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).

4. The Meredith Kercher Case - Back to the Drawing Board (Part Four)

The evidence gets really confusing....

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 Three, I talked about the Appeal Court's decisions pertaining to the break-in and the DNA evidence (the evidence with regard to the "double-DNA" knife and the bra clasp).

In this part, I'll start to wrap things up by discussing the most interesting other aspects of the Appeal Court's ruling. I will focus on the footprint on the bathroom mat - which inevitably leads one to evaluate whether or not a clean-up operation took place -  and the traces left by  Luminol found in various places in the apartment at the Via della Pergola.  

The print on the mat and the clean-up

In the smaller of the two bathrooms in the upper floor of the house at the Via della Pergola (the bathroom used by Kercher and Amanda Knox, just next to Kercher's bedroom), a mat was found on which the imprint of someone's bare right foot was found. The print was made due to the fact that the foot has been bloodied; the blood was Kercher's.

The original court, after having heard the expert testimony from both the prosecution and the defence, decided that the footprint matched the right foot of Sollecito.

The Appeal Court rejects this, coming to the conclusion that the print is "of no evidentiary value against defendant Sollecito". In fact, the court states: "It cannot (...) be ruled out that Guede (...) experienced the loss of his right shoe in the course of the violent aggressive manoeuvres to which he subjected Kercher, thus resulting in the soiling of his foot with blood, which he took it upon himself to wash in the small bathroom situated immediately to the left of the door to Meredith’s bedroom. Otherwise, his right shoe should also have left some kind of bloody trace along the corridor as he exited; he likely went through it, however, with his right foot bare, even if cleaned of blood by this point."

Now before addressing the forensic evidence regarding possible matches of the footprint, there is another issue to bear in mind. Is the fact that print existed in the first place of any relevance for the question as to whether more than one person was involved in the murder?

Well, if we consider the Appeal Court's reasoning, as quoted above, one might assume that something along the following lines must have happened: 

•  sometime during or preceding the attack on Meredith, Guede loses his right shoe;
• Guede kills Kercher, doing so in such a manner as to inevitably leave considerable amounts of her blood in her room and, no doubt, on his person. He also leaves evidence of his presence in her room (there is, for example, the imprint of his bloodied hand on a pillow). He then goes to the bathroom to wash his bare foot;
• he then cleans up, thereby forgetting or not noticing the single footprint on the bathmat (and, indeed, the hand on the pillow), and possibly puts his shoe back on (or perhaps, as the Appeal Court assumes, he does not);
• and he then departs, leaving, however, a discernible trail of shoe prints from his left shoe.

If one accepts such a sequence of events, a clear problem arises. After all, if you wish to believe that the same person (i.e. Guede) could have left both the footprint on the mat and the shoe prints, you would have to accept that that person would have had to be, at one and the same time, cautious enough to have cleaned up after the attack (and even, at least to a certain extent, to have "rearranged" the crime scene), but careless enough to ultimately walk out of the apartment with a clearly bloodied shoe (and the mark of his hand on a pillow). He would have had to spend considerable time and attention to trying removing his presence in some ways, whilst at the same time not caring at all whether his presence was discernible by other means. (I should perhaps at this point bring into recollection that the shoe prints leading from Kercher's room to the exit were visible to the naked eye; these were not traces only discernible by the use of Luminol.)

In other words, it seems fairly clear that the two sets of actions could not have been taken by one single person. They are, simply put, contradictory in nature. To a certain extent, the Appeal Court itself inadvertently strengthens this contradiction, when it assumes that Guede left the apartment wearing only his left shoe, with his right foot still bare. That, certainly, is the action of someone who wants to leave as quickly as possible, and not the action of someone who has decided, instead, to stay for a while and remove as much evidence as possible. Besides, it seems rather absurd to suppose that Guede would have cleaned up the place whilst wearing just one shoe.

The Appeal Court however, recognises the problem, and deals with it in a way that is quite crucial not just to the issue of the footprint on the mat but also to the issue of the traces revealed by Luminol (which I'll discuss later). It does so by assuming there was no clean-up.

I must admit that when I first realised this, I was momentarily at a loss for words. That the apartment had, at least partially, been cleaned after the attack had been, for me, a given (as it had been for the original court, which stated that "a cleaning activity was certainly carried out".)

The Appeal Court's reasoning on this cannot be found in its deliberations concerning the footprint; it is only when one arrives at the court's reasoning with regard to the traces left by Luminol that this aspect of the ruling becomes clear. There, the court expressly rejects the idea that any clean-up took place: "the occurrence of a clean-up is negated by the sheer number of traces found in the house", the court states.

I must admit I have no true understanding of how the Appeal Court might find this to be the case. If Kercher was murdered in the way she was murdered - that is, stabbed repeatedly with one or two knives - she would have lost a considerable amount of blood. Whoever attacked her must gotten that blood on them; the blood must have gotten on their (bare or shod) feet. Of course some sort of clean-up took place, and this follows from the simple fact that the very next day, various people (not just Knox and Sollecito, but also Romanelli, a friend of hers and both their boyfriends, along with two officers from the Postal Police) all entered the apartment and none of them, at that point in time, realised that they were walking into the scene of a violent murder. It follows from Knox's own testimony: she states she had earlier taken a shower and not realised anything was actually wrong; she noticed on or two little blood stains but assumed someone had had her period. And, certainly, it follows from the single footprint on the bath mat in the small bathroom, with the absence of any other prints leading from Kercher's room to the bathroom and the mat.  

In short, if the fact that some sort of clean-up had taken place seemed, to me, a given, that is because it is. I don't see how you can get around that at all; any other idea would appear to be totally illogical. Nevertheless, that is the assumption of the Appeal Court, and because of this, I feel that that court's reasoning is seriously suspect.

Now, I have already said that, if you do assume a clean-up took place, this also implies that the Appeal Court's reasoning with regard to the footprint on the bath mat becomes clearly illogical.

*******

It is only when the above issues has been addressed that the next question arises, which is whether or not the forensic evidence shows if the print matches Sollecito's foot. As to that question, I will try to be brief. The reason is very simple: I'm basically at a loss.

You see, the experts of the police came to the conclusion that the print was compatible with Sollecito's foot, but incompatible with Guede's.  However, the expert hired by Sollecito, professor Vinci, disagreed: he stated that the print could, indeed, have been left by Guede. To substantiate this, Vinci made one very important assumption, which is that the print of the foot's big toe is actually not a print of just that toe, but also a print of the next (or second) toe. The print is therefore merged; it's two toes. This is important because it turns out that Sollecito's big toe is actually much bigger than Guede's. In other words, to explain the size of the print when it comes to the big toe (to explain that the print could nevertheless be Guede's), the defence had to assume that the print was two toes.

Now the original court rejected Vinci's claim, using a rather simple argument: it stated that the print was clearly homogenous. If it had been the merged print of not one but two toes, there would have had to have been some incongruity, some "interruption of continuity" (as that court states) in the print. However, there is none, the court alleges.

The Appeal Court , however, states the opposite, where it confirms that "examining the black and white images [in professor Vinci's report], one remains convinced of the validity of his belief."

And that's basically it. In other words, the original court looks at the print and decides it's Sollecito's foot, whilst the Appeal Court looks at the print (the photos in Vinci's report) and decides that it could well be Guede's.

As a result, I have no clear idea of which court's opinion is the more valid. I can only turn to a few rather vague ideas and notions. Whilst these, by and large, would seem to indicate that, yes, it's rather more likely that we're talking about Sollecito's print than Guede's, that's just not enough.  

As to what the Court of Cassation made of this, once again I don't know. From a strict legal point of view, I would have to assume that that court might well have had to accept the Appeal Court's reasoning, since it doesn't seem to be overtly illogical or insufficiently substantiated. 

Please remember though, that we are only talking about possibilities (or probabilities). Neither the original court or the Appeal Court rules out in any absolute sense that the print could have been made by either Sollecito's or Guede's foot. As a result, the remarks I made earlier - regarding the relevance of the print when it comes to the question of a "lone wolf" criminal - remain quite intact, as do my comments regarding the clean-up. And these, to my mind, are the central issues.

*******

Sollecito's foot

Guede's foot

 

Click on either image for a larger picture.
As to the footprint on the mat, here are the measured sizes: Big toe height = 39. Big toe width = 30. 
Metatarsus height = 50. Metatarsus width = 99. 
(The photos are from the prosecution's report.)

*******

The Luminol prints

As the Appeal Court correctly states, during the second inspection of the house at the Via della Pergola, on the 18th of December, 2007, Luminol was applied to the floor of the corridor, to the kitchen/living-room, to the bedrooms of Knox and Filomena Romanelli, and, finally, to the larger bathroom.

Now, Luminol is a substance that can detect the (invisible) existence of blood, but it reacts equally to other substances, like fruit juice or bleach.

The use of Luminol revealed various traces (I believe there were six traces in all). These traces were further examined; that is, they were, firstly, examined as to whether it could established that they were left by blood. Secondly, DNA samples were taken and tested.  

As for the blood sample testing: all the results came up negative. It could not, in other words, be established that the traces were blood traces.

As for the DNA testing: two traces were found to contain the mixed DNA of both Knox and Kercher. One of these traces had been taken in Romanelli's room; the other had been taken in the hallway. The other four traces did not contain mixed samples, but they did contain the DNA of just Knox.

The original court, in considering this outcome, came to the conclusion that in the case of the two mixed samples, a reasonable supposition is that these traces consisted of the blood of Kercher, mixed with the DNA of Knox. In doing so, that court takes into consideration that whilst the testing done did not establish the existence of blood, there was no sufficient reason to exclude the possibility that they had, nevertheless, been blood samples.

The Appeal Court disagreed, stating the following: "First and foremost, the certain, true fact is that the generic blood test gave a negative result. According to the [first] Court this happened because of the scarcity of the available biological material, but the consultant for the defense, (...) specified (....) that the (...) test is very sensitive, so much as to give a positive result even with only five red blood cells present. Dr. Stefanoni herself, moreover, clarified (...) that, while a positive test result could be deceptive due to reactivity of the chemical with other substances, a negative result gives certainty that no blood is present."

The first thing that should be noted here is that the Appeal Court has muddled its facts. Dr Stefanoni (who is attached to the Scientific Police and therefore the prosecution) was, at the time, clearly talking about the results from the use of Luminol, not the results from specific and subsequent blood tests. And her remarks seem correct: a negative Luminol test will no doubt be conclusive (i.e. if the Luminol does not cause a reaction, well then, no blood, or any other substance that reacts to Luminol, will be present). This, however, clearly does not apply to the six traces in question, since all these traces led to positive Luminol results; there was a reaction. 

What we are left with is the true statement that the specific blood test lead to a negative result. Here, however, the same applies as when examining the "double-DNA" knife and the bra clasp: the fact that it could not be established that Kercher's DNA sample on the knife was left by blood, or Sollecito's sample on the clasp was left by his handling of the clasp, does not in itself rule out either possibility.  It simply means that the answer to that question must be sought elsewhere, by different means.

The means by which the original court reaches its answer is relatively straightforward. We have, that court considers, the positive Luminol samples. Then we have, in two cases, further DNA samples that were mixed (they contained both the DNA of Knox and Kercher).  What is the most reasonable explanation for this? Well, the original court states, it's surely that Knox, in her bare feet - feet still bloodied with Kercher's blood - left these traces.

To which it can be added that one of the traces (the one in Romanelli's room) does not seem attributable to a bare foot (it is simply amorphous). The second trace, however (the one found in the corridor), does seem to have been left by a foot (indeed, it seems to have been left by Knox's foot).*

And to which it can further be added that any other explanation seems much more improbable. In particular, the notion that the two mixed traces could just be evidence of the fact that both Knox and Kercher happened to live in the same apartment seems unlikely. After all, such an idea would necessitate that , at two very specific places and at more or less the same time, Knox and Kercher both left their DNA traces, and you would further have to assume that, again at the same place and at more or less the same time, some innocuous substance with which Luminol reacts (such as fruit juice or bleach) was used. If you assume that substance to have been incidental, such as, say, spilled fruit, common sense dictates that the odds of this having happened become very high indeed; if, alternatively, you presume a much more generic substance caused the reaction, such as bleach, the opposite apples; it becomes almost impossible to understand why only two traces were found.

In other words, the original court reached its decision on the basis of a fairly logical set of thoughts, and one that I, at least find compelling.

It is interesting to note that the Appeal Court seems to have all sorts of difficulties in trying to reach an opposing view. The court starts by assuming the Luminol traces could indeed have been caused by bleach. After all, why not? There were four young women living together in the apartment, who must have had friends coming over regularly; bleach must have been used often. In doing this, however, the Appeal Court is already starting to miss the crux of the matter; after all, it is not just the positive Luminol test that is indicative, it is the combination of that test and the DNA sampling, and the fact that so few traces were found, which is important.

Perhaps because of this, the Appeal Court goes on to make two further remarks. Firstly, it states the following: "The limited number of footprints detected can be explained by treading at different times and by the use of bleach on points specifically dirty.  After all, doubts similar to those raised in the ruling could be brought up even supposing that the traces are of blood: why only in those few points, moreover not consecutive and instead spread in various rooms?"

This quotation is, it must be said, truly odd. If the traces were a reaction to bleach, surely there must have been a lot more of them. So the Appeal Court is trying to explain why there were, in fact, so few. And in doing so, it immediately ties this issue to another one altogether, which is the question of why only two mixed DNA samples were found.

Well, that question has already been answered by the original court, and that court's answer was simple: a clean-up operation had taken place. So one would expect the Appeal Court to concur, this, after all, explained the conundrum the Appeal Court itself had just made obvious.

What, however, does the Appeal Court do? It immediately and rather astonishingly rejects the idea of a clean up. The second remark it makes is: "the occurrence of a clean-up is negated by the sheer number of traces found in the house".

It is at this point that one must seriously consider that the Appeal Court has more or less lost the ability to think straight. The court starts its arguments by asking itself why there are so few footprints. It links this to the fact that, well, there are only two mixed DNA traces, too. It then offers the answer to the question of how this can be the case: there must have been a clean-up. It then rejects that notion. And how does it do this? By pointing to "the sheer number" of traces.  I think the only correct response to all this would be: "Eh?"

Having said this, however, I must point out that the Appeal Court, after this momentary lapse of reason, comes back quite strongly. It finishes its arguments on the traces left by Luminol with a simple and possibly adequate remark, stating that the DNA in the mixed samples was once more so small that LCN testing was required. And just like the testing done with the knife, serious questions can be raised as to the reliability of the results procured. Once more, the question arises if the tests conducted by the Scientific Police were adequate since, once more (as the Appeal Court states), just a single test was carried out (and, as far as I know, no new testing - done, perhaps, on the basis of methods "still in development" - can be done). 

So, how will the Court of Cassation have thought about all this? Well, at the very least I would assume that it could not have overly pleased with the Appeal Court's considerations; these are, in many ways, clearly illogical in very substantive ways.  Of course some sort of clean up seems to have taken place; the Appeal Court's negation of this makes very little sense at all. So of course there is the very real question as to whether Guede could and would have engaged in this clean up and if not, if that fact alone does not clearly point to the guilt of Knox and Sollecito. And of course the traces left by Luminol should be taken seriously in this regard. And yet, there remains the unclear answer to the question of whether or not the footprint on the mat should or should not be attributed to Sollecito. And there remains the question of whether the results of the LCN testing on the mixed samples can or cannot be considered reliable. And I am uncertain as to how the Court of Cassation has answered either of these questions. 
 ________ 

* This paragraph was edited on the basis of the comments you can read below. Originally, I had stated that both prints were attributable to bare feet, thereby following the Appeal Court's statements. The Appeal Court seems to have been wrong, though.