Saturday, August 9, 2014

The Pistorius Case III: The Conundrum That May Be

In its so-called Heads of Argument (that is, in its closing arguments), the defence has attempted to clarify that Pistorius cannot be guilty of murder.

Interestingly, it ends up more or less substantiating that he actually is.

The "heads" give three examples of situations where someone is killed and the killer may or may not be considered a murderer. In the first example, the defence contends the killer cannot possibly be considered a murderer. In the second, he can. In the third, he again cannot, unless certain conditions are met. 

The defence's assertion is that the Pistorius case falls into the first category, and not in the second or third.

From my own point of view, however, that clearly misstates the actual situation.

Before I explain this further, let's look at the three examples the defence offers, and the conclusions it draws from each instance.

Example One

A mother of a three year old girl hears a noise in her home. She thinks she's being burgled, and so gets her gun and heads towards the noise. She then hears the sound of her bedroom door closing. She fires a shot through the bedroom door, thinking that's where the burglar is. Instead, she hits and kills her daughter.

"It offends against legal principles", the defence states, "our legal conviction, and common sense, that in the absence of intent to kill her daughter, the mother must be convicted of murdering her daughter."

Example Two

X wants to kill Y. X thinks he sees Y and fires his gun. It turns out the person he thought was Y is actually Z, who simply resembled Y. Z dies.

In this case, "it does not offend the legal or moral conviction", the defence maintains, "that (X) be convicted of murder, as he had the intention to kill the very person he had mistakenly identified and shot at."

Example Three

A wants to kill B. He shoots his gun, but misses B and instead hits C, who dies.

A can only be convicted of the murder of C, the defence states, "if he foresaw the possibility of C's death when he shot and he reconciled himself with the foreseen possibility."

So, three examples. But which of these three examples best fits the Pistorius case?

Well, certainly not the third one. In the third example, after all, there are two distinct individuals, B and C. A wants to shoot B, but accidentally shoots C. His intent to kill is restricted towards B; he has no intent to harm C at all.

This is, by the way, exactly the same situation that I pointed to in my first post on this trial. As I said then, the example is a classic one, but it is, in fact, substantially different from the Pistorius case.

So we are left with the first two examples.

The first question one might ask when considering them is what the real differences between the two examples are.

Well, they might be a lot more similar than you may at first think. Firstly, whilst there is clearly a distinction made in poignancy - the first example is presented very much as a terrible domestic tragedy, the second is presented quite prosaically - that distinction has no legal merit at all.

After all, if you wished to, you could easily shift the "poignancy" aspects from the first to the second example, and the two examples would remain legally unaltered.

So that's not it. What is, then? Well, there is also the fact that in the first example, the killer does not see who she is shooting. If she had, she would not have fired; it would have been clear that it was her daughter, and not a burglar. Again, though, that is not a meritorious distinction; again, you might alter some of the details, circumvent that very distinction, and end up with an example that would, from a legal point of view, remain unchanged.

So is there actually any difference between the two examples? Well, no, there isn't. The only difference that I can think of that might possibly exist would be that in the first example, there is some room for doubt on the mother's part. After all, she thinks that, besides herself, there are two other people in the house: the burglar and her daughter. But she doesn't exactly know where each of these is. Shooting through a door because of a sound she had heard without exactly knowing who made that sound allows for the argument that she is basically just guessing whom she is shooting at. Because of this, it might possibly be argued that a certain distinction could be made between the intent the mother has towards the burglar, and the lack of intent she has towards her daughter. However, in that case, we are actually not talking about the first example at all; instead, we are talking about Example Three, where there are two distinct individuals.    

In the second case, it should be said, even such a theoretical distinction simply does not exist. As the defence acknowledges, the killer most assuredly had the necessary intent towards killing his victim. He may have mistaken the identity of his victim, but that in itself does not change his intent.

Now, let's get back to the Pistorius case. Which of the three scenarios best describes the situation  Pistorius found himself in?

Well, at first glance, the answer would seem to be that Example One fits the bill. In that example the mother tragically kills her daughter, whilst Pistorius might be considered to have tragically killed his girlfriend. Both thought they were being burgled. Both fired through a closed door.

However, on the basis of the above, one should conclude that, even if that were to be the case, Pistorius would still be guilty of murder. The first example - as can be seen when it is shorn of its "poignant" aspects - is actually the same as the second. And even if there is a distinction to be made between the two, that distinction does not apply to Pistorius: Pistorius was not "guessing" as to whom he was shooting at. He thought there was only one person in the toilet and that person was the burglar. He shot at that person and he hit that person. He did exactly what he wanted to do (*); there was no "guesswork" involved. His only mistake was in the identity of the person in the toilet, which is exactly the mistake made by the killer in the second example.

So, where does that leave us? Well, with the rather curious fact that the defence itself seems to have acknowledged that Pistorius should be convicted of murder. I'm fairly certain they didn't mean to, but they managed it - and managed it quite well - nevertheless. 

Is that the verdict that will be handed down? Well, of that I'm not at all certain. From the manner in which the case has dragged along, and, more importantly, from the manner in which the judge has acquitted herself, I would not be surprised if Pistorius actually manages to scrape by with a culpable homicide conviction. 


(*) I am of course aware that the defence (and indeed, Pistorius himself) has argued that the shooting was "an accident", and that he was not actually shooting in order to hit the supposed burglar. That, however, is a different issue altogether. I have dealt with some of the legal ramifications of this "accidental" plea in Part Two of this series.

Friday, April 11, 2014

The Pistorius Case II: The Conundrum That Is

In my earlier post about the Pistorius trial, I stated the following:

"Simply put, in South African law, murder is the intentional and unlawful killing of another person. When you apply that definition to Pistorius' actions, it seems to me to be very difficult to see how he could be innocent of that crime. After all, he fired four shots through the toilet door, believing (as he has said) that a burglar had hidden himself there. His intent, therefore, was to kill the person in the toilet."

Well, guess what? Pistorius himself has proved me wrong. Sort of.

A few days ago he took the stand, and, when pressed by the prosecutor, he stated the following.

"I did not", Pistorius said, "intend to shoot Reeva - or anyone else for that matter." Pistorius went on to explain that he did not actually intend to fire his pistol at all. Yes, he was holding a gun at the time and, yes, he was aiming at the toilet door (behind which he imagined a burglar to be lurking). And yes, he did then fire his gun, not once but four times.

Nevertheless, the shooting was, Pistorius stated, "accidental". He had heard a noise coming from the toilet; he thought it was someone coming out to attack him. "Before I knew it", he said, "I'd fired four shots."

So it seems that Pistorius is, indeed, denying the murder charge. And not on the grounds that he didn't realise that it was his girlfriend (and not an intruder) in the toilet and he never meant to kill her, but on the grounds that he never wanted to shoot the imagined burglar, either.

At first glance, this may well seem to be advantageous position to take,. The claim that you fired four shots through a toilet door but never meant to shoot the person you believed to be in the toilet may sound fairly incredible (I, for one, have some difficulty in believing it), but at least it allows for the possibility that you might escape the murder charge altogether.

The trouble is, though, that this line of reasoning is difficult, if not impossible, to pursue simultaneously with the idea that Pistorius, as he has also said, shot because he thought the burglar was about to come out of the toilet to attack him.

After all, if you believe someone is just about to attack you, you would clearly feel that you are under an imminent threat. If such a perception of threat is what causes you to react (in this case, to shoot), that reaction is not accidental. It is, instead, deliberate. Mind you, it might not be the best possible reaction - you might well have reacted differently if you'd first had a cup of tea and pondered about it a bit - but that doesn't change the fact that your reaction was, indeed, deliberate. It has to be, because, by definition, there's a thought process involved, that process being summarised by the following key elements: (a) the thought that there's someone the bathroom, and (b) the perception that he's going to get you, so (c) the decision to shoot first.

In other words, the allegation that Pistorius thought he was defending himself requires intent (namely, the intent to shoot in order to defend himself). But the allegation that he never meant to shoot anyone at all requires the absence of that same intent.

As a result, Pistorius seems to be trying to have his cake and eat it too. He seems to be trying to convince the court that he both intended and did not intend to shoot the burglar.   

Something tells me that may not be a wise strategy.

As an aside, does all this mean the prosecution is rubbing its hands and chuckling with glee? Well, no. The prosecution, after all, have contested that Pistorius murdered his girlfriend after a row; that he acted, in other words, with malice aforethought. At present, they don't seem to have come very close to establishing that at all. Murder, perhaps, but not pre-meditated murder. Sure, quite a few holes have been picked in Pistorius's story, but that doesn't mean the prosecution's version of events has to be right.

Finally, Pistorius didn't just prove me wrong on the question of intent. He also proved me wrong on a very different issue: whether this case is of any real (as opposed to simply sensationalist) interest.

It is. At least, from a legal point of view. How does a suspect successfully attempt to negate the intent of murder and, at the same time, claim putative self defense? Can this be done? Was Pistorius actually advised to take this course of action by his defense team?

Tuesday, March 4, 2014

The Pistorius Case I - The Conundrum That Isn't

Irish bookmaker Paddy Power has offered bets on the Pistorius trial.

"If he walks", the bookmaker promised, "you get your money back".

Well, that might certainly seem an interesting proposition to many. After all, the media are in a frenzy about the trial. Experts are popping up all over the place, trying to convince us that the trial is difficult and the outcome cannot be predicted. Pistorius "walking" seems very much on the cards.

The only problem is that this is all nonsense.

You see, if there's one thing we know, it's this: Pistorius is guilty. The question is not whether he "did it", the question is simply what crime his actions constitute.

Hence, Paddy Power can easily offer you a full refund if Pistorius gets off scot-free. They know that that is not going to happen. 

To understand this a bit better, the following might help.

What we know in this case is the following. We know that Pistorius shot and killed his girlfriend. We know that he, according to his own version of events, woke up at about three o'clock in the morning of February 14th, 2013. He got out of bed and then heard a noise emanating from the bathroom, which adjoined his bedroom. Immediately, he feared the house was being burgled. He picked up his pistol and went to the bathroom; the door to the toilet was closed. He again heard noises coming from the toilet; he then fired four shots through the door and into the toilet.

As it turned out, Pistorius was right that there was someone in the toilet. It wasn't a burglar, though; instead, it was Pistorius' girlfriend, who had been fatally wounded.

Now this is, as I said, Pistorius' version of events. The prosecution believes things happened differently. They're convinced Pistorius had a row with his girlfriend; they believe that she fled into the toilet and Pistorius pursued her, deliberately shooting her through the toilet door.

If the prosecution is right (and if they can prove it), Pistorius would be guilty of murder.

Here's the thing, though. If the prosecution can't prove their contention, and if we would have to accept the possibility of Pistorius being right, he would still be guilty. In fact, I'm pretty sure he would still be guilty of, well, murder.

There is only one way out of this for Pistorius, which is if his defence might manage to whittle the proof down to culpable homicide. Pistorius would still be convicted, but for a less severe crime.

In other words, in all possible options, Pistorius is guilty. One way or another, he will be convicted.

Hence, Paddy Power is not really offering you anything substantial. You're not going to get your money back when you place your bet.

If you're still struggling with this a bit, here's some more info.

Simply put, in South African law, murder is the intentional and unlawful killing of another person. When you apply that definition to Pistorius' actions, it seems to me to be very difficult to see how he could be innocent of that crime. After all, he fired four shots through the toilet door, believing (as he has said) that a burglar had hidden himself there. His intent, therefore, was to kill the person in the toilet. He did not, perhaps, assume that that person to be his own girlfriend, but the fact that it was, whilst possibly constituting a grave and terrible mistake on Pistorius' part, does not, to my mind, change his original intention in any meaningful way at all. 

I should note here that the situation in this case is different to the more or less classic example where a person (A) intends to shoot or stab another person (B). Just when he does so, however, a third person, C, jumps in, and it is C who ends up injured. In that example, there are two distinct potential victims, B and C, and therefore a distinction can be made between A's intent towards the one and his intent (or lack of it) towards the other.

In Pistorius' case, however, that distinction fails. As I said, there is only one person in the toilet, and Pistorius intent was to kill that person.  
Now, in some cases, shooting a person might be justified, but for that to the case, circumstances would have had to exist which would justify self defence. And in this case, such circumstances were clearly absent. After all, even if a burglar had gotten into the house and had hidden in the toilet, that burglar posed no real and immediate threat to Pistorius. Nor could Pistorius - or indeed, any other ordinary person, in similar circumstances - reasonably (albeit it falsely) have believed himself to be threatened, at least not to the extent that shooting was justified.

There are, it should be said, two circumstances which could nevertheless play a certain part in the qualification of the crime committed. The first is a general one: the high rate of crime (burglaries, especially burglaries committed by armed men, included) in South Africa. The second is the fact that Pistorius is an invalid (if that is the appropriate term); his lower legs were amputated when he was a baby.

The first of these circumstances is not, in my mind, in and of itself very significant. In particular, it does not mean that a homeowner, even a South African homeowner, can simply shoot a burglar through a closed door when that burglar has not posed and does not pose any substantial threat. The second circumstance may possibly explain, at least to a certain, degree, why certain options that might have been available to others where less viable for Pistorius, and why Pistorius may have felt himself to be more vulnerable than someone else might have done. Again, though, I do not see how such a situation substantially alters the case.

Taken together, however, these two circumstances may possibly - just possibly, and in conjunction with other facts  we are as yet unaware of  (*) - allow for a conviction based, not on murder, but on culpable homicide (which means that the killing, whilst unlawful, cannot be considered intentional). For reasons I have already set out, I do not see that happening at present; the chances seem quite slim. Nevertheless, it is possible, and his defence certainly will put up a spirited fight to convince the court that that is the route to be taken here. 

The reason for this lies in the fact that, obviously, a sentence for murder will generally tend to be higher than a sentence for culpable homicide. In the case of murder, there is, I believe, a minimum sentence of 15 years; in the case of homicide, I am not aware of a minimum sentence applying. However, this does not necessarily mean that a sentence in this case based on homicide will inevitably be milder than a sentence based on murder; all this will be up to the court, who will base its decision on facts and circumstances that not all known yet. 

What would, however, make an immediate difference is if the prosecution gets their way. If they prove their case fully - if it is established that Pistorius intentionally and deliberately shot his girlfriend, acting with what can be labelled both legally and poetically as "malice aforethought" - Pistorius would face a mandatory sentence of 25 years. This is considerably higher than a sentence for "ordinary" murder or homicide would be.


So, what does all this mean? Well, it means that a lot of the media frenzy in this case is just hot air. It means that, when reputable papers such as the Washington Post are brandishing banner headlines like "Murder or mistake?" they are, in effect, distorting the legal reality. There is, of course, a real battle going on in court, but that battle centers not around the question of whether Pistorius is innocent or guilty, but on how long the sentence will be.

Having said that, the case is certainly not without interest. There remains the very intriguing question of what actually happened that night. In particular, there remains the question of how someone like Pistorius could actually have acted as he claims to have acted.  At first glance, certainly, his story seems decidedly odd. On the other hand, the prosecution's theory seems a little like Swiss cheese, too.

Such questions are interesting, but they are not going to be of huge import to the legal aspects of the case. Murder is, simply put, murder. And even if it isn't, it's still homicide.

To this it might be added that it is equally true that tragedy is tragedy. Whether Pistorius meant to kill his girlfriend or whether he actually believed himself shooting a burglar, the outcome is the same: a young woman died needlessly.

POSTSCRIPT: The above post was written on March 4th 2013; the trial of Oscar Pistorius had just commenced. It is now April 11th, and Pistorius has taken the stand. He has proven me wrong on one count at least: the intention  to kill. I will be posting about this further in The Pistorius Case II: The Conundrum That Is.  


(*) One of those facts may possibly be that Pistorius had good and clear reasons to believe his girlfriend was somewhere else in the house; reasons, in other words, that would reasonably exclude her presence in the toilet at that time. As far as I know, no such reasons exist.

Thursday, January 30, 2014

10. The Meredith Kercher Case - The Answers in Florence

A Perugian Aquaduct. No Meredith. No Amanda. No Raffaele.

Today, the Appeal Court in Florence gave its verdict.

Amanda Knox and Raffaele Sollecito are guilty of the murder of Meredith Kercher. The Appeal Court has upheld the pair's original 2009 convictions. Knox has been sentenced to 28 years, Sollecito to 25.

Is this the end of a long, long legal battle? Well, yes, from a legal perspective it certainly seems so. Knox and Sollecito could request Italy's highest court, the Court of Cassation, to look at their case again, but that Court has already given a ruling. In fact, it was that ruling, handed down last year, that gave rise to today's decision by the Florence court.

In other words, were they to lodge such a request (and they probably will), it would in all likelihood not help them. In that sense, their convictions seem final.

Looking back over the last few months, I realise I have been remiss. I did not write about the Florence proceedings. I certainly speculated about them after the Court of Cassation's ruling of 2013, and at some length, but that was about it.

Why? Well, there was one simple reason. Very little happened in the Florence proceedings that changed the complexion of the case. There were, to be sure, quite a few things that needed to be looked at again - these aspects were all set out by the Court of Cassation - but there was very little new evidence that could be brought forth.

So, was their nothing new at all? Well, no, not really. On the basis of the Court of Cassation's ruling, the Florence court ordered that a "new" DNA sample found on the so-called double-DNA knife should be tested. That might have been a potential bombshell; after all, what if the new tests revealed the presence of Kercher's DNA, or even Guede's? Except, of course, that the bombshell turned out to be a damp squib; the DNA tested pointed to Knox and no-one else. As such, it didn't prove anything.

Effectively, that meant things were back to square one. We were left with the original 2009 decision and a first appeal ruling that had been struck down by the Court of Cassation. The defendants' appeal needed to be reassessed, and that is exactly what the Appeal Court in Florence has done. And in doing so, it has complied with the views expressed by the Court of Cassation.  

Could the Appeal Court have handled the case differently? Most certainly. Whilst the Court of Cassation's ruling was, in many ways, rather clear, it was by no means definitive. It allowed the appeal court sufficient room to manoeuvre. However, as the Florence court started to get to grips with its remit, it became clear that it would not steer the case away from the paths already set out by the original Perugian court (and, indeed, by the Court of Cassation itself). As, in other words, the case proceeded, it became more and more likely that the original ruling would be upheld.

So, is today's ruling a surprise? Not at all. Is it the end? Yes, it should be. There are further legal issues to resolve, the possibility of extradition being perhaps the most important one, but these issues will have no impact on the guilty verdicts as such. Also, it should be remembered that the Appeal Court's motivations - the actual reasoning behind the convictions - have yet to be set out. As always in Italy, this will happen within 90 days.

But basically, this it it. In law, Knox and Sollecito are guilty. The murder of Meredith Kercher was committed by them and by Rudy Guede. All three have been convicted.


I will write further on this case. After all, it has not formally ended. And besides, the way it has been conducted - both by the prosecution and, perhaps more importantly, by the defense - is rather extraordinary. For now, however, it is done. 

The die is cast.

Wednesday, July 17, 2013

Tragedy and Travesty - A Few Brief Thoughts on The Zimmerman Case

Your Typical Neighbourhood Watchman?

Speaking just after George Zimmerman's acquittal, one of his defence lawyers, Don West, stated the following:

"I'm thrilled that this jury kept the tragedy from becoming a travesty."

Was he right? Well, yes. Under American law (more specifically, the law of Florida), there really was no case for Zimmerman to answer to. If he had been convicted of murder, or indeed the lesser charge of manslaughter, that would have made a mockery of the legal system, of the laws under which the trial should be conducted.

Yes, then. But also no. No by a long shot.

Why? Why might the George Zimmerman case nevertheless be considered a travesty?

Well, not because of the trial as such. It was conducted relatively swiftly and yet fully. Not because any great mistakes were made, although it might be argued that the prosecution's case was, well, half-hearted at best. And most certainly not because of racial tensions, which may play a great part in the way many feel about the case but which had no real impact on the legal proceedings.

It was, nevertheless, a travesty because of one simple reason: the law sucks.

There, I've said it. Bluntly, as Don West might have himself. The law sucks. It is the law, not anything else, that has made a mockery of this case, that has turned a tragedy into a travesty.

Whichever way you wish to look at this, George Zimmerman was a wannabe cop. He was a neighbourhood volunteer, whatever that means. He was driving around in his car. He was carrying a gun. He saw Trayvon Martin, whom he immediately, if for unclear reasons, identified as an "asshole" and "a punk".

He got out of his car, and - against the advice of the police, whom he called - followed Martin. They got into an altercation. It is unclear who initiated this; it is unclear who had the upper hand in the fight that ensued, although that may well have been Martin. In any case, at one point Zimmerman pulled out his gun and shot Martin at point blank range.

In short, Zimmerman killed Martin. In doing so, he may well have started out with the best of intentions (something that I would tend to basically believe). But if so, those intentions had the worst possible outcome.

That is the case. Now, given this, what would a reasonable person assume?

He or she, surely, would first assume that Zimmerman had killed Martin after having decided to go after him because, for incomprehensible reasons, he considered Martin a "suspect". He or she would realise that Zimmerman had no true - no objectifiable - justification for this at all. Again, I don't know quite what a "neighbourhood volunteer" is, but I do know that being one does not grant anyone specific powers or authority. And whilst I very seriously doubt Martin was sweetest kid in all the world, I also know that, at the time, he was not engaged in any activity even remotely suspicious; the kid was just walking home.

Secondly, a reasonable person would surely have to accept that the altercation which ensued must be, initially at least, the result of Zimmerman's actions, and not Martin's. One might perhaps change one's assumption in this regard if there was convincing evidence to contradict this, but barring such evidence, the assumption stands: the fight that ensued between the two was initiated (or should I say instigated?) by Zimmerman, who, I repeat, had no objective justification for this whatsoever.

Thirdly,  a reasonable person would take into consideration a number of  additional facts which, whilst in themselves not conclusive, nevertheless present a fuller picture. The most important of these is that whilst Zimmerman carried a gun, Martin was unarmed; he had no weapon of any kind.

What, then, is the basic conclusion any reasonable person would have to draw from this? Surely it must be that, prima facie (that is, barring evidence to the contrary) Zimmerman unlawfully - illegally - killed Martin. Surely it must be that Zimmerman committed a crime.

Could that be different? Well, of course it could. It could and would be different if, specifically, it turned out that Zimmerman did not, in fact, accost or attempt to accost Martin - if, in fact, it was Martin who turned on Zimmerman once Zimmerman had gotten out of his car. Did that happen? Well, that's the point. I don't know - in fact, no-one knows. 

And we don't know because Zimmerman himself never truly attempted to prove his version of events; his defence never got sufficiently close to this issue. They certainly presented evidence - rather a lot of evidence, in fact - to establish "reasonable doubt" - whereby they in effect established that there was a possibility that it was Martin who attacked Zimmerman - but they offered no real proof of this at all.   

Why not? Well, because they didn't have to. In America - certainly in Florida - you don't have to justify shooting someone. In fact, the opposite applies: the prosecution has to prove that the shooting is unlawful. And that includes refuting any claim of self-defence, once such a claim is made.

So the burden of proof is squarely on the prosecution. Not only do they have to prove - beyond a reasonable doubt - that their suspect actually murdered someone, but they also have to prove - again, beyond a reasonable doubt - that the suspect did not act in self-defence, once that claim is made. And it is the second part of this burden which is highly problematic, as this case shows.

Let me exaggerate just a bit. In Florida, I can go out and shoot my neighbour any day of the week. I can have a row with my girlfriend and shoot her, too. I can go out and shoot George Zimmerman, just because he happened to go out and shoot Trayvon Martin. And I can do all these things and still have a very good chance of not being prosecuted, if, that is, I can reasonably claim self defence, and if it turns out that the prosecution cannot disprove the veracity of that claim. And the prosecution, in a great many cases, will not be able to do that, since, after all, the only people potentially capable of providing the necessary evidence in this regard has just been shot. By me.

In other words, as long as there are no witnesses, I may well be fine. I may have murdered a few people, but I get away scot free.

So what does all this mean? Well, it means that, in this case, it's not the circumstances. It's not the media. And it's not race, either. It's just the law. And, yes, it does very much seem as if the law sucks. And, yes, it does very much seem as if the law is, in such cases, a travesty.

After the trial four of the six jurors released a statement. "The death of a teenager weighed heavily on our hearts," they said, "but in the end we did what the law required us to do."


Thursday, June 27, 2013

9. The Meredith Kercher Case - Going Once, Going Twice (The Story of Undoubled Jeopardy)

It's no song and dance, you know.

Some words on what has gradually become a something of a topic in this case. 

Could Knox (and, if he were not there already, Sollecito) be extradited to Italy if the trial ends in the definite conviction of both?

My simple answer to this would be: why on earth not? I suppose, as often happens in high profile cases, there might well be complications due to political reasons, but I see no legal barriers here at all.

Let's focus for the moment on Knox. The Sollecito question, too, might at one point or another arise, but to answer that question, one would have to know where he would be staying when any extradition request is made. Since we don't know that, it's basically useless to ask the question in the first place.

In the case of Knox, though, it's safe to assume that she'll remain in Seattle (or at least the USA) for the time being.

So: what about extradition between the USA and Italy?

Well, as by now just about everyone knows, there is an extradition treaty in place between the USA and Italy. In sets out in which cases extradition will or will not be granted when one country (that is, in the terminology of the Treaty, the "Requesting Party") asks for the extradition of a person by the other country (the "Requested Party", as the treaty states).

So, if Italy were to request the extradition of Knox by the USA, Italy would be the Requesting Party; the USA would be the Requested Party. Simple, no?

Okay. Now let's look at what the treaty says.

Firstly, in Article 1, the general rule is given. It's this:

"Obligation to Extradite

The Contracting Parties agree to extradite to each other, pursuant to the provisions of this Treaty, persons whom the authorities of the Requesting Party have charged with or found guilty of an extraditable offense."

If Knox were found guilty of murder (or of being the accessory to murder) that would clearly be "an extraditable offense". Article 2 deals with this; an extraditable offence is an offence "punishable under the laws of both Contracting Parties by deprivation of liberty for a period of more than one year or by a more severe penalty".

So, Article 1 would essentially mandate the USA to extradite Knox, if Italy requested her extradition.

What else does the Treaty say? Well, for example, Article 5 prohibits extradition when the request is made for "political or military" offences. This clearly does not apply here. Article 8 states that extradition will not be granted if the offence has become barred by lapse of time. Again, that does not apply. There are, looking through the Treaty in general, various rules that deal with such issues, and indeed various rules that deal with the question of how an extradition request should be made by the Requesting Party or dealt with by the Requested Party. None of these, however, have any impact on the possibility of the extradition of Knox in this case.

So what might nevertheless bar the USA from extraditing Knox? Well, the only provision in the Treaty that might seem to be of any real import would be Article 6, which states:

"Non Bis in Idem

Extradition shall not be granted when the person sought has been convicted, acquitted or pardoned, or has served the sentence imposed, by the Requested Party for the same acts for which extradition is requested."

There is, however, a simple reason why this provision doesn't offer Knox any solace. It's this:  Knox has not been "convicted, acquitted or pardoned" by any state in the USA; neither has she already served her sentence anywhere in the USA. (Remember, the USA is the Requested Party.)

And that's basically it: on the basis of the Treaty, there are no impediments to extraditing Knox, if she were to be definitely convicted in Italy. None at all.

Of course, things are never quite that simple, and one might wish to argue that extradition would nevertheless be barred for different reasons.

There are two that I can think of. The first is a little far-fetched, and deals with the idea that Knox was somehow "tortured" by the Italian police. The idea would imply that her conviction was arrived at by evidence gained through the use of torture, and that therefore that evidence would not be permissible by international (or US) laws, thereby making the conviction itself unsound.

I must admit that I have no idea at all how Knox could seriously try and make such an argument. I realise that she has claimed that she made statements after having been pressurised by the police, and indeed after one of the police officers slapped her on the back of her head, but besides the simple fact that the police have denied this adamantly (and that, even if true, the accusations hardly amount to "torture" in the first place),  it would seem that these accusations have, at most, a bearing on her conviction of "calunnia" (calumny; that is, of her false accusations of Patrick Lumumba) and not on the murder trial itself. This is an argument that holds no legal merit, I would say.

The second argument returns to the "double jeopardy" notion. The Treaty might, as explained above, not bar extradition for this reason, but perhaps international laws - or those of the USA -  might.

Do they?

Well, international laws certainly don't. Italy, like most European nations, has signed up to the European Convention on Human Rights, and to Protocol 7 of that Conventions. Here's what's in Protocol 7:

"No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State."

The key word here is "finally". Any extradition request made by Italy will only be made if Knox has been "finally" convicted in Italy. The process - that is, her trial - is ongoing, and will reach an ending only after the appeal court in Florence (and, perhaps, the Court of Cassation) has dealt with the case. Only once this has happened will any conviction be final. In the meantime, she may have been acquitted by the Appeal Court in Perugia, but, as is very clear indeed, that acquittal is hardly "final' (and neither, one might add, is her earlier conviction by the original court).

In other words, an extradition request by Italy would be fine under European law. And indeed, it would not be barred by any other international law statute or treaty, since - simply put - there are none.*

What about the (federal) law of the USA? Well, the only possible obstacle might conceivably be the Fifth Amendment of the US Constitution, which states that ".... nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . .".

I do not, however, see this as being any obstacle for an extradition of Knox. To put it simply, Knox hasn't been put in jeopardy "twice"; she's been in jeopardy once, in a process which, according to Italian law, takes up several stages. "Twice", in other words, is "finally", as expressed by the European Convention. They're the same thing.

Is there a simpler way of looking at the above? Yes, if you don't mind a more formal and legal approach. The Court of Cassation annulled the Appeal Court's acquittals. Therefore, those acquittals no longer exist. For that very simply reason alone, there can be no double jeopardy issues. 

In closing, two points. 

Firstly, the fact that the notion of double jeopardy is not an American invention. In fact, it was developed by the Romans.

Secondly, the question of whether anyone should care deeply about whether Knox or Sollecito actually serve their sentences. If convicted, I daresay there are reasons why they should be imprisoned for a considerable amount of time. However, even if that does not happen, I would suspect that, in many ways, their lives would be shattered anyway.  


* Well, there's the International Covenant on Civil and Political Rights, of course. Does that help? No. Article 14 of the Convention states that "No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country." Again, that dastardly word "finally".

Wednesday, June 19, 2013

8. The Meredith Kercher Case - Preliminary Thoughts on the Court of Cassation's Ruling

Once more: the Court of Cassation

Yesterday, the Court of Cassation published its ruling in this case.

Like many others, I can't read Italian, so I'll be awaiting a proper translation of the ruling with bated breath.

What I can do, is use a few online tools to at least get an approximation of what the Court of Cassation (which I'll also refer to afterwards as "the Court" ) has said. Bear in mind that this is very much an approximation, though. Caveats apply!

The Basics

So, what seems to be the case?

Well, first and foremost, the Court of Cassation has clearly decided on a broad annulment of the Appeal Court's ruling. This is, very roughly put, what the court concludes, after some 74 pages of deliberations:
"In conclusion, the contested judgment should be set aside for multiple reasons, given the incomplete, contradictory and manifestly illogicial reasoning that has been mentioned above. The new appeal court must therefore, using its broadest powers of discretion, remedy the critical aspects of argumentation, employing a comprehensive examination and unifying clues, by which means the relative ambiguity of each piece of evidence can be resolved, since in the overall assessment each clue is added and integrates with others. The outcome of this assessment will be crucial not only to determine the presence of the two defendants at the crime scene, but possibly also to delineate the subjective position of those who acted along with Guede in the face of the range of hypothetical situations, ranging from an agreement to participate in a death, to the involvement of the young Englishwoman in a sexual game that went out of control."*

In my series Back To The Drawing Board (see Part Six, especially), I pointed out that the Court effectively had two options: it could either annul the Appeal Court's decision more or less in its entirety, or it could target specific parts of that court's ruling. At the time, I was inclined to assume that the Court of Cassation would go for the former option, and that's exactly what it has done.

Very little of the Appeal Court's verdict has been left unscathed after the Court's rather comprehensive criticism; what little there is left of that court's verdict cannot amount to even the most summary substantiation of Knox's or Sollecito's innocence (or, to put it a bit more precisely: it cannot begin to set aside the original court's verdict of guilt). More or less everything will have to be dealt with again by the appeal court in Florence; and that court will have to do things very differently to the way the Appeal Court of Perugia handled the matter.

Secondly, the Court of Cassation has followed a line of reasoning which seems, to me, quite logical, but which has been contested by some of those posting comments here. It's this: in order to judge all the various pieces of evidence, one has to look at all these pieces as they relate together. One just cannot attempt to evaluate each piece separately. The Court of Cassation seems to be quite clear on this, as might be expected.

Various points

Given these broad points, various specific issues can be addressed. Again, though, caution should be employed; I, for one, would really appreciate a good translation.

A. The Break-In

The Court of Cassation clearly seems to feel that the break-in was in all likelihood staged and that it cannot have been Rudy who staged it.

Having said that, however, it should be noted that the Court of Cassation does not actually decide the matter once and for all. Instead, it strikes down the arguments raised by the Appeal Court, whilst at the same time pointing to the original court's deliberations; deliberations which have, in the Court's view, clearly not been dealt with sufficiently by the Appeal Court. Because of this, there would still seem to be a window of opportunity for those who feel that there was an actual break-in (or that Rudy staged it). Such possibilities have, however, become quite slim. After all, the Appeal Court's arguments were effectively the same as the  defence's arguments. If these are, in the Court of Cassation's view, inadequate, what other arguments could there be?

In this regard, I again draw attention to the fact that the trial against Rudy Guede also went to the Court of Cassation and that, at the time, the Court already stated (in slightly oblique terms) that a burglary had been staged. The Court has clearly not changed its mind since then; in fact, in yesterday's ruling, it quotes the earlier remarks it made in the case against Guede. (See Back To The Drawing Board, Part One, for some more information on this.)

B. The DNA evidence with regard to the knife and the bra-clasp

Here, the Court of Cassation's ruling may seem a trifle odd.

Firstly, the Court seems to have no problem with the fact that the Appeal Court appointed new experts to examine the DNA evidence. Those of you who read the prosecution's cassation appeal (the Galati request) will know that the prosecution complained against the appointment; however, the Court of Cassation does not agree with that particular complaint.

Nevertheless, the Court clearly has a problem with the fact (or should I say: assumption?) that the experts, once having been assigned their task, at some point abandoned carrying it out fully.  In the Court of Cassation's view, this was not in their remit, and the Appeal Court acted unacceptably by allowing them to do so.

The question which this immediately raises is this: did the experts actually stop? Where they somehow halfway through their task and did they then just quit?

Well, in one sense, perhaps. As can be recalled, they found a new sample on the so called double-DNA knife which had not been tested yet. Nevertheless, they decided not to conduct the test, because they believed that such a test would have to be conducted by "experimental" methods and that the results of such a test would be inherently unreliable. 

If this is what the Court is referring to (and if this is all that it is referring to), I agree with the Court. I believe the new sample should have been tested at the time. If, on the other hand, the Court is also referring to some other lack of "completion" on the experts' part, I wouldn't quite know what that might be. (I have always understood the situation to be relatively simple when it comes to the tests that had already been conducted by the Scientific Police: these tests cannot be repeated in any way, simply because there's no material left to conduct them on. If that is the case, I cannot see what else the experts could have done.)

Now that is the first aspect of the Court of Cassation's ruling that seems, at first glance, to be a little strange. The second is this: where is the court's ruling on the (un)reliability of the tests carried out by the Scientific Police?

Let's assume, for a moment, that a new test is carried out by experts appointed by the court in Florence and that the outcome is inconclusive. What then? Surely in such a case the question would have to be: are the tests that were already carried out by the Scientific Police reliable or not? Nevertheless, the Court of Cassation does not really deal with this matter at all. Indeed, the only observation the Court makes in this regard is that the Appeal Court insufficiently took into account various remarks made by the experts of the prosecution and the Kercher family (profs. Novelli and  Torricelli). I'm sure that, in part, this is due to the actual task the Court has (to deal, in short, with the law, and not with facts); in part, however, it might also be a deliberate choice. The Court may well have felt that the new test should be conducted first, and that any further discussion (with regard to, especially, Low Copy Number testing or the standards to which such testing has to adhere) would be dealt with best after the test had been done.
What this effectively means, however, is that the Court of Cassation gives no ruling on the actual issues surrounding the testing done by the Scientific Police. All this is left to the court in Florence.

In addition to the points already mentioned, the Court of Cassation also deals with the possibility of contamination. Here the Court is much more forceful, and its deliberations seem similar to those it gave with regard to the break-in. Simply put, the Court has decided that, given the prosecution's explanation of the processes used, it was up to the defence to provide further evidence that contamination was a real possibility. The defence has, however, not done so. In other words, the Court has struck down the defence's arguments, whilst still leaving them a certain opportunity to advance new considerations. The question again has to be asked, though: what new arguments might the defence actually have?
C. The mixed DNA samples (the Luminol traces)

Mixed DNA samples were found in the small bathroom (used by Knox and Kercher) and at two other places in the apartment: in Romanelli's room and in the corridor.

The two mixed traces in Romanelli's room and in the corridor were found after the application of Luminol, a substance used to identify presumptive blood stains.

Now, the discussion with regard to these two traces is a complicated one, but it goes straight to the heart of the matter. If one were to believe that these two traces clearly show that Knox, in her bare feet (feet still slightly bloodied with Kercher's blood) left the traces, well then, they would present compelling evidence of Knox's guilt. If, alternatively, one were to believe that the traces might well be innocuous, they would present no real evidence at all. 

So what does the Court of Cassation say on this? Well, it seems that the Court has said very little at all. If I can understand the Court's reasoning, it seems to feel that the traces were in all likelihood blood traces since they were revealed by Luminol ("as the Luminol showed traces of blood and it is not really conceivable that Knox had had her feet smeared with the blood of the victim on previous occasions", the Court states at one point). That, however, would seem to be a rather odd remark to make, for various reasons. For one thing, it's a factual remark; for another, it might well be wrong.    

Does this matter? Ultimately, no, not really. Rightly or wrongly, the Court has struck down the
Appeal Court's decision in this matter as well, and as a result, the Luminol traces will have to be dealt with again by the court in Florence. I don't think that court will in any way be hampered by what the Court of Cassation has said. Nevertheless, the Court's  remarks here are a little puzzling.

D. The Time of Death

In Part Five of the series Back To The Drawing Board, I briefly discussed the Appeal Court's deliberations when it came to the time of death. I said it was forensically impossible to establish at what precise moment this occurred, and that to try and establish the issue, other factors must be taken into account. On the basis of these other factors, I also said that, "in any case it is clearly absurd to state, as the Appeal Court does, that Kercher was "certainly" dead by 10.13 pm".

The Court of Cassation takes the same line of reasoning. Once more - and this is the third time - the Court refutes all the arguments brought forth by the defence (and accepted by the Appeal Court). Once more,  it is unclear what the defence might actually bring forth during a new appeal hearing to change the situation.

(As an aside, I point out that the prosecution must be able to ascertain that the murder took place at 11.00 o'clock at night (or later) for their reconstruction to make sense, whilst the defence have to pinpoint the time of death at 9.30 or thereabouts for the idea of Guede as lone killer to be feasible.)

E. Other aspects

I will not deal with the other aspects of the case in any detail. A few remarks should suffice, for the moment.

Firstly, a general remark is that when it comes to all these other aspects, the Court of Cassation has basically sided with the prosecution's cassation appeal, and struck down the Appeal Court's verdict accordingly. This includes the Appeal Court's deliberations on the various witnesses, its approach to the fact that a separate trial was already conducted against Rudy Guede (culminating in the Court of Cassation's own ruling of 2011), and the way the Appeal Court handled Knox's behaviour after the murder (including her accusations against Patrick Lumumba).

A more specific remark concerns the rulings given in the trial against Rudy Guede. Many seem to feel that the Court of Cassation itself already ruled in that trial that the murder of Kercher was committed, not by Guede alone, but also by Knox and Sollecito. That is not, however, the case, as the Court itself again points out in yesterday's ruling.  It is clearly true that the lower courts in the Guede trial assumed that Guede acted with others, specifically Knox and Sollecito, and that the Court of Cassation accepted this (factual) reasoning at the time; that is not, however, quite the same thing.  

Closing thoughts

In closing, the following.

I generally agree with the Court of Cassation's basic approach. It seems logical: if the Court of Appeal's verdict doesn't make sense, get rid of as much of it as you can.

However, it's also clear that the Court has shied away from making any real (material) decisions on any of the outstanding issues; it hasn't really settled anything once and for all. What this means is that the court in
Florence will effectively have to handle the entire case once more. 

In at least three instances, however, the Court's reasoning seems to leave the defence little room to manoeuvre. These are the issue of the break-in, the DNA contamination, and the time of death. When it comes to the break-in in particular, it does rather seem the defence prospects are slim indeed. And it should be remembered that this is a crucial point of the case.

In other instances, I find, however, the Court's deliberations a little vague. These would include the DNA evidence and (especially) the Luminol samples. When it comes to such aspects, just about anything might happen in

Finally, to clear up a point that may cause some confusion, the defence will not be able to "lodge a new appeal" or anything of the sort. The result of the Court of Cassation's ruling is that the appeal already lodged by the defence (with the Appeal Court in Perugia) will have to be dealt with again by the new appeal court in Florence. When I say that the defence does not have all too much room for manoeuvring, I am taking this into consideration.

* This is not a proper translation, I'm afraid. It's my assessment of the court's  closing remarks, using Google's translation service. I have, quite deliberately, "mistranslated" one word: replacing "demonstrate" with "determine".