1. The Meredith Kercher Case: Back to the Drawing Board (Part One)

The house at the Via della Pergola

Introduction

On October 3rd, 2011, the Appeal Court of  Perugia acquitted both Amanda Knox and Raffaele Sollecito, thereby overturning the convictions handed out by the original court in 2009.

The prosecution thereupon lodged an appeal against these acquittals with Italy's highest court, the Court of Cassation.

Today, that court quashed the Appeal Court's ruling, referring the case to another appellant court - one in Florence -  to be handled further.

The Court of Cassation has not yet substantiated today's ruling. It will do so in the next 90 days. Until the ruling has been substantiated, it is impossible to know why the court felt that the appellant court had erred. It is also impossible to know whether such errors can reasonably be expected to result in a different ruling to be given by the Florence court.

In a series of articles posted here in 2011 (and called, collectively, The Trial In Perugia), I have attempted to offer some insight into the case and its legal setting. I've discussed the original court's ruling (leading to the convictions) at some length, but I have not yet spent all that much attention to the Appeal Court's findings.

Given today's ruling, it's clear that this case is far from over. It is also clear that, for reasons as yet unknown, the Appeal Court's decision cannot stand and a new verdict will have to be given.

As a result, it's extremely tempting to re-examine the case and give some very preliminary thoughts on what the Court of Cassation's reasoning might have been. That's what I'll be doing in this new series of articles. 

To start out, I'll be discussing one of the most intriguing aspects of the entire case: the break-in. Did the murderer (or murderers)  of Meredith Kercher gain entrance to the apartment by breaking into an upstairs window? Or was the break-in staged?

To my mind, the answer to these questions constitute the heart of the case. After all, if one assumes an actual burglary took place, there can be no compelling reason to assume either Amanda's or Raffaele's guilt. Conversely, if one assumes the break-in was staged, it seems very difficult to assume their innocence.

From a more legal point of view, the question arises whether the Court of Cassation overturned the acquittal (in part) because of the Appeal Court's reasoning with regard to the break-in, or whether it based its decision on different grounds. 

A final introductory word here: I'll be repeating a number of things already raised during the earlier series. I apologise; it's not to be helped.

The Red Flag Paradigm

There is a book called The Crime Classification Manual. I understand it to be a more or less standard textbook on various aspects of the classification of violent crimes.

The following is a quote from this manual: 

An offender who stages a crime scene usually makes mistakes because he stages it the way he thinks a crime scene should look. While doing this, the offender experiences a great deal of stress and does not have time to fit all the pieces together logically. Inconsistencies thus begin appearing at the crime scene, the forensics and with the overall picture of the offence. These inconsistencies often serve as red flags for staging and prevent misguidance of the investigation (...)

Several important questions need to be asked during crime scene analysis. First, did the subject take inappropriate items from the crime scene if burglary appears to be the motive? (...)

Second, did the point of entry make sense? For example, an offender enters a house by a second-story window, despite the presence of easier, less conspicuous entry points.

Third, did the perpetration of this crime pose a high risk to the offender? In other words, did it happen during daylight hours, in a populated area, with obvious signs of occupation in the house (lights on, vehicles in the driveway), or involving highly visible entry points?

There is, in other words, a red flag paradigm. If one were to apply this paradigm to the case of Meredith Kercher, what happens?

Well, one might firstly remark that, in our case, nothing was actually stolen. A window was broken in one of the girl's rooms on the second floor of the house. It was Romanelli's room, and that room had clearly been ransacked. Nothing, however, had been taken. No jewellery or other small valuables (which could easily have been slipped into a pocket or bag) were missing; there was a laptop, but it wasn't taken either.

That, it seems to me, is the first flag waving.

Secondly, there is the point of entry. It seems to make little sense to enter the apartment via Romanelli's window, since doing so would have been cumbersome and such an entry could easily have been seen by anyone passing on the street outside. It should be remembered that a much less conspicuous entry point was available via the balcony at the rear of the house, a fact that Rudy Guede (assuming he was the burglar) would have been aware of. More important still, however, is the question of why Guede would have wanted to break into the second-story apartment in the first place. If he was going to burgle the house, why not try the ground floor first?

Another red flag, surely.

Thirdly, the high-risk factor. A great deal has already been said about the risks - and difficulties - of gaining entry through Romanelli's window, but I'll nevertheless repeat some of the more interesting points here. First, however, another observation.

If Guede broke into the apartment when Meredith was already home, it seems likely that he must have noticed that the lights were on in the apartment. This alone would seem to make any burglary attempt prohibitively risky. After all, breaking into a second story apartment when one might more easily and safely break in on the ground floor seems curious enough, but doing so when the lights are on upstairs but not downstairs is not realistically conceivable. In other words, this alone might well cause the third red flag to be hoisted.

There is, however, more to consider. It should be remembered that the break-in would have required Guede to climb up to Romanelli's window to open the shutters, to then climb back down to throw a rock through that window, and finally to climb back up to enter the apartment. (It could be argued that this "double-climb" may not have been necessary if the shutters were open to begin with, or if they could have been opened from the terrace on the second floor, but these are notions the appellant court does not seriously entertain.) Given the location of the window and the time of the break-in (roughly nine o'clock, or perhaps a little later, at night), there were obvious risks involved. The endeavour becomes even more fraught with danger if one considers that the burglar, when first attempting the climb, has no way of knowing whether he will actually be able to open the window at all, since he wouldn't know if the shutters would open (and, even if he thought they would, he wouldn't know whether the window might have the added protection of additional inside shutters, or "scuri".)  As for the climb itself, the burglar probably was helped by the presence of a nail attached to the wall which he used as a support. Again, though, he probably would not have been able to see the nail from the ground in the dark, let alone know that it would hold his weight.

In other words, such a break-in seems very risky indeed. This warrants the third red flag, I'd say.

So, all told, there seem to be clear initial signals that the break-in was staged.

Timing

A major problem that furthermore arises with regard to the burglary is one of timing. It is an issue that, to my mind, has not been dealt with conclusively by the Appeal Court, but that nevertheless seems vital. The question is: when could an actual burglary have taken place? And to phrase this a little more relevantly: did Guede enter the apartment before or after Meredith Kercher had returned home?

If Kercher was already in the apartment when Guede came in through the window, it seems impossible that she would not have been aware of this. She would have heard the window breaking and Guede climbing inside; she would have heard him ransacking the place. And if she were aware of the break-in, she must have reacted to it in some way. She might, for example, have locked herself in her bedroom and called the police. Alternatively, she might have left her bedroom to see what on earth was going on. None of these things happened, however; Kercher was attacked in her own bedroom (the door had not been forced open) and she put up no struggle to speak of. No call was made to the police.

Then there is the problem of the bathroom. We know that Guede used the larger of the two bathrooms (situated fairly close to the front door), since he didn't flush and his faeces were found in the toilet. If he entered the apartment when Kercher was already home, one would  assume that he went to the bathroom after having attacked and killed Kercher. That doesn't make sense, though, given the fact that, at that point, Guede would have fled the apartment as quickly as possible (to use the appeal court's own words). He certainly wouldn't have taken the time to use the bathroom, but not the time to steal whatever he could.  There is, besides,  the fact that traces of shoeprints were found, leading away from Kercher's room and towards the front door; as far as I know, this trail of prints seems to exclude the possibility that the person walking made a detour towards the bathroom.

If, alternatively, Guede broke in when Kercher was not yet home, one must assume that, for whatever reason, she did not at first realise that a burglary was taking place. This is again hard to imagine, but it might possibly be explained by assuming that Guede, having entered the apartment and starting to ransack Romanellli's room, decided to use the bathroom, in which case Kercher may not initially have been aware of his presence. However, in such a scenario, one would assume that Guede would in all likelihood have turned the lights on in the apartment, which in itself might have been enough to warn Kercher. Besides this, there is the question of Romanelli's door. Was it closed or open when Kercher returned? Assuming it was closed could explain why Kercher didn't realise the room had been ransacked, but why on earth would Guede have closed it when he went to the bathroom? If it were open, and lights were on inside, how is it possible that Kercher passed right by it and didn't realise it had been ransacked?  (As an aside, I mention that, according to Amanda Knox's testimony, Romanelli's door was closed when Kercher's body was found the next day.)

Furthermore, one would have to assume that Guede decided, once Kercher returned, to confront her. Given the location of both Romanelli's room and the bathroom, he could (if in either of these rooms) have opted to flee out of the front door relatively easily. Instead, he must have walked down to corridor to Kercher's bedroom, where the attack took place. In this scenario, therefore, one must also assume that Guede turned from a small-time burglar into a sexual abuser and murderer, and one must assume that this transformation occurred almost instantly and by happenstance (the trigger, so to speak, being Kercher's return). I'm no psychologist, but I do find this unlikely.

Then, too, there is the notion entertained by the Appeal Court court that Kercher was already partially undressed when she was killed. How does that fit in with the notion that Guede was already in the apartment when Kercher returned? Are we to assume that he waited for her to start undressing before confronting her? But why on earth would he do that?  

Finally, the timing is important for a reason already mentioned. Kercher returned to the apartment round about 9 o'clock at night. If Guede were already inside the apartment, it could be pointed out that the break-in took place relatively early, at a time when people would generally speaking still be up. Given the method of breaking in and the visibility from the street, this, too, seems odd.

Traces outside

The Appeal Court court looks at the fact that no traces were found on the wall that indicated a climb. It dismisses the absence of such traces as insignificant, however, pointing to the fact that at one point during the investigation, an attempt was made to re-enact the climb. The court notes that the person acting out this reconstruction (who was, by the way, taller than Guede) "easily succeeded in his attempt at reaching the window for demonstrative purposes, without bending the nail or leaving other traces on the wall".

Now, there are various things which could be said about this reconstruction. Perhaps the most important one would be that it's just too vague to be of any real importance. "Reaching the window", for example, is not the same thing as "reaching the window in such a way as to be  able to climb into the apartment". The aspect that interests me here, though, is the fact that the reconstruction left "no traces", as the Appeal Court notes.

The reconstruction took place during the day, and there were obviously a number of people present. Clearly the ground was dry, or some traces of earth or mud would have been left on the wall.

The actual climb, though, would have taken place early at night, when it was dark. Furthermore, it had rained the day before, and the ground would have been "very wet" (as both Romanelli and her boyfriend attested to during the original trial). In other words, there are reasons to assume that whilst the reconstruction may have been "traceless", the actual climb would not have been (and this is compounded by the fact that the climb would have taken place not once, but twice).

It should also be noted that the police did not find any traces on the ground. There were, for example, no shoeprints underneath the window. Neither was any glass found. The latter is, by the way, addressed by the Appeal Court. It states that "the process of throwing the rock (...) did not make it necessary for some glass to end up on the outside as well as the inside of the room", and leaves it at that. This does not appear convincing, especially when one considers that the burglar, having tossed the rock and climbed back up the window, would certainly have had to remove bits and pieces of glass in order not to hurt himself when climbing inside. He would have had no reason whatsoever to make sure that each and every piece ended up inside the room instead of outside, on the ground. So even if "the process of throwing" would not in itself have left glass shards outside on the ground, the entry into the apartment, in all likelihood, would have.

Traces inside

"The smoking gun", the Appeal Court finds, for the original court's ruling regarding the staging of the break-in is the position of the glass inside Romanelli's room. The glass was on top of all sorts of objects which had been moved during the ransacking, and that meant, according to the original court, that the window had been broken after the ransacking took place.

The Appeal Court rejects this on the basis of a very simple supposition: the room was disturbed by a number of people after the burglary was discovered, and the "jumble" recorded - including the presence of glass on top of objects - could well be the result of that disturbance. It does not, according to the Appeal Court, constitute convincing evidence that the window was broken after the room had been ransacked. This is, to be frank, an extremely summary bit of reasoning, especially give the original court's rather extensive thoughts on the matter. 

The appeal court's further substantiation

When it comes to the break-in, there are a few further aspects of the Appeal Court's verdict which should be mentioned, if only to complete the picture.

There is, for example, the simple assertion that Guede could have broken into the apartment because he was "agile and athletic enough to play basketball". Again, this seems to be an overtly summary observation. There is also the reference to the fact that Guede had wounds on his right hand when he was arrested. This is also curious, because if he was wounded while breaking into the apartment, traces of blood would have been left on or near the window. No such traces were found, though.

Then there is the reference to Partick Lumumba. The appeal court notes that Amanda Knox's (false) implication of Lumumba in the crime does not fit with a staging of the break-in, but its only argument is that Lumumba was "not at all suited" to be cast in the role of a burglar. That may well be true, but if the only alternative may have been Guede himself, it's easy to see why Knox would have chosen Lumumba. It could be pointed out that all implications regarding Lumumba in the crime were clearly hazardous (after all, Lumumba was innocent, and it turned out his innocence could be proven).

Grounds for the Court of Cassation?

On the basis of the above one might well consider the Appeal Court's reasoning with regard to the break-in to be suspect. All in all, it seems much more likely that the break-in was staged than that Guede actually committed the burglary in the manner the appellant court finds feasible.

That does not, however, mean that the Court of Cassation will have quashed the appellant court's decision for this reason. In fact, this seems, at first glance, to be quite unlikely. 

The reason for this lies in the Court of Cassation's legal remit. In short, that court has to decide on matters of law, and not on factual matters. It is, in other words, not up to the court to weigh the facts and then decide whether it's more likely that the break-in actually occurred or whether is was staged; its only task here is to consider whether or not the appellant court's reasoning stands the test of being sufficiently substantiated.  

And generally speaking, that does seem to be the case. The Appeal Court's decision in this regard might not be particularly strong - it could be considered downright weak, even - but that doesn't mean it's necessarily wrong. It doesn't mean its reasoning is incomprehensible, let alone nonsensical.

Nevertheless, there are two aspects of the Appeal Court's decision which could well have led the Court of Cassation to quash its ruling.

The first and perhaps most important of these deals with the way the Appeal Court has handled the break-in in general. Effectively, it looks at the original court's findings and rejects them. It does not, however, offer its own exposition of events. It does not, for example, make any clear observations with regard to the timing of the burglary (was it before or after Kercher came home?). It does not take into account the events that occurred right after the burglary. It does not deal in any detail on the (compounded) unlikelihood of the burglary having happened as it must have (the double-climb theory). As such, the Appeal Court's decision contains rather obvious gaps; the Court of Cassation could well have found that these gaps are too severe for the acquittals to stand.  

The second possibility is a little more technical. It deals with the broken glass inside the room. The Appeal Court finds that the room was a "jumble" and that there was glass both under and above items of clothing and other objects. From this, it deduces that an actual break-in may well have happened. However, in doing so, it glosses over several pertinent parts of the original court's deliberations. For example, the original court based its opinions, in part, on Romanelli's testimony. Romanelli testified that, when she left the apartment, the laptop was  "in its case, standing up". When she returned - after the burglary - the laptop was "underneath" and when she picked it up, there was glass on top of it. In other words: the laptop had been moved, and afterwards glass had gotten on top of it. This means exactly what it seems to mean: the glass was distributed after the moving of the laptop. There are only two ways this could have happened: either the window was broken after the room was ransacked, or, somehow, the glass was already on the floor but was "re-distributed" at some later moment.  It would seem, however, that the latter option should be excluded, at least in the case of the laptop, since I understand Romanelli was the first to enter her room.      

Given this, it might be argued that the Appeal Court ignored evidence available to it, evidence that, it should be added, directly refutes that court's conclusions. Again, it is possible the Court of Cassation found this a ground for the overturning of the Appeal Court's decision.

There is one final remark to be made here. It does not concern this particular trial, but rather the trial against Rudy Guede. That trial, too, went all the way up to the Court of Cassation. In its ruling, the court confirmed the guilty verdicts already handed down by the two lower courts, and in doing so, it makes a very interesting remark concerning the break-in:

"And it should also be noted, as the judges of the lower courts have correctly held, that following the murder an activity occurred intended to simulate an attempted theft, which the judges of lower courts and the defence of the same appellant agree was an operation done by others and not by the defendant (...)".

The key word here is "correctly". If the Court of Cassation felt at the time that the lower courts had "correctly" established that the break-in was staged (and even that it was staged "by others" than Guede), then one wonders what its current thoughts might have been.