Tuesday, December 07, 2010

Andrea Vogt Provides Heads-Up On What May Happen In The Appeal

Posted by Peter Quennell

Luciano Garofano created Carabinieri DNA labs; quote below

Update On Pending RS And AK Appeal

Another of the many very informative reports that have appeared on the Seattle PI website.

A mild qualification up front is that we would have liked it mentioned that the prosecution have also initiated an appeal, to throw out the “mitigating circumstances” outlined in the Massei Report.

A reversal on the mitigating circumstances, which we too have always found problematical, could result in all three serving longer time. What the prosecution will come out with in that phase is a real sleeper in this appeal.

1. On John Kerchers article protesting the over-the-top PR campaign

The Kerchers have maintained their silence since their daughter’s murder, even as Knox’s parents appeared on national television in the United Kingdom, the U.S. and Italy. But that could change, as negotiations are under way with at least one national network to hear the Kerchers’ side of the story.

Correct and accurate. More on Meredith would be so welcome to an American audience. We reposted John Kercher’s hard-hitting article here in English and (as the Italian media mostly don’t yet know about it) here translated into Italian.

Biased reports like those of the ill-researched Nikki Batiste of ABC, which mis-stated and ridiculed John Kercher’s claims, omitted to say what Andrea Vogt says: this is THE FIRST TIME that John Kercher has gone public, in an attempt to stop the depraved multi-million-dollar deluge.

2. On the chances of an overturn of the December 2009 verdicts.

American pundits are quick to predict Knox could walk, but Italian legal experts say the chances of completely overturning her conviction aren’t good. More likely, they say, are the prospects of a sentence reduction.

“The Knox trial is one of the few, in the history of Italian criminal justice, in which over 25 judges have agreed—at different stages—on the adverse impact of the collected evidence against the positions of both Knox and Sollecito. In this respect, the case is rather unusual, as Italian justice is often characterised by conflicting decisions of courts on the same case,” said Stefano Maffei, an Oxford-educated professor of criminal law in Italy interviewed by seattlepi.com.

“What I can confirm is that courts of appeal are generally more lenient than courts of first instance, and I would not be surprised if the decision on appeal could bear a lower sentence for both defendants.”

The point is made up at the top here that this report does not mention the appeal of the prosecution for tougher sentences , which would seem to effectively balance out the probabilities that Mr Maffei and all the defenses now claim.

The sheer number of judges that all of them agreed on the evidence in this case is particularly damning. Our own Italian lawyers between them know of ZERO cases where so many judges in succession have found no reason to reverse any part of the process.

We have posted a number of good descriptions of how the Italian process actually works (these go beyond the descriptions in ANY British or American reporting, another sign of how sloppy it has mostly been), and our key posts can be seen here and here and here.

3. On the requested defense witness Mario Alessi

In a file tucked neatly under a polished glass paperweight in Laura Ferraboschi’s Parma law offices is a carefully guarded letter that Knox and Sollecito hope will set them free.

It is 10 pages, handwritten in the small, tilted script of Mario Alessi, a convicted murderer who had the prison cell across from Rudy Guede in the sex crimes ward of a tough prison just north of Rome….

Alessi mailed his statement to her for safekeeping after becoming concerned it might “disappear,” she said…. Sollecito’s lawyers, eager to have the letter at their disposition, asked Ferraboschi to share it, but she has refused, saying she did not feel it would be ethical to do so.

“Alessi sent the statement to me for protection, and I do not feel it is appropriate to give it to other lawyers who might drag him into a case that could negatively impact him,” Ferraboschi said. “If a judge requests the statement or his presence, then we will provide it.”

Good luck on that one. We doubt Alessi ever makes the stand. Here is our most recent post on Mario Alessi which links back to several that went before.

Prosecutors Mignini and Comodi also interviewed Alessi. They have not yet made public what he said.

Investigators and prison staff would have checked Alessi out very carefully.  Laura Ferraboschi seems to be hanging firm on not sharing the letter, out of concern that Alessi could incure a charge of perjury.

4.  On the requested defense witness Luciano Aviello

The second series of jailhouse “revelations” are from Luciano Aviello, a Mafia turncoat from Naples who shared a cell in Terni with Raffaele Sollecito. Knox’s lawyers went to videotape a statement from him in prison near Turin in March, a month after Bongiorno had videotaped Alessi’s statement in Viterbo.

He wrote several letters to the court last year. In the most recent statement, he claims he can prove all three people in jail for Kercher’s murder are innocent. It was his own brother, he says, who killed her. Aviello…

Aviello said his brother killed Kercher in a robbery gone awry, then asked Aviello to hide a bloody knife and set of house keys. Kercher’s set of house keys have not been found.

Good luck on that one too. We doubt that Aviello too ever makes the stand.

In our most recent post on him here we remarked that, with this guy, the defense was already seriously grasping at straws. We are amazed that they still want to wheel him out. That weak move does not bode well for Knox and Sollecito.

5. On the requests for more testing of the DNA

Repeatedly, judges have rejected defense arguments about the forensic evidence despite the slipshod way it was processed and Italy’s reputation of lagging behind the rest of Europe in DNA certification, handling protocols and databasing.

Many outside observers believe the court should allow for such an independent review, given the number of protocol mistakes revealed in the first trial.

Defense attorneys and their expert witnesses heavily criticized the work of police biologist Patrizia Stefanoni and the Perugia and Rome forensic teams working under her direction for such missteps as not changing gloves after picking up evidence, poor collection methods and incomplete records of how evidence was handled and in what exact order during later laboratory testing….

Two of the primary pieces of evidence against Knox and Sollecito are highly contested: A bra clasp originally catalogued in the first days after the murder that was picked up in a sweep of the crime scene 46 days later, and the kitchen knife with Knox’s DNA found on the handle and the victim’s DNA found on the blade. The bra clasp is said to contain Sollecito’s DNA. The amount of Kercher’s DNA found on the blade was such a trace amount it registered with a “too low” reading when analyzed.

Our DNA section on TJMK is very complete and to a very high standard. The three posts here and here and here are particularly worth a very careful read. 

More tests had already been denied by Judge Massei. Defenses tend to like to do this, to keep insisting on more and more testing, until finally with luck an expert breaks their way.

The defense now “highly contests” the testing but they also attempted that throughout the trial and several of their experts under cross-examination had to take a step back.

Experts were invited to the one-time-only DNA testing of the knife and then (surprise, surprise) on the day of testing not all of them showed up.

And on whether Italy lags behind the rest of Europe on standards, see below (Italy doesn’t)..

6. On the standards of the laboratories that did the testing

A top geneticist at one of Europe’s top forensic labs at the University of Salzburg confirmed in an interview with seattlepi.com that it is possible to amplify such a small amount of DNA, as Stefanoni did, until DNA can be identified. But the expert added that it would not be allowable unless the result could be reproduced, something police biologist Stefanoni said under cross-examination could not be done.

The Salzburg geneticist, who does forensic testing for police agencies in neighboring Austria, said that in the university’s certified lab (which has the highest certification available in Germany and Austria) different operators are required to handle suspect and victim DNA and that the various phases of DNA analysis happen in different labs along a “one-way street” to avoid the possibility of contamination.

Such protocols were not in place in Rome. In fact, Italy is noted for being behind on international forensic standards. For example, it is one of the last (and only) European countries to have not yet become part of the Prum convention, which sets basic guidelines for sharing of DNA data and other security information.

The top geneticist at Salzburg University is unfortunately not named, presumably at his request, and there have been so many claims by both anonymous and unqualified self-proclaimed experts throughout this case that we wish he had said that yes, he could be named.

The Rome labs were in fact being operated to international standard and they had followed the European protocols for years. When they were only recently certified to European standards, none of the procedures or the training or the layout of the labs had to be changed.

Perhaps the top geneticist should have mentioned this. 

7. And on the views of renowned forensic scientists Luciano Garofano

One of Italy’s top forensic biologists, retired Caribinieri General Luciano Garofano, is at the forefront of the push to introduce a national database and DNA certification standard in Italy. Garofano (a member of the American Academy of Forensic Sciences who collaborated frequently with the FBI over the years as a high-ranking Caribinieri military officer) analyzed the forensic evidence in the Perugia case for a book released shortly after the trial was complete.

He believes Knox was involved in the murder, but he disagreed with the court’s conclusion that Kercher was sexually assaulted—he is convinced Kercher’s death was a fight that degenerated, then later staged as a rape.

Interviewed by seattlepi.com, Garofano said his read of Knox’s appeal was that it was mostly a rehashing of “points that have already been debated…. The knife is a weak element . . . they could argue it should be thrown out because the amount of DNA does not meet international forensic standards. But that still leaves a lot of other evidence,” Garofano said.

“I do not believe there is enough there to convince an Italian magistrate and jury to overturn this conviction.”

Terrific comments. Hard to see why either Knox or Sollecito deserve even the slightest reduction of their sentence. Neither of them has come up with a consistent explanation, both of them seem to have shown some glee, and neither has shown the slightest sign of repentance.

If they tortured and killed Meredith in a particularly cruel and barbaric way, as it seems, then they both seriously need to serve the time.

Posted by Peter Quennell on 12/07/10 at 05:14 PM in Trials 2008 & 2009Appeals 2009-2015Guede appealsHellmann 2011+


I read the article, Peter, and will say this. Amanda and Raffaele’s attorneys are giving it their best shot, so, when they lose their appeals, I hope the innocenters won’t blame their attorneys.

Hopefully, they’ll have to just accept, it’s because they are, yes, GUILTY. And the best attorneys in the World, aren’t able to make the evidence disappear. Of, course, I’m not holding my breath about this. It will probably the same refrain. Sigh.

Posted by capealadin on 12/07/10 at 10:11 PM | #

Salzberg geneticist says “it would not be allowable”. Require clarification on the following points :-

1. Who says? This is a legal point and surely this a matter for the courts, and in particular those in Italy, to decide.

2. Is its non-allowability part of some convention or treaty by which italian courts are bound or will be bound in the future?  If so, when? Are there conditions to be met before any such ruling becomes enforceable, and if in the future, will it be retrospective?

3. Is it still non-allowable even though the result is clear and it is physically impossible to repeat the test as in the circumstances of this case?

Has the geneticist been misquoted and is he simply giving guidelines for best practice? If so what does he suggest, when a test can not be repeated?

I can not see what the Prum Convention has to do with things unless it deals with the above points.

Posted by James Raper on 12/07/10 at 10:40 PM | #

Good point James. One State Supreme Court has already approved non-repeatable testing in the United States.

Non-repeatable tests in Italy are the reason for the defense experts entitled to be there. If they choose not to come, they should have no comeback. They should not then claim the tests were done wrong.

Posted by Peter Quennell on 12/08/10 at 12:14 AM | #

Another superb article. Steve Shay, take note. Naturally, he won’t.

Posted by Janus on 12/08/10 at 02:39 AM | #

A very interesting post Peter and thank you.

I believe Knox and Sollecito do not deserve any reduction in their sentences; it would be an injustice.

Although people who have followed this case from its beginning are very learned,there are things we are simply not privy to.

We can only imagine the depravity of Knox and her partners in crime on that fateful and tragic night but the police and murder squad professionals know for sure.

Her callous nature has been seen by all in her courtroom appearances and pre-arrest behaviour and seemingly she has struggled to hide it away - just Amanda being Amanda, right?

I have said this before; take the knife away and they are still guilty.There are far too many things pointing the long finger of guilt at these people.

Luciano Garofano in Darkness Descending said quite simply: Bra clasp DNA = Raffaele Sollecito.

Very damning and no doubt whatsoever about it.

Luciano Garofano is one of Italy’s top forensic biologists. Will Marriot now try to slime him and include him in the grand list of conspiracy against their Maid of Orleans?

Posted by Black Dog on 12/08/10 at 06:45 AM | #

it remains very interesting to me that both have continued to “hang together”.

Posted by mojo on 12/08/10 at 11:58 AM | #

By Storm Roberts (Innai)

Once again an excellent piece of unbiased, researched journalism from Andrea Vogt.

She covers several areas and although there is room for disagreement with her the general standard of this piece is something other journalists should look to and work towards.

Un-named scientists…..how very apt that James Raper should have brought this discussion to the fore here on TJMK (scroll down to his comment) just before this article went online. 

Scientists need to stand behind their work and comments, put their name, credentials and reputation behind their work, if they are not prepared to do that one must question their motives.

As has been said many times during the course of this case, in Italy the defence experts are invited to attend the testing of samples in the laboratory and they can there and then ensure that the testing is carried out to their satisfaction.  In this case the defence experts did not attend. 

To quote poster Cesare Beccaria:

“The next strategic action was that of not appearing at the lab for the non-repetitive testing for the DNA, with the obvious intention (almost habitual in Italy) of refuting ex-post each and every forensic finding that could have been adverse to their client.”

Obviously, this is not a new tactic in Italy, just something that is new to the “rest of the world” as we get to grips with the Italian system.

Posted by Nolongeramember on 12/08/10 at 12:40 PM | #

“Italy’s reputation of lagging behind the rest of Europe in DNA certification, handling protocols and databasing…”

Reputation of lagging? Among whom? Apart from daffy conspiracy theorists like Steve Moore?

It actually means very little that Italy had not yet chosen to comply to certain inter-country lab standards. You know what country in the world is the biggest “laggard” in the many, many international standard?

Yes. The United States.

One of the reasons the US is “lagging” or not always “in compliance” is that it has set many standards of its own (google ANSI) and it considers that they meet its needs just fine. .At least some of these US standards are above the international standards, and it looks down on some international standards.

Standard setting is a vast activity around the world, involving the UN specialised agencies in their special areas, regional organizations such as the European Union in their areas, professional organizations, and so on. It is a huge generator of income for academics.

In some areas the need for harmonization is overwhelming - it is a no-brainer in aviation and the maritime industry and telecommunications. (Many ships are registered in Liberia and Panama because they don’t enforce those standards.)

In other areas it may be nice if you can comply with all the standards - health and tourism and education - but for most countries it is a costly struggle and may not be worthwhile and “lagging” may be the sensible option.

And in the industrial and agricultural industries, compliance with standards can very much be a two-edged sword.

True, they allow for the more ready movement of workers and goods and services - but those benefits come with considerable costs.

All the compliance with the zillions of European standards costs Europe 1-2% in economic growth and compliance with the demands for the management of the common currency is threatening the whole world economy right now.

The International Standards Organization (it is in Geneva but not part of the UN) develops and maintains standards for industry, the environment, etc, etc, and then its members lean on one another for compliance.

The ISO 9000 series on quality management and the ISO 14000 series on environmental management would be wonderful in static-growth economies or in economies (if you can think of any) that have already made it.

My belief as an investor and economic manager is that, because they tend to freeze things in the status quo, they are costing the world 1-2% in dynamic growth and killing entrepreneurship, risk-taking and invention..

Italy is NOT seen as a laggard in standards in the international community, and in some areas of achievement it is considered the best in the world and it pioneers certain standards.

Its justice system is already simply superb, at least from a defendant’s point of view.

That its police labs had not completed the onerous, costly and distracting process of certification means nothing except, maybe, that its scientists are more interested in the real work at hand. No Italian judges had issued any orders for the labs to comply.

And that includes Judge Massei. Judge Massei and his colleagues KNEW that the collection and testing in Meredith’s case was in general perfectly adequate.

The judges were looking at an 80,000 pound gorilla of a case - and about 75,000 pounds of that gorilla, the defenses try hard to make us ignore.

Posted by Peter Quennell on 12/08/10 at 03:41 PM | #

Please feel free to contact me on anything regarding the ISO standards.
It may seem I am blowing my own trumpet here but in my profession I know I am regarded as an expert in this field.
I work in the oil and gas industry.
I am sure you are aware that this is a very politically sensitive area and I could tell you things that would make your hair curl.
I did make a comment a short while ago on PMF and Michael put it in a slot with Catnip just before the Massei report was published.
I do not care; I will publish my name and photographs of me and my address and phone number if need be.
I just do not want to see a PR company perverting the course of justice.

Posted by Black Dog on 12/08/10 at 04:56 PM | #

Hi Black Dog. Sure thing. We should talk. I have dropped by ISO a number of times (it is about 300 meters from where I stay) and I do admire the earnest work done there.

But a huge problem in the world, one that was nearly invisible and only now becoming somewhat clearer, is the stickiness and static-ness of carefully developed systems that later bring economy-wide upgrade to a near-halt.

I can imagine the big players in the oil and gas industry wanting to look the other way, for reasons that are nothing to do with innovation!  Commendably, after the Exxon Valdez disaster, Exxon said we have to have the best systems in the industry, and I believe they do now. Right?

And the worst? Recently revealed as BP. Wow did they not want to comply. Whack whack whack with federal suits, and still they kept killing their poor people, and the poor wildlife in the Gulf of Mexico.

Posted by Peter Quennell on 12/08/10 at 05:16 PM | #

I thought I would share the news I just heard. Sky News - Amanda Knox makes a plea in court saying that she and Raffaele are innocent and the court has made a huge mistake.

Posted by Giselle on 12/11/10 at 12:47 PM | #

By Storm Roberts (Innai)

Thank you, Giselle.

If, and in my humble opinion it is a big if (I believe the first trial reached the correct conclusion based on the evidence), she is innocent she must be able to explain the physical evidence and her movements (as evidenced by witnesses and mobile phones for example).

Sadly this suggests to me that, if she is saying just she and Sollecito are innocent, the long discredited lone wolf theory might be about to resurface.

I hope this process does not drag on, I wish only for the peace that Mr. Kercher wants for his family to be achieved sooner rather than later.

Posted by Nolongeramember on 12/11/10 at 02:33 PM | #

At the very least she is showing some ‘remorse’ - not in confessing to the crime but rather acknowledging the pain caused to the Kercher family and the unspeakable pain Meredith suffered. I believe this is to counter the prosecution asking her to serve life. If the media dont know how much evidence there really is, her lawyers do. So I am guessing they want to make sure that her sentence is not increased and actually in reality they probably aim for a reduction like Guede’s.

Posted by Giselle on 12/11/10 at 02:44 PM | #

By Storm Roberts (Innai)

Guede’s sentence reduction was to bring his sentence in line with Knox and Sollecito’s.  At his appeal the Judge took the sentence for murder (24 years) handed to Knox and Sollecito and granted Guede the one third reduction he was entitled to for taking the abreviated trial. 

Like you, I am sure Knox’s lawyers are aware of what they are up against…

Posted by Nolongeramember on 12/11/10 at 04:19 PM | #

Thanks Innai - You are right, the point slipped my mind. I guess then Knox’s “emotional” speach is an attempt to counter the prosecution’s appeal to increase the sentence…

I have to say I find it quite sickening that all morning Sky News had the scroll bellow the screen displaying breaking news as Knox’s innocence plea and in all reports they seem to suggest she is right! Not objective journalism at all! They even refer to the murder weapon as the “alleged” or “supposed” murder weapon! BBC on the other hand has been a lot more objective.

Posted by Giselle on 12/11/10 at 04:59 PM | #
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