On January 30, 2014, Amanda Knox and Raffaele Sollecito were convicted again of all charges.
The panel of judges comprised:
1. Dr. Alessandro Nencini, Presiding Judge and Extensor
2. Dr. Luciana Cicerchia, Judge of the Court of Appeal
3. Mrs. Elena Perrucci, Lay Judge
4. Mrs. Lucia Bargelli, Lay Judge
5. Mrs. Veronica Alessi, Lay Judge
6. Mrs. Marisa Lippi, Lay Judge
7. Mrs. Genny Ballerini, Lay Judge
8. Mr. Giovanni Cocco, Lay Judge
On April 29, 2014, Judge Alessandro Nencini released his motivation report explaining the decision.
Written by Luca Cheli
I am personally a firm supporter of Knox and Sollecito’s innocence, it should be known by now, but however I state it here again for all the readers who may be new to the case. I am also Italian-born and have always lived in Italy except for short periods abroad, so when I write something about Italian customs or tendencies I speak from experience, of course my subjective experience, but anyway not out of books.
I also add as a disclaimer that when I attribute words, thoughts and intentions to “Nencini” I mean with that word the motivation report as if it could be personified in an individual named “Nencini” and not strictly to the Italian Judge Alessandro Nencini, since a motivation report is usually written by the two professional judges but it can also reflect the reasoning of the six lay judges, hence it is impossible to know who really authored a given part of the ruling.
The same goes for the “Judge” I sometimes directly address.
Finally I want to warn the reader that all the quoted excerpts of the motivation report have been translated by me and hence could slightly differ from translations by other authors.
We can now begin our review of the Nencini Report, following chapter by chapter the structure of the “Reasons for the decision” part of the ruling (page 32 to 337).
1 – Foreword
The ruling begins with a foreword dealing with the scope of the trial (page 73 of the Cassation ruling quashing the acquittal is almost integrally quoted) and with what relevance the definitive judgment concerning Rudi Guede may or may not have in the trial concerning Knox and Sollecito.
Nencini considers “generic and abstract” Hellmann’s assessment that Guede’s ruling, having been “held under the fast-track system, so that the judges who considered the position of Rudi Guede were not able to conduct the investigations of a [ordinary proceeding] trial — in particular the independent expert review that we performed– either at the first level or at the present level, despite the complexity of the case, at least with regard to the current defendants” (Hellmann page 27) and instead states he sticks with the opinion of the Court of Cassation as expressed in ruling 7993/2012.
The gist of Nencini’s position is best expressed by the following paragraph (page 36):
In conclusion, if in point of law this Judge expresses adherence to the principle mentioned above, adhering to its precepts, in point of fact the existence of a definitive judgment attributing the murder of Meredith Kercher to a specific culprit, Hermann Rudi Guede, in complicity with other people, makes unquestionable the assumption that any fact finding having to be carried out with reference to the evidentiary compendium emerging from the documents of this proceeding will have to be performed having as an inescapable reference point the aforementioned judicially ascertained fact, and hence facing the datum, definitively established in the proceeding, that Rudi Hermann Guede participated, along with others, in the murder of Meredith Kercher .
The language is convoluted in Italian too, so it is not one hundred per cent straightforward to “decode” it, however my interpretation can be obtained by putting together the parts in bold: they speak for themselves.
2 – The context in which the murder took place. Causes and time of Meredith Kercher’s death
The cottage is summarily described and a map of the upstairs apartment is included. There is also a resume of the events immediately preceding the discovery of the murder. A certain relevance is given to the notorious disagreement between Knox and her roommate Romanelli about Kercher being used to locking or not locking (or closing -, the verb in Italian, unlike in English, is the same; the court documents are in Italian and no witness was questioned about which English verb Knox had used) the door of her room.
There is also brought forward for the first time a point that will return with much more importance later in the report, namely that the testimonies of the witnesses do not account for Sollecito’s whereabouts at the time when the door was knocked down.
It is said twice that the fact that the defendants were not in a location allowing them to look inside the room will be the object of analysis “later”… indeed no further reference to it is to be found in the ruling: perhaps someone realized that Knox’s “suspicious knowledge” of details about the scene of the murder came from Luca Altieri, but forgot to delete those lines.
Then follows a long description of the position in which the corpse was found and of the wounds and bruises it showed, among them “three superficial wounds scarcely soaked with blood and a bruise with an area of 2 cm” on the palm of her right hand (page 46). Afterward there is a summary of all the findings of the Scientific Police on the date November 2, 2007: among them, on page 47, there is a reference to “three plantar traces, with circular concentric signs, left through hematic deposition. They appear to be bare footprints”. If they really were barefoot bloody prints, no further reference to them can be found in the ruling except briefly and inconclusively on page 62.
Nencini then deals with the cause of Kercher’s death, stating that
this Court deems that the girl was stabbed with a knife while she was being immobilized or partially immobilized, and with compression of the mouth, to prevent her from screaming. It is reasonable to believe that at a certain point, during the aggression, the girl was able to set her face free and to utter a scream (about which more will be said later) and [that] such behaviour was probably the motive for the blow to the throat causing the fracture of the hyoid bone with a resulting dyspnea [breathing problem] and the pouring of the blood of the victim herself into her lungs, causing the asphyxia. (page 49)
In itself a statement not necessarily involving multiple attackers. Not yet.
About the time of death Nencini shows a rather cavalier attitude: since
no court finding has shown that Amanda Knox and Raffaele Sollecito were elsewhere with respect to the place where the murder happened, nor together with people who can testify their non-involvement in the events, from about 9:30 pm on November 1, 2007 to about 12:30 am on November 2, 2007”, then “the eventual ascertainment that Meredith Kercher’s murder took place at a certain precise time rather than at another on the night between November 1 and 2, 2007 would have little significance in the complex of the evidentiary assessments this Court has to make. (page 50)
So a precise timeline does not count, because in any case the defendants don’t have an alibi and hence you are free to move them, as well as their actions, around in time like pawns.
Indeed Nencini is shy of giving a precise timeline of anything: as we will see, it is difficult to understand from the ruling when the alleged cleanup and the alleged simulated break-in happened and how long they lasted: this way one does not have to deal too much with conflicting elements.
In any case, after having considered the medical evidence and having agreed with “the coroner” that the examination of the stomach contents was “scarcely reliable” (page 51), Nencini uses the testimonies of Kercher’s British friends to establish that Kercher was surely alive until 9 pm and the phone records to establish that at 00:10 am on November 2 her phones were in the garden of the Lanas’ villa (no reference to the 10:13 pm call or to the phone traces at about 10 pm will be ever made in the ruling), so that the time of death can be safely (indeed) placed between 9 pm on November 1 and 00:10 am on November 2. (page 52 and again on page 57)
Having set a failsafe time of death, Nencini looks at the testimonies of Capezzali, Monacchia, Dramis, Lombardo (the recovery truck driver) and Formica (the young woman whose boyfriend was bumped by a running “dark” man).
The result of this analysis is that the testimonies cannot give a precise timeline, which however does not matter, but that Capezzali and Monacchia (but not Dramis) are reliable and it is established that the scream they heard at a time about 11-11:30 pm was indeed Meredith Kercher’s final scream and this because they confirm each other, they both lived close to the cottage and both heard “in a substantially equivalent context for what concerns the time” a strong scream of a woman coming from the zone where the cottage is. This circumstance is, moreover, “compatible with the time range in which the murder took place”.
And indeed, with a three-hour range for the time of death, Nencini can, unlike Hellmann, neglect a difference or an indetermination of half an hour between his “earwitnesses”.
Finally Nencini has to establish if there was or was not a single attacker, because if multiple attacker could be ruled out, having Rudi Guede already been definitively convicted, the report should stop at this point.
But since we are only at page 58 of 337, it is easy to guess that Nencini does not believe in the single attacker theory.
The first reason is Nencini’s analysis of the victim’s wounds: no serious defensive wounds to her hands, no DNA or tissue under her nails, while a young, athletic woman like Meredith Kercher would have certainly offered a fierce resistance to a single attacker. Indeed the absence of signs of a fight proves that the victim was immobilized by multiple aggressors.
If so, however it is not clear how she could at the same time experience 46 bruises on her body while being immobilized by two young and athletic males.
Moreover it is neglected that
Only the DNA of the victim was found in the samples taken from underneath the fingernails. It was noted, however, that the nails were very short and probably could not have given any significant scratches to the attacker. (Massei, page 190PMF/195ITA)
Nor does Nencini seem to realize that in a “sneak attack to the sentry” scenario a single attacker could have sneaked silently at her back, attacking her by surprise, with the knife immediately going to her neck. There would have been no defensive wounds to her hands simply because the knife would have come from behind, not from the front.
Nencini also reckons that since Guede’s DNA was found on a cuff of the sweater the victim was wearing and also in her vagina, he had both of his hands “occupied”. Nencini admits that it could have happened at different times (and of course: Guede’s DNA was also found on Kercher’s bra and he does not have three hands) but he states that nevertheless Meredith Kercher would have had, albeit temporarily, one hand free to scratch her aggressor. But if she already had a knife at her throat it is doubtful she could have attempted any defensive action, even if left with one hand free. Indeed it could have been the attempt to just move her free arm to provoke the stabbing.
Nencini goes on claiming that the position of Kercher’s main wounds on her neck is incompatible with a single attacker, because the victim should have rotated 180°, but indeed the aggressor could have simply moved the knife around Kercher’s neck or forced her to rotate after the first stab.
However I do not pretend to provide a definitive explanation of the single attacker theory: Ron Hendry has provided a much better one in his book “Single Attacker Theory Of The Murder Of Meredith Kercher” and in multiple articles available at www.injusticeinperugia.org. My point is simply that Nencini’s reasoning cannot be considered, as he instead does, a definitive refutation of the single attacker theory.
All the more so since during the first trial out of seven professional consultants called to express themselves about the possibility that there had been just one or multiple attackers, only one ruled out the single attacker theory on the basis of the available forensic evidence concerning the victim.
But Nencini bolsters his finding in favor of the multiple attackers theory with the bloody prints found at the cottage: Guede’s are shoeprints and go directly out of the apartment while the print on the bathmat is that of a male barefoot and there are also three female sized barefoot prints in Kercher’s room (this is the second and last time those three footprints are quoted).
On the basis of these elements alone Nencini states on page 63 that “according to the Court Meredith Kercher was attacked and killed by multiple individuals”.
Nencini’s arguments seem to me really a bit too little to definitively conclude that there were multiple attackers: Guede could have been barefoot or wearing shoes at different times, even just to wash himself and the above mentioned female sized footprints could even be Kercher’s (and they are not mentioned even in the Boemia and Rinaldi experts’ report).
3. The post delictum (after the murder)
However Nencini has now ruled that multiple attackers have to exist and so he moves forward to examine the “post delictum” (i.e. what happened after the crime) to try and give an identity to Guede’s accomplices.
To that end he examines the alteration of Romanelli’s room (faked break-in), the alteration of the crime scene (the cleanup) and the theft of Kercher’s cell phones.
The faked break-in
Before analyzing this extremely controversial point, let us pause for a moment to celebrate Guede’s admission into the Olympus of thieves and burglars. Indeed, after years spent by many to belittle or deny his skills, this ruling officially promotes him:
Rudi Hermann Guede besides having a specific experience in intruding into others’ homes to commit theft (his precedents, remarked in multiple court documents, speak for themselves), knew perfectly the cottage” (page 73-74) and again “Rudi Hermann Guede, surely expert in breaking and entering to commit theft” (page 74) and again “Rudi Hermann Guede, skilled and shrewd thief”. (page 78).
Our heartfelt congratulations.
Indeed Nencini, to attribute the simulation of the break-in to Knox and Sollecito, reverses all previous stereotypes: the simulation was “gross” and “clumsy”, while an accomplished thief and burglar like Guede would have entered the house through the terrace or even directly through the main door (and with ease, by the way).
Not just that, but “it is difficult to imagine Rudi Hermann Guede who, once having broken into the apartment and having to reckon with the possibility that the tenants could come back at any moment, stops his search for objects to steal and goes to the bathroom” : Nencini has such a high concept of Guede as The Professional Thief that he cannot imagine him interrupting his job for whatever reason.
However Nencini does not consider impossible the break-in through Romanelli’s room as portrayed by the defenses: it appears to him just too complex and (implicitly) unworthy of a highly efficient professional like Rudi Guede (but he will contradict himself later).
At first thought one would object that if the break-in through Romanelli’s room was too complex and the access through the front door or the terrace much easier, it should have appeared such also to those who were going to stage it, but evidently for Nencini those are thoughts for professionals only and Knox and Sollecito are just amateurs (a demotion, particularly for Knox).
The other element compelling Nencini to rule the break-in as staged is the notorious presence of pieces of glass above the clothes on the floor of Romanelli’s room.
This is a point I want to expand a little bit.
First of all, according to Battistelli’s and Romanelli’s testimonies in front of the Massei court, the glasses on top of the clothes were “small” and “few” and moreover they were both on top and under the clothes and what should be the explanation of those under the clothes in a scenario involving simulation? But that is not all. Let us look at page 47 of the PMF translation of the Massei ruling (page 34 of the original Italian), where the (then) alleged previous burglaries by Rudi Guede are discussed:
“Objects were taken from the [Brocchi and Palazzoli] law office, glass was found on clothes” (“sopra gli indumenti”, which literally means “on top of clothes”).
It is incredible to read this in Massei and to think that we are here, four years after the publication of that report, still discussing “glass on top of clothes” as a fundamental proof of a staged break-in.
It is even more incredible that this has been neglected by cohorts of judges, including the “supreme” ones (in Italy judges belonging to the Court of Cassation are often referred to as “supreme judges”). Who staged that one, honorable judges?
Yes, because if glass on top of clothes means faked burglary, then that one had to be faked too, otherwise we should, honorable judges, think that glass on top of clothes proves nothing and that we (and you) have spent years debating red herrings. Or, conceding to Nencini’s high opinion of Guede as a professional burglar, that he was so smart to think that purposely spreading a few broken glass pieces on top of clothes was an excellent way to sidetrack investigators, who would have immediately thought to a faked burglary.
A footnote: on page 80 the ruling reads
if to these considerations one adds the circumstance, deemed as acquired by this Court, that the aggression to Meredith Kercher was the work of multiple individuals (…) the defenses’ hypothesis of Rudi Hermann Guede who, as a lone killer, breaks in through the window, is caught by Meredith and kills her, is shown to be completely without foundation.
Well, yes, if it is “acquired” that there were multiple attackers, a single attacker theory is without foundation. Of course.
The report plays with the idea of a “selective” cleanup being possible or not, that is if it had been possible for Knox and Sollecito to selectively delete their traces from the crime scene (implicitly leaving those of Guede alone) only to finally dismiss it without openly stating that it is technically impossible, but just because it would be a conjecture and the ruling has to be based on ascertained facts.
Nevertheless the ruling also plays a bit with innuendo, defining as “a surely singular circumstance” the “fact” that no trace of Knox, besides those (in Nencini’s opinion) directly linked to the murder, was found in the house where she was living since many weeks.
Now, first of all, that is not a “fact”: there were for instance partial fingerprints, but also the DNA and the footprints Nencini thinks are directly related to the murder can as well (and indeed better) be explained by Knox living at the cottage. It sounds like circular reasoning.
Moreover, no DNA traces of Mezzetti and Romanelli (who had lived there longer than Knox) were found either: a point we will come back to later.
In any case after having (more or less) dismissed the possibility of a selective cleaning, Nencini states that however a cleanup was certainly operated, mainly because the footprint on the bathmat is “orphaned”, that is there aren’t other bloody footprints of that size going from Kercher’s room to the bathmat. The presence of bloody towels near the victim’s corpse is further evidence of some form of “cleaning”.
It is particularly noteworthy (also for further consideration later) that Nencini writes
Someone spent a lot of time inside the cottage on the night between November 1 and 2, 2007, altering the crime scene and deleting many traces.” (page 81)
So there was a long cleanup during the night, keep this in mind.
For the time being I just want to point out that cleaning a few footprints going from Meredith Kercher’s room to the small bathroom should not take more than half an hour, if done with a toothbrush, and that the towels soaked in blood could have indeed been used in a very cursory and aborted cleanup.
There follows what should be, according to Nencini, an element of sure interest: the famed lamp.
We are talking about a small tabletop lamp, apparently coming from Knox’s room, found on the floor of Kercher’s room.
I refer those interested in the topic to Clive Wismayer’s detailed article , while on my part I would just like to point out that after having supposed that it was used the night after the murder, the ruling drops the matter altogether, probably because a few pages later (85) it admits:
And indeed the cleaning activity concerned the corridor and the small bathroom, while poor Meredith’s room could not be cleansed, hence it was locked.
So another important point: Kercher’s room was NOT involved in the cleanup, and hence the use of the lamp in it is inconsequential … I have to say that then just having introduced it (moreover as an element of sure interest) sounds like another exercise in innuendo. Unless it just reveals a fragmented ruling unable to follow a coherent and logical path.
At this point Nencini asks three rhetorical questions he is going to answer himself:
1) who had interest to operate a cleanup?
2) who was sure to have available all the time needed to operate a systematic alteration of the crime scene?
3) what was the aim of that activity?
The answer to the first question is certainly not Guede because he barely knew Meredith and his only interest was that of quickly leaving the place. Moreover why would Guede have cleaned “everywhere” except the place where he had committed the crime (but that room was deemed impossible to clean according to Nencini himself) and where he had defecated?
Rudi Hermann Guede was absolutely not linkable by the investigators to the apartment of the cottage at Via della Pergola used by the victim, nor to the victim herself”. (page 84)
Really? Stefano Bonassi (one of the boys downstairs) named him to the investigators and if it were true that Knox knew him “rather well” as stated by the ruling on page 92, then an innocent Knox could have as well named him to the investigators (as indeed she did, but without even remembering his name).
Not just that, Nencini states at page 84 that Guede “had perpetrated before thefts using the same technique” and that hence for him faking a break-in would have just meant calling upon himself the attention of the investigators.
Now, besides admitting that our highly skilled burglar had used the same “uselessly complex” technique before, Nencini also implies that he was known to the investigators because of his activities (and he reiterates on page 92 that the police would have quickly arrived at him) and if so, clearly just his name made by Bonassi or Knox would have raised their interest.
So a very cursory cleanup by Guede is not outside the realm of possibilities, a short cleanup operated in a state of excited frenzy, a state in which he could have forgotten or considered immaterial his “gift” in the small bathroom. Of course to accept this one should also drop Nencini’s conception of Guede as a cold-blooded professional.
Now forward to the second question: Nencini correctly states that Guede could not have known the whereabouts of the other tenants and hence any cleaning of his should have been quick, and indeed I said above that he could have only done just that and in a frenzied state of mind.
Of course Nencini deduces that the only one knowing she had all the time she wanted at her disposal was Amanda Knox. It could be objected that Knox knew that Romanelli was in Perugia and hence her unforeseen return to the cottage could have happened for unpredictable reasons, however, since I am now more interested in highlighting the internal incoherence of the ruling, let us accept that Knox had indeed all the time she wanted for operating the cleanup and any alteration whatsoever of the crime scene, because it will show the incoherence of a further critical point of Nencini’s reasoning.
On page 92, Nencini also reiterates that Knox knew nobody would have been back at the cottage that night.
His third answer is that the only possible aim of the cleanup and of the overall alteration of the crime scene (including the faked burglary) was that of
preventing that the murder were discovered before its authors had had the possibility of organizing their fuoriuscita dalla scena.
I have left “fuoriuscita dalla scena” in Italian because depending on its translation new and unexplored scenarios could open up and I literally jumped in my seat when I read it the first time.
Literally “fuoriuscita dalla scena” is what actors do at the end of the play: they leave the stage.
So I wondered if Nencini perhaps implied that Knox and Sollecito wanted to flee, to perhaps even leave the country and were just prevented from doing so by what Nencini, later in the ruling, seems to consider an early discovery of the corpse due to the unforeseen arrival of the Postal Police. Or maybe he is simply implying that they just wanted to leave for Gubbio and let others discover the body.
However in both cases calling Romanelli and alerting her about the burglary and that something could have happened to Meredith (albeit not a murder) well before the arrival of the Postal Police belies such an interpretation, as we will repeat when dealing with the discovery of the murder.
In the end I am left wondering what Nencini really meant with those three words, whether something “remained in the pen” or if it is just a dead end in a ruling written by multiple authors lacking coordination.
The theft of the cell phones used by Meredith Kercher
Nencini’s question this time is
for what reason the perpetrators of a murder should seize the cell phone of the victim only to throw it away afterwards. And, in the case we are dealing with, if Rudi Hermann Guede had a reason to do that. (page 88)
Nencini also states that the phones were very important to Meredith Kercher because she often called her mother in light of her health issue, so it certainly wasn’t the victim who threw them in the Lanas’ garden.
We surely agree with the ruling on that point, but we would also like Nencini to wonder why, if Meredith deemed it so important to often call her mother, she did not try to call her again after her failed attempt at 8:56 pm that evening. But he doesn’t.
Nencini provides an answer to his own question that leaves this author dumbfounded, even if it is the same answer Massei gave years ago:
the only rational explanation of said theft can be found in the need by the perpetrators of the murder of preventing that one of the two phones, ringing inside the locked room of Meredith Kercher, could alert someone who in the meantime had entered the apartment, causing in this way the discovery of the corpse of the girl before the time deemed necessary by the perpetrators of the murder. (page 88)
Now, this ruling has been defined by someone as a script for a movie and certainly it would be a thrilling scene: the two murderers run in the night, in the gothic scenario of the narrow streets of the ancient walled city, panting and with their hearts in their mouths, a bloody knife jolting in the girl’s spacious bag (and leaving no trace of its passage there, but this must be left out of the script), until they reach a place they think is safely outside town. Here they throw the phones into what they think is a ravine and the camera follows the phones’ parabolas through the dark, unforgiving sky …
Then the bell (or the phone) rings and we wake up: the best way to prevent the phones from alerting anybody was to turn them off or to silence the ringtone, something youngsters nowadays know better than their home address, not running around the town like fools, moreover with a bloody murder weapon in the bag.
But for Nencini it is not enough:
With respect to this explanation, which appears to be the only rational one this Court reckons being able to give to the factual datum, it is also easy to notice how an alternative explanation to this singular fact has not been given by any of the defendants, nor by their lawyers. The theft of the cell phones has been completely ignored by the defendants’ defenses when reconstructing the events of that night. There is, substantially, no alternative hypothesis to deal with in the context of the trial. (page 88)
Here we have a problem of principle: it is not up to the defendants to find an explanation or invent scenarios for every possible event, because some of them may be bound to remain unexplained. It should be the task of the Court to evaluate if an interpretation of that event unfavorable to the defendants is meaningful and rational or not. But certainly if a Court deems as “the only rational one” an explanation like the one above, then we are in some sort of Kafkaesque trial and whatever alternative explanation a defense could conceive would not matter much.
Moreover, a few pages before the ruling stated that Knox and Sollecito knew that they had all the time they wanted at their disposal for the alteration of the crime scene (or at the very least the whole night), so what did they have to fear from the ringing of those phones?
Indeed here, and it will be the same throughout the ruling, we suffer Nencini’s unwillingness, unlike Massei, to present precise timelines: Knox and Sollecito fear the murder will be discovered before they will have the time to … to do what? To do a thorough cleanup? To leave for Gubbio? To leave the country? To have another pizza?
For instance, if provided with some time estimates we could decide if indeed a premature discovery of the murder was going to put in jeopardy their plans or not.
If the “time” in question was that needed for the cleanup, in any case being caught red-handed (in a literal sense) while cleaning a bloody crime scene would have made immaterial any phone ringing.
If the “time” in question was that needed to go to Gubbio before the discovery of the corpse, then it should be first explained why they did not depart early in the morning (more on that later), but in any case the ruling should specify whether that was their intention.
If the “time” in question was that needed to leave the country, then probably they needed more than a day, but however the ruling should specify what their intention was.
Otherwise, it is motivation by obfuscation.
Anyway, back to Nencini’s answer: he finds it easy to answer that Guede had no reason to steal the phones, his only interest being that of leaving the cottage as soon as possible.
Indeed, that would be the most probable behavior for the cold professional burglar Nencini has in mind when he thinks to Guede, but a less criminally experienced and panicking Rudi Guede could have taken the phones as an instinctive act, without much thought, throwing them away on his escape route when he suddenly realized they could link him to the murder.
In any case, the DNA found on Kercher’s purse, where the phones most probably were, was his, not Knox’s or Sollecito’s.
Finally Nencini deals with the objection that Meredith Kercher herself could have let Guede in: he admits it would be possible in line of principle, but then rules it out because Guede would have never faked a break-in, since that would have led the police to him immediately.
Well, if one considers Rudi Guede as Perugia’s Arsène Lupin, then probably the police would have zeroed on him as soon as they had noticed that the burglary showed his distinctive and celebrated style, but since in the historical reality the investigators did not arrive at Rudi Guede because they immediately recognized his style, Guede not necessarily would have been deterred from faking a break-in for that reason.
4. The calumny – The false alibi
The section dealing with the calumny against Lumumba begins with a masterpiece of understatement:
Amanda Marie Knox (…) after an initial disorientation, while she was at the Questura of Perugia where she had gone to accompany Raffaele Sollecito, gave statements collected in summary testimonial information. (page 95)
Call it the power of synthesis …
After having integrally quoted Knox’s statements of 1.45 am and 5.45 am on November 6, 2007, whose “limits of usability” are briefly hinted at without further specification on page 93, Nencini finally spends a few words about the context in which those declarations were made.
The defendant, in order to exclude the existence of the crime ( and even more so the aggravating circumstance of interest here) continued to repeat throughout the proceedings, and also in her examination in front of the Court of Assizes of Perugia – as we will soon see – the justification for her behavior, which would have consisted in the fact that she was particularly confused when she made the statements above, for having been the target of psychological pressure and even of physical violence by police officers of the State Police present inside the offices of the Questura of Perugia in the night of November 6, 2007; and it must inevitably be deemed also by the Public Minister, who was present for the preparation of the second verbal ( and indeed the girl, during the examination which she underwent at the hearing on June 12-13 2009 expressly referred to pressures she also attributed to the Magistrate ) .
Amanda Marie Knox accused of murder Patrik Lumumba at 1:45 pm on November 6, 2007 and subsequently spent four hours in which the girl had no talks with people outside, nor does she appear to have undergone any particular ill treatment. Even assuming for a moment that the police officers of the Questura of Perugia at 1.45 am on November 6 2007, in the frantic search for a culprit for the murder of poor Meredith, perhaps because objectively pressed by the town public opinion and the media relevance the story had assumed since the start, had a definite interest in having the girl blame Patrik Lumumba, however, to them perfectly unknown, for the murder, one does not see for which reason the girl would maintain her mendacious version , even enriching it with details, at 05:45 am on November 6, 2007, when she found herself facing not the evil police officers she said had forced her to make such statements , but a Magistrate to whom the girl could have turned with greater confidence, immediately denouncing the abuses suffered, without the risk of being exposed to retaliation by the police, when, as of November 6, 2007 at 5.45 Amanda Marie Knox was not yet in vinculis [arrested] . But this did not happen. Amanda Marie Knox reiterated the allegations before the Magistrate, accusations that were never retracted by the girl for all the following days, even when, finally subtracted from the clutches of the police and of the Public Minister, she had the opportunity to talk with her lawyers and her family (…) [this] requires an explanation; an explanation that can not be found in an alleged weakness of character of the girl, who, indeed, since the immediacy of the discovery of the battered corpse of poor Meredith , showed an outside coldness, even exceeding into blatant indifference, which struck not just one of the people who were witness in those hours to those tragic events (many witnesses testified during the first grade trial that they had been stricken by Amanda and Raffaele’s behavior: since the finding of the body they appeared as almost uninvolved in the events and later at the Questura exchanged displays of affection as the story did not concern them). (page 97-98)
Now, the night interrogation of November 5-6, 2007 is such a minefield, especially for an Italian, however, there are things that have to be said.
First of al.l it is not true that Knox never retracted her accusation of Lumumba “for long days”: already her first memorial of November 6 could have been read as a partial retraction, but in any case her second memorial of November 7 was a full retraction and it has been totally ignored by Nencini (as it was by the Court of Cassation a year ago), even though Counselor Dalla Vedova had explicitly invited the judge to consider it during his closing arguments.
One well known Italian saying goes this way:
There is no one more deaf than the one who does not want to listen.
There is indeed an unclear reference on page 100 to a “memorial in which the character of PatriK Lumumba does not appear”, but if that is a reference to the November 7 memorial, then Nencini fails to draw the consequences on the calumny issue coming from the early date in which it was written.
Secondly, Nencini’s analysis of the night interrogation is at least partially contradictory, as highlighted by the parts in bold: he admits that Knox had said that she had received pressures also by the Public Minister but then he says she should have found refuge in that same Public Minister against the “evil” cops, and then again he says “subtracted from the clutches of the police AND of the Public Minister”.
So, whatever one may think about that night, Nencini’s arguments present an evident contradiction, a further internal incoherence of the ruling.
The considerations about Knox and Sollecito’s behavior after the discovery of the murder are in my opinion just fluff, however I will give them a reply in my exposition about the root causes of the slander.
According to Nencini’s reasoning, if Knox had slandered Lumumba just to put an end to the pressures she was subjected to, then she would have retracted in the following days (but she did so with the November 7 memorial).
Nencini further states that had she retracted she would have exposed herself to new and more pressing interrogations (but, again, she DID retract with the November 7 memorial).
Nencini’s argument that Amanda did not accuse Guede because he could have retaliated with his own accusation is reasonable IF one rejects the hypothesis of a selective cleaning (which Nencini does, albeit grudgingly), because a selective cleaning would have necessarily implied the aim of framing the third accomplice.
What instead is not explained is Knox’s root reason for slandering Lumumba: a generic “to sidetrack the investigators” is not enough. She could have as well remained silent, as the SMS exchange with Lumumba, because in no way crime related, did not put her in jeopardy in any way, while accusing an innocent was bound to cause her troubles, especially since, if guilty, she knew there weren’t Lumumba’s traces in Meredith’s room, but those of someone else.
The fact that Knox “introduces a motive of sexual nature” in her declarations is no proof of background knowledge: those motives were rampaging in the media since November 2 (an unavoidable consequence of the state the body was found in) and in any case Knox had been pounded with sex related questions by the police during all her interrogations.
The same can be said for Knox reporting a scream by Meredith in her dream-like statements: it is difficult to imagine that a victim killed in that way would not have screamed.
Finally the fact that Knox places herself in her visions at Piazza Grimana, the same place where witness Curatolo alleges to have seen her and Sollecito the night of the murder has to be weighed in the light of Nencini’s statement, later in the ruling, that Piazza Grimana was a usual gathering place for youth.
Since the “accusing an innocent” meme is a central point of any pro-guilt campaign, I will now expand on my personal view of the root causes of the calumny against Patrick Lumumba.
I have to begin by saying that my analysis may cause some puzzlement even in the pro-innocence field and hence I want to make it very clear that this is my personal interpretation and that, while based on known facts, it is nevertheless a product of my own theorizing.
First the statement meant for effect: Amanda Knox is not responsible for the statements signed during the night between 5 and 6 November 2007 at the Questura (police station) of Perugia because they were expressed in an altered state of mind that can only be fully qualified as temporary insanity and hence in a state of inability to understand and take action.
It is true that even the second instance ruling denied that one could hypothesize an inability to understand and take action (which would have mandated a full acquittal for the charge of slander) and that this defensive line was never supported by Knox’s lawyers, nor by the defendant herself.
I think there are multiple reasons for that.
Concerning lawyers, from the point of view of procedural strategies, sustaining a temporary inability to understand and take action could backfire in the defense against the more serious charge of murder: if it had been accepted that Knox could become “temporarily insane”, the judges might have thought that people who can go “crazy” once can go that way twice and maybe kill, or at least be capable of anything.
About Amanda Knox herself, on the one hand it is understandable that it is very difficult for anybody to accept that one may even just have grazed a state identifiable as “madness”, while on the other hand once one leaves such a state, memories of it can only be very confused, just as those of Knox are.
A brief reference on this point is also found in the book written by Knox, Waiting To Be Heard, where on page 227 we read
If I said I’d imagined things during the interrogation, I’d be called crazy.
Now, the term “crazy” is generic and crude, more literary than belonging to psychology or to psychiatry, but clearly it implies, in the common sense, such consequences that anyone cannot help but be scared at the thought of being considered such.
But at a more subtle level there are particular states of mind in conditions of extreme and prolonged stress that can cause what is commonly called a “mental breakdown” or “nervous breakdown”.
While these two expressions are more colloquial than scientific, what they describe, even if called by specialists with other words, is quite clear:
a time-limited psychiatric disorder that manifests primarily as severe stress-induced depression, anxiety and / or dissociation in a previously functional individual, to the extent that they are no longer able to function on a day-to-day basis until the disorder is resolved .(from the “Mental Breakdown” entry of Wikipedia)
Lo and behold, my interpretation of the reasons for the crime of slander against Patrick Lumumba by Amanda Knox is indeed based on the assumption that during the night of November 5-6 2007, the Seattleite was, for several hours and with after-effects for up to 24-48 hours, subject to a mental phenomenon of this kind, which created in her mind what are usually called “false memories” about Lumumba, which I consider instead as real hallucinations.
But the night interrogation of November 5-6 was not in itself the cause of this phenomenon; it was just the final disturbance that caused the collapse of the already proven mind of Amanda Knox, the proverbial straw that breaks the camel’s back.
In physics a system is said to be in an unstable equilibrium when, if subject to a disturbance or external force, it does not tend to recover its equilibrium position after an oscillation around it, but instead to move further away from it, one could say catastrophically, in the sense of the mathematical theory known as Catastrophe Theory.
Well, I believe that the mind of Amanda Knox had been brought by the events that took place in Perugia from November 2 to November 5, 2007 to a state of increasingly unstable equilibrium and near to collapse, whose symptoms can be found described in the testimonies of several witnesses, and experienced the decisive disturbance during the night interrogation, thereby collapsing in a state of “mental breakdown” during which, subject to hallucinations, she made her slandering statements.
The primary shock that caused the breaking of the otherwise stable equilibrium of Knox’s mind and led her to a state of instability was the discovery of the corpse of her roommate and the subsequent days full of interrogations and of her own racking her brain about who had done it and why.
As evidentiary elements in this sense, I reinterpret some of Knox behaviours that have been interpreted by others as circumstantial evidence against her, that is the behaviour at the Questura on the afternoon of November 2 and the reaction at the sight of the knives during the visit at the cottage at 7 Via della Pergola on the afternoon of November 4.
It is indeed my opinion that everything Knox did on the afternoon of November 2 at the Questura in Perugia (what she said or did not say, and how, to Meredith’s British friends, her urge to hug Sollecito and make grimaces, and also her hitting her temples with her hands as reported by witness Fabio D’Astolto) is at the behavioural level an indication of a mental state already altered if compared to normal balance and not an indication of guilt of any kind.
I also believe that Knox’s reaction to the sight of knives in the kitchen of the cottage on November 4, a reaction that was of a genuine, even physical, collapse further demonstrates that her state of mental prostration was only getting worse.
The day of November 5, until 10-10:30 pm, is instead a relatively normal day in which Knox tries to recover (even if only in part consciously) its own balance through ordinary acts and gestures, such as going to her class at the University for Foreigners or going with Sollecito in the evening to have dinner with friends of his.
All this allows her to distance herself a bit from that threshold (the threshold of equilibrium breaking, or of the catastrophic event in the mathematical sense) she had already arrived very close to, the day before at the cottage. Consequently, when later that evening the interrogation begins that will then produce the ill-fated statements and her and Sollecito’s arrests, the American girl has a mental situation stable enough to allow her to stand for about two hours to those external pressures that, whatever the intensity and the intentions, will finally lead to the “mental breakdown.”
It is important to point out that one scream more or one less, one slap more or one less, this or that word, this or that tone of voice, can change very little, because they are added as a last fatal straw to a situation generated on November 2 by the discovery of the body of Meredith Kercher, and which had worsened during the following days, during the long hours spent in the police station and with little sleep at night, mainly a pre-existing stress condition to which Knox was also probably subject due to a higher individual sensitivity.
This brings us to the fateful text message shown to Knox and to the persistent questions about it: this is the time when the breaking of the increasingly unstable equilibrium happens, the threshold is exceeded and the altered mind of the American girl produces those false memories or hallucinations that constitute the essence of the slander against Patrick Lumumba.
“In that instant, I snapped” writes Knox on page 117 of her book talking about this exact moment, and those words properly represent a moment of catastrophic transition between before and after. Prosecution’s witness Anna Donnino herself testified to a sudden change in Amanda’s behavior when the text message was shown to her, albeit Donnino’s interpretation of that change was probably different from mine.
Additional hints of the “pathological” character of those memories and statements can be found in the notorious “I confusedly remember”, written in the 1:45 am statement and in the phrase “it is recorded that KNOX repeatedly brings her hands to her head and shakes the latter” added by the investigators to the 5:45 am statement.
During the following two days, on November 6 and 7, the young girl will gradually recover (surely not helped by her new state of captivity) her sanity, but traces of the breakdown suffered by her mind are present throughout her book, even in later years, sometimes in an explicit form, sometimes implicit and up to the sensitivity of the reader.
In conclusion, it is this writer’s opinion that Amanda Knox slandered Patrick Lumumba in an altered state of mind that made her not responsible and therefore not punishable for her statements.
Italian justice has ruled differently, maybe also because the interpretation I propose was never used as a defensive strategy, perhaps because it would be potentially counterproductive in the context of the more important murder charge, or perhaps because Knox herself (and her lawyers with her) did not want to deal with all its implications.
The false alibi
As a foreword to the analysis of Nencini’s evaluation of what he ultimately deems a false alibi, it is opportune to explain the difference existing, in Italian law, between a false alibi and a failed one.
A false alibi is a story deliberately concocted by a defendant with the use of lies to protect him/her from the accusations he/she is facing, basically placing him/her at another place with respect to the murder scene at the time of the crime.
A failed alibi is instead just an alibi that cannot be proved in its truthfulness but which cannot also be proven to having been crafted with the use of provably false statements.
A false alibi can be used as circumstantial evidence against the defendant, a failed alibi cannot.
It must be said, however, that lies or omissions in a defendant’s alibi, in order to configure a false alibi, and in order to define the level of seriousness of a false alibi as circumstantial evidence against that same defendant, have to be lies or omissions with relevance to the crime.
For instance, lying about having had just a salad for lunch instead of a triple cheeseburger with fries may be considered as vague evidence of a general predisposition to lie, but, not being related directly to the crime, not as proof that the defendant, knowing his/her guilt, was trying to create a cover story.
With this preamble in mind we can better examine Nencini’s reasons for deeming Knox’s alibi as false. Sollecito’s alibi is considered also false because Raffaele always placed himself with Knox.
Nencini considers as the first “rift” in Knox’s alibi the fact that she said she had received Lumumba’s SMS telling her not to go to work when she was at Sollecito’s, while evidence from the cell tower traffic and coverage disproves that.
Factually this is incorrect and probably based on a similar mistake by Massei who, at page 322PMF/345ITA states that the cell tower Knox’s phone contacted while receiving the SMS did not cover Sollecito’s, but when reporting about cell tower coverage at page 318PMF/340ITA, Massei had previously acknowledged that Sollecito’s apartment received a good signal also from the cell tower Knox’s phone contacted to receive Lumumba’s SMS.
So there is no factual proof Knox lied on that point.
What I want to point out, however, is that since we are talking about a time prior to the murder and that no premeditation has been claimed, this little lie or omission, even had it been true, would have been of practically no value as circumstantial evidence against the defendant.
This has to be said because I read a certain tendency in this report to exploit any minimal contradiction, real or perceived, against the defendants and I don’t like it at all.
After this “small incident” we come to the two witnesses who seriously put Knox’s alibi in jeopardy: Curatolo and Quintavalle, even if the testimony of both of them assumes a higher or lower value depending on the reconstruction of events the Court will endorse.
Nencini considers both witnesses fully reliable and I will not spend much time reiterating the arguments I have already used when I wrote about the Cassation ruling.
What I want to point out is that Nencini makes his endorsement of Curatolo’s reliability by stating that
no one among the fact finding judges who dealt with this case put in doubt the circumstance that witness Curatolo saw together the two defendants at evening, at Piazza Grimana. (page 128)
This assertion simplifies his task since he can then say that Curatolo could have seen them at Piazza Grimana only on the evening of November 1 because both on October 31 and on November 2 they were demonstrably elsewhere.
But Nencini is incorrect in his previously quoted statement: Hellmann stated on page 51 of his report
Therefore, this Court does not consider credible the testimony of witness Curatolo, it being impossible to reliably verify his account and, above all, the identification of the two youths as being the current defendants.
The Court of Cassation disagreed, yes, but Nencini’s statement is nevertheless incorrect.
Indeed it is also the opinion of this author that Curatolo saw someone else, and probably he saw them on the evening of October 31 (Halloween) amid a joyful crowd getting on the buses for the discos. He then probably mixed that event in his mind with the following evening (November 1), because November 1 had been made “special” in the meantime: by the white dressed “Martians” of the Scientific Police on November 2 and then by the media for months.
I will not however persist with Curatolo, since he will return as Nencini’s nemesis in the final chapter: even if Nencini tries to belittle Curatolo’s time accuracy saying that
for what concerns the time when the witness would have seen the defendants, defined by him as between 9:30 pm and midnight on November 1, 2007, the reasoning has to admit some tolerance, since it is a memory not linked to a specific point of reference”, nevertheless his reconstruction of the crime will clash with Curatolo’s testimony beyond any allowable “tolerance”.
The more so if one considers that on page 140 Nencini puts into the record that
according to the precise testimony of Antonio Curatolo, which the Court deems reliable for the aforementioned reasons, Amanda Marie Knox and Raffaele Sollecito, from 9:30 pm to about midnight on Novemeber 1 2007 were noticed multiple times at Piazza Grimana.
I would just like to highlight a couple more sentences by Nencini concerning Curatolo.
The first one:
Trial experience shows that any testimony, if fragmented and critically analyzed in every single assertion, can be found ridden with contradictions. (page 128)
Nencini uses it in defense of Curatolo’s reliability, but he should use it as well when dealing with Knox’s statements.
The second one concerns Piazza Grimana as “surely a place usually frequented by youngsters who gravitate around [i.e. live or hang out at] the surrounding streets“ (page 129): so much for Amanda placing herself at Piazza Grimana in her statements during the night interrogation as being unusual or however meaningful as a clue.
About Quintavalle one could go on endlessly challenging Nencini’s patent of reliability, for instance with a different assessment of Quintavalle’s delayed identification “with certainty” of Knox, which was made only at the 2009 trial, when practically even Perugia’s stray cats knew her face.
Instead, I would like to highlight to the reader the story of a by now forgotten witness of the first trial: Fabio Gioffredi.
Fabio Gioffredi was a Perugian born university student who testified he had seen Guede, Kercher, Knox and Sollecito walking out of the cottage together at 5 pm on October 30 from a ten-meter distance, adding also nice details, like Knox wearing a 60s-styled red coat.
A young witness with good eyesight, certainly not a drug addict, with no reasons for lying, making an identification at rather close distance in daylight and with remarkable details: he could not be wrong.
Instead he was completely wrong: luckily, Sollecito had multiple witnesses able to testify that he was somewhere else that day at that hour. If he had stayed alone at home (or just with Knox) that day, we would now be talking about the “unassailable evidence” provided by an “absolutely reliable” witness that the three defendants and the victim had met frequently before the murder.
The one thing Gioffredi surely had in common with most eyewitnesses in this story is that he came out as a witness about a year after the murder.
Another important aspect concerning Quintavalle’s testimony is its relevance.
In itself Knox lying about having left Sollecito’s before 8 am rather than after 10 am on November 2 does not have a direct relevance concerning the murder.
Yes, it would undermine her credibility, and hence the credibility of the rest of her tale, but if it was not a lie aimed at hiding something more closely related to the murder, it would just be a weak piece of very circumstantial evidence.
So what is for Nencini the real importance of Quintavalle’s testimony?
Apparently it is mainly that he testified that she was very tired, hence supporting Nencini’s assumption that Knox and Sollecito had been busy at cleaning and staging that night.
It is something, but Quintavalle’s assessment of Knox’s state of fatigue is however a subjective one: she could have just appeared so to him. Moreover even if she were fatigued, she could have been so just because she had not slept well.
Hence, so far nothing really damning if true (which it was not, in my opinion, but that’s another matter). But what is left of the reasons that made Quintavalle all-important during the previous trials, namely the buying of bleach by Knox and the proof that Knox was going to begin the cleanup at the cottage in the early morning?
The first point is discounted by Nencini: Knox went to Quintavalle’s to buy something (unspecified) but she did not find it.
The second point is more complicated: Nencini, unlike Massei, thinks that there was a cleanup at night, so to him it is rather immaterial to use Quintavalle to bolster the hypothesis of a morning cleanup.
Indeed it is not even really clear what Nencini thinks about a further cleanup in the morning.
Nencini, always stingy when it comes to giving a precise timeline and a sharp reconstruction of events, just says on page 158 that
At the cottage at 7 Via della Pergola, from the early hours of the day and until about 12 am, no one had a shower, as much as no thief had broken in through the window in Filomena Romanelli’s room; more simply the sum of the circumstantial evidence examined up to now shows us that the defendants operated an activity of cleaning of the traces of the murder they had perpetrated and an activity of ‘sidetracking’ of the investigations.
So one really has to operate an “exegesis” of Nencini’s words to try and determine if he implies or not that there was a cleaning activity also in the morning. One has to rely on a logic Nencini does not display at work and say that if they had not needed more cleaning activity that morning, they could have well “left the scene” or “exited the stage” and gone to Gubbio. Of course IF that is what Nencini means by “leaving the scene”.
If we limit ourselves to Nencini’s words the best one can say is that “it cannot be ruled out” that there was a further cleanup on the morning of November 2.
It must be noted that if Quintavalle is not used to bolster the theory of a further cleanup in the morning, then the relevance of his testimony is very reduced: all that can be said is that Knox lied but without a direct connection to a murder-related activity and that Quintavalle subjectively thought she was tired, which at best is a weak support to Nencini’s theory that she was busy at night altering the crime scene.
Nencini then states that “objective elements” further show the falsity of the defendants’ alibi and those elements would consist of the phone records and of Sollecito’s computer activity.
Basically Nencini, overruling the technical objections of the defenses, rules that Sollecito’s cell phone (strangely Nencini makes no reference to Knox’s phone) was shut down at 8.42 pm on November 1 and turned on shortly after 6 am on November 2.
Now, the evidentiary value of such a “fact” has always puzzled me: in a murder without premeditation like this one (and moreover with the dynamics we will see later), turning off the cell phones cannot be considered a planned act (moreover, in a scenario with premeditation it would have been better to leave them turned on and silenced at home) and on the other hand, when one considers that at 8:40 pm Popovic had just told Sollecito she did not need his help that evening, it is perfectly logical to think that he shut it down to spend the evening quietly with his girlfriend without further disturbances.
Turning off the phones around midnight or shortly thereafter could have been considered as some sort of weak circumstantial evidence in favor of the nighttime cleanup theory, but turning them off at 8.42 pm, just after Popovic’s visit is rather evidence that the couple did not want to be disturbed in their intimacy at Sollecito’s.
The more so since it is a well known habit of young (and less young) people today to keep their cell phones on when they go out of home, hence if, as surmised by Nencini (and also by Massei and by the prosecution at least from 2009 on), the defendants left Sollecito’s home that evening without any evil intent in mind, it is much more logical to suppose that they would have had their phones on rather than off.
And indeed in the end all that Nencini is able to make out of Sollecito’s cell phone record is that he did not sleep peacefully until later (as he and Knox had said) but that he woke up at 6:02 am.
Nencini supports this “damning” conclusion with evidence coming from Sollecito’s computer, which shows that there was a human interaction at 5:32 am.
The interpretation Nencini gives to the result of his smart analysis is that first of all Sollecito and Knox lied (and a lie is a lie is a lie, even when it is trivial) and that they were not at all spending a quiet night, with this indirectly (much indirectly) implying that they had spent it altering the crime scene.
Finally Nencini discounts the activity record of Sollecito’s MACBOOKPRO computer (he had two PCs) as proof of his alibi. He just concedes that there was human interaction until 9:10 pm (viewing of “Amelie”), albeit he will later extend this range to 9:20 pm (probably referring to Naruto, even though that would extend the range to 9:26 pm) and finally admits that there could have been a short human interaction at about 1 am on November 2.
To Nencini this last element is immaterial: the murder was perpetrated before midnight and they had plenty of time to go and drop the cell phones and come back home before 1 am.
To us instead all these elements together give some much needed time reference (we have to deduce what Nencini does not explicitate): any nighttime cleanup and staging could not take place before 1 am or after 5:32 am on November 2, unless one conjectures that Knox and Sollecito operated separately.
But since the more time assumed for the cleanup, the more it goes to the detriment of Nencini’s theory, I will be fair and assume the value given by the two aforementioned evidentiary elements (interpreted according to Nencini): not more than four hours.
The final words of the chapter also are useful to snatch from Nencini’s grip a few more details about his never-so-clear timeline of the crime and of the following events:
the distances among the places of interest allow indeed to reckon that the defendants perpetrated the murder shortly before midnight on November 1 and, [after having] escaped immediately from the house at Via della Pergola and [having] abandoned the cell phones at Via Sperandio, that they went back to Sollecito’s flat, also with the aim of planning the activity they later implemented, and that they were there shortly before 1 am on November 2, 2007.(page 146)
5 – The evidentiary framework as inferable from the statements of the defendants and of the witnesses
Nencini first analyzes Knox’s statements concerning the morning of November 2 and the first things he has to object to is Knox’s shower at Via della Pergola, saying that she had no reason to have a shower or change clothes at Via della Pergola (she could have done it all at Sollecito’s taking the clothes there the day before).
Evidently the good judge never had a moody girlfriend frequently changing ideas about what her best look is going to be. Nor does it occur to him that maybe Knox considered the two houses, a quarter of a mile the one from the other, as the villa and what the French call a “dépendance”. American spaces are bigger than ours, dear judge. But indeed later, to justify the presence of the knife at the cottage, Nencini will indeed use a similar argument.
Then there is a moment of limelight also for the dear old mop, faithful companion of so many motivation reports: she had no reason to bring it to Sollecito’s because the residual water from the evening before could have been easily dried with some makeshift solution. It does not occur to him that perhaps they wished to use again the sink to wash what they were going to use for breakfast.
These trifles aside, Nencini moves on to scrutinize Knox’s professed behavior at the cottage that morning and he practically finds everything unbelievable:
1) when she found the entrance door open she should have, if not immediately called the police, at least inspected all the rooms and in this way she would have immediately discovered the burglary, instead she had a shower in such an anxiety-filled environment;
2) a burglar would not have closed Romanelli’s door: Knox would have found it open and she would have immediately seen the burglarized room;
3) Knox had a shower in a bathroom with multiple traces of blood and used the bathmat for her now celebrated “bathmat swing” without caring about the bloody footprint on it;
4) Nencini completely forgets (for now) Guede’s gift in the big bathroom, but he thinks Knox should have called someone immediately or called Sollecito to her rescue.
These being subjective evaluations, literally just a point of view, I’ll oppose mine, point by point:
1) if all those who find themselves in a comparable level of alert should call the police, or even just friends, there would be police patrols or concerned friends and relatives running around everywhere all day;
2) Romanelli’s window and the main entrance door had both been open during the whole night: an air current could well have shut Romanelli’s door or (if gentler) left it just ajar;
3) the traces were not enough to cause fear, however we will return to them later, when analyzing the “general theory of the cleanup”;
4) that is perhaps what many Italian males think a girl should do, probably Knox was not that big a sissy.
Nencini bluntly states,
The behaviour reported by the defendant defies common sense.(page 151)
She is a hippie, Judge!
Seriously, we have to point out here that such behavior was indeed reported by Knox, who was the only one present: she could have told what she wished. If it was a lie then it was an unnecessarily convoluted one.
After this essay on dissecting human behavior, let us proceed to the more concrete field of telephone records.
Essentially Nencini objects to or finds evidence of guilt in any of Knox’s phone calls that morning.
The grand scheme behind Nencini’s reasoning is that Knox knew perfectly well that Kercher would not have answered, he deems that the first call to Kercher’s British number was done to verify whether someone had retrieved the phones. Historically this instead caused their discovery by Mrs. Lana and indeed if you think you have thrown them in a ravine in open country, who should have found them? But more on this later.
After her first phone call to Romanelli at 12:08 pm she called both of Kercher’s numbers and Nencini objects that the calls (3 seconds to the Italian phone and 4 seconds to the British one) were too short: had Knox not known nobody was going to answer, she would have waited longer for a reply.
It is very easy to retort that she had already called the British one for 16 seconds, so when she got no immediate reply the second time, she gave up, while for what concerns the call to the Italian number, Nencini himself admits that the records show that the answering machine kicked in.
Nencini opines that this should have caused anxiety in any case, but what should Knox have done: gone on listening to an answering machine for a minute just to appease Nencini?
Nevertheless Nencini is ruthless:
the circumstance that the two calls to the numbers used by Meredith Kercher did not alarm the defendant has just one plausible explanation. (page 153)
Of course the explanation is that she knew Kercher was dead, but what should have concretely been Knox’s level of alarm beyond that shown to Filomena Romanelli in her calls? Calling the police herself? Hysterically calling Sollecito imploring him to come to her rescue, poor girl?
Oh, sorry, she could not have called Sollecito because she was already at Sollecito’s, in contrast with what she had said to Romanelli, when she called the Italian roommate at 12:08 pm, hence she has demonstrably lied, or so Nencini thinks.
On what does Nencini base such certainty?
On cell tower coverage: when Knox called Romanelli at 12:08 pm she connected to a cell tower serving Sollecito’s flat but not the cottage: this, together with the fact that Romanelli testified that Knox had told her she was at Via della Pergola, indisputably proves that Knox lied.
Sorry Judge, no.
Cell tower coverage does not pinpoint you at a street address: at best it places you in an area and even if that tower did not serve Via della Pergola, this does not mean Knox was at Sollecito’s: it just means that she was closer to Sollecito’s flat than to Via della Pergola, maybe 100 or 200 meters away (the total distance is 400 meters).
And from Romanelli’s own testimony (page 155):
she said ‘In any case I’m now going to Raffaele’s, I have had a shower, I go to Raffaele’s and I have him come.
It is not necessary to think of language problems: the first part of the sentence is clear enough: “I’m now going” (“adesso sto andando”) means that Knox was at that moment in transit between the two places and, probably, at that point closer to Raffaele’s than to the cottage.
In the second part of the sentence she uses the present tense “I go” (“vado”): had she said just “adesso vado” (now I go) it could have been interpreted in the sense that she had yet to leave Via della Pergola, but used after having specified the first time that she was already in movement, it is merely a reinforcement of the concept of movement and even an Italian native speaker could use it that way.
If one objects that such distinctions are too sophisticated considering the command of the Italian language Knox had at the time, then the reply is that if her Italian was so poor, nothing can be deduced from her words: not that she was on the road to Sollecito’s but neither that she was still at Via della Pergola.
Hence Nencini’s self-assurance in deeming this conversation as sure proof of Knox’s lying is unfounded, and since he admits that without this element all of his previous considerations about Knox’s calls “could appear exercises of logic applied to the human behavior, which sometimes does not follow the rules of logic” (page 156), we can safely say that they are, indeed, just such exercises.
As a last note on this point, Nencini also seems to think that if Knox reported to Romanelli about the situation at Via della Pergola while not being there, this has to be ominous: “Amanda Marie Knox phoned Filomena Romanelli from Raffaele Sollecito’s apartment, making her believe she was at the cottage at Via della Pergola and reporting a reality which was not under her eyes when she was speaking, but that she perfectly knew”. (page 157).
Indeed, once ascertained that she had not said she was at Via della Pergola and that she had said she was en route to Sollecito’s and that this is compatible with cell tower coverage, which cannot pinpoint you at a specific address, there is nothing ominous in Knox reporting about what she did not have directly under her eyes in that exact moment: she had seen it all up to five or ten minutes before and had it very clear in mind, so what is the problem?
The problem is that suspicion should not control reasoning.
However, let us follow Nencini into a hotly debated matter: did Sollecito call the Carabinieri before or after the arrival of the Postal Police?
At the first grade trial Massei ruled that Sollecito had indeed called the Carabinieri before the arrival of the Postal Police, but Nencini reverses it all in his ruling.
Massei had ruled differently because he had accepted the defense’s argument that the clock of the parking lot camera was 10 minutes backward in time and because no one of those present at the cottage had seen Sollecito make a phone call.
Nencini instead deems that Sollecito called the Carabinieri only after the arrival of the Postal Police because:
1) nobody was able to testify where Sollecito was when the door of Kercher’s room was kicked down;
2) the Postal Police arrived at 12:36 pm and for a “long” time they did not look carefully at Knox and Sollecito because they had no reason to do so;
3) there is also a “logical” argument: Romanelli begged Knox to call the Carabinieri at 12:35 pm while the first call was made only at 12:51; why did they wait for so long? because they indeed did not want to make that call and only the arrival of the Postal Police forced them to make the call.
The first “reason” is one of Nencini’s biggest blunders: he carefully quotes many testimonies to prove that witnesses could account for Knox’s presence inside the apartment at the time of the discovery of the corpse, but not for Sollecito’s. Hence, Nencini surmises, he made the call at that moment.
This would anticipate a lot the discovery of the murder and one could ask why no commotion can be heard in the recordings of the calls, but there is something worse for Nencini in those recordings: Knox’s voice distinctly saying “Via della Pergola”.
Hence they were together, at least during the first call, which is the most important one in this context and hence Nencini is factually wrong.
The 12:36 time given by Nencini for the arrival of the Postal Police completely neglects the camera clock being slow, when he grudgingly concedes that there could have been (he never concedes something squarely to the defense) a 6-minute mismatch, he says that nevertheless that means the Postal Police arrived before those phone calls and that nobody noticed them because nobody was looking with attention at Knox and Sollecito.
This time Nencini is constricted by a strict timeline, so we can rebut him more easily: there were four calls in total: Knox’s to her mother at 12:47 pm, Sollecito to his sister at 12:50, the first call to the Carabinieri at 12:51 and the second one at 12:54.
So we have 12 minutes from 12:42 to 12:54 and about 7 minutes out of those 12 would have been busy with calls by Knox and/or Sollecito and nobody noticed and reported them calling?
Moreover one has to squeeze into those 12 minutes also the inspection of Romanelli’s room by the Postal Police, the arrival of Altieri and Zaroli, also inspecting the room, the arrival of Romanelli and Grande, also inspecting the room, and then the notorious “Kercher locked/ did not lock her door” affair and finally the discussion leading to the knock down of the door.
Too many events and too many undetected phone calls in too short a time in a restricted environment with up to eight people to be believable.
About his logical argument, I would remind Nencini about his own words at page 156: such reasonings “could appear exercises of logic applied to the human behavior, which sometimes does not follow the rules of logic”. Yes indeed they do appear so.
Indeed I bet the honorable members of the Court, both lay and professional, knew, deep in their hearts, why the phone call to the Carabinieri was not made immediately after Romanelli had urged Knox to do it.
Because of logistical reasons (language, knowing the emergency number) it was undoubtedly Sollecito who had to call the Carabinieri and Italians are not enthusiastically eager about calling the police: it is in any case a “scocciatura”, a nuisance, and moreover Sollecito barely knew Kercher, Romanelli and Mezzetti: “non erano fatti suoi” – it was not his business.
Romanelli was the acting landlady? Very well: she could make the call herself.
So what most probably happened is that Knox and Sollecito waited until 12:47 with Knox prodding Sollecito to call and Sollecito hesitating, then Knox called her mother for advice and was urged to call the police. At that point (12:50) Sollecito called the one police officer he unlimitedly trusted: his sister, who urged him to make the call. So, finally, at 12:51, Sollecito made his first call.
But if things went that way, why did Knox and/or Sollecito not state it clearly in their testimonies, statements or books?
And what should have they said?
“We did not call because we did not like getting involved with the police”?
After all that is exactly what Nencini accuses them of, but with the wrong motive in mind.
But there is also factual evidence that Nencini got the time wrong: there is a series of photos taken by the parking lot camera at 12:48 (camera time) showing a man wearing a jumpsuit like the one Battistelli was wearing that day and Battistelli admitted having got out of the car to search for the cottage on foot.
If one adds the 6 minutes Nencini concedes for the wrong camera time and a couple more minutes to materially reach the cottage, one gets 12:56, which perfectly matches the defendants’ testimonies.
I have now to expand into a broader critical analysis of Nencini’s reasoning about the defendants’ behavior in relation to the arrival of the Postal Police to highlight its deep contradictions, so deep that it is difficult to fight off the impression of being in front of a logic led by suspicions much more than by evidence.
According to the ruling (and setting aside the just demonstrated fallacy of its assertions) Knox and Sollecito did not call the Carabinieri after having been urged by Romanelli to do so because they did not want to be the only ones to be present at the discovery of the corpse, indeed their aim was that of having the body found
at the presence of other witnesses, who could have validated [taken for real] the staging of the intruder’s break-in from the window of the bedroom used by Romanelli (…) the unexpected arrival of Inspector Battistelli created a sudden disturbance. The police weren’t expected, because no one had yet called law enforcement, and the two defendants did not know the reason for their intervention. Amanda Marie Knox and Raffaele Sollecito hence found themselves facing a situation they had not foreseen, which had not been planned and requiring immediate countermeasures. The officers were then accompanied to see what purportedly was the scene of a theft and reassured that the Carabinieri had already been called and hence that their intervention was absolutely not necessary. But the two officers were not there by chance, since they were looking for Filomena Romanelli, who lived there and so they did not go away. (page 174)
If you remember, many pages back in the ruling Nencini said that the defendants needed the time to prepare their “leaving the scene” and now we find them here at that same cottage waiting for someone, be it Romanelli or Godot.
Since they had had plenty of time for any cleanup or staging (at least four hours in the night and up to four hours in the morning) and moreover Knox had called Romanelli (whom she knew was in Perugia) reporting her a worrisome situation concerning the burglary and the inability to reach Meredith Kercher (which was bound to bring Romanelli to intervene), it can safely be said that at 12:08 on November 2 Knox and Sollecito were ready for the discovery of the corpse and were also ready and willing to be present to that discovery, otherwise they could have left for Gubbio, or however “left the scene”, whatever that could mean.
Hence Nencini’s assertion about leaving the scene is just another dead end in the ruling.
For what concerns the unexpected arrival of the Postal Police, they were witnesses as good as Romanelli and friends to be the “others” present at the discovery. Indeed they were even better: they were police officers. Hence there was no reason to try and have them go away, indeed Battistelli and Marzi were the ones showing no particular interest in things beyond their cell phone business.
And once Battistelli expressed his doubts about the authenticity of the burglary, it would have been absurd to have them go away and hope for Romanelli to be more gullible: if guilty, Knox and Sollecito knew that this was a murder case and that there would have been a thorough investigation: all those who had been at the cottage that morning would have been interviewed and the word of police officers would have counted more than that of Romanelli.
So there was no reason for Knox and Sollecito to try to send away Battistelli and Marzi or even for being worried by their unexpected arrival: they or Romanelli did not make much difference: everything was ready for them all at least from 12:08 pm.
So the facts, even accepting Nencini’s timeline, show the internal incoherence of the ruling.
Once Nencini’s timeline is acknowledged for what it is, a blunder, all the so called behavioral and phone related evidence concerning the morning of November 2 collapses definitively.
6 – The genetic investigations
The first interesting point in Nencini’s long, and sometimes more abundant in quantity than in quality, exposition of the genetic results is the one about luminol.
Basically he admits that many substances react with luminol besides blood, but then affirms that since in the particular context of the crime scene there had been a murder with copious loss of blood, a judge has to think it is blood because being other substances would be an abstraction not anchored to the trial data.
He also surmises that “the circumstance that it has been possible to extract a genetic profile from the traces detected with the luminol technique, places them unequivocally in the realm of biological traces, in which human DNA is present, hence at least with the exclusion of other distracting substances”. (page 187-188)
It sounds very reasonable, even if just some and not all of the luminol-enhanced traces showed a genetic profile, but it completely ignores that said DNA could have been pre-existent, since Knox and Kercher had lived together in that restricted area for weeks.
Interestingly Nencini, as we saw before, found strange that no trace of Knox unrelated to the crime had been found in a place where she had lived for weeks. He could, and indeed with presumption of innocence in mind he should, have reasoned the other way around: the investigation had indeed found a good number of Knox’s traces unrelated to the murder, like those detected by luminol.
A more scientific answer could have been found with an extensive substrate analysis, that is an extensive sampling of the house in order to ascertain the frequency of the presence of Knox and Kercher DNA and of their mixing. It was not done
But indeed Nencini’s previous assertion about the significance of luminol in a bloody murder crime scene would have been quite sensible, had it not been for a “small” detail: not even one of those traces was positive to the TMB test.
Now, there have been many heated debates about the relative sensitivity of TMB vs luminol, debates held more on the Internet than in Court, where TMB was presented much more favorably than its detractors on the Internet would like, but without entering such an endless fray, I would like to highlight just two points.
The first is that if it is so “natural” that in a bloody crime environment, with “copious blood”, luminol hits have to be considered blood out of sheer logic, it appears a bit strange that TMB systematically failed to reveal that same “copious blood”, not giving even just one positive result on the prints.
Second, and in the context of an appeal to the Court of Cassation, more important, Nencini totally ignores TMB (I have made a text search on an OCR copy of the ruling and found zero occurrences): since the negative TMB tests are forensic evidence in favor of the defendants, totally neglecting it is even worse than dismissing it with a faulty reasoning.
But, finally, what about Exhibits 93 and 95, both of them luminol hits at Sollecito’s flat (one in the bathroom and one in the bedroom) showing a mixed DNA profile of Knox and Sollecito? Did they stab each other or Amanda stabbed Raffaele and walked on his blood or was it Raffaele who stabbed Amanda and walked on her blood? Strangely all those brave judges never considered that those findings demolished the “DNA + luminol hit = blood = murder” equation.
Let us pass to the bloody traces in the small bathroom.
Knox’s and Kercher’s DNA is found mixed in three spots: in the sink, in the bidet and on a cotton swab box.
Nencini does not believe that such mixing may be due to the fact that both shared the bathroom, because it is for him difficult to imagine that the diluted blood fell exactly in the spots where Knox had previously left hers and because “the loss of biological substance useful to DNA extraction is not a phenomenon happening with normal frequency and regularity in the environments a given person frequents (the reasoning is of course different for objects of common use and on clothes, since they come in contact with the skin). For the loss of biological material useful to DNA extraction [to happen] it is however necessary to have a consistent frictioning action, causing the fall of biologically significant parts.” (page 189)
I believe many experts could disagree with DNA loss in the environment being so rare, but that is far from being Nencini’s main fallacy in this context.
Nencini (and many others before him) think that washing away blood from the skin must require a frictioning action comparable to that necessary to wash away varnish, while, if he ever cut himself while shaving, he should know it is usually enough to pour water on the skin.
Then he also seems not to realize that the “spots” on the sink and the bidet were in truth wide areas, because the samples had been collected with large movements of the swab, he also seems not to realize that the cotton buds box is indeed an “object of common use coming in contact with the skin”. And indeed he seems to forget about those bloody traces on the bathroom door frame and on the toilet lid which did not show any mixed DNA: just by chance places Knox did not routinely touch.
With these considerations in mind it also is easy to reply to another of Nencini’s arguments, namely that if the person who washed himself in the bathroom was not Knox, why didn’t he leave his DNA there?
Because he just poured water on the blood and moreover it was the first time he used that bathroom.
Moreover if in Nencini’s mind DNA can come only from some frictioning action done to remove dirt (be it blood or whatever) from the skin, then Knox and Kercher did exactly just that in that bathroom for weeks.
Yes, of course, Knox testified that she had left the bathroom “clean” in the afternoon of November 1, but it is rather bizarre that the one person accused of being lazy with personal hygiene and housecleaning is also considered, when convenient, the best judge about cleanliness. It goes from bizarre to ridiculous when “clean” is meant at the DNA level.
It must also be noted that such traces should have survived a clean-up which took “a lot of time” to the defendants to accomplish, even up to eight hours: Knox was perhaps bad at housecleaning, but really that bad?
However the single thing I find most unpleasant is that, in all the various trials, the discussion about DNA being commonly released or not in the environment, never went beyond the level of educated guesses. Yes, experts testified, but did they ever present numbers? I mean, did Stefanoni, for instance, ever say “according to this study, a frictioning action with a force of 10 newtons, skin on skin, repeated 10 times produces the loss of 100 picograms of human DNA”?
I never read something like that and I would have loved reading it, because it would have meant that there wasn’t the pretension of sending people to jail on the basis of purely qualitative evaluations, moreover ones far from being indisputable.
There would have been a simple way to at least have an experimental answer to the question of whether mixed DNA in shared environments is common or not: taking samples from the same areas of the big bathroom and seeing if Romanelli’s and Mezzetti’s DNA could be found mixed there.
The availability of the reference profiles of Romanelli and Mezzetti would have been convenient, and they could have been obtained if they had been demanded with determination (in the Italian case of the murder of Yara Gambirasio 18000 reference profiles have been collected), but in any case I think that the experts of the Scientific Police would have been able to identify a mixture even without reference profiles.
Now back to Nencini’s progression: it is the time for a first brief analysis of the print on the bathmat: for now the ruling just says that the footprint being “orphan” (i.e. there were no other bloody footprints going from the murder scene to the bathmat) is proof that
someone was engaged in an intense cleaning action of the locations affected by traces of the homicide itself, cleaning which obviously involved the floor but which could not involve the blue bathmat, on which the blood had been absorbed, given the porous nature of its fabric. (page 191).
It really defies belief how the defendants, having many hours available to clean just the bathroom, the corridor and perhaps, to concede all, part of Romanelli’s and Knox’s rooms, were able to leave visible traces in the bathroom, traces detectable by luminol in many places and above all not to devise a way to clean the bathmat by just putting it in the washing machine or by pouring bleach on it. At worst they could also have made it disappear.
Indeed that this highly inefficient cleanup lasted many hours is in itself mind boggling: a quick and highly efficient cleanup could have been obtained by pouring bucket after bucket of diluted bleach (or another detergent such as Lysoform) on every surface and then mopping. This way the whole house, including Kercher’s room, could have been cleaned in a time much shorter than the one allotted to the cleaning by Nencini, probably in even less than an hour with more than one person working.
So the claim that, without having to deal with the most difficult area, the murder room, the defendants spent so many hours to obtain such a meager result is rather unbelievable. The more so if one considers the unlikely unevenness of such a cleaning: only the male bloody footprints leading to the bathmat are, according to Nencini, perfectly erased It is a bit strange that someone who knows how to erase those perfectly is then unable to apply the same technique to the others.
Moreover if Kercher’s room was not cleaned and the bloody footprints of the defendants were more or less efficiently cleaned outside it, it is bizarre that no bloody footprint attributable to Knox or Sollecito and showing their DNA profiles was found in it.
The more one thinks, the more questions pop up.
Nencini then gives particular importance to Exhibit 177, another luminol detected trace of “presumed hematic substance” (negative to TMB like all the others) found in Romanelli’s room and showing a mixed genetic profile of Knox and Kercher. It should be particularly important because Romanelli’s room was not usually frequented by Knox and Kercher and because it was the site of the (according to the ruling) staged burglary. It is much more an amorphous blob than a footprint.
Leaving aside claims about the presence of a third profile, the value of such a finding is lessened by the limited extent of the sample collection: it sounds rather unlikely that Romanelli and Mezzetti left no DNA traces in their own rooms (even as unknown profiles): clearly the samples collected were insufficient, whatever their number (460, by the way) to allow the conclusion that if mixed DNA is found it must have to be crime-related. Once more we pay for the absence of an adequate substrate analysis: basically we cannot know how many occurrences of mixed DNA by all the four roommates (in various combinations) there were around the house.
Moreover a careful substrate analysis would also entail taking samples close to a luminol reacting area but outside it, to determine if a given DNA sample (mixed or not) found inside the luminol reacting area is also found outside it (meaning that the luminol reaction is not due to the substance giving the genetic profile or profiles) or not.
In any case Nencini’s analysis of Exhibit 177 gives us a hint about his reconstruction of the aftermath of the crime: he seems (but only fleetingly, and only to revert to hinting again at a staging later at night in the rest of the ruling) to somehow imply that the staging was carried out soon after the murder, even if one wonders whether the first urge of people covered in blood should not be washing themselves and even if on page 146 the ruling stated that the perpetrators left the house “immediately” after the murder.
Having dealt (for now) with the footprints, there comes the meaty bit: the DNA traces on the knife and on the bra clasp.
Nencini begins dealing with the issue of contamination, certainly a key issue for what concerns those two items.
Before dealing with Nencini’s opinions about contamination, there is a sentence I need to quote, because it will be useful later in this essay:
In the context of the criminal trial, in front of an element of evidence (…) it is needed that the latter be always subjected to critical examination by the judge, [examination] which consists in the evaluation of the patency of the ascertained fact and of its meaning in the overall context of the evidentiary elements. (page 196)
This said we can face the contamination issue: Nencini admits that pretending that demonstrating contamination is up to the defense would be an inadmissible reversal of the burden of proof. But he also states that he who claims contamination has the obligation of individuating the specific facts concretely causing the alleged contamination: doubt cannot be based on mere speculations or deductions of a “possibilistic character”.
I can agree, in principle. The real point is what constitutes a “specific fact” satisfying Nencini’s demands.
It is necessary that the Judge does not halt in front of a mere supposition of probabilistic nature or [in front of] a speculation, his duty being that of concretely verifying, and for each exhibit, whether it may have been polluted by accidental events, or by the thoughtless action of those who, for various reasons, came in contact with it (…) And hence operating a concrete assessment of what is reasonable (and documentary evidence of which can be provided) that may have happened in the give space-temporal conditions, and not of what can abstractly have happened. (page 196-197)
There are a couple of problems with this mindset. First a complete “documentation”, particularly videos, of every single step of the collection and custody of the two exhibits is not available. For what concerns the bra clasp one should also add the 46 days of “non-custody”. Second, DNA contamination, already with 2007 technologies and even more today, is something which cannot be detected with the naked eye (except, of course, for cases of gross contamination) and which is not limited to someone materially touching object A and shortly after object B. DNA may really fly and multiple transfer is a reality whose surface quantitative studies are just starting to scratch. So, dealing with DNA contamination as if it were a macroscopic transfer of blood and tissue from the victim to some object is a method not considering the real nature of the phenomenon, which in any case is not yet well understood and surely neglected, especially for what concerns multiple transfer.
Hence, even if Nencini tries to disprove any possibility of contamination for both exhibits by looking at possible evident causes in their retrieval and handling, it is in my opinion a method perhaps adequate to the level of sensitivities of DNA kits in the mid 90s.
For what concerns the knife, for instance, police officer Gubbiotti, who handled the knife at the Questura after its seizure at Sollecito’s on the morning of November 6, had been that same morning at the cottage. He may have changed all the gloves he wanted, nevertheless he could have had traces of Kercher’s DNA on his clothes. The same for the “new” organizer’s box where Gubbiotti put the knife: who (presumably without gloves) had touched that box before? Had he or she been at the cottage?
Yes, these are merely possibilistic speculations of the kind Nencini ruled out beforehand, but I think his approach is simplistic: contamination is indeed always a possibility for what concerns DNA, and such a possibility is inversely proportional to the quantity of DNA found in a trace.
So contamination should always have been considered possible (which does not mean it is bound to be real) and more possible when protocols for collection and custody are not strictly followed, which still does not automatically mean that contamination is a reality.
But it must be kept in mind as a possibility, then, at the proper point of the process of evaluation of evidence, it must be decided whether, by putting the possibly contaminated evidence in the context of all the other evidentiary elements and particularly of the other (non-DNA-related) known elements concerning that exhibit, the possibility of contamination is diminished or nullified by those other elements, or rather increased and even made a consistent probability.
This is what I consider a correct osmotic evaluation of evidence.
It must also be said that for what concerns trace 36B Nencini overlooks two possible contamination paths which stem directly from his reconstruction of the crime and which we will consider when dealing with that reconstruction.
For what concerns cross-contamination of 36B at the lab, I will just say that a 6-day separation in time between the last sample with Kercher’s DNA examined before the knife and the examination of the knife itself cannot rule out ANY possible contamination: reusing the wrong test tube (one already used with a Kercher sample and then forgotten in a corner) after six days would be enough to bridge that gap, and indeed any gap, without leaving any trace of contamination on other samples.
The bra clasp is a very different matter.
Here we have an exhibit demonstrably forgotten for 46 days on the floor of the murder scene (even Nencini admits this is a “professional lapse”) and we know that before it was finally collected on December 18 there were two more inspections by the police (page 202)
Nencini goes a great length to try and demonstrate that contamination of the bra clasp was impossible or “absolutely unlikely”, but he makes many constraining assumptions: he considers only a cigarette stub as the possible source of Sollecito’s DNA (at least initially) and he limits the time of the possible contamination to December 18.
The bra clasp was on the floor for 46 days and people were moving all around it from November 2 to November 6 and then in those other 2 inspections. Photos show that the flat, including Kercher’s room, was turned upside down during this period.
Subsequently Nencini concedes (very grudgingly) that there could have been some undetected Sollecito’s DNA in the flat because the collection of samples had involved a limited number of spots (as I have repeatedly pointed out above), but he then rules out contamination nonetheless with a couple of (indeed correlated) dubious arguments.
Nencini states that if indeed someone had transferred that DNA from some place to the metal hook where it was found, then the same agent should have: 1) also transferred that same DNA onto the neighboring tissue and 2) on other exhibits retrieved that same day (December 18, because for Nencini contamination could have happened only that day).
Such reasoning raises more than one perplexity, indeed it would fit some “copious” amount of blood, but if applied to DNA it would entail that: 1) contamination happens very often, because a secondary source like a glove could contaminate multiple samples and 2) the more samples you find of a given subject you find, the higher the probability of contamination.
Indeed, as an Internet commentator has pointed out, with this logic Guede’s traces should be considered sure product of contamination.
More realistically, whatever the source and the agent, the contaminating DNA, which was not a teaspoonful quantity, reached the hook and not the fabric: it could have been the other way around, but in this universe it happened to be the hook.
If the possibility that some of Sollecito’s DNA was somewhere in the house appears too far fetched, it must be considered that Knox’s DNA was found at three spots (excluding the knife) at Sollecito’s and there too the search had certainly not been such as to cover every surface.
Knox stayed at Sollecito’s about ten days (until November 1 only part time and also after that dividing herself between that place and the Questura), while Sollecito visited the cottage five or six times in about a week, so, even if Knox was more present at Sollecito’s than Sollecito at the cottage, their respective frequentations of each other’s apartments were roughly comparable, at least as an order of magnitude and hence the presence of some undetected Sollecito’s DNA at the cottage is not just a “mere speculation” but a probability deriving from known facts.
However Nencini happily rules out contamination and goes on spending a few words on international protocols.
Nencini considers the “alleged” violation of international protocols concerning evidence collection a besmirching, “at times even preconceived of the work of the Scientific Police in this trial”. (page 206)
Inevitably it follows an accolade to the high professional capabilities of the Scientific Police and of the RIS (practically the scientific branch of the Carabinieri), who are at least as good as any of the “scientific minds who have given their contributions in this proceeding as consultants of the parties”. (page 206)
So be it, after all it was already evident in the 2013 Cassation ruling that protecting the reputation of the scientific branch of the Italian Law Enforcement was an important theme.
In any case according to Nencini
if a negative influence on the trial data has not been ascertained, even the alleged violation of international protocols concerning the inspection of buildings and the collection of samples to be subjected to analysis is a trial element without value. (page 207)
It all depends on how it has been ascertained, given what we have said above concerning Nencini’s analysis of the possibility of a contamination.
The Knife (Exhibit 36)
The knife seized at Sollecito’s is more or less the Grassy Knoll of this case, so to make an extremely long story short I will assume that the reader is knowledgedable about most of the facts and of the lore surrounding it. If not, there is material on the internet the size of an encyclopedia tome.
Trace A (36A) is Knox’s DNA on the handle and just means that Knox handled that knife at a certain point in time or multiple times.
Trace B (36B) is the alleged Kercher’s DNA taken from “streaks” (according to Stefanoni) in the part of the blade close to the tip.
Trace I (36I) is the “new” trace collected by Vecchiotti during the second trial and examined by the RIS during the Florence trial.
Trace 36B is what really makes this knife the case’s Grassy Knoll: according to the prosecution it is the victim’s DNA, according to the defense and to the Court experts of the second trial it is not.
Nencini begins by clarifying that according to him the fact that Stefanoni decided not to divide the sample to also implement tests aimed to determine the nature of the trace was a good decision, because, given the faint (and never really quantified) quantity of material, dividing it would have meant risking having no DNA profile at all.
Moreover the lack of knowledge about the nature of the trace does not influence the attribution of the DNA profile (even if knowing it was made of sweat rather than of blood would have made a certain difference). In any case the TMB test was carried out on the same area of the knife and gave a negative result.
Then comes the crucial aspect of trace 36B: it was obtained through a single amplification, against the international protocols dealing with LCN DNA analysis.
Nencini states that even if the fluorescence peaks were low, the “negative control of the amplification” showed that there was very low background noise. Just to introduce the subject, the negative controls of trace 36B are the shooter behind the fence on the Grassy Knoll: some say they exist, some that they don’t, some even say they have been suppressed.
Nencini then quotes Novelli’s opinion about the need of (at least) a double amplification and Novelli answers that yes, there are the protocols, but then it also depends on the experience and the capability of the operator and one has to get in any case the profile and then see if it is good or not good,
otherwise we put in doubt all the DNA analyses we have made since 1986-1987, at least in our country. (page 213)
I have already expressed elsewhere my perplexities about a scientific method depending on the experience of the operator, while for what concerns the second statement I will leave the comments to the readers.
Nencini goes on to say that although the peaks are low, only a couple of alleles are missing with respect to Kercher’s reference profile and that there being a single contributor, the attribution of the profile is easier with respect to a mixture (a truism), so
the attribution of the genetic profile to Meredith Kercher, done by the Scientific Police, appears to be supported by a solid scientific base and by a correct interpretation of the result obtained from the lab analyses. (page 214)
in order to have a certain attribution, international protocols require at least the repetition of the amplification, which in this case was impossible to perform because of the scarcity of the sample. (page 214)
So what to say about 36B?
Nencini plays a bit with words: the attribution to Kercher is “univocal”, but also “not reassuring”, hence it is not “sure evidence” but nevertheless “not inadmissible”.
Nencini then quotes and criticizes Tagliabracci’s statement at the second trial that multiple amplifications are required for LCN DNA.
Nencini objects that “this position, if undoubtedly correct from a generally scientific point of view, which the Judge has no title to contradict, does not adequately consider the process of formation of evidence in a criminal trial”. (page 216)
I can agree that a courtroom is not a lab, provided that one does not pretend to adorn with the authority and prestige of science what does not follow the prescriptions of science.
So in the end, according to Nencini, trace 36B is an element of circumstantial evidence as good as any others, lacking certainty if taken alone, but able to help the judge to come as close as possible to the ascertainment of the historical truth (nothing less), if used together with the other elements (that is, osmotically).
I will deal in the Appendices with those terms (“historical truth” and “osmotical”).
There follows then the rebuttal of Vecchiotti’s objections to trace 36B, largely based on what already has been considered above. There is however an argument I have to criticize in detail. Nencini says that the defendants experts should have reported in detail the possible causes of contamination during the inspections and the collection of the samples (knife included). Well, until about noon on November 6 there were no defendants and hence no defendants’ experts.
There is then the highly controversial subject of the positive and negative controls (page 220-221): Nencini states that they had been supplied by Stefanoni at the preliminary hearing in front of Micheli on October 4, 2008, then that they were demanded and obtained by Novelli during the second trial, the Galati appeal states on page 69 that they had been also supplied by the prosecution at the hearing on July 30, 2011.
Therefore such controls should be clearly available among the trial documents. Well, I would have much appreciated if the ruling had stated that the Judges of the Florence trial had seen them with their own eyes: it would have reassured everybody and put an end to speculations.
In Nencini’s criticism of Vecchiotti a special place is reserved to trace 36I and to the fact that Vecchiotti failed to analyze it.
The essence of Nencini’s argument is that the RIS experts’ report has shown it could be analyzed and moreover that the technology to analyze it was available in 2011.
Yes, it was available but new (commercialized in 2010) and Vecchiotti took a conservative approach, approved by Hellmann and torn apart by Cassation, by Nencini and by many others.
Personally I always reason as if I were the defendant and in such a case I would prefer that only methods and technology with an ample margin of reliability, also proven in time, were used to analyze evidence.
Others may like to use stuff which would not find its way into an academic paper (like trace 36B) to sentence people to decades in prison, at least until the day when they will face a jury of their peers – that is to say, made of people who reason like them.
The bra clasp (Exhibit 165 B)
The bra clasp too was subjected to a single amplification, but since, according to Stefanoni, the quantity of DNA was “at least” or “about” 1 nanogram (both words are employed on page 238) it is reliable even without double amplification.
On page 241 Nencini states that Stefanoni decided not to try and determine the nature of the substance on the bra clasp because she wanted to focus exclusively on the attempt to extract a genetic profile.
Such a motive could be accepted with a low level trace like 36B, but it seems rather “stretched” for a trace with a much more abundant quantity of DNA, unless one admits that it was considered to be potentially low level for some of the contributors in a mixture (although before the amplification it was not known it was a mixture).
But Nencini hasn’t many doubts about the nature of the trace:
considering the absence of evidence of it being blood and considering the position where the DNA was sampled (a clasp opening and closing a bra) the circumstance that it may be made of skin cells is much more than a probability. (page 241-242).
On the other hand he concedes that on the clasp there is the presence of other contributors besides Kercher and Sollecito, but immediately after he reaffirms that such a finding does not invalidate the result obtained by the Scientific Police, namely the presence of Sollecito’s DNA on the clasp.
But the real matter important to the trial is not constituted by the presence of more [other] contributors in the mixed DNA trace extracted from the bra clasp donned by Meredith Kercher the evening she was killed, but by the presence of Raffaele Sollecito’s DNA. And Indeed Meredith Kercher (…) was a very ordinary girl, who had recently begun a romantic affair with one of the boys living downstairs (…) This can hence make believable that on the bra clasp a trace could have been also left by the girl’s boyfriend; as it is reasonable to believe that some DNA could have been deposited by some female friend [amica] of the girl who touched the clasp. (page 243)
Here we have a technical problem: Vecchiotti (deemed reliable by Nencini on this point on page 242) stated that there were at least three or four contributors besides Sollecito to the Y-haplotype profile and women cannot contribute to that profile, lacking the Y chromosome.
Hence Nencini fails to explain the presence of at least two more male contributors besides Sollecito and eventually Silenzi (Kercher’s boyfriend) and the presence of those other contributors is generally considered the best proof that the bra clasp was contaminated during the 46 days it was left on the floor at the cottage.
Nencini also takes the time to rebuke Tagliabracci for having said that Stefanoni applied a suspect-centered approach to the analysis of the profiles: besides being almost an offense to Stefanoni’s role as a public officer, it is practically unavoidable in a criminal trial where there are suspects.
So be it, but in a sense the whole investigation, from the forensic point of view, was certainly at least “limited to suspects”: DNA reference profiles were taken only from the suspects and the victim and reference footprints from the suspects alone.
Isn’t it customary to take reference profiles from all those who usually frequent a crime scene, even just to “exclude them from suspects”?
Maybe I watched too many CSI episodes.
Nencini, qualifying it as “objectively fragile”, gets rid of Tagliabracci’s observation that for what concerns the secondary contributors (i.e. Kercher excluded) the DNA quantity on the bra clasp could be qualified as low copy number, hence needing a double amplification not made by Stefanoni.
Indeed if one accepts the 1 to 8 ratio quoted by Nencini (page 248) and the 1 nanogram quoted by Stefanoni (albeit with some approximation), one gets that the other contributors (summed together) contributed one ninth of a nanogram, or 111 picograms, of DNA to the trace. Even if Sollecito appears to be the major contributor among the “others”, it is reasonable to assume that his contribution was of no more than 100 picograms, and in 2007 that quantity was usually considered LCN.
In conclusion Nencini rules that
it can be defined as judicially ascertained that Raffaele Sollecito’s DNA was present on the exhibit; the exhibit was therefore handled by the defendant on the evening of the murder.
The second part of the sentence can derive from the first only if one accepts Nencini’s way of dealing with the problem of contamination concerning the bra clasp.
7 – Shoe prints and footprints
The analysis of shoe prints and footprints, essentially based on the experts’ report written by Boemia and Rinaldi, consultants for the prosecution, during the first trial, begins by stating that the footprints detected by luminol were made in blood because of the reasoning previously expounded and that we have already examined.
Nencini admits without problems that the Nike footprint found in Kercher room belongs to Guede and not to Sollecito as it was initially thought.
Summarizing, Boemia and Rinaldi found:
– exhibits F and H (living room) and 2 and 3 (corridor): left shoe prints belonging to Guede;
– exhibits 5/A, 5/11, 5/C (Kercher room): Guede’s left shoe prints;
– photo 104 (pillow found under the victim): Guede’s right shoe print;
– photo 105 (pillow): unknown female shoe size 36-38;
– exhibit 1 (Knox room): footprint;
– exhibit 2 (corridor, oriented towards the exit): two footprints (indeed just one, as rectified on page 261);
– exhibit 6 (corridor, oriented towards the exit): shoe print not useful for comparisons;
– exhibit 7 (just outside Kercher room, oriented towards the room): footprint.
To the prints above must obviously be added the notorious bathmat print.
Nencini’s examination begins with the latter and after a very long exposition of Boemia and Rinaldi’s conclusions and of Vinci’s objections he comes to the unsurprising conclusion that it belongs to Sollecito (with the caveat, expressed by Boemia and Rinaldi themselves that such a footprint could allow a probable but not certain identification for lack of individualizing papillary crests).
Better yet, he comes to the conclusion that the bathmat print is Sollecito’s and not Guede’s, while the second grade trial had come to the opposite conclusion and the first grade one to the same. So we have differing opinions, albeit numerically favoring the identification of Sollecito, based on a visual examination, with the help of a grid maybe, but essentially a visual inspection with measures taken on black and white spots.
The same goes with public opinion: pro innocence people say it is not Sollecito’s and often they also say it is Guede’s, while pro guilt people say it belongs to Sollecito.
Honestly it sounds a bit like a Rorshach test.
But there is a somehow troubling statement by Nencini: “
In conclusion, having to be excluded, because of size, that the bathmat print may be referred to Amanda Marie Knox, and being incompatible with Raffaele Sollecito and Rudi Hermann Guede, according to the arguments of Prof. Vinci’s expert’s report, one should attribute the print to a fourth person, remaining unknown and evidently an accomplice of Rudi Hermann Guede, a circumstance incoherent and eccentric with respect to the whole spectrum of the data collected in the trial. (page 259)
Well, of course, if anything pointing to people different from Knox and Sollecito is by definition “eccentric and not coherent” with the rest of the trial data, it is mathematically certain that no evidence pointing to others will ever be found.
But if it is too frightening to admit that there were “others” who were not the defendants, one should at least admit that the bathmat print does not allow identifying anyone with reasonable confidence and hence must be excluded as evidence.
About the shoeprint in photo 105 Nencini finally concedes that “it cannot be excluded” that it was produced by Guede’s shoe on a soft and curved surface (the pillow) and not by a shoe of a size compatible with Knox.
The luminol-detected footprints
Boemia and Rinaldi attribute exhibits 1 and 7 to Knox and exhibit 2 to Sollecito. Exhibit 6 is deemed not useful for comparison for lack of metric reference (evidently it was not measured).
Nencini deals almost only with exhibit 2 and once again he says something perplexing: “in this case too the perception of the images shows an absolute morphological similarity of the two prints once rescaled to the same size, hence this Judge cannot agree with the party [defense] consultant [Vinci], also in light of the sizable dissimilarity between traces made by a foot resting on a flat rigid surface and in static conditions and those made in dynamic conditions [i.e. in movement]”.(page 263).
Since all the reference footprints used for the comparisons made during the proceedings of the Kercher case were taken with “a foot resting on a flat rigid surface and in static conditions” one should start to wonder if most or even all of these exhausting analyses aren’t perhaps useless.
There is also a brief reference to exhibit 7, only to say that it was attributed by Boemia and Rinaldi to Knox “without being substantially challenged”. (page 263)
Perhaps Nencini has not a perfect knowledge of the trial records:
At the hearing of July 6, 2009, Professor Torre, consultant for Knox, showed that, in terms of morphology, Knox’s right foot has the second toe longer that the big toe, the opposite of [what was seen in] the footprints detected by luminol. Regardless of this, even to this Court it seems clear, from a comparison of the images of the Rinaldi – Boemia Report itself, that the position of all the toes is different. (Hellmann page 110)
In the closing remarks of this chapter Nencini reiterates that the murder was perpetrated by multiple attackers, a woman being among them and that they “remained for a long time, after the murder, in the house, with the evident aim of erasing the traces of their presence. An operation which was only partially possible”. (page 263)
And a very strange one indeed: hours and hours spent trying to clean everything except the murder room, which was impossible to clean (page 85) but where the perpetrators should have been afraid of having left the most traces. So why bother cleaning the rest?
8 – The attempt to corrupt evidence during the second grade trial. The statements of witnesses Aviello and Alessi
Nothing really important here: Aviello and Alessi are totally unreliable but there is no proof (except perhaps a bit of innuendo) they were lying in conspiracy with the defense.
9 – Guede’s statements
Nencini considers of “undeniable interest to the trial” (page 298) the statements made by Guede in front of the Court of Appeals of Perugia and states that in that context Guede placed Sollecito and Knox at the crime scene.
Yes, he did, but how?
…DEFENSE ATTY. DALLA VEDOVA – And so, Mr. Guede, when you write the text that it was “a horrible murder of the wonderful marvelous girl that was Meredith by Raffaele Sollecito and Amanda Knox” what do you mean exactly? Had you ever said this?
WITNESS – Well this, I never said it explicitly in this manner however I always thought it.
DEFENSE ATTY. DALLA VEDOVA – So why did you write it?
WITNESS – I wrote it because it was a thought that I’ve always had.
DEFENSE ATTY. DALLA VEDOVA – But then it’s not true.
WITNESS – No it is absolutely true.
DEFENSE ATTY. DALLA VEDOVA – And can you elaborate better? What does that mean?
WITNESS – It’s absolutely true.
DIFENSE AVV. DALLA VEDOVA – Do you confirm this fact? By ?
WITNESS – Well, I with the … well, like I told you earlier, this is a thought that I’ve always had in my head (…) (page 296)
So in June 2011, more than three and a half years after the murder, Guede had the thought that Knox and Sollecito killed Kercher.
Someone has a dream and someone has a thought.
Nencini then quotes many of Guede’s previous statements over the years and summarizes his conclusions by saying that Guede has always stated he was at the crime scene at the time of the crime, that he has always said that the authors of the murder were a man and a woman (probably just by chance a man and a woman had been previously arrested) and that finally he identified Knox (but not Sollecito) at the end of March 2008.
Since Guede’s statements will return in the next chapter, dealing with the all important conclusive evaluation, I have to say that I too had a thought and I’m going to expand a bit on it.
Throughout the years the discussion concerning the various statements made by Rudi Guede has been centered on how belatedly he decided to name his alleged accomplices and on how he went from saying “Amanda is not involved” (“Amanda non c’entra”) in his Skype conversation with his friend Giacomo Benedetti to identifying her (almost five months later) with the person he says he saw outside the cottage the night of the murder. And then there is the above mentioned statement of June 2011.
But there is something else that went largely unnoticed in all those discussions.
Guede has always stated, and always maintained, that he was let in that apartment by Meredith Kercher, not by Knox and/or Sollecito.
Now, looking back at the first statements Guede made after his arrest, to both the German and Italian authorities, one has to consider that they were made at a time when all the alleged perpetrators were in custody and when the investigators had made public what was the main evidence against them.
The double DNA knife had hit the news a few days before Guede’s arrest and Sollecito was apparently nailed by his footprints at the crime scene (later acknowledged to belong to Guede, but this does not matter now).
Hence when Guede made his first statements he knew that the police apparently had evidence against all of them.
Now, if things really went as the prosecution and two courts think they went, why didn’t Guede simply admit that he had been let in by Knox and Sollecito?
It could not be because he was somehow trying to “protect” them lest they accuse him: after all his main fear, as highlighted by all the rulings dealing with him, up to Cassation, was that “he alone could take all the responsibility” (“ho avuto paura che avrebbero dato la colpa soltanto a me”), so, having admitted his presence at the cottage at the time of the murder, not explicitly naming the others was certainly not a good way to “share” the responsibility.
Indeed not naming them and speaking only of unknown strangers and unidentified shadows should have appeared to him as a good way to worsen his situation by NOT sharing responsibilities with identifiable suspects.
Why, if things really went the way the prosecution and the convicting rulings say they went, didn’t Rudi Guede simply state what had indeed happened: that he had met Knox and Sollecito and had gone to the cottage with them, or that they had let him at a later moment?
He could have then added his usual story about a consensual approach with Meredith, about the urge to go to the bathroom, about hearing some commotion while he was sitting on the toilet, about going back to find Meredith Kercher already dying, etc.
He would have admitted nothing evil on his part, he would have presented himself as totally innocent, and he could have maintained that he had not directly seen Knox and Sollecito killing Kercher, but surely he would have told a story placing all the suspects at the crime scene, a story that, given the evidence the investigators were parading around, would have made him more believable.
But he never said that and he never changed that part of his story.
Might it be because things did not go that way?
Just as a footnote, on page 305 Guede is reported saying that he
denied instead having seen any bus departing for the discos at Piazza Grimana, or tramps staying on some bench” on the evening of the murder.
10 – Conclusive evaluations
Nencini begins this crucial chapter with the usual premise (mandated by the penal procedural code) that the verdict has been reached beyond any reasonable doubt and that no alternative explanation of the facts is possible.
Then he begins his reconstruction of the events and this time he is forced to give a timeline.
And he gets into trouble.
Meredith Kercher arrives at the cottage at 9 pm on November 1 and Guede hasn’t already broken in through Romanelli’s window. At that time Knox is at Sollecito’s with him, presumably watching “Amelie”. The young couple knew only after 8 pm that they had been set free of their previous appointments (with Lumumba and Popovic) and that they had the evening to themselves.
The last certain element proving their presence at Sollecito’s is a human interaction on Sollecito’s computer at about 9:20 pm (indeed 9:26), then no further evidence of their presence there until a human interaction on said computer at 5:30 am on November 2.
Witness Curatolo placed them at Piazza Grimana from 9:30/10 pm that evening, where he reported having noticed them multiple times until about 11/11:30 pm on the same evening; a circumstance deemed reliable by the Court for the reasons expressed above. (page 311)
So at 9:30/10 pm on November 1 the two defendants were standing close to the cottage where the victim had already come back at 9 pm.
We know with certainty that Guede was inside the cottage that evening because evidence tells us so and on this I agree with the ruling. What I agree less with is that
we know as well with certainty that Rudi Hermann Guede was able to stay inside the cottage in absolute tranquility for a sizable period of time, since he left his ‘traces’ in the big bathroom of the apartment. (page 312-313)
It all depends on what one defines as a “sizable period of time”, because a “session on the toilet” does not usually require more than ten minutes or so, hence being compatible with the timeline of the single attacker theory, while Nencini here implies (and later affirms) that Guede was inside the house for hours.
The fact that Sollecito did not know Guede is immaterial, since Knox, who had met Guede “multiple times” and was Sollecito’s girlfriend (of one week), was the connection between them.
Such a faint connection could lead to a drink maybe, to a murder seems much less likely.
Nencini admits that Guede could have entered the house along with Knox and Sollecito or that alternatively Kercher could have opened the door to him (hence acknowledging that as a not absolutely impossible event in general) but he thinks it is not particularly important to determine how Guede exactly got into the house (of course he reiterates he did not get in through Romanelli’s window).
What counts is that at a certain time, reasonably between 9:30 pm and 10 pm on the evening of November 2007, both the defendants and Rudi Hermann Guede were surely inside the cottage, where [also] was, inside her room, Meredith Kercher. (page 313)
Later on he will also state that
inside the cottage, at a certain time after 10 pm, a situation could have ensued in which Amanda Marie Knox and Raffaele Sollecito had gathered in intimacy, also using drugs, Meredith Kercher was in her room and Rudi Hermann Guede was using the apartment like he wanted. (page 318)
The Prosecutor General [Crini] in his closing arguments hypothesized, talking about the motive of the murder, that it cannot be found in an attack of sexual nature, but that it had its roots in a situation of conflict between the two girls which would have suddenly exploded on the evening of November 1, 2007; and specifically due to the fact that Meredith Kercher would have blamed Amanda Marie Knox for having let in the house Rudi Hermann Guede, who had ‘improperly’ used the bathroom. (the notorious “turd theory”, page 313)
After having exposed a theory that probably left him, and many others, perplexed, Nencini feels the need to say that in a context like the one of this case it cannot be easy to identify a motive, that we can “give an indication” (page 314), but that ultimately we cannot reconstruct the motive with certainty and that however a motive is not very important when the guilt of the defendant can be derived
in a univocal manner from the elements of fact of circumstantial [indiziario] and evidentiary [probatorio] nature emerging from the documents. (page 314)
If you know with certainty who did what and how, then it is rather unimportant why. Correct, IF you really can be certain about whom and how.
In any case Nencini tries his luck with a possible motive:
Amanda Marie Knox and Meredith Kercher did not have a good relationship. Meredith Kercher, who conducted a very regulated lifestyle of study and spending time with her fellow British friends, and who had begun an intimate relationship with one of the young men who lived downstairs, did not tolerate the way in which Amanda Marie Knox interpreted cohabitation of the same apartment. In particular it has arisen from testimonies that the British girl did not tolerate the fact that Amanda Marie Knox brought strange persons to the apartment and didn’t take part in the cleaning, such that in the last period of their cohabitation, it was necessary for the young women to construct a kind of schedule system for the performing of domestic chores. (page 314)
Even taking those testimonies at face value and giving to the reported words of Meredith Kercher a tone and a meaning it is doubtful they originally had, all that can be deduced is that Kercher had grudges with Knox, not the other way around.
There isn’t a single testimony saying that Kercher had reported bad words or hostility of whatever kind coming from Knox, nor did anyone testify that Knox had complained about Kercher.
So, if we really have to take those testimonies into consideration, we have weak circumstantial evidence useful in case Knox were the victim and Kercher the defendant.
About the housecleaning the two most annoyed housemates were the Italian ones, and particularly Laura Mezzetti, not certainly Kercher. And this is in the records.
Moreover, looking at facts and not at words, Kercher went with Knox to listen to a classic music concert on October 25, the concert where Knox and Sollecito met.
Since surely Kercher freely chose to go to the concert with Knox, their relationship could not be all that bad, not even from Kercher’s point of view.
After October 25 and up to the day of the murder, Knox spent more time at Sollecito’s and with Sollecito than she spent at the cottage with Kercher, so it is difficult to see how the relationship could have deteriorated during those days.
Nencini however has an important support to his thesis in the statements of Rudi Hermann Guede (none other) and specifically about the discovery by Kercher of missing money in her room and Kercher blaming Knox for that.
In the course of the interrogations made following his arrest, Guede claimed that Meredith Kercher, the night she was murdered, had discovered money was missing from her bedroom, and she immediately blamed the theft on Amanda Marie Knox. Regardless of whether or not the victim’s blame of the American girl was justified, what interests the Court is to observe that in this circumstance referred by Guede, the fact is that, in the face of an event of objective severity, that of the theft of money within an apartment shared by multiple girls, a situation of unavoidable promiscuity, the British girl immediately attributed the action to Amanda Marie Knox; a circumstance that is compatible only with a negative evaluation of the personality of the defendant on part of the victim. (page 315)
Nencini goes as far as saying that “the fact that Guede insistently reports the circumstance in all of his interrogations, together with the remark that there is evidence that indeed a sum of 300 euro [for the record: Guede never quoted the exact sum] had been stashed by the victim for the payment of the rent, makes the tale of the Ivorian objectively believable”. (page 317)
Besides the fact that the only witness of such an alleged event is Guede, who is not exactly an independent and uninterested witness, nor a notoriously reliable one, even taking him at face value (and it requires a certain effort) this would be further evidence that perhaps Kercher had an issue with Knox, not the other way around, nor that Knox reciprocated.
Nencini also states that the theme of money was recalled in the ruling that convicted Guede: indeed it was, but with which words?
Regarding the argument concerning the missing money, reported by the defendant from the outset, to support the hypothesis of the theft followed by murder, in addition to what has already been said regarding its improbability, it’s enough to add that the murder of Meredith seems to be entirely out of proportion with the discovery and dispute about the missing money, first because Amanda could easily have directed suspicion toward the other flatmates, secondly because Meredith, though often critical of her laid-back behaviour, was a friend of Amanda, they socialized together often, they had friends in common and there was no reason that, facing such accusations, or rather such suspicion, she would have, together with her accomplice, restrained her friend and abused her body, that is easily visible in the colour photographs produced by the General Prosecutor; abuses that seem better explained by a moment of madness and out-of-control sexual impulses. (Borsini-Belardi page 55)
Then comes what could be for Nencini a serious procedural incident, even perhaps a reason to quash the verdict on legitimacy reasons.
Nencini states that testimonial evidence proves that on the evening of November 1 Kercher had a sum of 300 euro in her room, money destined to pay the rent and which was not found, as well as her credit card, after the crime.
As openly admitted in the ruling, Knox and Sollecito were acquitted during the first trial for the theft of money and credit cards. That judgment has become definitive, and hence judicial truth, because no one appealed against that part of the verdict in 45 days after the publication of the Massei Report.
But Massei did not simply rule that Knox and Sollecito had not stolen the money and the credit cards (he would have acquitted them “per non aver commesso il fatto”): he acquitted them with the formula “because the fact does not exist” (“perché il fatto non sussiste” Massei page 417ITA).
Such a formula implies that for Italian justice, with the authority of a definitive judgment and moreover not a judgment from another trial, but a judgment given in the proceeding concerning Knox and Sollecito, that theft never happened.
Hence Meredith Kercher could not have been upset with Knox for something which never took place to begin with, and that such a thing never happened has been definitively established in the context of the same proceeding Nencini is ruling about.
This is really stuff for the Court of Cassation.
However, back to the motive: the alleged missing money and the all too real turd could have been
a valid reason, for Meredith Kercher, who did not have the defendant in sympathy, to ask the latter for explanations in a very pressing manner. (page 317)
It is hence reasonable to reckon that at a certain point in the interior of the cottage a discussion lit up, originated by the precise blame the British girl thought she had to put on those present. It is also reasonable to reckon that the reaction of the defendants and of Rudi Hermann Guede had not been obliging. (page 318)
“Reasonable” on what basis?
As we have seen there is no trial evidence Knox had any grudge or uneasy relationship with Kercher (if we take seriously or rather beyond their effective scope some testimonies, it was indeed Kercher who could have attacked Knox, not the other way around).
Even if Kercher had confronted her in a rather rude manner, there is no trial evidence at all that can let us imagine Knox or Sollecito would have had any reason to react with violence, especially that level of violence.
One cannot really imagine what Guede could have done if verbally attacked, however Knox knew Kercher (very) much better than Guede and had no grudges or resentments against her (again, no evidence at all to the contrary) and would have not allowed him to attack her (much less would she have teamed up with him against Kercher). Sollecito’s presence and relationship with Knox would have acted as a further deterrent to Guede.
In conclusion nothing would have happened, except perhaps the three leaving the house for their own homes, leaving behind Kercher alone to boil down her anger.
This is “reasonable”, not Nencini’s speculations. Speculations like hinting to the alleged (and totally unproven, as admitted in the ruling) use of drugs at the cottage that evening as a possible cause of a violent reaction (a.k.a Reefer Madness).
Anyway, speculating for the sake of speculation, let us follow Nenini’s reconstruction of the attack on Meredith Kercher: Guede blocked her left hand and also penetrated her digitally, Sollecito caused the minor stab wounds with a small knife he was used to carry with him (and which was never found) and also touched the bra clasp to lift it from Kercher’s back and introduce the blade of his knife and cut the bra. Knox, instead caused the mortal wound to the neck with the notorious knife seized at Sollecito’s
Nencini deems necessary to expand a bit on this knife and we find it useful too.
First there are a couple of blunders: one (the blade and not the whole knife being 31 cm long) is just a typo, but the other, namely that in the “almost undetectable streaks” on the blade the mixed DNA of Kercher and Sollecito was found, could denote an incomplete grasp of trial evidence.
Indeed there is also a third blunder: Nencini states that “both traces attributed to Amanda Marie Knox were found on the knife’s handle, in the terminal part close to the blade”. (page 321)
Indeed trace 36A was on the handle, but the “new” one, 36I, the one examined in the RIS experts’ report, was on the blade close to the handle.
Again, perhaps Nencini does not have full familiarity with the documents.
However the rest of Nencini’s analysis of the knife as the murder weapon is very interesting and must also be connected to what was said before when dealing with DNA evidence, particularly for what concerns trace 36B.
Nencini deems that the 18 cm blade of the knife is not incompatible with the 8 cm long wound, since it is not automatic that the knife had to be inserted to the hilt. Specifically Nencini says
nor is an indication of this way of acting [inserting the knife to the hilt] the bruise present along one of the borders of the wound, since attributing such a bruise to the impact of the handle of the knife on the surface of the neck is a statement deprived of certainty. (page 322)
Look at it: “a statement deprived of certainty”, which means we cannot be sure about it, but nevertheless that the statement, far from being unsubstantiated, contains elements of truth, we just cannot be sure it definitively proves something.
Hence, like trace 36B in Nencini’s own words, it may be “not reassuring” but it is nevertheless an element of circumstantial evidence (“un indizio” more appropriately) the Court should deal with when ruling about the knife. Specifically it is an element at least as reliable as 36B and it is of opposite sign to 36B, hence it cancels it out.
Or so it should be in a correct reasoning.
Nencini also objects to the hypothesis, necessary to justify the width and the mangled aspect of the wound, that a smaller knife would have caused such a wound by reiteration of the strike.
Nencini’s objection is based on the “very simple” reason that the violent loss of blood caused by an 8 cm long wound in that area would have completely hidden the point of entry of the blade, thus making it impossible to reinsert it in the same “canal” in the flesh.
This thesis is more simplistic than simple: there is no reason to fully extract the blade and again reinsert it for the full length. With a small knife it would be very easy to just partially extract the blade with a fast movement of the wrist and then swiftly reinsert it with the same movement of the wrist but in opposite direction. Indeed for a single aggressor standing behind the victim this would practically be the only way of acting, since he could not in any case see the entry point of the wound, even without blood loss.
Nencini forgets saying even a word about starch on the blade, and again “forgetting” about evidence in favor of the defendants is worse than dismissing it with a doubtful reasoning, in the eyes of the Court of Cassation.
Nencini concludes that the big knife is not incompatible with the mortal wound and that hence 36B is “fully compatible both with the nature of the weapon and with its use”. (page 323)
Had he correctly considered the relevance of the bruises on the border of the wound and the absolute feasibility of multiple hits on the same path with a short knife, he should have ruled out the big knife as the murder weapon, since 36B is compensated by the bruises and the remaining elements are far too weak to justify the presence of a second, much bigger knife, since the other two wounds are clearly produced by a smaller knife, and a smaller knife left a blody print on the bedsheet.
In any case Nencini, trying to bolster his case by explaining the presence of that knife at the crime scene, introduces at least another problem for his “evidence”, and particularly for trace 36B.
It is, by the way, noteworthy that said trace, which had initially been classified as “not reassuring” but “not inadmissible”, and that is an element to be considered but apparently not much above the threshold of exclusion, has become, by page 321,
“a strong element of circumstantial evidence [indizio] of the circumstance that that weapon is the second weapon used in the murder of Meredith Kercher”.
It sounds a bit like a sleight of hand.
However, to justify the presence of that knife at the cottage on the night of the murder in a totally unpremeditated context, Nencini has to surmise that (like Massei did) it was usually carried by Knox in her “capacious bag” for personal defense or even that, since the cottage and Sollecito’s flat were rather nearby, and Knox regularly shuttled between them, as if she had a double home (incidentally, as already pointed out, this would also make the shower on the morning of November 2 a matter of routine), a knife belonging to one could more or less routinely be found in the other.
Nencini does not delve further with this coming and going of knives (there was ample availability of knives at the cottage, Knox also having a brand new and untouched set of them in her baggage), however, if one accepts it as a matter fact, the whole issue of possible contamination, or, better yet, of the possible origin of trace 36B (assuming it really was Kercher’s DNA) has to be re-examined from an entirely different perspective.
If the alleged murder weapon shuttled routinely back and forth to and from Via della Pergola, the possibility of a secondary transfer between Kercher and the knife through Knox, or even a primary deposit by Kercher touching the knife left in the cottage’s kitchen, dramatically rises in the realm of concrete probabilities.
If Knox’s DNA is on the blade as indicated by trace 36I and since Knox did not kill (nor wound) herself with that knife, it means that she deposited her DNA on the blade by ordinary handling, and Kercher could have done just the same if it was so normal for that knife to be at 7 Via della Pergola.
So, the way the presence of that knife at the cottage is justified by Nencini automatically also makes trace 36B a much less “important element of circumstantial evidence”, indeed it demotes it to more or less the same level of 36I.
Nencini dismisses the objection that the defendants would have gotten rid of the knife after the murder, instead of bringing it back to the cottage, with the good old answer that it was inventoried and that if it had not been found at Sollecito’s its absence could have caused suspicion towards him.
Of course such reasoning was very well present in the mind of Raffaele Sollecito right after he had just participated in a bloody murder and was escaping the house. Of course he remembered there was such an inventory, of course he took it for granted the investigators would have demanded from his landlady whether such an inventory even existed and of course he preferred to run the gauntlet and try and clean the knife rather than face suspicions which could not be substantiated by the physical availability of the knife for examinations.
Really, it must have happened that way.
So Knox and Sollecito preferred to
accurately wash the knife, with a particularly careful cleaning operation, which just by pure chance (the presence of streaks not immediately detectable to the naked eye) did not erase any trace of Meredith Kercher from the knife’s blade. (page 324)
Just a passing thought: if there was such a careful cleaning, it cannot be seriously surmised that trace 36A (Knox’s DNA on the handle) is murder-related.
Finally Nencini portrays the aggression with the three assailants attacking and immobilizing her simultaneously, a first wound with a smaller knife causing Kercher’s scream heard by Capezzali and Dramis (indeed it was Monacchia, but it does not matter at this point) and reported by Knox in her first memorial (whose doubts-filled context Nencini avoids mentioning). Finally the mortal wound was inflicted to prevent the victim from screaming again.
Kercher had to die because her attackers, at a certain point during the aggression, realized that, had she lived, she would have denounced them.
Hence the defendants are guilty as charged. Period.
Wait a moment Judge, there is a “little detail” you forgot.
You have stated that at 10 pm the defendants were at the cottage and on page 146 you stated that “the defendants perpetrated the murder shortly before midnight“, so in your own reconstruction and per your own words they were at the cottage and away from Piazza Grimana from 10 pm to shortly before midnight.
How can this be reconciled with what your reliable and even “precise” witness Antonio “Toto” Curatolo (may he rest in peace) testified?
Curatolo testified he had seen the defendants at Piazza Grimana multiple times between 9:30/10 pm and 11-11:30 pm, or better “before midnight” as per his testimony. In such testimony he also specified having seen them four or five times at intervals, literally the amount of time to smoke a cigarette and have a look around the square.
Yes, Judge, you said that Curatolo’s times must be considered with a certain “tolerance”, but in your reconstruction there is no place at all for his four or five sightings: it is not possible to transform his four or five sightings covering about two hours into just noting their presence at Piazza Grimana some time between 9:30 pm and 10 pm: Curatolo was very “precise” about having seen them for a long period of time.
He may not be precise down to the minute, maybe not even to the half hour, but pretending to transform his tale of an evening-long observation of the couple into a quick passing by of the defendants en route to the cottage is totally unbelievable.
Hence, or Curatolo gives them an alibi, or he is totally unreliable and in both cases more than a reasonable doubt ensues.
11 – The sanctioning treatment
The last chapter deals with the technical details of the determination of the sentence.
Basically the first grade sentence is confirmed but Knox gets six months more for the aggravating circumstance of having slandered Lumumba to protect herself and her accomplices from murder charges.
Moreover she does not get the benefit of “continuity” that she got during the first trial so in the end she passes from 26 to 28 and a half years of prison.
The reason for denying continuity occupies many pages and is highly technical so I will not try to meddle with it.
Rather, I think this could well be the only straightforwardly correct chapter of the ruling.
In my opinion this is a highly imperfect ruling, full of logical contradictions, blunders, dead ends and even factual errors. I have never been an admirer of the Massei Report, indeed I have strongly criticized it in my writings, however, when compared to the Nencini Report, it soars to the level of a half masterpiece.
At least the Massei Report did not try to hide inconsistencies behind the absence of a timeline, discussed practically every defensive argument (which does not mean it was correct about them) and even if it had its good share of inconsistencies and arbitrary assumptions, it showed more internal logical coherence.
I think the Court of Cassation should quash this ruling, and I do not say this just because I believe in Knox and Sollecito’s innocence and so on, but also because I think the last fact finding word about such a long and controversial case cannot be left to such an objectively unsatisfying work.
I cannot believe that honestl-minded people, even if leaning pro-guilt, may really be satisfied with the answers it gives, the way it gives them and the holes it leaves.
What follows are mainly general considerations of principle and do not specifically concern this case alone, albeit they are valid for it too, as they are for any other.
Appendix I – True Justice for Whom, Anyway?
This year marks the centennial of the start of World War One and the anniversary will see a flurry of activity by historians publishing new books on the subject and by publishers reprinting old ones. The subject of the causes of the war and of the responsibility for unleashing it, in particular, is to this day a hotly debated one among professional and amateur historians alike, with multiple schools of thought challenging each other.
This is a subject which has been debated for a century, many millions of pages have been written, based on thousands of official documents and yet it still is an open issue.
Indeed this is how things go in the historian’s job: writing about history is like trying to reconstruct the past from multiple points of view, but knowing that in most, if not all, cases no definitive conclusion will ever be reached, since the job of the historian is that of continuously re-evaluating the past.
Criminal justice tries to do something similar to the historian’s job: reconstruct a past event, usually with less information and much less hindsight than historians have.
But unlike historians, judges have to come to an apparently definitive conclusion and issue a verdict and not in centuries but just in years or even less.
According to the definition commonly given in Italian jurisprudence a trial based on circumstantial evidence (processo indiziario) is a proceeding where the judges try to reconstruct an unknown fact (for instance who killed the victim and how) through known elements (the indizi, or pieces of circumstantial evidence). A processo indiziario, like the one involving Knox and Sollecito, is clearly a very good example of judges trying to do the same job as historians, but with much less time at their disposal and with the pretense of finding, unlike historians, a definitive truth. Moreover, while historians can at best morally condemn, judges can sentence people to jail for years, decades or life. In some countries they can even sentence people to death.
I have a long time fascination with history, I could even fancy myself as an amateur historian (a very amateurish one indeed), while my interest in criminal justice and jurisprudence has been prompted only in recent times by the awareness of the plague represented by wrongful convictions.
But when I started to look at criminal justice bringing with me this well established longtime interest in history, the thing that puzzled me the most was how judges could pretend to reach definitive conclusions in situations where historians would debate for decades or even centuries without reaching one.
Of course I understand that society and individuals need, as a matter of practice even more than of principle, to have verdicts issued in reasonable time and to have convictions or acquittals rather than undefined positions.
Nevertheless this can be, at best, justice by approximation, that is a justice which sometimes does the right thing and sometimes doesn’t and which, moreover, knows that it can commit mistakes and allows for them.
Not by chance in Italy it is by now rather customary, when discussing events the judiciary has ruled upon, to differentiate between a judicial truth (i.e. the truth as reconstructed by the judicial proceedings) and a historical truth (i.e. things as they really went).
Implicit in this distinction is the admission that these two truths may, and indeed at times do, differ.
The Kercher case was my first real contact “in detail” with criminal proceedings and judicial truth: before delving into it I had a rather naive and at the same time optimistic vision of court justice: not knowing how it worked I thought it worked fairly well.
By reading the motivation reports and most of the other documents publicly available I gained an insider’s view into the inner workings of our justice system and the look wasn’t tantalizing. I went on reading more motivation reports and court reports from other contemporary cases and things did not improve at all.
A few years ago I would not have believed possible that cleaning schedules or alleged five euro fines could be seriously presented in an Italian courtroom as root reasons for a murder, nor would I have believed that G-strings and cartwheels would have received even the faintest consideration by an Italian judge, nor that double-hearsay witnesses would have been allowed in court (this happened in another trial, but always in Italy).
In that age of innocence (and blindness) I would have thought impossible that people could be convicted on a string of “probablies” or that what supposedly should be established “beyond any reasonable doubt” (as per article 530 of the penal procedural code) is indeed a hotchpotch of suppositions and misstatements of evidence (each of them the least-possibly favorable to the defendant), glued together by the always faint and nevertheless vicious dark lady of justice, namely circumstantial evidence.
While theoretically perhaps a useful tool, circumstantial evidence has today the consistency of a dream in some trials (Scazzi/Misseri) or that of witnesses messing up the days and nights in others (guess which), when it isn’t simply made of just gossip, ill placed pruderies and arbitrary evaluation of behaviors.
All of them, of course, always considered in the most detrimental way for the defendant: a blatant denial of the ancient principle of favor rei. It is useless to claim the heritage of Roman Law when its long established principles are totally neglected.
I’ve been educated to an extreme coherence of thought since my early school days (probably it is also a matter of character), hence when I see a problem and I want to solve it, I am ready to go to the extreme to do that.
Since for me the problem is represented by wrongful convictions and since I am a firm believer in the principle “better ten guilty people free than a single innocent person in jail”, if it were up to me I would simply ban circumstantial evidence from criminal justice, so that justice could not be made by approximation anymore.
Now, since I realize that such an extreme position will not find many supporters, not even among those who are keenly aware of the problem represented by wrongful conviction, my more realistic stance is that more checks and limits must be imposed on the evaluation of circumstantial evidence in trials.
More specifically, single elements of circumstantial evidence should individually pass a strict test concerning their consistency and lack of ambiguity before being allowed to be connected to each other and only those elements passing such a test should be allowed to be put together with others to prove a case. And again, even when the “surviving” elements are put together to build a reconstruction of the events, that reconstruction must pass a test as being the only possible reconstruction if it involves guilt.
This “threshold test” would be aimed tat preventing exactly the kind of “osmotic” evaluation of evidence we have seen in this specific proceeding (moreover fostered by the Court of Cassation), namely a pile-up of dubious elements, none of them certain in their existence itself, all of them subject to not univocal interpretations.
While the Court of Cassation was ready to quote in its ruling the ancient Latin saying “quae singula non probant, simul unita probant” (“what single elements taken separately do not prove, is proven by the same elements taken all together”) to justify their “osmotic” principle, the risk, as shown by many trials, not just this one, that this concept, in itself correct, may become in practice a cover for rulings based on the simple sum of a quantity of elements without any consideration for the real meaning, or even the real existence, of each of them, makes a “threshold test” approach preferable if we want justice to be also Justice and judicial truth to coincide with historical truth.
A corollary of what is expressed above is that when guilt cannot be proven to a level very close to certainty, it is better to admit that truth cannot be arrived at and to acquit, even with a “not enough evidence” formula, rather than to convict on the basis of a “there are so many elements that they cannot all be wrong” reasoning.
These concepts are already present, at least in part, in most criminal codes and certainly in Italian law: the problem is that they, more often than not, remain “lettera morta” (“dead letter” i.e. they remain on paper, in theory and not in practice).
We should all wish that in our societies every measure be taken so that only guilty parties are convicted, but often individual and collective fears and slogans like “being tough on crime” prevail over what ultimately should be (and conceptually is) real and true Justice.
Another unfortunate reality is that police, prosecutors and judges usually deal with guilty people (and that’s a good thing: it would be much worse if they had to deal mainly with innocent people) and hence, by a sheer intuitive probability calculation or by habit, they tend to think that those who are in front of them are always, more probably than not, guilty.
This is a consequence of all too human shortcomings, but unfortunately it is also a complete reversal of all the fundamental principles of law, namely that there is a presumption of innocence, that innocence must be proven beyond any reasonable doubt and that the burden of proof is on the prosecution.
The conclusion is that those who accept having justice served by a system working with all the aforementioned shortcomings are not searching for True Justice, but just a bureaucratic semblance of it.
Appendix II – Guelphs and Ghibellines
Italy throughout its history has often been a battlefield both real and metaphoric for opposing factions: Fascists and Antifascists or Communists and Anticommunists in more recent times, supporters and opponents of France, Spain, Austria a few centuries before and then in the Middle Age the most famous ones, Guelphs and Ghibellines, the ones still used today in Italy to symbolize a clash of factions.
Even Dante participated in their fights and there is ample trace of them in his works, including of course the most famous one: the Divine Comedy.
Back to our times and our case, I was reading a motivation report concerning another notorious Italian case (Parolisi/Rea) and I found in it a quotation of the Cassation ruling concerning Knox and Sollecito, with particular reference to the principle of “osmotic” evaluation of evidence (albeit defined in this case with the word “synergic”) and immediately after that a self-explaining sentence: “Such principles will be implemented in this context” (Court of Assizes of Appeal of L’Aquila, 09/30/2013 Catelli-Servino page 66).
In the page before that sentence (page 65) the authors of this ruling also wrote:
“For what concerns the alleged violation of Article 533 c.p.p. for having the defendant been considered penally responsible not “beyond any reasonable doubt”, the jurisprudence of the Supreme Court [Cassation] has constantly affirmed that, with such formulation, introduced in the renewed text of article 533 c.p.p., a new and more rigorous standard for the evaluation of evidence has not been introduced, with respect to the one previously provided for by the code, but it has been reaffirmed the principle, immanent in our constitutional and ordinary laws, according to which a conviction is possible only when there is the trial certainty of the responsibility of the defendant.”
They then quote three Cassation rulings, two dated 2006 and one dated 2008.
Let us now make a comparison with what Hellmann and Zanetti wrote on this subject in their report:
“The term “probable” occurs a number of times even in the Public Minister’s closing argument, where this Court is expressly warned not to give too much weight to the expression “beyond all reasonable doubt”, insofar as this is supposedly — as the Public Minister argues — only a pleonastic [re]affirmation of principle, in which the legislator had simply recognized concepts already elaborated by jurisprudence, without therefore requiring any quid pluris [Latin: “something more”] with respect to previous law in order to arrive at a conviction.
The Public Minister’s argument can be accepted only in part. It is indeed true that, even before the legal affirmation of the principle in question, conviction could be declared only when the evidence against [the defendant] was such as to overcome the presumption of innocence, which informs all of [the relevant] law (Article 27, 2nd paragraph of the Constitution, but for example also the last part of C.P.P. Article 527, 3rd paragraph), so that, even in the presence of evidence against the defendant [that was, however,] not wholly sufficient, or contradictory, the verdict had to be one of acquittal. But to assert that the reformulation of C.P.P. Article 533 via the insertion of the principle in question, effected by Article 5 of the law of February 20, 2006, no. 46, was an operation of “mere aesthetic surgery”, so to speak, seems to debase the profound significance of this principle, which, instead, the legislator wished to reaffirm.
Moreover, examination of the legislative history [lavori parlamentari] leading to the adoption of the law of February 20, 2006, no. 46 reveals that this is a principle of legal culture widely accepted not only by (obviously) those who voted in favor of the law, but also by those who displayed their opposition, since they did not oppose it due to disagreement with the substance of the principle, but only due to opinions about legal methodology [valutazioni di tecnica normativa], believing that coordination problems between the new text of C.P.P. Article 533 and [the existing] C.P.P. Article 530 could arise.
The condition required by this law to arrive at a verdict of guilty does not, therefore, allow one to formulate a belief in terms of probability: that is, to issue a guilty verdict, it is not sufficient for the probability of the prosecution hypothesis to be greater than that of the defense hypothesis, even when the former is significantly larger; but [rather] it is necessary that every explanation other than the prosecution hypothesis not be plausible at all, according to a criterion of reasonability. In any other case, acquittal of the defendant is required.” (Hellmann pages 138-139)
Hellmann and Zanetti then quote three Cassation rulings, two dated 2009 and one dated 2010 to support their assertions.
Now in his motivation report Judge Nencini quotes (page 309) a 2012 ruling by the Court of Cassation again going in the sense that the modification of article 533 has not entailed a more rigorous standard for the evaluation of evidence.
The least that can be said is that the Court of Cassation has not constantly affirmed anything, but rather that it has stated different, perhaps even contradicting things in different times.
These conflicting interpretations concerning a relatively new concept in Italy (the “beyond any reasonable doubt” formula was introduced in the Italian penal procedural code only in 2006) may perhaps point to some quarrel or confrontation between factions (or “parties”?) inside the Italian judiciary, one asserting an interpretation of the law more favorable to the defendant and the other opposing it.
In this case the battlefield for the conflicting factions would not be Italy itself but rather the most well-known and media-covered cases brought to trial in Italy.
Appendix III – What is “osmotic”?
It has become a buzzword since its introduction in the Cassation ruling quashing the acquittal of Knox and Sollecito: the “osmotic” evaluation of evidence advocated by the Italian Supreme Court is a perfect example of how a principle, in itself correct, can be dangerously misapplied in practice.
Taken at face value, the “osmotic” evaluation of evidence should only mean that elements of evidence must be globally evaluated, to see if taken all together those elements can allow reaching conclusions that they would not allow if taken individually.
In itself this sounds safe and moreover correct, but how is it implemented in practice?
What really happens in rulings like Massei’s, Nencini’s and others concerning other cases is that many alleged evidentiary elements, each of them not just not conclusive in itself (as elements of circumstantial evidence they could not be such by definition) but is even more supposed than real and whose existence in itself is dubious are summed up to create a scenario supporting guilt and that scenario is then ruled to be the judicial truth “beyond any reasonable doubt”.
For instance, in this case, a scenario involving the guilt of Knox and Sollecito can be construed if:
– Curatolo has really seen them and not somebody else, moreover on another day;
– Quintavalle is right and his employee Chiriboga wrong and if his memories really needed more than a year to acquire certainty;
– the famous luminol reacting footprints really belong to Knox, even if the only detailed one presents morphological characters incompatible with Knox’s right foot, AND they have really been made in blood, which requires multiple failures of the TMB test;
– there has been some kind of selective clean-up of the crime scene leaving only Guede’s traces even if later Knox tried to protect Guede (i.e. the one she had left damning evidence against at the crime scene) by accusing Lumumba OR the cleaning WAS NOT selective but the murder room was left untouched, making rather useless a cleanup outside of it and moreover in such a case why the “bloody” footprints were found only outside the murder room and not also inside, since the source of the blood was clearly there?
– the alleged DNA on the knife blade does really exist and really belongs to the victim, even if the same machines that should have detected them failed to find DNA in a drop of blood visible to the naked eye found on the window in Romanelli’s room (Exhibit 199), a drop resulting in a positive TMB test while the knife was negative and certainly not showing visible blood;
– every luminol hit is made by blood, but then what about Exhibits 93 and 95, both of them luminol hits at Sollecito’s flat (one in the bathroom and one in the bedroom) showing a mixed DNA profile of Knox and Sollecito? Did they stab each other or did Amanda stab Raffaele and walk in his blood or it was Raffaele who stabbed Amanda and walked in her blood? Strangely all those brave judges never considered that those findings demolished the “DNA + luminol hit = blood = murder” equation;
– there wasn’t any of Sollecito’s DNA at the cottage to justify contamination of the bra clasp, but if Knox in less than ten days left her DNA at Sollecito’s, Sollecito could well have left his at the cottage, given that he visited it five times in an even shorter time interval; and if it was not found there (except on a cigarette butt) it must also be taken into account that no unknown profile corresponding to Romanelli and Mezzetti was found in their own rooms, where they were living even before Knox and Kercher arrived, while, again, Knox’s DNA was found at Sollecito’s where she lived for a few days: all of that points to DNA collection having been far from exhaustive and all-encompassing;
– the break-in is really a simulation even if the distribution of glass shreds inside the room is compatible only with a rock thrown from outside, even if the climbing is eminently doable and even if the shards above the clothes mean nothing since they have been found also in real burglaries and even if one should in any case explain the fragments below the clothes;
– a credible timeline stitching together the data from Sollecito’s computer, Curatolo “sightings” and the known data concerning Meredith phones can be put together.
A credible motive would be very helpful (and indeed in Italian jurisprudence it is usually considered very important in trials based on circumstantial evidence) but a real motive is based on real testimonial or factual evidence, not on supposed conflicts between the victim and one of the defendants.
Had someone testified about fights, quarrels, or even just nasty looks between them, better yet if with an escalation, then we could have a motive, but without all that, all the pro-guilt faction has are only alleged (and never testified in those terms) issues about housecleaning or, even worse, axiomatic assertions about Knox hating the victim, there is no motive.
All of the above can be put together to contrive a story involving the defendants’ guilt? Maybe, but with what level of probability? Someone writing books about the use of math in trials could try and calculate the overall probability of an event depending on so many low probability items.
But since substituting numbers for words often leads to arbitrary assumptions, it is better to stick to general principles and consider that even if one could assemble such a story, nevertheless it would not be more probable than a story where one considers true the opposite of what is assumed above, hence a theory involving guilt not only does not go “beyond any reasonable doubt” but remains even below the level of “probable cause”.
Now the degenerate version of the “osmotic” principle kicks-in and its supporters claim that it is impossible that all those elements (a.k.a. “the mountain of unassailable evidence”) are all wrong and so if you consider them all together the only reasonable conclusion is that the defendants are guilty.
As if the footprints could indeed be made in blood not because of a test confirming it, but because Curatolo or Quintavalle may have seen something, or as if a cleanup there is no evidence of (in terms of sweeps made with some cleaning tool, for instance) could be made a reality because of glass on the clothes.
First of all with similar reasoning one can prove almost everything, for instance also that the defendants have indeed been framed (cfr. Amanda and Raffaele: Behind the Curtain by Karen Parker Pruett ).
Second, the “elements” of evidence have to be “certain in their existence”, not just “likely or supposed” (Cass. 2013/44384 Stasi page 74/75), hence, for instance, footprints to be considered as made in blood have to be proven with certainty as being made in blood, otherwise you have just plain footprints, whose evidentiary value is practically nil, and it is not enough to suppose that the TMB test failed for all of them and that luminol “mainly” detects blood. Even a motive, to be considered an element of circumstantial evidence, has to be certain in its subsistence and not alleged or supposed.
The same test of “certainty of existence” of the evidentiary element can be run against Curatolo’s recollections, Quintavalle’s belatedly acquired confidence in his memory, the reality of the alleged DNA on the blade of the knife, the reality of alleged clean-up and much else.
A case based on elements of alleged evidence, whose certain existence is not proven, is a cased based on suspicions and not on evidence.