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.

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 Florence.

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". 

7. The Meredith Kercher Case - Doing the Math

Earlier this year, authors Leila Schneps and Coralie Colmez published their book Math on Trial.

In it, they discuss a number of cases where, they allege, mathematical errors were made in court. One of the cases discussed is the case against Amanda Knox and Raffaele Sollecito.

The authors explain that, in this case, the Appeal Court's decision to not re-test the DNA evidence found on the so-called double-DNA knife was flawed. In an article in the New York Times, they summed up their position as follows:

"One of the major pieces of evidence was a knife collected from Mr. Sollecito’s apartment, which according to a forensic scientist contained a tiny trace of DNA from the victim. Even though the identification of the DNA sample with Ms. Kercher seemed clear, there was too little genetic material to obtain a fully reliable result — at least back in 2007.

By the time Ms. Knox’s appeal was decided in 2011, however, techniques had advanced sufficiently to make a retest of the knife possible, and the prosecution asked the judge to have one done. But he refused. His reasoning? If the scientific community recognizes that a test on so small a sample cannot establish identity beyond a reasonable doubt, he explained, then neither could a second test on an even smaller sample.

Whatever concerns the judge might have had regarding the reliability of DNA tests, he demonstrated a clear mathematical fallacy: assuming that repeating the test could tell us nothing about the reliability of the original results. In fact, doing a test twice and obtaining the same result would tell us something about the likely accuracy of the first result. Getting the same result after a third test would give yet more credence to the original finding."

Is this criticism fair? Did the Appeal Court flunk its math exam?

Well, to my mind the answer to this is yes and no. The Appeal Court ultimately did err in its assessment of probabilities, but, ironically, it did not err in the way the Schneps and Colmez seem to think.

Why is this? Well, for a very simply reason: the authors misrepresent the Appeal Court's reasoning. After all, when it comes to the question of whether a new test should be preformed, this is what the Appeal Court actually said:

"In fact, (the prosecution) argued that systems currently exist able to analyse such low quantities, albeit still at a developmental stage. This Court holds, however, that it is precisely the fact they are still under development, in practice in an experimental phase, which precludes us from basing a belief in guilt on the results obtained with the application of such systems: the Judge can do no else but base his or her opinions on the technical systems and established scientific knowledge from a particular time period – the period in which s/he is called to judge – and not on others still in an experimental phase. This, once again, to reach a decision of guilty beyond any reasonable doubt."

So what does this mean? Well, the Appeal Court is definitely not saying "the first test yielded an inconclusive result; the second test would yield another inclusive result, so let's not do the new test". What the court is saying, is that any new test (regardless of the outcome) would be irrelevant, simply because such a new test would have to be carried out by "systems" that are "still in development" and "experimental" and, therefore, inherently untrustworthy.

Schneps and Colmez seem to think that this a case where you could have had two single results, both of which might be quite acceptable, but both of which, when considered singularly, are inconclusive. They seem to think that the Appeal Court made the basic error of not considering that two such results might well prove to be much more relevant when taken together. However, that is clearly not what the Appeal Court has done.

So much, then, for Schneps's and Colmez's argument. They have simply misrepresented the Appeal Court's reasoning and, based on that misrepresentation, erroneously assumed the court made some sort of mathematical error.

The question remains, though - did the Appeal Court do its math properly? I would say not.

Why?

Well, Schneps and Colmez are right in one thing. The Appeal Court does seem to have muddled its understanding of the law of probabilities. However, what's in question is not the probability of just one or two DNA tests leading to a reliable result with regard to the knife; instead, it's the probability of the entire case. That is: of all the bits and pieces that, when fitted together, drew the original court to its conclusion that that Knox and Sollecito must be guilty.

What the Appeal Court has done is that it looks at all these bits and pieces separately. It then rejects them all. Not because they could not possibly lead to the conclusion that Knox and Sollecito are guilty, but rather because, seen singularly, they do not lead to that inevitable conclusion. And, the Appeal Court then reasons that, since there is not one single bit of evidence that would, in itself, prove their guilt beyond a reasonable doubt, all the various bits and pieces taken together wouldn't either.

Now this is a clear error, and it can be simply demonstrated.

Let's look at this from a simple mathematical point of view and assume that there are various aspects of the case which could point to guilt and which might not, and let's assume that each aspect has a 50% to 50% ratio between the two.

For example: the break-in. There's a 50% chance it was real; there's a 50% chance it was staged. Kercher's DNA on the knife? A 50% chance it was there; a 50% chance it wasn't.

Now let's sum up a number of the most important factors, two of which I've just mentioned. Here's a somewhat simplified list:


                                                Guilty                                      Innocent
Break-in                                    50%                                          50%
DNA knife                                 50%                                          50%
DNA bra clasp                          50%                                          50%
Luminol traces                          50%                                          50%
Footprint on mat                       50%                                          50%
DNA traces bathroom               50%                                          50%

Total                                          50%                                          50%

From this simple list, anyone would assume that there's a 50% chance that Knox and Sollecito are guilty, and a 50% chance that they are innocent. So that would clearly implicate that they should be cleared in court; the Appeal Court correctly acquitted them, right?

Well, not so. The thing is, of all these various factors, there is really only one that must be taken into consideration when assuming guilt. That's the break-in. As I've stated earlier, there is no way in which Knox and Sollecito might be guilty if the break-in actually occurred. To put it another way, if the apartment was actually broken into, one must assume their innocence.

Such an assumption need not in any way be made when it comes to any of the other factors, however. The assumption that Kercher's DNA was on not the knife, for example, does not in any way lead to conclusion that Knox and Sollecito must be innocent. The same applies to the DNA found on the bra clasp; the same applies to the Luminol traces, etc.

Conversely, if any of these factors did indeed conclusively point to Knox's or Sollecito's involvement, any single factor would be sufficient to establish their guilt. If, for example, it must be assumed that Sollecito's footprint was found on the mat in the small bathroom, it must be assumed that Knox and Sollecito are indeed guilty.

So let's do the math. Are Knox and Sollecito guilty? Well, there's a 50% startling chance. Does that get any lower? No; none of the factors mentioned in my list can decrease that. Can it get any higher? Certainly: if the chances of their innocence decrease, the chances of their guilt rise proportionally.

Are they innocent? Well, again you start with a 50% chance. Does that get any lower? Oh, yes. You start out with the break-in, which is where your initial 50% comes from. But next you'd have to assume that Kercher's DNA is not on the knife. So that's another 50%. You're left with 50% x 50% = 25%. Then you move to the bra clasp. Another 50%. That makes 12,5%. You move on through the remaining factors, and end up with a rather stunning 0,78% chance of them being innocent. Yes, that's right: less than 1%. Conversely, there's a higher than 99% chance that they're guilty.

Now, don't get me wrong. I'm not seriously suggesting that you could settle the whole case by simply doing a few sums. What I am suggesting, though, is that there is a basic error in the Appeal Court's reasoning.  

The error is very simple. You can't look at this case and say that there's not a single piece of evidence that necessarily leads to Knox's and Sollecito's guilt, and then leave it at that. You have to look at all the pieces of evidence, and you have to look at all those pieces together. If you do, the picture becomes quite different, and it simply becomes rather difficult to assume their innocence. 

Can that assumption still be made? Yes, I would say it can. Just not in the way in which the Appeal Court has attempted it. Its logic isn't very sound, and neither is its math.
   

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

Meredith Kercher

Introduction

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).

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.