The out and out acquittal was quite a surprise to most observers, including us. We recognized that there were institutional concerns at stake and even sympathized – a little – but held out hope that the Italian justice system could transcend those concerns in the interest of getting it right.
Then that’s what they did.
Well, what’s the spin now? Actually, we at Lawyers on Strike don’t “spin”. We’re not being fair to ourselves.
Anyhow. One lesson is that the pall of suspicion coupled with official accusation is frequently too much to overcome, and the Italian justice system deserves a lot of credit that they were eventually able to overcome it, even if it took seven years, even if the innocent had to go to prison for a time, even if we sat on pins and needles wondering what would happen until the very end. The Court of Cassation is to be congratulated on the result. Apparently we will learn their reasoning within 90 days.
Over here we like to think that our British tradition of the “presumption of innocence” is the remedy for the otherwise overpowering influence of the pall of suspicion and official accusation. But that’s not true, because the presumption of innocence is an illusion almost all the time. Nobody who is accused is really presumed innocent, either in Italy or here. Our Supreme Court often cites the presumption of innocence as one of the important safeguards of our system, oblivious to the fact that every trial lawyer knows: there is no presumption of innocence. The jury thinks your client is guilty and they will hang a guilty verdict on anything they feel in good conscience they can, and woe unto the defendant that relies on scrupulous consciences in that jury box.
Bringing us to a second lesson: the burden of proof. Again, while often cited as yet another safeguard of our system – the idea that the prosecution must prove their case “beyond a reasonable doubt” – this, too, is an illusion. ‘Some evidence’ is, in fact, enough the overwhelming majority of the time. And the ‘evidence’ itself can be garbage, like jail house snitch testimony.
The only way to play in our system from the criminal defense side so that it operates with a modicum of integrity is to accept that these two pillars of our system – which Italy explicitly, but probably more honestly, does not purport to have – are a disingenuous mythology our Supreme Court justices can stomach to cite only because not one of them has ever represented a criminal defendant, and only two of them have even tried a case to a jury, in both those cases as federal prosecutors, which is not remotely the same in terms of difficulty.
As an aside, when we have our various official innocence commissions listing the reasons why wrongful convictions occur, such as biased line up procedures, you can bet they won’t talk about the fact that one ingredient of our toxic brew is the ignorance of the actual practice of law at the ‘highest’ levels of the profession.
Books could be written. Maybe someday they will be.
But moving on. From an official American point of view the Italian Amanda Knox result is therefore an anomaly: a system that lacks our vaunted safeguards wound up acquitting in a situation where, had the crime happened here and a jury convicted, appellate courts would overwhelmingly just sign off because ‘actual innocence’ is not a ground for an appellate court to set aside a conviction here – but it is in Italy.
And the fact that it took seven years? Relatively prompt. In our system, it’s 11 years and counting to undo a conviction that was proven wrongful before it even occurred:
In my view, the picture that unmistakably emerges from all this is of a judicial system exhibiting terminal and unrecoverable error. It has self-destructively dismantled its protection circuitry – such as federal habeas corpus – but continues to mindlessly mal-process police and prosecutor input in fail mode, spitting out a distorted version of what gets put in, all mangled up with stray verbiage, but essentially unchanged. It is now so bad that even when the system knows beforehand that it is committing an unspeakable depredation of an innocent human being, it just goes ahead and does it anyway, and then actually convicts itself – by neither disputing it nor speaking it.
By the way, is it poor form to link back to one of our own posts, and even quote from it? Maybe sometimes we have said something that bears repeating. In any case, never mind.
Finally, evidence wise the Amanda Knox case is worth a comparison in another way. As we tried to point out to many others in an ill-advised and time consuming foray into twitter, this was very much a case of piling bad evidence on top of bad evidence, not one piece of which in the end really proved much of anything beyond a ‘maybe’. This is a procedure in which a ‘case’ that is complete (excuse me) shit can look strong to the indiscriminate or those who are guilt-minded to begin with* (and if twitter is any indication there are way, way too many of the latter).
But even given all this, it should also be mentioned that it is to the great credit of the Italian officials that their system ultimately sifted through it all, and although there was some dubious evidence handling it does not appear that anyone deliberately fabricated, lied or cheated.
That poses more difficulty than just sloppy reasoning and evidence collection, we’re sure on both sides of the Atlantic. First, exposing it to begin with is ordinarily impossible; second, once exposed the institutional concerns are just as compelling as the institutional concerns at play in the Amanda Knox matter: if the prosecutor/police officer is caught lying and cheating, how many times have they lied and cheated? Do we have to review all of their cases? How many are there? How much time, energy and resources will that take? Will this irreparably damage the image and credibility of the institutions, resulting in widespread loss of confidence and disregard of the law?
Of course although not lightly, ultimately we opt for truth over all institutional concerns, and regard willful denial of the known truth to be the absolute worst possible result both socially and on the individual level. In the end the institutional concerns are question marks – risks – and maybe we can work through whatever problems we are anticipating. But the truth is not a question mark, and we must yield to it each and every time it presents itself. Indeed when the truth presents itself that is a gift, so on top of every other problem we generate by ignoring it we make ourselves ingrates.
We are heartened that the Italian justice system has risen to its task so convincingly. We dare to harbor the desperate – because informed – hope that our system can do so as well. We’ll see.
And, we should add, for some reason to one of our favorite commenters, Jessie, who of course is neither indiscriminate nor guilt-minded. There’s always an exception, we suppose.