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How and why the Italian Supreme Court got it wrong
“It is not our abilities that show what we truly are. It is our choices.” – J K Rowling
Trial of the century
On September 30th the eyes of the world will be on Florence for round four of the trial of the century following the March 25th decision by the Italian Supreme Court to overturn the acquittal of Amanda Knox and Raffaele Sollecito. They were accused of the murder of Croydon student Meredith Kercher in Perugia, Italy in 2007 and had been declared, ‘not guilty’ in a second trial overseen by Judge Pratillo Hellmann in 2011 after being convicted in an earlier trial in 2009. Are you with me so far?
The Supreme Court has now made public the reasoning behind the reversal and it makes for surprising reading. This ‘motivation report’ will be used by the judge at a new trial in Florence, where the reinstated charges will be heard. Because Amanda’s calunnia (criminal slander) conviction has been confirmed by the Supreme Court, her defence lawyers will not be able to argue that she is innocent of this charge as well as the others so they will have the additional burden of defending her as a convicted criminal, while arguing for her innocence on the substantive charges. Meanwhile, the calunnia conviction may be appealed to the European Court of Human Rights, domestic avenues having been exhausted.
The continuing saga underlines the status of the Meredith Kercher murder as the most controversial, mishandled and misunderstood crime of the twenty first century. There are several reasons for this, but at its core, the problem lies with the dysfunctional Italian justice system which has the characteristics of both a lottery and a quagmire. It is perhaps gruesomely appropriate, that Harry Potter fans Knox and Sollecito should have had to face a genuine Chamber of Horrors on the path to their ultimate redemption that will now take many more years to achieve.
Justice, Italian style
Italian jurisprudence is dangerous territory. The country is littered with the remains of the lives of innocent people who have had the misfortune to become entangled in its legal processes. It has the dubious distinction of being the Western European country with the highest number of negative judgements made against it by the European Court of Human Rights – and by a considerable margin. This means that many of its citizens have been bankrupted and have only achieved redress years later and thousands of pounds poorer after judges outside Italy have overturned unjust decisions.
Although reformed in recent years, with the intention of making trials adversarial, the Italian system is historically inquisitorial and many of its practitioners behave as if it still is. The examining magistrate takes on the role of chief investigator as well as district attorney. The judge sits with a citizen jury but calls the shots. Once charged, the accused is effectively required to prove innocence, rather than the prosecution prove guilt. Trials progress through three levels, ending with Cassation or Supreme Court. Verdicts at each level can be appealed by both sides and the Supreme Court can reverse a verdict and begin the process again, as we have seen recently with the Kercher case.
A 2012 report said that mechanisms put in place to fight corruption in Italy are easily circumvented, while the country’s legal framework is often complex, contradictory and at times “controversially implemented.” Italy falls short on many counts, said Lorenzo Segato, director of the Research Centre on Security and Crime, based in Torri di Quartesolo, which carried out the study for global anti-corruption agency Transparency International. Problems include questionable institutional integrity, weak control mechanisms, biased news media and a social code that condones certain illegalities.
Currently Italy has a backlog of around nine million legal cases, 5.5 million civil and 3.4 million criminal. The state paid 84 million euros in compensation for miscarriages of justice and legal delays in 2011 when there were nearly 50,000 such claims compared to 3,500 in 2003. Another 46 million euros was paid out to people unjustly thrown in jail. Some 42 percent of those in jail or 28,000 people, are awaiting trial and the prison population is 68,000 housed in institutions intended for 45,000. There are 1.39 Italian Judges for every ten thousand inhabitants, compared with the average of 0.91 in other European countries. Italy ranks 155th out of 178 countries surveyed for the Efficiency of Justice (2007 Annual Report, the World Bank). Court processes last on average 116 months in Italy, against 34 months in Austria and delays are increasing year on year. Between 1975 and 2004, the duration of civil cases has increased by 90%.
Between 1999 and 2007 the European Court ruled against Italy 948 times for failing to meet the timing of a fair trial. It is estimated that in each case at least two defendants are involved, so 16 million Italians, or one in four of the population, have pending cases. Less than one per cent of corrupt or incompetent judges lose their jobs. Between 1999 and 2006, 1,010 disciplinary proceedings have been carried out but only six judges have been sacked.
This is the backdrop to the Kercher case, so in many ways it is not unusual for Italy. What is unusual is the international spotlight that has been shone on the country’s judicial shortcomings because of it.
Meredith Kercher and a rush to justice
In the early afternoon of Friday November 2nd 2007, Meredith Kercher’s lifeless body was discovered behind the locked door of her room in the flat she shared with American Amanda Knox and two Italian women. She had been stabbed three times in the neck. Four days, or 96 hours later, local police declared ‘case closed’ and three suspects were driven to prison. One, local bar owner Patrick Lumumba, was released without charge two weeks later. The other two, Knox and her then boyfriend Raffaele Sollecito, were to spend the next four years in jail before being acquitted in 2011.
Controversial prosecutor Giuliano Mignini and his police accomplices had decided almost as soon as Meredith’s cold body was found that Amanda Knox was probably the murderer, so she became a suspect on day one. The reason for this has never been satisfactorily explained. There was no analysed forensic evidence at the time and there was nothing in the behaviour of either Knox or her boyfriend Raffaele Sollecito that would have led a competent investigator to assume that they were involved.
The case has been plagued by post-hoc rationalisation and the nature of the crime and the degree of media interest in the case has fostered this. Much was made of a comforting kiss between Sollecito and Knox outside the villa because it was filmed and subsequently repeated on television endlessly. Knox was said not to have been emotional enough (not true), an accusation that similarly haunted Australian mother Lindy Chamberlain who was unjustly accused of murdering her baby near Ayres Rock, Australia, thirty years ago. A yoga stretch carried out by Knox while she was waiting in the questura was commented on, but none of these things had anything to do with innocence or guilt and in any case, guilty people are unlikely to draw attention to themselves, so these actions actually imply innocence.
The investigation was carried out by the local police instead of the more competent Carabinieri and ‘instinct’ and ‘intuition’ were claimed as virtues that enabled them to by-pass more conventional and reliable evidence gathering techniques. Investigator Fabio Giobbi, a department head at the Via Tuscolana offices of the forensic police is even reported as stating, “We knew they (Knox and Sollecito) were guilty because they were eating pizza”.
By the time that Knox and Sollecito were arrested, 96 hours after Meredith’s body was discovered, they had already been in the presence of the police and answering questions for 43 hours. Meanwhile, the press was being briefed daily. Stories appeared that implied that an arrest was imminent and that one of the suspects was a woman who was close to the victim. This news appeared in London newspapers on Sunday November 4th so a briefing to this effect must have taken place a mere 24 hours after Meredith’s body was found. One Italian internet forum poster, the aptly named, ‘Machiavelli’ who claims to be close to the prosecution, recently confirmed that the police targeted Knox and Sollecito from the word ‘go’.
Of course Knox and Sollecito had no idea that they were suspects and had not even availed themselves of legal representation, unlike Knox’s Italian flat mates who were less naïve about the workings of local justice. Meanwhile, all Meredith’s English friends had departed home as quickly as they could.
Some members of the police were clearly unhappy about the way the students were being set up and one gave a lawyer’s business card to Sollecito. Meanwhile Knox’s mother had told her to contact the American Embassy and her German aunt had told her to leave for Germany. She had refused because she wanted to help the police to find the killer.
The interrogation
Knox and Sollecito both had alibis for the night of the murder – they were with each other. Therefore, they both had to be charged or the one who remained free – Sollecito – would testify for the defence. This had to be avoided at all costs if the plan to convict Knox was to succeed. Ideally, Sollecito – ‘the forgotten man’ of the case, could be persuaded to turn on Knox and drop the alibi. He was put in solitary confinement for six months in an attempt to achieve this and he records in his book that the prosecution was still pursuing a secret deal in 2010, before the second trial when he was offered (through intermediaries) a more lenient sentence if he dropped his defence of Knox and instead accused her of murder.
It can be confidently assumed neither of the suspects made any incriminating phone calls in the days after the murder because the police were listening in, though all recordings and transcripts have been conveniently lost. What Mignini’s phone tap operation did tell him was that Knox’s mother was due in town on Tuesday the 6th and her presence would ensure that her daughter was properly represented from then on. It was vital to strike in advance of this and a team of interrogators from Rome was shipped in with the intention of securing confessions from the pair.
The scene was set for the infamous all-night interrogation of November 5th/6th which led to three arrests. Many commentators such as FBI veteran Steve Moore have condemned this event because it was clearly set up to create spurious grounds for arrest in advance of forensic test results from the crime scene. Moore said, “If you’re trying to determine facts and truth, you want your suspect clear, lucid and awake. If you want to coerce your suspect into saying what you want them to say, you want them disoriented, groggy and confused.”
“Amanda Knox was interrogated for 8 hours. Overnight. Without food or water. In a police station. In a foreign country. In a foreign language. By a dozen different officers. Without being allowed a lawyer. The reason they interrogated Amanda all night was to break her. Not get the truth, not get answers, not make Perugia safer; but to break her so that she would say what they wanted her to say.”
“They used a technique that I unfortunately became aware of while serving overseas in counter-terrorism. We used to call it “tag-teaming”. It takes dozens of operatives/officers to make it work. Two officers are assigned for approximately an hour at a time to the suspect. Their prime responsibility is simply to keep the person awake and agitated. They do this for only an hour, because it takes a lot out of the detectives. After an hour, a fresh pair of “interrogators” comes in. Again, the questions they ask are secondary to their main task—keep the person awake and afraid. By tag-teaming every hour, the interrogators remain fresh, energetic and on-task. The suspect, however, becomes increasingly exhausted, confused by different questions from dozens of different interrogators, and prays for the interrogation to end. In extreme cases, people can become so disoriented that they forget where they are.”
This was the technique that was used on Knox but it failed to secure a ‘confession’. However, it did provide her interrogators with a confused, signed statement that they used as a pretext to arrest her and Sollecito as well as her boss Lumumba and keep them in prison.
Moore again: “This is an innocent college girl subjected to the most aggressive and heinous interrogation techniques the police could utilize (yet not leave marks.) She became confused, she empathized with her captors, she doubted herself in some ways, but in the end her strength of character and her unshakable knowledge of her innocence carried her through. It’s time that the real criminals were prosecuted.”
Amanda Knox: criminal genius or fall guy?
The story Knox signed was a piece of fiction written for her by the police and it started a legal process that shows no sign of being close to conclusion. One commentator parodied the interrogation thus:
‘We know you’re protecting somebody. No you can’t have a lawyer. Take that! You will go to prison for 30 years. See here, you agreed to meet somebody’. (Etc. ad nauseam for hours.)
‘OK – it was Patrick’
‘Great, thanks. That will be three years in prison. Have a cup of tea. And don’t accuse us of doing anything wrong or we sue for slander at the taxpayer’s expense and you can defend yourself out of your own pocket.’
An internet search brings up a wealth of information on the subject of false confessions and they have played a part in many notorious injustices. The confused statement that was coerced from Knox, together with further statements she wrote later on the 6th, have blinded many to the monstrous nature of what was done to her. The arrest of Knox and Sollecito derailed the case irrevocably. Their defence lawyers, families and friends have been struggling to overcome this ever since.
The question of why Knox was eventually convicted has nothing to do with evidence or her courtroom behaviour or her attire. She was doomed from the moment the police announced ‘case closed’ the day of her arrest. From that moment on only two outcomes were possible:
1. She is ‘not guilty’, therefore police behaviour must have been criminal. Police actions were recorded by Knox in a note after she was arrested and in a letter to her lawyers. This means that prosecutor Mignini and the police knowingly coerced a statement from her so that they could arrest her, Sollecito and Lumumba. All their actions flow from the statement that they created and Knox was forced to sign.
2. She is guilty so she must be a devious criminal who succeeded in manipulating heroic policemen into arresting an innocent man. Furthermore, she keeps lying about being beaten and abused during her interrogation.
Even if she had acted perfectly properly, uttered only the expected pleas of innocence, there is no way that the Perugian judicial clique would have let the flying squad heroes and a popular prosecutor go down for her.
If the prosecution is so sure that Knox spontaneously accused her boss Lumumba during her ‘interview’ and was not hit on the head, why don’t they simply release the recordings and prove their case? Easy! Well, they claim that there was no recording and at various times, prosecutor Mignini has blamed broken equipment, forgetfulness and budget constraints. This is surprising, as this was the highest profile crime in Perugia for years and Mignini’s budget was already being used to tap the phones of the suspects and he continued to monitor the phones of Sollecito’s family for years afterwards – to the tune of an astonishing 39,000 calls.
The mystery of the disappearing tapes
In fact there is good evidence that the interrogation was recorded but the tapes have ‘disappeared’. Sunday Times journalist John Follain has been close to the prosecution from the start. His book, ‘Death in Perugia’ is slanted to favour the prosecution’s view of the case. Follain’s feature interview with Knox’s parents and sister, Deanna, published in June 2008 included the claim that Knox had been hit while being interrogated and led directly to her parents Edda Mellas and Curt Knox being charged with criminal slander themselves.
But Follain’s interview included another tantalising phrase: “Only a small part of Knox’s taped statement has been leaked to the media; the full transcript hasn’t surfaced”. Did Follain make this up? This is unlikely. Did he know that the interrogation had been recorded? He probably did. It would not be a stretch to call him a friend of the prosecutor. The subsequent disappearance of the recording can only mean that Knox was telling the truth all along but her truth cannot be allowed out in Italy.
Acres of newsprint and thousands of blogs and articles have been written about the case since 2007 but in the end the perspective of every writer comes back to his or her take on the interrogation. All the reliable evidence that has emerged since then points to Rudy Guede as the murderer and him alone. Evidence against Knox and Sollecito is purely circumstantial. So-called DNA evidence and witness testimony has all been discredited.
What caused Mignini to suspect Knox?
We may never know why the investigation was derailed from the start but disturbing clues have come to light. Rudy Guede had been abandoned by his father and adopted by a wealthy local family whose company makes drinks vending machines and whose patriarch is influential in the town. In the weeks before the murder Guede had been caught after breaking and entering into several premises and stealing valuables including at least one lap top computer belonging to a lawyer. Knox and Kercher’s flat mates were trainee lawyers and one, Filomena Romanelli wandered into the flat after the murder and removed her own computer from the crime scene. Guede had been arrested in Milan in the week before the murder but was released on instructions from the police in Perugia.
These acts inevitably give rise to unanswered questions. Was Guede stealing computers from lawyers on the instructions of other criminals or persons close to law enforcement? Did someone in authority know of Guede’s involvement and immediately seek to minimise it? If this is true, Knox and Sollecito, both being foreign to the town (Sollecito is from Bari in southern Italy) and both being without lawyers, were the best people to frame and were setting themselves up because of their naivety. The scale of the vilification of Knox and Sollecito, both in court and online combined with the astonishingly light sentence meted out to Guede has led many observers to conclude that he has powerful defenders in Perugia. We may never know if a conspiracy exists, but all the pieces are in place.
An early indication that the investigation was going awry was when prosecutor Mignini instructed pathologist Luca Lalli not to take the body temperature at the earliest opportunity. This omission would help to prevent the time of death from being accurately determined and so allow maximum flexibility to fit suspects to the crime. Lalli was subsequently dismissed from the investigation after talking to the media, a sanction that has never been applied to anyone who agrees with Mignini.
The other major early mistake, or deliberately wrong decision made by the investigators was to declare that the broken window in Filomena’s room caused by a thrown rock was not evidence of a break-in but of a cover up. Detectives must have known that this method of entry was already Guede’s preferred choice. The only plausible reason for them to claim that the break-in was faked, was to divert attention away from Guede who had not been named as a suspect at this point.
Numerous other smears were used by the police and prosecution, such as claiming that Sollecito had called the Carabinieri after the local police had already arrived. Phone records and evidence that a CCTV camera timer was wrong easily proved that this was not the case. There is a catalogue of misunderstandings that were twisted. Did Meredith always lock her door or not, why did Knox mention Guede’s unflushed faeces in the second bathroom (because it proved that there had been an intruder, maybe?), did Knox know things that only the murderer would have known? (er, no). The key question that the investigators seemingly failed to ask was why did Knox and Sollecito go to the cottage and call the police to report the burglary? They had planned a trip to Gubbio that day. Surely if they were guilty they would have gone straight from Sollecito’s apartment to Gubbio, Knox would not have returned to her flat for a shower and somebody else would have raised the alarm. And you can bet that they would have found lawyers as well.
Two trials and the Supreme Court
On March 25th the acquittal of Knox and Sollecito was overturned and Knox’s guilty verdict for criminal slander for accusing Lumumba during her illegal interrogation was confirmed. The reasoning behind the court’s decisions has now been translated.
Chillingly, the first thing that strikes home is the front page which states that the appeal is proposed by, “The Procuratore Generale for the Appeal Court of Perugia” and five individually named members of the Kercher family: Meredith’s parents, sister and two brothers. If Meredith Kercher had been murdered in Britain or the USA, persons accused of the crime would be prosecuted by the state alone. The victim’s family would observe the proceedings, would be kept informed, but would take no direct part in the prosecution. They would sit at the side and hope to see justice done. In Italy things are different. The Kercher family was advised to employ their own lawyer, Francesco Maresca. On their instructions he is prosecuting Knox and Sollecito alongside the state. In many ways he is more outspoken and even more vicious than Mignini has been.
The Kerchers have been praised for their dignity since the death of Meredith and no one should ever forget their loss. But they are not sitting on the sidelines watching the process and hoping it reaches a just conclusion. They have already decided what the conclusion should be and they have instructing a lawyer to fight for it. Doubtless they have been ill advised and they must be sincere in their views, but when they say they are still seeking the answer to the question of who killed Meredith, there can be no doubt of the answer they seek. It is nothing less than the further incarceration of Knox and Sollecito – two innocent people. For many observers, that is a step too far.
The Supreme Court has ruled on matters of evidence and detail and has not restricted itself to considering whether the appeal process was correctly administered. This shocking judgment infuriated Judge Hellmann who presided over the acquittal. He said, “The judges of the Supreme Court incorrectly ruled on matters of substance” and added, “They handed down a ready-made judgment to the Court of Assizes of Florence, telling them what they must do in order to convict the two defendants.”
Hellmann firmly defended his court’s judgment: “In the small bedroom where there was supposed to have been a struggle, an erotic game that escalated into an orgy and finally the stabbing of Meredith, there was not one single biological trace of Knox and Sollecito, while there were abundant traces of Guede: it is impossible that the two students were able to erase their tracks and leave behind only those of Rudy”.
The reasoning of the Supreme Court is clear. It had already ruled that Guede, who had his own fast track trial, had acted with others, so it reduced his sentence, in two stages, from 30 to a mere 16 years. The Knox and Sollecito acquittal is therefore inconsistent with its ruling on Guede. So Knox and Sollecito have to be guilty, regardless of the evidence. The Supreme Court has delved into the evidence that was carefully considered by Hellmann’s court and has dismissed everything that demolished the prosecution case.
Furthermore, the Supreme Court has rehabilitated all the discredited witnesses and faulty forensics that have characterised this charade of a case. What does this mean? Careful consideration of evidence is not required; reason and logic are not to play a part in this process. The fact that Guede has a sentence of a mere 16 years shows in and of itself that Sollecito and Knox must be guilty. Case closed.
The Supreme Court also confirmed the guilty verdict against Knox for the slander charge. One strand of Italian logic says that because Knox is guilty of accusing the wrong man, Lumumba (even if under duress), this must mean that she has knowledge of the crime and therefore must have been one of the perpetrators.
Italian justice triumphs again
The Italian system has succeeded in financially destroying two families. The money from Knox’s book deal has already been used to pay her legal team for defending her through two trials and a Supreme Court appeal. Sollecito’s previously wealthy family has been impoverished and he has launched a ‘gofundme’ website. The length of the process itself adds psychological torture. Meanwhile, Guede will be out of prison and free to murder and rob again in less than two years.
The court now wants Knox and Sollecito to prove that they were not part of a multiple attack, when there is no evidence to show that they were even in the room when the murder occurred. The prosecution theory of multiple attackers has never looked credible since no forensic evidence implicating any other party has ever been produced. In essence, Knox and Sollecito are being required to identify the “real” accomplices of Guede before they can be acquitted. When they fail to find these fictitious people, then they must themselves be the accomplices – because the court has decided that there were accomplices. This is circular logic unworthy of a five year old, much less justices of the highest court in Italy.
Everything is reversed in this case, the innocent are persecuted, the guilty are protected, the burden of proof is on the defendant not the prosecution and a decision at a separate trial to which Knox and Sollecito were not party is being used to trump a verdict in their own trial.
Raffaele Sollecito has issued a statement that talks of numerous errors, or ‘horrors’ in the Supreme Court judgment and has complained that all the work of his defence team and their specialist consultants, in demolishing the prosecution case that was accepted by Hellmann, has been swept aside. He has published a detailed rebuttal of the Supreme Court points on his website.
Retired Seattle Judge Michael Heavey, knows Knox. His daughter car pooled with her when they were both at high school. He now tours Rotary Clubs and talks about the case. When he learned of the Supreme Court decision he said, “In an effort to save face, The Italian Supreme court joined the prosecution and police in Perugia who perpetuated these false accusations. The Italian Supreme Court (judges) have become criminals themselves. They continued the abuse of two good young people . . . in my opinion they have disgraced themselves as jurists. They continue the disgrace of their country.”
An appeal to the European Court of Human Rights is beginning to look like a racing certainty and with Knox’s slander conviction confirmed by the Supreme Court, an appeal against this verdict could be lodged immediately.
On June 27th a reporter on Italian news magazine Oggi wrote, “I’m not a lawyer, but I can make a simple prediction. Since at present there is no new evidence or new witnesses, the judges of Florence will announce a guilty verdict and will go straight to sentencing. If they do not do this and find the defendants ‘not guilty’ the Supreme Court will annul the acquittal again. . . The extraordinary thing is that the chief suspect, Amanda, is living in the U.S.A. while the defendant against whom there is minimal, highly fragile evidence, Raffaele, would return to prison. Meanwhile the only definitively guilty murderer, Rudy Guede, who chose an expedited trial, will be released in a few years – a true masterpiece of the (usual) Italian justice.”
July 9th 2013 was Amanda Knox’s 26th birthday. It was also the day when the start date of her and Sollecito’s next trial was announced: September 30th. The Italians have their own peculiar brand of humour.