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.

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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.

*

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.


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

September 2, 2011

Amanda Knox

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

August 31, 2011

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.

August 8, 2011

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.

Point of entry

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.

Man climbing up wall

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?

Some glass on a window ledge

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

July 30, 2011

Amanda Knox and Raffaele Sollecito

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.