Continuation Part Eight: Discussion of the Amanda Knox/Raffaele Sollecito case

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Strozzi

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Strozzi
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Once again, the thread has become quite lengthy, so here is another new continuation thread. This continues from Part Seven. For further reference, see also Part Six, Part Five, Part Four, Part Three, Part Two, and Part One.
Posted By: LashL


Vibio said:
Knox's defense filed a claim about police brutality? Really? If you could post a link I'd love to read it. Thanks in advance.
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Vibio, Knox's defense stated it to a judge. That is a complaint made directly to a judge.

By the way, Knox also stated in writing to Prosecutor Mignini that she was hit. I believe that at that point Prosecutor Mignini had a legal obligation to investigate the matter. I also believe that pending the outcome of an investigation, Prosecutor Mignini under whose authority Knox at that moment was being held in detention had an obligation to be certain that the accused police officer, the officer's immediate squad colleagues, and supervisor (Napoleoni) should have been compartmented away from Knox and not have physical access to her. (That would be the proper way to protect a prisoner who has just reported having been assaulted by a police officer.)

Do you believe Mignini was acting independently? Or was he acting in collaboration or collusion with the police interrogators including the one who hit Knox? And speaking of Knox's defense, she did not have an attorney then. She was in detention when she wrote it, did not have an attorney, and in fact was being denied an attorney.
 
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Vibio said:
Knox's defense filed a claim about police brutality? Really? If you could post a link I'd love to read it. Thanks in advance.
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Is there some requirement that they file such a "claim"? The argument was raised in the Calunnia case, and Hellmann, who is the last word there, did not investigate or rule on the hitting issue. He did say that the police put her into an extreme psychological condition. I think he knew that that issue would get to the ecthr.
 
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christianahannah said:
Whether the recent snippet of audio of Amanda's December 17, 2007 interrogation had been played in Italian media I can't say, but other parts of the interrogation were heard on Italian media. Who gave these audio bits to the media I don't know, however, it was several years ago.

I think there may even have been a mention and a link to the interrogation on this forum but I may be misremembering.
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Thanks. It is such a tendency on this case to be given a factoid and then building an entire theory around it. I too thought I had at least read about the contents of this interview.

And although Anglo's text work is to be saluted, if for nothing else than the tenacity, the contents of that little audio really wasn't of much value.
 
Poppy1016 said:
Mach also said that defendants often lie in court , and are somewhat expected to do so. And it is not against the law.
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Yes he did and if that's really true it would give another reason not to testify.
 
Vibio said:
Knox's defense filed a claim about police brutality? Really? If you could post a link I'd love to read it. Thanks in advance.
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For the record, I think her claims of police brutality are pretty credible.
 
lack of accountability in police operations

Strozzi said:
Vibio, Knox's defense stated it to a judge. That is a complaint made directly to a judge.
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Strozzi,

I agree. "There was no independent police complaints and accountability body. Policing operations were not in line with the European Code of Police Ethics, for example in the requirement for officers to display prominently some form of identification, such as a service number, to ensure they could be held accountable." Amnesty International Report on Italy 2007. (highlighing mine)

The Federico Aldrovandi case is one of several incidents that suggest that a certain amount of soul searching and reform is in order. "The first report from the coroner maintained that the boy died because of heart disease caused by the struggle; it was later proved to be a fake."
 
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Bill Williams said:
Yet they can be prosecuted for calunnia. So Machiavelli punts another one.
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I was under the impression that calunnia is the false accusation of someone of a crime. So a defendant can lie about many a thing but can't accuse someone.
 
Italy should follow the Australian model

Charlie Wilkes said:
It's unfortunate that Italians are being singled out this way, because the same thing happens all over the world. I could cite countless examples.
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Charlie Wilkes,

My position is roughly halfway between yours and Mary_H's. On the one hand there are terrible miscarriages of justice all over the world, and some of the them involve the misuse of forensics, willfully, fecklessly, or through simple ignorance. On the other hand some countries have shown a willingness to engage in some self-reflection. I would single out Australia in its handling of DNA contamination in the Jaidyn Leskie and Farah Jama cases for special note. Italy should do what Australia did in the latter instance, which is to appoint a commission headed by a prominent jurist (Frank Vincent) to figure out what went wrong.
 
Diocletus, I do not think you are crazy. A little bit nuts maybe, but not crazy :D

The treaty just says: file these simple docs and we hand her right over, no worries. If I were Italy it would mean war on finding how perfidiously the US interprets it's treaty obligations. War with Albania maybe, or San Marino.
 
Grinder said:
I was under the impression that calunnia is the false accusation of someone of a crime. So a defendant can lie about many a thing but can't accuse someone.
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I wish there was a bona fide Italian lawyer here. It sounds like the claim is that you're allowed to lie as a defendant, unless you actually lie.

Remember Machiavelli saying that Rudy could not be charged with theft, because it was impossible to steal from a dead person?
 
RoseMontague said:
A good way to put it. Several of the pro-guilt posters are attempting just that while avoiding actual discussion of the evidence in the case. I have gotten to the point that I fell the same way. I am just not interested in wasting my time with it any longer.
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It's whack a mole, isn't it!

Someone asserts a claim, four or five posters descent on the claim refuting it with a timelime, logic, or counter-evidence, and the poster ignores that and moves on to the next claim.

Once the JREF Continuing flips to "Continuation 23", the long since forgotten assertion is repeated as if it had not been completely debunked back on "Continuation 3". It's tiresome.
 
anglolawyer said:
Diocletus, I do not think you are crazy. A little bit nuts maybe, but not crazy :D

The treaty just says: file these simple docs and we hand her right over, no worries. If I were Italy it would mean war on finding how perfidiously the US interprets it's treaty obligations. War with Albania maybe, or San Marino.
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But we didn't hand over the cable car people (correct me if I am wrong.) Is that because they were military?
 
Bill Williams said:
I wish there was a bona fide Italian lawyer here. It sounds like the claim is that you're allowed to lie as a defendant, unless you actually lie.
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Bill this isn't very difficult to understand. A defendant can't be charged with perjury but they can be charged with defamation or false reporting of a crime by another. You can say "I didn't do it" but you can't say "Bill did it". You can say "I was at home when the crime took place" but you can't say "Bill was at the scene when the crime took place".

Calunnia (Italian pronunciation: [kaˈlunnja]), meaning "calumny", is a criminal offence under Article 368 of the Italian Penal Code (Codice Penale), which states:

Anyone who with a denunciation, complaint, demand or request, even anonymously or under a false name, directs a judicial authority or other authority that has an obligation to report, to blame someone for a crime who he knows is innocent, that is he fabricates evidence against someone, shall be punished with imprisonment from two to six years. The penalty shall be increased if the accused blames someone of a crime for which the law prescribes a penalty of imprisonment exceeding a maximum of ten years, or another more serious penalty. The imprisonment shall be from four to twelve years if the act results in a prison sentence exceeding five years, from six to twenty years if the act results in a life sentence.[1][2]

The mens rea of calunnia requires awareness and a willingness to blame someone of a crime that the accused knows is innocent.[3]

Calunnia should be distinguished from criminal slander (ingiuria) and criminal libel (diffamazione) which relate to offences against personal honour in the Italian Penal Code
​
 
Ampulla of Vater said:
But we didn't hand over the cable car people (correct me if I am wrong.) Is that because they were military?
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Apparently as it turns out ministers in the Italian system blocked the extradition requests after the US objected. They were tried in absentia and clearly it was a complicated black op anti terrorist case.
 
anglolawyer said:
Diocletus, I do not think you are crazy. A little bit nuts maybe, but not crazy :D

The treaty just says: file these simple docs and we hand her right over, no worries. If I were Italy it would mean war on finding how perfidiously the US interprets it's treaty obligations. War with Albania maybe, or San Marino.
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Well, gee. Just going from recollection here, but doesn't the Treaty say that the Secretary of State gets final say on extradition requests? And as far as I recall, the treaty imposes no restrictions on the Secretary's discretion in this regard. So, it wouldn't be a violation of the Treaty, would it, if the Secretary of State declined extradition for any reason or no reason?

And, if the answer to that is that the "spirit" of the Treaty is that there will be extradition if the procedure is followed, then I say that the "spirit" of the Treaty is that Italy will follow fundamentally fair procedures (i.e., its own laws, ECHR, international norms, etc.). The prior material violations of the "spirit" of the Treaty, therefore, are by Italy. Italy has unclean hands here.
 
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Mary_H said:
From what one American lawyer has written, it does not sound like evidence is a strong factor:

....."probable cause" established from hearsay is the standard test for extradition. Judges cannot look at "evidence," incriminating or exculpatory to decide to extradite. Mainly, their decisions come from affidavits. One can file a writ of habeas corpus, but it generally does not result in an extradition denial.

"What might amaze you is that 4th, 5th, 6th and 8th amendments guarantees become all but silent during extradition hearings. Extradition becomes more of a political issue than a question as to guilt/innocence, and her salvation is in the secretary of state's hands.

"In my opinion, all extradition treaties are somewhat unconstitutional but they have never been challenged. Read "Reid v. Covert, 354 U.S. 1" and compare it to 18 U.S.C. § 3184, 3185, 3186, which is how the U.S. handles extradition. You can also read "Extradition To and From the United States: Overview of the Law and Recent Treaties Congressional Research Service 22."

".....In my opinion, Amanda Knox has standing to challenge the extradition treaty with Italy and federal law in the extraditing process/hearings on constitutional grounds. The standing and challenge lies in the words of Justice Black see: Reid v. Covert, 354 U.S. 1."
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This is excellent, Mary. Even if Anglo does think that this guy is a little nuts.

BTW, do you have a source for this? I would like to read more of what this Constitutional law genius has to say.

PS: What does "somewhat unconstitutional" mean? Is that like being somewhat pregnant?
 
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Grinder said:
Apparently as it turns out ministers in the Italian system blocked the extradition requests after the US objected. They were tried in absentia and clearly it was a complicated black op anti terrorist case.
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The pilot who recklessly hit/sliced the cable car cable was a US military pilot. There is an agreement in place with Italy that US military personnel in Italy are not subject to Italian law but are subject to US military law and discipline. It is a form of immunity that is part of what is called a "status of forces" agreement. By the way, Italy has Italian military on assignment in the US and I am sure they have similar immunity from US law (the status of forces agreement would be reciprocal). I recently met an Italian Air Force pilot who is in the US on a 2 or 3 year assignment.

A number of foreign militaries have military facilities in the US. In most cases it is a building or two so I doubt it is officially referred to as a military base. These facilities, presumable treated as non-US territory, are owned/leased by the foreign military directly or via their embassy. I happen to know that several European countries have such facilities (bases?) near Dulles Airport in northern Virginia, just outside Washington DC. The facilities may be as simple as a warehouse where spare parts are received from US manufacturers and shipped home.

European countries also use US military training facilities, such as bombing training ranges in Nevada, for training their own aircrews on aircraft made in the US belonging to the European country's air force. So hypothetically, a foreign air force pilot could do something stupid, accidentally kill American citizens, and be immune from prosecution by a US authority - but of course subject to his own military laws and rules. And be punished by his own military.

The US has many more military personnel serving overseas than foreign countries have serving in the US, so there are statistically going to be more accidents/incidents involving US military personnel overseas than there are going to be committed by foreign military personnel serving in the US.
 
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This well-known Italian-American has something to say about this Constitutional issue:

Two years ago, during the oral argument of Golan v. Holder, Justice Scalia told his fellow Justices, “I don’t think that powers that Congress does not have under the Constitution can be acquired by simply obtaining the agreement of the Senate, the President and Zimbabwe.”
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Diocletus said:
Well, gee. Just going from recollection here, but doesn't the Treaty say that the Secretary of State gets final say on extradition requests? And as far as I recall, the treaty imposes no restrictions on the Secretary's discretion in this regard. So, it wouldn't be a violation of the Treaty, would it, if the Secretary of State declined extradition for any reason or no reason?

And, if the answer to that is that the "spirit" of the Treaty is that there will be extradition if the procedure is followed, then I say that the "spirit" of the Treaty is that Italy will follow fundamentally fair procedures (i.e., its own laws, ECHR, international norms, etc.). The prior material violations of the "spirit" of the Treaty, therefore, are by Italy. Italy has unclean hands here.
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I thought it did say that the US would extradite but it doesn't say when. When Hell freezes over would be a good time. I will take another look (sometime).
 
Diocletus said:
This is excellent, Mary. Even if Anglo does think that this guy is a little nuts.

BTW, do you have a source for this? I would like to read more of what this Constitutional law genius has to say.

PS: What does "somewhat unconstitutional" mean? Is that like being somewhat pregnant?
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For the 11th time, it's different when the extraditee has been convicted by the requesting country. Hear me? Different!
 
Grinder said:
Bill this isn't very difficult to understand. A defendant can't be charged with perjury but they can be charged with defamation or false reporting of a crime by another. You can say "I didn't do it" but you can't say "Bill did it". You can say "I was at home when the crime took place" but you can't say "Bill was at the scene when the crime took place".

Calunnia (Italian pronunciation: [kaˈlunnja]), meaning "calumny", is a criminal offence under Article 368 of the Italian Penal Code (Codice Penale), which states:

Anyone who with a denunciation, complaint, demand or request, even anonymously or under a false name, directs a judicial authority or other authority that has an obligation to report, to blame someone for a crime who he knows is innocent, that is he fabricates evidence against someone, shall be punished with imprisonment from two to six years. The penalty shall be increased if the accused blames someone of a crime for which the law prescribes a penalty of imprisonment exceeding a maximum of ten years, or another more serious penalty. The imprisonment shall be from four to twelve years if the act results in a prison sentence exceeding five years, from six to twenty years if the act results in a life sentence.[1][2]

The mens rea of calunnia requires awareness and a willingness to blame someone of a crime that the accused knows is innocent.[3]

Calunnia should be distinguished from criminal slander (ingiuria) and criminal libel (diffamazione) which relate to offences against personal honour in the Italian Penal Code
​
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So why was Rudy not so charged? Is there some hidden passage in that law that makes it okay when you are doing it to help the prosecutor?
 
Grinder said:
Bill this isn't very difficult to understand. A defendant can't be charged with perjury but they can be charged with defamation or false reporting of a crime by another. You can say "I didn't do it" but you can't say "Bill did it". You can say "I was at home when the crime took place" but you can't say "Bill was at the scene when the crime took place".

Calunnia (Italian pronunciation: [kaˈlunnja]), meaning "calumny", is a criminal offence under Article 368 of the Italian Penal Code (Codice Penale), which states:

Anyone who with a denunciation, complaint, demand or request, even anonymously or under a false name, directs a judicial authority or other authority that has an obligation to report, to blame someone for a crime who he knows is innocent, that is he fabricates evidence against someone, shall be punished with imprisonment from two to six years. The penalty shall be increased if the accused blames someone of a crime for which the law prescribes a penalty of imprisonment exceeding a maximum of ten years, or another more serious penalty. The imprisonment shall be from four to twelve years if the act results in a prison sentence exceeding five years, from six to twenty years if the act results in a life sentence.[1][2]

The mens rea of calunnia requires awareness and a willingness to blame someone of a crime that the accused knows is innocent.[3]

Calunnia should be distinguished from criminal slander (ingiuria) and criminal libel (diffamazione) which relate to offences against personal honour in the Italian Penal Code
​
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Wait. She only knows that PL is innocent if she has knowledge of the crime. She's definitely guilty of calunnia if she's guilty of murder, but she can't be guilty of it if she's innocent herself . . . so WHY did Hellmann uphold this conviction?
 
anglolawyer said:
For the 11th time, it's different when the extraditee has been convicted by the requesting country. Hear me? Different!
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The only thing different is that some guy in some foreign land has wrongly said: "we pronounce you guilty."

Do you think that Thomas Jefferson intended the Federal government to have to power snatch a citizen out of his house and ship him off to, say, England just because King George sez the guy is guilty? I'll bet he never even contemplated that that could happen.

Geesh. The French wouldn't even extradite Ira Einhorn, notwithstanding their extradition treaty, because their constitution forbids in abstentia trials. So why should the US be extraditing innocent, human rights victims at the request of a bunch of perverts in Italy?

ETA: I'm not suggesting that King George was a pervert.
 
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Diocletus said:
The only thing different is that some guy in some foreign land has said: "we pronounce you guilty."

Do you think that Thomas Jefferson intended the Federal government to have to power snatch a citizen out of his house and ship him off to, say, England just because King George sez the guy is guilty? I'll bet he never even contemplated that that could happen.
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Remind me who this Jefferson dude is again ...
 
Grinder said:
Bill this isn't very difficult to understand. A defendant can't be charged with perjury but they can be charged with defamation or false reporting of a crime by another. You can say "I didn't do it" but you can't say "Bill did it". You can say "I was at home when the crime took place" but you can't say "Bill was at the scene when the crime took place".


[/INDENT][/I]
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Not sure how calunnia got into this.... but whatever. Knox was asked what pressure she was under. She said she was hit. So she cannot be charged with calunnia because, apparently, hitting someone at interrogation is not a crime.

This mini-thread needs to go back to how it started... Machiavelli claimed that defendants were allowed to lie, and a sign of this is that they are not "sworn" as others are who give testimony.

Yet when Knox gives unsworn testimony that she was hit, she's charged with a crime.

I am not sure what the issue is here, except that I requested a bona fide Italian lawyer to explain this. One can lie (acc. to Machiavelli) until they actually do lie.

So I get "perjury" vs. "defamation" vs. "calunnia".... what I don't get is which "lie" is a protected lie and which one is not. What's the point in Italian court procedure not to swear-in a witness because they are expected to lie, and then charge them with someone if they do it? Is it in the way they hold their mouth?
 
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kwill said:
Wait. She only knows that PL is innocent if she has knowledge of the crime. She's definitely guilty of calunnia if she's guilty of murder, but she can't be guilty of it if she's innocent herself . . . so WHY did Hellmann uphold this conviction?
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Well, read his verdict. He sets it all out, before slapping her with a three year prison sentence. He caused her great harm with that. The guilters ask the same question you do: if she is guilty of calunnia she must have been involved in the murder. They use the calunnia conviction to leverage the murder conviction.
 
anglolawyer said:
Remind me who this Jefferson dude is again ...
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Seriously, if you are American, chances are that he is going to be very important to you.
I think it is pretty clear that the American constitution is suppose to shield you against foreign powers even those who we have treaties with.
 
Bill Williams said:
It's whack a mole, isn't it!

Someone asserts a claim, four or five posters descent on the claim refuting it with a timelime, logic, or counter-evidence, and the poster ignores that and moves on to the next claim.

Once the JREF Continuing flips to "Continuation 23", the long since forgotten assertion is repeated as if it had not been completely debunked back on "Continuation 3". It's tiresome.
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Then why ask?

Why post?

Seems like Harry Rag has been axed from CNN.

:p
 
Desert Fox said:
Seriously, if you are American, chances are that he is going to be very important to you.
I think it is pretty clear that the American constitution is suppose to shield you against foreign powers even those who we have treaties with.
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But what about the comity of nations? You have to remember why these treaties exist in the first place. Countries have an interest in bringing home their miscreants, otherwise it's too easy to get away with crime and society will collapse eventually. If you want to bring back the guys over there they want the ones from over your way. So there is a conflict. It's no use Diocletus saying 'no-brainer' because there are knock-on effects to the US screwing around with its treaty obligations.
 
anglolawyer said:
But what about the comity of nations? You have to remember why these treaties exist in the first place. Countries have an interest in bringing home their miscreants, otherwise it's too easy to get away with crime and society will collapse eventually. If you want to bring back the guys over there they want the ones from over your way. So there is a conflict. It's no use Diocletus saying 'no-brainer' because there are knock-on effects to the US screwing around with its treaty obligations.
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Well, the Senate should have thought about that before they purported to enter into a contract jeopardizing citizen rights that the Senate is not allowed to screw around with. I mean, could I enter into a contract to sell my neighbor's house?

Anyway, I don't buy this argument that a refusal to extradite is an automatic violation of a definitive treaty obligation.
 
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anglolawyer said:
But what about the comity of nations? You have to remember why these treaties exist in the first place. Countries have an interest in bringing home their miscreants, otherwise it's too easy to get away with crime and society will collapse eventually. If you want to bring back the guys over there they want the ones from over your way. So there is a conflict. It's no use Diocletus saying 'no-brainer' because there are knock-on effects to the US screwing around with its treaty obligations.
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I am sure the Italian judiciary will go through the motions of requesting extradition knowing full well their government of the day won’t make too much fuss when America refuses, as for Raffaele he’ll go quietly off to prison, unless he goes on the run.
 
anglolawyer said:
But what about the comity of nations? You have to remember why these treaties exist in the first place. Countries have an interest in bringing home their miscreants, otherwise it's too easy to get away with crime and society will collapse eventually. If you want to bring back the guys over there they want the ones from over your way. So there is a conflict. It's no use Diocletus saying 'no-brainer' because there are knock-on effects to the US screwing around with its treaty obligations.
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Need to understand how US law works.
The constitution always overrides laws from congress.
It is the supreme law of the land.
Does not matter if they are with an outside party.

With all the weaknesses inside the US, the thing that many of us Americans like is that we do have a bill of rights which just cannot dismissed. Changes to the constitution are a difficult process.
You don't have a written constitution in the U.K. if I understand which in part puts you at the whim of the present house of parliament.

Now, I have kind of revised my thinking. The best tactic here is probably for the US state department to put pressure on the Italian government just simply not to request extradition. This way, it never gets to the state where there is an issue.
 
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CoulsdonUK said:
I am sure the Italian judiciary will go through the motions of requesting extradition knowing full well their government of the day won’t make too much fuss when America refuses, as for Raffaele he’ll go quietly off to prison, unless he goes on the run.
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Would blame him if he did.

Canada might be a good place. . . .He has a much better case than Laurie Bembenek and Canada was incredibly reluctant to return her.
 
CoulsdonUK said:
I am sure the Italian judiciary will go through the motions of requesting extradition knowing full well their government of the day won’t make too much fuss when America refuses, as for Raffaele he’ll go quietly off to prison, unless he goes on the run.
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Is it the "Italian judiciary" who requests extradition?
 
Diocletus said:
Well, the Senate should have thought about that before they purported to enter into a contract jeopardizing citizen rights that the Senate is not allowed to screw around with. I mean, could I enter into a contract to sell my neighbor's house?

Anyway, I don't buy this argument that a refusal to extradite is an automatic violation of a definitive treaty obligation.
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See if you can find anything within the text of the treaty itself that would not oblige the US to extradite in this case.
CoulsdonUK said:
I am sure the Italian judiciary will go through the motions of requesting extradition knowing full well their government of the day won’t make too much fuss when America refuses, as for Raffaele he’ll go quietly off to prison, unless he goes on the run.
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Coulsdon - you are making predictions. Take care. Your reputation for waiting and seeing is on the line.
Desert Fox said:
Need to understand how US law works.
The constitution always overrides laws from congress.
It is the supreme law of the land.
Does not matter if they are with an outside party.

With all the weaknesses inside the US, the thing that many of us Americans like is that we do have a bill of rights which just cannot dismissed. Changes to the constitution are a difficult process.
You don't have a written constitution in the U.K. if I understand which in part puts you at the whim of the present house of parliament.

Now, I have kind of revised my thinking. The best tactic here is probably for the US state department to put pressure on the Italian government just simply not to request extradition. This way, it never gets to the state where there is an issue.
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We were discussing how US law works only recently here and it seemed that the main line of authority was in favour of giving full effect to treaties. It's only recently something called 'the 9th circuit' has been doubting this approach. I have every hope that the extreme complexity, possibly the novelty also, of the problem will afford her some armament but I have not seen anything to support the 'constituional paramountcy' argument yet. Not decisively.
 
anglolawyer said:
We were discussing how US law works only recently here and it seemed that the main line of authority was in favour of giving full effect to treaties. It's only recently something called 'the 9th circuit' has been doubting this approach. I have every hope that the extreme complexity, possibly the novelty also, of the problem will afford her some armament but I have not seen anything to support the 'constituional paramountcy' argument yet. Not decisively.
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Well, it appears that the Supreme Court might be getting ready to give the Federalis a beat down on this issue: http://www.scotusblog.com/2013/11/l...ticism-in-treaty-power-case-in-plain-english/
 
kwill said:
Wait. She only knows that PL is innocent if she has knowledge of the crime. She's definitely guilty of calunnia if she's guilty of murder, but she can't be guilty of it if she's innocent herself . . . so WHY did Hellmann uphold this conviction?
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Yes we've been over that a thousand times. You should engage Bill on this as he maintained after Hellmann that he agreed with ALL of Hellmann's verdicts. No matter how many argued that Hellmann was wrong, he carried on until he read an interview with Mignini on CNN.

Anglo has something on aggravated calunnia versus just plain old calunnia.

As for the pilots I was talking about the CIA agents, which is a different case.

I would suggest that the right wing opposition to treaties that there would be a better chance of changing the treaty with Italy than banning all treaties.
 
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