career routes Marasca and Bruno had followed. Maresca has openly said he is tired, and the Kerchers’ financial and emotional strains have been huge.

    (c) Most in Italy still think the outcome stinks, though many blame Knox most of all (in part thanks to a 2015 Porta a Porta program) and dont think RS or Guede had any desire for Meredith’s death. The Knox and Sollecito families have paid a big price.

    (d) We have the Wiki with all its many documents and translations, and this site, and the PMF forum, and James’s book and some other works with more reporting in the pipeline.  The main point about our taking our case against Netflix to the US media soon is above all to leave Knox no place to hide.

And on Twitter and the many media website threads, folks who see things like us now really rule! Always very encouraging to read over there.

For myself, it is pedal to the floor on another website going online soon to show how all systems like these ossify or bite back, and the highly effective ways available now to leapfrogging beyond that.

Posted by Peter Quennell on 01/21/17 at 11:06 AM | #

So Guede’s appeal was quashed. Good. Because of this he will be pissed off enough to go pubic concerning the murdering bitch Knox and her sick disgusting sub human scum Sollecito.

Posted by Grahame Rhodes on 01/22/17 at 04:14 PM | #

Guede has a point. He says in essence, “Fifth Chambers found that both Knox and I were at the crime scene. They found I did not hold the murder weapon. So they know we were both at the scene of the crime, yet they let her go and tossed me behind bars. How can they see more evidence of my guilt than of hers, if she was at the scene of the same crime. Not to mention that Luminol found her bloody footprints, 5 specks of her DNA in Meredith’s blood. Is that not equal to my DNA on the victim’s body and clothes? They say I didn’t hold the knife, so why am I more obviously the killer than the other person who was there?”

We were both there, and she lied about that, so why wouldn’t she also lie about her part in the fatality?

Simply finding me present at the scene was enough to convict me. Why not her?

Machiavelli’s last sentence is a good summary:

Previous judicial truth—

“That included the definitive finding that Guede acted in complicity with others, that he was not the person who was holding the murder weapon, and that AK and probably RS were right there.”

Why the ambiguity about Knox’s role, but certainty about Guede?

A muddle of human reasoning

Will it become a cold case, will the truth ever be found? No doubt Maresca is tired of it, the Kerchers were exhausted long ago, and yet on the bright side anything can turn up at any moment, as Grahame Rhodes suggests, even a belatedly honest confession from Guede that might lead to physical proof, lead to explanations of previously misunderstood clues. Deathbed confessions, nobody is promised tomorrow.

I also liked James Raper’s honest warning against earlier false optimism that Guede would win his appeal as a backdoor way of sparring with the 5th Chamber.

Best of all how Peter Quennell continues to joust with the Netflix knights who wear the Knox scarf. They won’t keep the saddle when the lance of truth comes straight at them. The truth may seem to be in the dust on the ground, but it rises and it never dies.

Posted by Hopeful on 01/24/17 at 08:48 PM | #

Always the most interesting thing about so called “Cold Case files” is the fact that as science improves Proof of Knox undeniable guilt will be proven. Then watch all her Gang of Sodomites run for the hills. Personally I don’t care how long it takes and don’t forget it’s ten years now. I hope Knox gets an incurable disease. That would be fun.

Posted by Grahame Rhodes on 01/24/17 at 11:38 PM | #

Hi everybody I think Rudy could be the key to the Kingdome when the truth finally comes knocking for his accomplices. The Italian justice system has steadily worked against him with a built in bias allowing his white wealthy accomplices every benefit and him none. The long trials and appeals of his cohorts allowed the judge shopping and wrangeling that eventually spit them out of harms way.

Perhaps if Guede had gone the long form trial he could have leveraged his way out also by discrediting the DNA and calling the police bunglers, but I doubt it. Knox stated after her false accusation of Patrick fell apart that the police simply “substituted Guede for Patrick” and then proceeded from there. This was certainly not Miglini’s intention or the court that first convicted the trio,

But this is how the long term played out. Knox with a lot of PR and money tapped into a preexisting racist bias. The police were mighty quick to round up Patrick just on her word and mighty slow to release him. After her damning lies and bizarre behavior both in court and out stunned the Italian Judiciary, it is Guede who is still in prison. Guede at least composed himself well in court and threw no innocents under the bus.

I am not calling Guede a victim. I am saying his accomplices are his equals. Rudy knows they are all guilty of murder. Guede knows unequivocally what happened. He has the goods. He will get out sooner rather than later. He will have done his time with no special privilege. I believe he has tried to grow and prepare himself, despite his horrible crimes of rape and murder, to re-enter society better than he was. His two accomplices have done absolutely nothing but spread their toxins.

I do understand that it would be hard to cop to murdering someone as beautiful as Meredith, But it would have to be Guede or nobody. He can elevate himself above his fellow murderers. I would like to offer every encouragement.

To add further encouragement to us all that Guede’s accomplices will continue to actively participant in their own public damnation. I see current articles in Radar Online and the Independent exposing and chastising Sollicito for discussing his twisted fantasies of rape and murder on pervert websites linked to his facebook account. Google Amanda Knox latest news or Raphael Sollicito and see this.

It is no surprise to me and hurtful to Meredith’s family, but his mask is slipping. Travis.

Posted by Travis on 01/25/17 at 12:13 AM | #

Travis, thank you for that report!  Raffaele Sollecito spends his time on murder websites. Wow.

Come on Amanda Knox, get involved. Are you surprised about this latest news?

Posted by DavidB on 01/25/17 at 07:32 AM | #

@Travis, yes, I saw on PMF.net some of Sollecito’s joking around on secret Facebook groups about murder. He stays just under the radar, but he jokes and giggles with the dark humor. He is photographed at a restaurant holding a knife up.

He says in one comment something to the effect that he has cut many, and elsewhere that he has seen people grow pale. He is laughing with a group who ask questions like, “How can I cover up a murder?” He says to crap on the murder scene. When challenged on his remarks, he plays the fool and claims it’s all in jest.

I hear he now has a plan to start an app with a guy friend named Daniele. Sollecito has some new business to help tourists called sun something (sorry, I forget its web address, but it’s like suntickets or something). Maybe he’s sending tourists to the Dominican Republic.

Travis is right that Guede does know the truth and might reveal it soon, intentionally or unintentionally it could slip out.

And science and DNA technology get more and more precise as each year passes. And yes, the carefree defendants’ masks are slipping, they’re getting careless and sloppy. The jokes will morph into revelations.

Raffaele already hints that Amanda is crazy. Ask the 118 about her he says.

Posted by Hopeful on 01/25/17 at 05:42 PM | #

Here’s Sollecito’s full interview with Victoria Derbyshire of BBC Two. Goes whining to the media every time a court case comes up?

http://www.bbc.co.uk/programmes/p04qv61z

Verdict for his request for compensation to be announced tomorrow by the court in Florence.

Posted by Ergon on 01/26/17 at 08:27 PM | #

@ Hopeful, Hi and did he really say these things?
I can understand poor Mr Kercher, it must be awful having to listen or see things like this in the media - Why?

He’s such a phoney, how has this interview with the BBC been arranged?
Is his favourite and grateful non - yellow media outlet reaching out to him or is his PR arranging the deals for him?

I would like to ask Sollecito what he thought of the Netflix movie and why did he say he pricked Meredith’s hand while cooking in his apartment when in fact Meredith hadn’t been there.

I am sure being the supercreep that he is he will feel more at ease talking about the Netflix movie.

Posted by Deathfish on 01/26/17 at 10:28 PM | #


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