A DISCUSSION OF LAW AND JOURNALISM

Foxy Noxy Might Outfox the Italian Justice System

By Deva Roberts

We Americans know we are spoiled in many ways, but most of us don’t realize how far advanced our legal system is compared to those of other nations.  Amanda Knox, the American beauty convicted of brutally slaying her flat-mate, Meredith Kercher, in Perugia, Italy in December of 2009, is fully aware of the deficits of the Italian legal system.  And whether she is guilty, innocent, or something in between, she deserves a fair trial.

Ms. Knox’s legal team is appealing her conviction, and during a preliminary hearing on December 11, she broke down and pled with the judge and jury in Italian, begging them not to perceive her as the “dangerous, diabolical, uncaring, violent” young woman the prosecution portrays her to be.

Ms. Knox’s appeal to emotion seems to have paid off: Judge Hellmann ruled, on December 18, that she will grant the defense’s request for independent forensic examinations of the two most damning pieces of trial evidence: the knife allegedly used in the attack, and Ms. Kercher’s bra clasp.  The defense’s position is that the DNA traces on the knife and bra clasp were contaminated when initially collected, and that such evidence should be inadmissible, leaving the prosecution with no DNA evidence tying Ms. Knox to the murder.

The media has focused on the sexier aspects of the case, but has largely failed to discuss the intricacies and vagaries of Italian law that are crucial to understanding the court’s decisions.

These include: 1) Italy’s lack of DNA certification requirements and standards regulating the integrity of forensics; 2) the enormous discretion afforded judges in Italy to control the admissibility of evidence at trial; and 3) the lack of evidentiary rules in Italian criminal trials.

Certain characteristics of the Italian criminal justice system make it prone to abuse in the form of contamination of evidence and poor DNA testing analysis.

1)  Lack of DNA Certification Requirements: Italy does not adhere to international forensic standards and is, in fact, the only major member of the European Union that has failed to join the PrumDecision.   This treaty set minimum DNA sharing and testing guidelines that minimize potential contamination and faulty DNA testing analysis.

2)  Discretion Afforded Judges: Unlike the American adversarial system, in which judges are neutral parties and play no investigatory role, the Italian criminal justice system is substantially inquisitorial, and judges maintain control over admission of evidence and the pre-trial investigation of crimes.

Until 1989 when Italy’s New Code of Criminal Procedure came into effect,judges controlled the pretrial stage and fulfilled the role of both judge and active investigator.  The defense had no right to participate or even to be notified of a criminal investigation.Atrial just confirmed what had taken place during the judge-controlled pretrial examination and investigative phase.

After 1989, the use of much of the evidence gathered in the pretrial phase, known as “hearsay” evidence in the U.S., was supposed to be drastically reduced. Today, witnesses are called by the parties, and defendants have the right to confront and cross-examine witnesses and to offer counter-evidence, like in the U.S.

But changing from an inquisitorial to an adversarial system proved complicated, and Italy faced enormous problems in implementing the new model.  In Italy today, judges still proactively control the admission of evidence in practice, which can indirectly control the outcome of the trial.

3)  Lack of Evidentiary Rules: Italian criminal law requires that a  judge be internally convinced (intimoconvincimento) of a defendant’s guilt to convict him.  But there are no rules that dictate the weight to be attributed to any given piece of evidence, giving the judge broad discretion in assessing evidence.

With the above legal backdrop as our lens, we can now look at each argument of the Knox defense.

Although the victim’s DNA was found on the knife’s blade, and Ms. Knox’s DNA on the knife’s handle, the defense argues that defense that a) there was too little of the victim’s DNA on the blade for it to have been the murder weapon, and b) the defendant’s DNA on a knife in her own apartment is not evidence that she committed murder.   Therefore, the DNA found on the knife should not have been admitted as evidence.

A top geneticist at one of Europe’s best-known forensic labs stated that this evidence should not be admissibleunless the result could be reproduced.  That is, according to minimum scientific standards worldwide, if an experiment can not be repeated and glean the same results, the results have not been scientifically proven.  But the testing performed by the Italian police biologist allegedly destroyed the sample, so the experiment cannot be reproduced. In effect, the prosecution is asking the court to believe a one-hit wonder of a result and to take their word on it.

In addition, the bra clasp evidence suffers from severe contamination.  It was not collected as evidence until approximately forty-seven days after the crime. Although this would not impact the case if the crime scene were secure, the clasp was moved from its original location and was handled by dirty hands. Indeed, it was moved so many times and came into contact with so many other items not associated with the murder, as well as the skin cells of both investigators, that the clasp could contain the DNA of anyone who had ever been in the now infamous room.

A leaked excerpt from a report by Judge Claudia Matteini, a member of the tribunal that heard the original case, paints an unsavory portrait of Ms. Knox and her Italian boyfriend, that takes liberties with the established facts, something that an American judge could not do with impunity. But In Italy, the judge still reigns supreme; predicting the outcome of a criminal trial is akin to trying to predict the whims of a feudal king.

Comments

10 Comments »

10 Responses

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  2. Michaelsmth says:

    It is a shame Amanda had to appeal to emotion given the points made in this article.

    It is also painful and frustrating that one expert after another points these things out, and yet two innocent people languish in prison due to a badly flawed system.

    Worse, articles like help little – Amanda and Raffaele must now depend that the same badly flawed system can correct this blatantly obvious miscarriage of justice!

  3. Patrick King says:

    You know what I miss? Impartial journalism. “Foxy Noxy Might Outfox the Italian Justice System.” While this may seem like catchy title, it implies that Knox’ appeal is some kind of trick. Amanda Knox is not “outfoxing” anything. She’s spent 3 years in prison for a crime she surely had no part in.

    Furthermore, Deva Roberts, the American beauty who penned this exposé of the Italian justice system, apparently doesn’t realize how patronizing dismissing Amanda Knox as an “American beauty” is. Amanda Knox is an honor student and an award winning athlete. Why would you focus on her physical attributes? Do you prefer when people acknowledge you primarily for your outward appearance rather than for those things of which you may justly be proud?

    More thought about what is to be said, rather than flip ways to say it, will make for better journalistic efforts in the future.

  4. pataz1 says:

    Italy has applied to be a party to the Prum convention; you should correct your article.
    http://en.wikipedia.org/wiki/Pr%C3%BCm_Convention

  5. whatever1 says:

    There were a number of items collected after the original crimescene work. Along with the bra clasp (and this is by no means an exhaustive list), the police picked up a guitar, a hair dryer, a book, and other personal items based on the statements provided by Knox about her whereabouts on the evening Meredith was slain. The 47 days “issue” regarding the collection of the bra clasp is a classic red herring. How long do you supposed cold case evidence has been lying around before DNA testing is done? In some cases it’s been over three decades.

    The evidence against Knox and her boyfriend is so overwhelming that there is no doubt that she would have been convicted in the US or anywhere else with an adversarial system too. Any American prosecutor with decent training could have arguably secured a death sentence penalty against Knox and that includes her home state of Washington.

  6. European says:

    Italy has signed the treaty in 2009:

    http://it.wikipedia.org/wiki/Trattato_di_Pr%C3%BCm

    Though I fail to understand what “Stepping up cross-border cooperation” in Europe has to do with DNA certification requirements and the DNA testing in this case. Would having a national DNA database in 2007 affected this case somehow?

    http://ec.europa.eu/home-affairs/policies/police/police_prum_en.htm#part_1

  7. Deva,

    The prosecution failed to turn over the electronic data files, machine logs, and standard operating procedures to the defense. The lack of adherence to the principle of discovery is one of the many troubling aspects of the case. It is unclear to me what the rules in Italy are with respect to these files, yet every expert whom I contacted indicated their importance in evaluating the forensic evidence.

    http://viewfromwilmington.blogspot.com/2010/10/american-bar-association-and-dna.html
    http://viewfromwilmington.blogspot.com/2010/07/to-those-who-believe-that-amanda-knox.html

  8. Deva,

    Foxy Knoxy does not exist, except in the fevered imaginations of certain members of Italian law enforcement and in the scribblings of the British tabloid press.

  9. Quentin says:

    Very interesting. The more one looks at this case, the more obvious it is that what we witnessed was a Perugia witch hunt, not a civilized trial. The statements of the defendants were obviously coerced. The witnesses were a joke. None of the physical evidence adds up. There is a mountain of evidence against another defendant. What more is there to say.

    By the way, no serious person would ever link to a Wikipedia article.

  10. Livia F. says:

    To Patrick King:
    What world are you living in? Writers rarely choose their own headlines and even if Deva did, it’s a catchy one. The article itself was impartial. And calling someone an “American beauty” is not an insult. It would be like calling someone an “American millionaire.” Generally, not an insult. These words don’t have negative connotations except in the minds of people who have a chip on their shoulders about these attributes Which it seems you do, Patrick.

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