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Tags !MOD BOX WARNING! , Amanda Knox , Italy cases , Meredith Kercher , murder cases , Raffaele Sollecito

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Old 18th January 2019, 08:03 AM   #2321
TruthCalls
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Originally Posted by LondonJohn View Post
Well well. Next Thursday eh?

We. Shall. See.

Either way, this will bring about the true endgame of this sorry case. Either the ECHR will rule in Knox's favour (as I believe it should), in which case Italy will effectively have no choice in practice but to set aside her criminal slander conviction - which in turn will open the door wide for Knox to seek substantial damages from Italy for her unlawful detention over all those years (and will add increased momemtum to any application by Sollecito to the ECHR). Or the ECHR will dismiss Knox's application, in which case that will be that.
Assuming the ECHR rules in Amanda's favor, as I also would expect, how long does Italy have to respond, and what are it's options? I assume they could either set aside the conviction or offer a revision trial (hearing?). Is simply ignoring the ruling without taking action or issuing a statement an option? And if a revision trial is to be held, is there a typical time frame for that to happen?

I agree the case should be nearing it's conclusion, but knowing how the wheels of justice grind in Italy I'm wondering if this could still be dragged out another year or more?
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Old 18th January 2019, 10:40 AM   #2322
Numbers
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Originally Posted by TruthCalls View Post
Assuming the ECHR rules in Amanda's favor, as I also would expect, how long does Italy have to respond, and what are it's options? I assume they could either 1. set aside the conviction or 2. offer a revision trial (hearing?). Is simply 3. ignoring the ruling without taking action or issuing a statement an option? And 4. if a revision trial is to be held, is there a typical time frame for that to happen?

I agree the case should be nearing it's conclusion, but knowing how the wheels of justice grind in Italy I'm wondering 5. if this could still be dragged out another year or more?
1. I'm not aware of any Italian procedural law that allows a court to "set aside a conviction" (acquit or otherwise dismiss a case) unless the conviction is a provisional one and the case is before that court on appeal. Final convictions - which are those affirmed by the Supreme Court of Cassation (CSC) and those provisional convictions which are not appealed - cannot simply be "overturned" by any court, even the CSC, on its own initiative. The "finality" of final convictions, except those subject to a revision trial, and of final acquittals is codified in CPP Article 648.

2. The revision trial is the only Italian legal procedure for reversing certain (wrongful) final convictions, and is codified in CPP Article 629. A revision trial may only be held if requested. The request may be generated by the convicted person or the chief prosecutor attached to the court of appeal in the district where the judgment of conviction was delivered (CPP Article 632).

Revision requests will be accepted for review only for those final convictions in the circumstances that meet the requirements of CPP Article 630 or Italian Constitutional Court judgment Number 113 of 2011. Constitutional Court judgment 113 allows the review of revision requests when it is necessary to reopen the proceedings in order to comply with a final judgment of the European Court of Human Rights. That is the most likely route for a successful request for revision by Amanda Knox, since the Italian courts so far have resisted her defense arguments in the calunnia case and they may not, based on their apparent bias, accept the Boninsegna court acquittal as sufficient.

3. The Italian courts have no legal necessity to not ignore an ECHR judgment in favor of Knox, by itself.

However, if she files a request for a revision trial after an ECHR judgment favorable to her, that is, one stating that her trial for calunnia was unfair under the European Convention on Human Rights, the Italian court receiving her request must rule on it according to Italian law. Assuming that the Italian courts follow Italian procedural law, if the request for revision is not rejected based upon the reasons for rejection identified in CPP Article 634, the request must be accepted and a revision trial held. The rejection of a request for revision may be appealed to the CSC.

4. & 5. According to Italian law, CPP Article 629, the revision of judgments of conviction may be performed at any time, even if the sentence has already been enforced (carried out). The time limits for conducting the revision trial after a request for revision is accepted appear to be the same as those for a regular trial, although the revision trial is to be limited to cover the reasons specified in the request for revision (CPP Article 636). Thus, according to Italian law a revision trial probably would be completed less than one year after the request for revision was accepted, although if one looks at the history of the Knox - Sollecito case, one may conclude that Italian judicial practice may or may not follow Italian law.

Last edited by Numbers; 18th January 2019 at 10:45 AM.
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Old 18th January 2019, 04:25 PM   #2323
Stacyhs
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Can Italy choose to dismiss the conviction instead of having a revision trial?
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Old 18th January 2019, 06:17 PM   #2324
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I just watched an interesting Forensic Files. Half-brothers, Leon Brown (17) and Henry McCollum (20), were convicted (twice) of the murder-rape of an 11 yr. old girl, Sabrina Buie. The brothers had low IQ's, one about 50 and one around 70. One brother had confessed to holding down Buie but he later said that the police had told him that he could go home if he admitted he was involved, so he did. Their confessions were contradictory to each other and to the evidence found at the scene. No physical evidence placed them at the crime scene. They were sentenced to death. They spent 30 years in prison on death row before DNA testing from a cigarette butt found at the scene ruled them out and identified a man named Arliss. Arliss was in prison for a similar rape-murder that occurred about a month after Buie's. The police had first suspected Arliss of Buie's murder and had requested fingerprint testing on a beer can found at the crime scene. However, after Brown and McCollum were arrested, the request was cancelled. The prosecutor, Freeman Britt, was known for doing anything to get a conviction and it was later found that he had withheld evidence from the defense, not only in the Buie trial, but had done so in other cases. He was never held responsible for his misbehavior. At the hearing based on the DNA evidence, the new prosecutor said he would not choose to prosecute again and the judge vacated the sentences. Leon Brown ended up in a mental hospital as a ward of the state as a result of the abuse, including rape, he suffered in prison those 30 years.
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Old 18th January 2019, 08:19 PM   #2325
Numbers
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Originally Posted by Stacyhs View Post
Can Italy choose to dismiss the conviction instead of having a revision trial?
I'm not aware of any Italian procedural law that allows a court to "set aside a conviction" (acquit or otherwise dismiss a case that is a final conviction.) A provisional conviction that is reviewed by an appeal court or the CSC can be dismissed. Final convictions - which are those affirmed by the Supreme Court of Cassation (CSC) and those provisional convictions which are not appealed - cannot simply be "overturned" or "dismissed" by any court, even the CSC, on its own initiative. The "finality" of final convictions, except those subject to a revision trial, and of final acquittals is codified in CPP Article 648.

However, there are some other avenues for relief of the penalty (sentence) of a final conviction in Italy that may also result in vacating the record of the conviction.

These include amnesties and pardons (CPP Article 672) and the abolition of the offense. That is, the Parliament abolishes the law defining the crime or the Italian Constitutional Court decides that the law defining the crime is unconstitutional (CPP Article 673.1). Also included in this group are judgments of dismissal or of no grounds to proceed delivered in a trial because the offense was extinguished (beyond the statute of limitations) or the accused was found to be mentally incapable of criminal responsibility (CPP Article 673.2).

It may be, based on CPP Article 674 (the meaning of the translation I have is not clear to me) that all the above (amnesties, pardons, abolition of law, etc.) lead to a vacating of the accused's criminal record.

Here's the Italian text:

Art. 674. Revoca di altri provvedimenti.
1. La revoca della sospensione condizionale della pena,
della grazia o dell'amnistia o dell'indulto condizionati e
della non menzione della condanna nel certificato del
casellario giudiziale è disposta dal giudice
dell'esecuzione, qualora non sia stata disposta con la
sentenza di condanna per altro reato.

Translation from Gialuz et al.:

Article 674 Revocation of other decisions

1. The revocation of a suspended sentence, of mercy, of conditional amnesty or pardon and of the non recording of the conviction in the criminal record certificate shall be ordered by the enforcement judge, if it has not been ordered by the judgment of conviction for another offence.

Source of Italian text:
https://www.legislationline.org/docu.../22/Italy/show

Last edited by Numbers; 18th January 2019 at 09:28 PM.
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Old 18th January 2019, 11:51 PM   #2326
Stacyhs
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So Italy can order a revision trial in which Knox's statements cannot be used as evidence which, in effect, leaves them with no case. Or, they may just ignore the ECHR and do nothing? How would that leave Knox legally? Still convicted even though the ECHR ruled her trial violated her rights? Hmmmmm.
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Old Yesterday, 06:20 AM   #2327
Numbers
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Originally Posted by Stacyhs View Post
So Italy can order a revision trial in which Knox's statements cannot be used as evidence which, in effect, leaves them with no case. Or, they may just ignore the ECHR and do nothing? How would that leave Knox legally? Still convicted even though the ECHR ruled her trial violated her rights? Hmmmmm.
Your posted statement leaves out legally important steps.

After an ECHR judgment finding that Italy had violated her right to a fair trial, Knox would be entitled to request a revision trial under a 2011 ruling of the Italian Constitutional Court.

If her request is accepted, she will have a revision trial for calunnia. Presumably, the revision trial would acquit her, because there would be no legally-usable evidence against her. If somehow she is not acquitted or given some equivalent dismissal, even after an appeal to the CSC, then her path would be to bring another case for unfair trial before the ECHR, which she would almost certainly win.

If her request is not accepted, even after an appeal to the CSC, then her path would be to bring a case before the ECHR for this alleged violation of international law by Italy. The alleged violation(s) would include Convention Article 46:

ARTICLE 46
Binding force and execution of judgments
1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.
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Old Yesterday, 08:34 AM   #2328
Numbers
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For accuracy, I am correcting the following previously posted statement, including by an addition about the ECHR:

3. The Italian courts have no legal necessity within the Italian Code of Criminal Procedure (CPP) to not ignore an ECHR judgment in favor of Knox, by itself. However, under the Italian Constitution, the Italian courts must follow the Convention and ECHR case-law because Italy as a state has agreed to follow it as a treaty member of the Council of Europe.

However, if she files a request for a revision trial after an ECHR judgment favorable to her, that is, one stating that her trial for calunnia was unfair under the European Convention on Human Rights, the Italian court receiving her request must rule on it according to Italian law. Assuming that the Italian courts follow Italian procedural law, if the request for revision is not rejected based upon the reasons for rejection identified in CPP Article 634, the request must be accepted and a revision trial held. The rejection of a request for revision may be appealed to the CSC.

If the Italian courts unfairly reject even hearing the request for revision or reject the request unfairly, that would be justification for Knox to lodge a new application with the ECHR under Convention Article 46, which provides that states must undertake to comply with the final judgments of the ECHR. If they hear the request and hold a revision trial but unfairly fail to acquit or otherwise dismiss Knox, that would be justification for Knox to lodge an application with the ECHR under Convention Article 6.

Last edited by Numbers; Yesterday at 09:05 AM.
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Old Yesterday, 08:49 AM   #2329
Numbers
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There are examples of the ECHR quoting relevant material important to the case and supporting Amanda Knox's claims in the Communication to Italy (original in French). The ECHR's purpose may have been to alert the Italian government to some of the specific evidence it should consider in order to respond to the Communication.

Previously I had posted here English translations, relying on Google Translate, of some of the sections of the Communication, including those in which the ECHR conveyed to the Italian government relevant parts of a letter Knox sent to her lawyer on Nov. 9 and relevant parts of the Hellmann appeal court and Boninsegna court motivation reports.

Here are some translation of some other sections of the Communication, in whole or part, obtained using Google Translate:

Here's a section of the Communication relating to a police phone intercept showing that Amanda Knox was apparently sleep-deprived prior to the Nov. 5/6 interrogations:

3. Autres éléments concernant le déroulement des interrogatoires de la requérante

a) Les écoutes téléphoniques recueillies par le bureau de police de Pérouse le 4 novembre 2007
Il ressort du procès-verbal y relatif que la requérante indiqua à son interlocuteur avoir été mise sous forte pression et stress par les autorités. Elle releva être en manque de sommeil pour avoir dormi uniquement deux heures la nuit d’avant. M. R.S., qui intervint aussi dans la conversation téléphonique, indiqua que la police était en train de « presser le cerveau » de la requérante (littéralement « de prendre son cerveau à coups de pieds »).

3. Other elements concerning the conduct of the applicant's interrogations

a) The wiretaps collected by the Perugia police office on 4 November 2007
It appears from the minutes relating thereto that the applicant indicated to her interlocutor that she had been put under heavy pressure and stress by the authorities. She reported being sleep deprived because of sleeping only two hours the night before. Mr. R.S., who also intervened in the telephone conversation, indicated that the police were "pressing the brains" of the applicant (literally "kicking her brains").

There is also a long section devoted to the testimony of the interpreter, Anna Donino:

b) Le procès-verbal de l’audience du 13 mars 2009, concernant en particulier le témoignage de Mme A.D.
....
Il ressort également de ce témoignage que, à un certain moment de l’interrogatoire, Mme A.D., dans le but d’établir un rapport humain et de confiance avec la requérante, lui aurait raconté des anecdotes de sa vie privée, comme par exemple le fait d’avoir deux filles d’environ le même âge que la requérante, ainsi qu’un épisode traumatisant qu’elle avait vécu (une fracture des jambes) en raison duquel elle avait perdu la mémoire concernant les faits qui s’étaient produits.

Lors de son témoignage, Mme A.D. affirma également jouer un rôle de « médiatrice » en ce sens que son travail ne consistait pas uniquement en la traduction des déclarations mais aussi en le fait de tisser un rapport humain avec son interlocuteur afin « de percevoir les besoins de la personne concernée et de les traduire ».
....

b) The minutes of the hearing of March 13, 2009, concerning in particular the testimony of Mrs. A.D.
....
It is also apparent from this testimony that at some point during the examination, Ms. AD, in order to establish a human and trustful relationship with the complainant, told her anecdotes about her private life, such as having two daughters of about the same age as the applicant, as well as a traumatic episode she had experienced (a leg fracture) as a result of which she had lost her memory of the events that had occurred.

In her testimony, Ms. AD also claimed to play a role of "mediator" in the sense that her work was not only in the translation of statements but also in weaving a human relationship with her interlocutor in order to "perceive the needs the person concerned and to translate them".
....
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Old Yesterday, 12:36 PM   #2330
Stacyhs
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Thanks for clarifying that, Numbers. It will be interesting to see how this all plays out.
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Old Yesterday, 09:23 PM   #2331
Numbers
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The question may be posed as to what happens if, in Knox v. Italy, the ECHR finds a violation of the right to a fair trial (Article 6.1, perhaps with elements of Article 6.3), Knox requests a retrial, and the retrial again unfairly convicts her.

Here are two related ECHR cases illustrating the ECHR case-law for this situation:

In the first case, the ECHR found a violation of Article 6.1 with 6.3c (unfair trial with no lawyer during interrogation) in a trial and stated that a retrial in which the Convention was to be observed is an appropriate remedy.

In the second case, the ECHR found in the retrial a violation of Article 6.1 (unfair trial because of the domestic court's reasoning and procedure). To redress this violation of the Convention that had occurred in the retrial, the ECHR stated again that a new retrial in which the Convention was to be observed would be an appropriate remedy.

The two cases are, respectively:

Shabelnik v. Ukraine 16404/03 9/02/2009

Shabelnik v. Ukraine No. 2 15685/11 01/06/2017

Last edited by Numbers; Yesterday at 09:27 PM.
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Old Today, 06:51 AM   #2332
Numbers
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Here is the relevant part of the ECHR's legal summary, in English, of a recent (11/12/2018) ECHR case that illustrates how the ECHR uses its current, expanded case-law for a case where one of the main complaints of the applicant is a violation of Article 6.1 with Article 6.3c. That is also one of the main complaints in the ECHR case Knox v. Italy, for which the judgment has been announced by the ECHR for 24/01/2019.

Rodionov v. Russia 9106/09 11/12/2018 (excerpt from the legal summary in English; the published judgment is available only in French; comments in {} are my comments)

"Law

Article 6 §§ 1 and 3 (c)

(i) Starting-point for the application of Article 6 – The applicant’s apprehension by FSKN {police} officials on 15 August 2006 at 8.10 p.m. had been based on suspicions that he had committed the criminal offence of drug trafficking as part of an organised gang. The FSKN officials had immediately taken operational measures {a parallel to the police taking Knox's cell phone} with the involvement of the applicant. Hence, at the time of his apprehension {prior to the formal arrest}, the applicant had already faced a “criminal charge” and could claim the protection of Article 6 of the Convention. From that point in time, the right to legal assistance and the right to be notified of that right, as well as the right to remain silent and the privilege against self-incrimination, guaranteed by Article 6 §§ 1 and 3 of the Convention, had become immediately enforceable.

(ii) Whether the applicant was informed of his right to a lawyer, his right to remain silent and his right not to be compelled to incriminate himself, and whether he waived those rights – While the pre-printed part of the record drawn up on 15 August at 9.50 p.m. following the inspection of the applicant’s vehicle had enumerated the rights of which he had allegedly been notified, it did not mention the right to legal assistance. Nor was there anything to demonstrate that the applicant had been informed of that right verbally by the FSKN officials. Hence, when he was apprehended, the applicant had not been informed beyond doubt of his right to a lawyer for the purposes of Article 6 § 3 (c). Accordingly, even though the applicant had not expressly requested the assistance of a lawyer at the time of his apprehension, he could not be said to have implicitly waived his right to legal assistance, as he had not been informed promptly of that right.

The pre-printed part of the record in question stated that the “suspect” had been notified of his right not to be compelled to incriminate himself. However, that reference had not been sufficient to enable the applicant to foresee in a “knowing and intelligent” manner the consequences of his conduct should he choose not to remain silent. Furthermore, there was nothing to show that he had been given an individualised explanation of his situation or his procedural rights.

It was not until 16 August 2006, at 14.45 p.m., when the record of the applicant’s arrest was drawn up, that he had been officially notified of his arrest and of the suspicions against him, and of all his procedural rights as a person suspected of committing an offence. Therefore, for a period of 18 hours and 55 minutes after being apprehended on 15 August 2006 at 8.10 p.m., the applicant had not been duly informed of his right to legal assistance, his right to remain silent and his right not to be compelled to incriminate himself. Consequently, he could not reasonably be said to have waived those rights on a valid basis. The applicant’s right to legal assistance had therefore been restricted.

The present case illustrated a practice on the part of the Russian authorities, observed by the Court in several cases, of delaying conferring the formal status of suspect on persons who had been apprehended, thereby depriving them of the effective exercise of their rights.

(iii) Whether there were “compelling reasons” for restricting access to a lawyer – As the Government had not cited any exceptional circumstances, there had been no “compelling reason” such as to justify restricting the applicant’s access to a lawyer following his apprehension. Furthermore, the domestic legislation, as interpreted by the Constitutional Court, concerning access to a lawyer for persons who had been apprehended and were de facto under arrest, did not explicitly provide for any exceptions to the applicability of that right.

(iv) Whether the proceedings taken as a whole were fair – The Government’s arguments focused on the fact that the applicant had had legal representation as of 16 August 2006 at 3 p.m., but did not demonstrate to what extent the absence of a lawyer for the first 18 hours and 55 minutes following his apprehension had influenced the fairness of the proceedings taken as a whole. This finding sufficed for the Court to conclude that the Government had not rebutted the presumption that the criminal proceedings against the applicant had been unfair. However, it considered it necessary to make some additional observations in that regard.

Between 15 August 2006 at 8.10 p.m. and 16 August 2006 at 2.45 p.m., the prosecuting authorities had gathered certain items of evidence which were subsequently used as evidence for the prosecution in the criminal proceedings against the applicant. The applicant’s statements, made immediately after his apprehension, had been obtained following questions put to him by the FSKN officials, who suspected him of involvement in drug trafficking. Hence, those questions amounted to the questioning of the applicant without prior notification of his procedural rights.

The national courts had not examined on the merits the applicant’s request for the evidence obtained immediately after his apprehension, when he did not have legal assistance, to be excluded. Consequently, they had not examined the admissibility of the evidence containing the self-incriminating statements obtained from the applicant while his right to legal assistance was restricted. The courts had not sought to determine whether the applicant had waived his defence rights on a valid basis.

Furthermore, the applicant’s conviction in connection with the events of 15 August 2006, characterised by the domestic courts as the preparation for sale of very large quantities of drugs, had been based to a large extent on the record of the inspection of the applicant’s vehicle, which contained self-incriminating statements obtained from the applicant in breach of his procedural rights.

In view of the foregoing considerations and the cumulative effect of the procedural shortcomings in the applicant’s trial, the failure to notify the applicant of his right to a lawyer, his right to remain silent and his right not to be compelled to incriminate himself, coupled with the restriction of his access to legal assistance between 15 August 2006 at 8.10 p.m. and 16 August 2006 at 2.45 p.m., had irretrievably prejudiced the overall fairness of the proceedings.

Conclusion: violation (unanimously)."


Source: https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22002-12250%22]}

Last edited by Numbers; Today at 06:54 AM.
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Old Today, 12:03 PM   #2333
Stacyhs
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That example is a good comparison to Knox's situation. Thanks.
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Old Today, 12:03 PM   #2334
Numbers
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The following article may be of interest to those who want to understand why PIP and especially PGP maintain their differing views of the Knox-Sollecito case.

https://www.nytimes.com/2019/01/19/o...gtype=Homepage
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Old Today, 01:51 PM   #2335
Stacyhs
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Originally Posted by Numbers View Post
The following article may be of interest to those who want to understand why PIP and especially PGP maintain their differing views of the Knox-Sollecito case.

https://www.nytimes.com/2019/01/19/o...gtype=Homepage
I found this from your article most interesting:

Quote:
...political scientists Brendan Nyhan and Jason Reifler, who found that appending corrections to misleading claims in news articles can sometimes backfire: Not only did corrections fail to reduce misperceptions, but they also sometimes increased them. It seemed as if people who were ideologically inclined to believe a given falsehood worked so hard to come up with reasons that the correction was wrong that they came to believe the falsehood even more strongly.
It reminds me of a PGP posting a false claim that the theft of the credit cards and money charge against Knox was dropped rather than adjudicated. When presented with the 'correction' (the actual court records acquitting Knox of the charges), the PGP doubled down that the charge had, indeed, been dropped.
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