Can Amanda Knox be extradited?

In following the Meredith Kercher case, it’s not a question I looked into in detail, but I have always assumed that a hypothetical extradition of Amanda Knox from the United States to Italy would be unlikely. She would have hometown advantage at her extradition hearing and there would be all kinds of loopholes for a fancy or ambitious lawyer to exploit. The most those who believe Knox to be guilty could realistically hope for was the prospect of her being finally declared to be so once the Italian legal process had, at length, reached its conclusion.

When, two days ago, Knox and her former boyfriend Raffaelle Sollecitio saw their successful 2011 appeals overturned, much of the media coverage reflected this assumption. Whatever happened, Knox would be safe from the clutches of the Italians, just so long as kept her passport in a firmly-locked drawer. But then I noticed that the BBC had modified its coverage. At first, it thought that extradition was “unlikely”. Then its likelihood was “unclear”. Then it decided that “Italy could seek her extradition” and, finally, that “she could be extradited“. Elsewhere, American lawyers had started to stick their talking heads above the parapet. As with much discussion about the case, their views were radically polarised. “She is never going back to prison!” chirps one. “I can’t see how she could possibly resist extradition!” thunders another. I figure that, where it is hard to find anyone talking to the middle ground, it is probably less likely that the reality is some subtle mixture of the two, and more likely that one side or the other is talking out of its bottom.

As you might expect, the US has an extradition treaty with Italy, so the normal course of things is that either country asks for a suspect to be handed over and it just happens. But what various commentators have suggested is that this can’t happen with Knox, because she has already been tried for the crime. Since the the Fifth Amendment to the US constitution outlaws double jeopardy, it would be unconstitutional to extradite her to face a further trial. However, as the law stands (although here we must add the caveat that it doesn’t always stand still), this does not seem to be correct. The authority for that is a 1974 ruling by the Court of Appeals, where the potential extraditee was in a pretty similar situation to Knox, except it was a drugs offence and it was Canada. And he was extradited. The court ruled that what it was obliged to consider was whether there was a conviction according to Canadian law, and not whether the Canadian courts were following the US constitution.

It might be pointed out – indeed, it has been, by New York attorney Sean Casey – that the treaty between the US and Italy contains a specific clause regarding non bis in idem, the international law equivalent of double jeopardy. This forbids extradition of anyone previously “convicted, acquitted or pardoned, or [having] served the sentence imposed, by the Requested Party”. The trouble with this is the meaning of “Requested Party”. If you expect this to mean “the country to whom the extradition request has been made”, then you would be spot on. So, in Knox’s case, the clause simply means that she could not be extradited in the case that she had already been convicted (etc) of the crime in the US. That fairly obvious interpretation can be seen as recently as last year in a case before the California District Court. Advice if you are in the New York area: make sure any attorney you hire can read.

A further ruling of the Court of Appeals says that judges hearing extradition cases are not permitted to inquire into the conduct of the case according to the law of the country requesting extradition. So, the kind of hearing that some of Knox’s supporters might hope for – one where extradition is denied on the grounds that the Italian authorities don’t have a clue – ought not to be possible. And it also seems like a vain hope that the State Department will intervene to prevent a case going ahead. They are bound by the treaty. There may be cases in which they would intervene, but Knox isn’t suspected of a political crime and there is no issue of national security involved in her case.

What could happen in theory is that Knox is able to argue her case all the way and have previous case law swept into history. If she’s able to take it that far, then maybe all bets are off. But a ruling in her favour seems to me unlikely just because it could leave the United States practically unable to maintain extradition treaties with a whole raft of counties, including many of its closest allies. It wouldn’t just affect a few isolated cases, particularly in the case of double jeopardy. If there’s constitutional protection against double jeopardy, then that ought to apply not only where there is an immediate prospect of it happening, but also in any case where someone risks being extradited to a country where there is any possibility of it happening. And how many countries will be willing to reshape their criminal justice system according to US dictats or allow foreign scrutiny of their judicial processes?

Most inappropriate Amanda Knox coverage

I just had to post this.

Oggi is an Italian magazine that has probably been Amanda Knox’s biggest media supporter in Italy during her appeal. This week’s edition naturally carries the news that Amanda is free. And, I’m guessing, the tiny circle you can see just above her name is the Italian guy.

But do you get the feeling that the people who do the cover and the people who do the cover-mounted gifts should talk to each other more?

Understanding the Knox/Sollecito verdict

For those who have been reading my blog (thank you, by the way) it will not come as a surprise when I say I am less then wholly satisfied with the today’s acquittal of Amanda Knox and Raffaele Sollecito. I’m very much with the unruly mob shouting “shame!” outside the courthouse this evening. In spirit, you understand.

I don’t even believe this is a case where a court has erred with two left feet on the wrong side of the fine line between technical and reasonable doubt. I’ll not go into the detail of the evidence, since, over the next few days, that will undoubtedly be done thousands of times with greater inaccuracy than I could ever achieve. But perhaps it suffices to give the view that it is such that no acquittal could have been possible under normal circumstances.

It won’t be possible to know how the decision of the court was reached until it publishes its detailed motivation report. But I find it hard to imagine how it will make sense. The disheartening expectation I have, which I think others will share, it that it will offer the reasoning of a court that has crumpled under the pressure of a public relations campaign. A humiliating day for Italy.

And, of course, a heartbreaking tragedy if you are able to spare a thought for the Kercher family. Tomorrow, one of their daughter’s murderers will fly home to ticker-tape and a small fortune. Another, like the drummer in successful rock band, will take a smaller share of the royalties, but the proceeds, taking into account possible government compensation, may still be enough so that he is at liberty to choose whether or not he ever wants to work in his life or not. Merdith Kercher’s death seems almost reduced to the level of a smart career move.

Today’s verdict will undoubtedly, however, be appealed. That’s more than a speculative exercise, since it does happen than people are acquitted at first appeal and then found guilty by Italy’s supreme court. But the focus of the second appeal will be much narrower, restricted only to questions of law and logic. Although that is construed fairly widely in the Italian system, what it means is that the decision of the appeal court can’t be corrected simply because it is wrong. It will have to be shown to be legally unsound before any evidence can be re-examined. Until the motivation report from the appeal is published, it is impossible to say what the chances of the prosecutors succeeding in a further appeal might be.

The case, because it has had such a high profile, may have ramifications in Italy for two reasons.

Firstly, even though the reasons for the decision will not officially be known for a few weeks, it can be assumed that the court has rejected entirely the forensic evidence provided by the police. That’s not a small matter. As in most European countries, forensic testing in Italy in centralised, so an implication of the verdict may be that the entire forensic science set-up in the country is simply not fit for purpose or, at least, it wasn’t at the time of the investigation. A modern forensic science service ought to be able to handle DNA evidence that, as in this case, comes from a very small sample or from an item that had lain in situ for some weeks without difficulty. The Italian police would undoubtedly claim that their forensic teams are as capable as any in the world. I’m not in a position to deny that. But, from a practical point-of-view, if the whole of the scientific aspect of a prosecution is capable of simply crumbling in court, it must be important to try to understand why that happened.

Secondly, reform of the judicial system in Italy is a very live issue, in no small part because Silvio Berlusconi stands accused of various crimes and so he has made judicial reform a priority. I think it is unlikely that Italian public opinion will be behind today’s verdict and it will be seen by many as an example of how Italian justice is far too lenient with defendants.

Personally, I think Italy should take caution before making too reactionary an interpretation of the Knox/Sollecito case. It may be fair to point out that Italian appeals can tend to be slanted so that the focus for live examination is selected aspects of the defence case, so that much of the prosecution case takes a back seat. And there may be some room for quibbling about certain evidentiary rules applied in the case (the exclusion from evidence of Knox’s false allegations against Patrick Lumumba, for example). But the decision today can’t just be about a systematic problem. The automaticity of appeals in Italy may indeed favour defendants. But, surely, a guilty person ought to remain guilty regardless of how may re-trials are granted.

If, like me, you’re disheartened by today’s verdict, then I don’t really have much to offer by way of consolation, except the observation that justice is not always done and that’s something we have to live with. And at least you know, next time you kill someone, to think about who is going to do your PR before you think about who your lawyer is going to be.

Raffaele Sollecito’s wager

More likely than not, we are now less than a day away from a verdict in the appeal of Amanda Knox and Raffaele Sollecito against their 2009 conviction for the murder of Knox’s flatmate Meredith Kercher.

Later today, the two appellants are expected to give spontaneous statements to the court, so as to – quite properly – have the last word before the judges and juror-judges go away for their final deliberations. Undoubtedly, news headlines in the run-up to the verdict will cull some finely-crafted soundbite from Knox’s speech. But the thing to watch out for, which could actually have some influence on the subsequent decisions of the court, will come from her co-accused.

The narrative of the defence lawyers regarding the murder centres on the supposition that Knox and Sollecito were at the latter’s flat at the time of the murder. The basic assumption is that they provide each other with mutual alibis. However, things are not actually as clear as that at present.

Two days after the murder, before he was a suspect, Sollecito told the Sunday Mirror newspaper that he and Knox had spent the night at the flat, but only after having “gone out to party” with a friend of his. Then, two days after that, he told the police that he had spent the evening alone because Knox had “gone out to meet some friends”. “In my previous statement,” he said,”I told you a load of crap because she convinced me of her version of events and I didn’t notice the inconsistencies.”

Those inconsistencies might seem awkward enough to explain. But a potentially thorny problem is that, although it might be assumed that Sollecito now agrees with the version of events as told by his lawyers, he has at no stage made that explicit to the court. So accepting the alibi is not straightforward.

When he addresses the court, assuming he does, he has the opportunity to set the record straight and shore up the alibi. But doing so may be problematic from another point of view.

There’s a perfectly viable logic by which the court can uphold Knox’s conviction whilst overturning Sollecito’s. That could happen, because there is simply less evidence against him, particularly if the bench decides it can’t rely on the famous bra-clasp evidence. And, as things stand, the problem of why he would vouch for Knox in a scenario where she is guilty and he is innocent doesn’t arise because, strictly speaking,  he hasn’t actually done that.

So, Sollecito and his legal team are in the horns of a dilemma. Should he stand up and corroborate Knox’s version of events? Or should he continue to exercise his right not to talk about it?

I honestly can’t say which he will do or which would be in his best interests. However, if he decides to address the issue, then he may be tying his fate to that of Knox. So if it does happen, it is probably a sign that Sollecito’s lawyers do not believe an accquittal for Knox to be unlikely.

*

Since this may be my last post before the verdict and since I can tell by the look on your face that you are dying to know, here is the best I can do in terms of a set of predictions.

Firstly, I don’t think anything at all can be ruled out altogether. However certain I or anyone else might be, there is no accounting for the fact that courts sometimes make decisions which appear irrational, either because they are or because the court has much better access to all the information than anyone who takes it upon themselves to commentate.

However, I think it will be an astounding result if both Knox and Sollecito are freed. Given that so many others are less certain, you might think I’m being bold. But you should consider three things. Firstly, a lot of what you have read about the case is made up. Secondly, there is a lot of evidence. Considerably more, as I attempted to show with this post,  than a murder conviction necessarily requires. And the various strands of evidence are independent of each other, so that there is no likely house-of-cards effect whereby the judges can pick up on something neglected by the lower court which changes the whole picture. Thirdly, without exception, the various explanations (at least, those which have any degree of coherence) of how Knox and Sollecito might be innocent, whether they are found in the media or on the Internet, share one thing in common. Even if they do not say it out loud, they always carry the implication that our unfortunate heroes must have been actively framed. One of the Sollecito’s lawyers,  Donatella Donati, was even brave enough to hint at that possibility in court this week. But it is just not a thesis that the bench can possibly entertain. Could the famous Italian sense of pride (rolleyes) have overridden all sense of normal morality in that way without anyone ever breaking rank? Not in the real world.

Sollecito’s chances of an acquittal are slightly better than Knox’s, just because there is less evidence against him. As I said above, this could be influenced by what he says in court today.

Apart from the basic question of innocent-or-not-so-much, as I suggested in this post, I think a significant increase in the sentences is unlikely, but I think a slight reduction is 50-50.

In terms of the charges other than murder, there is a charge of staging a crime scene, which logically stands or falls with the murder charge. The same might be said for the charges of stealing from the victim and illegally carrying a weapon. It should be acknowledged, though, that these convictions were somewhat inferential on the part of the trial court, so it is possible they will be overturned.

Knox’s conviction for criminal libel, for having falsely accused her boss Patrick Lumumba, will, I think, stand regardless of what happens on the murder charge. This is because she doesn’t actually deny it, because, from a pragmatic view (even though judges should not really be pragmatic in this way) she has served her time for that offence and because, even in the event of an acquittal for murder, the judges will be aware that the money she will have to pay Lumumba is small potatoes compared the riches awaiting her at home.

These are no more than my opinions, of course. You may be interested to note that numerology has decided differently.

Knox/Sollecito: There’s not much left to say

Raffaele Sollecito

But let’s have a go anyway…

If the court keeps to its schedule, there’s only a weekend left between now and a verdict in the appeal of Amanda Knox and Raffaele Sollecito.

Over the course of closing arguments, it seems commonly agreed that there have been impressive courtroom performances from lawyers representing both sides of the case. And they have also, between  them, developed a handy set of bad analogies so as to provide a sort of psychedelic overview for those who don’t find the whole case strange enough as it is. DNA profiles are pasta dishes. Amanda Knox is Jessica Rabbit. And also the goddess Venus. Not to forget, all sorts of enchantress and demon. Sollecito seems to have barely been mentioned, even by his own lawyers, so he remains, in contrast, just some guy. Or perhaps he is Roger. For the defence, the prosecution case is like a bunch of neutrinos whizzing along a tunnel. Or possibly like a hydra. I’m not sure what this means, but I’m guessing that the most obvious interpretation – that is is virtually undefeatable – is not the one intended.

What neither the prosecution nor the defence have provide, though, is anything very new. Over the last few days, all we have heard is rehashed versions of arguments that will be so familiar to the bench that they will have sounded like the lyrics to a pop song that has been with them since childhood.

The only real, fairly minor, surprise was that the defence adopted a thesis that various blood samples found in the flat containing the DNA of both Knox and Meredith Kercher were indeed a mixture of blood from the two. Knox’s supporters have long pointed out that this cannot be known, because it is scientifically not easy to tell the difference between a mixed blood sample and, say, a mixture of blood and saliva. This seems perfectly correct. But the defence appears to have decided that it might just as well be blood. After all, the idea of Knox spitting in various locations where Kercher’s blood was coincidentally later deposited sounds marginally less plausible than the idea that she coincidentally bled in those locations. Due to an incident with an earring, it turns out.

The other notable development in the defence summing-up was the ways in which it didn’t develop. Crucially, there is a clear theoretical argument that the knife alleged to have been used by Knox to kill Kercher and the clasp from her bra, alleged to have been handled by Sollecito after the murder, were in fact contaminated with DNA some time later, and so they are not reliable. We might, during closing arguments, have seen some defence hypothesis suggesting how this might have happened, but it didn’t come.

In the case of the knife in particular, it ought to have been important for the defence to complete the circle. It was recovered from Sollecito’s flat, where Kercher had never been, and lab contamination seems to have been ruled out. So how is her DNA supposed to have got onto it? Courtroom DNA controversy or no, it’s hard to see how this doesn’t solve the case pretty much on its own.

In news reports about the closing arguments of both the defence and the prosecution seem to betray an almost pathological obsession with influence of the media over the case. Or is it just that the media is pathologically obsessed with itself? Hard to tell, maybe. But it does seem clear that prosecutors and defenders spent valuable time during their speeches talking about unfair coverage. But, more curiously, their target was not fevered and exaggerated coverage in Perguia (this doesn’t really exist), but general criticisms of  and stale reports in the English language media. The prosecution condemned CBS, the defence condemned the Daily Mail, and so on.

Now, it’s not that this has no relevance to the story. For supporters of Amanda Knox, publications such as the Mail are responsible for an insidious campaign of character assassination against her without which Italian judges, clearly avid consumers of British tabloid journalism, could never have suspected her of anything. On the other side of the argument is the claim that a professional and well-financed PR campaign on her behalf has twisted a case in which the facts were clear into a manufactured controversy. The Knox family control the US media, and who’s to say that doesn’t mean they control the whole world?

Call me naive, but I think the one place that the facts of the case will be clearly heard above all the din and chatter is in the deliberations of the appeal judges and juror-judges. They don’t really need reminding to ignore the cobblers that has been written about the case in a foreign language. So who are the lawyers talking to? They surely can’t have been, in their vanity, addressing their words to the 400 or more journalists currently squeezed into the courthouse? This case has always been weird.

On the other hand, perhaps I am indeed naive. Perhaps the case will be decided according to the opinions of ill-informed hacks and nonsense on the internet such as you are currently reading. I can’t believe it is likely, but it may be the last ray of hope for Jessica and Roger.

Amanda Knox and Raffaele Sollecito: how Italian sentencing works

My post for today is about the rules governing sentencing for murder in Italy. Not unexpectedly, the prosecution in the appeal of Amanda Knox and Raffaele Sollecito today asked the court to impose life sentences on both of them. This would be a stiffer punishment than the 26 and 25 years, respectively, that were handed down in the original trial. But what are the chances the prosecution will get their wish?

Once again, I feel obliged to make it completely clear that I am about to pontificate about things that I am absolutely unqualified to address. But I’ve gotten away with it in the past. Please feel free to comment below if you think I have any of these details wrong.

It doesn’t seem that the prosecution are pursuing with any vigour the line they argued unsuccessfully at trial, that life sentences were appropriate because the crime was premeditated. The criterion they are focusing on now is provided by Article 557 of the Italian Penal Code, which allows for life imprisonment for murders carried out for “depraved or trivial reasons”. In other words, it applies in cases where a murder appears meaningless and purely sadistic. And this is what was suggested today by prosecutor Manuela Comodi. Meredith Kercher, she said, was “killed for nothing“.

Obviously, the question for the courts, in the event that the convictions are upheld in the first place, is how well this assertion fits the facts. If the way the original trial against Knox and Sollecito went and, to a lesser extent, the proceedings against their co-accued Rudy Guede, the judges will have a lot of leeway to fill in the blanks and decide precisely what motivated the murder.

But they also face the problem of what to do when it’s virtually all blanks. We can know very little for sure about precisely what happened in the minutes and moments leading up to the crime. But we can speculate. Perhaps Kercher was killed for reasons which, though it seems perverse to express it in these terms, might be described as something other than “depraved or trivial”. There’s some suggestion in the evidence, for example, of a row over money. Or maybe there really was no comprehensible motive for the crime. But when you just can’t be sure, can you really make someone a life prisoner based on a leap of imagination? My guess is probably not.

It’s worth noting, though, that a life sentence may not add much to the status quo when compared to the current sentences being served. Life doesn’t mean life in Italy and Knox and Sollecito would probably be eligible for parole in 2028. That’s the same date as currently applies in Knox’s case, and it adds only a year onto Sollecito’s current likely jail-time. It might, thought, cause a delay of a couple of years in terms of their so-called Gozzini rights, which will allow them, after a certain period, to get day release from prison in order to work and will also grant them generous supervised periods out of detention (it came as a surprise to me too, but it seems that, even if their convictions are upheld, Knox and Sollecito could potentially be back in their own beds for up to 45 days a year, conceivably starting within the next twelve months if they were to get a slight sentence reduction).

Which brings us to another obvious question. If they lose their appeals, could Knox and Sollecito still get reduced sentences? And, if so, how reduced?

The minimum sentence for murder in Italy is 21 years, by virtue of Article 575 of the Penal Code. However, just as life doesn’t mean life, it turns out that minimum doesn’t mean minimum. Articles 61 and 62 of the Penal Code set out a number of defined aggravating factors and a general provision that anything suggesting the reduced culpability of  a defendant can be presented as a mitigating factor, and the sentence adjusted accordingly. Amanda Knox’s many fans shouldn’t get over-excited, though, because it does seem like significant reductions in sentences for murder are rare, and really reserved for cases where there is a very significant issue about the responsibility of the perpetrator, such as low IQ. She won’t get it just for her charming personality.

At trial, Knox and Sollecito got 24 years each for the murder, with the addtional years of their sentence relating to staging a burglary, theft, carrying a weapon and, in Knox’s case, her false accusation of Patrick Lumumba. The 24 years took into account a lack of premeditation and acts which the court took to be slight signs of remorse (for example, covering the body after the crime) as mitigating factors, and the cruelty and sexual aspect of the crime as aggravating factors. I’m not sure that the appeal judges have an awful lot of room for manoeuvre here. Maybe a little, but it would seem hard to deny either that the crime was cruel or that there was a sexual aspect to it.

I also don’t think it is likely that the sentences will be commuted to anything less serious. Italian law does allow for crimes of unintentional homicide, but it’s clear that the facts of this case are not going to fit that. And it’s hard to see the court coming up with a scenario in which either Knox or Sollecito are mere accessories to the crime. Could anyone believe, for example, that they had nothing to do with the murder but took pity on Guede and decided to clean up after him? In theory, the Italian Criminal Code allows a reduced sentence if any one of the three can establish that they took part in the crime but didn’t intend the victim to die. But how can the court establish such a claim on behalf of someone who won’t even admit to being at the scene? It might even be supposed that either Knox or Sollecito got involved in a clean-up after the murder out of infatuation with the other. But surely they would have said so by now? Without evidence to support such a scenario, there’s nothing a court can do to help the dumbstruck.

One thing ought to be clear. The court will not reduce the sentences as any sort of compromise between guilt and innocent. If it has doubts about the convictions, they will  be overturned.

Amanda Knox and Raffaele Sollecito back in court on Monday 5th

Amanda Knox during her last court appearance on 30 July

After a five-week break, the appeal of Amanda Knox and Raffaele Sollecito against their conviction for the 2007 murder of Meredith Kercher will resume on Monday.

We pick up where we left off, in the middle of discussions about the reliability or otherwise of DNA evidence taken from a knife, alleged by prosecutors to have been used by Knox in the murder, and from the clasp of the victim’s bra, said to have been removed from her body by Sollecito after she died.

That’s a debate that took some dramatic twists and turns before the court went on its holidays, and it may be that we have not yet reached the end of that twisty-turny phase.

At the end of June, two court-appointed scientific experts submitted a report re-examining the conclusions of the forensic work originally performed on these two highly important pieces of evidence. The report presented a clear argument that the results seen could plausibly have been the result of contamination, either in the laboratory or during the collection and handling of the evidence. During that collection and handling, they said, procedures fell below that which ought to be expected. Furthermore, not enough was known about procedures in the lab to be sure that contamination could not have occurred there, particularly in the case of the knife, because the amount of the victim’s DNA apparently found on the blade was so tiny that even a very small slip in procedure could have caused it to be present due to cross-contamination from samples of the same DNA previously run in the lab. They recommended that DNA from neither the knife nor the clasp should be considered reliable.

That hasn’t been the end of the matter, though. The prosecution, finding themselves suddenly playing the defence in a sort of play-within-a-trial, began their fightback in the last session before the summer break. Most significantly, lead prosecutor Manuela Comodi was able to get Carla Vecchiotti to agree that the amount of time that had passed between the testing of the knife and clasp samples and any prior testing related to the Kercher case had been sufficient so that it was unrealistic that any potentially contaminating DNA might have still been present in the lab. That seems to add up to a pretty impressive turnaround on the part prosecutors, since it may make questions about the standards applied in the lab irrelevant. Whatever they were like, it’s not possible to contaminate a sample with DNA which isn’t there.

It’s particularly significant in the case of the knife, because it was recovered from Sollecito’s flat and it is well-established that Kercher had never been there. It therefore seems unlikely that her DNA could have got onto the blade by any means in that location. If it can’t have been contaminated there and it can’t have been contaminated in the lab, then it remains reliable evidence. Not long ago, the knife seemed all but destined for the evidentiary trashbin. Not any more. But the defence may not yet have said all they have to say about that.

The situation is different with the bra-clasp, because that was recovered from the flat where Sollecito’s girlfriend, Knox, lived and he had been there numerous times. The prosecution are insistent that the chances of his DNA being on the clasp by contamination are too slim to be taken seriously, even if there were lapses in protocol at the crime scene. But the court has been shown a DVD of forensic work that went on there, which the defence hope will have demonstrated that this is not a safe assumption. I’ve only seen a few short extracts from that DVD, but I guess the big question is what the judges and juror-judges will have made of it. Will it have looked to them like a standard crime scene, perhaps with one or two forgiveable lapses of concentration on the part of investigators? Or will they have struggled to keep the Benny Hill theme tune from playing in their heads as they watched?

On Monday, further cross-examination of Carla Vecchiotti and her colleague Stefano Conti is scheduled, this time by Francesco Maresca, counsel for the Kercher family. He has expressed to the media in no uncertain terms his exasperation at the DNA report. For him, it was one-sided and incomplete. No doubt that’s something he’ll be repeating. He’ll also want to get his questionees to repeat the thing about contamination in the lab. But will he have anything up his sleeve that can do the same for the clasp as has apparently been done for the knife?

We can expect that questioning to be thorough, so there may not be time for much else. But, if there is, the court may here from personnel involved in the original forensic work. There may also be mention of Luciano Aviello, a Mafioso who previously testified that his brother had murdered Kercher, but has since said he was offered money for this testimony and he was lying. Aviello was never really a credible witness, so I don’t think this will have any impact on the appeal, but the court will want to get his retraction on record at some point.

There was a good article about the case in yesterday’s New York Times. The first thing that struck me about it was the title: “Mother’s Long Vigil for Seattle Woman Jailed in Murder”. I’m sure that must be the first headline about the case in nearly four years not to feature the word “Knox”, which may be a sign of how far out of the public consciousness the story has slipped. The second thing was a quote from Manuela Comodi apparently agreeing with me that the second most important element to the prosecution case, after the knife and clasp, is the evidence of a staged break-in at the crime scene.

The case of Robert Kennedy

Arthur Eathorne, found murdered in his flat in 1990

In a recent Australian TV magazine feature on the Meredith Kercher case, the British journalist Nick Pisa said something I found a little odd. In his view, it seems, the case would never have come to court had the murder taken place in the UK, because the evidence is just insufficient.

Now, there are worse things in the world than being a little chauvinistic about standards of justice. But I don’t think that’s exactly what’s going on here. Many people who seek to defend Amanda Knox and Raffaele Sollecito do so, in my opinion, on the basis of a wholly unrealistic view as to how much evidence ought to be enough to convict someone in a court of law.

There’s a lot of evidence in this case. You only need to be able to to count to know that. Of course, for each item of evidence there’s a defence argument, with greater or lesser plausibility, that it doesn’t say what it might appear to say. But the whole purpose of taking the matter to court is to have those arguments adjudged. No prosecutor has ever dropped a case on the grounds that footprints found near a body which tests say were probably made in blood might actually have been made in fruit juice. Or that falsely accusing someone of a murder is a relatively normal thing to do if you are suffering from stress.

I thought I’d take a look at a British case which, in my view, was prosecuted on evidence which was far thinner than in the Kercher case.

Robert Kennedy is a former prostitute, convicted in 1991 of murdering a client. He has always maintained his innocence and has unsuccessfully appealed his conviction twice, the last time being in 2007.

The only physical evidence linking Kennedy to the scene of the crime, the victim’s home, came in the form of two cigarette butts. These were believed by police to have been left by the culprit because a taxi driver had called at the house a short time before the murder, and he testified that the ashtray in which the butts were found was empty at that time. The butts were not initially examined for DNA, but saliva on them was found to be of a type matching Kennedy and also matching about 25% of the population. This evidence was admitted at trial. Years later, the saliva was tested for DNA and it turned out not to be Kennedy’s, but that of an unidentified person.

The main evidence against Kennedy comes from two witness statements relating to a conversation that took place at Kennedy’s shared house. The first witness said that she walked into a room in the middle of a conversation between Kennedy and four other people. They were, according to her, discussing a murder that had happened locally. Since news of the murder had not yet broken in the media, it is unclear how they knew about it. The witness also recalled Kennedy mentioning something about an ashtray and then being told to shut up by someone else present. This is significant, because a large glass ashtray (not the one with the cigarette butts in) was missing from the scene of the crime and may have been the murder weapon. Witness number one also seemed unsure about whether the conversation had taken place on the day of the murder or the day before, but that does not seem prevented her testimony being accepted by the trial jury.

Witness number two was party to the same conversation, but did not hear the word “murder” used, only talk of some incident or other involving two men and a woman. She said that Kennedy had been told to “shut up”, but that this was not anything to do with him mentioning an ashtray. She couldn’t remember what night the conversation had taken place on. She also recalled seeing a pullover with blood-stains on it, but wasn’t completely sure whether that was on the same night.

According to the police, Kennedy had lied to them on two occasions. Firstly, he had at first denied, then later admitted, having had sex with the victim. I think it seems obvious that even an innocent person might have told that lie. Secondly, he told police that he had read in the newspaper that a large glass ashtray was missing from the scene (a fact that had indeed been reported in the media) and offered a description of it from his recollection, saying that it was oval and had a label saying “Hofmeister”. But enquiries with the makers of Hofmeister lager revealed that they had never produced an ashtray fitting the description given by Kennedy.

On remand, Kennedy had also been alleged to have confessed to three fellow inmates. One of these was applying for parole and had agreed with the police that he would try to get information for them by talking to Kennedy. A second was also applying for parole and told the police he had information about Kennedy but would not tell them anything further until he found out whether or not he was going to be released. A third had no parole hearing in process, but had given details about Kennedy’s alleged account of the crime which describing things which were known not to have happened. Kennedy’s story was that he had spoken to all three of the witnesses about his case, which is how they were able to concoct accounts for the police. But he denied having confessed to any of them.

The defence produced evidence that the victim had been wearing a wind-up watch which had stopped a certain time after the murder. Unless this was almost fully-wound when the crime occurred, Kennedy could not have been the murder, because he had a solid alibi.

Those are the facts of the case. It might seem to you like an enormous miscarriage of justice. After all, prisoners, particularly those who might be trying to bargain for a release, are not always reliable witnesses. The witness who heard Kennedy talking about a murder and an ashtray is clearly contradicted by another witness. And surely it is possible that Kennedy just made an honest mistake in describing the ashtray to police. Add this to the dispositive evidence in terms of the DNA and the thing about the watch, and there must be reasonable doubt. Mustn’t there?

I’m not saying any of that is wrong. But perhaps it makes incorrect assumptions about the normal standard of proof in criminal cases. Presumably, the jury heard and evaluated the witnesses, took the evidence before them into account and felt able to make a decision. “Reasonable doubt” is not the same as “no possible objections”.

In the Kercher case, as well as the DNA evidence which is currently the subject of debate, we have all the evidence of a staged break-in, footrprints made in blood (or, possibly, pear juice), Knox’s DNA found mixed with the victim’s blood, her false accusation that someone else committed the murder, two witnesses who saw Knox and Sollecito near the murder scene at times when they claim to have been elsewhere. Maybe the court will eventually decide that all the evidence was misleading. But the process is more-or-less the same as it would be for a British jury. How much do you trust the witnesses? How certain do you feel you need to be about the science? And, for prosecutors, the decision about whether to go to trial is mainly based on making a guess as to what the chances of conviction are, on that basis. I think the idea that all that evidence was never enough to even put before a court just doesn’t show common sense.

By the way, apologies to anyone who Googled in here expecting to find information about a link between Amanda Knox and the other Robert Kennedy.

R v Kennedy [2007] EWCA Crim 3132

Knox/Sollecito: How to spot a fake burglary.

In the ongoing appeal of Amanda Knox and Raffaele Sollecito against their convictions for the murder of Meredith Kercher in 2007, attention has recently been focussed on two pieces of evidence, a clasp from the victim’s bra and a knife, said by prosecutors to be incontrovertible proof linking the DNA of the two suspects to the crime. There will be more courtroom discussion about that in September but, as things stands, it does not seem easy to guess what the view of the court with regards to these two items will eventually be.

If the DNA from the knife and clasp proves resilient to assaults on its value, then it would seem likely that the convictions will be upheld. But what if that is not the case? Supporters of Knox and Sollecito will point out the central position of this DNA evidence within the prosecution case. Take it away, and what is left? Those who believe that Knox and Sollecito are guilty will argue in return that there is plenty left. This was never a case that hung by a single thread.

In a way, both sides may be right. Clearly, if you take away two pieces of evidence that, essentially, purport to show that Knox stabbed Kercher and that Sollecito removed her bra after she died, then the case against them can only be weakened. But by how much? Can the rest of the evidence stand up on its own, or has it always relied on the knife and clasp to hoist it out of the mists of uncertainty through corroboration?

Prosecution lawyers have said that, even if the current battle is lost, there is still DNA evidence, in the form of mixed samples from Kercher and Knox found at the scene, which they believe is equally compelling. But that is one of a number of possible views on the case. In the event that the knife and clasp go MIA, I wonder whether the best part of the prosecution case to deputise might be the question of whether Knox and Sollecito faked a burglary at the crime scene in an attempt to cover up their crime.

The day after the murder, police officers arrived at the flat where it had happened because two mobile phones used by Kercher had been found abandoned. When they arrived, Knox and Sollecito told them that they were concerned because their appeared to have been a break-in and there were spots of blood in the flat. A short while later, Kercher’s bedroom door was broken down and her body was discovered.

Investigators soon arrived at a belief that the apparent break-in was in fact simulated. This was, perhaps, the earliest indication that Knox and Sollecito were involved in the murder. Apart from Kercher, Knox had been the only person in town with a key to the flat. What’s more, it seemed unlikely that anyone else could have a motivation to interfere with the crime scene in the manner that had taken place. A burglary would draw attention away from the occupants of the flat, but from who else? And since the other occupants of the flat were not in town…

The potential power of a staged crime scene hypothesis is shown by a study conducted in 2000 by the forensic scientist Brent Turvey. This looked at twenty years’ worth of US criminal cases where a crime scene had been staged and attempted to identify commonalities between them. Although this turns out to be only 25 usable cases (all domestic homicides), what is striking is that in 11 of them, convictions appear to have been secured purely on the basis of police and expert testimony as to the staging. And in all the other cases, the additional support to this testimony came in the form of some sort of confession or self-implicating statement by an offender (which is relevant, because Knox made a statement accusing her boss of the murder and placing herself at the crime scene, which she later retracted).

This doesn’t provide a solid guide to the chances of the current appeal being upheld purely on the basis of the burglary having been staged, because Turvey is not able to tell us about the number of cases where there was an acquittal despite an allegation of crime scene staging. But it does give us an indication that such an allegation can be enough to sustain a conviction, provided a court buys into it. Neither DNA evidence, nor eyewitnesses, nor bloody footprints, nor phone intercepts, nor analysis of computer hard-drives are necessarily required.

In Knox and Sollecito’s 2009 trial, the court did exactly that. The appeal is hearing no new evidence on this question, but the judges are entitled to review the evidence from the trial and come to a different conclusion if they so wish. It may be that they have to do just that if the appeal is to be successful. But is that likely?

Methodology

There is no single handbook that gives a definitive explanation as to how the staging of a crime scene can be established. But there does seem to be broad consensus among experts on a number of guiding principles.

Firstly, the question is, primarily and ultimately, concerned with physical evidence in the form of the state of affairs found at the crime scene. Experts differ as to how relevant non-physical evidence might be in certain cases, but it is clear that, with the obvious exception of a confession with regards to the staging, such evidence can only ever be vaguely indicative one way or the other.

The victimololgy of the case (essentially, does anyone benefit from the death of victim?) may be a consideration. But that does not seem to be relevant here. Another factor might be the existence of a potential suspect who has made attempts, apart from the supposed staging, to steer the attention of investigators away from himself (or herself). An example of this might be where a suspect has made a false accusation against someone unconnected to the crime…

But the final proof or disproof of staging is not in such details. It is in the physical arrangement of the crime scene.

There is a long-established view that the investigation into staging should focus not on attempting to prove it, but on attempting to disprove the competing hypothesis (in our case, that there was ever a genuine burglary). This may sound like a pedantic distinction and perhaps it is. But it is held to be important because it provides clarity of method. First you search for evidence which is inconsistent with the competing hypothesis. You then test these inconsistencies against all the known facts of the case. Can they reasonably be given any explanation other than staging? If any inconsistencies then remain, your conclusion must be that the scene was staged.

Perhaps I am labouring this point. But I’d remark that much Internet theorising in this area with regards to the Knox/Sollecito case focuses on explaining how a genuine burglar might have committe the crime, drawing attention to evidence that is consistent with that account: the position of a shard of glass or the way a rock appears to have landed in relation to the window.

I can understand the urge to do this – obviously is is useful to have an alternative to the account offered by the prosecution. But at the same time, it ought to be obvious why such approaches are problematic from a crime scene investigation point-of-view. People who stage crime scenes typically do everything they can think of to ensure that the staging looks as realistic as they can make it look. Therefore, any evidence that is consistent with a genuine break-in is also consistent with staging. You can only disprove the staging by focusing on the alleged inconsistencies. That is a one-sided approach, admittedly. But it is, apparently, the correct approach.

The inconsistencies

This book offer a three-point checklist as a starting point in identifying staged break-ins: were inappropriate items taken?; did the point of entry make sense?; did the hypothetical perpetrator have a high-risk of being seen?

The items removed from the flat, apart from the murder weapon or weapons, were: two mobile phones, later abandoned; Kercher’s bank cards; probably cash; Kercher’s house keys. The cash aside, it is not clear what value these items would have to a burglar. The phones, cards and keys of someone recently murdered are obviously very risky things to take from the scene. Perhaps it might be argued that our burglar didn’t realise that at first. But why the keys? Indeed, why was the door to the room in which the murder took place locked?

Point of entry is discussed below, but it suffices here to say that our burglar has chosen a particularly difficult, perhaps impossible, way of gaining access to the flat. The risk of being seen was also reasonably high. Although it was dark, the point of entry is on the part of the building most visible to passing pedestrians and traffic.

So, we seem to have a case which fits well with these recommended indicators.

This book provides a useful guide to the types of inconsistencies that might be looked for.

The hypothetical point of entry is the green-shuttered window at the top of this photo.

First we consider the point of entry. Specifically, we should be looking for anything that might have made the point of entry impassable (was it barricaded or bolted, for example?); what transfer evidence is apparent (e.g. blood, fingerprints, footprints etc); whether the entry could have been possible in the manner required to commit the crime (this is, we are told, “often the most dispositive feature” in establishing crime scene staging).

Our hypothetical burglar gained entry to the flat through a second-level bedroom window. It was not barricaded or bolted, but the outside shutters were firmly closed – the wood was swollen, so they were wedged in place. They might have been openable from the outside, if with a little difficulty. But this, it has been argued, would have required the burglar to make the ascent twice: once to open the shutters, then back down to the ground to hurl a rock at the window, then finally back up. The first climb would have been speculative – had the shutters been latched on the inside, that would have been the end of the attempt.

The window would also be a strange choice for a burglar on account of its position. It is in full view of the road that passes by the building and, as you can see from the photo, it doesn’t offer an easy climb. To the rear of the building is a balcony, which certainly looks more accessible and is relatively secluded. What can have been in our burglar’s head?

What’s more, no transfer material was found. No dirt or bits of leaves on the wall, no footprints on the bedroom carpet, no nothing. The burglar managed, so it seems, to perform the break-in without leaving a trace of himself.

The trial court was convinced that the window could not be considered a realistic target for a burglar. But, all the same, might the appeal court not see some room for doubt? It looks to all the world like an unlikely point of entry. But, surely, you can’t send two people to prison if there is even a slim chance that the break-in might not have been staged.

Does this photo help the defence case or the prosecution case?

What the textbooks recommend is to perform a reconstruction experiment in order to give a definitive answer to the question. In other words, you get someone (maybe these guys) to attempt the climb. That’s something that investigators never did. Perhaps they felt that the impossibility of the exercise was obvious, or perhaps they didn’t want to risk a success. The defence, though, do seem to have conducted some sort of experiment, as shown by the photo to the right. But why were the results of this never discussed in court? Does the photo show someone succeeding in accessing the window, or failing?

The next relevant question, working through the list, is whether a weapon has been removed from the crime scene and, if so, why? At least one knife must have been used in the murder, but it was not found with the body. How consistent would this be with the actions of a burglar? I don’t think we can be entirely sure that it is inconsistent (after all, for all we know the knife may have been monogrammed), but maybe you have a different view.

Then there is a question of whether the body was moved after the crime was committed, or whether it was dressed or undressed to any degree. Kercher’s bra was found on the floor near the body. The cups were stained with blood on the front side, suggesting that she was wearing it at the time she was stabbed. The bra also bore tiny spots of blood, similar to spots found on Kercher’s chest, suggesting that she exhaled blood onto herself while she was still wearing the bra.

The body was found covered by a duvet, but blood from the body does not appear to have transferred to any great extent to the fabric of the duvet. This suggests that the blood had substantially dried before the body was covered. Our burglar must have hung around quite a while.

The defence argument is that Kercher must have been sexually assaulted after she was stabbed. That would make the motive for the burglary an especially deranged sex attack. Such things are not unheard of, but why would such a burglar waste time rifling through clothes in the neighbouring bedroom (which is what appears to have taken place)? And how does it explain the duvet?

It is also necessary to consider the ransacking. Our burglar seems to have rifled through clothes in the room of one of the occupants of the flat, paid some interest in her laptop, but not actually taken anything of value. Why was he interested in the clothes? What was he hoping to find? Why did he not, instead, go quickly from room to room picking up items of obvious value? Does the existence of an apparent ransacking fit easily with the defence supposition of a particularly unusual sex attack? If this was the motive for the burglary, why did the burglar not make straight for his intended victim? Or, if he decided to look for valuables after the attack, why did he take nothing?

The glass on the window ledge

What would seem to be the most convincing evidence of a staging is, however, none of the above. It is all to do with glass. Broken glass was found on the window ledge in a pattern that was consistent with the shutters having been closed when the window was broken. That is, glass was found distributed on the ledge, but no further forward that would have been permitted by the shutters in their closed position.

Both the occupant of the room that had been “burgled” and one of the first police officers on the scene testified in court that they had found shards of glass from the window on top of the belongings found strewn across the room. How could this be possible unless the ransacking had occurred before the window was broken.

So there’s quite a pile of evidence to suggest that the crime scene was staged. How much of it can be explained away? I don’t know. But the difficulty for the defence is the logic of the methodology. If there’s one detail that can’t be reconciled with a genuine burglary, then there must have been a staging. That could be the glass on top of the ransacked possessions. If the appeal judges can’t think of a reason to doubt the witness testimony (I can’t, although that’s not necessarily a guarantee that they won’t), then there must have been a staging. And if there was a staging, Amanda Knox must have been involved in it.

Knox/Sollecito: update on today’s court proceedings

Photo by Franco Origlia

The prediction I made at the end of my last post that today’s hearing in the appeal of Amanda Knox and Raffaele Sollecito would be “the most enlightening and important session” in the process turned out a little wide of the mark, mainly because the meat of the prosecution response to the recent DNA review in the case didn’t happen. We will have to wait until after the court’s summer recess for that, when police scientist Patrizia Stefanoni will give evidence explaining why, in spite of the criticisms in the review, the DNA analysis she undertook in relation to two key pieces of evidence in the case is reliable.

That will be the most enlightening and important session in the process. Mark my words.

Today’s hearing began with the presentation in court of a letter from Stefanoni’s boss, Piero Angeloni, taking issue with the DNA review and affirming his confidence in the work of his people. It might be said that this tells us little we didn’t expect – after all, it already seemed clear that the police were not going to put up a white flag. Apart from support for Stefanoni, though, I think the real purpose of the letter to highlight how unusual the DNA review undertaken in the case is, in the view of the police. It is unprecedented, says Angeloni, for the police to be subjected to this type of criticism in court.

I wonder if this is a foretaste of a public policy argument the prosecution may seek to hang their hat on. The authors of the review, Stefano Conti and Carla Vecchiotti, start from a position of feeling they need to trawl through academic literature in order to piece together the standards by which they feel Stefanoni should have operated. But, it might be argued, this constitutes them assuming the role of a two-person regulatory body. Even if their recommendations are sound, it is the accepted regulatory framework that matters. The courts cannot permit the police to be subjected to creative criticism that goes beyond this framework because, in that case, the streets would quickly fill with acquitted murderers.

At least, I think that’s where we may be going, and it is also something that is reflected in what Stefanoni recently said to the Observer: “We followed the guidelines of the ENFSI, theirs is just a collage of different international opinions”.

Given what is said the review though, the question that immediately raises itself is how closely the ENFSI or any other guidelines have been followed. I don’t know what the standards required would have been on the relevant date, but it is likely that Stefanoni will need to convince the court that, for example, negative control tests were appropriately carried out on the samples taken from the alleged murder weapon. Arguing that you only need to follow certain agreed standards and then going on to argue that you don’t even need to follow those may be a step too far.

Meanwhile, each side seems to have scored a point in their cross-examination of the experts regarding that alleged murder weapon, a knife recovered by police from Raffaele Sollecito’s flat. The defence were able to elicit an opinion that the blade of the knife had been subjected only to a fairly ordinary wash prior to its discovery by the police. The judges will no doubt be wondering how likely it is that Knox and Sollecito dealt with their murder weapon by giving it only a general clean.

The prosecution, for their part, secured an agreement from Carla Vecchiotti that a six-day gap between the testing of the knife and any prior testing of items containing the DNA of Meredith Kercher would be sufficient to guard against contamination. This may be very helpful to prosecutors, since their main task is to show that the theoretical risks of contamination outlined in the DNA review could not have given rise to any actual contamination.

With respect to the other piece of evidence under consideration, the clasp from Kercher’s bra, said by prosecutors to bear Sollecito’s DNA, the most important answer may turn out to be one that wasn’t given. According to one report, when asked by prosecutor Manuela Comodi how it was possible that Sollecito’s DNA on the clasp could be the result of contamination, the two experts were not able to give any clearer explanation than “anything is possible”. That answer could well turn out to be an Achilles heal for the defence case.