Death Threats. Harassment. Obsession. (Amanda Knox)(Updated)

So a British tabloid that has been fanning the flames of the frenzied mob for eight years now reports that the FBI is investigating some of its readers.  Pretending to be neutral at this late date, after years of smearing and base casuistry masquerading as ‘journalism’.

The FBI can investigate away, and contrary to the impression given by the article, not all the lunatics are in the UK; there are plenty of people in the US who are driven mad by high profile acquittals, especially when the beneficiary is a pretty young woman.

We suspect this will go on for quite some time.  Our standing recommendation to the exonerated is to live as obscurely and remotely as possible in a country other than the one that convicted you in the first place.  Of course this reasonably requires the exoneree to be independently wealthy.  And that is exactly what those responsible for the wrongful conviction are obligated to ensure:  that their victim be made independently wealthy.

Wealthy or not, the exoneree will live out a substantially diminished life.  There’s no fixing it.  But leaving an exoneree to fend for herself, defenseless, in a world in which so many want to see her suffering or dead is literally excruciating and utterly unconscionable.

If you let loose the dogs of war in error, there’s no going back.  Prosecutors should think hard about what they set in motion when they file charges.

Update:  Radley Balko points out that we’re very, very lousy at compensating those we have injured through major malfunctions of the criminal justice process.  That has to improve.

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The Agony Of Being Right

What makes judging so hard?  It’s not the intellectual challenge, of which there is very little anyway.  As we have often said, the law is an intellectually pedestrian subject for the most part, and should be: if it requires high intelligence and a Ph.D to be law abiding, something is seriously wrong.

No, the real challenge is moral.  You need to be able to make people unhappy if doing the right thing requires that.  And then accept that they might be mad at you.  Maybe for a long time.  Maybe irremediably.

One judge who showed great moral courage in the Amanda Knox affair doesn’t feel so much vindicated as sad:

Q: How come you left the judiciary right after that verdict?
Hellmann: I was practically forced to. Our decision was received with reactions of contempt. I can still remember the whistling and the shouting by a claque that had gathered outside the Court house on the evening of the verdict. From the next day I felt surrounded by a growing hostility. In the bars of Perugia they were saying I had sold out to the Americans, that I had yielded to the pressures of the CIA. Tall tales, of course, but what hit me more than the defamatory lynching that lasted years, was the reaction of colleagues in the judiciary. Nearly all of them stopped greeting me. In particular those who in various roles had been involved in the case. I realized that my Court had been a lone voice in a Courthouse where all the judges, starting with the GUP (Judge of the Preliminary hearing) up to those of various review courts, while criticizing the investigation, had endorsed the charges.

From an interview with Judge Hellman, who overturned the Amanda Knox Rafaelle Sollecito guilty verdicts the first time, published in Italian here.

Sometimes you have to throw down the gauntlet.  And then for sanity’s and safety’s sake you have to accept the personal consequences, some of which can only be ameliorated by resigning, retiring, leaving the country.  That kind of thing.

We know exactly how Judge Hellman feels.

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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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The Sad Fate Of Amanda Knox (Updated)(x2)

How is it possible, in an age where human intelligence has produced wonder after wonder, to have a murder case where guilt is determined by the “reasoning” level of a moron?

I was reading an article recently about the legal profession and the appalling lack of quality in reasoning that prevails.  Often, court opinions are little more than screeds of heavy rheotric that ignore evidence that obviously – and often definitively – undercuts the desired result.  They are frequently comically disingenuous.  Or at least it would be comical is someone’s life didn’t hang in the balance.

So the “Nencini” report re-convicting Amanda Knox contains a discussion of 2 phone calls AK made to Meredith Kercher’s phone the day after her murder but before the body was discovered  that lasted only a few seconds.  Nencini then draws the inference that these phone calls were not genuine, that they were designed to deceive the investigators, that they were so short because Amanda Knox never expected Meredith Kercher to answer because Amanda Knox already knew Meredith Kercher was dead.  And the only reason she could know that was she had participated in the killing.  Let me quote here from the Nencini report as excerpted in a “guilter” blogger’s article:

“The telephone call made [by Knox] at 12:11:54 pm to the English service of the victim lasted 4 seconds. Perhaps not even the time to repeat the first ring.

Knox should have been affected by a certain anxiety in calling Kercher’s telephone services. Filomena Romanelli let the defendant’s telephone ring for 36 seconds the first time, and the second for a good 65 seconds; an insistence which appears normal. But that did not happen when Knox called… these are two calls that barely registered [and this] has only one plausible explanation:

There was no concern at all in the mind of Amanda Knox when she made the two calls to the young English woman, simply because she knew very well that Meredith Kercher could not have answered the calls; calls which had to be made because Filomena Romanelli insisted, but which the defendant knew were useless. Nobody would have been able to answer those calls; let alone poor Meredith Kercher whom the accused knew was lifeless, locked in her own bedroom.”

The problem is that there was a much longer phone call from Amanda Knox to Kercher’s phone earlier – at 12:07 PM – so long that Kercher’s phone – that had been tossed into some bushes and would otherwise have been lost – rang and rang until it was found.  And this phone call also occurred well after Kercher’s murder, but before the shorter calls.

To a sane and reasonably intelligent person, then, the earlier, longer phone call rules out making the incriminating inference from the later calls.  In other words, Nencini is either not sane or not intelligent.  Or, I suppose there is a third possibility:  he’s not honest.

So Amanda KNox’s fate at this point has rested with a man who is either crazy, or stupid, or corrupt and dishonest, and there’s no other alternative.

So appalling.

Update:  From CNN’s report this morning:

But the high-profile nature of the case and the controversial evidence prosecutors have built their argument on makes Knox’s extradition anything but certain.

“Controversial” evidence? That’s what stupid evidence and unfounded argument are to the media – as long as those are offered by police and prosecutors.  Judges aren’t the only apparently reason-challenged players in this drama.

Update 2:  After 9 PM in Italy and no word yet.  If this was a jury deliberating over here, might start thinking about whether they’re hung, but I don’t think that’s possible here.

Update 3:  An apparently unexpected acquittal.  Good on the Italians. Of course, if twitter traffic was any indication, there are millions who will never let go of it.  But for now, while the whole thing is still terribly sad, Amanda Knox and her former boyfriend can enjoy at least some peace.  And maybe Meredith Kercher’s survivors, too.

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Amanda Knox Redux (Updated)(x3)

It appears from press reports to be all but certain that Amanda Knox will come out of the Italian Justice system a convicted murderess.  It is at least equally certain that this is the wrong result.

The British tabloids have been braying for Knox all along for their own reasons, but I suppose it’s notable that the lowest of the low in British tabloids are still more than a cut above the Arizonan uncivilized mob frenzy surrounding Jodi Arias.

In the latest installment, in any case, the Daily Mail is spinning some kind of last minute filing by Rafaelle Sollecito (Knox’s former Italian boyfriend), also in the dock, as being a “brutal” act of distancing himself from his former lover to save his own skin.  That’s quite a dramatic characterization, but hardly seems to fit:  most of what they quote is pretty much what Sollecito has been saying all along.

The Mail article does not say, but as I recall Sollecito must be in prison back in Italy. That adds a level of pressure not present for Knox at the moment:  Knox fled at her first opportunity, and apparently will go back to an Italian prison only if extradited by the United States pursuant to treaty:

If convicted [that is the all-but-certainty we have been discussing – ed.], Knox could face immediate extradition proceedings and her supporters fear the worst.

One supporter told MailOnline they were prepared for what would be the ‘greatest miscarriage of justice’ that has ever happened to a US citizen.

Well, that last part would seem to be hyperbole.  There are worse injustices.  And very similar ones.  Mostly we do it to our own citizens.  Does that make it better, or worse?

Or does it matter at all?

Update:  Apparently all kinds of things can happen in the highest Italian court.  Meaning this could go on and on, even from here:
The high court judge at the hearing this week will either uphold the convictions definitively, or send the case back for another appeal, or potentially on to a different section of the high court.
I wouldn’t be at all surprised that they just kick the can down the road a little more.  Institutionally, the potential for embarrassment either way they go is so high it’s the easiest course.  For them.  Not for the people in the dock.
Update 2:  Maybe nothing until Friday now.  The Italians certainly know how to generate drama through their court system.
Update 3:  Is the delay to hear only from Sollecito’s lawyers,
but not AK’s?  That doesn’t sound good, but that’s what the BBC is reporting.

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Real Criminals

After a wrongfully convicted man is exonerated through DNA, prosecutors vow to retry him.  He opts for an Alford plea to spare himself and his family a second grueling ordeal.  But of course the conviction continues to haunt him the remainder of his life.

Which is then cut short by his own hand.

In a similar and much more familiar true story from Texas, we have the case of Todd Willingham, back in the news because professional disciplinary charges have been filed against the prosecutor who convicted him and sent him to death row, from which he was eventually executed.

But the story of the Todd Willingham prosecutor isn’t about professional misconduct; it’s about despicable, criminal behavior.

Would it matter that either of the prosecutors subjectively believed that the men they were lying and cheating and extorting to death were really guilty?

We had a comment the other day on an old post about Tom Moran, former prosecutor and now a State Supreme Court judge, the same “career path” as Ken Anderson.  The comment was probably from a lawyer, since it evinced an awareness of the “materiality” idea and bandied about terms like “preponderance of the evidence” and “clear and convincing evidence” and seemed aware of what the distinction meant.  Most likely a lawyer, then.  But it could also have been from a cop.

Could the prosecutor in the Willingham case, or the Conover case, or the Sephora Davis case, harbor a subjective belief that the people they wrongfully convicted really were guilty after all?  I suppose it’s possible.  People can harbor irrational subjective beliefs.  Look at some of the twitter traffic about Jodi Arias.  Or Amanda Knox.

But as horrifying as some of that reveals some people’s thought processes to be, at least the social media partisans in those extremely high profile cases are not directly involved, and do not stand to personally benefit from prevailing.

Not so with the prosecutors. They harbor an irrational belief – if indeed they really do – because it is very much in their self interest to harbor it.  Their subjective belief, in other words, is not the result of enlightened self interest or even rational self interest; rather, it is the product of pathological self interest.

Pathological self interest is chiefly a character trait of….criminals.

But in truth, our belief here at Lawyers on Strike is that the conduct is even worse, that these prosecutors do not, in fact, harbor any such irrational subjective belief, because prosecutors are lawyers and lawyers cannot be stupid.  They might not be geniuses, but they cannot be stupid.

So the more likely reality is that the conduct of these prosecutors has been beyond mere criminal and into the realm of the malicious and the malevolent.  It’s twisted almost beyond description that after a man who was labeled a murderer is exonerated, losing most of the good things other people enjoy in life, the chief tormenter refuses to repent or relent and attempts to destroy whatever is left of the life he unjustly ruined in the first place.  But this is what these men have done.  Are doing.

Yet we do not believe criminally prosecuting them is a solution.  The crimes of which they are guilty bear the strongest resemblance to human rights abuses that are addressed more in international law than through domestic law enforcement.

No, we believe the real solution on the domestic front is copious compensation for their victims.  So copious that their victims never have to work for a living again and can – as I would almost always recommend – leave the country and live as expatriates elsewhere.

There are two salutary benefits from this approach:  the first, obviously, is that it is only fair to do everything possible to fix what is broken, and money goes a long way for this specific wrong.  And it is probably the only thing that goes a long way.

But second, far more than making a punitive example of this or that prosecutor, imposing a large institutional financial burden on this kind of malevolent behavior changes the institutional culture internally, where it most needs to change.

Let us illustrate as best we can, with some help from Jeff Gamso.  There is a place for gallows humor, we agree.  We’ve encountered it in the Navy, in personal injury legal practice and in criminal legal practice.  But the place is very small, perhaps a moment’s respite from the overpowering weight of extremely serious tasks and responsibilities.

In other words, a remark here or there to prompt nervous laughter before everyone is overwhelmed by what is really going on.

But in a post yesterday Jeff quotes a prosecutor named Marty Stroud, who convicted a man wrongfully on bullshit evidence and although no one was executed, 30 years went by and the man’s life was essentially taken from him anyway:

In 1984, I was 33 years old. I was arrogant, judgmental, narcissistic and very full of myself. I was not as interested in justice as I was in winning. To borrow a phrase from Al Pacino in the movie “And Justice for All,” “Winning became everything.”

After the death verdict in the Ford trial, I went out with others and celebrated with a few rounds of drinks. That’s sick. I had been entrusted with the duty to seek the death of a fellow human being, a very solemn task that certainly did not warrant any “celebration.”

Mr. Stroud is right.  It is very sick, and he is describing a very sick prosecutorial culture that while not universal is nevertheless very common.

He is describing Tom Moran.  And too many judges.  And the lawyer (likely) who posted that comment the other day.

And Marty Stroud is right about something else:  There is really no end to the money we, as a society, owe his victim.  As I’ve pointed out many times, we shower people with money because they throw a football well or titillate us with pictures of their behinds.

Because they amuse us, in other words.

And then we balk when we, through our officials, have ruined an innocent person’s life, a truly horrifying wrong that in most cases can never be fully repaired.

So this is really about us.  As a people.  What we do with the wrongfully convicted is a measure of our character.  And the verdict on our character so far is this:  venal, stupid, lazy, cruel, miserly, prideful, obstinate, shallow, feckless.

I could go on.  But that’s enough adjectives for now.  Maybe the real criminals are us, is the point.

(h/t Nina Burleigh)

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Social Media Power?

We’ve been discussing the impact of social media on criminal trials and “due process” over the last few days, especially with respect to the Jodi Arias fiasco out in Arizona.  We have thought it a difficult subject warranting further review.

But it appears the police have no doubts whatever about the “power” of social media, and think parents should warn their children about it:

Three students have been charged in connection with alleged bullying incidents at Greece Athena High School.  Chief Patrick Phelan of the Greece Police Department made the announcement at a news conference Tuesday afternoon at police headquarters…The incident was then posted to Snapchat…”People should talk to their kids about social media and the power that it has,” Phelan said.

Maybe these charges would never have been brought but for the fact that the alleged culprits posted video on the internet.

Does that matter?

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