Amanda Knox – Lessons Learned. Maybe.

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.

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18 Comments

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18 responses to “Amanda Knox – Lessons Learned. Maybe.

  1. chrishalkides

    My suggestion is that Italy should adopt rules for DNA evidence similar to those indicated by the American Bar Association (some very sharp minds worked on them). Adopting them would not embarrass any one person in particular but would potentially save many people convicted on the basis of slipshod DNA profiling. The only idea I have for adding to the ABA standards is to include a line that indicates that such electronic records much be stored for a very long time after a conviction. It is not always true that a high profile case leads to reform (I cannot point to any that happened as a direct result of the Duke lacrosse case or the Lindy Chamberlain case, but I may have missed something). I hope that this case does lead to reform.

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    • I fear there is a lot more wrong both in Italy and the US than can be addressed through technical tinkering. A basic honor and integrity is too often lacking in our officials. I think this is the main problem from which all others flow. It doesn’t apply in all cases, all the time, but enough that we have terrible, and terribly large problems.

      By the way there has been quite a bit of effort at reform, if not actual reform, as the result of the Duke Lacrosse case. Nifong was disbarred and a statewide innocence commission was started in North Carolina.

      Liked by 1 person

      • ideas4change

        Is that what you suggest – a nationwide “innocence commission”?

        Wonder if such would have prevented Cameron Todd Willingham’s saga!

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  2. ideas4change

    Hey counselor… your broadcast email links are stipulating “Page not found”

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    • I made a big error in a post I put up today so I had to trash it. Sometimes I correct errors explicitly and leave the post up, but this error made the whole post invalid so I thought the best thing to do was take it down. Apologies to all interested readers such as yourself!

      Liked by 1 person

      • ideas4change

        Now I’m curious as to what the faux pas could have been……

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        • I had misinterpreted a quote in an article to say that Italy was very generous in compensating individual people who had been wrongfully convicted and incarcerated, whereas the article was much more likely referring to total expenditures by the government for ALL wrongful convictions, not a figure for each individual. It made what I wrote nonsense, so I took it down.

          I make mistakes sometimes.

          Liked by 1 person

          • ideas4change

            We all do. Sometimes we see what we wish to see (I’ve made faux pas’s in pleadings based on what I would swear was there – and then Poof!).

            KUDOs for keeping it kosher; which is why I adore this and His Honor RG Kopf’s blogs so much.

            Always a pleasure (even when we part ways on premise).

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  3. Jessie

    Thanks for carving me out the little exception at the end there 🙂 I did take umbrage at your characterization of “idiots” who accepted the evidence, which otherwise would have included me.

    Obviously, I don’t agree with the “bad evidence piled on top of bad evidence” characterization. I would phrase it more as “some bad evidence, some good evidence, and a giant object lesson in how interpretation of that evidence is absolutely everything.”

    But one major difference is I actually have read a large portion of the court dossier, most of which has been translated into English over the years. Doing so was rather obsessive of me, considering I have no personal or professional stake in this case. But unlike the recent feeding frenzies of Casey Anthony and Jodi Arias, every single detail in the Meredith Kercher case became subject to public debate as to its very existence before the Italian courts. No one could even agree on that, let alone interpret it, so reading original documents was about the only way to get a handle on what the case really consisted of.

    But I guess I don’t feel too bad for being weirdly obsessive in the sense that learning about the Italian justice system has been fascinating. It will be equally fascinating to see Cassation’s motivation report for the final acquittal. For good or ill, the Italian system requires a final narrative of sorts. If, for example, they based their most recent decision on the premise that Guede acted alone, it would potentially overturn Guede’s conviction and remand his case back to the trial courts.

    Unless, of course, Cassation did accept all the evidence from Knox/Sollecito trial court levels and just…..well…..interpreted it a little differently 😉 Wouldn’t that be a kicker?

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    • I don’t fully understand why you and I disagree on the quality of the proof, other than maybe you have faith in ‘experts’ in the trial setting and I don’t, having seen too much of that over the years thank you very much.

      Put up a post today about the continuing fallout for AK, just thought it was worth a mention and I figure I can leave this topic at this point. There is less fallout for RS because he is not a pretty girl, but someone tweeted about an article where he’s quoted as saying that a part of him has been destroyed by all this. Which I can appreciate completely.

      You can’t put humpty-dumpty back together is the point, I guess. This is a social burden that must be borne by all of us. It’s our government(s) that commit wrongful convictions in our name. If representative democracy means anything, that means we did it, and we have to fix it as best we can. The usual remedy is money, lots of it, and how dare we complain and count the cost when Kim Kardashian is a billionaire.

      Liked by 1 person

      • Jessie

        I think “faith in experts” is a fairly uncharitable way to put it, implying a credulity that I don’t think I’ve demonstrated. There’s a quite a lot of evidence presented by experts in this case that I either don’t accept as reliable or for which I don’t accept the expert’s interpretation, so I don’t think your “faith in experts” hypothesis is even true.

        If I were to hazard a guess at our disagreement in an equally uncharitable way, I would have to chalk it up to: I’ve read the court documents, whereas you’ve been taking the word of random people on the Internet, all of whom have some sort of agenda about the case. I’ve watched with my own eyes as you bought into information from them that was flat-out false. And I’m not talking about matters of interpretation, but matters of historical fact (e.g., Was text X performed or not? What was the purported result? Did the court accept or dismiss Witness Y? Did suspect Z have a criminal record or not? And so on.) In short, you were misinformed quite often and accepted it, apparently, because the person misinforming you was pro-innocence and sounded reasonable.

        That’s my own uncharitable explanation. Now, if I were to be more charitable about it….I think you and I differ somewhat in our a priori assumptions about human nature. I tend to default to an assumption of honesty until I have some reason to suspect dishonesty, and even then, dishonesty often contains building blocks of the truth. Thus, for example, I didn’t automatically dismiss Knox’s statement to police as necessarily a complete fabrication.

        By contrast, you tend to dismiss what people say in favor of so-called “hard” evidence. That became highly problematic in this case because some of that “hard” evidence (e.g., phone records were an example you used at one point) were the basis for the wildest flights of fancy (indeed, the phone records were among the central pro-guilt evidence, but only by applying layers of interpretation to this supposedly hard evidence).

        For that matter, you and I may differ as to the extent that interpretation of evidence matters, or the point at which a particular piece of evidence is self-explanatory versus when interpretation is necessary — to wit, our bickering over the photos in the Jodi Arias case, where you saw something self-evident that I believe is merely one interpretation. I don’t think either of us values interpretation less, but that we sometimes apply it in different ways to different things.

        When it comes right down to it, everyone on both “sides” of the public debate around this case has a “faith in experts” — when it comes to Rudy Guede. No one applied the same skepticism to the evidence against Guede, even though it was collected and processed by the exact same investigators who collected and processed the evidence against Knox and Sollecito. If we did apply that same intense scrutiny and aggressive presumption of innocence to the evidence against Guede, all of our conclusions about the case might look very different.

        But what it comes down to for me is that it’s very difficult to discuss the case with anybody unfamiliar with the court documents because virtually every single fact in this case was up for grabs. I would shuffle through documents to confirm that, indeed, investigators took forensic samples from throughout the cottage. Then someone else would come along and tell you — in blatant contradiction to reality — that, no, they only took limited samples that would condemn Knox and Sollecito without any controls for comparison. And if you accept that random person’s misinformation, it becomes impossible to have a meaningful debate because we’re not even working from the same reality anymore.

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        • As usual, this is an excellent comment even though pointed and not very fair in parts. But it brings up an important but kind of off topic point about charitable and uncharitable approaches, which I’ll deal with second.

          But first, it’s not accurate that I didn’t read any court documents. I read the entire Hellman opinion (or a translation of it) although that was almost two years ago now.
          That opinion, of course, contained a critique of the earlier opinion, so I’m also familiar (or was, two years ago) with a second hand but still official rendering of the earlier guilt finding. I didn’t read the subsequent re-conviction opinion. And if I made any specific glaring factual errors or assumptions that were material to having a guilt v. innocence opinion I wish you’d point them out.

          But second, I do not by any means regard “faith” and “credulity” as synonyms. Traditionally, faith is regarded as being a legitimate option when reason and/or knowledge cannot provide an answer. It is, or at least can be, quite rational to have faith when the object of faith is something that cannot be known.

          Nor is faith solely applicable to religion or religious questions. I often find myself pointing out that human action of any kind is to some extent based on faith that this or that will result from the action. Without faith of that kind, human activity and progress wouldn’t be possible, or would at least be greatly retarded.

          So. In context, what I meant about experts is that when you have differing opinions coming from two people both of whom have far more expertise in their field than I can acquire by listening to either one of them testify in a court case, I have no faith in my own ability to pick correctly which one I’ll go with, and in almost every circumstance I’m going to regard the two opinions as canceling each other out. From there, the default is against whoever bears the burden of proof. So if I have one expert saying Meredith Kercher’s DNA is on a knife and that’s inculpatory and I have another one saying her DNA is not on the knife I can only comfortably resolve the dispute by going with the latter. The only basis I would have to pick one expert of the other is some kind of faith and I just don’t have it. Not to mention, at least one of them has to be wrong when they conflict. That is a rational certainty, far more certain than anything I can come up with by picking apart their opinions.

          By contrast, you might quite reasonably have more confidence (faith) that you can sort through the testimony of two conflicting experts and tell which one has the better opinion; or maybe you can do that in some cases because you have some expertise yourself but not in others, and that belief could be perfectly rational and of course you might wind up being right on things like that and I might turn out to be wrong.

          In any case you shouldn’t feel that I was patronizing you when I used the word faith.

          Liked by 1 person

          • ideas4change

            I, for one, wish we could come up with “Professional” Jurors and Judges having expertise in certain fields. A standard for purported “experts” would be much more desirable – too (and a real pain to prosecutors).

            By the way – do you have an opine of the POTUS interview of HBO’s “The Wire”/ David Simon – on the issues of fixing the systems?

            Like

  4. JA

    An interesting review of the case. Not really the points I would pick out. My is here : https://geebee2.wordpress.com/category/top-wrongful-convictions/

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    • ideas4change

      Interesting stuff at your blog – over yonder. Including the discussions of “straw man” of pyramid schemes and your Domain name enterprising.

      Have you eyed the Jeff Baron case. A guy that watched his lawyer sue him (with Baron winning every time). Then he watched his “ex”attorney at law become “Special Master”. And – if that’s not enough conflict of interest for ya – the “Master” had an ex parte hearing with the judge to become the Federal Receiver of Jeff Baron.

      Judge resigned from the bench; but they stole all $200 million of Jeff’s.

      More appalling is they did this, as he had 1 foot in the grave (Type 1 diabetic from age 2, compounded by auto-immune deficiency that attacked his red blood cells) – where they emailed about killing him.

      Even cancelled his medical insurance (thousands each month in bills).

      Ritchie Capital (by the way) just lost 2 decisions in the Petters Ponzi (Illinois said nah and 8th Cir keeps ruling in favor of the Receiver’s etc., – who WERE Tom Petters attorney, before becoming “another” federal receiver in Petters Ponzi case).

      Is there really any such thing as justice – any more?!?!?!?!

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      • ideas4change

        BTW – Jeff Baron was THE innovator of the item that became Google Adsense – as Google had Baron’s company their number one vendor.

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  5. I think there’s a lot of agreement between us.

    One interesting area where we seem to differ is on the issue of ‘fabrication’. I don’t see deliberate fabrication here. The dynamic is, they have focused on AK and RS and there’s the process where they “build” the case.

    It’s bad that prosecutors think in those terms, but they do. Why that’s bad is not the point here and now.

    Anyway, when they’re of this mindset the approach is to go looking for ‘evidence’ that incriminates the person you’ve already fingered. And the rules tell you that, for example, it’s good evidence so long as you can get some expert to opine about it, and you have a lot of experts on tap who are eager to please so they can get their next gig opining for the prosecution.

    So, the knife. The cop picks it out because it’s a big scary looking knife and says “Let’s test it for DNA” and then the dutiful expert finds pretty much exactly what the cops and prosecutors want him to find. But it’s all bullshit.

    One thing that went right here is that the Italian courts finally looked at obvious bullshit and called it that, something that wouldn’t happen over here if a jury had failed to figure that out.

    But the point is it wasn’t fabricated. I mean, the cop didn’t plant blood on the knife. And even with the infamous bra clasp, it was grossly mishandled and there may have been evidence planting but you don’t have to go there because there was a good opinion that there was no RS DNA on it at all.

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  6. ideas4change

    BTW counselor – His Honor Judge Kopf is having a humorous hard time of it all. Should we not have a thread of praise – raised?

    Like

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