The Italian judiciary (which includes the public prosecutors) is a branch of the civil service. This particular branch chooses its members, is self-ruling, and is accountable to no one: a state within the state!… Political and dishonest judges have an infallible method of silencing or discrediting opponents, political or otherwise. A bogus indictment, the tapping of telephones, the conversations (often doctored) fed to the press to start a smear campaign, a spectacular arrest, prolonged preventive detention under the worst possible conditions, third-degree interrogations, and finally a trial that lasts many years and ends in the acquittal of a ruined man.
–Count Neri Capponi
Why do only defense witnesses get sued?
The first, second, and third thing I would say to someone new to the Knox-Sollecito case is that you simply cannot understand what happened in Italy based upon your knowledge of what goes on in courts in the United States, the United Kingdom, Canada, Australia, or almost any place else in western Europe, for that matter. Italy is another country; they do things differently there and justice suffers as a result.
In the next four posts I hope to provide an anatomy of the injustice visited upon Amanda Knox in this broken system. I look first at the crude tools that the Italian authorities use to beat down defendants and their families–through overly long trials, the abuse of preventive detention laws, and the regrettable tendency to investigate and indict critics. In subsequent posts I will take on related subjects including:
- The multiple, concrete ways in which the trials of Amanda Knox and Raffaele Sollecito have not been fair.
- The shocking destruction, withholding, manipulation, misrepresentation, and manufacturing of evidence that began in Perugia and continues to this day.
- The problems with the Italian system as identified by talented journalistic and legal observers.
Today, I hope to set the table for upcoming discussions by briefly describing some of the most visible flaws in the system.
Trial Length as War of Attrition
Meredith Kercher was murdered by Rudy Guede on November 1, 2007, when Amanda Knox was just a few months out of her teens. As I write, she is few months shy of her 27th birthday. If things go “quickly” (and badly), her wrongful conviction could be confirmed before she is 28. If things go well–and that would most likely mean yet another trial at the appeal level and a final hearing by Cassation–then final resolution could be much further off.
The Italian system is like a powerful, slow moving glacier that destroys everything in its path–the defendants, their families, innocent bystanders, the family pets–everything.
Try imagining what this extended ordeal must have been like in real life. Even if they are acquitted in the end, Amanda will have been robbed of her young adulthood. Imagine further what the extended Knox-Mellas family has been through. They have had to try to keep up a viable defense for almost seven years in a foreign land, a continent and an ocean away from home. They have had to pay for lawyers, expert consultants, airfare, and food and lodging over an unconscionably long time.
I have no personal knowledge of the situation, but surely careers have been damaged, bank and retirement accounts drained, houses refinanced and all the while the glacier of Italian justice grinds on completely indifferent to the collateral harm. Doubtless, Amanda’s book contract helped some, but between taxes and previous debts the proceeds must be nearly gone by now.
And that is just the money aspect. The psychological and perhaps even physical damage has to have been enormous. Amanda and Raffaele have both spoken movingly about prolonged bouts of despair, made worse because of the suffering visited upon their loved ones too. At the end of the day, the defendants and their families are so weakened financially, psychologically, and physically that they lack the means and the will to fight–and that, I suspect, is exactly the point. The state may or may not win in the end, but either way the defendants and their families lose. Heads I win. Tails you lose. Welcome to justice Italian style.
Abuse of Preventive Detention Laws
Like the excessive lengths of trials, Italy’s widespread abuse of its preventive detention laws has been the object of extensive criticism. In what follows, I am basically cribbing from Benjamin Sayagh’s excellent analysis of the misuse of these laws in the Amanda Knox case. You can read it here:
These laws, originally passed in the late 1970s in response to terrorist violence, allow Italian authorities to detain suspects for up to year while they are being investigated. Such laws are by nature extremely problematic because they lead to significant punishment in advance of conviction and, more than this, push the courts perilously close to prejudging the evidence. That’s why most counties have much stricter limits on how long you can be held before being charged. In the U.S., for example, most jurisdictions require that a person be either charged or released within 72 hours.
As Sayagh explains, preventive detention is acceptable under international law, if a country has sufficient safeguards in place to prevent abuse. In theory, Italy has such safeguards. But as the European Court and a UN Working Group have found, the protections that look good on paper are often cynically ignored in practice. Laws that were intended to combat terrorism, are routinely used in cases where they should never apply. The protections, in other words, are all a facade.
According to the letter of Italian law, preventive detention is only allowable in certain circumstances:
- When the crime has great national importance.
- When there are grave indications of guilt.
- When releasing the defendant may allow him/her to escape prosecution, commit additional crimes, or destroy evidence.
- When alternatives to imprisonment (e.g. the confiscation of a passport) is not feasible.
If one takes such legal “tests” seriously, it is apparent that the application of these laws was completely unjustified with regard to Amanda Knox and Raffaele Sollecito.
- Did the Knox-Sollecito case involve a national emergency? Obviously not.
- Were there “grave indications” of guilt. No. Prosecutors filed a stunningly weak case at the 11th hour and 59th minute, long after preventive detention of was approved.
- Was Amanda a threat to flee? Hardly. She could have left Italy and was urged to but didn’t.
- Was Amanda a threat to commit more crimes, including murder? Ridiculous. There were no signs of criminality in her past that would justify any such assumption.
- Could Amanda have destroyed or altered evidence? Again, ridiculous. She was locked into her story at that point and would have had no way to alter the physical evidence or the testimony of others.
- Were there no feasible alternatives to imprisonment? Of course there were. Merely confiscating her passport would have done the trick–witness Sollecito now.
Reasonable people might well ask how and why Italy would choose to end run and ignore the significant protections provided by its own laws.
As to the how, the courts proceeded in the approved Italian way, through windy, overblown rhetoric and fact-free conclusory statements. Amanda, we were told, had a “negative” personality. She took lovers and could not control her emotions or her actions. And everyone knows that a girl so out of control is quite literally capable of anything–even murder. Further, Amanda was so diabolically clever that she was not only a threat to sneak out of Italy herself, but to sneak Raffaele out with her.
It is really about that simple–and that stupid. There’s not a shred of evidence to support any of this nonsense but there you have it. In the Italian courts, arrant nonsense too often rules.
As to the why, I should think it is obvious. Although the preventive detention laws in Italy may protect the public in theory, they are all too often used protect fellow magistrates with weak cases. It’s called “structural collusion,” and it means that judges allow their esteemed colleagues, the prosecutors, to get away with just about anything.
Amanda and Raffaele were in prison for almost a year before they were even charged. With them safely out of the way, the prosecutors were in a position to control the public narrative, and pressure (one might even say “torture”) the suspects psychologically in an effort to win a confession. They did both ruthlessly through leaks and deliberate cruelty.
Inside prison, Amanda and Raffaele suffered horribly, long before they were even charged. He was put into solitary confinement for months and harassed and mistreated to the point that he was having fainting spells and required medication. Amanda was told she tested positive for HIV and would need, as a routine public health precaution, to list her sexual partners. It was all a hoax of course. And after Amanda wrote down her modest list of names in her diary, Mignini and his minions promptly stole it and selectively leaked its contents–including the names of her lovers–to the public.
Can we agree that such conduct on the part of the authorities is deeply dishonorable and undermines justice? How is it remotely possible to take a system that allows this seriously, or treat it with anything other than contempt? It is a wonder that Knox and Sollecito could even talk–much less defend themselves adequately–by the time the trial started. That, no doubt, is exactly what the prosecution aimed for- defendants too damaged and demoralized to fight and press on.
You’re My Enemy? Then I will Indict You!
The headline is taken from a magazine article which detailed Prosecutor Mignini’s enemy’s list and his willingness to abuse prosecutorial discretion by indicting his many critics. As it turns out, the practice is not confined to Mignini.
Problems with the length of trials and the abuse of preventive detention laws have not gone unnoticed within Italy. But making an effective case for change requires real courage, because to point out abuse by the authorities is to risk becoming a victim of abuse yourself. The courts use fear to avoid critical scrutiny and reform. The evidence of this is everywhere to be seen if you follow the Knox-Sollecito case closely.
A classic example occurred during the most recent trial. When Amanda Knox’s lawyer, Carlo dalla Vedova, mentioned the fake HIV test during his summation, he found himself rudely interrupted, bullied, and threatened from the bench. Judge Nencini had him to understand that unless he could provide proof –in the form of medical records–he was exposing himself to legal jeopardy. The judge was being utterly disingenuous, of course, because he knew very well that the police and prison officials who committed the outrage would never release incriminating information to the defense. But the message from on high was chillingly clear: they can do whatever they want to your client in prison and if you complain you will face charges.
We have witnessed similar sorts of things go on so often that at this point it is almost numbing. Here are just a few conspicuous additional examples:
- Amanda is currently the defendant in another, related trial. Her “crime”? Making the entirely plausible claim that the police cuffed her lightly on the back of the head during her midnight interrogation in an effort to frighten and intimidate her. Interrogation tapes or video would have shed light on her claim, but, as we know, they famously and mysteriously went missing.
- Amanda’s parents, Edda Mellas and Curt Knox, are currently on trial for no crime other than repeating what their daughter told them. They did so while they were at home in Seattle speaking with a British journalist who was writing a story for a British paper. Interestingly, neither the journalist nor the newspaper, both of whom were sympathetic to the prosecution, were included in the indictment.
- Attacks on journalists and bloggers who were critical of the prosecution’s behavior in this case became so severe that the prestigious Committee to Protect Journalists felt obliged to write a formal letter of protest to the President of Italy.
I could go on at considerably greater length–indeed, I am not even sure I know how many “satellite” trials there are–but you get the point. And now that Amanda Knox and Raffaele Sollecito have written books relating their experiences we can expect a new orgy of strategic litigation against the “enemies” of the courts. Already it has been announced that Raffaele and his co-author Andrew Gumbel are being targeted, and Prosecutor Mignini has expressed the view that charges must be filed against Amanda as well.
This could and probably will go on for years. In Italy, you see, they mangle you before trial through unwarranted pretrial detention. Then they mangle during a trial that grinds on for years. And if anyone complains, or if any journalist investigates, well they do so at their own considerable peril. If you complain, you may, in the most vicious of vicious cycles, find yourself facing endless litigation as each attempt to defend yourself leads to new charges.
And we are only getting started in our effort to describe why the trials of Amanda Knox have been unfair.