The idea is that the justice system in Italy is invested in the guilty verdicts of Amanda Knox and her former boyfriend for reasons of institutional integrity. Their guilt is mandated because that was the narrative leading to the conviction in a separate trial in the Italian courts of Rudy Guede, the real perpetrator.
Here in the US, we wouldn’t hold Amanda Knox to a fact finding from a trial in which she was not a party or did not have the opportunity to contest. These are the rules of a doctrine known as collateral estoppel. Or more recently “issue preclusion”.
Now it may be that the law in Italy doesn’t have such a doctrine. Or rather, it recognizes issue preclusion but will apply it whether the person precluded had an opportunity to be heard or not. I don’t know. And actually, come to think of it, I don’t know if Amanda Knox had an opportunity to be heard at Rudy Guede’s trial. Maybe she did, because it seems it works differently over there – you can make yourself a party to someone else’s criminal prosecution, maybe if you can demonstrate some kind of personal stake in it.
This is all kind of interesting from a lawyer’s standpoint.
But let’s give Italy’s law the benefit of the doubt. If they give Knox the opportunity to be heard in Rudy Guede’s trial and she passes it up, well then that’s her opportunity to be heard. Now they hold her bound to whatever facts might be found against her at that trial. She will no longer be heard to contest them. And this is one of those odd situations where for technical legal reasons a fact is deemed to be true regardless of whether it really is. That is possible in our system, too. For example, a fact in a civil case that is formally admitted in a pleading is legally true regardless of whether it’s actually true. Or, a person can be found “not guilty” at his trial and in fact he is guilty.
Now, it might be surprising to some, but I have a little bit of sympathy for the institutional concern. It would be a terribly unfortunate thing for Amanda Knox to be technically, legally guilty without being actually guilty, but the high courts in Italy could be legitimately worried about what happens in other cases. In this case, the law works a wrong; but if you disregard it in this case and set a new precedent, then the new precedent could just as easily work a bigger wrong in another case. If the Italian courts allow peripheral potentially accused persons to be heard in the criminal trial of another person, then I suppose Amanda Knox’s lawyer(s) in Italy should have taken that into account when Rudy Guede was put on trial. So you might argue that they screwed up and put her in a position where she had no chance to be found not guilty because that issue had already been determined, she had a chance to fight it and she didn’t.
But like I said, a little bit of sympathy, not a lot. I don’t think you should run the rule out – assuming it is the rule over there, I mean I don’t know – to the extent that you’re going to hold someone guilty of a murder they didn’t commit. Hard cases make bad law, but being wrong is bad, too. I don’t think you can ever enhance institutional integrity by getting it wrong, especially when everyone knows it. The system has to conform to reality, not the other way around.
I guess my position is that if you find yourself in a position where the rule forces you to be wrong, then it’s time to develop a new rule. Appellate judges are all smart guys, so just be careful and have at it. It’s your job, it’s why we pay you the big bucks.
In any case, I’m grateful to my twitter companion (and author of the linked article across the pond) Nigel Scott (twitter: @gronff), for the hat-tip.
Let’s hope this all works out correctly for Amanda Knox, Raffaele Sollecito and the Italian justice system. Come on. I know we can do it.