Can Amanda Knox be extradited?

March 29, 2013

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

October 6, 2011

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?


Please Tweet for Meredith Kercher

October 6, 2011

Meredith Kercher

Stephanie Kercher has sent a message out asking if people would be willing to use this picture of her sister Meredith as their profile picture on Twitter, Facebook and any other newfangled means of communication they happen to be users of. You can do it for a few days or as long as you like.

You may be aware that the Kercher family are concerned about Meredith having become somehow lost in the media version of the story of her sad death. The idea is to give them reassurance that there are many people out there who have not forgotten about Meredith and who understand that the Kercher family’s search for truth and understanding remains as important now as it was a few days ago.

I’ll be changing my profile pic on Twitter to this photo, and so will a close friend and collaborator of mine. I hope you’ll join us.


Understanding the Knox/Sollecito verdict

October 4, 2011

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

October 3, 2011

Raffaele SollecitoMore 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

October 1, 2011
Raffaele Sollecito

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

September 25, 2011

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 for closing arguments

September 23, 2011

Photo: Mario Laporta/AFP/Getty Images

Today in Perugia, the appeal of Amanda Knox and Raffaele Sollecito against their conviction for the 2007 murder of Meredith Kercher entered its final stages as the prosecution began to sum up its case.

In the main, what they had to say seems to be just as might be expected. For them, all the evidence overwhelmingly points to the fact that the pair are – wait for it – guilty. First of all, Knox has no credible excuse for attempting to pin the crime on her ex-boss Partrick Lumumba. And the fact that he was present in court today can only have served to underline that inexcusability. What’s more, somebody tried to stage a burglary at the crime scene, and there is simply no-one other than Knox and Sollecito who could have had any reason to do that. In spite of criticisms of key pieces of DNA evidence in the case, the science remains sound. Knox killed Meredith Kercher with a knife belonging to Sollecito and Sollecito removed Kercher’s bra after she had died. Even if there were any doubt about that, at the crime scene their footprints were found in the victims blood at the crime scene, and Knox’s DNA was found intermingled with same blood. And the defence version of events – that Knox spent the evening of the murder at Sollecito’s flat, where they got up late the next day – is contradicted by the records provided by Sollecito’s ISP, not to mention two witnesses  who saw them in the vicinity of the flat during that period and who – despite the suggestions of the defence to the contrary – both gave reliable testimony.

Reports from Perugia seem to suggest that all this was fairly effective in its presentation. And, of course, it’s an important function of closing arguments that they serve to remind the court of the most salient details of the case and to outline the shape of the prosecution and defence arguments. But, slightly add odds with the way things might work elsewhere in the world, the judges and juror-judges in this case were empanelled ten months ago and have had all that time to digest reams of sentencing reports, trial transcripts and technical documents. By this stage, their impressions of the evidence, whatever those may be, are likely to be fairly settled and there’s no much that the prosecution – or, by the same token, the defence – will be able to tell them they didn’t already know. And it’s equally unlikely that any new perspective on the evidence can radically affect the outcome of the trial.

And so, the most significant part of what prosecutors had to say today (or, at least, the most widely reported) was more to do with the psychology of the courtroom. For some time now the bench has been its (rather occasional) court sessions looking out at the faces of the two defendants. For better or worse, there must by now be a fairly intimate relationship between Knox, Sollecito and the eight people who will decide their fates within the next couple of weeks. And the appellants don’t necessarily look like bad people. They are someone’s son, someone’s daughter. And, judging  by their recent appearances in court, Knox in particular seems to be suffering from the strain of it all. It might be inferred from today’s proceedings that the prosecution are concerned that a factor in their disfavour, not written in witness statements or DNA printouts, is the impact of basic human pity.

Prosecutor Giancarlo Costagliola bemoaned media coverage of the case which, he said, made everyone “feel like the parents of Sollecito and Knox” and urged the bench to put themselves instead in the shoes of the victim’s parents. That seems to have been the key message of the first day of closing argument, and it wasn’t put subtly. Just prior to the court going into private session to view images of her wounds, Costagliola’s colleague Giuliano Mignini recalled looking into Kercher’s eyes at the crime scene.

Later, he discussed the public relations efforts made on behalf of his quarry, alluding without apparent reservation to Joseph Goebbels. “Slander, slander, slander”  is how he characterised it. And anyone familiar with the case extra curiam will be aware that he feels himself to have been among the targets of such. It can’t be doubted that this was not a timid performance. And, at the end of proceedings, a more-or-less direct attack on the morality of the defence case: “Don’t let the black guy pay the whole price for this murder”.

Observers of the case who take different views will all agree that there has been a lot of inaccurate and misleading coverage of it. Personally, I’m more than fed up of reading that Kercher died in a “sex-game-gone-wrong” or that Knox only pointed the finger at Lumumba after hours and hours of gruelling questioning. That’s not really the point, though. The judges have access to the information they need so as not to be led astray by things they might read in the hairdresser’s. What the prosecution have tried to do today is make sure that the bench is awake to its duty to see through the spin on a more fundamental level. They mustn’t make decisions based on emotion or on the feeling that the case is perceived, out there in the world, as controversial or significant. And they’ve put in the mind of the judges the idea that public comment on the case is not independent of the defence.  “In 32 years in this profession” said Mignini, “I have never heard of television stations buying plane tickets for supporters of the defendants in exchange for interviews.”

It’s probably not a bad line to play, since the advice is so clearly correct. The defence are hardly going to come back with a plea for the court to ignore the evidence and focus on press speculation. And, with members of the Kercher family reported to be intending to be there for the defence summary next week, the prosecution must be hoping to usher in a change in the emotional dynamic of the courtroom. But, even if the prosecution have succeeded today in getting their message across today, the case will still hang on what the Sphinx-like judges have actually made of the evidence. Those dice are probably cast already.


Knox/Sollecito DNA battle – who won?

September 7, 2011
Giuliano Mignini and Carlo Torre

Prosecution advisor Giuliano Mignini and defence expert Carlo Torre in court today. Picture from Umbria24.it

As courtroom debates over DNA draw to a close, tweets and early reports from English language journalists in Perugia covey a mood that things are going in the defence’s favour in the appeal of Amanda Knox and Raffaele Sollecito against their convictions for the 2007 murder of British student Meredith Kercher.

Maybe there’s some basis for this, but I’m unconvinced. One possible reason for taking such a view might be a misreading of the thing that’s hogged the limelight in reporting over the last 48 hours. Yesterday, prosecution expert Giuseppe Novelli criticised Carla Vecchiotti and Stefano Conti, the scientists who conducted a review of DNA evidence, for their decision not conduct a full re-test with regard to the kitchen knife alleged to have been used in the murder. According to Novelli, this could have and should have been done. It was an inexplicably missed chance to confirm the validity of the original testing.

Today in court, the prosecution formally requested further testing of the knife, but the request was declined. My impression is that some have taken this as a significant clue as to the thinking of presiding judge Claudio Pratillo Hellmann. But I don’t think it is. Whatever is between his ears, he was never going to accede to the request. Knox’s lawyer Luciano Ghirga objected in court that holding a second review of DNA evidence is virtually unheard of, and I don’t doubt that this is correct.

And re-testing wouldn’t have had much value in any case. If it had failed to find the DNA, that would not have excluded the possibility that there was DNA there at some point. And if it had found the DNA, that would not have excluded the possibility that it got there by contamination, as the defence have argued. The prosecution were sensible not to miss an opportunity to demonstrate with intent how confident they are about the validity of the evidence, safe in the knowledge that their bluff was never going to be called. But the inevitable rebuff means nothing.

It’s not easy to predict what the bench will end up making of the DNA evidence overall. That’s partly because the answers they are looking for are in the boring technical detail gone over by the experts in court, much of it obscure and most of it unreported. But, with regard to the knife, assuming they follow the explanations of the science they have heard in court, I don’t think the judges have much option but to accept that it is valid evidence.

Six weeks ago, it was another story. The possibility that the knife was contaminated was the ace in the defence’s hand. The DNA review said it was possible and it was not easy to see how any reasonable scientist could disagree. The quantity of Kercher’s DNA found was tiny and, unless everything was done extremely carefully, a tiny amount of DNA in a test can be the result of contamination.

There was never a real chance that this contamination could have occurred during the recovery of the knife, because this had happened at Sollecito’s flat, where Kercher had never been, and there is no good reason to think that her DNA might have been there. But the DNA review reported a lack of detailed information about how tests were conducted in the lab. So, unless the prosecution were able meet the burden of showing that everything in the lab was hunky dory, prudence dictated that the possibility of contamination there could not be ruled out.

That picture flipped in testimony on 30th July, when one of the authors of the DNA review, Carla Vecchiotti, was asked about the difference it might make if it could be shown that no material relating to the Kercher case had been tested in the lab during the six days prior to the testing of the knife. That could rule out the possibility of any of Kercher’s DNA being present in the lab in order to contaminate the knife. Vecchiotti said that six days was long enough for this to be the case. Perhaps tellingly, the defence don’t seem to have put forward any counter-argument to this.

Which means that the defence case with regard to the knife is effectively reduced to the proposition that the DNA sample was too small and some of the peaks in the printouts were below 50 RFU in height. It is what is sometimes referred to as “low copy number” DNA. But the argument is weak without the possibility of explaining a consequent risk. There’s no doubt that the sample is a match to Kercher and if there’s no possibility of contamination, who cares how small the sample was? And why should they? This line of defence seems to amount a plea to turn back the scientific clock. As DNA analysis has improved, it has become routine around the world (with the notable exception, until recently, of the US) for convictions to be based on tiny quantities of DNA. It happened in the Anna Lindh case, the Peter Falconio case and, in the UK, over 500 cold cases have been reopened using low copy number DNA evidence. The judges in the Kercher case ought really to treat the idea that the sample is too small in the same way they would treat a plea for a speeding ticket to be thrown out because it was printed in 6-point font.

Arguments regarding the clasp from Kercher’s bra, said to have had Sollecito’s DNA on it, appear slightly more finely balanced. The same principle as in the case of the knife would appear to rule out the possibility of contamination in the lab. But the judges fact a genuine dilemma when they consider the possibility of contamination at the scene of the crime. The prosecution point out that Sollecito’s DNA was only found in one other place in the flat, so it’s not as if the place was swimming in it. And there’s no real reason for it to be found in Kercher’s bedroom, which is where the clasp was recovered from.

But, whilst it may be true that the chances are not high, the question for the judges is how high do they need to be? That’s very subjective. They’ve been played a DVD showing various alleged breaches of protocol by investigators in handling evidence, such as failing to wear the right protective clothing and putting some of the evidence into plastic bags rather than paper ones. They also have to consider that the clasp moved across the floor of the bedroom between its discovery and its eventual bagging over a month later, by some means that has not been accounted for. These things don’t necessarily carry with them a huge increase to the risk of contamination. But the judges might just feel that the risk doesn’t need to be huge to be significant.

It also has to be acknowledged that, whereas there remains a considerable amount of evidence against Knox with or without the knife, the clasp is a fairly big part of the case against Sollecito. I don’t think he’s likely to walk free, but maybe it isn’t unimaginable.

And it seems that lead prosecutor Manuela Comodi has enough imagination to conceive of the possibility that the case may not go her way. On the one hand, this only seems like stating the obvious. But something seems wrong with any picture than involves a lawyer being candid with journalists.

Closing arguments begin on 23rd September.


Knox/Sollecito: Monday 5th September in court

September 5, 2011
Amanda Knox, 5/9/11

As is customary, here is a picture showing how Amanda Knox dressed for court today

Today’s court session in the appeal of Amanda Knox and Raffaele Sollectio doesn’t seem to have put any real dynamite under anything, but it does seem to have been interesting for a few reasons.

First there was a discussion about documentation of negative controls carried out on the items of DNA evidence currently the subject of contention. The controls are significant, because a lack of evidence of them was cited as increasing the risk of contamination of the evidence in the lab, in a scientific report by court-appointed experts Carla Vecchiotti and Stefano Conti.

The significance of these documents may be somewhat reduced now, since Vecchiotti has conceded that the chances of lab contamination are, after all, not high, because of length of time between the testing of the disputed evidence and any prior testing of other evidence related to the case.

According to the prosecution, the documents were filed way back in 2008 and Conti and Vecchiotti ought to have been able to take them into consideration, it’s just that they didn’t. The defence argue that the documents were not re-filed for the appeal and that it is too late to seek their admission now. Judge Hellmann decided not to decide, and instead deferred the matter. Presumably, he will ask for the documents if he thinks they still matter at the end of the current courtroom debate.

Most of the morning session was given over to a further cross-examination of Carla Vecchiotti, this time by Fransceso Maresca, counsel for the Kercher family. It seems to have been fairly important to Maresca’s strategy to depict Vecchiotti and her collaborator Conti as having submitted a report which criticised not just the evidence in the case, but DNA evidence in general. Of course, that’s something no court could stand for, so it’s probably not a bad strategy to go for if you think you can pull it off.

It’s not really an entirely fair allegation, in my view. The central thread of the DNA report, that there were reasons to worry about the possibility that evidence may have been tainted by contamination, was reasonable. It’s a thesis that now seems in danger of corroding like an unattended metal hook, but it was right to raise it. Vecchiotti’s vice is to not want this to happen and that seems to be something that Maresca preyed on in court today, as she strayed away from sound science and onto riskier, less convincing ground.

The best example of this was her suggestion that elements of her own DNA and even (oh, the theatre!) that of Judge Hellmann, in all probability, could be discerned in the DNA printout attributed as a mixture of the DNA of Raffaele Sollecito and Meredith Kercher. Undoubtedly, that seemed to her like a good way of getting a point across. But it isn’t science, it’s rhetoric and misdirection.

As I tried to show in this post, the thing about a mixed sample is that you can usually find indications of anyone’s DNA in the printout if you really want to and you don’t know what you’re doing. I know that, because I really wanted to find Casey Anthony’s DNA in the printout we’re talking about. I didn’t know what I was doing and – hey presto! – I found it. Sort of. What I couldn’t un-find, though, was every single one of Kercher’s peaks and every single one of Sollecito’s peaks, right there, plain as day.

In case you don’t get the point, write out the names MEREDITH KERCHER and RAFFAELE SOLLECITO on a sheet of paper. You will see that every letter of CARLA VECCHIOTTI is there, except for the V and one of the Cs. But that doesn’t mean her name is there.

To put it yet another way, elements of Vecchiotti’s profile, as well as elements of Hellmann’s, probably can be seen in the Kercher/Sollecito DNA printout. But that would be true of most prinouts from a mixed DNA sample. Vecchiotti has fallen into doing exactly what Maresca is accusing her of. She’s slipped from critiquing the evidence into a low-brow critique of forensic science in general.

So, Vecchotti’s claims in this regard are not only meaningless, they’re also disingenuous. It’s a big problem for her credibility if that’s as obvious to the bench as it is to me.

And if it isn’t now, it will be at some point, because she has provided team Maresca with a singularly memorable exchange to be recalled and lambasted later in the process. Be sure of it.

On the question of the presence of Kercher’s DNA on the blade of the knife, Vecchiotti repeated the line she reluctantly gave at the last hearing before the summer break. Yes, it’s a match, you could say, but it is from a very small amount of DNA and therefore not reliable. Again, I think this is going to look like obfuscation to the judges. But only because it is. What Vecchiotti isn’t able to clarify is in what way a small amount of DNA is not reliable. From a scientific point of view, it could give rise the possibility of a false positive through contamination. But we already knew about that. Or it could give rise to “stochastic effects”, false or missing DNA peaks. But it can be seen just by looking at the DNA printouts that no such things are present. They just contain Kercher’s peaks. Again, clear as day.

I don’t think she’s fooling anyone. But it’s the fact that she is trying to that is most damaging for the defence. You could say that her point-of-view appears to small to be reliable.

In the afternoon, Patrizia Stefanoni, lead scientist in the original investigation, was, in contrast, softballed the questions by prosecution lawyer Manuela Comodi. But first she gave a presentation explaining why Conti and Vecchiotti were wrong and she was right. The detail of that presentation probably will be considered important by the judges. Unfortunately, I don’t know what those details were, so I can’t enlighten you much.

Under questioning, she explained how good the procedures in her lab were (they handled samples from behind a glass screen, apparently) and how Conti and Vecchiotti had failed to take into account how standards had changed between then and now. How can she have been expected to perform to standards that had not been set at the time? How can she be expected to have acted in the way she might do with test kits that were not yet on the market?

She admitted that plastic evidence bags were used at the crime scene after investigators ran out of paper envelopes. And there seem to have been one or two interesting new facts. Did you know they used the household fridge at the flat for storing evidence before moving it on?

But that was the easy part for her. Tomorrow, she will face questioning from the defence.

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A lot of reports today have focused on a letter written to the court by Meredith Kercher’s sister, Stephanie. I don’t have much to say about that, other than that this report is the one that seems to quote from it most extensively.