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.
Lawyers on Strike 
Knox and Sollecito didn’t testify at Guede’s trial, though they might have been represented via their attorneys. But I’m not sure it matters since the Knox/Sollecito trial court ruled that there was more than one assailant. The first appeals court didn’t address that issue, which Cassation determined needed to be addressed, and the second appeals court affirmed the “more than one assailant” thing.
Italian rules of procedure aside, I’m not sure why the multiple assailant theory has stuck when similar murders are carried out all the time by only one person. OJ Simpson (most likely) stabbed two people to death all by himself. Granted, he was particularly athletic, but still….Ron Goldman was no slouch either and no one has ever suggested there must have been more than one assailant in that case.
I get why they believe Knox was there at the time the crime was committed. To a lesser extent, I get why they believe Sollecito was there. But I don’t understand how they translate that into commission of the crime itself. Innocent bystanders at a crime are quite common and they’re just that — innocent. (For that matter, I don’t understand why both sides are so screechingly opposed to this theory.)
One piece of information I’ve been meaning to dig up when I have the time (and I don’t care what guilters or FOAKers say about it, because half of what they say is bullshit): In her book, Amanda Knox describes being told at her arrest that it was “procedural” and “for her protection.”
I recall that being my impression at the time, that she was being taken into protective custody because she described being terrified of her boss. They didn’t know yet who all was involved in the murder and she might have been targeted for squealing. As it turned out, she’d named the wrong person, but they didn’t know that yet. And Sollecito’s shoeprints closely resembled shoeprints at the scene, which turned out to be Guede’s, but they didn’t know that yet either.
If those two had been the murderers, Knox could have been in real danger, so protective custody makes sense. But if that was the reason for her initial arrest, it would preclude the idea that police predetermined Knox’s guilt from the beginning. It would mean at the time of her arrest, they actually believed her to be innocent.
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Well, Jessie, I guess the point is that the Knox/Sollecito trial court might have been bound to find there was more than one assailant if that issue had been determined in the Guede trial. Wouldn’t work that way here, but it might over there.
Like you, I am not all over the Italian police here. Or even the Italian justice system. We all have our problems, such as – here – over-reliance on witness testimony even when documentary proof contradicts it:
How’s that one? 24 years in prison with a documented alibi because some bought off witness was willing to say she “saw him do it”. Ugh.
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I think that might have been true at the Cassation level, but I don’t think it was true at the trial court level. But I could be wrong about that. Just my impression. (I don’t claim to understand the rules of procedure in this country, let alone in Italy!)
This case is such an interesting Rorschach test. We all see whatever we expect to see and then any new information comes along and fits right into that.
For example, the recently released CCTV footage, which is shitty and grainy, but, I admit, I saw the image before I saw the accompanying story and I thought it was a picture of Amanda Knox. Like an optical illusion, once you see it in a particular way, it’s impossible to un-see it in that way.
Similarly, the priest at the prison comes out with a tantalizing story of having heard a “secular confession” from Knox (“confession” as in the Catholic sacrament, except she’s not Catholic).
Being a man of the cloth, the priest will never reveal what she told him. He will only say he is convinced that she didn’t murder Meredith Kercher. Of course, I take this as just further proof that I’m right!
How each of us perceives this case says more about us than it does about the case itself. That’s probably why it’s stuck in the popular imagination like macabre glue.
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Jessie!
Of course I can’t admit that I’m seeing just what I expect to see. Indeed I am open to your theory that they were there (or at least AK was) but aren’t guilty. It wouldn’t bother me at all if that was true. But I don’t see the need to even get that far.
Unlike almost everyone, maybe even including you, I put no stock in “confessions” unless they are corroborated by reliable proof. Somtimes false confessions are seemingly ludicrously detailed, all false. Like the Central Park Five thing. It seems improbable. But it happens.
To give you one example I seem to remember from this one, I think AK referred to taking a shower in the flat the next morning, getting out of the shower and “swishing around” on the bath mat. Now of course this could be true, but it also sounds a lot like confabulation in response to questioning, either trying to please her questioners or come up with some innocent explanation of what appeared to be an inculpatory “fact” fed to her by the police, or maybe even something she read in the paper.
The problem then becomes that because she confabulated something it makes her look guilty.
One of the hallmarks of a legit confession is when it contains facts that would only be known to the perpetrator. But then how is this determined? The police, who supposedly have these facts that only the perpetrator would know, and who also conduct the questioning of the suspect to see if they know those facts as well. But it’s not an easy trick to question someone to elicit something from them that you already know while being sure that it’s coming from them and not from you.
It’s the same problem you are identifying in your comment here: there’s a tendency to find what you are expecting to find.
Let me make a contrast with the case I have chronicled here on the blog and that you may have read about: the day I found out that Sephora Davis had not been “the driver”. It was so unexpected, and I was so stunned at receiving this information that I was apparently visibly stupefied to the witness that told me. I had already been involved with the case for months and there was no question in my mind that she had, in fact, been the driver. I was flabbergasted. I only got upset much later when I learned how deliberately misled I had been.
There’s no danger in that siuation that the information came from me and was somehow subtly suggested or communicated to the witness, because I didn’t have the information at all.
I could say a lot more. But not here today. Nice to hear from you.
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Jessie, 5 of the 6 pathologists who testified before Massei said either that it was one assailant, or that it was indeterminate. In other words Massei went outside of forensic pathology to conclude that all three were guilty (one of many forensically questionable things that he did) Only one (IIRC the one testifying on behalf of the Kercher family) said it was definitely more than one. The second problem (besides the one identified in this entry) with using evidence at Guede’s trial in another trial is that the information gathered during the investigation is simply accepted as evidence. If there is any right to challenge it at all, it is my understand that the right is very limited.
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A belated response but I hope you’ll notice it.
First, the author of the Ground Report article turns out to have made a great point, legally speaking: in the appeal to Italy’s supreme court, Sollecito’s lawyer Giulia Bongiorno points out the use of “judicial facts” from another trial as a problem of constitutional proportions and one of the reasons why the case should be heard by the full supreme court (“United Sections”).
Second, Italy is not the only country to allow this judicial smuggling. Russia, whose criminal justice system is, with some exceptions, as continental as Italy’s if more politicized and dysfunctional, changed its criminal code on 2010 to force criminal courts to accept facts established in other criminal trials as irrefutable truths. This novelty was instrumental in convicting opposition leader Alexey Navalny of embezzlement in 2013. I wrote about it on my blog here and here.
I wish you could also discuss the Italian approach to fact finding defined by their supreme court as “osmotic evaluation of indications”. I think it’s circular reasoning at its best.
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Alex, I looked at your blog links but I can’t find anything on “osmotic evaluation of indications”.
Briefly, though, I think res judicata has its place. A justice system committed to finding the truth will always be troubled by inconsistent final outcomes. In the US we define such inconsistency very narrowly: however much two outcomes may appear to be inconsistent, they are only actually inconsistent where everyone involved has had a chance to be heard.
I’m afraid I don’t know enough about the Italian approach to comment intelligently. That Russian law you cited appears to give greater weight to fact findings in the absence of an opportunity to be heard than American courts would, but not so much that you can be found criminally liable based upon facts found in a proceeding you never appeared in. That would be, of course, a due process concern.
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Thank you for your response. I can see that in some cases, one court’s blind acceptance of another’s findings is severely prejudicial to the defendants, effectively preordaining a conviction. Suppose court 1 rules, as a result of trial 1, that A committed a crime with associates. Suppose the range of possible associates is limited to B and C, who were not parties to trial 1. When prosecutors bring a case against B and C in court 2, they file the ruling of court 1, which is accepted as fact. This does 80% of the prosecutor’s work and seals the case.
This is what happened both in the Navalny and Knox cases.
I haven’t yet written about it, but “osmotic evaluation of indications” (“prospettazione osmotica degli indizi”) is a formula by Italy’s supreme court that deserves to be widely known since it prescribes a faulty, circular method of reasoning.
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