Wednesday, May 15, 2013

6. The Meredith Kercher Case - Back to the Drawing Board (Part Six)

Meredith Kercher


In the earlier parts of this series, I talked about the Appeal Court's verdict and discussed some aspects which may have fallen foul of the Court of Cassation's judgement.

But I've not yet really given a summary of what the current situation is, or what to make of it.

I'll do so here.

What do we know?

Well, we know the Court of Cassation has quashed the Appeal Court's acquittals. We know that it didn't do so just because there may have been a few mild irregularities in that verdict; the Appeal Court must, in the Court of Cassation's mind, have erred to such an extent as to make its decision - the acquittals - suspect.

As such, we know that the Appeal Court's verdict cannot stand and that at least certain crucial aspects of the case will have to be retried.

But we do not know what those aspects will be, and we do not know what the outcome of the new appeal will be, either.

All this will become a little clearer once the Court of Cassation reveals its substantiation. We will know if, for example, if the Court of Cassation felt that the Appeal Court's ruling was wrong on so many counts that, effectively, the entire appeal will have to handled all over again. Or we know that, conversely, the Court of Cassation has limited its objections to the Appeal Court's ruling to certain specific issues, and will direct a new appeal court to examine those issues only.

What do I think?

In the earlier parts of this series, I looked at various parts of the Appeal Court's decision in some detail. But now, having done so, I think that it's perhaps wise to first examine the general approach the Appeal Court has taken in this manner.

If you remember, the original court's take on the case seems to me to be, all told, logical. That court looked at the evidence, weighed it, and then proceeded to give a detailed picture of what must have occurred. One might well disagree with the outcome, or indeed with the details of the reasoning involved, but the approach as such makes sense.

The Appeal Court, however, handles the matter quite differently. It doesn't set out to try and explain what happened; it simply sets out to examine each singular part of the original court's verdict and then to dismiss it. At times, it is fairly successful in doing so, and at others, not so much. All the while though, it refuses to look at the overall picture.

To my mind, this is ultimately one of the major failings of the appeal ruling.

Consider these simple facts. The murder may have been committed by Guede, Knox and Sollecito together. Or it may have been committed by Guede alone. Given the facts in this particular case, those are the only realistic two options. In one way or another, any court will have to decide between these two.

The original court, as stated, makes a clear choice: all three committed the murder. The Appeal Court, however, does not. It clears Knox and Sollecito, but in doing so, it leaves quite a few questions outstanding which would need to be answered if one were to assume Guede were the sole perpetrator. 

Take, for example, the break-in. It need not have been staged, the Appeal Court asserts; but it then stops short of stating that all the evidence provided must have pointed to an actual break-in committed by Guede.

This seems a singularly strange and unconvincing way to determine the outcome of the case (*). Okay, let's say the break-in needn't be staged by Knox and Sollecito; let's assume it might have been Guede acting on his own. But what then? As I pointed out in Part One of this series, this notion would imply that Guede broke in just before Kercher herself returned to the apartment - but what on earth happened then? How it it possible that Guede, the opportunistic burglar, so suddenly turned into the sexually aggressive murderer?  How did he, and indeed Kercher as well, act? How did Guede manage to kill her? How did he manage to leave just a single bloody footprint on the bathroom mat and then a trail of bloody shoeprints exiting the apartment? How did he do all this and leave the apartment in such a state that, the very next morning, Knox arrived and didn't realise anything of real importance was amiss? 

The Appeal Court, in its reasoning, addresses none of these issues. It simply refuses to look much further beyond its conclusion that the evidence against Knox and Sollecito is insufficient. And, indeed, the Appeal Court, in one instance at least, also seems to simply ignore the facts presented to it. After all, in the original trial, the court looked at some length at the state of Kercher's body and the many wounds inflicted upon her, only to conclude that it must be assumed that more than one person attacked Kercher. This would seem to be a crucial observation, but it is one that the Appeal Court has decided not to dwell on at all.

So, in general, it seems the Appeal Court has only done half the work it should have done in reaching its acquittals. It clears Knox and Sollecito, but in doing so, its half-hearted acceptance that Guede must  must have committed the murder on his own remains insufficiently substantiated. And in this particular case - where there really are only these two options - that just doesn't seem to suffice. It seems to be the wrong approach; and it seems, more particularly, singularly inconclusive.

Because of this, I would think it very possible that the Court of Cassation would have decided that the entire Appeal Court ruling is, essentially, flawed. And that would lead to the conclusion that it must have quashed the ruling almost in its entirety. There might well still be certain aspects of the appeal ruling which escape this sanction - the witness testimonies spring to mind - but by and large, we're talking about an annulment across the board.

If this were to be the case, the appeal court that will handle the appeal (that is, the appeal court in Florence) will presumably have a fairly open schedule to work with. It will have to reach clearer and more decisive conclusions if it were to determine that Guede was the sole perpetrator, but would, in essence, be free to decide what those conclusions could be.

What if, alternatively, the Court of Cassation focused on various specific aspects of the case and dealt with them piecemeal, as I have done in the earlier parts of this series? Well, in that case, I think it would be logical to focus on a number of major issues, and I would suspect those issues to be the following:
  • the break-in, as mentioned above (and as discussed in Part One of this series);
  • the DNA evidence with regard to the double-DNA knife and, in particular, the question if the experts appointed by the Appeal Court have by acceptable means truly established that the results from the DNA testing should be disregarded (see Part Two of the series);
  • the question of whether the mixed DNA traces discovered by the use of Luminol should be attributed to any activity involved with the crime or whether the causes of these traces are innocuous (see Part Four of the series).

If the Court of Cassation has taken this piecemeal approach, it will undoubtedly hand down various more or less detailed instructions to the appeal court in Florence for dealing with each matter. For example, when it comes to the double-DNA knife, it could instruct the appeal court to conduct a new DNA test, or to specifically determine whether or not the result arrived at can, in this case, be considered reliable, regardless of any general rules or recommendations by the "scientific community".

My own feeling is that the Court of Cassation will have chosen the first, and rather more holistic, option. It seems the fairest - and, indeed, the easiest - course of action. It also allows the Court of Cassation to stick to its own rules: don't deal with the facts, just deal with the law. If, as might well be possible, the Court of Cassation feels that the Appeal Court's decision as a whole is "manifestly illogical" (**), it will have struck down that decision more or less in its entirety.  

Back to the Drawing Board

In my original series, The Trial in Perugia, I attempted to give an overview of the case and the way the original court had looked at it. 

Back then, I gave the following synopsis of the original court's ruling:

A. Rudy Guede is guilty of the murder;
B. Guede did not act alone;
C. the only possible accomplices of Guede are Amanda Knox and Raffaele Sollecito;
D. that Knox and Sollecito are culpable of the murder is corroborated by the forensic evidence available;
E. and it is also corroborated by the fact that their stories don’t seem to be logical and do not constitute convincing alibis.

So, has anything really changed since then? Actually, no. The Appeal Court has, most assuredly, knocked some possible holes in the original court's reasoning, but it hasn't really changed the overall picture. That picture remains the same.

So what are we left with? After two complex court cases, I think it might well be, simply put, the break-in.

After all, when you think about this case what is the one, single most extraordinary aspect? Is it the DNA evidence, all the commotion surrounding the double-DNA knife? No, not really. Is it Sollecito's possible footprint on the bathroom mat? Again, no. Is it the wounds on Kercher's body, which seem to indicate more than one assailant? Again, no.

The single most extraordinary aspect of this case is, to my mind, the question of whether the break-in was staged or not. This is far and away the most intriguing and beguiling part of the entire story, and the way one looks at it determines the outcome of the entire case. If, as I stated earlier, one believes that the break-in actually occured, it is very hard to imagine that Knox and Sollecito are, indeed, guilty. If, alternatively, one believes that the break-in was staged, it becomes almost impossible to believe they are innnocent.

So, I end where I began, a few years ago; I end with the break-in. Personally, I find it very difficult to see how it might have really happened; I find it difficult to see how it could have been anything else but staged. Nothing the Appeal Court has said has dissuaded me from this point of view; to be frank, the Appeal Court has offered no real new insights into this matter at all. And I am left with the original court's decision: the break-in was staged. With that thought, and the inevitable conclusion it leads to: Knox and Sollecito might well be guilty.

Two closing remarks

In closing, a first remark to make is this. I am sure that anyone absolutely convinced of the innocence of Knox and Sollecito may at times have found some of the things I wrote surprising and perhaps quite contrary to what  they themselves hold true.

Bear in mind, though, that both my series (The Trial in Perugia and Back To The Drawing Board) are based on the verdicts given and the legal arguments they contain. They are not based on other considerations (and, let's face it, there are many other such considerations to be found). In particular, I have not and will not address the question as to how on earth a young girl from the US or a young man from Italy would suddenly decide to commit a horrible crime with a man they barely knew. That is certainly a fair question, but it is not one that I feel in any way equipped to answer.

The second remark is a simple one: in all of this, let's not forget Meredith Kercher.


*  For a more mathematical approach, see my follow-up post, Doing the Math.

** The Italian criminal code allows for the cassation of earlier verdicts in cases where that earlier verdict contains "manifest illogicality of the judgment reasoning" (Article 606, Criminal Procedure Code).


Anonymous said...

You seem to be making two fundamental mistakes in your analysis which render your argument moot.

1. That the only possible conclusions can be Guede alone or Guede w/ Amanda and Raffaele. In fact, there is a third option - Guede w/ other.

2. That the Appeal Court was supposed to go beyond determining guilt or innocence of Amanda and Raffaele. The Appeal Court's responsibility was to determine the guilt or innocence of Amanda and Raffaele, nothing more. To suggest that in finding them innocent the court effectively left aspect of the crime unanswered and that this is a failing of the court is patently false.

In my opinion, it was the failing of the investigative team to look no further than these three people. Clearly, if it was acceptable to consider someone who left no forensic evidence in Meredith's room (i.e., Amanda) then why not someone else? The truth of this matter is the Investigative team suspected Amanda and Raffaele from early on and never seriously considered anyone else. Given the number of acquaintances Guede had (Raffale and Amanda not being two of them) if the prosecution felt certain there was more than one attacker they should have been looking at some of those people. Kokomani, who was quick to try to put Amanda and Raffaele outside the cottage, comes to mind.

Alex van den Bergh said...

Dear Anonymous,

I think we'll have to disagree here.

1. The notion that Guede could have carried out the murder with other - hitherto unknown - accomplices is not one I can take seriously. More importantly, it is not a notion either court has taken seriously.

2. There are, therefore - in both courts' views - only two options. That being the case, the choice for one of these options automatically means a choice against the other option. To be more specific, any choice a court makes when it deals with the guilt or innocence of Knox and Sollecito is also, and by definition, a choice between whether Guede acted alone or not.

Again, bear in mind that neither court - including the Appeal Court - had any inclination whatsoever to seriously consider the "Guede w/ other" option. The Appeal Court did not make that option a part of its deliberations. Therefore, the Appeal Court has essentially taken the same point of view I have: it's either Guede alone, or Guede with Knox and Sollecito.

Frank Giordano said...

An arbitrary dismissal of this third option does not, in any way, make it any less likely an option. WHY can you not take it seriously? You have no problem putting Knox at the scene of the crime yet there is no forensic trace of her in Meredith's room, so why not someone else? Both Micheli and Borsini-Belardi, in their motivational reports, assumed Amanda and Raffaele collaborated while never once mentioning the consideration of anyone else. This is consistent with accepting Mignini's vision of the crime without question, something the courts had no authority to do. Massei and Hellmann were specifically looking at the guilt or innocence of Amanda and Raffaele, not the totality of the crime. Unless you can show where it's been PROVEN that Guede could not have acted alone AND that, if so, where it's been proven that no one other than Amanda and Raffaele could have been the conspirators, then I don't understand the basis for your disagreement.

The first and second courts trying Guede did not have the authority to determine WHO committed the crime with Guede, and their conclusion that he didn't act alone went unchallenged so it is not, in my opinion, a proven fact but rather, an opinion. Italian law may view this differently but the issue is actually moot. Even if we assume it's an established fact that Guede did not act alone, it was only the Massei and Hellmann courts that were authorized to determine if Amanda and Raffaele were complicit. The Appellate court ruled they did not. The court was not in any position to determine, therefore, who was. A court can only hear evidence presented and rule on the charges brought forth and the Hellmann court did this. There is nothing established as fact at any court related to this case that precludes the finding that Guede acted with someone other than Amanda and Raffaele.

Alex van den Bergh said...
This comment has been removed by the author.
Alex van den Bergh said...

Oh good grief.

No one took this notion seriously because there is no evidence whatsoever to support it.

In fact, any and all evidence spectacularly discounts this notion.

It just cannot be taken seriously by anyone, including the Appeal Court.