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 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.

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.