Weird Fact About The Case

Weird Fact About The Case

Postby erasmus44 » Tue Nov 24, 2015 8:33 am

In the midst of a discussion over on Facebook, there was a comparison of the Italian and American systems and the argument was made that the Italian system was unwilling to admit that it could be wrong.
But - in this case - just the opposite was true.
Every single time an appellate court reviewed a decision of a lower court, that decision was reversed. Hellman reversed Massei, the SC reversed Hellman, and then the SC reversed Nencini.
Lawyers represented appellants had a record of 3 and 0.
Non-lawyers may not realize how bizarre this is. In the USA, I would estimate that the success rate for criminal appeals is probably between 5 and 10%. So a 100% success rate is something like a hitter in baseball who hits a home run every time he comes to the plate. He would make Barry Bonds look like a wimp.
Say what you want about the Italian system (no Brady rule, slow as a hippo with an arthritic knee, unfair use of findings of fact from other cases) , but you have to admit that it is willing to give cases a second look - and a third, fourth, and fifth look as well.
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Re: Weird Fact About The Case

Postby Bill Williams » Tue Nov 24, 2015 10:22 am

Never thought of it that way.

But it points to another problem. There would develop a lack of confidence in ANY fact-finding court. Even Barbie Nadeau, reflecting on the 2009 conviction, said, "This could very well be overturned at appeal."

One might see why a reluctance to overturn develops in a system - an instinct to protect the integrity of the court, regardless of the veracity of the verdict. But you are quite correct - appellate judges seem to be licking their lips to undo the dietrology of the lower court! (Often by substituting their own dietrology.)
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Re: Weird Fact About The Case

Postby Teddy » Tue Nov 24, 2015 11:12 am

I think in the case in question, it was the prosecution and civil lawyers who were unwilling to admit they were wrong, rather than the Italian system as a whole. Having said that, I still believe that the Supreme Court annulment of Hellman was an example of the "Italian system was unwilling to admit that it could be wrong". Also, consider other Italian cases. Having opposing verdicts between 1st and 2nd level and SC is not unusual, and it can easily go in both directions. However, recently we have witnessed some cases where the Prosecution case has been very weak but the successive trials have simply rubber stamped the previous court ruling despite the weak evidence and ludicrous motivations used to convict. Examples are the Sarah Scazzi and Melania Rea cases.
Amanda Knox: "According to Mignini, we found Meredith at the villa and said, Hey, that stupid bitch. Let’s show Meredith. Let’s get her to play a sex game. I was horrified. Who thinks like that?".... indeed, who thinks like that?
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Re: Weird Fact About The Case

Postby erasmus44 » Tue Nov 24, 2015 11:47 am

But appellate reversals of jury verdicts are soooo rare in the USA that - as a lawyer - this pattern does show at least a judicial willingness to take a second look that is refreshing. Prosecutors almost never give up trying to convict someone once they get started and - once they have gotten a conviction - they really get their feet in the cement. Can you imagine going back in front of a judge who has given you a conviction and learned that, when the case was appealed, you caved?
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Re: Weird Fact About The Case

Postby Clive Wismayer » Tue Nov 24, 2015 2:29 pm

Refreshing but also laced with :batshit crazy:: reasoning. It would be nice to see intellectual rigour and honesty in either system. We could mix and match:

Italian willingness to look again
American/British finality
South African judicial independence, integrity and courage

Canada - nothing.
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Re: Weird Fact About The Case

Postby Bill Williams » Tue Nov 24, 2015 5:17 pm

Clive Wismayer wrote:Refreshing but also laced with :batshit crazy:: reasoning. It would be nice to see intellectual rigour and honesty in either system. We could mix and match:

Italian willingness to look again
American/British finality
South African judicial independence, integrity and courage

Canada - nothing.

Ouch.
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Re: Weird Fact About The Case

Postby erasmus44 » Tue Nov 24, 2015 5:30 pm

Clive Wismayer wrote:Refreshing but also laced with :batshit crazy:: reasoning. It would be nice to see intellectual rigour and honesty in either system. We could mix and match:

Italian willingness to look again
American/British finality
South African judicial independence, integrity and courage

Canada - nothing.



I am not sure that "finality" is all that big of a plus.
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Re: Weird Fact About The Case

Postby Clive Wismayer » Wed Nov 25, 2015 2:27 am

Bill Williams wrote:
Clive Wismayer wrote:Refreshing but also laced with :batshit crazy:: reasoning. It would be nice to see intellectual rigour and honesty in either system. We could mix and match:

Italian willingness to look again
American/British finality
South African judicial independence, integrity and courage

Canada - nothing.

Ouch.

Sorry. Admittedly, that is based on a sum total of one case, so it may be a little unfair.
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Re: Weird Fact About The Case

Postby Clive Wismayer » Wed Nov 25, 2015 2:28 am

erasmus44 wrote:
Clive Wismayer wrote:Refreshing but also laced with :batshit crazy:: reasoning. It would be nice to see intellectual rigour and honesty in either system. We could mix and match:

Italian willingness to look again
American/British finality
South African judicial independence, integrity and courage

Canada - nothing.



I am not sure that "finality" is all that big of a plus.

There goes the jury system. I sort of agree but the Italian version of nearly no finality at all was what I was thinking of.
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Re: Weird Fact About The Case

Postby Teddy » Wed Nov 25, 2015 6:23 am

Clive Wismayer wrote:
erasmus44 wrote:
Clive Wismayer wrote:Refreshing but also laced with :batshit crazy:: reasoning. It would be nice to see intellectual rigour and honesty in either system. We could mix and match:

Italian willingness to look again
American/British finality
South African judicial independence, integrity and courage

Canada - nothing.



I am not sure that "finality" is all that big of a plus.

There goes the jury system. I sort of agree but the Italian version of nearly no finality at all was what I was thinking of.

The problem for me with the Italian system is that the Prosecution can appeal a not-guilty verdict, twice. So the accused will usually endure years of persecution. Alberto Stasi is an example of someone found not guilty at 1st level and 2nd level, then it was sent back down for a retrial and he was found guilty. If the Italian system would change so that innocent verdicts could not be appealed, it would certainly have a claim to be "garantista".
Amanda Knox: "According to Mignini, we found Meredith at the villa and said, Hey, that stupid bitch. Let’s show Meredith. Let’s get her to play a sex game. I was horrified. Who thinks like that?".... indeed, who thinks like that?
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Re: Weird Fact About The Case

Postby Bill Williams » Wed Nov 25, 2015 10:13 am

Clive Wismayer wrote:
Bill Williams wrote:
Clive Wismayer wrote:Refreshing but also laced with :batshit crazy:: reasoning. It would be nice to see intellectual rigour and honesty in either system. We could mix and match:

Italian willingness to look again
American/British finality
South African judicial independence, integrity and courage

Canada - nothing.

Ouch.

Sorry. Admittedly, that is based on a sum total of one case, so it may be a little unfair.

No apology necessary. Esp. for the one you have in mind.

A strength of the Canadian system is the periodic Royal Commission/Royal Inquiry that can be called - it's a political thing.

British Columbia has been weighed down by what's called a "missing women" scandal, where in the last 25 years mainly indigenous women, some in the sex-trade, simply disappeared.

https://en.wikipedia.org/wiki/BC_Missing_Women_Investigation

This is in my home-church's neighbourhood from way-back-when. There have been formal inquiries into why 60 women in 20 years simply disappeared and authorities seemed to do nothing.

The advantage of having a larger-ranging inquiry is that it can also address the other dark secrets in British Columbia - one of our northern highways connecting the interior with the west-coast (just below the Alaska panhandle) has been dubbed the "highway of tears" for similar disappearances of women.

https://en.wikipedia.org/wiki/British_Columbia_Highway_16#Highway_of_Tears

But as you are probably thinking, a lot of this is closing the barn door well past when the damage is done. One fears that justice for Nyki is years away.

In the main, appeals in Canada are about testing whether or not the lower court followed due process, rather than came to the right decision. In the Kish case (for me as a layman) it is simply a headscratcher that the appeals court could virtually accuse another participant in the melee of murder.

Perhaps we could use some of the Italian instinct to have a sober second and third look at the facts of the case.
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Re: Weird Fact About The Case

Postby LondonSupporter » Wed Nov 25, 2015 10:38 am

There was a BC pig farmer who was a serial killer a few years ago. Has he been ruled out of connection with the other disappearances?
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Re: Weird Fact About The Case

Postby Bill Williams » Wed Nov 25, 2015 10:59 am

LondonSupporter wrote:There was a BC pig farmer who was a serial killer a few years ago. Has he been ruled out of connection with the other disappearances?

Quite the opposite. He's the only one ever prosecuted/convicted. The strange thing is that he was convicted in a manner suggesting that others were involved and he was an accomplice. You actually do not want to know the details of his story. As for the Highway of Tears, nothing as come from any of the investigations. With the Vancouver missing-women, the local police have confessed to have been asleep at the switch.
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Re: Weird Fact About The Case

Postby LondonSupporter » Wed Nov 25, 2015 11:30 am

Bill Williams wrote:
LondonSupporter wrote:There was a BC pig farmer who was a serial killer a few years ago. Has he been ruled out of connection with the other disappearances?

Quite the opposite. He's the only one ever prosecuted/convicted. The strange thing is that he was convicted in a manner suggesting that others were involved and he was an accomplice. You actually do not want to know the details of his story. As for the Highway of Tears, nothing as come from any of the investigations. With the Vancouver missing-women, the local police have confessed to have been asleep at the switch.


I remember the case being reported. It may have been around 2003 when we were in BC. I remember thinking I would rather not know any more about it.
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Re: Weird Fact About The Case

Postby Scribbler » Sun Dec 06, 2015 1:40 am

Of course appeals judges approach their cases with an open mind. History tells them a defendant has a 50/50 chance of being wrongly convicted at the first trial.
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