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“Justice is rather the activity of truth, than a virtue in itself. Truth tells us what is due to others, and justice renders that due. Injustice is acting a lie.” – Horace Walpole
The Meredith Kercher murder case has transfixed the media in three countries for six years and public interest shows no signs of waning. Most coverage has been superficial and misleading. As the conclusion of the third trial approaches, Nigel Scott explains why he believes that Amanda Knox and Raffaele Sollecito are battling an unprecedented and possibly unique combination of obstacles to justice.
The problem of Italian justice
Italian justice is at a crossroads. Italy has the dubious distinction of being the Western European country with the highest number of negative judgments made against it by the European Court of Human Rights – and by a considerable margin. Many of its citizens have only secured justice after years of struggle when judges outside Italy have corrected multiple wrong decisions.
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 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, there were 1,010 disciplinary proceedings but only six judges were sacked.
Italian jurisprudence is in thrall to dietrologia, rather than Occam’s Razor. This means that a complicated, unlikely crime scenario is preferred to a straightforward one. Its mechanisms are largely inherited from Mussolini. The courts are virtually untouchable and provide a counterbalance to corruptible and frequently changing governments. With near absolute power and no political interference, the law is controlled by the ‘Party of the Prosecutors’, an informal alliance of magistrates who often put saving face ahead of justice. This is the context of the railroading of Amanda Knox and Raffaele Sollecito. Once this is understood, the apparent twists and turns inherent in the Italian process become almost comprehensible.
A simple crime is made complicated
It should have been an open and shut case. Burglar breaks in through upper window; resident comes home unexpectedly; there is a fight and the burglar fatally stabs and sexually assaults the resident; burglar flees, leaving prints and DNA at the scene. Burglar is arrested and convicted. No credible evidence points to anyone else.
This is the story of the murder of Meredith Kercher, in Perugia, Italy in 2007. The local police and prosecutor initially focused on two innocent students, American Amanda Knox and her Italian boyfriend of one week, Raffaele Sollecito. They were convicted in 2009 and acquitted on appeal in 2011. In 2013 the Italian Supreme Court overturned the acquittal and ordered a fresh appeal at which they are expected to be convicted at its conclusion this week.
Many factors have conspired to bring about this judicial nightmare. The foundations for more than six years of anguish for two people were laid on the day Meredith’s lifeless body was revealed behind her locked bedroom door.
1. The investigation is run by the prosecutor
In Italy the prosecutor directs the investigation. Prosecutor Mignini had been charged with abuse of office for the wiretapping extravaganza he authorised when he was investigating the Monster of Florence serial killer case. The Kercher murder offered him a diversion and a chance to rebuild his reputation. The charges against him have now largely evaporated, but this is due to Italian judicial ‘incompetence’, not because they were disproved.
Knox and Sollecito were suspected because of ‘intuition’ not fact and they were arrested at a time when there was no evidence. Subsequent evidence has been disproved but suspicion remains – the ‘no smoke without fire’ argument.
2. Knox and Sollecito were arrested following illegal interrogations
The police claim that Knox and Sollecito did not become suspects until part way through all night interviews that were not recorded, although this is required by Italian law. This is disingenuous. They had been treated as suspects, though they did not realise this, from day one. Their phones were tapped and their eventual interrogation was led by a team of specialists who had been brought in from Rome. Although the Supreme Court ruled that the statements that resulted were inadmissible at trial, by then they had served the purpose of securing arrests and four year incarcerations. The evidence, or lack of evidence was to come later.
3. Pre trial detention
Knox and Sollecito were held in custody for a year before they were formally charged. In the USA, suspects have to be charged within two days or released. In the UK there have been fierce debates over the principle of holding even suspected terrorists uncharged beyond 14 days. When you are in custody you are unable to speak to the media and defend yourself and you are unable to work effectively with your lawyers to prepare your case. The prosecution in Perugia took full advantage of this. They continued to play tricks on the defendants to pressurise them into implicating themselves and each other.
Knox was told that she had been tested and was HIV positive, which was a lie intended to make her reveal a (non existent) sexual relationship with murderer Rudy Guede. Both defendants had diaries and notebooks stolen and leaked. Conversations between them and their families were secretly recorded, mistranslated and released to the press. Sollecito’s whole family had their phone calls intercepted and over thirty thousand calls were monitored. Although Knox and Sollecito were confused, they stuck to the truth and this ultimately saved them.
4. Police incompetence/corruption
The Perugian police philosophy is that the ends justify the means. Once a ‘guilty’ suspect has been identified, the required evidence appears. Police and forensics teams followed the prosecutor’s lead and either destroyed or failed to collect anything exculpatory while producing what can only be described as fabrications that have subsequently been discredited – the knife, the bra clasp, the bathmat footprint, the so-called mixed blood that was really Meredith’s blood smeared around so that the swab collected Amanda’s DNA from her own bathroom. These evidentiary myths have achieved totemic status and have been endlessly debated by internet bloggers and trolls.
5. Worldwide media coverage
For tabloid newspapers throughout the world, this case was irresistible. In Italy there is no restriction on what can be written about suspected criminals before and during a trial, so highly prejudicial coverage was and continues to be the norm. What the UK media did to Christopher Jefferies for two days, has been done to Amanda Knox and Raffaele Sollecito for six years. Journalists did not merely invent stories; they were fed with misinformation by the prosecution.
6. Confirmation bias.
Once people are arrested, confirmation bias sets in. “Well they must have done something. The police wouldn’t arrest them for nothing. The police deserve support. They know what they are doing.” This was amplified by a PR operation from the prosecutor’s office via tame journalists in Perugia to the waiting world. Many Italian based journalists swallowed prosecution spin wholesale and continue to do so. Serious investigation was largely the work of American television networks which were more sympathetic to Knox and had the resources to challenge and unpick the evidence.
7. Jury not sequestered.
Juries in Italy are not sequestered so they follow the case through biased media coverage as well as in court. In fact, jurors are encouraged to read as widely as possible, making court attendance almost a distraction from wall to wall newspaper and internet coverage. Jurors who have ‘researched’ cases on the internet in this way in the UK have been sent to prison.
8. Scientific evidence corrupted.
Italy’s use of so-called low copy DNA evidence in this case has shocked the scientific world. Incompetent technicians tested contaminated samples by overriding machine controls in a lab that was not of the required standard for this type of work. In Knox and Sollecito’s first appeal, independent experts called in by Judge Hellmann demolished this bogus DNA evidence. The Italian Supreme Court subsequently dismissed this expert testimony, reinstated the flawed evidence and demonstrating no understanding of science, demanded that contamination be ‘proved’ by the defence.
9. Kercher family pursuing civil case in parallel with criminal trials.
In the UK and the USA we are used to the state prosecuting offenders. In Italy it is common for the families of victims to pursue parallel civil cases at the same time, in the same courts before the same judges and juries. This means that defence teams can face two or three teams of lawyers who are all given their turn to defame the accused with ever more lurid presentations of how they believe the crime was carried out.
The Kerchers were advised to hire their own lawyer, Francesco Maresca, as soon as they set foot in Italy following Meredith’s murder. He has insulated and isolated them from the facts of the case and has proved to be a more inflammatory advocate against Knox and Sollecito than the state’s own lawyers. Although the Kercher family has attempted to remain aloof from the day to day court battles, Maresca has arranged for letters and stories from the family to appear at strategic moments in the process. This would not be allowed in the UK or USA.
10. What Italian courts allow.
Advocates from England or the USA would be shocked by what their colleagues in Italy are allowed to do. Disproved evidence is reintroduced in subsequent hearings as ‘fact’ and as if it is still valid. Invented scenarios are presented to the court complete with imagined conversations, as if they represent what actually took place. Key witnesses, like murderer Rudy Guede are not even cross-examined at the trial of those who are alleged to be his co-conspirators. In the first trial a 20-minute computer generated cartoon film of the prosecution’s view of the murder scenario was shown as if it was a credible reconstruction of the crime. It cost 182.000 Eu to make and the cost was billed to the defendants. It was not placed in the trial record and has never been seen since.
11. Internet hate campaign using lies and orchestrated by Harry Rag.
The Internet has come of age with this case. Articles, blogs and comments have proliferated. Hate sites against the defendants were set up and still flourish. A Google search for Amanda Knox finds over thirtyfour million hits. Prominent pro-innocence campaigners unashamedly post using their real names. Pro-guilt campaigners are different. Most use fake identities and seem afraid to reveal themselves. The torch bearer for the haters, one ‘Harry Rag’ also known as ‘The Machine’ has cut and pasted a list of disproved lies beneath every article and blog he and his acolytes can find, for over five years. The effect of this one man vilification campaign is hard to assess. Public opinion, here and in Italy must have an indirect impact on the courts. Harry is on a mission and his mission is not about truth and justice. Given the damage he has done, it seems likely that his real name will be in the public domain eventually.
12. Italian Supreme Court ruling and double jeopardy.
In March 2013 The Italian Supreme Court set aside Knox and Sollecito’s 2011 acquittal and ordered a fresh appeal. Its grounds for doing so have been criticised by Hellmann who presided over the 2011 trial because it has meddled in the facts of the case, rather than fulfilling its constitutional role of ensuring that correct procedures were followed. Its motivation report is a facsimile of the prosecution’s summary of disproved evidence from the first trial. It has ordered the new trial judge, Nencini, to deliver guilty verdicts.
Its judgment is further compromised by its attempt to reconcile the already confirmed verdict against Rudy Guede which stated that he acted with others, with Hellmann’s view that Guede probably acted alone and in any case without Knox and Sollecito, so Nencini is expected to reinsert them into the Supreme Court’s scenario.
Many observers in the USA and elsewhere believe that Italy operates a double-jeopardy system. The defendants were held in prison for four years, the first two, before conviction, allegedly because they were flight risks and because they might kill again. They were released on acquittal in 2011 and remain at large because, in the words of Judge Hellmann, ‘they did not commit the crime’. This is a step beyond a simple acquittal for lack of evidence and any future attempt to extradite Knox or reincarcerate Sollecito will be seen as double jeopardy in action. If the legal process had not reached a conclusion in 2011, why were they released?
13. Italian ‘face saving’.
Italy has been embarrassed throughout the world by this case, but none are more embarrassed than the Italian lawyers who prosecuted it and are implicated in every mistake along the way. Justice is highly politicised in Italy and the ‘Party of the Prosecutors’ is an informal alliance that exercises enormous influence at very level, hence the overturning of Hellmann’s acquittal. Nencini could try and reach a compromise verdict that saves face for the country without requiring further jail time for Knox or Sollecito. This is unlikely to satisfy the innocent former students, so the European Court of Human Rights will likely be the eventual destination for the next phase of this ‘trial of the century’.
Italian justice is on trial
We wait to see if Judge Nencini has the courage to deliver an honest verdict or is in thrall to a system that places itself above justice. In the UK, we have been there. Lord Denning said when referring to the Birmingham Six case, “It is better that an innocent man serves a life sentence than the law is seen to be making grave errors”. Is this Italy today?