Saturday, December 18, 2010

The Appeal’s Set Limits: What The Judges Allowed Today And Didn’t Might Tell Us A Lot

Posted by TomM

[Massei court deciding whether to buy spiderman theory; they didn’t]

1. The Context Of These Remarks

The judge ruled on the appeal’s inclusions and exclusions today. I’ll summarise what they are and how American courts might have differed.

I really do not understand why the defense and the family are so happy with this review, which is very limited and not complete in any sense - other than, perhaps, the “any port in a storm” phenomenon.

From my view in the bleachers, there are way more risks to the defense than to the prosecution from Saturday’s rulings.

2. What’s Allowed In Italian Appeals V. American

As a California lawyer familiar with trials and appeals in my state, watching the Meredith Kercher murder trial wind its way through the Italian legal system has been a learning experience.

It is a system with more protections than the one I know first-hand. The case is now in its first appeal phase, and proceeds far differently from the way it would in the US.

  • If Knox and Sollecito had been convicted in an American court (which an American court would have had no difficulty in doing) less helpful presumptions would be applied to their appeal.

  • In Italy they are convicted, and for that reason they are imprisoned and the visitation privileges they had before the jury’s verdict have been reduced. But for purposes of weighing the evidence in the appeal, they are presumed innocent.

  • In the US, the court of appeal would not presume them innocent or guilty; it would regard them as having been adjudged guilty.

  • In Italy, they can ask for the court of appeal to hear testimony from new witnesses and seek to introduce additional evidence.

  • In the US, the appeal would be on the basis of the clerk’s and reporter’s transcripts of the trial. In the US the jury at the original trial would have been instructed that if an item of evidence can be interpreted two ways, one favoring guilt and one favoring innocence, they should accept the interpretation that favors innocence. But not so on appeal; the court of appeal would interpret all the inferences from the evidence in the light most favorable to the prosecution.

  • An American court of appeal would not consider an attack on the credibility of a witness unless the testimony was such that no reasonable person would believe the testimony.Thus, an attack on the testimony of Curatolo would have no chance of success on appeal. In fact, jury instruction in the US would give the jury blessing to believe him even absent disco buses running that fatal night.

From a form jury instruction on how to judge witness credibility:

“Do not automatically reject testimony just because of inconsistencies or conflicts. Consider whether the differences are important or not. People sometimes honestly forget things or make mistakes about what they remember. Also, two people may witness the same event yet see or hear it differently.”

The Italian appeal is described as a “trial de novo”.

  • In common law jurisprudence, a trial de novo is simply a new trial, and the jury in a new trial would not even be told of the existence of the first trial. It would be done as if the first trial never happened.

  • Not so in Italy. The jury and lay judges have full access to the case dossier, the Massei Motivazione, and the briefs of the parties. They decide which parts of the case should receive new evidence, and the parts where none is needed. If that were not the case, they would not know how to respond to the defense requests.

3. Tellingly, What Court Has NOT Re-opened

1. Staging Of Burglary

It is significant that there is no re-visit on the staging of the burglary. This charge is not just one of the things used to prove the murder, it is also a separate charge which does not require that a person also have participated in the murder.

Let’s suspend disbelief a moment. Suppose AK and RS had not been present during the murder, having ducked out briefly to get more drugs, but returned to discover Meredith’s body.

Suppose they thought they would be suspects because they had let Rudy in and feared they would be blamed, so they staged the burglary to divert suspicion from themselves. In this hypothetical situation, they are still guilty of staging a burglary even if they didn’t otherwise participate in the crime.

So, what to make out of the fact that no further evaluation will be made of the staging?

This seems like the easiest of the charges to prove and the most difficult to defend. Staging is a recognized phenomenon in criminal investigations and the defense expert did not fare well under cross-examination. I don’t see how the court would reverse the judgment on this issue given the state of the record.

2. Collection Of DNA

Defense criticized the way the dna was collected from the bidet, but there will be no review of that evidence - or of any other of the mixed blood/dna evidence - only the knife and the bra clasp.

If the appellate jurors’ inclination were to think there is reasonable doubt on the dna, there is plenty of defense expert testimony to hang that hat on. That only two of the exhibits will be studied shows that they do not question the work of the scientific police as a whole.

4. The Pattern Of Sorts In These Rulings

From my own experience, I firmly believe that Hellman has not made up his mind on the final outcome. That doesn’t mean he doesn’t know what he thinks the jury will do with the case.

He clearly knows the case, and I think he knows if there are areas in Massei’s reasoning that have vulnerabilities (not necessarily fatal) that could attract attention in the Court of Cassation.

I think he knows whether the prosecution’s case is a house of cards, or if it is a good case with some curable cosmetic flaws.

To me, the rulings look like the judge has reviewed the case, thinks it is fundamentally sound, and believes it will be backed up by unbiased expert opinion - and if it doesn’t,  he will assess what impact that has on the case.

The issue with respect to the scientific police is not that they were biased in the sense of falsifying evidence to wrongfully convict, but that the video of the crime scene investigation showed non-textbook acts, Stefanoni didn’t leave a complete paper trail in testing the knife,  and they failed to collect and correctly bag the bra clasp at the beginning.

All of which left an opening for the defense to claim the dna evidence is suspect. There is a reason why teachers don’t let students grade their own papers, I think that concept is behind Hellman’s decision to seek an unbiased review of these two items.

5. No Signs Of Exoneration In Rulings

If Rudy Guede testifies and gives a believable narrative, it may not matter what the two dna reviews say, and it might also undermine the jurors’ inclination to accept the theory of remorse from the covering with the quilt that persuaded Massei to reduce the sentence. 

An increased sentence is not out of the question.

As I said at the top, I really do not understand why the defense and the family are so happy with this review, which is very limited and not complete in any sense - other than, perhaps, the “any port in a storm” phenomenon.

The bra clasp evidence is not going to go away, and there is the risk that increased technical sophistication could result in identifying a complete dna profile of Amada Knox on it. If they disassemble the knife, there could be abundant blood between the handle and the blade.

Again, from my view in the bleachers, there are way more risks to the defense than to the prosecution from Saturday’s rulings.


This is from a praising email from another TJMK reader who is also a US trial lawyer.


This is a fascinating analysis from “a California lawyer familiar with trials and appeals in my state”. He sounds like a pro. He seems to share my expectations from a different perspective; his description of key differences between U.S. procedures and Italian ones is very educational.

He sees great merit in the Italian Process, highlighting ways in which the Italian way is more protective of Defendants than is the U.S. way. He corroborates the idea that it is would be preferable for a guilty person, if given the choice, to choose to be tried in Italy than in the U.S.

He shares the general TJMK belief in AK/GS/RG’s guilt, and that their chances here would be worse than in Italy. He gives no comfort to the FOA.


Posted by Peter Quennell on 12/22/10 at 06:24 AM | #

Hi Tom,

As a United States lawyer who practices law in the state of California ( isn’t California the state where Steve Moore lives?), thank you for your professional analysis on US jurisprudence as it would pertain to the Meredith Kercher case.

Your insightful observations about the Italian judicial system’s fairing on Amanda Knox, Raffaele Sollecito and Rudy Guede once again demonstrates that true justice will be served by the Italian courts to Meredith Kercher and her family.

Posted by True North on 12/22/10 at 06:50 AM | #

Coupled with The Machine’s review of the DNA evidence submitted to an independent scientific review, this summary explains rationally why the outcome of the appeal is likely to be less favourable to the defence than the Knox/Mellas clan has led observers to believe.

The prosecutors have always maintained that the key to understanding the scope of the charges against Knox and Sollecito is the staged burglary.  That element, and Knox’s self-serving thrice-confirmed accusation of murder against a man she knew to be innocent, help place the enormity of this crime into perspective.

The forensic evidence not sent for review (including the DNA mixtures and those prints not completely cleaned in the hours after the murder) directly implicate Knox.  The rejection of the “screensaver defence” is just as damning against Sollecito.

Any visitor should clip and save these two recent entries as a little guidebook to the appeals.

Posted by Stilicho on 12/22/10 at 08:54 AM | #

Great post.  I think it’s important to keep putting the case in terms that the majority of English speakers understand and keep comparing it to our own system.  This complicated case needs to be digested in small bits and articles such as this keep it easy to understand and in perspective. 

Actually it’s not that complicated…it’s basically two murderous worms wriggling on a hook but the process is complicated if you don’t understand the inquisitorial court system.

Out of interest, does anyone have the full list of things that the defence asked to be re-examined?  I know they’ve had the odd thing knocked back such as the re-examination of Sollecito’s PC harddrive, but is there anything else? 

I appreciate that the post above covers what could have been looked at.  What I’m more interested in is the “score”…if the defence asked for ten things to be looked at but have only got three, that’s not a win in anyone’s book.  In fact, that’s bordering on game over and explains the tears in court a little better. 

If the defence asked for four things and have had three accepted, then that’s a different story and makes the whole thing a little harder to call.  Having had a good scan of the media, it looks to me that even the most supportive newspapers are having a hard time putting positive spin on this so called victory without resorting to half truths and lies so I’m assuming that the overall result is not, to use an Americanism, as awesome as it first appears.

Posted by daisysteiner on 12/22/10 at 02:08 PM | #

Hi Tom,

Thank you for this excellent analysis.

There are couple points about Antonio Curatolo that need to be made.

First, Knox and Sollecito weren’t convicted of Meredith’s murder on the strength of his testimony. Sollecito’s computer and telephone records provide irrefutable proof that his last alibi is false. Curatalo’s testimony provides further confirmation of this and corroborates Knox’s claim that she was in Piazza Grimana shortly before Meredith’s murder.

Second, the disco buses are not the only buses that run from Piazza Grimana. There is a bus stop outside the basketball court. Curatolo could have seen a public bus or a private mini bus.

Posted by The Machine on 12/22/10 at 02:37 PM | #

Sorry I might be a little behind everyone here but Tom mentions in his post:“If they disassemble the knife, there could be abundant blood between the handle and the blade”.

My question is why the knife was never disassembled in the first place, any reasons?

As I said sorry if I missed something as this might have been discussed before but I wasn’t aware of that fact.

That said, thank you Tom for your great post, enough the send chills down the spine for the FOA clan!

Posted by tempusfugit on 12/22/10 at 03:52 PM | #

Hi tempusfugit. There has been a lot of chat about that knife over on PM. We will see if we can attract a post.

The notion that there might be evidence in the gap between the knife and the handle presumes that there actually is a gap. General Garofano gave the gap notion a couple of lines in “Darkness Descending” and wondered why the handle had not been disassembled.

But he had not seen or handled the actual knife and it is possible that the plastic handle is heat-sealed on - it is certainly not riveted - and that under the microscope Dr Stefanoni could see no gap.

It is worth noting that the clean-up (proved by the luminol) and the crime scene rearrangement (see our posts on Micheli) seemed to consist of dozens of discreet actions. Not complete but they were getting there.

That some of those actions seem to have left matters confused, as was their intention,  is hardly a reason to always blame the cops for their methods or to give the perps an unjust reward for those actions.

As Tom is saying, for the judges it is the entire gestalt that matters. There are actually many evidence elephants in the room though the conspiracists would like everyone to believe there are only one or two.

Posted by Peter Quennell on 12/22/10 at 04:44 PM | #

Thank you for your excellent article Tom.

@tempusfugit; regarding disassembling the double DNA Knife which is Type 2 below.

Background: My understanding is that kitchen knives of this type (used for carving, cutting, chopping etc.) come in two construction types. Both are manufactured where the metal blade and handle shaft comprise a single length of steel. Both then have an additional grip placed on the shaft/handle area to allow the user a more secure grasp when using them.

Type 1; The finished handle comprises two side bars of plastic composite or wood that are bolted or riveted onto the shaft section. Although the tolerances would by miniscule this construction type would in theory allow seepage of fluid into the cavity area between the shaft and sidebar surface area. 

Type 2: This design uses a grip in the form of a thermoplastic sheath for the handle grip that is thermally shrunk onto the metal shaft/handle section. The process effectively creates a heat sealed connection with no cavity between the metal shaft and the plastic grip. This type of design would offer little opportunity for blood to ingress under the plastic grip as theoretically there is no cavity between the plastic grip and metal shaft. The reality MAY be different due to possible imperfections in design, materials used and the production process itself.

ETA: Just noticed that Peter has covered this.

Posted by Hammerite on 12/22/10 at 05:20 PM | #


Raffaele slept with a knife mounted over his bed, is that true? Was that knife checked out?

Tom says Curatolo’s testimony will still carry weight. Good. Poetic irony if Knox and Raf were seen clearly by a loner, as they both seem like loners. The heart is a lonely hunter.

Gotta dash. Merry Christmas to all!

Posted by Hopeful on 12/22/10 at 05:39 PM | #

Thank you both Hammerite and Peter for your thorough explanation re this matter, much appreciated!

I can’t wait for the court final outcome on this knife as well as the bra clasp but I suspect that if the knife is ruled as the murder weapon FOA will be screaming planted evidence or contamination right left and centre…they will never tolerate the truth!

Posted by tempusfugit on 12/22/10 at 05:57 PM | #

Hi Hammerite “ETA: Just noticed that Peter has covered this.”

Only in the sense that I was attempting to channel your fascinating deductions on PMF and it turns out you channel yourself much better.

A full post with images sure would help us all a lot.

Posted by Peter Quennell on 12/22/10 at 06:09 PM | #

@ tempusfugit

You are absolutely right with that. Steve Moore already made a comment with regard to the re-testing. He said that the way the evidence was collected was wrong and therefore the results were not reliable. He remarked that re-examining the results or re-testing the collected evidence will therefore be not effective.

With that they are already setting the stage in case the two items are confirmed as being reliable evidence from the court. They will still claim contamination, clearly.

Posted by Nell on 12/22/10 at 11:11 PM | #

@Nell, Steve more is joke, his wife is a bigger joke, they are both a disgrace to humanity! We should ignore them!

Posted by tempusfugit on 12/23/10 at 02:23 AM | #

@tempusfugit & hammerite:

I had also wondered why the knife had not been disassembled to look for hidden DNA beneath the handle, but I recently saw a photo of the knife that made it look like the heat sealed variety.  I can’t remember if the photo was on this website or an older blog, as I am still sifting through all I can find on the case.

Also, I agree with Peter that even without all the DNA evidence that there are enough “evidence elephants” in the room, or what I believe is commonly known as the “Duck Theory”, i.e., “If it looks like a duck, walks like a duck and quacks like a duck then it’s a duck”.  The circumstantial evidence was strong enough to have led the the police to suspect Knox, Sollecito and Guede to be the perpetrators, and that is what led to their DNA samples being taken and tested and compared to the DNA at the crime scene.  Three ducks for sure, and their inconsistent alibis and non-corroborating evidence have made them “sitting ducks”, at that.

Posted by Mo-in-Mass.,USA on 12/23/10 at 05:56 AM | #
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