It is symptomatic of the corruption of the Italian judicial system. As the enforcers and arbitrators of the law they feel they are above the law and that the rules don't apply to them. You see this attitude all the way from the investigators to the prosecutors to the judges. They break the rules and the people who are supposed to censure them ignore it, so they get away with it. as the saying goes, power corrupts, and absolute power corrupts absolutely.
Legal process under the Napoleonic codes used in most of Europe are similar to the US, but differ in a very fundamental way: the presumption of innocence. This is a very important distinction, that will not affect the outcome of a trial process if everything is done properly, but will if the judicial system itself is corrupt, and I will explain why.
Under most European systems the investigators gather evidence and a prosecutor decides if it should go to trial or not. On the face of it that might appear similar to what happens in America, BUT the defendant is expect to prove that the prosecutor is wrong, in other words they have to prove their innocence. This is a much higher bar to achieve since proving a negative is inherently more difficult to do. In America the prosecutor is supposed to prove that their charge is right.
The European systems rely on the investigators and prosecutors being impartial and objective. The presumption then is that the evidence they produce is correct, and the defence has to prove that it is not. If they fail, they are judged guilty. The problems arise when the investigators and/or prosecutors are not impartial and evaluate evidence subjectively instead of objectively. Then you get a situation where they form a theory and produce evidence to support that theory, ignoring anything else. And if that happens, the chances are very good that you are going to jail irrespective if you are innocent or not, since you will not have the tools to defend yourself.
In a corrupt system what will typically happen is that tests will be done selectively or without controls, interpretation of the results will be selective and incomplete, evidence that contradicts the theory will be ignored or not tested, rules regarding evidence collection and suspect interviews will not be followed etc, etc. All the sorts of shenanigans we have seen going on in the Knox trial. And when all of that gets to trial, because of the presumption of guilt and correctness of the evidence, there is very likely to be a conviction no matter what the defence does. They can't contest the evidence properly because the information that should have been gathered is not complete, or was not gathered at all, and consequently it is very hard to challenge the prosecution.
In essence, in Italy once a prosecutor decides to charge you, you are probably going to jail. Guilt or innocence has nothing to do with it.
In American courts the presumption of innocence acts as a shield. It effectively requires the prosecutors to have all the T's crossed and I's dotted BEFORE they present evidence to court, or it will not be admissible. Evidence that is incorrectly collected or analysed will get thrown out because it is unreliable and compromised. The prosecutor is required to prove their case, rather than just present it and get a conviction unless the defence can prove they are wrong.
In the Knox trial we have seen the investigators form a theory right from the start, then go about collecting evidence to support their theory. The initial prosecutor bought into that theory immediately and embellished it considerably. The checks and balances that are supposed to be in the system in the form of an impartial and objective prosecutor were completely absent. So, when it went to trial a conviction became a virtual certainty because the whole process had failed in the investigation stage at a fundamental level.
This happens a lot in Italy because they tend not to censure wrongdoing at lower levels when it happens, and after it gets to trial everything is so messed up that there is a high probability of a wrongful conviction,
This can and does happen in the US (quite frequently in fact - all police and prosecutors are human and have human failings like everyone else), but with the important distinction that the shield provided by the presumption of innocence filters out most of the corrupt cases during trial. If you have a bad judge presiding over the trial, a corrupt case can still make it through the system to a conviction, but egregious cases (such as the Knox trial) are relatively rare in the US. Although they do on occasion happen of course.
When considering the Italian judicial system, it is critical that everything is done properly and according to rules of law before the trial starts for justice to be done. If it is all messed up before you get to trial, then it is corrupt and impossible to do justice under their system.
Dear Sir:
Your essay above is well written but I am inclined to believe very few of your conclusions.
1. You seem to be an authority on the Italian indeed the European legal system. Please state your credentials. Many assertions have been made. Many if not most of the assertions above need to be challenged. It would be helpful for you to cite literature or other types of proof for your argument.
2. Your initial position is that the Italian system is "inherently corrupt". As a matter of first principles I doubt this sweeping claim. I will grant the Italian system is "flawed" or susceptible to error - as would be any legal system in practice.
3. Without being expert on the Napoleonic System of jurisprudence I would "assume" that its capacity to arrive at "justice" is equivalent to the Anglo American system of common law. I would gladly read an argument or book expressing the contrary but I certainly will NOT rely on your personal assertions.
4. For example this sweeping statement "They break the rules and the people who are supposed to censure them ignore it, so they get away with it. as the saying goes, power corrupts, and absolute power corrupts absolutely"
is simply silly.
5 If the burden of proof is partitioned to the accused the boundry condition of "reasonable doubt" needed to arrive at a verdict may be quite different than when the burden is shifted to the "state". In any case it is quite possible that an experiment conducted where the facts of a case are run through the US system and concurrently through an Italian European system the end verdict, will - I would wager - be statistically equivalent. Thus there is truth in the saying "there are many ways to skin a cat". Does the legal analytical process needed to arrive at the "truth" of an indictment matter so long as the end verdict is for the most part correct and "just" (assuming protections of civil individual rights).
As an aside, medieval methods of adjudication included torture. Torture or threat of torture would certainly encourage early facile confessions.
6 Analysis of crime scene. Facts and findings can always be disputed as to meaning. It depends on the initial theory of the crime. All crime investigators eventually must construct a theory of crime in order to make the myriad of findings intelligible. All human beings conjure theories of reality in order to make sense of their experiened "world".
A theory of crime should represent a 'null hypothesis" to be discarded or accepted. This is the center of the scientific method. As "evidence" is collected it MUST be interrpreted as counting for, against, or irrelevant to the question at hand. In this process there is always room for error and sometimes serious error is "inadvertantly" committed. Scientific progress and history of science are littered with bad thinking and errant ratiocination. In the instance of a crime theory - called "A". Experienced seasoned investigators often will get a "sense" of what happened. When you investigate hundreds of homicides you retain of a catalogue of MOs and motives. The initial "hunches" often turn out to be correct. For example - the spouse did it despite protestations to the contrary. BUT certain kinds of evidence may debunk the working hypothesis A. Then a secondary hypothesis is formulated which will intelligently and methodically guide the inquiry. It is a matter of judgment to know that the evidence at hand is sufficient to conclude who is guilty or not guilty.
Barring an open confession, multiple eyewitness accounts or a video clip of the the crime, many homicides are problematic and the "verdict" judgment will rely on the "state's theory of culpibility" which is nothing more than a "story" filled with connect the dots circumstances. Nothing wrong with that because that is the best the "system" has to deal with the problem. For the most part (but not always- like in science laboratories) the process of investigation, forensic analysis, interviews will garner sufficient "information" qua "facts" to permit a judgment of guilt or not guilty. In the US criminal court system the benefit of doubt is assigned to the defendant. Due to the overwhelming resources available to the state the state bears the proof burden.
Without getting into a tit for tat comparison of US common law vs Napoleonic Code facts in Italy are gathered according to forensic standards. Based on the Massei Opinion the AK and RS expert opinions were taken into consideration. The defendant attacks regarding shoddy analysis and DNA analysis were duly noted. AND after all was said and done a judgment was rendered. The reasoning in this opinion seemed to me quite sound.
A great deal was made of the dearth of AK and RS DNA at the Kercher crime scene. Okay. Maybe. But granted.
Those attacks on the reliability of forensic evidence do not completely debunk the verdict outcome. In scientific inquiry a lot of evidence is ambiguous and of questionable relevance. Nevertheless one takes the best guess estimate and moves on "as if" you have deduced correctly. The original prevailing theory that is finally accepted STILL remains tentative until it can be FALSIFIED. Falsification can be difficult if the dominant paradigm is religiously guarded. See Kuhn and Structure Scientific Revolutions.
7 Improper conduct of the "scientific method" -
""Then you get a situation where they form a theory and produce evidence to support that theory, ignoring anything else. And if that happens, the chances are very good that you are going to jail irrespective if you are innocent or not, since you will not have the tools to defend yourself"
All crime scene analysis and deliberation require by necessity a working hypothesis i.e. "theory". An investigator does NOT "produce evidence". Here it is implied the prosecution "manufactured or fabricated" evidence. I know of no "evidence" that facts or assertions were "manufactured" in the AK trial. Behaviors and observations were noted and "interpreted" as is necessary of all sensory input. The interpretation imputed to a behavior can be false, true,ambiguous, or misleading.
Example: The amorous giggling of AK and RS during the Kercher body discovery. The AK lobby regards this as normal immature reactions of a young person in shock. The other acquaintances of Kercher did not behave this way nor would most innocent people who come upon a grisly murder in their household. The "belle indifference" can be interepreted as a deliberate ploy to throw off the scent of suspicion. This observational point by itself is not apposite. But placed in an array of behaviors and data this behavior can be counted toward affirming the theory A.
I am unaware of purported critical information/ facts that were deliberatedly discarded by the Italian police/ courts.
For example - the kind of information that would be welcome and would serve to absolve AK and RS from the accusation of murder would be this:
A person - maybe heroin addict -who saw them at a distant disco around 10PM - 1AM Nov 1.
Activity on RS computer between 10PM and 1AM Nov 1.
A phone call to or from RS AK between the same time.
Cell phone activity of RS and AK that places them far away from the crime scene.
A valid alibi that can be confirmed placing AK or RS not at the Kercher murder scene.
Aside from this sort of peripheral information I am unaware of other significant exculpating "evidence" that was inappropriately discarded by the Italian state. I am aware of a platoon of paid experts that lambasted the "scientific evidence" gathered at the murder scene. Indeed the resources commited and money paid by the AK and RS machines would match any state supported effort to the contrary. If AK/ RS were convicted the reason is NOT that the suspects had insufficient resources to match the overbearing evil state.
8 Italian criminal investigations and reasoning process guided by their criminal codes.
""The presumption then is that the evidence they produce is correct, and the defence has to prove that it is not. If they fail, they are judged guilty"
I simply do not know what the reasoning protocols are that the Italian police and criminal courts assume as they approach a "crime". It is reasonable that the police investigators attempt to construct a crime hypothesis that will match their collected evidence. They must create some type of "story" that may or may not comport with "historical reality".
The idea of prosecution and defense colliding in their deliberation of what constitutes "evidence" vs what is spurious irrelevant or misleading undergirds the notion that after a process of elongated "pro" vs "contra" debate - the judges and jury will somehow arrive at the "Truth"; that is, after they retire and deliberate the merits of both arguments. Two courts, after ALL WAS SAID AND DONE, found sufficient reason to hold AK and RS responsible for murder. Based on what I have seen and read from 2007 to present I think the Italian courts arrived at the CORRECT judgment - regardless if they were operating under the Napoleonic Code of analysis. I also think that most if not all American courts would also find AK and RS guilty. Many courts have found murderers guilty on far LESS circumstantial evidence. Take the case of Drew Peterson. No body, no murder weapon, no DNA. Did Drew Peterson "off" his former wives. No doubt in my mind he is guilty.
9 Italian rush to judgment
"you are going to jail irrespective if you are innocent or not, since you will not have the tools to defend yourself."
While this assertion might be true for some Italians accused of crimes (And due to their lack of resources such unfortunate miscreants were improperly condemned to jail) this is CERTAINLY not the case of AK and RS. I would like to see the AK defense dispursement accounting i.e. what was paid out for experts both in Italy and the US that assisted her defense. In this regard I am mindful of the infamous Staircase Murder ie Staircase Documentary and Michael Peterson. Peterson spent nearly a million dollars defending himself but was "correctly" found guilty of muder despite the "owl did it" theory asserted in his defense. The parents of Jon Benet Ramsey managed to buy their way out of a murder conviction as did OJ Simpson. Amanda Knox will join this pantheon of murderers who spent millions on defense but did not get what was bargained for.
10 Are you serious????
"And when all of that gets to trial, because of the presumption of guilt and correctness of the evidence, there is very likely to be a conviction no matter what the defence does. They can't contest the evidence properly because the information that should have been gathered is not complete, or was not gathered at all, and consequently it is very hard to challenge the prosecution."
Hard to challenge the prosecution???? Seriously??
AK and for all I know RS -backed up by rich parents and AK riding a huge PR machine threw everything but the kitchen sink at the Italian courts. She had at least 2 or 3 crime jouralists, a mulititude of Italian and US experts on her daddy's payroll, a number of network broadcasters who portrayed AK as being hounded and impaled by a "corrupt meglomaniacal Italian police system". This of course makes for salacious reading, enhanced popularity, and increased ratings but it is poor journalism.
AK also had the implied cooperation of CNN and other networks when they broadcast very poorly conceived "documentaries" suggesting AK was railroaded.
The AK IS INNOCENT machine has been working overtime for over 4 years. However if you look at a very simple story of the Kercher murder both AK and RS are convincingly implicated in a felony. We can never be certain exactly what AK and RS did during the hours of 10PM and 11AM Nov 1-2 2007. We can be sure however that the 2 were NOT soundly innnocently asleep at the RS flat.
11. How about citing some evidence??
In essence, in Italy once a prosecutor decides to charge you, you are probably going to jail. Guilt or innocence has nothing to do with it."
This is a sweeping serious indictment. How about some evidence to support it.
A similar claim is being made vis a vis US legal system:
The entire US criminal system is corrupt and racist. Nearly 2 million people are currently incarcerated. What we have is a restoration of Jim Crow. ( See The New Jim Crow: Mass Incarceration in the Age of Colorblindness by Michele Anderson and Cornell West for this argument)
How about citing a book, a study, or a dissertation making the argument that the Italian legal system is either corrupt or at least inadequate in finding "truth and justice"??
12 Theories of crime when investigating a case.
"In the Knox trial we have seen the investigators form a theory right from the start, then go about collecting evidence to support their theory. The initial prosecutor bought into that theory immediately and embellished it considerably"
I have touched on this idea of constructing some sort of scenario of a crime that will guide the nature and direction of the subsequent investigation. I maintain it is requisite to form a hypothesis of "what happened" before one can readily understand the "evidence".
The Kercher murder -
Police find a locked bedroom door. They find a dead body underneath a quilt. The body shows bruising around the neck lips and face as well as deep puncture wounds to the neck. Kercher was naked from chest down and her bra was cut away.
Blood splatter and foot prints were found. Blood was found in the neighboring bathroom.
A "phony" broken window and heaped up clothes found in roomates room.
OK
Anybody thinking about this case will proceed by creating scenarios that fit the findings.
A. It is unlikely that Kercher committed suicide. SO we have a criminal "homicide".
B.Somebody other than Kercher did this. Who might you think about?
C. Roomates. Most alibis ergo most roomates are ruled out.
D. Hypothesis - Random entry burglary attempt and felony murder. This is a good hypothesis to keep.
Blanket and locked door with a key militates against forced entry and homicide. For example if you consulted a police database around the world collecting all cases of forced entry and murder how many times is the deceased locked in the room with a key and how many times is the body covered with a quilt? Decidedly unusual but at least hold that thought.
Front door ajar closed only with a key. So who had keys to the front door?
The "staged" forced entry broken window and heaped clothes was indeed staged. How many policemen would look at those circumstances - all of them - and reason - "hmmm - I believe somebody scaled the 15 foot wall and gained entrance and then proceeded to rummage through clothes?" OK Hold that thought and proceed.
Blood evidence - RG prints and DNA. Voila - murder solved.
Lone murder theory is definitely a viable hypothesis.
It is vitiated by the nature and extent of the wounds and by the facts that Kerchers phones were confiscated and discarded, her keys retained and discarded and she was locked in her room = What was RG thinking???
NOW if only AK and RS had reliable alibis, then we would have to think again about the lone murder theory or at least think RG had some help.
The point is that at this juncture one must postulate a number of different causal theories of how this murder was executed. A theory here is a "story" that includes all the clues.
YES. The Italian police created a story of what happened after the scene was analyzed. This is NO different from any American police action and crime investigation.
Yes PL was implicated and arrested. The theory was PL and AK did it. So the story at that time went. When PL produced a viable alibi - Viola - he was released and a new theory of crime created.
So now take this bare bones story.
AK and RS left the flat and met up with RG at the courtyard outside the Kercher domicile.
They entered and interacted with Kercher who was there. Somehow for some reason violence ensued and Kercher was sexually molested and murdered. RG fled the scene after taking some care to sop up the blood with towels.
AK and RS meantime opted to implicate RG solely by staging the entry. The door was bolted and cell phones confiscated in order to escape detection for a longer period of time and to avert attention if roomates below showed up.
AK and RS return late after washing themselves up and riding themselves of bloody clothes - could be AK or RS or both.
AK returns in the AM when there is light to inspect the scene and continue staging and tidying up.
Now is there ANY evidence whatsoever to contradict this story??
13 Non sequitor fallacy
" STATEMENT
When considering the Italian judicial system, it is critical that everything is done properly and according to rules of law before the trial starts for justice to be done.
CONDITION
If it is all messed up before you get to trial,
CONCLUSION
then it is corrupt and impossible to do justice under their system.
Comment
In any judicial system - by definition - it is important to "do things properly according to "standard operating procedures" before a trial begins. It is certainly possible that pre trials errors could be made but still the trial outcome turns out to be correct and just.
It is also possible that everything during pretrial investigation is competent and accurate yet an improper outcome ensues.
One could arguably claim the OJ Simpson trial is such an example. That is to say, if the entire Simpson proceedings were presented to 100 juries Simpson would have been found guilty 99/100 times.
The "if- then" statement above is fallacious because given the truth of the "if" clause the "then" clause does NOT follow.
"
