Of Fair Trials and Hangings

by Lenroot

“Potemkin Village”:

A pretentiously showy or imposing façade intended to mask or divert attention from an embarrassing or shabby fact or condition.

(After: Prince Potemkin , who allegedly had villages of cardboard constructed for Catherine II’s visit to the Ukraine and the Crimea in 1787)

–Dictionary.com

 

We’ll have a fair trial followed by a hanging.

–Judge Roy Bean (attributed)

 

If I were an average observer with little knowledge of the facts, I would assume that Amanda Knox was probably guilty. Why would I think anything else?  Her trials seemed fair. Amanda had expensive lawyers and it certainly seemed like they were allowed to make motions, produce experts, dispute evidence, cross-examine witnesses, and make impassioned summations. The black-robed judges seemed appropriately pompous and judicious and seemed (if you were not watching too closely) to be fair and paying attention.  The judges were required to defend their decisions in what seemed to be painstakingly thorough opinions.

What’s not to like?

A whole lot as it turns out. For as you get to know the case well, you realize that what you have witnessed is about as a far from a fair trial as it is humanly possible to be. The actors played their appointed roles and strutted and fretted upon the stage, but the outcome was never in doubt. The courtroom drama was a facade–a Potemkin Village, if you will–in which the trappings of a fair trial were used to hide a shabby, dishonorable reality. The proceedings were never designed to get at the truth–they were designed to produce, if not a hanging, at least long sentences. They were, in reality, designed to protect reputations and national honor even at the cost of justice and the truth. As has been shown many times now:

  • The prosecution “case” against Amanda Knox amounted to nothing more than a series of high-decibel lies, misrepresentations, and irrelevancies endlessly repeated.
  • The prosecution narrative reconstruction (“theory”) of the case is fundamentally absurd.
  • The so-called “neutral” judges privileged the prosecution at every turn and in every possible way.
  • The various “motivations” reports by Judges Massei and Nencini and the Supreme Court of Cassation were, in reality, progressively more severe intellectual embarrassments.
  • The case against Knox and Sollecito exhibited the abuse of the preventive detention laws for which Italy has justly been sanctioned by various international bodies before.

This is all just for starters. Hard as it is to believe, there is a great deal more. The elements of an internationally recognized fair trial are well known and have been fully described. If the subject interests you at all, here is a document from 2000 published by the Lawyers Committee for Human Rights, since renamed Human Rights First (HRF):

http://www.humanrightsfirst.org/wp-content/uploads/pdf/fair_trial.pdf

While this particular document is offered by HRF, close variants can be found any number of places. I list here only the elements of a fair trial that were most severely breached in the Knox-Sollecito case.

 

Elements of a Fair Trial

 

Pre-Trial

  • The right to counsel
  • The right to a qualified interpreter
  • Prohibition of incommunicado detention
  • The right to challenge pre-trial detention

Trial

  • The right to trial without undue delay
  • The right to examine witnesses
  • The right to a presumption of innocence
  • The right to a fair hearing before a competent, independent, and impartial Tribunal

 

As we will see, Italy violated every one of these important due process protections. And to these I would add two other generally accepted protections that were clearly violated:

  • The expectation of acquittal upon reasonable doubt as specified in Italian law, and recognized as an aspect of the presumption of innocence.
  • Full disclosure of evidence to the defense, and fair, dispassionate consideration of all evidence before reaching a verdict.

Let’s see how the treatment of Amanda Knox and Raffaele Sollecito looks when measured against the key elements of a fair trial, beginning with the pre-trial period.

  Right to Counsel

It is quite clear that this basic right was violated over a prolonged period of time. The claim that Amanda Knox was not a suspect before the night of November 5, 2007 is ludicrous on its face. Edgardo Giobbi, one of the lead investigators,  admitted in sworn testimony that her “odd” behavior made her a suspect immediately. Prosecutor Mignini ordered her cell phone bugged right after the discovery of the victim’s body. And the task force that awaited Amanda at the station house on November 5th was there precisely because they needed to break her before her mother and legal help arrived the next day.

What is not so commonly noticed is that the failure to provide legal counsel lasted for three days after Knox’s arrest, and also placed her at a considerable and unfair disadvantage. Between the time Knox was arrested on the 5th and the time she appeared before Judge Claudia Matteini on November 8, only the police had access to her. They continued to question her. They provided her with paper and writing utensils and encouraged her to “clarify” things. Although her writings were increasingly forceful in proclaiming her innocence, they contained insignificant variation in detail, which later became the basis for claims that she told lies and misled the police.

  Right to an Interpreter

Obviously and incontestably ignored–totally. No civilized country in the world would consider a hostile police investigator with a limited command of English to be a proper translator in a case like this.

  Prohibition of Pre-Trial Incommunicado Detention

This violation did not last long, but coming as it did during the critical initial phase of the investigative  it was highly significant and prejudicial.  While she was hidden away, Amanda had no access to her family and lawyers and thus no way to protect herself or to adequately prepare for the hearing that would determine if she was to be held in pretrial detention. The prosecution explored this unfair advantage shamelessly.

  The Right to Challenge Pre-Trial Detention

As with so much in the Italian system, the “right to challenge pre-trial detention” is merely a paper right, which corrupt courts roundly ignore. As a practical matter,  there was no way on earth a judge as compromised as Matteini was going to deny her friend and colleague, Mignini, the tool he so desperately needed. Nevertheless, you see how the multiplying effects of unfairness came powerfully together in the Matteini hearing. Because Amanda Knox was held incommunicado for a three-day period, and because she could not meet with her lawyers or her mother, and because she, a terrified twenty-year old, was encouraged to keep making additional statements, she was in effect denied any chance to adequately prepare for a critical hearing. She had to hope that Judge Matteini would apply Italian law honestly, and that, of course, was never going to happen.

Next, let’s see if the trials themselves met widely accepted tests of fairness.

  The Right to Trial Without Undue Delay

Anyone making the claim that this basic right was not violated is making a bad taste joke. Amanda Knox was held for almost a year without even being charged and then the trial itself took another year to complete.

  The Right to Examine Witnesses 

This critical right was violated, most obviously, in all things pertaining to the trial and “testimony” of Rudy Guede. Several TV talking heads have made the ridiculous mistake of assuming that Amanda Knox was convicted partly on the basis of Guede’s testimony  This is, of course, nonsense. Guede was tried in a completely separate proceeding. His version of events was insinuated into the Knox trials by means of various dirty tricks, but he never testified against Amanda directly and never at any time faced cross-examination by her defense team. Guede told such inconsistent stories, and told so many lies over such a long period of time, that even a minimally competent defense attorney would have torn him to shreds on the stand. The prosecution and courts knew this, of course, so they contrived to ensure that no cross-examination ever took place.

This key right was even more egregiously violated by the Supreme Court’s insistence that “facts” developed in the separate Guede trial–especially the finding that Meredith Kercher died at the hands of multiple attackers–must be held against Knox and Sollecito even though neither had legal representation at that proceeding.  As a condition of being allowed to take advantage of the benefits of an abbreviated trial, Guede was forced to stipulate as to the truth of the prosecution theory that he was just one of three attackers. It was the unholiest of unholy agreements based on mutual self-interest: the prosecution case was advanced by Guede’s admitting to the alleged facts and Guede himself was given a lighter sentence, partly because it was held that he was not solely responsible for the murder. Neither side had any incentive whatsoever to challenge the multiple attacker theory or seek the truth.

In the Knox-Sollecito trial proper, on the other hand, the issue was fully examined and all of the experts agreed that there was absolutely no way to prove that there were multiple attackers. Thus, in effect, the Italian Supreme Court has now ruled that a finding in an abbreviated “flash” trial, which was based on incomplete information, and in which witnesses were not thoroughly examined, trumps a finding in a full trial where the defendants had legal counsel and the multiple attacker theory was thoroughly vetted and found wanting.

  The Right to a Presumption of Innocence

Consider first that the Italian State Police put a portrait of Amanda up on their “wall of shame” tight next to a Mafia chieftain long before she was even charged. Events went downhill from there. I defy anyone to to review the record of this trial and show me instances where any judge other than Hellmann presumed innocence. Indeed, at every turn the convicting judges, Massei and Nencini–to say nothing of the deplorable fauna of Cassation–presumed guilt as their starting point.

In a previous posting I called “Down the Funny Stair” I detailed the absurdist fictions to which various judges had to subscribe in order to find Knox and Sollecito guilty. No one presuming innocence could ever indulge such childish fantasies. The lamentable Nencini’s fevered struggle with the issue of the alleged cleanup is another prime example. An honest, competent judge would have looked first to see whether there was any reliable evidence that a cleanup had, in fact, taken place. Finding none, he would not have felt so oddly compelled to identify the author of a non-existent deed. But Nencini presumes a priori that Amanda Knox is guilty, and posits the existence of a cleanup because otherwise he is forced to concede that there is no evidence of her at the crime scene. And so the poor judge dithers and blathers and burbles and quacks but in the end is utterly incapable of answering two basic questions:

  • By what exact means was this cleanup accomplished? 
  • When, exactly, is this cleanup supposed to have taken place?

On both points he obfuscates and insinuates without proof. He has no answers, of course, because it is physically and scientifically impossible for there to have been a cleanup and it is the height of foolishness to claim otherwise.

I would add that the closely related principle of acquittal upon a finding of reasonable doubt, was clearly violated in the Knox-Sollecito case as well.  Amanda and Raffaele’s lawyers have faced every piece of “evidence” head on and blown it to smithereens.  The prosecution has no confession,  no reliable witnesses, and every piece of physical evidence has been shown to be unreliable and contrived. Judge Hellmann, whose “motivations” document stands out as the intellectual high point of this whole, sad affair, found that there was not only reasonable doubt about the guilt of Knox and Sollecito, but that the evidence actually demonstrated their innocence.

Now less intelligent and honest judges claim to have found guilt beyond a reasonable doubt? As my countryman John McEnroe so famously said: “You cannot be serious.”

  The Right to a Fair Hearing Before a Competent, Independent, and Impartial Tribunal

In a strict, legal sense the courts that tried Amanda Knox probably were “competent” because they had jurisdiction. But it is hard to square the word “competent” with the verbose, bad-faith “motivations” reports by the convicting judges, all of  which were morally, logically, technically, and scientifically incompetent.

The judges capered about with the appropriate fig leaves, but their rulings and findings were never impartial.  The hearings on preventive detention were a joke for all the reasons I have previously mentioned. A person of good will who has read through the full trial record would never conclude anything other than that the trial was rigged from the start. No prosecution motion was so absurd but what it was granted, while reasonable and fair defense motions were routinely turned down. There was an almost willful failure by judges to properly attend to testimony. Nowhere is all of this clearer than in the way the shameful and shocking way that the courts handled the evidence.

  Full Disclosure of Evidence and Conviction Only Upon its Being Clear and Convincing

Unfairness related to the evidence was so pervasive and relentless that it shocks the conscience. It happened multiple times in multiple ways and was in fact so extensive that I have decided to dedicate my next post to this subject alone. Suffice it to say here that the prosecution (with the blessing of the allegedly “impartial” courts) did all of the following: they destroyed evidence; they withheld evidence; they misrepresented evidence; they did not follow-up on obvious investigative leads, and it seems increasingly likely that they planted or otherwise tampered with evidence as well.

I will explicate the spectacular unfairness of the treatment of evidence in my next post. For now, let’s sum up what we learned here. During the pre-trial period:

  • Amanda Knox did not have access to legal counsel during an aggressive and hostile interrogation and for a critical three-day period following her arrest.
  • She did not have access to a competent, neutral, and professional interpreter.
  • She was victimized by the strategic use of incommunicado detention, which advantaged the prosecution immensely.
  • As a result of the first three points, she could not adequately prepare for a key hearing on pretrial detention, which was, in any event, rigged.

During the trial:

  • Amanda Knox was subject to numerous, mind-boggling delays both before her trial started and after it began.
  • She did not have the right to examine witnesses against her on critical issues of fact.
  • She was presumed guilty, not innocent, and the principle of acquittal upon reasonable doubt was completely ignored.
  • Two of the three tribunals before which she appeared were tainted by bias, a lack of independence, and an inability to understand or attend to defense evidence.
  • The police and prosecution were allowed to engage in what can only be called fraud with regard to the presentation evidence generally.

Other than all this, it was a perfectly fair trial.

 

~Lenroot Mays

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