5. The Meredith Kercher Case - Back to the Drawing Board (Part Five)

Introduction

I started out this new series because the Italian Court of Cassation recently quashed the Appeal Court's acquittal of both Amanda Knox and Raffaele Sollecito.

In Parts One through Four, I talked about the Appeal Court's decisions pertaining to the break-in, the DNA evidence with regard to the "double-DNA" knife and the bra clasp, the footprint on the mat in the small bathroom, and the traces found by the use of Luminol.

In this part, I'll run through a number of remaining issues. I'll try to do so quickly, though, because I don't really think any of them (with the possible exception of the mixed DNA traces in the small bathroom) is absolutely crucial to the case. In other words, I do not feel that the Court of Cassation's decision was based predominantly on any of these issues.  

The testimony of the various witnesses

During the course of the original trial, a number of witnesses was heard. These include, amongst others, Curatolo, a tramp who may or may not have seen Knox and Sollecito in a small square quite close to the house at the Via della Pergola late in the evening of November 1st 2007. They also include Quintavalle, the owner of a shop who may or may not have seen Knox in the early morning of November 2nd. 

In all these cases, the original court believed the witnesses and attributed weight to what they said. In all these cases, the Appeal Court disagreed.

I mention the testimonies of Curatolo and Quintavalle in particular, though, since what they said give lie to Knox's assertion that she and Sollecito spent the entire evening, night and early morning at Sollecito's apartment.

In the case of Curatolo, the Appeal Court decided that his testimony was unreliable because he well have gotten his dates mixed up. He testified about seeing Knox and Sollecito, but also about seeing people "wearing masks" and buses going to and from the square where he was sitting. The reference to the masks and buses would seem to indicate that he was remembering the evening of October 31st (Halloween), and not November 1st.

In the case of Quintavalle, the Appeal Court considered that this witness had only come forward a year after the murder took place, whilst he also testified that Knox had been wearing a grey coat when she entered his shop (a garment she didn't seem to own).

In both cases (in fact, in all the cases where witnesses gave testimony), I would consider the Appeal Court's decision understandable, and therefore valid. It might not necessarily be the right decision, but then, the same could be said of the original court's deliberations. In the end, of course, any court will have to determine for itself whether a particular testimony does or does not seem reliable; they are few real - strict - rules here. As a result, I doubt the Court of Cassation will have quashed the Appeal Court's acquittal based on that court's decision when it comes to the witnesses. 

The other traces in the small bathroom

In Part Four, I already discussed the footprint found on a mat in the small bathroom.

Other traces were found in the bathroom, though. In particular, there were blood traces clearly left by Kercher's blood. And then, more importantly, there were two traces which contained blood and the mixed DNA both both Knox and Kercher, found in the sink and the bidet respectively.

Both these traces appeared to have been left by diluted blood; that is, by blood mixed with water that had started to descend down the sides of the sink and bidet respectively. In both cases, the original court felt that it could reasonably be supposed that the traces were left by Knox, who, having Kercher's blood on her body, went to the bathroom to wash her hands (the trace left in the sink) and her feet (the trace left in the bidet).

The Appeal Court does not dispute the mixed DNA traces as such, nor does it dispute the fact that the blood was Kercher's. What it does dispute however, is that the fact that the traces contained mixed DNA is of any importance. Since the small bathroom was used by both girls, it is, according to the court, hardly surprising that Knox's DNA was gathered as well, especially given the rather large areas swabbed to take the samples.

I find these considerations quite understandable, but I'm not at all sure whether they're the correct ones to make.  It would seem to me to be, not so much a question of whose DNA was present, but rather whose DNA was absent. After all, say that Knox and Sollecito are innocent and that it was Guede and Guede alone who killed Meredith. It would then have had to have been Guede who entered the bathroom and washed his hands and feet. And yet, no trace of his DNA was found. Traces of Kercher were found, traces of Knox were found, but from Guede, nothing. I don't know - I'm no DNA expert - but I find this quite unlikely. I would assume the process of washing would entail a certain scrubbing of hands and feet, and, therefore, the very real probability of exfoliation. I would therefore presume that chances of Guede having left some of his DNA along with Kercher's blood would be high, certainly if we're talking about two separate places (sink and bidet) and certainly if the areas swabbed were relatively large.

As an aside, I point out that Sollecito's DNA wasn't found either. Does that mean anything? Well, not really. If it wasn't Sollecito who left the footprint on the bath mat, then yes, that would mean that there's no evidence he ever entered the bathroom at all, let alone that he entered after Kercher's murder. But the fact of the mater is that we do have the footprint. If he did enter the bathroom after the attack, could his presence, apart from that print, have remained undetected? Well yes. If, for example, he went in to take a shower (whilst Knox washed herself at the sink and bidet), that could very well have happened. Remember that the bathroom - well, at least to my mind! - would have been cleaned, if not very all too well. Remember, too, that Knox took a shower herself the next morning.

If my view on this is correct, it would appear that the Appeal Court's decision on this issue is illogically reasoned; it simply has taken the wrong facts into account.

The time of death

I will be brief as to the time of death. Forensically, it is impossible to establish at which more or less precise moment this occurred.  To try to decide that issue, other factors must be taken into account.

However, these other factors are the very ones which, by themselves, could be considered debatable. In particular, there is the testimony of the witnesses. If one believes their testimony, the time of death would have had to be around 11:30 pm (which is what the original court assumes). If one does not, the time of death could have been earlier, at, say, 9:30 or a little later (which is what the Appeal Court holds, stating that Kercher died "certainly not later than 10:13 pm").

There is, perhaps, one further thing to mention here. The Appeal Court attempts to set the time of death, in part, by interpreting (telephone) messages originating from Kercher's phone. At 10:00 o'clock, a number is dialed from Kercher's phone, and it's the first number in the phone's contact list. The number is that of the Abby Bank, and no international prefix had been added to the stored number. Now obviously the bank would not have been available at the time, and besides, the absence of the prefix meant that the call wouldn't have gotten through anyway. At 10:13, a GPRS internet connection is realised, which lasts all of 9 seconds; this might be in relation to an incoming message, but the duration is such that, if so, that message was not received. This could, the Appeal Court finds, be explained by "an involuntary connection or by a sudden interruption".

I must admit that I find both the call and the internet connection to be of no real value at all in determining the time of death. Who on earth knows what happened? Was Kercher playing around with her phone? Had she already been murdered and was the murderer fiddling around? Who knows? Such little factoids offer no basis on which to build any convincing hypothesis as to when Kercher died, and in any case it is clearly absurd to state, as the Appeal Court does, that the Kercher was "certainly" dead by 10.13 pm.

Knox's and Sollecito's alibi

According to Knox (Sollecito did not testify at the trials), she spent the night of November 1st to November 2nd at Sollecito's apartment. They had eaten late, around 23:00 pm, and when she awoke the next morning, at around 10.00 am, Sollecito was still asleep. She went to the Via della Pergola to take a shower and change her clothes.

The original Court did not believe this. It pointed to the testimonies of Curatolo and Quintavalle, but also to the following:

• Knox had turned her mobile phone off. It should be assumed that Sollecito did likewise, since his father sent him an SMS at 11.14 pm that was not received by Sollecito's phone until 6:02 am the next morning;
• Sollecito’s father called his son around 8:42 pm, during which call Sollecito said he had just been washing the dishes. From this, it can be inferred that Knox and Sollecito had eaten by then;
• there was no activity on Sollecito's laptop from 9:10 pm onwards till 5:32 am;
• that Knox awoke at 10.00 am seems odd, given the fact that she was an early riser and that she and Sollecito had been planning to go to the town of Gubbio that day;
• that she stated that she returned to the Via della Pergola to take a shower seems equally odd, since she also stated that she had taken a shower at Sollecito's apartment the night before. 

The Appeal Court dismisses the original court's views. As I have already stated above, it does not accept the reliability of the statements made by Curatolo or Quintavalle. As to the other points mentioned by the original court, the Appeal Court accepts the underlying facts, but does not deem them to be of any relevance.

Perhaps (the Appeal Court notes) Sollecito had told his father at 8:42 pm that he had been doing the dishes, but that does not imply that they had already eaten. Perhaps there was no activity on Sollecito's laptop, but that does not imply Knox and Sollecito weren't there. Perhaps the SMS message his father sent wasn't received till early the next morning, but that doesn't imply that Sollecito, too, had switched his phone off; the reception in parts of the apartment was bad. Perhaps Knox had showered the evening before, but that doesn't mean she might not have decided to take a shower at the Via della Pergola (after all, the main reason for returning to her own apartment might have been to change her clothes).

It seems to me that, on the whole, the Appeal Court's approach to Knox's alibi rather misses the point. The original court, when looking at that alibi, effectively pointed out that it was unconvincing; that is, it offered no proof that Knox and Sollecito could not have committed the murder. It went on to point out a number of particularities which made Knox's story not simply unproven, but also unlikely or, in one case at least, demonstrably untrue.

What the Appeal Court seems to want to do is to establish that Knox's alibi, by and large, is not so untrustworthy as it might seem. I think it fails in this, but that also, in doing so, it more or less misses the point. Consider: if a suspect gives an alibi, he is effectively saying "look, I couldn't have done it, because ..." (and he will then give his reasons). The burden of proof is, in this case, on him. If the alibi is strong, if it can be relied upon, he will not be prosecuted successfully; if, on the other hand, the alibi is unconvincing (if it cannot be relied upon), well then, it offers no proof that the suspect did not commit the crime.

The same applies here. The original court, to my mind quite correctly, decided that Knox's alibi helps neither herself nor Sollecito. None of what the Appeal Court says with regard to that alibi change this; nothing the Appeal Court says does anything to prove that the alibi should be considered true. As a result, the Appeal Court's reasoning is, at the very least, inconsequential.  

At worst, though, it is just downright wrong.

Take, for example, the 8:42 pm telephone conversation between Sollecito and his father. This is what the Appeal Court says:

"And indeed these are his father’s statements on the matter in the course of his testimony (hearing of 6-19-2009): “…he told me if I’m not mistaken that evening of the call that  water had, that while he was washing the dishes or doing something in the kitchen water had spilled on the floor, this is right…”
And again: “…that he was at home and was messing around in the kitchen and this problem had happened, basically. That he realized while he was washing the dishes that water was spilling on the floor…” Hence there is no talk at all about dinner being already finished."

But this is what Knox herself had stated (according to the original court):

"Therefore, she stayed with Raffaele, with whom she smoked some marijuana. They had dinner together, but quite late, perhaps 23:00 pm. 
After dinner, she noticed a bit of blood on Raffaele’s hand and had the impression that 'it had to do with blood coming from the fish‛ that they had cooked. Raffaele, after having eaten, had washed the dishes, but a break in the pipes had occurred under the sink. And water was leaking, with flooding on the floor."

Now it is quite clear that both Sollecito's father and Knox are referring to the same thing: washing the dishes, at which point a pipe broke under the sink. But according to Knox herself, this happened "after dinner".

So it becomes quite incomprehensible that the Appeal Court would nevertheless surmise that Sollecito had been washing the dishes before dinner. 

In the end, of course, the only possible conclusion is that Knox's alibi is false when it comes to the time she had diner with Sollecito. They didn't have dinner "quite late, perhaps 23:00 pm"; they had already eaten by 8:42 pm. The Appeal Court's suggestion that this could nevertheless be different is clearly not based on all the facts.

Conclusion

So, where does all this lead us? Well, as stated, I feel that most of the aspects raised in this part of the series are not in themselves decisive. There are certainly questions to be raised as to Curatolo's and Quintavalle's testimonies, but they are not absolutely essential to the case. The time of death cannot be established forensically; both courts agree on this. As to Knox's alibi, well, the Appeal Court falters in trying to waylay the original court's findings, but this, too, is not in itself terribly conclusive.

The Court of Cassation, to my mind, will not have based its decision on any of these issues.

The possible exception to this may be the mixed DNA traces found in the small bathroom. These traces could quite possibly be considered crucial, and the Appeal Court's reasoning on this may well have been considered unacceptable.