2015 Sept Google Translation of ISC Motivation Report

2015 Sept Google Translation of ISC Motivation Report

Postby KayPea » Mon Sep 07, 2015 10:05 am

2015 Sept Knox Sollecito Motivation Report

Taken from the ANSA copy of the Motivation Report in Italian...............PDF format so that you can copy and paste sections to study.

http://www.ansa.it/documents/1441635279227_Meredith.pdf

This poor translation by Google Translate captures the gist of the Motivation Document and can serve as a placeholder until a proper translation is completed.
Pages 1 to 20


ITALIAN REPUBLIC
In the name of the Italian people
THE SUPREME COURT 01 cassation
FIFTH SECTION CRIMINAL
Composed by I1l.mi Gentlemen:
dr. Gennaro MARASCA - President
dr. Paolo Antonio BRUNO, - Speaker
dr. Alfredo GUARDIAN
dr. Luea Pistorelli
dr. Gabriele POSITANO
He gives the following
JUDGMENT
proceedings instituted by
REMINDER Raffaele, born in Bari iI 03.26.1984
Sent. n. section, H 05 "UP -, 25/03/2015 ~ t ~ -C (O {: 5 RGN32598 / 2014
KNOX Amanda Marie, born in Seattle (United States) iI 09/07/1987
against the judgment of the Court of Assizes of Appeal of Florence of 30 January
2014;
the acts, the judgment under appeal and the applications;
having heard the report of dr. Paolo Antonio BRUNO;
iI heard the Public Prosecutor, in the person of Deputy Prosecutor General
dr. Stefano Maria Pinelli, who finished ehiedendo I'annullamento without referral
the statute of limitations in order to head B) with the rubriea
Restatement of the penalty in the amount of twenty-eight years and six months
r, eclusione for Amanda Knox and twenty-four years and six months for Sollecito
Raffaele;
felt, then:
I'aw. Carlo Pacelli, defender of the civil Patrick Lumumba, ehe has
iI asked for dismissal of the appeal, and confirmation of the judgment and
elvili rulings, as written submissions and expense;
..
I'aw. Enrico Fabiani Veri, defender of the civil Kercher family, who
asked I'inammissibilita 0, in the alternative, iI dismissal of appeals and confirmation of
judgment as to written submissions, which filed together
in footnote spesei
I'aw. Francesco Maresca, Ie same plaintiffs, who has applied for
0 declaration of inadmissibility, however, for the dismissal of the appeal, with
condemnation of recurring expenses, dry batteries, as written submissions and expense.
Felt, altresl: I'aw. Luciano Ghirga, Amanda Marie Knox, and reported that the grounds of appeal and the new grounds, insisting I'accoglimentoi I'aw. Carlo Dalla Vedova, defender of that Knox, who has now recovered and appeal to motlvi aggiuntl, concluding I'annullamento the judgment
impugnatai at the outset, called for the suspension of procedlmento up
alia decision on this question of constitutional legitimacy degJi Articles.
627-628 cod. proc. pen .; 0, however, pending the decision of the Court
European dirltti man.
Date liora late and needs dl treat others procedures laid down for the
same hearing, iI Presldente postponed the hearing to March 27, 2015, for II
hereinafter delia discussion and deliberation.
AlI'odierna hearing, feel GJI lawyers Giulia. Bongiorno and Luca Maori, who,
in the interest of Raffaele Sollecito, they were reported to the grounds of appeal,
chledendone I'accoglimento, the cause was withheld for the decision.
CONSIDER THE FACTS
1. Raffaele Sollecito and US citizen Amanda Marie Knoxerano
called to respond, first of alia Court of Assizes of Perugia, the offenses below
Indicated:
A) in accordance with Articles. ' 110, 575, 576, first paragraph, no. 5; in relation to the crime
C) and 577, first paragraph no. 4, 'in relation to art. 61 Nos 1 and 5 cod. pen., to be in competition with each other and with Ghede Rudi Hermann, killed Meredith Kercher, by throttling and subsequent collapse of the hyoid bone and deep lesion alia region anterior-Iaterale left and right side of the neck, bullet tip and cutting of Chapter B), and qldindi goal hemorrhagic shock with appreciable up '! you asphyxiated secondary to bleeding (derived from puncture wounds and cut in the regions anterior-Iaterale left and right side of the glue and by)
contextual abundant intake of blood material), and 'taking advantage of / fora night and delrubicazione isolated leased the apartment conducted by the same Kercher and Knox same, as well as two Italian girls (Romanelli
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Fi / omena and Laura Mezzetti), apartment in Perugia, Via della Pergola No. 7,
committing if made for mot / I futile while iI Guede, with iI competition deg / the other,
if he committed the crime of sexual violence;
B) under Articles degll. 110 cod. pen. and Law No. 4. 110/1975 to have, in
competition between them, out of the house leads to the urge, without good reason, a large knife from the tip and cut total length 31 cm (to seize the urge IF6 November ~ mber 2007 rep 36);
C) in accordance with articles. 110, 609 a and b n. 2 cod. pen. for, in competition with each other and with Rudy Hermann Guede (if Guede perpetrator, in the course with with
co-defendants) forced Kercher Me: edith to undergo sexual acts with penetration manual and / or genital, through violence and threats, maneuvers consisted of constraint production of injury, in particu / are in the upper limbs and lower limbs and
in vulvar area (suffusions bruising alia face anterioredella left thigh injury in the vestibular area in the vulvar area and ecchymotic alia front face
middle third of the right leg) as well as in the use of the knife under B;
D) in accordance with articles. 110, 624 cod. pen. because, in competition with each other, to obtain an unfair profit, in the circumstances of time and place set out in Chapters A) ee), took possession of the sum of € 300.00 or so, two credit cards, and the Abbey Bank Nationwide, both of the United Kingdom, and two phones
phones belonging to Meredith Kercher, removing alia that same Ii held;
done to qualify under DEWART. 624 bis cod. pen., given the riferimen.to to piace
execution of the offense contained in Chapter A) here called;
E) pursuant to articles. 110.367 and 61 n. 2 cod. pen. to have, on competition between
/ Gold, simulated / attempted theft with effrazlone chamber delrappartamento Via
Pergola, inhabited by Romanelli Fi / omena, breaking glass if the window
a stone taken from the vicinity of / 'home that was thrown into the room, nearest aI / a window, if their way to ensure the impunity of de / conflicts of murder and
sexual assault, attempting to attribute the responsibility to unknown penetrated, to
For this purpose, in the apartment;
events all occurred in Perugia on the night of if 1 ~ and 20 November 2007.
The only Knox, also of the crime of the crime of which at head F), pursuant to articles. 81
para, 368, paragraph 2, and 61 n. 2 cod. pen. because, with more enforcement actions of the
same criminal, knowing innocent, with den uncia extruded it / course
the statements made and allaSquadra Mobile alia police headquarters in Perugia on 6
November 2007 falsely blamed Lumumba Diya said "Patrick" the crime of
murder to the detriment of young Meredith Kercher, if everything in order to get
impunity for all and in parti / are for Rudy Hermann Guede, also a color
as if Lumumba; in Perugia, -in the night if between 5 and II 6 November 2007 ..
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By judgment of 4-5 December 2009, the Assize Court stated Amanda
Marie Knox and Raffaele Sollecito guilty of crimes they were charged with Chapter A) - in that
it absorbed crime crime alia disputed letter C) - as well as to the heads B) and D),
limited to mobile phones, and E) and, as regards the Knox, also of the
offense complained of sub F); crimes all unified with Constraint of continuation and,
Ie aggravating excluded under Articles. 577 and 61 n. 5 cod pen., Both granted
Ie extenuating equivalent alia remaining aggravating Ii condemned alia worth
twenty-six years of imprisonment and the Knox alia worth twenty-five years' imprisonment on
Sollecito, over which in consequence;
condemned also the Stessl defendants, jointly and severally, to pay
damages against the established parties clvili John Leslie Kercher, Arline Carol Llara
Kercher, Lyle Kercher, John Ashley Kercher and Arline Lara Stephanie Kercher, damage
to be paid for separately, with assignment of provisional immediately
Executive of (: 1,000,000.00 each in favor of John Leslie Kercher and Arline
Carol Lara Kercher and (: 800,000.00 each in favor of Lyle Kercherm Johm
Ashley Stephanie Kercher and Arline Kercher Lara;
condemned, altresl, Amanda Marie Knox at damages against
plaintiff's Patrik Lumumba, to be paid in a separate, with award
of provisional immediate effect of (10.000,00, plus consequential
rulings;
condemned, finally, the same Knox 'and Raffaele Solleclto to pay
damages in the civil party co nfronti Aldalia Tatta in the (owner of the property
Via della Pergola), to be paid for separately, and Lyle Kercher, John Ashley
Stephanie Kercher and Arline Kercher Lara, with assignment of provisional
immediately enforceable.
Pronouncing on liens proposed by the defendants, the Court of Assizes of
Perugia, in its judgment of 3 October 2011, declared Amanda Marie Knox guilty of the crime of which at head F), excluding I'aggravante in art. 61 n. 2 cod. pen., and
Ie recognized extenuating equivalent, dry aggravating whiCh paragraph. \ DelJ'art second. 368 co ~. pen. - Alia condemned the sentence of three years' imprisonment;
He confirmed as regards that head Ie rulings civilians;
acquitted the accused of the crimes they were charged with, leaders A) B) and D), for failing to
iI fact committed, and the offense referred to in Chapter E) because it did not exist,
dismissing the action brought against them by the plaintiff Aldalia
Tattanelli.
Pronouncing on appeals from Pg Perugia, by the accused Amanda Marie
Knox and clvili by the parties, the Court of Cassation, First Criminal Section, with
judgment of 25 March 2013, set aside the contested judgment only to
crimes of Chapters A) - in it absorbed II Subpart C) - B), D) and E) and aggravating
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I I 1 1
which in lI'a rt. 61 n. 2 cod. pen. rlguardo with Chapter F) and referred for further examination alia
Assize Court of Appeal of Florence; He dismissed the appeal of Knox, with
consequ ~ nziali rulings.
Saying when referring to the Court of Assizes of Florence, with the judgment
mentioned in the headnote, considered the existence deWaggravante in art. 61 n. 2
cod. pen., in relation to the crime dl art. 368 paragraph two, cod. pen. sub
F), the sentence imposed rideterminava Amanda Marie Knox In total years
twenty-eight and six months of reclus / one; confirmed in the rest of the first instance judgment dl,
Ie consequential statuizloni also in favor of established civil Partl.
Awerso I'anzidetta pronunciation defenders of imputatl proposed distinct
rlcorsi cassation, each entrusted, dry censorship reasons set out below.
2. The action in favor of Amanda Marie Knox was preceded, all'esposizlone
of the many motlvi in which was divided, a long premise that, on the one hand, '.
Ie anticipated inspiring lines of the entire appeal and, secondly, restated
problems already agitated during the appeal, as the question of legitimacy
costituzlonale the combined provisions of Articles. 627 paragraph 3 and 628 paragraph 2, on the
reflection of possible "repetitiveness infinity" of giudlzio referral by the
Supreme Court rulings and slavish ricorribitita rescissorie.
The first profile is envisaged under it contestativo theme underlying the entire appeal, represented by claiming avoidance of the dictum pronunciation
rescindente dl Court of legitimacy, and the diverging interpretation of the same
evidentiary material by two different courts asslse, Perugia and Florence,
the latter, moreover, on the basis of mere examination in paper.
He passed, then, analytics indication of factual circumstances or evidence that the proceedings would not have been suitably evaluated or, wrongly, appreciated so fragmented and not already in a unitary and global.
, NOW, THEREFORE, were then put forward several grounds of appeal, which goes to
expose briefly, within the time prescribed by art. 173, paragraph 1, dlsp.att. cod. proc. pen., ie the extent strictly necessary for the dedsione.
With it you first complaint breach or non-observance of the criminal law, under
art. 606 letter. b) and c) cod. proc. pen.nonche failure to state reasons, pursuant to the
the same article letter. e), the decisive point of the alleged motive of the Knox
commission of serious crime, in breach of Article. 110 cod. pen.
It alleges, in this regard, as suggested in the judgments on the merits, in order
. to alleged disagreements between the applicant and Kercher, despite I'intervenuta
absolution, with final decision on point, in ordlne alia subtraction
sum of three hundred euro and Ie gathered testimonies, including that of Marco Zaroli, on relations "idyllic" between I and two girls. By the acts had not emerged Tausa
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no motive, which could have led the Knox in conscious competition in action homicidal and, contrary to the assumption of the national court, the I'accertamento
motive processes circumstantial evidence was absolutely necessary. No indication to
regard was offered by the national court, even in the face of specific
rescindente indication of pronunciation, which had reported a threefold opportunity:
1) agreement on the option of genetic death; 2) modification of an initial program
it covered only involvement of young English in a non-sexual play
shared; 3) merely forcing an erotic game of the group.
Not only that, but on a scenario of absolute uncertainty, the referring courts had
developed an anomalous figure competition, the result of singular mix of impulses
and different motives for participants: it Guede, induced by a motivation
. sexual; Knox, from resentment towards English; iI Sollecito by unknown
understanding.
The second reason is a problem of large momenta of the economy
This judgment, which is the correct interpretation of the results of scientific investigations,
in view of respect for the canons of evaluation of art. 192 cod. proc. pen. is
the significance of the outcome of genetic expertise in the absence of "amplification", given
I'esiguaentita of the find and, more generally, it coefficient affidabitita investigations
made no j (compliance with the requirements dictated by the protocols internazionall both
in the phase of repertazione that analysis.
In particular, the complaint Ie anomalies in repertazione knife (Rep. 36) and
the bra clasp of the victim, such that it could not rule out the risk of
contamination, COSL as correctly found in the report Conti-Vecchiotti
ordered by the Court of Assizes of Perugia, who had expressed to ar'lche
I'inattendibitita of scientific data, just because not susceptible of further examination.
It also disputes that it reperted knife was the murder weapon.
By it third plea complaint unlawfully and lack of motivation, the
Under DEWART. 606 letter. b) and c), in order to link it teleological between crime of slander
. and I'omicidio. They represent, in propos ito, Ie psychological conditions besetting
I'imputata at the time of the slanderous statements of 6.11.2007, considered
however unusable dci Court (judgment no. 990/88), complaining
however DEWART violation. 188 cod. proc. pen., for violating the moral freedom
the declarant in taking the test.
The fourth plea alleges lack of motivation on the relevant Profiti
matter of fact, with reference, first, to the alleged simulation of theft
in Romanelli's room, without considering that it Guede, the momenta
arrest, wounded in the right alia mana compatible with the prior I'ipotesi
broken glass window and climbing next to enter, with shards
glass scattered on the windowsill, COSL as it was in view of previous
6
the same Guede, not new to azloni furtive in apartments with identlche
mode. It was not then considered that no genetic fingerprint, attributable
the accused, he had been found in the room of the murder, while it had been
found in it fourteen riferiblll to Guede.
It was quite lIIoglco I'argomento alleging that there was selective cleaning of
on the part of the defendant environments, being almost impossible to remove dl
certain genetic traces, leaving others.
With iI fifth plea sl motivational defect complaint with reference alia
valutazlone testimonies Curatolo and Quintavalle, inadequately
appreciated in their actual content. YES alleges, POi, which was been iJlogicamente
It emphasizes the text message received by Patrik Lumumba, there being uncertainty
place of receipt, given the known unreliability of 10caJizzazione. on the base
of engagement, dry jests telephone.
With iI sixth plea complaint against the law, in reference
while the use of acts deemed unusable by this Court in particular
reference, dry statements of the defendant against if the hours of 5.45 6.11.2007.
Also, it was not taken into account that iI memorial drafted by the same Knox
resented the precarious psychological conditions besetting, for 10 stress
resulting alia suffered violation of dirltti defense.
With The seventh reason pleads infringement of Articles. 111 Cost., Paragraph 2, and
and 238 cod. proc. pen., with riferlmento alia assessment 'of the final judgment
issued charged to the Guede and the inadequate appreciation of the statements by
these yields, via Skype, his friend Giacomo Benedetti.
With I'ottavo reason, it denounces failure to take decisive test, in accordance with
DEWART. 606 letter. d) cod. proc. pen., in connection agJi Articles. 111 paragraph 2 and 238 bis
cod. proc. pen., for non-renewal of the investigation hearing, denied
with, ordinance 30.9.2013, for payment under the Guede, Ie after charges against
of the defendant.
The ninth reason noted inconsistencies 0 CONTRADICTORY motivational well
serious inaccuracies, as I'affermazione sheet 321 in order to track attendance, dry
Genetic Sollecito and Kercher on the knife found in it.
That suggests POi, that place where it had been found cellphones sottrattl alia
victim was compatibite with it tragltto of Guede in the direction of his house, located in
via the Canary n. 26.
Inadequate, moreover, it was the assessment of the results of perizla prof.
Bernaschi maximum damage on the computer, from verosimite shok Electric.
With it the tenth plea sl complaint Infringement or misapplication of
Articles. 627 and 603 cod. proc. pen., with reference, dry ordinances dibattimentali 30/09/13 and 04/17/14.
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It also asks you to correct the material contained in the order
17.4.13, with reference to the erroneous indication of the place of birth of the defendant,
who she was born in Seattle and in Washington.
With I'undicesimo plea alleges infringement and inosservanzadell'art. 606,
letter. b) In relation alia quantum of the penalty point in aggravating circumstances specified
art. 61 n. 2 cod. pen. the crime of slander challenged for assumed link
teleological.
The referring court had considered subvalenti Ie generic, previously considered
equivalent, despite iI judged on point.
· 3. The action in favor of Raffaele Sollecito and entrusted to twenty-two reasons, that although they are briefly summarized in the terms prescribed by the aforementioned Article.
173, paragraph 1, disp.att. cod. proc. pen.
To that while Synthetic statement must precede the reference alia part
Started containing specificherichieste.
The first concerns I'istanza referral aile United Sections of issues
allegedly of utmost importance, and potentially capable of causing
conflict of interpretation:
a) Valenza or circumstantial evidence of the results of the scientific evidence in the case of
violation of international protocols of scientific comunlta in order alia
repertazione and reading the data
b) usability dichlarazioni made by Guede in the appeal process. TO
respect, iI would be improper reference to the judgment under appeal to what he
reported during the interrogation, in the judgment acquired under DEWART.
238 bis; if those statements were used, it would be allowed in the vehicle
process, in violation dellastessa procedural provision, statements made in
the absence of any discussion.
c) Scope of esp! ication of the principle deJl'oltre if reasonable doubt that,
say the defense applicant would be violated in the case in front of the erroneous
affirmation of the national court that the lack of cooperation
II trial of the accused would be exempted from the judge take and analyze Ie
alternative hypotheses emerging from action from 0 prospettazioni defensive.
d) Limit; dl attendibiJita of witness statements (such as those Dramis,
Monacchia, Quintavalle and Curatolo), made after a long time by the facts, as a result of stress of journalists. II question of law and that of verifying the reliability of witnesses in proceedings to strong media impact, with particular riferlmento
texts and Gioffredi and Kokomani alia deposition pluripregiudicato Luciano Aiello,
who had not hesitated to make slanderous statements against the prosecutor, the
defender and the father of Raffaele Sollecito.
8
The intervention of the highest judicial forum was necessary because they were
set the evaluation parameters of the interviews in the processes at very high exposure
media, in order to preserve the credibifita of the process, by placing it sheltered from
forms of mythomania 0 of leadership judiciary.
In the introduction you ene, then, extensively examined the position ancne
Amanda Knox on reflection that I'erronea assessment of the evidence against him had
come to reverberate its negative effects on the position of Sollecito, in
distorted conviction that Ie two positions were substantial awinte by an unbreakable bond, almost in slngolare system of communicating vessels 0 of abnormal extension
"Solidarity" of responsibility. Everything to denounce I'erronea setting
methodology based on lack of "individualizing" assessment
role of the applicant in the tragic subject of judgment. And I'anzidetto relief
I'abbrivio gave a further complaint of legitimacy, namely the avoidance of the dictum of the judgment of annulment, which had delegated to the court referral if det
task to "outline the position of the competitors of soggettlva Guede in front of
range of hypothetical situations ", all specifically stated.
It is noted, then, that Knox had never placed, either in the memorial in
his signature (mistakenly considered content confessorio), iI Sollecito at the scene
the crime. Indeed the said memorial was given infer that it was not
present in the house on Via della Pergola.
Moreover, no trace of that Sollecito had been found in
dell'omici9io room. II only circumstantial evidence against him was represented by
traces of DNA found on the bra clasp of the victim; whose track
Traceability at the same defendant was, however, excluded from the survey Vecchiotti
Conti, who, on the point, had implemented Ie observations of the consultant, Professor.
Tagliabracci, world-renowned geneticist.
NOW, THEREFORE, sl can now proceed alia sum it indication of
many reasons of censorship.
1) it first, articolatissimo reason, you denunci.a violation of Articles. 627,
628 paragraph 3 and cod. proc. pen., for non-compliance princlpi of dirltto set
rescindente in judgment, particularly alia require: a)
the presence of the accused in the crime scene; 2) to outline the
subjective position of the supposed competitors Rudy Guede .; 3) to determine if
criminal motive of Raffaele Sollecito in relation to the one ultimately
ascertained in chief to Guede.
In relation of close connection with I'anzidetta censorship are then deducted
more Profiti grievance, specifically tailored to the logic of the defect
motivational, DEWART in mind. 606 letter. e) cod. proc. pen., closely related
alia denounced eluslone.
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- The first concerns the alleged refusal of the renewal of the investigation
hearing, expressed also in the order of 30 September 2013, although it
contested. the instance ritually proposed by the defense (in the grounds of the new 29
June 2013 and in the notes of the hearing of 30 September 2013) was designed to assess
I'effettiva presence of the accused in the crime scene and iI role played by each
occasion. It puts forward:
- Failure to take account of relevant criteria for the excuse of Sollecito, with
particular reference to the results of the integration of the imagesetter D'Ambrosio,
demonstration of the interaction of the accused to the computer of his property;
- Manifested illogical reasoning regarding prescription alia art.
533 cod. proc. pen .; in the absence of a kit able to overcome motivational II
limit the beyond the raglonevole doubt as ritenl alia: Jta participation
Prompt action homicidal and the role he played in the affair;
- Lack of motivation in relation to Articles. 192 and 238 thereof, with regard to
content of the judgment irrevpcabile charged to the Guede in order to identify
the motive omicidiaro.
IIIogicamente claimed had been denied the renewal of the investigation
hearing, time to dimostrarel'assenza accused from crime scene and
I'inesistenza of any motive, the more that judgment had already I'acquisita
established an independent motive, background sexed, the ends of the Guede.
Moreover, the denial of the renewal investigation also supplemented unlawfully, under DEWART. 627, second paragraph, in accordance with which "if and canceled the ruling on appeal and Ie parties request it, The judge has removed
I'assunzione investigation hearing for evidence relevant to the decision. "
Although not wanting to follow case law in order to I'orientamento
character had the renewal investigation hearing on appeal, alia
way as the right to the test, the national court was, however, obliged to state reasons
II denial of the request for new evidence in a rational and consistent with
iI under investigation.
Was among I'altro, request an expert on genetic stain
(Sperm apparently) present on the pillow of vittlma order
to verify the nature and attribuibilità to any third remained unknown; a perizla
biased towards I'effettiva chance to perform a cleaning directed alia removal
the only traces riferibill defendants today appellants in the room
victim, without removing those found in it and exactly attributed to Guede;
I'effettuazione of genetic investigations on finding 165 B, after obtaining at
forensic laboratories, the residue of the DNA extracted from the hook
bra and further investigations on the same genetic. finding, arranging
purpose an additional investigation in order to eliminate any reason to doubt the
10
about; investigations on the stone found in Romanelli's room, in order to
detecting the presence of DNA on superflcie of stone; audiometric examination time
to ascertain the possibility di- feel iI alleged heartrending cry from the
house on Via della Pergola and The noise of steps in windows chluse by the heads
Bolsters; computer expertise on computer Sollecito, in order to verify
Of the existence of actual human interactions in the night between 1'1 and 2 November 2007; expertise
anthropometric, concerning I'esame on size, height,
gait and physical features of the subject taken by the cameras at the junction
Parking, for it must be compared with Ie physical characteristics of Guede and
his abbiglialjl1ento when arrested; examination pursuant to Art. 197 bis of Guede
to the facts that took place the night of the murder. II rejecting anzldette preliminary requests had been mot vat to by the national
quo so not at all logical and relevant.
2) Violation of Article. 606 letter. s), with reference to the erroneous reading and
interpretation of the content of the memorial Knox.
3) Other motivational vice is deducted with reference alia held
· irrelevance determine the exact time of death of Meredith Kercher (which
according to the defense it would have to be placed between Ie hours 21 and 22 to the maximum
22,15), especially in reference to the examination of phone records of the users of
same Kercher.
4) Same as vice is complained alia alleged irreconcilability of
witness Curatolo, time the scream and the alleged irrelevance of investigations
predsa the time of death of the young Englishman.
5) Distorted it was also the reading of the testimony Bedside, which is
attached its transcript.
6) In view of the lack of motivation, appreciable according to the new
DEWART formulation. 606 letter. e) cod. proc. pen., is then complained I'erronea
reading the witness statements of the Curatolo.
7) The same as other things testimony Quintavalle and the failure assessment
the contribution of witnesses Inspector Volturno, which drafted the note
that same service 10 Quintavalle had reported seeing and Sollecito
Amanda always together.
8) In riferlmento the combined provisions of Articles. 606 letter. e) and 192 of the cod ice
Rite is, pol, complained .erronea assessment test function
dell'ipotizzato contest persons net crime, with particular reference to
disputed appreciation footprints foot, dry tracks and highlighted by
luminol.
11
9) It is, therefore, denounced misrepresentation of the test of the time rlguardo
call to 112, on the importance also of an alleged error in the timer of the camera
located in the vicinity of the parking lot.
10) The same is deducted violazlone with rlferimento claim alia, alteration
the scene of the crime by the two defendants.
11) Other profile motivational deficit, and even sub species of misrepresentation
0 shows the contradictory iIIogicita of motivazlone is complained, in
refer to art. 192 cod. proc. pen., about other things considered falsehood the excuse offered
and other things related violation of the principle not to incriminate oneself.
O'altronde, would rather Treaty of alibi "falJito", and already "false", as
such unfit to hold the "deduction circumstantial", under penalty of inadmissible
burden of proof.
12) Mistaken it was also the reading of the results of genetic testing on
Exhibit 36), and the alleged compatibiJita weapon seized with the most serious
lesion found to glue the victim. AI regard, it was obvious misrepresentation
in which it was incurred II national court, since the blade of the knife had not been
rivenuto DNA mixture · Sollecito Kercher. On the same tool you had been found
traces of starch, proof that it was not true that it has been thoroughly cleaned, to remove compromising traces. Also I'amido, present in vegetall, and notoriamjente with absorbent capacity, then it should absorb
where blood had been used to commit I'omicidio.
Oonde, the motivated request referral degJi his acts, dry
Also I'assunto the wound more serious alia the left side of the neck of the victim
could have been inflicted with a single shot was denied by unique emergencies
evidentiary, that the findings of the expert-medjco Iegale Cingolani, oltreche
the conclusions of the consultant Introna.
13) The reasoning of the judgment also criticized impugnataera
The alleged availability of the kitchen knife by Amanda Knox
at the time of the attack. In this regard, it was argued that it iIIogico knife
kitchen, used to I'omicidio, had not been concealed, because the redi-and
tools of the house rented by Sollecito were found in it, sicche iI missed
rlnvenimento knife potu would give rise to suspicion, donde ta needs
relocation in place after cleaning.
IIIogica was clearly the motivation in order to harbor the knife
the Knox asserted utilizto with the large bag in his possession, for
hypothesized ragloni-defense, induced by the same urge that purpose
He had safe dlmestfchezza with knives. She had not. taking into account that, in all
grant, to believe true such a justification, sl excluded at the same time,
I'ipotesi of the competition, as it was admitted that I'imputata was alone and not
12
awalersi could, in case of aggression by strangers, the possible defense
the boyfriend.
There was no evidence, however, he insisted on competition in the port of rlcorrente
unjustified knife.
14) Vistoso eral POi, iI motivational flaw on the findings of the investigation
genetlche on hooks, in order, dry quail was requested the referral of
acts, dry joint sections.
As alia posslbile contamlnazlone of the find, the carbohydrate content of appelJo had
neglected II photographic material poured into acts, which clearly showed H
Pollution can, for iI way hook II was treated with iI
In step mana mana by people wearing latex gloves dirty.
Moreover, the hook had not been made a second amplification
despite disponibiJe meta extract, but in fact it remained unused.
Moreover, iI hooks, while noticed during the first inspection of forensics, was left on the ground, on the floor, en had been for some
time. It was not true, however, that between the second and first access to in the course of which
II hook was, end alia, reperted, there would only statidue inspections
degJi inqLJirenti, which in reality were more numerous and in such occasloni everything was
It has been ransacked.
AI regard, were not taken into account the findings of the defensive and contrary
conclusions of the consultant prof. Tagliabracci.
15) There was travlsamento test also on the actual delivery of sal relating to the findings made by Dr. Patrizia Stefanoni, the
forensic science.
16) Other profile grievance relating to the motivational context concerns
simulation of theft claim in Romanelli's room and the lack of '
motivation about the reasons nuovl of which to the memory of 07.29.2013.
In this regard, it is clear that it was been 10 same urge to point alia police
Ie mail, received at the house on Via della Pergola for other reason (en discovery of
Kercher's cell, one of quaJi phone card bearing the letterhead alia
Romanelli), the strangeness of the situation, for it that the room
Khercher roommate and Knox had not been stolen computers and objects
value; that were not taken into account the testimonies deWavv. Paolo Brocchi and
Matthew Palazzoli, indicated in new pleas regarding theft committed by Guede with
mode similar to those that would be used for Vlntroduzione
in the house on Via della Pergola; that had not been examined Ie memories
defensive, even concerning, dry wounds to the palm of mane that Guede
He presented when arrested in Germany; that the evidence was misrepresented
with reference alia placement of vetrl, mail collected from testlmonianze
13
showed that fragments of glass They were both above and below Ie things present
Romanelli's room; which, after all, a piece of glass had been
Also found in the room. Meredith, a sign that those who had furtively
introduced had brought with him that fragment. It was, therefore, clear that the Senten ~ to appeal was based on pure conjecture, totally $ avul and reality
proceedings.
17) He complains, POi, violation DEWART. 238 bis of the Code. proc. pen., on reflection that
through I'acquisizione irrevocable judgments issued against Guede
it was intended rend eras utillzzabili statements made against alios in different context
procedural, although those statements had been made in the absence of
People blame. AI of the of this question, which was also in ordinealla
requested the referral, dry joint sections, Ie dichiarazloni of Guede had been.
incorrectly assessed, in violation of the parameters set out in Art. 192 cod. proc.
pen. and indications of this Court (p. 57). It was true that those statements
They were cited as mer ~ response, but it was still of statements
unusable. After all, I and 10 judgments concerned, even legitimacy,
I'assoluta showed unreliability of Guede.
18) Another violation DEWART. 238 bis cod. proc. pen. He was denounced
Reference alia considered binding of external judged.
19) Always in order, dry statements of Guede, its use
supplemented violation of Articles. 111 Cost., 526 paragraph 1a COd. proc. pen. and 6
European Convention. And also on the point it had been requested the referral of
question, dry Sezloni United.
20) If it had not been shared that approach, it was proposed issue
legittlmita constitutional standards that allowed you to bypass bans
regulatory, in order all'utilizzabllita statements eteroaccusatorie failing
people blamed, by the mere acquisition of irrevocable judgments
em them against the registrant and bearing Ie related propalazioni contra alios.
21) A 'deficit motivazlonale is pleaded in order all'ipotizzato
attempt to contamination of evidence on appeal, even beyond the formulation
dubitatlva expressed about it.
22) lacked motivation in order aggravating violence
sexual.
23) The same could be considered as theft of mobile phones belonging to rltenuto
alia victim.
24) Palese also was viotazione the principle of the beyond it reasonable '
doubt, also because of the failure to examine alternative solutions.
14
He complains, finally, failure to state reasons on possible changing the classification delJa
murder case in less serious fattispecle of aiding 0
delJ'omicidio manslaughter as well as on the application of mitigating circumstances.
4. The defenders of both defendants pol proposed new pleas.
4.1. In favor of Knox we were deducted two additional reasons.
The first alleges breach by you delJ'art. 606 letter. a), b) and) cod. proc. pen.
criticizing I'intero motivational process of the judgment under appeal, which it exceeded
I'ambito set by even exorbitant pronunciation rescindente, with the violazlone
Articles. 627, paragraph 3, and 623 of the Code of Procedure. It criticizes, in particular, I'anomala
setting in the chin of the judgment of annulment.
With second plea added sl complaint contradictory and manifests
INCONSISTENCY motivation in relation, awart. 533 cod. proc. pen.
It is proposed, finally, Application for postponement of the trial until the decislone delJa
European Court of Human Rights delJ'uomo, following the issue to the
Justice, sopranazlonale the appeal of 11/22/2013, for alleged infringement of the right to a fair trial, in accordance delJ'art. 6 par. 3 letter. a / c coppice for violation
the right to defense, under deJl'art. 48 par. 2 qella Charter of Fundamental Rights
deWUnione European; and for violation .of the prohibition of torture, including agJi Articles. 3
4 ECHR and the Charter of Fundamental Rights of the EU.
4.2. The defense of Sollecito proposed new grounds, as follows
summarized.
With it first complains defective reasoning sulJ'orario's death
> Kercher. To tell the defender, I'attento examination of objective evidence would
allowed to fix I'orario death over a period of between Ie hours
Ie 21 to 21.20 and 22.13.
The exact determination dell'exitus was essential for the / 'assessment
the real presence degJi defendants Sulja scene deJitto, to momentarily deWaggressione. _ Lj3 In particular, I'esame d.el cell of the victim revealed further contacts between
Ie at 21 and 22:13 Ie, as from consulting Pellero of sms and sull'anzidetto
telephone. II that would have allowed acquislre - if not certainty
existence in the life of the young Englishman, dry till 22.13, given the possibility of
accidentaJi contacts - at least some guidance in this regard.
More precisely, they risuttavano the following contacts in the time frame
consideration:
1) a first call, dry batteries 20,56, at number dl his home in England,
remained unanswered and, unusually, not followed by new call dates Ie
habits of the girl, the usual call, daily, to his family;
15
2) another contact, perhaps accldentale, dry batteries 21,50, to an answering machine,
It lasted a few seconds, without waiting for an answer;
3) a contact, dry batteries 22, alia British bank Abbey, obviously failed please
preceded by country code;
4) dry batteries 22,13, a text message is rlcevuto by phone, for C> in the place where it was
abQandonato was, in Sperandio.
On the other hand, the Solleclto riscontava I'esame computer interaction, dry
21.20 and then a subsequent dry batteries 21,26 discovery not by the police post - but by
consultant of the D'Ambrosio with use of another application system, MAC), for
watching a cartoon '(Naruto) lasting 20 minutes, demonstrating
that up, dry 21,46 II Sollecito was at his house.
II which was worth to dlmostrare I'estraneita accused, also evident in the light
Contact Skype elapsed between iI II Guede and his friend Benedetti.
It would, however, require further study computer science, unnecessarily
request by the defense.
The national court was then committed in clear misrepresentation in the evaluation
witness Curatolo, not realizing that I and statements of heads were
if anything favorable to the accused, especially in so far reported seeing the two
engaged in Piazza Grimana from 21.30 up to 24. There was, therefore, a contradiction
Inside the judgment: it was not true what is claimed to f. 50 in order alia
deemed to lack dl extrinsic that might help them to confirm that the two
Defendants from 21.30 until 12.30, dry About the glorno after they were in place
different from the murder scene.
In the reconstruction of the fact he had not, POi, given that testl and Bedside
Monacchia collocavano I'urlo heartbreaking perceived value around alle23-23,30.
Except that, the Bedside was denied by other texts, residents in the area,
They had stated that they had heard nothing.
It had not been also examined II movie recorded by the camera on purpose
near the car park which had recorded The passage of a subject
somlgliante for features and clothing to Guede. The time of recording
It was 19,41, 19,53 but effective, as there is a time difference of 120 13 minutes.
Even I'esame autopsy, according alia gastric situation, allowed to fix
I'orario death of Ie Ie 21,30 and 22. Moreover, in the examination hearing, II
consultant, dr. Lalli, had corrected an error contained in the elaborate technical
his signature, stating that I'orario of death would have to settle not already "in
not less than 2/3 hours after pastas (dry batteries occurred around 18, 'company
English friends) "but" no more than 3.2 hours after eating. "
Given this uncertain conclu5ione was unnecessarily request, in new motlvl
on appeal, On 07/29/2013, a new perizla.
16
In short, in the light of the procedural data, saying the defender, the correct time of death
the young Englishman would have to be set between 21 and Ie Ie approximately 22.13.
With iI iI second plea alleges failure to complete expertise aimed at
verify the possibility of a selective pullzia the scene of the murder, in the sense
the removal of only the traces related to the accused, lasclando those of Guede.
In fact, the room Kercher had been found traces -numerosissime
Guede and Sollecito's no.
SI also claims the alleged defect motivational alteration of the scene
the crime by the accused. He had not, however, taking into account that the
Sollecito had no interest to pollute.
II with third plea complaint defect motivational in order, dry tracks
Plantar footprints! r! wounds footsteps of plede dl woman (size 37) and in point
demonstration competition of people in the crime.
With reference, dry footsteps, there was an obvious error in judgment, this
Also in the judgment annulling the Supreme Court (p. 21), since the
single fingerprint found in the room Kercher was Guede.
The fourth reason repeats II habit of violating the law, with rlferlmento lI'a to rt.
606 letter. c) and e) In the test point of the crime and the violation of Articles.
111 Cost., 238, 513 and 526 cod. proc. pen. sull'utilizzabillta interrogation of
Guede and compliance with the criteria vatutazione call complicity.
With The fifth plea alleges misrepresentation of evidence and illogical manifested in
order the outcome of "genetic ell'indagine on knife (Rep. 36) and on the alleged" no
incompatibility "of the instrument with the wound in the neck of the largest found
victim. That suggests altresl, violation of criterl assessment test in art.
192 cod. proc. pen.
With iI sixth plea alleges lack of motivation for failing to take account of the violation of the international recommendations on repertazioneed to <study of the remains of small entities and interpretation of results. It also claims misrepresentation of evidence and .v '"oglcita manifests motlvazione on exam results
Genetic as well as the kitchen knife violation of the evaluation criteria of the test,
in art. 192 of the cod ice rite.
With iI seventh motlvo is alleging failure to give reasons in relation alia
violation of international recommendations on repertazione and analysis with respect
the genetic esaml on hook (Rep. 165 8) and sull'eccepita contamination
finding, during the searches and inspections carried out by the judicial police.
With I'ottavo reason denounces violazlone Articles. 192 and 533 cod. proc. pen.
interpretation of genetic examination on exhibit 165 B and lack of motivation
sull'eccepita violation of international recommendations regarding interpretazlone
the mixtures of DNA.
17
With iI ninth plea alleges violation DEWART. 192 cod. proc. pen. and manifests
iIIogicita DEHA for misrepresentation of scientific evidence, because if failure
. DNA evidence in this case.
With the tenth plea concerns manifested illogical reasoning with
reference to the test of luminol with reference alia alleged presence <.ii footsteps
bloody in the environments of the house on Via della Pergola and on the bath mat
well MANIFEST INCONSISTENCY motivation in reference traces, dry commingled Knox
Kercher alia and evaluation of circumstantial evidence, concerning the payment of people in
offense.
With I'undicesimo plea alleges manifest contradiction in iIIogicita 0
reasoning as regards the motive valutazlone homicidal.
With en · twelfth plea alleges identical vice motivational and misrepresentation
the evidence concerning the time of the call to 112.
With iI thirteenth plea alleges identical defect motlvazione with reference
aWalibi and the alleged attempt by the urge to cover up the alleged correa Amanda
Knox.
With it the fourteenth plea concerns infringement of the principle of law
enunciated by the Supreme Court and violation of the canon of judgment of the beyond it reasonable
doubt, which awart. 533 cod. proc. pen.
CONSIDERING THE LAW
1. Ragloni dfordine logical exhibition impose J'esame at the outset of the issues
preliminary objections raised by the parties.
It is, in truth, the problematic aspects of preliminary relief, since
potenzlalmente able to condlzionare subsequent DEVELOP · the decisorl, who, even though they are lacking
substantial finality, can nevertheless take decisive effect,
at least in order that the 0 of the suspension of the proceedings.
Shall refer, first, other things matter of constitutional legitimacy
the combined provisions of Articles degJi. 627, paragraph 3, and 628, paragraph 2, cod. proc. pen.
for alleged infringement of the principle of reasonable duration of the process, in art.
111 Const .; alia referral request pending the decision of the European Court of
Human Rights, to hear the appeal brought by the defense of Amanda Knox
lament the coercive treatment which it would be submitted dagJi
investigators during the preliminary investigation; aile multiple requests of the defense of Raffaele
Reminder why are rlmesse alia knowledge of the United Sections of the Court
Squeeze questloni particular time, either because of their objective
importance both as susceptive dl lead to conflicts in interpretation
jurisprudence of this Court.
18
2. All requests Ie are clearly unfounded.
2.1. Lo and, primarily, the revived question of constitutional legitimacy of
As regards standards of judgment for reference. And Indeed, the answer is ineccepiblle
motivation of the national court, which, by order of hearing of 30.9.2013, I'ha
deemed manifestly unfounded 1 0 however, irrelevant in this case. To
arguments put forward in relation to the first issue - that flag as the dynamics of
relations between judgment and judgment of legitimacy rescindente rescissorio court's
referrals to be inspired by a progressive narrowing of the thema decidendum, that,
at least in tendency, ad libitum preclude a prolongation of the process - pub
added the consideration that the progressive I'effetto delimltazione res iudicanda and pursued by the legislature as possible brought not only the judgment rescindente, considered in itself, but an ~ h and the provisions DEWART. 628, paragraph 2, of the
procedural code, that in any case the judgment of the national court PUD be
contested only for reasons unconnected with the points already decided by the court of cassation or for breach of the provision / Article 627, paragraph 3; is
art. 627, paragraph 4, cod. proc. pen., that "can not be pointed in
Findings referral nul / eng, even absolute, 0 inadmissibility, which occurred in previous
0 ratings during the preliminary investigation. "
Prohibition, this, that the case law of legitimacy, in large majority, extends
Also all'inutilizzabilita, as considered expression of a general principle
order, which gives (trend), dry finality of decisions of the Court
law (Sec. 5, n. 10624 of 12/02/2009 ,. Barbara, Rv. 242980; Sec. 5, n. 36769
of 03/10/2006, Caruso, Rv. 235,015; Sec. 1, n. 22023 of 18/04/2006, Marine, RV.
. 235,274; and, on the subject of court injunction, Sec. 6, n. 47564 of 14/11/2013,
Tuccillo, Rv. 257,470; contra, Sec. 3, n. 15828 of 26/11/2014, Rv. 263343).
Pub, then, assert that iI legis / ator has designed a module to trial
progressive formation (the principle of so-called "progressive judged"), which could,
plastically, assimilate - at least in size "static" - alia figure
geometric "concentric circles".
On altrondel iI Judge laws - in the occasions indicated net use of signature
adv. Ghirga and Dalla Vedova - has already got to the occuparsl questlone,
declaring inammisslbile based on arguments that Ie today prospettazioni
defensive seem unable to scratch, without anticipating elements argumentative
such as to make reasonably foresee a possible different decision-epilogue. No pub, however, fail to mention that the criminal process and, constitutionally, leaning alJ'accertamento of material truth, even through a progression cognitive,
which, as amended from possible errores in proceeding or in iudicando, meantime
intervened, lead to his last, in terms of approximation as pill
19
possible to that goal, making alia collectivity a result commonly understood
"Processu truth, ale", ie truth procedurally established (or rather, what and
could be ascertained by normal means epistemological and inferential available iI court). II all, nell'ineludibile compliance forms of ritual, that
They represent peacefully ultimate expression dl legal civilization and prestigious
distillate of a secular maturation process of scientific knowledge, typical
Italian legal culture.
And when it concerns, as in this case, in terms of process exquisitely
circumstantial - in the absence of direct evidence, reliable contributions of techno-scientific 0
relevant and usable contributions declarative - pill so the truth of the case,
unmoored from reality effectual and phenomenal, it ends with I'essere mere legal fiction,
given the limited tools and ordinary debatable human knowledge,
entrusted, commonly, a reconstructive process and rielaborativo retrospectively. Sicche, and just like that it evenlenze respect of the forms and the pill
necessary, representing unfailing parameter - target and privileged - the
testing of correctness and fairness of the cognitive path of the judge in the problematic
approach alia truth material.
All'anzidetta and verification and, in fact, called this Judge of legitimacy, with
ab extrínseco powers of cognition, ie limited to only the external control
procedural fairness and prudence and logical consistency of the whole of the evidence
Cognitive progression, without any possibility of appreciating iI real thickness
demonstration of the evidence used in it.
Of course, with the chief finalizing it must link it constitutional principle,
art. 111 Cost., The reasonable duration of the process, aimed at unraveling
through phases and scans predetermined time. II pursuit of the ultimate goal (of truth rlcerca material) - ~ so pill in highly sensitive processes such as the present, the difficulty that requires
I'espletamento of exhausting activities inquiry and investigation techniques particularly
complex - must, therefore, conjugated 'with I'esigenza dl response of giustiziale
duration as short as possible pill, for obvious reasons of respect for the value / person
of those involved and the inescapable demands of justice of the injured parties and
of the community.
2.2. It has no value, then the request for the defense of Amanda Knox once a referral
of this case pending the decision dell'adita European Court of Justice,
invested - as a result of statulzione alia achieved finality of conviction for an offense II
slander, now covered by partial judged - the complaint of treatments
arbitrary and coercive inquirentl that would be placed in harm dell'indagata,
Today the applicant, to the point of restricting his will and to prejudice its moral freedom, in
DEWART violation. 188 cod. proc. pen.
20
Indeed, any judgment of the European Court itself favorable alia
Knox, in keeping with the wishes of the recognition of an unorthodox treatment
investigators in relation wont, could not in any way dent II judged
internal, not even in view of the revision of posslblle sentenzal consid, erato that Ie
slanderous accusations that the same defendant turned to Lumumba as a result of the alleged
coercion, healthy were also confirmed by her before the prosecutor, during the interrogation,
So in a context, institutionally, free from abnormal pressures pslcologichei
and were confirmed in the memorial in his signature, in a time when i'a
same accusatriGe was alone with himself and his conscience, in terms of objective
tranquility, to riparp by environmental conditioning; and they were even repeated after
some time in the validation of the arrest of Lumumba, before the magistrate
proceeding.
2.3. It should, finally, also rejected the defense request to urge aimed at
get the referral, dry United Sections of this Court issues alia
probative value of findings sclentifiche acquired in violation of the protocols
International, bearing specific provisions intended to ensure the genuineness of the
repertazlone and analysis; the criteria of evaluation of witness statements in
processes with high esposlzione mediatlca; usability of statements accusatorle
transposed into acquislta judgment pursuant to art. 238-bis of the same cod ice rite.
It is, in all evidence, issues of particular moment, to secure rllevanza
flnl to the definiiione this gludizio, but of dubious capacity dl engender
potential conflicts jurisprudence. At each Modol are envisaged nodes
interpretative alia whose solution pub, of course, avoid this college, with relevant
exequatur also it equipped with binding force for the definition of this
giudizlo.
3. Given the above online preliminary, pubs now face each II central theme of
This judgment, constituent leitmotif of the complaints of the applicants around alia
pregludlzlale complaint alleging failure by the gludite court, the dictum of
rescindente Cortel alia judgment of this way as the principle of dlritto in it
He said. The investigation request to the Court and - only apparently - easy, mail that the ratio decidendi of the judgment annulling resides nelrilievo dl manifests iIIogicita
the grounds of the judgment under appeal; chel POi relief, is substantiated - and you
specific - the detected breach of the principles of completeness and of not
CONTRADICTORY. Orbenel and peaceful acquisition jurisprudential chel in the presence of such a reason dl annulment, relating to motivational deficit, it national court and invested cognition deWintero collection of evidence, which is called upon to revisit
“If it is not right do not do it; if it is not true do not say it.”-- Marcus Aurelius
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KayPea
 
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Re: 2015 Sept Google Translation of ISC Motivation Report

Postby KayPea » Mon Sep 07, 2015 10:06 am

This poor translation by Google Translate captures the gist of the Motivation Document and can serve as a placeholder until a proper translation is completed
Pages 21 to 40


21
in full freedom of belief, without constraints of any kind, it is only required to
make, as a result, motivational response devoid of vices manifest overt iIIogicita 0
CONTRADICTORY "which led to the first decision of I'annullamento
appeal. In the jurisprudence of this Judge of legitimacy and, in fact, the plaintiff
I'affermazione that following cancellation for lack of reasoning, the / national court is bound by the prohibition and found the new decision sug / 0 iIIogici the same arguments deemed deficient by the Supreme Court, but remains free to
be received, based on arguments other than those censored when legitimacy or integrating and completing those already carried out, the same result
decisional judgment is canceled. CIA because it is solely for the trial court if the task of rebuilding the facts resulting from emergencies and procedural
appreciate the significance and value if their sources of evidence (among other Ie, Sec. 4, n.
30422 of 21/06/2005, Poggi, Rv. 232019; Sec. 4, n. 48352 of 29/04/2009,
Savoretti, Rv. 245775).
One problem - shadowed, with considerable discretion in new pleas
favor of Knox - arises when, as in this case, it judge of legitimacy
did foray into the "about", overflowing from the institutional limits to it
assigned, as when, for example, reports a range of causal Ci1ternative of
homicidal and checks made to the judge in charge of identifying it, in that numerus
clausus predetermined, the most appropriate to the case. There is no doubt, in
Opinion, that in such, singular, national court cases it can not
considered in any way bound by it conditioned, just because of the cut
discrimen of institutional order that, as we have said, exists between knowledge of
legitimacy and full knowledge of the fact, the latter the exclusive prerogative of the trial judge. In these terms, moreover, is already expressed and the jurisprudence of this Court '' C :) Supreme, when stating that it referring court can not be conditioned by '§) findings of fact eventually escaped to the judge of legitimacy in their own arguments , essen do different; plans on which they operate and their assessment Ie
being what the Court of Cassation to overlap if its belief in
that of the trial court in order to these aspects. Moreover, if the Supreme Court
dwell possibly his attention on some particular aspects that demonstrates the
0 lack the contradictory "motivation, cia does not mean that if Judge
return s; a; nvestito the new trial only on specified points, since he retains the
same powers that originally competed as a court of mer ito
concerning the identification and aI / a data assessment proceedings, as part of
head of the ruling affected by cancellation (Sec. 4 no. 30422/2005 cit.). In the same
sen know, and you said that [....] matters of fact and assessments contained in
annulment judgment are not binding if the national court, but detect
only as reference points to the finding of defect 0 viz;
22
I I I i
reported, and not so as data that are necessary for the decision entrusted to him; also there and no doubt that, as a result of its annulment for lack of motivation by the indication of the specific points of deficiency 0 of inconsistency arising
iI power of the national court does not confine itself to considering the individual pug specified points, as if they were isolated from the rest of the evidence, but also acompiere and taking any other measures of investigation whose results must base the decision, provided it
justification in the judgment (Sec. 4, n. 44644 of 18/10/2011, defendant F., Rv.
251,660; Sec. 5, No. 41085 of 03/07/2009, accused L., Rv. 245,389; Sec. 1, n. 1397
of 10/12/1997 dep. 1998 Peace, Rv. 209692).
II all against the backdrop of the recurring lesson of this Judge of legitimacy, to
point established to constitute jus receptum, that the powers of the national court
They are different depending on whether I'anhullamento was ordered on infringement 0
erroneif1 application of criminal law, or for lack 0 manifests illogical reasoning, jackets, while, in the first instance, the judge and bound to the principle of law expressed by the Court, which recognizes the assessment of the facts as
established in the contested measure, in the second pubs possible to proceed to a new
examination of the collection of evidence with the limit if not to repeat the vices of motivational
measure annulled (Ie among others, Sec. 3, no. 7882 of 10/01/2012, Montali, Rv.
252333). 3.1. As sl will see, iI national court and, in pill points, remained conditioned by prospettazione profiles factual unexpectedly emerged from the judgment rescindente,
Ie almost as stringent and analytical assessments of the Supreme Board had,
. ineluctably, converging in the direction of deWaffermazione guilt of the two accused. Misled by such a misconception dl bottom, 10 the same court and then committed a glaring logical inconsistencies and blatant errores in iudicando, ranging in this
office reported.
4. It can not, meanwhile, escape, in this first approximation of an assembly, that the history of this process and characterized by a troubled path and inherently contradictory, about the only matter of irrefutable certainty:
Amanda Knox's guilt in order, dry slanderous accusations against Patrick
Lumumba. As regards, however, Jlomicidio Kercher, alia ruling of
guilty of that Knox and Sollecito, in the first instance, followed by a
pronunciation acquittal by the Court of Assizes of Perugia, at the conclusion articulated
new evidence; I'annullamento of this Supreme Court, First Chamber
Criminal; and finally, the conviction in the court, the Assize Court of Appeal
Florence, now burdened with new appeal in cassation.
A process objectively wavering, Ie which oscillations are, however, also the result
of sensational defaillances 0 "amnesia" investigative and guilty omission! of activities ..
23
indaglne of which, if carried out, would, in all probability, permitted, since
diving / to, to capture a picture, if not certainty, as I no tranquilizer
reliability, in view of cotpevolezza you want alienness of today
recurring. Such a scenario, inherently contradictory, is, itself already,
first, eloquent signal of a set of evidence that anything marked
if evidence beyond reasonable doubt.
4.1. Of course, an unusual clamor mediatlco of the story, not only because of dry batteries
dramatic mode of death of a twenty-two, and so absurd
incomprehensible in its genesis, but also other things nationality of the people involved
(A US citizen, Knox, accused of the murder of a competition
same age, her roommate in the sharing of experience of study abroad; a
cittadlna English, Meredith Kercher, was killed in mysterious circumstances in place
where, presumably, sl sentlva more protected, ossla to "home"), and therefore the reflections
"International" in the same story, did sl Ie that investigations would suffer a sudden
acceleration, which, in the frantic search for a 0 more culprits to be delivered
the public internaz / onal, has certainly g / ovate alia research Detla truth
substantial, that, in this case homicidal issues, such as the one in question, has
as inescapable postulate not only the timing, but also the completeness and correctness · dell'attivlta investigation. Not only ~ but when - as in this case I / outcome of that activity of research and greatly entrusted, dry results of scientific investigations, I'asettica repertazione of all relevant investigations, dry environment in ~
where he is guaranteed after sterilization, sl to place it away from possible pollution
- Is notoriously II first, prudential measure, unfailing prelude
- In turn - a proper analysis and "Iettura" samples repertatl. When, then, the central moment dell'attivlta of technical and scientific research and represented by specific genetic investigations, whose contribution of investigative and increasingly ~ relevant, reliable parameter of fairness can not be that "compliance
standards set by international protocols that summarize Ie basic rules
approach required by the scientific community, on the basis of statistical observation
and epistemological.
II strict compliance. such royalties methodology provides a coefficient,
conventionally acceptable reliability of the results obtained, primarlamente
Repeatable linked alia alia Government'- in other words the same chance that the evidence, and only
ones, occurring in the constancy of the same procedure of investigation and identical
conditions, according Ie basic laws of empirical method and, more generally,
experimental science, founded, from Galileo Galilel, on the application of the "scientific method" (typical procedure designed to attain the knowledge of reality "objective", reliable, verifiable and condivisibife; mode notoriously consistent,
on the one hand, the collection of empirical data in relationship, dry, dry theories and hypotheses from
24
screening; on the other, and rigorous mathematical analysis of these data, ie as associating for the first time stated by the cited Galilei ~ Ie "sensible experiences" dry batteries
"Necessary demonstrations," that makes experimentation alia mathematics). 4.2. As you will see, all cia and substantially failed in this case. Not only that, but I'attenzione media, in addition to other things only help to search for truth,
produced more harmful reflections, what MEND in terms of "diseconomies
procedural ", generating undue" noise "(in the computer), not so much
on the side of the late availability alia testimony from certain
people (considering that in this case it is a question always verification of reliability of
relative contributions declarative), as in the process of impromptu deJl'irruzione
propalazioni of persons detained, tested thickness of criminal, certainly not
insensitive to instances of mythomania and judicial leadership, still capable of
assure them the limelight even television, breaking, at least for a day, II gray of prison regime. Fifth and treated, between I'altro, not unusual claims of "carriers" of truth collected in prisons, on the occasion of misplaced
confidences of fellow prisoners in the now classic air 0 of partner / eng. Situaz_ioni certainly
not commendable, who, nevertheless, they had iI about, to ensure - for
first time at the court - I'attiva participation in this process of Rudy Guede
(That cited during the proceedings at first instance, he had exercised the right not
answer: f. 3): key element of the story, although incrollabllmente secretive (and
never confess), bearer of half-truths, however, from time to time different. Rudy Guede and II Ivorian citizen though it involved in the affair Kercher. Judged separately, as a competitor in the murder, and was cOhdannato, following summary proceedings, other things worth thirty years, later reduced on appeal to sixteen years.
The reference to him is to introduce second alia, irrefutable certainty
this process (after the relative responsibility of the Knox alia for the crime of
slander), that guilt proven by preliminary irrevocablle, the same
Ivorian as author - in competition with others - the murder of the young Englishman.
AlI'affermazione guilty of that had been reached on the basis of genetic traces, surely he rico ~ to normal business, found in it the home of Via della Pergola, the victim's body and the room in which he had been committed I'omicidio. 4.3. The same reference places, POi, two important profiles of law raised by
defense: one pertaining to the usability and value dell'anzidetta final judgment in
these proceedings; I'altro · usability of the declarations made - in terms far
that marked by consistency and perseverance - by Guede, as part of its process,
that somehow they can involve gil recurring today.
4.3.1. As alia Question I'utilizzazione the final judgment in the
This judgment, for all possible reflections, and irreproachable, as compliant at
dictated deJl'art. 238 bis cod. pen. According to that provision, '[....] Ie judgments
25
become irrevocable may be acquired for the purpose of evidence in them identified and be evaluated in accordance with Articles 187 and 192, paragraph 3 ". However, the "fact" noted in the judgment in question and, unquestionably, the participation of the murder Guede, "In competition with other people, remained unknown."
The recall, dry procedural rules Indicate means that I'utilizzabilita of such determinations and subject alia double condition of amenability of that fact all'alveo of '' under test ", relevant in these proceedings, subsistence and other things
other evidence that confirm I'attendibilitil. Double check that, in this case, is not successful, largely positive. And in fact, and clearly the relevance of that fact, aliunde established, the object of knowledge of this case. Equally correct and its assessment in relation to other findings processuaJi, suitable to reaffirm I'attendibilita. It intends to do
reference to multiple elements, linked alia overall reconstruction of the incident, which
Guede exclude that it may have acted alone. First, they militate in favor of
sense Ie two principaJi wounds (actually three) found on the neck of the young Englishman,
one the one hand and the second hand, with diversified trends and characteristics attributable, probably (although the data and challenged by the defense) at two different cutting weapon. And yet, the lack of signs of resistance from the girl,
Ie under which nails not being revealed traces of the aggressor will rlsultando
aliunde any desperate attempt to opposition; Ie tumefazloni upper limbs and Ie
bruising in the jaw area and sores (likely to manual action of constriction
time to plug the mouth of the victim) found during inspections and cadaverous
Ie mode especially chilling murder, not properly exploited
in the contested judgment.
And in fact, the same pronunciation (ff. 323 and 325) that copious sketches
blood were found on the door right cabinet located in the room Kercher,
to about 50 C. M. floor: the fact that, having regard alia placement. and other things
degJi same direction, would, perhaps, potu to imply that the young person is
literally been "slaughtered", when, verosimllmente, kneeling with head bowed II, by force, to II floor, a short distance from furniture, and was drawn from more stab wounds to the neck, one of which - the one inflicted on the left - has
certain death by asphyxiation resulting from massive blood flow, which
Also lying in the airways' I'attivita preventing respiratory situation worsened
from breaking the hyoid bone - also due to the action of tagJiente - with
resulting in dyspnea "(f. 48).
Mechanical action very difficult due alia conduct of one
person.
Except that, iI relief factual, if properly exploited, would also.
potu not to be meaningless in light of the examination of motive, as
26
I'efferatezza criminal action could be considered - for abnormal
disproportion - very little compatibite with any of the situations envisaged in judgment,
ie mere disagreements with .Ia Knox (also contradicted by the evidence collected,
even of the same mother of the victim); with sexual impulses of some of the participants
and, perhaps, with the same idea of a sex game gone wrong group, which, however,
It not caught any feedback on the victim's body, beyond the violazionedella
its intimacy by a gesture manual Guede, for it dna him riferlbile
found in the vagina of Kercher, of which, however, can not exclude the conscious
membership, during dlun preliminary physical approach, initially shared.
That importance is even less compatible with I'ipotesi delJ'irruzione in house
an unknown thief, when you consider that, in the natural order degll ordinarl
events, if eben possible for a thief, at the sight of a young woman, may
be seized by uncontrollable sexual pulsionl and attack her, very difficitmente after
I'aggressione physical and sexual, leaving 51 to go to a free murder, but with the
brutal ferocity of the case, instead of giving themselves to hasty flight. Except, of course, not to
think alia disturbed personallta of a serial killer, but in acts of which there is no trace
no, not that resulting in Perugia, in that time period dl, are stat! committed
murders of other girls with the same mode. 4.3.2. As alia second question on possibility to use alia
through the mechanism of acquisition of art. 238 bis cod. proc. pen.
statements made by the contra alios Guede as part of its proceedings in the absence
ineolpate people and its defenders (with reference statements, dry, not
eoerenti and always constant, it made during the preliminary investigation and reported in judgment,
during which he had somehow involved the Knox nelJ'omlcidio, but never
it explicitly Solleelto while continuing to profess innocence, despite the
presence in the place of the murder and the victim's body in numerous biological traces referring to him), the solution can not be that bad. Indeed, such a. CR mode of acquisition would result in expedient elusive guarantees dictated 'JI art. 526 paragraph 1-bis of the Code. proc. pen., which provides that "Ia guilt
accused puiJ not be established on the basis of statements by persons who by choice 5; and always voluntarily avoided examination by the '; 0 mputato his counsel. " Palese would, at the same time, the violation delJ'art. 111, paragraph
fourth, Const., that at the end of that same prescrizlone armonlzzare II system
aile DEWART procedural provisions. 6 letter. d) of the European Convention dlritti
Man (Sec. F. n. 35729 deIl'01 / 08/2013, Agrama, Rv 256 576).
In this regard, it is useful to recall iI Principia "not sostltuibilitaff, cut Dalje United Sections of the Supreme Court More broad category of" Iegalita
the Provan, on reflection that, when the end ice cod establishes a prohibition or evidentiary un'inutilizzabilita expressed, and it may not appeal to other procedural instruments, or tipicl
27
atypical, intended to circumvent surreptitiously a 'similar barrier (Sec. U, n.
36747, of 28/05/2003 "Torcasio, Rv. 225 467; see" well, Sec. U, n. 28997 of
19/04/2012, Easter, Rv. 252893).
And even in this process, iI Guede - called to testify as a witness of
reference, following accusations of dichiarazionl affected Mario Alessi
(Convicted of a horrendous murder of a child in harm) - after having denied II
propalante, confirming iI content dl a letter he sent to his Legall and, then,
unexpectedly, it turned to a news broadcast, in which he accused gil today's applicants, and POi essentially subtracted examination of their defenders. And in fact, do little I'autenticita recognizing the letter, in which belied categorically what
Alessi was referring to, in order to alleged his confidence on the fact that Raffaele
Sollecito and Amanda Knox not had to do anything with I'omicidio, it has not Understood
answer examination by the defendants' lawyers, assuming that his presence in
process (as heads of riferimemto) was limited only to the content of the statements
dell'Alessi which 10 concerned. Hence, the I'inutilizzabilita stated - in part
Relative alia part of the letter that interested anyway GJI today's recurring - that no 'and recoverable in different procedural context, since made outside prescrltte guarantees.
On the other hand, in return for such irremovibiJe feeling of isolation;
properly iI national court has provided, albeit of ufficlo, new enforcement
dell'ivoriano, after that, as a result of the irrevocability of the judgment awarded to her
load, had failed the lncompatibilita to testify in this gludlzlo, under
DEWART. 197 cod. proc. pen.
And in fact, in mind delsuccessivo art. 197 bis, paragraph 4, of the same code
rite, he could not be compelled to give evidence about fattl for quail had rlportato
condemnation, it is having always denied by the prosecution, his responsibility and,
can not, however, give evidence involgenti its responsibility in relation to the offense for which you and proceeded against him. 4.4. Finally, always in line outset, it must address the question of ritual,
raised by the defenders, regarding the rejection of the 'room / d / rlnnovazione
investigation hearing in the trial court, also for the purposes of
required expert surveys.
The exception is based on the importance of the alleged obbligatorleta request
Integrazlone evidence, as did the other things partlco / are DEWART formulation. 627, paragraph 2, the second part, that "[.....] If annul and / ata a judgment of Appel / o Ie parties (Year request, if the court has the renewal of / 'investigation
I'assunzione hearing for evidence rifevanti for the decision. "
Throughout evldenza, the letter of the rule differs from the general rules governing
ordinary powers of the court of appeal in that field, in accordance with art. 603 cod.
28
proc. pen .: "no decidability state deg / s acts, in the case referred to in paragraph 1, for
I'ipotesi that the request relates to evidence already gathered 0 new; rlchiamo the criteria
which in lI'a rt. 495, paragraph 1, for I'ipotesi of new evidence discovered after the judgment of
first degree; "Absolute necessity" deWintegrazione investigation, in case of renewal,
ex officio, as well alia special case (originally planned and now repealed, to
Under DEWART. 11 law 04/28/2014, n. 67) in favor of the renewal request
defendant was in default in the first instance.
The Board opines that the particular wording of the rule is not mentioned
autorizzl to believe that II national court, in the case of annulment of the judgment
• appeal, is obliged alia renewal investigation hearing merely because
Ie parties that so request. To conclude otherwise would not have foundation
rational and, indeed, it would introduce an element in the overall discipline dystonic
institute.
Moreover, the first part of the second paragraph of the same article. 627 cod. proc. pen. states that iI national court .decide with GJI same powers as the court whose judgment has been canceled, prejudice Ie limitations arising from the law. For a reconstruction of harmonic architecture and codicistica obbJlgo, then, believe that the special system of the renewal of the investigation in the judgment
postponement is not derogatrice of the general scheme dalJ'art. 603 cod. proc. pen.
Moreover, in hindsight, the call, in paragraph 2 of Article. 627 cod. proc.
) Pen., The taking of evidence "relevant" for Ja decision is a mere superfluous language, since it's judgment and relevance necessarily immanent alia assessment appeal court seized of the request
new evidence and at the same appreciation of absolute necessity which must
inspired the renovation officious. And in fact, in any case of renewal,. They could be admissible under investigation hearing process tests that are not "relevant" to the decisionei and 10 same applies, more generally, for J'intero ~ segment of proof in a criminal trial, in consistent application of fondatnentale
principle laid down by Article. 190 of the Code of Procedure, according to which the judge must admit
Ie evidence requested by the parties, with the exception, oltreche those prohibited by law, the
evidence "manifestly unnecessary 0 irrelevant".
To that effect and, with this understanding, it deserves, therefore, to be confirmed
I'orientamento expressed in the matter by the Supreme Court on previous occasions
(Sec. 5, n. 52208 of 30/09/2014, Marino, Rv. 262 116, according to which the judge iI
reference, invested in the process following cancellation pronounced by the Supreme Court, and not required to reopen J'istruttoria hearing whenever Ie parties request it, as his order; healthy identical to those that had iI court whose judgment and annul been / ata so angry he must have I'assunzione evidence indicated only if Ie same healthy indispensabiJi for the decision, as provided by / 'art.
29
603 cod. proc. pen., as well as relevant, as it stipulates I'art. 627, paragraph two,
cod. proc. pen .; Sec. 1, n. 28225 of 09/05/2014, Dell'Utri, Rv. 260,939; Sec. 4, n.
30422 of 21/06/2005, Poggi, Rv. 232,020; Sec. 1, n. 16786 of 24/03/2004, De
Fa / co, Rv. 227924).
And 'no doubt, then, that the powers conferred at t'esercizio national court concerning
investigation, as usual, should be suitably substantiated and the reasons and, certainly, sindacabile when legitimacy. Well, in this case, it made national court gave reason for the denial
the claimed new evidence, considering it irrelevant to the decision.
However, in other respects, the reasons for the denial to emerge implicitly - but not for
· less clearly - dalt'insieme motivational, it felt complete II
collection of evidence in proceedings. O / other hand, there is no reason to believe that, despite the peculiarities of the trial court, should not apply, in the field, it generated principle for which the expertise and test medium neutral, subtracted alia availability of Partl and put back alpotere
discretion of the judge, Wherefore they fall into the category of "pro goes dec / siva" and if its decision refusing not sanzionabife under 'art. 606, first paragraph, letter. d) cod. proc. ' pen., as it is the result of more than a judgment that, if supported by adequate reasons, and sole point of law (Sec. 6, n. 43526 of 03/10/2012, Twisted, Rv. 253707).
5. Resolved, within the time aforesaid, Ie questionl ruling and the preliminary
rite, now face each pub iI "merit" of the process in relation to the content of
articulated appeals.
First, it should be noted that, in order alia contravention of which at head b) on at port iIIegittimo knife shown in the phone book, and now course II limitation period, as from the date of commission.
VIth not but take note, in the absence of more favorable dell'evldenza causes
acquittal on the merits, in mind DEWART. 129, paragraph two, cod. proc. pen.
so piualla light of the rulings of. conviction of first degree and second court
of Assizes.
Moreover, according to undisputed teaching of the legitimacy of this Court
formula acquittal riel Wed / to prevail on the d / chiaraz / one of improcedibilitB for
intervened prescription only in the case where it is detectable, with a mere activity
reconnaissance, I'assoluta absence of pro go of guilt against the accused owero
positive proof of his innocence, and not even in the case of mere CONTRADICTORY 0
insufficiency of evidence that requires an appreciation weighted between opposing
risu / tanze (Sec. 6, n. 10284 of 22/01/2014, Culicchia, Rv. 259 445).
“If it is not right do not do it; if it is not true do not say it.”-- Marcus Aurelius
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KayPea
 
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Re: 2015 Sept Google Translation of ISC Motivation Report

Postby KayPea » Mon Sep 07, 2015 10:07 am

This poor translation by Google Translate captures the gist of the Motivation Document and can serve as a placeholder until a proper translation is completed.
Pages 30 to 40


30
6. It can now proceed with a consideration of the motivational structure of the judgment
contested, made the sign of multiple complaints.
Already at first sight do not escape discrepancies, inconsistencies and errores in
iudicando, that disrupt, ab imis, the overall resilience of the argumentative structure. 6.1. Erroneous, first, and I'affermazione relative alia substantial irrelevance of the investigation of the serious incident homicidal motive. The assumption is not shared alia way as undisputed teaching of this Court regulator (since Sec. 1, n. 10841 of 24/09/1992, Scupola, Rv. 192865), in
ordlne alia relevance of motive as the glue that binds the various elements through which the test sl and constituted, the more processes circumstantial evidence, such as the present. Not only that, but its value and strengthening it in the key of circumstantial evidence and, of course, other things conditional upon verification of the coefficient of reliability of the evidence,
for clarity, precision and consistency, following an appreciation of analytical
themselves, taken in isolation and then framed in a global perspective and unlta ~ ia
(Sec. 1, n. 17548 of 20/04/2012, Sorrentino, Rv. 252 889 in the wake of Sec. U, n.
45276, Andreotti, Rv. 226094 ~ ccording to the "cause", although it could be
element of confirmation of involvement in the murder of the individual concerned
the physical elimination of the victim WHERE converges to its specificity and
exclusivity, in a single direction, however, as it preserves the per'se a margin of ambiguity, in fact act as a catalyst so pug and intensifier of the valence
evidence of the positive test of responsibility, from which we can logically infer, based on rules established and reliable experience, the existence of actual
made uncertain (ie the possibility of ascribing crime if the principal), since the outcome of the appreciation of analytical both of them and in the context of an overall assessment
of together, the clues, even by virtue of the key to supply the motive, they present clear, precise and consistent for their unique significance).
II which, as sl tell short, this may not ritenersl in the present case "in front of a
compendium circumstantial not unique and inherently contradictory.
In particular, none of the possible causal ventagllo solutions indicated by the same judgment rescindente sl and could be detected in this giudlziO. II sexual motive, attributed to Guede in the proceedings against him, 110N and extensible outright the alleged competitors; as has been said, I'ipotesi of Gloco erotic group found no evidence of sortai not possible to envisage for each competitor alleged motive translated 0 combined by virtue of the condivlsione
0 this that other motivation. On the other hand, such an extension postulerebbe
I'accertamento sure of interpersonal relationships between them sharers, which, although
occasionality or impromptu deWaccordo criminal, make 'a likely
Similar translation.
31
Now, if it peaceful and sentimental relationship between Sollecito and Knox, and if it is found that the young man had got to know, on occasion, iI
Guede, there is no evidence that he ever attended Sollecito knew 0
I'ivoriano. On point and certainly contradictory and manifestly illogical to recognize (in
f. 91) I'irragionevolezza hypothesis of involvement in murder as "bloody" in
complicity with unknown person, to exclude any possibility of involvement of
roommates Fitomena Romanelli and Laura Mezzetti (which, of course, did not know iI
Guede), and does not extend that argument to urge that he is not ill
even known I'ivoriano.
6.2. Another error of judgment lies in the assessment considered irritevanza
the exact time of death of Kercher, believing sufficlente I'approssimazlone
time offered by accertamentl peritati, while correct in the examination
hearing.
In this regard, it is right to complain to the Sollecito defense signaling the need
the relative determination, especially in procedures circumstantial evidence such as this, for each
consequential implication. Not only that, but I'esatta determinazlone time of death
Kercher and ineludibite factual premise for the excuse offered verlfica ago ·
by the accused, according to the survey to ascertain the possibility dell'asserlta her.
presence in the house on Via della Pergola at momenta of the murder. And for this, and it is
asked specific assessment expert.
However / even on the point and gave a record in deplorable carelessness
the preliminary investigation stage. Just consider / regard that the findings of the police
Judicial had proposed a trivial arithmetic mean between a possible term
initial and a final date possiblle (from 18.50 in November, dry deW1 about 4.50 of
next day), arriving to fix, in this way, the correct time of death, dry 23 to 23.30
about. The tests on the apparatus stomach of the victim, who, in the late evening, had
ate breakfast with you English friends, allowed - again with
approximation, amended in the examination hearing - to narrow it more time range. The Court court further restricted t'arco temp ~ rate, contenend% in the time period between the L Ie about 21 November (time that Kercher you take leave from an English friend) and Ie 00:10:31 the next day, on the basis of the recording ·
(Resulting from acquired taboo / ati telephone) of a signal on one of the phones
same Kercher intercepted by a cell telephone service from the area and located where
Via Sperandio, near which those phones had been abandoned by the authors
murder.
But also such major sufferers approssimazlone because, he / time last
indicated, Meredith Kercher was gla dead, albeit for a short time, just because it signal and been registered in the area where the phones are. abandoned, after being
32
been stolen, immediately do little I'omicidio, in the house on Via della Pergola, that is some
dalluogo hundred meters of their discovery.
The, applicant's defense offered in this regard, a / analysis far more affidablle /
as it anchored in factual incontrovertible. An examination of telephone traffic and emerged, in fact, that, after greeting her friend en English of 211 hours the young man had in vain tried to phone to relatives in
England, as she used to do every day, while a last contact had been registered, dry 22,13, SO THAT the arch of time and COSL been further restricted to the range 21.30 / 22.13 approximately.
7. . No second critical remark, which gave and move alia contested judgment, introduces the central theme of judgment, ie alia value attributable processale aile
results of scientific evidence, particularly, dry genetic investigations,
acquired in contravention of the rules consecrated by international protocols. No question, despite its specificity, is part of the lively debate on doctrinaire
the relationship between scientific evidence and criminal trial, in search of a problem
balance between I'orientamento - not insensitive to certain suggestions of landings
interpretation across the border - which tends to recognize more and more weight to
contributions of science, although not valldati the scientific community; and I'orientamento
it claims that the rule of law and assumes that, in accordance with its own rules of aile
criminal trial, may find entry remain only proven experience scientiflche
according to the canons methodological commonly shared.
II cultural debate, while respecting the principle of freedom of belief
Judge, also aims to critically revisit the notion, now obsolete ~ dl
doubtful credibiJita, the judge "peritus peritorum". In fact, the old maxim
expresses a cultural model no longer present and, indeed, declsamente anachronistic,
at least in misurain which claims to be assigned to the judge to reate capaclta
govern the flow of scientific knowledge that I and parts flow back into the process, where
instead a 'More realistic setting 10 wants completely unaware of those contributions, that'
iI are the result of scientific knowledge that it belongs gil and can not - it must belong to him. II and all the more true in science genetics, Ie complex methods which postulate a specific knowledge in the field of forensic genetics,
chemistry and molecular biology, which relate to a wealth of
knowledge distant light years from the formation, purely humanistic and legal,
the magistrate.
The inescapable consequence acknowledgment of this state / egittima ignorance of
Judge, and therefore its incapacitit to govern "independently" is proof
scientific, can not, however, be I'acritico expectations, which would - even for
a misguided sense of free conviction and equally mallnteso concept
33
"Expert of peritilf - a substantial rinuncla its role, through .fideistica
accettazlone contribution expert, whose delegate I / ck of judgment and, therefore, does
responsibility for the decision.
O'altronde, if in the presence of a technical contribution scientlflco former one-fringes, ie
coming from one of the parties to the proceedings, owero Official provisions by the same
Judge, puc) constitute commodus discessus paraphrase, so pill less noticed, Ie
technical arguments advanced in support of the paper, sl The problem arises,
drastically, when, in the face of opposing scientific contributions, the same
gludice is asked to make a choice of field, jackets, in this case, the paraphrase pill and very challenging, however requiring a motivation relevant and appropriate to explain the reasons Ie Ie which I'alternativa prospettazione scientlfica not
sharable (see. Sec. 6, n. 5749 of 01.09.2014, Homm, Rv. 258630, that iI
Judge considers to join, dry conclusions, the designated expert, in those difformita
the consultant of the parties, without being burdened detl'obbligo of fornlre in
motivation, self-demonstration of the accuracy of the first scientific and dell'erroneita, conversely, of the other, "and still held" alia demonstrating that Ie perltali conclusions were assessed "in terms of relia / eng and
completeness ", and which have not been ignored Ie arguments of counsel).
The Court considers that the delicate issue, as it may affect
definition of this judgment, should be resolved Neue general rules
iI inform our procedural system, and not already from a different aspect, the abstract claim
a primacy of science on the right 0 vice versa. The scientific evidence can not, in fact,
aim for a credit of unconditional self-reliability during the trial,
for iI fact that it repudiates any idea of criminal trial legal proof. O'altro hand, known to all that there is only one science, portatrlce of absolute truth and immutabHl over time, but many sciences 0 pseudoscience, between the official and
not validated by the scientific community, as an expression of research methods
not universally recognized.
And then, the answer to this question will not be able to go through iI to call
principles and rules governing I'acquisizione and training of proof in
criminal trial and ,. therefore, the criteria governing alia evaluation.
The reference coordinates will be those relating to the principle of
contradictory and control of giudlce the process of formation of evidence, that
must be respectful of prearranged guarantees, aI / in which compliance must be,
strictly, parameterised iI judgment of reliability of its results.
Or so that, a result of scientific evidence puc) be considered reliable only if
is controlled by the judge, at least with regard to the reliability of subjective
Who supports 10, SCIENTIFIC alia the method used, the margin of error pill 0
MEND and acceptable to the objective value and reliability of the results obtained.
34
In short, according to a method of critical approach dlssimile not conceivably be
that required for I'apprezzamento of prov ~ ordinary, to enhance dl, as
pili posslbile, II degree of reliability of the "truth of the case" 0 - if you prefer
reduce to reasonable marglni I'ineludlbile gap between truth and procedural verlta
substantial.
Moreover, in. Procedure of the inductive-logic inference, which allows
traced by the fact known to the unknown to try, The judge, in full freedom of
conviction, pubs use any element that provides the bridge between the glue 0
two facts in question and which permits the rlsalire from that known to the unknown, second
parameters of reasonableness and common sense. No liaison pub, therefore, be II pili varied: the cd "Rule of experience," legitimized by the common heritage of knowledge from direct observation 0
phenomenal reality, which registers the repetitiveness of certain events of constancy
identical, certain, cond / zionl; a scientific law, of universal value 0
just statistics; a law those members of logic, who presides and directs the
mental paths of razionalitaumana alia, and anything else you have.
II evidential reasoning that allows you to switch from the element of proof to
test result falls within the exclusive jurisdiction of the trial court, which must, of course, furnish adequate motivazlone and that, in terms of circumstantial evidence, and called a dual screen proof: a first control relevant alia cd
I'giustificazione outside ", through which 10 the same judge must test the validity
the rule of law experience or scientific logic 0 owero of each other
Rule used; and a second control relevant alia SO-CALLED "Giustificazioneinterna"
by which it must be shown, in practice, the validity of the result achieved
I'applicazione by the "rule-bridge" (Sec. 1, n. 31456 of 21/05/2008.
Franzoni, Rv. 240764).
7.1. Both considered in general and abstract, it is now considered, in
specifically, a listing of all of that particular pili wide problematic.
In the present case, in fact, it is not to ascertain the nature and admissibility of a
scientific method at all new (albeit long practiced elsewhere), as in
the case examined by the judgment Franzoni, sull'ammlssibilita of "Blood
Pattern Analysis "0 BPA (practice, already known in the United States and Germany, the result
the combination of scientific laws of different disciplines, universally
recognized), as examined are Ie findings of genetic science, of
conc / beloved reliability and increasing use and usefulness in the investigation
judicial.
Moreover, this Court, in pili occasions, has already recognized the importance
procedural survey conducted on the genetic DNA, expected number of I'elevatissimo
anniversaries confirmatory statistics, such that the infinitesimal chance of a
35
error (Sec. 2, n. 8434 of 05.02.2013, Mariller, Rv. 255,257; Sec. 1, n. 48349 of
30/06/2004, Rv. 231182).
SI is, rather, to ensure that they can take on the value of the case
results of the genetic place in a context of very little accertamentl and reliefs
respectful of the rules consecrated by international protocols and those which,
ordinarily, it should inspire I'attivita scientific research.
In making implicit reference to judicial interpretation of leglttimita, iI
national court did not hesitate to attribute the outcomes aforementioned relief indiziarlo (f.
217).
The assumption puc not be shared.
Indeed, the jurisprudence of this Supreme Court, mentioned above, has
recognized genetic investigation - precisely because of the degree of affidabillta • plena value of going pro, and not of mere circumstantial evidence in accordance with art. 192, paragraph
second, cod. proc. pen .; adding that, in cases where the genetic investigation does not result
absolutely certain results, its outcomes pug be attributed evidential value (Sec.
2, n. 8434 of 05.02.2013, Mari / ler, Rv. 255,257; Sec. 1, n. 48349 of 30/06/2004,
Rv. 231182). Which it means that, if you put in terms of Identity, gil
genetlca inquiry findings are relevant evidence, while in case of mere
compatibility with a particular genetic profile, have rillevo merely circumstantial.
Such statement of princlpio needs, however, to unaprecisazione. As a general trend, dry batteries and related conclusions can join, provided peri> it is shown that I'attivita of repertazione, preservation and analysis of the findings have been
respect the rules of experience consecrated by the protocols on the subject. II that must
apply a fortiori, even if minor, where Ie results of the analyzes do not lead
a result of identity, but only compatibility.
The principle of the necessary c9rrettezza methodological stages of collection, storage and anallsi of the data examined, as to preserve integrity and genulnita, and
It was affirmed by this Court in Sec FI n. 44851 of 6.9.2012, Franchini, albeit not massimatal In terms of test information, the relief that those rules have been incorporated in the Criminal Procedure Code with the amendment to paragraph 2 DEWART. 244
cod. proc. pen. and the new case DEWART .. 254 bis of the same Code, introduced
by Law No. 18.9.20081. 48. raglone supporting risiedel awiso to this Court, the very notion of clue provided by the code ritol that art. 192 paragraph 2, provides that "The existence of a fact not pug be inferred from evidence unless these · are not serious, precise and consistent", so that an element processualel to rise to the dignity of indiziol must have the characteristics of gravital accuracy and consistency, following a pattern borrowed calla civil law (art. 27291 paragraph PRIMOL cod. civ.).
These characteristics are summarized in SO-CALLED "Certainty" dell'indiziOI although this requirement
36
not expressly set out in Article. 192 cod. proc. pen., paragraph 2. 5i is for real, additional connotation unfailing held by settled case-law
and intrinsically linked alia same system of circumstantial evidence, through which,
with process log.ica formal sl reaches alia demonstration of the theme of proof
unknown fact - starting from a known fact and, therefore, established as true. Ben
means, infattl, that such a procedure would, in essence, deceptive and unreliable,
when he moved from factual premises not precise and serious and then some. Prejudice,
of course, it understood that the certainty, at issue, should not be taken in terms of absolute truth 0 of ontologically; the certainty of data and circumstantial evidence, 'in fact, still a category of a procedural nature, taking part of that species
of certainty that is formed in the process through iI probative procedure (see.,
also on point, the judgment Franzoni).
Alia way as those considerations can not be seen, just as iI analysis data
genetics - that sl sla held in violation of the prescrizloni protocolll regarding
repertazione and conservation - can be said to be endowed with the character of gravity and
precision.
And in fact, crystallizing the results of proven knowledge, gained FOLLOWING
Repeated experiments and significant statistical evidence of experiential data, those
rules summarize the standards of reliability of the results of the analysis, both in
hypotheses of identity, that dl mere compatibillta with a certain genetic profile.
Otherwise, the data acquired could not reconnect any significance, even
mere indication (see. 5EZ. 2, n. 2476 of 27.11.2014, dep. 2015, Santangelo, Rv.
261,866, the necessity of proper storage of supportl bearing Ie footprints
genetic, for the purpose of "repeatability" of technical assessments able to extrapolate II
Profile geneticoi repeatability also dependent on the amount of track and
Quality of DNA present in the biological samples in kidnapping; id. n. 2476/14 cited. Rv
261867). In this case, and certainly those methodological rules were not observe (see., Among others, ff. 206-207 and Ie recalled the findings of
skill Count-Vecchiotti, dlsposta by the Appeal Court in Perugia).
Just consider, in this regard, Ie retrieval mode, and repertazione
retention of two objects dl greater investigative interest in this
judgment: the kitchen knife (rep. no. 36) and hook II closing victim's bra (rep. no. 165 / B), in order to quail and not hesitated, in judgment, to the qualiftcare I'operato investigators in terms of the fall of professionalism (f. 207).
II 0 knife kitchen knife, found at the home of 50llecito and found the murder weapon, and were found in it and, then, kept in an ordinary cardboard box, such as those who make the gadgets natallzi, ie Ie agendas which gil institutions of
credit, by custom, fanna tribute, dry car rita local.
37
Most unique - and disturbing - and the fate of the hook of the bra.
Net noticed during the first inspection by the scientific police, the business scope and are
neglected and left 11 on the floor, for some time (less than 46 days), until
when, in the course of new access, and were finally raccotto and reperted. Sure
that, in the space of time between inspection if and when it was noticed that in
which was found in it, there were other entrances of the investigators, who rummaged everywhere,
moving furniture and furnishings, alia seeking evidence helpful, dry investigations. II
hook was perhaps trampled 0, however, shifted (much to be found on
Tiled place other than that in which it was initially noticed). Not only,
but the photographic record by Sollecito's defense shows that,
when repertazione, if hook was changed hands in mane of operating,
which, moreover, wearing latex gloves dirty.
Asked about the reasons for the failure, timely, repertazione, the funzlonaria of
forensics, Dr. Patrizia Stefanoni, tell in the hearing that, first, do not
sl was considered appropriate repertare II hook because ..... was already reperted
I'intero undergarment of viltima. It was not, in short, any given
importance to that little detail, even though, in common perception,
it just said locking system and the greater part of investigative interest,
It is manually operable and, therefore, potential carrier of biological traces
Useful, dry Investigations.
InoJtre, Ie traces they encounter while on the two exhibits, which Ja 'analysis led agll outcome of which
tell hereinafter, they were of small entities (Law Copy Number, with reference aJ
hook see. ff. 222 and 248), which does not allow to repeat J'amplificazione, namely the
procedure to "highlight Ie traces gene of interest," the sample "(f.
238), and therefore to attribute a biological trace to a particular genetic profile.
Based on the protocols on repeat analysis (<< least twice ':
examination dlbattlmentale Major CC dr. Andrea Berti, expert appointed by the Court of
reference, f. 228; "Three times," according to if prof. Adriano Tagliabracci, technical consultant
Sollecito's defense, f. 216) and absolutely necessary because if the result of the analysis may be considered reliable, Sl be marginalized if risk dl "false positives" in margins
statistical insignificant relief.
In essence, this is nothing more than for the validation procedure 0 forgery
own of the scientific method, of which we have said earlier. And significantly, the
regard that the experts Berti-Berni, officers of RIS Rome They carried two
The amplifications track rivenuta sulfa blade educated / I (f. 229).
In the absence of verification for the given repetition of Investigation, there wonder what
It may be the relative importance of the case, regardless of the theoretical debate
More emphasis on 0 me no scientific findings of the survey carried out on samples
0 complex so meager, not to allow its repetition.
38
And 'conviction of this Court that the scientific truth, however elaborate,
can not be automatically transferred into the process to be transformed, eo ipso, in truth processua / and. As we have already said, the scientific evidence has as' inescapable postulate Ie Directory to verify its findings and may take ritevanza
aspire to the rank of "certainty"; jackets, otherwise, do not call reliability. But,
regardless of scientific importance, a matter not occurred, precisely because free
the necessary characteristics of precision and gravity, can not attain, within
. procedural, even the value df clue. Of course, in this context, is not it nul / a, to feel tamquam never existed. And fact, and still a matter of procedure, which, even though they are no independent value demonstration, and still susceptible of appreciation, as I am not in terms of mere confirmation, send in a set of elements already with overwhelming scope
sintomatlca. In this lurks therefore I'errore judgment when incurred and iI national court
assign, however, the outcome of the genetic evidential value of insuscettivi
amp / ification or the result of unorthodox collection procedure and repertazione.
7.2. IN order to dispel OGNL posslbile equlvoco about it, be worth, POi, consider
that all'imposslbilita attribulre of appreciable relief dimostratlvo in chlave
procedural, with outcomes of genetic indaginl not repeated and dlvenute fettered dl rlpetizione for eslgulta 0 complexity of camplone, not given obviate it by calling all'efflcacia and usability of technical assessments "irripetibililf, where, as
in this case, you have been observed Ie Defense guarantees in art; 360 cod.
proc. pen. And infattl, Ie investigation techniques referred to this norm
proceedings are those who - for perspicuous positive formulation - concern 'persons, things 0 places where the state and subject to change ", in short any kind of situations that typically 0 to lora nature, are changing so angry is needed
crystallize without delay 10 was already in the preliminary investigation stage, for fear of irriduclbill modifications, with that outcome, in accordance with the ritual forms dl, and intended to "also be used during the oral. That and allowed as to accomplish I'accertamento , even in case of impossibility of repetition to change the thing to periziare, and capable of evigenziare reality "compiutelf or entities with demonstrative value. Net present case, in spite of the forms referred I'osservanza
art. 360 of the Code of Procedure, since it acquired - not repeated 0 to not suscettibite
Repeat for any reason - can not it be relevant evidence it
circumstantial, just because, according Ie mentioned laws of science, needed
Validation 0 forgery. In short, in both cases if empirical data, promptly "photographed", assumes slgnificatlvita dlmostrativa; while in the other and no such dl
39
capacity, precisely because its value indicative and inextricably linked alia sup
0 repeat repeatability.
8. Van no, POis, in rapid succession, identified profiles obvious inconsistency
motivational logic in fabric of the contested judgment.
8.1. A given case of incontrovertible value - for what will be said below - and represented dall'assolta lack, in the room of / 0 on the murder victim's body, with certainty of biological traces related to the two defendants, where,
instead, were found abundant traces slcuramente attributable to Guede.
It was an impenetrable monolith on the road taken by the national court for
I received the statement of co ness of today's recurring, already acquitted
murder by the Appeal Court of Perugia.
To overcome the application of that negative element - irrefutably favorable agll today's recurring - unnecessarily sl and argued that, after the simulation of the theft, gil authors of the crime would carry out an clean "selective" dell'amblente, to
Ie to remove sun compromising traces, pertaining to them, while leaving
those ascribable to others. The assumption and manifestly iIIogico. For cog Ii erne, fully, the coefficient of inconsistency and certainly not necessary for it to rely iI riJievo special investigation expert, though stressed by the defenders. E ', of course, impossible alia way as
elementary rules of ordinary experience, un'attivlta dl cleaning directed, capable,
moreover, to escape the pads luminal, whose application by the investigators
(Useful to highlight also traces other than blood), now it falls in
heritage of common knowledge. Moreover, 10 self employed alleging a caution in cleaning and denied in point of fact, given that "in the small bathroom" were rlnvenute
traces of blood on the carpet, on the bidet, the tap on the container of cotton flock, and ~
on the switch. Yet, in the case of guilt of odi.erni recurring, certainly "-Y
would not lack them time for thorough cleaning, in the sense that there
were those reasons of urgency that they should animate the authors of
crime, probably worried the possible arrival in the house dl others. In fact, the Knox knew well that Romanelli and Mezzetti were out Perugla fatt6 and would not return home that night, then there would be all time II
need for a thorough cleaning of the house.
Referring aile alleged traces of blood in the other areas, in particular in the corridor, and then there is a clear misrepresentation of evidence. And Indeed, I s.a.1. forensic (acronym for "the advancement of work", was showing 10 successive
phases of the Scientific investigations and risultatl gradually achieved) were excluded, According
aJl'utilizzo of a particular chemical reagent, which, in the environments considered, Ie tracks
40
highlighted by nature had luminal blood. Such certiflcati, ancorche
regoJarmente acquislti and present acts, and not taking into account akun. Not only that, but it manifestly iIIogico regard, I'argomentare the national court which (f. 186) considers that it could overcome the defensive I'obiezione In order alia
circumstance that the luminescent reaction bJuastra caused by luminal occurs
even in the presence of different substances from the blood (for example, residues of detergents
Javaggio, fruit juice or more), on the ground that I'assunto, while theoretically
exact, but was "in context", in the sense that, if the fluorescence occurs
in the environment concerned by the fact homicidal, the reaction which can not be referred to
traces of blood. The fragility of the argument and that, already ictu oculi, will not require any notation, having, peraltrol believe - COSL oplnando - the house on Via della Pergola
He had not been subject to ill putizia 0 not environment "experienced".
The relief allows, therefore, to exclude, categorically, that it was dl
bloody knowingly removed the occasion.
Another very contradictory logic concerns Ie explanations given by the national court in
order alia theft of phones Kercher, of which 0 I'ignoto the unknown authors,
while abandoning Via della Pergola, they were undone after f'omicidio, tossing them in a
ground below the road, in that, in the dark, it seemed open
country (where it was, instead, a private garden). Far from plausible, in fact, and the justification that the phones would be taken to prevent any ringing · ringer could
iI to discover the corpse of the young Englishman ahead of its time assumed, without
consider that such finaJita could, more easily, be achieved
off those phones 0 by removing the battery.
And 'then clearly iIIogico - oltreche disrespectful of the reality of the case
iI rebuild motive of the murder on the basis of alleged disagreements between Kercher and
Knox, also exacerbated account from which the English girl moved alia roommate for
You have brought into the house II Guede, who had used a little Bath City (f.
312). The "veritaft dall'ivoriano offer in one of the statements made in his trial (and usable, for quantosi and said, only in so far do not involve the responsibility of third parties) and, instead, another. The young man was, In fact, in the bathroom when, according to him, he had sentlto Kercher arguing with another person, which had
perceived the female voice of SO THAT II motiv9 dell'alterco could not be
made use egJi that had done service.
And 'well iIIogico and contradictory II important argument that, in an attempt to give
Body in those disagreements (which contradicted by other evidence), does not hesitate to
I'ipotesi recover the stolen money and credit cards that would Kercher
charged alia Knox, despite the fact that, with the final ruling, the same Knox, as
“If it is not right do not do it; if it is not true do not say it.”-- Marcus Aurelius
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KayPea
 
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Re: 2015 Sept Google Translation of ISC Motivation Report

Postby KayPea » Mon Sep 07, 2015 10:07 am

This poor translation by Google Translate captures the gist of the Motivation Document and can serve as a placeholder until a proper translation is completed.
Pages 41 to 52


41
it Sollecito, had been acquitted for "lack of fact" the crime of theft
Ilmitatamente the aforesaid goods (f. 316).
E ', pol, arbltrario, failing dl any rlscontro procedural move in
dl the house on Via della Pergola sltuazione that Knox, in one of his dichiarazloni, had
described and contextualized In dlverso time frame and logistics, being ossla
Garibaldi n. 130, home of Sollecito: watching a movie, consumption Amazing
light type, sex and night rest alia lasted until late morning
Nov. 2, then in the previous time, contextual and next alia
murder was committed. Just to introduce, on the slope of the dynamic
action omicidiariat II posslblle destabilizing effect and mind-numbing drugs: CIA ripetesi, in the absence of any rlscontro, also because - among many omissions Ie
or questionable investigative strategies - law enforcement bodies, while a repertando mozzlcone
cigarette, found in the ashtray of living and bearing biological traces related
a profile genetlco mixed (Knox and Solleclto), did not carry out the sort analisl dl
nature of the preparation, for The fact that such an investigation would have involved
I'impossibilita ascertain iI genetic profile, making "Unfit" II champion. IS
all cia II with brilliant result of delivering to process a given absolutely
irrelevant, since, paciflcamente, Sollecito frequented the house in Via della Pergola,
As sentimentally attached alia American girl; if, instead,
I'accertamento nature of the find would, perhaps, to offer ideas potu
investigation of particular interest. The relief above and emblematic of the overall setting DEHA part of the contested judgment concerning the affair alia rlcostruzione substantial,
summarized in par. 10, with iI tltolo: final assessments.
E ', of course, undeniable 10 interpretive effort lavished by the national court in order dl
ovvlare -for unbridgeable gaps investigative and evidence flashy defidt dull activity
speculative and suggestive topics 10giCi, while merely assertive and dogmatic. Now, though, and no doubt that the factual reconstruction and exclusive responsibility of giudlce merit and not for the Court of legittimlta alia whether its decision
effettlvamente mlgliore can propose the reconstruction of the facts, they share the
justification, albeit that that Judge limited to determining whether this is giustiflcazlone
compatible - according to a formula rlcorrente glurisprudenziale - "iI with common sense
and with limitl a plausible debatable appreciation "(Ie among many, Sec. 5, n.
1004 of 30/11/1999, dep. 2000 Moro G, Rv. 215745), or / treche complies aile
evidentiary emergencies, in the light of the amended DEWART head. 606 letter. e) cod. proc. pen .; and true that the version reconstructive presce / t, although in compliance with the rules of ordinary logic, should, nevertheless, be snug alia rea Eng procedural and
act as principal result of a process of critical evaluation of -data probatorl
ritually acquired. Insommar iI rlcorso alia loglca intuition and not in a pua / cun
42
suppllre way to evidentiary deficiencies 0 to inefficiencies investigation. Faced with a
missing evidence, insufficient 0 contradictory iI judge should simply take
act and issue a judgment of acquittal, pursuant to art. 530, paragraph 2, cod.
proc. pen., even if animated by genuine moral conviction of guilt
accused.
There are, then, glaring errors in the fabric of the judgment in motivational
exam. COS !, is entirely erroneous I'assunto f. 321, according to which in the
imperceptible strlature knife believed the murder weapon (Rep. 36) had been discovered DNA traceable to Sollecito, oltreche alia · Kercher. The relief, in fact, and in contrast to the widespread exposure of the part relating to that finding (ff. 208 sS)
As we report in Ie results of genetic tests that had attributed the
A track alia Knox, track B alia Kercher and, finally, that I - / I examination of which had been unjustifiably pretermesso expertise in Count-Vecchiotti - and was attributed, following further study, same alia Knox. As I will be said below, peaceful
the allocation of tracks A and I to today's applicant II reference track Balla
Kercher not have puc - Ie already for these reasons - character of certainty, since it is
low copy number, therefore small sample of entities, such as to allow a single
amplification (f. 214). But nowhere it is that it traces knife recasse
related biological profile genet / co Sollecito.
9. ritevati errores in iudicando and Ie reported logical inconsistencies invalidate,
funditus, the judgment under appeal that, deserves, therefore, be quashed dl.
Those reasons are summed up in crippling lack of a prospettazione
framework evidence that they felt might, actually, iQoneo to support a ruling
dl guilt over II limit of reasonable doubt in mind DEWART. 533 cod. proc.
pen., in the amended dalJ'art head. 5 of Law no. 46 of 2006.
In order alia discussed scope prescriptive, 0 less, the standard and the possible
reflections on the side of the assessment of the evidence, this Court has had to legitimacy
Pill times occas / reiterate that one of the statutory provisions of the regu / a judgment
of '' beyond a reasonable doubt "which is based on the principle
the constitutional presumption of innocence, has not introduced a diver and know more
restrictive criterion of proof, but if codified principle
case law that the pronunciation of conviction must be based on the certainty
the case of liability of the accused (Sec. 2, n. 7035 of 09/11/2012, dep.
2013 Bart De% mei, Rv. 254025; Sec. 2, n. 16357 of 02/04/2008, Crisiglione, Rv.
239795).
It is not, in essence, an innovative princlpio 0 "revolutionary", but
the mere formalization, with character reconnaissance, a rule already giudlzio
This neWesperienzagiudiziaria of our country and, moreover, already positivizzata,
43
since formally acquired out conditions for sentencing, given the
existing rule, in art. 530, paragraph two, cod. proc. pen., for which,
in case of failure 0 contraCldittorieta test, I'imputato must be acquitted
(Sec. 1, n. 30402 of 28/06/2006, Volpon, Rv. 234374). Based on these premises you and, if POIL established principle that the rule of judgment summarized in the formula "beyond reasonable doubt", requires
pronounce sentence on the condition that if given evidence acquired let out only remote eventuality, while .astrattamente formulated and reasonable possibilities as possible "in
Rerum Natura ", but whose effective realization, in its factual context, showing no
although the minimum response in emergencies procedural, setting out
the natural order of things and the normal human rationality (Sec. 2, n. 2548 dated
12/19/2014, dep. 2015 Segura, Rv. 262280); Ie that related enunciazloni
alternatives reconstructions. the story must be based on reliable evidence,
because II doubt that Ie not inspire pub based on assumptions merely conjectural,
even though it is plausible, but must be characterized by rationality (efr. Sec. 4, no. 22257
of 25/03/2014, Guernelli, Rv. 259,204; Sec. 1, n. 17921 of 03/03/2010, Giampa, Rv.
247449; Sec. 1, n. 23813 of 08/05/2009, Manikam, Rv. 243801).
9.1. The lnsieme inherently contradictory compendium of evidence, whose objective perplexity and emphasized by evldenziato already wavering trend of court case, does not allow then to believe exceeded 10 standard of reasonableness of the doubt, whose consecration and conquer civilization giurldica, ranging
always protected as an expression of fundamental valorl
Constitutional, formed around the central role of the person in the legal protection and other things which also functional, within the proceedings, The principle of the presumption of innocence Until assessment definitiv ~, which awart. 27, paragraph
second, of the Constitution.
9.2. The terms of the objective CONTRADICTORY can, as follows,
puntualizzarsi for each applicant, in a synoptic prospettazione elements
favorable hypothesis of guilt and elements to the contrary, as COSL,
of course, they are DAJ head of the judgment under appeal and the previous rulings. 9.3. AlI'esame degll aforementioned depth / Ii it should, of course, take into account that, the peaceful
murder was committed in via della Pergola, I'ipotizzata presence in the home
ricorrentl of today, no pub, in itself, be considered demonstrative element of
guilt. Evaluative approach to problematic collection of evidence, as
offered by the national court, not the pubs do not keep account of the legal categories of
mere connivance not punishable and the competition of people in crime committed by others and
the same distinction in between Ie, as carved from undisputed teaching
jurisprudence of legitimacy.
44
In this regard, and ius recptum that the dlstinzlone lies in the fact that the first postulates
I'agente maintains that behavior merely passivoj 'unfit to make
any contribution alia implementation of the crime, while if the second requires a contribution
participatory positive - 0 moral material - another's criminal conduct, even in
forms that facilitate 0 strengthen iI respect of criminal with current (Sec. 4, n.
4055 of 12.12.2013, dep. 2014 Benocci, Rv. 258,186; Sec. 6, n. 44633 of
31/10/2013, Dioum, Rv. 257810; Sec. 5, No. 2805 of 22/03/2013, dep. 2014, Grosu, Rv. 258953). Likewise undisputed that distinction and II reflected on the subjective dimension, since the competition of people in the crime I'elemento subjective resolves
mindfully rappresentazlone and will of parteclpe dl cooperate with other
subject alia common realization of criminal conduct (Sec. 1, n. 40248 of
26/09/2012, Mazzotta, Rv. 254735).
9.4. However, a matter of indubbla odlerni significance in favor of the appellants, in
sen know to exclude their participation all'omicidlo material, while assuming the
Their presence in the house on Via della Pergola, consists precisely in the absolute lack of
biological traces in their related (except the hook of which more will be said later) in
0 room murder on the body vittlma, where instead they encounter while many have been
traces referring to Guede. Incontrovertible and I / impossibility that the murder scene (which consists of a small room: 2,91x3,36 ml, as reproduced in planlmetria f. '
76) Residual traces were not related to today's recurring, if lora
partecipazlone all'ucclslone Kercher. No trace of them has been due, in particular, he found on the sweatshirt worn by the victim at the time of the attack he suJta shirt underneath,
as it should be in case of participation in the action omlcidiaria (instead,
Suuna sleeve sweatshirt that were found traces of Guede: ff. 179-180).
The aforesaid negative circumstance is a pendant to the figure, already highlighted,
deJl'assoluta impracticability of the hypothesis of a posthumous cleaning selective, able to
remove certain biological traces leaving others.
9.4.1. NOW, THEREFORE, sl looks now, the position of Amanda Knox alia, that his presence in the house, scene of the murder, and given full-blown in the process, other things his own way as ammissionl, also contained in the memorial in his signature,
insofar as it relates that, being in the kitchen, after which the young English and
sl other person were secluded in the room of the same Kercher for a relationship
sexual, he had sentlto a scream strazlante dell'amlca, to the point and piercing
Unbearable to slide down, squatting on the ground, holding hands tightly Ie, dry ears not to hear any more. In this regard, and it certainly shareable judgment of trust expressed by the national court with riferlmento in this part of the narrative
of the accused, on the plausible reflection that it was she to mention, for the first time,
45
to a possible sexual motive of the murder and to speak of the scream heartbreaking
victim, even when the investigators did not have the esitl inspection
cadaverous and autopsies any of the information from witnesses later
sull'urlo collected the victim and the time at which it was perceived (texts Bedside Nara,
Monacchia Antonella and others). It rlferimento, in particular, statements made, dry
the present appellant en 6.11.2007 (f. 96), in the premises of the State Police. On the other
singing, Ie same slanderous statements against the Lumumba, which earned him Ie
condemnation, with ruling now covered judged, they had premised
the narrated precisely the presence of the young American in the house on Via della Pergola, a fact that no one at that time - except, as. and of course, other people in the house - were in the knowledge (Cit. f. 96).
Secondoil say libelous Knox, in the company of Lumumba, met for
In case Grlmana square, she had returned home in Via della Pergola and II,
supervening Kercher, her companion had he rlvolto attention sessuaJi alia
glovane English, with which it was therefore secluded in the room of the same, from which
Then he came I'urlo was heartbreaking. In short, he had been to kill Lumumba and Meredith
what he could say so because she was on the scene, albeit
different room. Another element against him and represented by the traces of DNA mixture, and its vittlma, in "bag no small", to eloquent proof that it was, however, came to
en contact with the blood of the latter, I try to wash (it was, apparently,
blood washed away, while her biological Ie notches reported would result in
rubbing epithelial).
II datoe strong suspicion, but not decisive, apart from well-known considerations Ie
Sulta safe nature and riferlbilita delte traces in question.
Nevertheless, even in some rltenere I'attribuzione, I'elemento trial would
not unique, as well as demonstration uncontatto posthumously with the blood,
Ie most likely attempt to remove considerable traces of what happened, maybe
help someone from 0 to ward if The suspects, without what can help
give certainty of its direct involvement in the action omicldiaria. Any further and
more meaningful value would, in fact, still resisted by the fact - this Sl decisive - that no trace of her was found and refers to the place of the crime on the victim's body 0, of \ SO THAT - all grant - II II contact with blood
same would awenuto in a moment later, and in another room of the house.
Additional element against him and, of course, represented by the same. slander
against the Lumumba, of which it said.
Not given to understand, in fact, why he was able to push the glovane
US to those serious allegations. The hypothesis that I'abbia done to evade alia
psychological pressure of the investigators seems very fragile, given that the woman
46
She could not fail to realize that, as soon as those allegations, pointing to his employer
work, would be denied, given that, as he well knew, no
IJ report Lumumba had with Kercher it with the house on Via della Pergola.
Moreover, the possibility to present an alibi "iron" was then allowed to Lumumba
the release and it subsequent acquittal by the serious accusation.
Nevertheless, even slander in question results in element circumstantial evidence to
load of present applicant in mlsura it can be concluded initiative to
Guede cover it, she would have everything to protect I'interesse theme
retaliatory charges against him. II all supported by the fact that iI Lumumba, Iike Guede, and black man, whence I'affidabile reference to the first, for I'ipotesi I'altro that could be seen by anyone entering or leaving the apartment.
And yet, it is relevant - in key accusatory - the contested simulation
theft in Romanelli's room, other things as matters of strong suspicion
(Setting broken glass - provenlenti, apparently, by the breaking of
glass door window caused by the launch of a stone on the outside ~ "but
even under clothing and furnishings), whose staging would be attributable to those who - author
murder and holder of a report "qualified" with I'abitazione - had interest in
away from where the suspects, where instead a third murderess would be animated by
quite another solicitation, after I'omicidio, which is to leave precipitously I'appartamento. But also that element and substantially misunderstanding, especially in the light of the fact that the arrival of the police post Ie, come in the house on Via della Pergola to another
reason (search Romanelli, owning phone card affixed to one of the
phones found in via Sperandio), it was precisely the present appeal proceedings, in particular II Sollecito - whose procedural position and, inextricably, awinta to that of Knox - to point out to the agents I'anomalia of the situation, resulting not removed
anything by the Romanelli's room.
Elements of strong suspicion reconnect even, dry inconsistencies and to falsehood where I'imputata and incurred in the various statements made, especially in so far as it contradicted his story proved by phone records showing a different
origin of SMS; by witness statements by Antonio Curatolo, in order alia
In the presence of the same square Grimana Knox, Sollecito in the company, and Mario
Qulntavalle relating alia its presence in the supermarket in the morning of the day
Next to murder, maybe I'acquisto detergent. Nevertheless, profiles
CONTRADICTORY intrinsic 'and unreliability of witnesses, many times in ecceplti
During the process of merit, not attributing incondizlonato credit aile
related versloni, sl to prove, with certainty tranquilizer, it failed, and therefore the
forgery, the excuse offered by the accused, who claimed to have been in the house
boyfriend from late afternoon until November of L in the morning the next day. II
Curatolo (enigmatic character: homeless, drug addict and drug dealer)
47

- Apart from the tardivlta of his statements and the fact that it was not alien from
protagonism in judicial proceedings vicend ~ strong media impact - was, however, denied in reference aile comltlve dl guys leaving, that was ~ on
Courier line dlrezione of discos in the area, it has been found that, the
night of the murder, iI bus service was not active; and again the reference to
masks and jokes, which he says he witnessed that night; leave rltenere
that it had been of Halloween, October 31, and not already deWl
November, the date of the murder. Relief, the latter seemingly balanced - but still
always in a context of uncertainty and equivoclta - the reference of the witness (as the
avrebbenotato context in which the two defendants together) to the day preceding the day
he saw (in the afternoon) an unusual movement of police and Carabinieri and,
Specifically, men wearing suits and hats white (as if they were
extraterrestrials) enter the house on Via della Pergola (evidently November 2,
after the discovery of the body).
II Quintavalle - apart from the lateness of his statements also initially
reticent and generlche - had not offered any contribution of certainty, even on
genres purchased by young mattlna noticed the next murder, opening
of his restaurant, nothing detecting iI recognition classroom Knox, whose picture
She had appeared on all the quotidlani and notlziari television.
As aile biological traces, marked with the letter A and I (the latter
examined by RIS), found in it the knife seized in the house and I urge bearing II
genetic profile of Knox, sl is neutral element, since the same defendant
convlveva with it Sollecito In their house on Via Garibaldi, while alternating residence in Via della Pergola, and - as sl and said - 10 same tool bore no traces of blood Kercher, negative circumstance that contrasted I'ipotesi
accusation that sl were just of the murder weapon.
In this regard, it should be stressed that - again for questionable strategic choice of
geneticists Polizla scientiflca - sl thought of prlvilegiare I'indagine time
all'individuazlone the genetic profile on the knife in the traces found in it, rather than
determine their biological nature, since I'esigua amount of samples did not allow
A double assessment: I'esame quality would, in fact, "consumed" en sample
or rendered unusable for ulterlori investigations. Option highly questionable, as
I'indlviduazlone dl traces ematlche, riferlbili alia Kercher, would deliver to
process a matter of tremendous importance probatorlo, sure, fying incontrovertibly
I'utilizzo deWarma for consumption dell'omicidlo. The ascertained the presence of the same
In Sollecito's house, with whom he lived Knox, would allow, then, OGNL
possible deduction about. Instead, the eligibility of traces found in profiles
Knox's genetic results in a given non-unique and rather indifferent mail that the
young statunltense convlveva Solleclto with it, dividing his time between his home and
48


. ,
one in Via della Pergola. Not only that, but even if it had been possible to attribute with
c, ertezza track B to the genetic profile of Kercher, iI would have been given procedural
not declsivo (that is not silent blood), given the promiscuity 0, commonality of interpersonal relationships, typical of resident students, who make
plausible that a kitchen knife or other tool can be transported from a
house to another and that, therefore, iI knife kidnapping may have been brought from
Knox in via della Pergola for domestic uses, at rlunioni convlviali or other
eventualities, and thus be also used by Kercher. What is certain is that the knife has not been found traces of blood, lack that can not be referred to action of thorough cleaning. How exactly
noticed by dlfensori, iI knife bore traces dl starch, a sign of ordinary domestic uses and wash anything but accurate. Not only that, but I'amido and, notoriously, substance endowed with considerable absorbent capacity, then, and very likely that, in the event of stabbing elements ematlci would be retained by it.
And 'completely implausible, in the way, that the young man was I'assunto Inquisltorlo
used to bring along I'ingombrante tool for defense personnel, purpose
using - they say - the capable bag in his possession. Sl not succeed, for truth, for
poorly understood because the woman, alerted by her boyfriend alia due attention in its
evening shifts, may not come with one of the other things blsogna coltellinl switchblade
it definitely in possession of the same urge, apparently fond of this kind
weapon and collezlonista a number diesemplari. Finally, and it proved far from certain traceability of the footprints found in today's recurring Juogo theater murder.
9.4.2. Also to urge II II framework evidence, emerging from the judgment
contested, it is marked by intrinsic and irriduclbile CONTRADICTORY.
His presence on Juogo murder, and in particular in the room where the crime was committed II, and only tied alia biological traces found on the clasp of the bra chlusura (Exhibit 165 / b), in order alia where traceability can not, however, no certainty whatsoever, 'jackets that track and not susceptible of second amplification, given its eslguita, of SO THAT sl is - as has been said - Dr. element devoid of evidential value.
It remains, nevertheless, II strong suspicion that he was, indeed, present in the house on Via della Pergola, the night of the murder, in a moment, but that's not been possible to determine.
On the other hand, the presence of certain Knox in that house, appears poorly
credible that he did not he was with her.
And also to follow one of the versions made by the woman, namely that,
the return in the home, on the morning of November 2, after a night spent in the house
boyfriend, she would immediately realized that something strange had happened (door
49
open, traces of blood everywhere); or even I'altra, reproduced in the memorial,
that, in the house at the momenta of the murder, but in different room than where sl was consuming the fierce aggression alia Kercher, and very strange that he immediately called II boyfriend, not making it that there was no phone call between
the two, based on the acquired phone records. Especially since, recently in Italy,
presumibllmente was unaware about what to do in such emergencies, the first and perhaps sicche
one person alia that ask for help would have to be precisely II boyfriend, who
He lived a few hundred meters from his home. Not doing so means that II
Sollecito was with her, without prejudice, of course, the legal significance of mere
Casal presence in that in the absence of firm evidence of its causal contribution
homicidal action. To dispel such strong suspicions and certainly not enough I'argomento defensive I'interazione that attaches to the com puter for watching a cartoon, downloaded from
Internet, on time allegedly incompatible with the correct time of the death of Kercher. And
In fact, even to follow I'impegnata reconstruction defensive and feeling for sure
I'interazione belong just to Sollecito and that he has seen the whole
projection, I'orario the end-connection not sare, bbe incompatible with the success VAT
presence in the house of Kercher, given the short distance between Ie
two houses, walkable in about ten minutes.
Element of strong suspicion descends, POi, after confirmation, when spontaneous
statements, the excuse offered by Knox, on the presence of both · home
today's applicant, the night of the murder, that argument would have been denied by the
statements of Curatolo, who had reported seeing the two lovers together. from 21.30 to 24 in Piazza Grimana; Quintavalle and the pre ~ ence of a young,
then identified in Knox, the opening of its commercial operation, the morning of 2 November. But, as we noted earlier, Ie said witness statements showed strong margins of ambiguity and approximation, sl they can not,
reasonably, form the foundation of any certainty, beyond the problematic judgment trust soggettlva expressed by the national court.
Yet another element of suspicion lies in the substantial failure of the excuse linked to other, allegedly, human interactions in the computer belongs to, although not as talk about false alibi, being more appropriate to speak of alibi failed. No certainty, finally, and it could acquire on traceability to urge .rinvenute footprints in the house on Via della Pergola, dry batteries which compared the findings tecniti
Unhealthy made went beyond a judgment of "probable identity" and not already certainty
(Ff. 260/1).
9.4.3. It 'just iI pertinent to note, most recently that of a lack of judgment II
framework and consistent evidence sufficient to support I'ipotesi accusatory about
50
the pili serious case of murder does not pubs that reverberate on the residual, incidental,
charges of Chapters d) (theft limited to mobile phones) and e) (simulation of crime).
10. The inherent contradiction in the evidence, emerging from the head
the judgment under appeal, in a nutshell iI affect connective tissue of the same pronunciation
comportandone I'annullamento.
And in fact, in the presence of a scenario marked by so much CONTRADICTORY iI
the national court could not pronounce sentence, but - as,
previously observed - it was required to issue ruling of acquittal, in mind
DEWART. 530, paragraph 2, cod. proc. pen.
It remains, at this point, to solve THE FINAL question, in order alia formula
annulment - that is, whether it should be placed with 0 without reference - whose SOLUTlON
and, ovvjamente, related alia posslbilita objective of further investigations, which
can unravel the profiles of perplexity, offering rlsposte certainty, maybe
through new investigation techniques.
The rlsposta and certainly negative. And in fact, Ie blologiche traces of artifacts found at
investigative interest are small entities, such as insuscettive of ampJificazione and,
therefore, destined not to make responses affidabiJita safe, nor in terms of identity
it in terms of compatlbilita.
Computers Amanda Knox and Kercher, who, perhaps, would have to give potu
useful, dry investigations were, incredibly, burned by careless maneuvers
the investigators, who have caused electric shock to probable error
power; pili and can not give any information, since the damage
irreversible.
II declarative view of the evidence and exhaustive, and given I'accuratezza
completeness investigation hearing, renewed in both .giudizi referral.
II Guede proven shared the murder, and he always refused to cooperate
and, for those reasons already Ie, not may be obliged to testify.
Technical assessments required by the defense can not guarantee any
contribution of clarity, not only for en elapsed time, but as it pertains to profiJi
problematic assessment (which the possibility of selective cleaning) 0 clear
irrelevance (computer expertise on Sollecito's computer), given the reported possibility
10 for the same, irrespective of the duration of the interaction (even assuming that gil
really belongs), to go to the house of Kercher 0 of obvious superfluity, given the
. completeness of faulted technical investigations completed (quail, for example, the inspection
mortis and subsequent investigations medical Iegali).
Alia same way as the above considerations, it is evident that iI rlnvio would be useless,
hence the dec / aratoria cancellation without referral, pursuant to art. 620 I) of the cod ice
Rite, app1ican ~ or, therefore, a formula which would alia acquittal
51
camunque held a new judge dlrlnvio, In accordance with prlncipl dl dlritto set
in this judgment.
The cancellation of the conviction of Knox concerning the offense ascribed aJ
Chapter A), involves I'esclusione dell'aggravante the teleological nexus of art. 61 n.
2 cod. pen. The exclusion of the phenomenon requires restatement Ja
penalty, which goes quantified equally fixed DAJLA appeJlo Court of Perugia, the adequacy of which has been made extensive and accomplished giustlficazlone, on the basis of criteria to determine who should be fully shared.
It 'just add that if the case of the J'esito giudizioconsente to believe
Absorbed 0, implicltamente, dlsattesa OGNL other exception, deduction 0 rlchiesta
defensive, while another profile OGNL argumentative, among those 'not esaminatl, goes rltenuto inammissibiJe since, clearly, relating to Wed ito.
11. For the above, it has to provide as from device.
P.Q.M.
I'art seen. 620 letter. a) cod.proc.pen., cancel without referring the judgment under appeal
concerning the offense referred to in Chapter b) of the address book to be II offense for estlnto
prescription;
vlsti Articles. 620 letter. I) and 530, paragraph 2 cod. ~ Roc. pen .; escJusa of I'aggravante
art. 61 n, 2 cod. pen., in the crime reJazione dl caJunnia, cancels without rlnvio Ja
judgment in regard to the offenses referred to in Chapters a), d) and e) of section for not
I have committed rlcorrenti IJ did.
Restates the sentence imposed alia recurring Amanda Marie Knox if crime
slander in three years' imprisonment.
AS decided if 3/27/2015
II Councillor east. Paul Anthony Bruno
ADTI :: 7 SET 2015
“If it is not right do not do it; if it is not true do not say it.”-- Marcus Aurelius
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Re: 2015 Sept Google Translation of ISC Motivation Report

Postby KayPea » Mon Sep 07, 2015 10:25 am

The ANSA copy of the Motivation Report in Italian...............PDF format so that you can copy and paste sections to study.

http://www.ansa.it/documents/1441635279227_Meredith.pdf
“If it is not right do not do it; if it is not true do not say it.”-- Marcus Aurelius
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Re: 2015 Sept Google Translation of ISC Motivation Report

Postby LarryK » Wed Sep 09, 2015 12:29 am

Thanks--looking forward to a real translation!
The brain is not configured in a way that makes obedience through logical, language-based propositions possible during distress and suffering. -- James Wilder, "Neurotheology and the Life Model"
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Re: 2015 Sept Google Translation of ISC Motivation Report

Postby Jay » Wed Sep 16, 2015 1:40 pm

9.4.2. Also to urge II II framework evidence, emerging from the judgment
contested, it is marked by intrinsic and irriduclbile CONTRADICTORY.
His presence on Juogo murder, and in particular in the room where the crime was committed II, and only tied alia biological traces found on the clasp of the bra chlusura (Exhibit 165 / b), in order alia where traceability can not, however, no certainty whatsoever, 'jackets that track and not susceptible of second amplification, given its eslguita, of SO THAT sl is - as has been said - Dr. element devoid of evidential value.
It remains, nevertheless, II strong suspicion that he was, indeed, present in the house on Via della Pergola, the night of the murder, in a moment, but that's not been possible to determine.
On the other hand, the presence of certain Knox in that house, appears poorly
credible that he did not he was with her.


Can someone clarify what the highlighted sentence means, please? The translation is quite jumbled throughout but this one sentence bothers me.
Even if you are a minority of one, the truth is the truth." - Mahatma Gandhi
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Re: 2015 Sept Google Translation of ISC Motivation Report

Postby erasmus44 » Wed Sep 16, 2015 2:58 pm

LarryK wrote:Thanks--looking forward to a real translation!


Yeah - it reminds me of the instructions from our Hungarian track coach - "Sideways your arms!!"
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Re: 2015 Sept Google Translation of ISC Motivation Report

Postby KayPea » Mon Sep 21, 2015 7:40 am

ENGLISH TRANSLATION OF THE MARASCA-BRUNO MOTIVATIONS REPORT
http://www.amandaknoxcase.com/wp-conten ... Report.pdf

Pages 1 - 20

ITALIAN REPUBLIC
In the name of the Italian People
THE SUPREME COURT OF CASSATION
FIFTH PENAL SECTION
Composed of the Right Honorable Judges:
dr. Gennaro MARASCA - President dr. Paolo Antonio BRUNO - Reporting Judge dr. Alfredo GUARDIANO dr. Luca PISTORELLI dr. Gabriele POSITANO Sent. N. Section 1105 UP – 25/03/2015 - 27/03/2015 R.G.N. 32598 / 2014
issued the following
RULING
on the appeals filed by
SOLLECITO Raffaele, born in Bari on 26/03/1984 KNOX Amanda Marie, born in Seattle (USA) on 09/07/1987
against the ruling by the Court of Assizes of appeal of Florence dated January 30th, 2014; taken notice of the documents, of the challenged ruling and of the appeals; having heard the report by the Reporting Judge Paolo Antonio BRUNO; having heard the Public Minister, in the person of Deputy Prosecutor General dr. Stefano Maria Pinelli, who concluded asking for the annulment without remand because of expiration of the statute of limitations concerning charge B) with recalculation of the sentence in twenty eight years and six months of imprisonment for Knox Amanda and of twenty four years and six months for Sollecito Raffaele; having then heard:
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counselor Carlo Pacelli, defence attorney for the civil party Patrick Lumumba, who asked for the rejection of the appeals and the upholding of the appealed ruling and of the monetary provisions, as per written conclusion and expenses; counselor Enrico Fabiani Veri, defence attorney for the civil party of the Kercher family, who asked for the inadmissibility or, subordinately, the rejection of the appeals and the upholding of the appealed ruling as per written conclusions he filed together with expenses; counselor Francesco Maresca, for the same civil party, who concluded by asking for a declaration of inadmissibility or, in any case, for the rejection of the appeal, with the conviction of the defendants to pay monetary compensations, as per written conclusions and expenses. Having also heard: counselor Luciano Ghirga, for Amanda Marie Knox, who made reference to the appeal and to the new reasons for appeal, insisting for its acceptance; counselor Carlo Dalla Vedova, defence attorney for Knox, who made reference to the appeal and to the new reasons, asking for the annulment of the appealed ruling; preliminarily he asked for the suspension of the proceeding until the decision concerning the proposed issue of constitutional legitimacy of Articles 627-628 of the Italian Code of Criminal Procedure; or, in any case, until the decision of the European Court of Human Rights. Because of the late time of the day and the necessity of dealing with other proceedings scheduled in the same session, the President postponed the hearing to March 27th, 2015, for the continuation of the hearing and for the decision. At today’s hearing, having heard counselors Giulia Bongiorno and Luca Maori, who, on behalf of Raffaele Sollecito, have made reference to the reasons of appeal, asking for their acceptance, the case was discussed [by the panel] in order to reach a decision.
CONSIDERED AS FACT
1. Raffaele Sollecito and US citizen Amanda Marie Knox were indicted, in front of the Court of Assizes of Perugia, of the following offences: A) of the offence under Italian Penal Code Articles 110, 575, 576, first section no. 5, in relation to the crime sub [Latin: “under”] C) and 577 first section no. 4 , in relation to C.P. Article 61 nos. 1,5, for having, in collaboration among themselves and RUDY HERMANN GUEDE, killed MEREDITH KERCHER, by means of strangulation and consequent rupture of the hyoid bone, and profound lesion to the left
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anterolateral region and the right lateral region of the neck, by a sharp cutting weapon as per Charge B), and thus metahemorrhagic shock with appreciable asphyctic component secondary to the bleeding (derived from the sharp-object wounds present in the left anterolateral and right lateral regions of the neck and the concomitant abundant aspiration of hematic material [i.e. blood]), and taking advantage of the nocturnal hour and the isolated location of the apartment rented by the same KERCHER and the same KNOX, in addition to two Italian young women (FILOMENA ROMANELLI and LAURA MEZZETI), an apartment located on via Della Pergola 7 in Perugia, committing the act for futile reasons, while GUEDE, in collaboration with the others, committed the offence of sexual violence. B) of the offence under C.P. Article 110, 4, Law no. 110/1975, for having, in collaboration between themselves, carried outside of the residence of SOLLECITO, without a justifiable reason, a large sharp cutting-knife of 31 cm in total length (seized from SOLLECITO on November 6, 2007, Exhibit 36). C) of the offence under C.P. Articles 110, 609bis and – ter no. 2, for having, in collaboration with RUDY HERMANN GUEDE (GUEDE being the perpetrator in collaboration with the co-accused), compelled MEREDITH KERCHER to undergo sexual acts, with manual and/or genital penetration, by means of violence and menace taking the form of lesion-producing constriction maneuvers, in particular upon the upper and lower limbs and vulvar area (ecchymotic suffusions [i.e. bruises] on the anterolateral face of the left thigh, lesions in the vestibular area of the vulvar region, and ecchymotic area on the anterior face of the middle third [of the] right leg) in addition to the use of the knife sub B). D) of the offence under C.P. Articles 110, 624, for having, in collaboration between themselves, in order to procure an unjust profit, [and] in the circumstances of time and place described under Charges A) and C), taken possession of the sum of approximately € 300.00, 2 credit cards, of Abbey Bank and Nationwide, both of the United Kingdom, and 2 cellular telephones belonging to MEREDITH KERCHER, removing them from the custody of the latter (an act to be described under C.P. Article 624bis , the place of commission of the crime, contained in Charge A), being recalled here). E) of the offence under C.P. Articles 367, 110, and 61 no. 2, for having, in collaboration between themselves, simulated an attempted burglary in the bedroom occupied by FILOMENA ROMANELLI in the apartment on via Della Pergola 7, breaking the glass of the window with a stone taken from the vicinity of the residence, which was left in the room near the window, all in order to secure themselves impunity from the offences of homicide and sexual violence, by attempting to attribute the responsibility therefore to unknown persons [who would have] penetrated the apartment to this end.
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[these] events having all taken place in Perugia during the night between November 1 and 2, 2007. KNOX ALONE furthermore [is accused] of: F) of the offence under C.P. Articles 81 second section, 368 section 2, and 61 no. 2, for having, with several actions [all] executing a single criminal plan, via an accusation lodged in the course of statements given to the Mobile Squad at the Questura [police station] of Perugia, on the date of November 6, 2007, falsely accused DIYA LUMUMBA, known as “Patrick”, of the crime of homicide against the young MEREDITH KERCHER, knowing him innocent, all with the aim of obtaining impunity for all [involved] and in particular for RUDY HERMANN GUEDE, himself [a person] of color as LUMUMBA; in Perugia, on the night between November 5 and 6, 2007. With the verdict dated December 4-5, 2009, the Court of Assizes declared Amanda Marie Knox and Raffaele Sollecito guilty of the crimes attributed to them under charge A), into which offence the crime under charge C) was incorporated, B), D) limited to the cellular telephones, and E), and, for what concerns Knox, of the crime attributed to her under charge F); the crimes having all been bound together by continuation, and with the exclusion of the aggravating circumstances under Penal Code Articles 577 and 61 no. 5, the generic mitigating circumstances equivalent to the remaining aggravating circumstance being acknowledged to both, sentenced Knox to twenty six years of imprisonment and Sollecito to twenty five years of imprisonment, not including other consequential rulings; [the Court] convicted, moreover, the same defendants, together, to pay damages to the civil parties John Leslie Kercher, Arline Carol Lara Kercher, Lyle Kercher, John Ashley Kercher and Stephanie Arline Lara Kercher, damages to be paid separately, with an immediately effective provisional assignment of € 1.000.000,00 to both John Leslie Kercher and Arline Carol Lara Kercher and of € 800.000,00 in favour of Lyle Kercher, John Ashley Kercher and Stephanie Arline Lara Kercher; [the Court] also convicted Amanda Marie Knox to pay damages to the civil party Patrick Lumumba, to be paid separately, with an immediately effective provisional assignment of € 10.000,00, not including other consequential rulings; [the Court], finally, convicted Knox and Raffaele Sollecito to pay damages to the civil party Aldalia Tattanelli (the owner of the flat [sic] at Via della Pergola), to be paid separately, and to Lyle Kercher, John Ashley Kercher and Stephanie Lara Kercher, with an immediately effective provisional assignment. Ruling on the appeals filed by the defendants, the Court of Assizes of Appeals of Perugia, with verdict dated October 3rd, 2011, declared Knox Amanda Marie guilty of the crime under charge F), with the exclusion of the aggravating circumstance under the Penal Code Article 61 n. 2, and - having acknowledged the generic
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extenuating circumstances being equivalent to the aggravating circumstances under the second section of the Penal Code Article 368 - sentenced her to three years of imprisonment; [the Court] also confirmed, for this charge only, the payment of damages; acquitted the defendants for the crimes attributed to them under charges A), B) and D), for not having committed the crime, and for the crime under charge E) because the fact does not exist, rejecting the compensation demanded from them by the civil party Aldalia Tattanelli. Ruling on the appeals filed by the Prosecutor General of Perugia, by defendant Amanda Marie Knox and by the civil parties, this Court of Cassation, First Penal Section, with ruling dated March 25th, 2013, quashed the challenged ruling, limited to the crimes under charges A) - into which offence the crime under charge C) was incorporated - B), D) and E) and to the aggravating circumstance under Penal Code Article 61 n. 2 concerning to charge F) and remanded [the case] to the Court of Assizes of Appeal of Florence for a new trial; rejected Knox’s appeal, with consequent decisions. Ruling in the referral court, the Court of Assizes [of Appeals] of Florence, with the verdict quoted on the first page [of the present ruling], having deemed existent the aggravating circumstance under Penal Code Article 61 n. 2, concerning the crime under Penal Code Article 368, second section, recalculated the sentence imposed on Amanda Marie Knox to a total of twenty eight years and six months of imprisonment; confirmed the other points of the first grade ruling, with the consequential decisions also in favour of the civil parties. Against the aforementioned pronouncement the attorneys of the defendants filed separate appeals to the Court of Cassation, each of them based on the points of criticism that follow. 2. The appeal in favour of Amanda Marie Knox introduced the discussion of its various reasons with a long foreword, on the one hand disclosing the inspiring lines [or reasoning] of the whole appeal and, on the other hand, proposing again issues already raised during the [Florence] trial [ gravame 1], such as the issue of constitutionality of the combinato disposto [the combined effect of two or more Articles of law] of Articles 627 section 3 and 628 section 2, with reference to a possible “repetition to infinity” of judgments of referral by Cassation and the [related] possibility of an [endless] sequence of appeals [to Cassation] against the referral verdict and the never ending possibility to appeal the annulled verdicts.
1 Usually “gravame” means appeal, but in this case it would suggest a meaningless repetition, as it is known that Knox’s counsel raised such issues already during the Florence trial.
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Under the first aspect the basic reason for contesting was presented for the whole appeal, constituted by the alleged evasion [by the court of Florence] of the [content of the] ruling of this Court of legitimacy that caused the remand and by the diverging reading of the same body of evidence by two different courts of Assizes, that of Perugia and that of Florence, the latter, moreover, on the basis of a mere examination of papers. [The appeal] then moved on to the analytical indication of factual circumstances or trial evidence which were allegedly not appropriately evaluated or, illegitimately, considered separately and not in a global and unitary perspective. Having advanced all this, [the appeal] argued various reasons for appeal, which are now succinctly presented, within the limits provided for by Article 173, section 1, of the instructions of application [disposizioni attuative] of the Italian Code of Criminal Procedure, that is within the limits of what is strictly necessary for the decision . With the first [reason of appeal] the violation or non-observance of the penal law, under Article 606 letters b) and c) of the Italian Code of Criminal Procedure is denounced, as well as the lack of justification, under the same Article, letter e) on the decisive point of the alleged motive of Knox to commit the serious crime, in violation of Article 110 of the Italian Penal Code. On this subject, as hypothesised in the fact finding ruling, regarding the alleged disagreements between the defendant and Kercher, despite the acquittal in the meantime, become definitive on this point, for the theft of the sum of three hundred euro and the collected testimonies, among them the one by Marco Zaroli, concerning the “idyllic” relationship between the two girls. From the trial documents no motive had come out that could have induced Knox to a willful participation to a murder and, contrary to the assertion of the fact finding judge, the motive is absolutely necessary in a trial based on circumstantial evidence. No indication on this point had been given by the judge of referral, even in face of the specific indications given by the annulled ruling [the acquittal], which had pointed to three possibilities: 1) the genetic agreement on how the death occurred; 2) modification of an initial program foreseeing only the involvement of the young Englishwoman in an unwanted [by her] erotic game; 3) mere coercion in a group sex game. Not only that, but in a situation of absolute uncertainty the referral judges contrived an anomalous type of participation to a crime with others [figura concorsuale], product of a singular mixture of different impulses and motives attributed to each participant: Guede by a sexual motive, Knox by a resentment against the Englishwoman, Sollecito by an unknown reason. The second reason poses a problem of great importance in the context of the present judgment, namely the correct evaluation of the results of the scientific
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investigations, from the viewpoint of the respect of the criteria of evaluation under Article 192 of the Italian Code of Criminal Procedure and of the value of the results of the genetic investigation, with their failure to perform a [second] “amplification”, given the scarcity of the sample, and, more in general, of [the evaluation of] the reliability of investigations made disrespecting the provisions prescribed by the international protocols, for what concerns both evidence collection and its analysis. [The appeal] particularly denounces the anomalies in the collection of the knife (Exhibit 36) and of the clasp of the victim’s bra, anomalies of such relevance that the risk of contamination cannot be excluded, as correctly assessed by the ContiVecchiotti expert report, ordered by the Perugian Court of Assizes, that also considered the scientific result to be unreliable, precisely because it could not be tested again. The possibility of the collected knife being the murder weapon is also challenged. With the third reason the violation of law and lack of justification is denounced, under Article 606, letters b) and e), relatively to the connected purpose between the crime of calumny and the murder. It also depicts the psychological state of the defendant at the time of the slanderous statements (November 6th, 2007), statements in any case ruled not usable by this Court (with ruling n. 990/88 [sic, correctly 990/08]), reporting moreover the violation of Article 188 of the Italian Code of Criminal Procedure, because of the impairment of the moral freedom of the person making the statement at the time it was recorded as evidence. With the fourth reason the lack of justification in the ruling concerning elements of fact of the case is asserted, with reference, first of all, to the alleged staging of a burglary in Romanelli’s room, which does not consider that Guede, at the time of his arrest, had wounds on his right hand compatible with the hypothesis that he had previously broken the window’s glass and had climbed the wall to enter, given that the shards of glass scattered on the window’s sill, in the same way that Guede’s previous [crimes] had not been considered, who wasn’t new to breaking and entering into apartments in a similar way. Furthermore, it had not been considered that no biological trace attributable to the defendant had been found in the murder room, while as much as fourteen traces attributable to Guede had been found there. The hypothesis of an alleged selective cleaning of the crime scene by the defendant was completely illogical, with it being basically impossible to remove some genetic traces while leaving others untouched. With the fifth reason the lack of justification in the ruling concerning the evaluation of the testimonies of Curatolo and Quintavalle, because their content is not appropriately considered, is denounced. It is then stated that relevance was illogically given to the SMS received by Patrick Lumumba, the location of its
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reception [by Knox] being uncertain, given the well known uncertainty in the localization [of a position] based on the cell tower used. With the sixth reason a violation of law, with reference to the use of documents even if they had been ruled not usable by this Court [of Cassation] is denounced, particularly [concerning] the statements against herself by the defendant dated 5.45 on November 6th, 2007. Moreover it had not been considered that the memoriale written by Knox herself was affected by the unstable psychological condition she was experiencing, also due to the violation of her defensive rights that she suffered. With the seventh reason [the appeal] takes objection to the violation of Articles 111, section 2 of the Constitution and 238 of the Italian Code of Criminal Procedure, with reference to the evaluation of the definitive ruling against Guede and to inappropriate assessment of the statements he made, through Skype, to his friend Giacomo Benedetti. With the eighth reason the omission of admission of decisive evidence, under Article 606 letter d) of the Italian Code of Criminal Procedure, in relation to Articles 111 section 2 [of the Constitution] and 238 bis of the Italian Code of Criminal Procedure is denounced, for the denial of renewed evidentiary hearings, dated September 30th, 2013, of the request to cross-examine Guede, after his accusations against the defendant. The ninth reason points out inconsistencies or contradictions in the reasoning of the ruling, as well as serious inaccuracies, like the statement on page 321 concerning the presence of genetic traces of Sollecito and Kercher on the collected knife. It is then surmised that the place where the cellular phones stolen from the victim were found was compatible with the Guede’s route to return to his home, on Via del Canarino [sic, correctly: Canerino] n. 26. Furthermore, the evaluation of the results of the expert report by Professor Massimo Bernaschi concerning the damage suffered by the computers, most likely due to an electric shock, is deemed inadequate. With the tenth reason the failure to comply or the erroneous application of Articles 627 and 603 of the Italian Code of Criminal Procedure is denounced, with reference to [the] Court Orders of September 30th, 2013 and of April 17th, 2014. It is, furthermore, requested the correction of a material error in the Court Order of April 17th, 2013 [sic, correctly: 2014], with reference to the incorrectly stated birthplace of the defendant, who was born in Seattle and not in Washington.
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With the eleventh reason the violation and non-observance of Article 606, letter b) is claimed, with reference to the verdict concerning the aggravating circumstance to the crime of calumny under Article 61 n.2 of the Italian Code of Criminal Procedure, charged because of the hypothesised teleological link. The referral judge had deemed the generic [extenuating circumstances] as having less value [than the aggravating circumstances], even if they had been ruled as equivalent in a decision that became definitive on that subject [i.e. the Hellmann ruling]. 3. Raffaele Sollecito's appeal rests upon twenty-two motives, which are also set out succinctly, in terms prescribed by the aforementioned Article 173, Section 1, implementing provisions, Italian Code of Criminal Procedure. This succinct rewording necessitates prefacing by a reference to the introductory part, which contains specific requests. The first concerns a motion to refer to the United Sections the questions of purportedly of the greatest relevance, potentially capable of generating conflicting interpretations: a) The probative or indicative value of the outcome of scientific inquiry in the case of violation of international protocols accepted by the scientific community in relation to the presentation and interpretation of the data; b) The usability of statements made by Guede during the appellate proceedings. In this regard, it is alleged that the reference in the judgment under appeal to Guede's account during questioning, reported in the judgment acquired according to Article 238 bis, is inappropriate; if those statements had been usable, it would have meant permission to introduce statements made without cross-examination into the proceedings, in violation of the same procedural regulation. c) The context of the principle, beyond reasonable doubt , which, according to the appellant's defence, was violated in the present case in view of an erroneous assertion by the referral judge, according to which the lack of procedural collaboration by the defendant exempted the judge from pursuing and analysing alternative hypotheses emerging from the court records and from arguments advanced by the defence. d) Limits of reliability of testimonial statements (such as those of Dramis, Monacchia, Quintavalle and Curatolo) made at a distance of time from the events at the urging of journalists. The legal issue is that of verifying the reliability of testimony in proceedings with a strong interest from the media, with a particular reference to the witnesses Gioffredi and Kokomani and to the deposition of Luciano Aviello, previously convicted of several offences, who did not hesitate to make
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libellous statements regarding public prosecutors and Raffaele Sollecito's counsel and father. The intervention of the highest jurisdictional assembly was necessary so that evaluative criteria for oral evidence would be established in trials of the strongest interest to the media, to preserve the credibility of the legal process, sheltering it from varieties of mythomania and from judicial protagonism. Also examined in the introductory part, at length, is Amanda Knox's position, considering that the erroneous evaluation of evidence against her resulted in its negative impact having repercussions on Sollecito's position, in the distorted belief that the two substantive positions would be indissolubly shackled together, as if in a single system of v a si c o m u nic a n ti [communicating vessels] or in an anomalous "solidaristic" extension of responsibility. All of this aims to denounce the erroneous methodological formulation, which consists in the absence of an "individualizing" evaluation of the appellants' parts in the tragic case being adjudicated. The abovementioned finding gave momentum to a further legitimacy complaint, namely the circumvention of the dictum of the annulled judgment, which tasked the referral judge with "delineating the subjective position of Guede's associates in view of the range of hypothetical situations", as specifically stated. Further, it is pointed out that the aforementioned Knox never placed, not even in the memorial under her signature (erroneously considered to contain a confession), Sollecito at the scene of the crime. In fact, the memorial makes clear that the latter was not present in the house on via della Pergola. Moreover, no trace of Sollecito was discovered in the room of the homicide. The only indicative element against him was represented by a trace of DNA discovered on the clasp of the victim's bra, the trace whose identification with this defendant was, however, excluded by the Vecchiotti-Conti report, which on this point, incorporated observations by the party's consultant, Professor Tagliabracci, a worldfamous geneticist. This said, it is possible to proceed to a summary of the numerous grounds for censure. 1) As the first, the most multifaceted reason, violations are denounced against Articles 627, Section 3, and 628 of the Italian Code of Criminal Procedure, for the non-observance of the legal principles set out in Articles 627, Section 3, and 627 of the Italian Code of Criminal Procedure, in particular related to the necessity of a) ascertaining the presence of the defendants at the scene of the crime; 2) delineating the subjective position of Rudy Guede's presumed associates; 3) determining Raffaele Sollecito's criminal motive in relation to that definitively established for Guede.
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Regarding the close connection with the above-mentioned objection, further issues for complaint are put forward, specifically calibrated in the logic of motivational defect, pursuant to Article 606, letter (e), of the Italian Code of Criminal Procedure, directly related to the denounced circumvention. - The first concerns the contested denial of new evidentiary hearings, also expressed in the order as of 30 September 2013, also challenged. The petition formally submitted by the defence (in the new motives as of 29 June 2013 and in the note submitted on 30 September 2013) was intended to establish the actual presence of the defendants at the place of the crime and the role played by each one in the instance. It is further suggested: - lack of evaluation of decisive elements concerning Sollecito's alibi, in particular with regards to the results of integrating the report by the party's technical consultant D'Ambrosio, demonstrating the defendant's interaction with the computer in his possession; - the obvious illogicality of the motivation report with regards to the prescription of Article 522 of the Italian Code of Criminal Procedure; lacking correct reasoning capable of transcending the limits of reasonable doubt in order to establish Sollecito's participation in the homicidal action and the role he played in the affair; - motivational defect, pursuant to Articles 192 and 238 bis, regarding the content of the final judgment against Guede with the purpose of identifying the homicidal motive. Illogically denied was the request to renew evidentiary hearings, aimed at demonstrating the defendant's absence at the scene of the crime and the nonexistence of any motive besides that ascertained by the sentence acquired, of a sexual nature, concerning Guede. Besides, the denial of the renewal of hearings incorporated another violation of the law, according to Article 627, second section, according to which "if the appellate judgment is annulled and the parties so request, the judge shall reopen2 evidentiary proceedings to acquire evidence relevant to the decision." Not willing to follow the jurisprudential direction concerning the mandatory nature of the reopening of evidentiary hearings on appeal, in line with the evidence, the referral judge was, however, obliged to motivate the denial of the request for probative integration in a rational way coherent with the procedural record. Among others, a request was made for a genetic testing of the stain (apparently left by sperm) on the victim's pillowcase, in order to verify its nature and possible attribution to an unknown person; for direct expert testimony to determine whether 2 Translators note: the original word was “rimozione”, i.e. “removal”, but this does not make sense in the context and the author probably intended to write “rinnovazione”, i.e. “renewal”]
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it is practically possible to perform the cleaning aimed at only removing traces attributable to the appellants inside the victim's room, without removing any of those collected and precisely attributed to Guede; for the genetic assessment of Exhibit 165 B, upon the acquisition at the laboratories of the scientific police of the remainder of DNA extracted from the bra clasp and further genetic assessments of this sample, ordering a supplementary inquiry if necessary to eliminate all reasons for doubt in this regard; for the assessment of the stone found in Romanelli's room in order to detect the presence of DNA on the surface of the rock; for an audiometric measurement to verify whether it was possible to hear the presumed harrowing scream from the house on via della Pergola and the sound of footsteps with closed windows, for witness Capezzali; for a computer-science investigation of Sollecito's computer to verify the existence of human interactions on the night of 1st and 2nd November 2007; for an anthropometric test to examine the physique, the height, the gait, and distinguishing features of the subject captured by the video camera at the crossroads in the parking garage, for a necessary comparison with Guede's physical characteristics and his clothing at the moment of his arrest; for a cross examination of Guede under Article 197 bis regarding the facts of the night of the murder. The rejection of the aforementioned procedural requests was motivated by the judge a quo [of the trial from which this appeal is being heard] in a manner which was neither logical nor pertinent. 2) Violation of Article 606 (e) concerning the erroneous reading and interpretation of Knox's memorial. 3) Another motivational flaw is suggested by reference to the finding that determining the exact time of Meredith Kercher's death (which, according to the defence, should have been placed between 21.00 and 22.00 hours, 22.15 the latest) would be irrelevant, particularly with reference to the examination of Kercher's telephone records. 4) The same flaw is noted regarding the alleged irreconcilability of Curatolo's testimony to the time of the scream and the asserted irrelevance of the precise time of death of the young British woman. 5) Also distorted was the reading of Capezzali's testimony, a relevant record of which is attached. 6) From the angle of motivational deficiency, assessed according to the new formulation of Article 606 (e) of the Italian Code of Criminal Procedure, the complaint claims an erroneous reading of Curatolo's testimony. 7) The same concerns Quintavalle's testimony and the omitted evaluation of the Inspector Volturno’s testimony, who drew up an internal memorandum, according to
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which the same Quintavalle had reported seeing Sollecito and Amanda always together. 8) Regarding the combined provisions of Articles 606 (e) and 192 of the code of law, the complaint claims an erroneous evaluation of evidence in hypothesizing joint action of the persons in the commission of the crime, with a particular reference to the contested assessment of the footprint and to the traces revealed with luminol . There was no evidence, therefore, on the asserted joint participation of the appellants in the unjustified carrying of the knife. 9) Therefore, the complaint denounces the distortion of evidence regarding the timing of the 112 call, based on a presumed error of the timer in the video camera located in the proximity of the parking garage. 10) An identical violation is inferred regarding the alleged alteration of the crime scene by the two defendants. 11) Another aspect of motivational deficiency that is criticised, sub specie [under the pretext] of misinterpretation and of contradictoriness or obvious illogicality of the motivation, on the basis of Article 192 of the Italian Code of Criminal Procedure, concerns the finding of the falsity of the alibi proposed and the corresponding violation of the principle n e m o t e n e t u r s e d e t e g e r e [no one is obliged to give testimony unfavourable to oneself]. Moreover, one would be dealing, if anything, with a "failed," not a "false," alibi, unfit as such to support the "circumstantial inference", otherwise inadmissibly inverting the burden of proof. 12) Also erroneous was the reading of the results of the genetic tests performed on Exhibit 36 and on the presumed compatibility of the seized weapon with the most serious injuries detected on the victim's neck. In this regard, it was obviously a distortion by the judge a quo [of the trial from which this appeal is being heard], given that no DNA mixture of Kercher and Sollecito was found on the handle of the knife. On the same utensil, traces of starch were found, evidence that it could not have been thoroughly washed to remove incriminating traces. In addition, starch, present in plants, is well known for its absorbent capacity, therefore it would have absorbed blood if used to commit the homicide. Hence the motivated request to remit the proceedings to the United Sections. In addition, the assumption that the most serious wound on the right side of the victim's neck could have been inflicted by a single blow was refuted by the unequivocal evidentiary findings, namely the conclusions of the forensic pathologist expert Cingolani and of the party's consultant, Introna.
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13) The motivation of the ruling under appeal was also inviting criticism by asserting the availability of the kitchen knife at the hands of Amanda Knox at the moment of aggression. In this regard, it was illogical to argue that the kitchen knife used in the homicide had not been concealed because the furniture and kitchen tools in the residence rented by Sollecito were subject to a search, so that the absence of the knife, once discovered, could have given rise to suspicion; hence, the need to return it to its place, after cleaning. The motivation was also clearly illogical regarding Knox's transport of the knife, through the asserted use of a spacious bag in her possession, for hypothetical reasons of personal defence, prompted to that end by Sollecito, who had a definite familiarity with knives. It was not taken into account that, even if conceded as true, to validate this justification one would exclude the hypothesis of joint participation at the same time, because one would have to admit that the female defendant was alone and could not avail herself, if attacked by strangers, of any protection by her fiancé. There was no evidence, therefore, of the asserted joint participation of the appellants in the unjustified carrying of the knife. 14) Further, the motivational deficiency was blatant with regards to the conclusions of the genetic examination of the bra clasp, with regard to which a remit of the proceedings to the United Sections is requested. Regarding the possible contamination of the sample, the appellate judges ignored the photographic materials included in the court records, which clearly demonstrated the possible contamination, in the way in which the clasp was treated, being passed from hand to hand by persons wearing dirty latex gloves. Moreover, no second amplification was performed on the clasp despite there being a usable portion of the extract, which nonetheless remains actually unused. Moreover, the clasp, although noted during the first site inspection by the scientific police, was left on the floor and remained there for quite some time. It is not true, moreover, that between the initial access and that during which the clasp was, at last, acquired, there were only two site searches by the investigators, which searches were more numerous in reality and on those occasions everything was turned upside-down. In this regard, no account was taken of the defence's observations and of the conclusions to the contrary reached by the party's consultant, Professor Tagliabracci. 15) There was also a distortion of evidence regarding the actual delivery of s.a.l. [ s t a t o a v a n z a m e n t o la v o ri , state of work progress] related to the investigations performed by Dr. Patrizia Stefanoni of the Scientific Police.
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16) Another line of grievance concerns the motivational context regarding the alleged simulation of the burglary in Romanelli's room and the inadequacy of motivation regarding the new motives referred to in the brief as of 29 July 2013. In this respect, it is suggested that it was Sollecito who pointed out to the postal police, who had arrived at the house on via della Pergola for another reason (the discovery of Kercher's mobile phones, one of which was in Romanelli’s name), the strangeness of the situation, for the fact that computers and objects of value were not stolen from the room of the housemate of Kercher and Knox; that no account was taken of the testimony of the lawyer Paolo Brocchi and of Matteo Palazzoli, as noted in the new motives, regarding the burglaries committed by Guede in a mode analogous to that apparently used to enter the residence on via della Pergola; that the defence briefs, including the parts dealing with the injuries to the palm of Guede's hand present at the moment of his arrest in Germany, were not examined; that evidence was misinterpreted as to the position of the glass fragments, given that it follows from the evidence that glass fragments were both above and below the objects present in Romanelli's room; that, furthermore, a glass fragment was also discovered in Meredith's room, a sign that the person who had stealthily broken in had also brought in that fragment. Therefore, it was obvious that the ruling under appeal was founded on mere conjecture, entirely separate from procedural reality. 17) Further, the appeal points out a violation of Article 238 bis, Italian Code of Criminal Procedure, based on the argument that, through the admittance of the irrevocable judgment against Guede, it was intended that statements made contra alios [against others] in a different procedural context be rendered usable, even though these declarations were made in the absence of the persons accused. Apart from such questions, also with respect to those for which referral to the United Sections is being sought, Guede's statements were erroneously evaluated, in violation of criteria imposed by Article 192 of the Italian Code of Criminal Procedure and of guidelines by this Court (p. 57). It was true that these declarations were invoked merely as confirmation but they were unusable nonetheless. In any case, the judgments concerning him, including the final one, demonstrated Guede's complete unreliability. 18) Another violation of Article 248 of the Italian Code of Criminal Procedure was reported, referring to the finding of binding effect of an external judgment. 19) Invariably, with regards to Guede's statements, their relevant use amounted to a violation of Article 11 of the Constitution, Article 526, of section 1, of the Italian Code of Criminal Procedure, and of Article 6 of the European Convention. On this point, too, it is requested that these questions be referred to the United Sections. 20) In case such approach was not shared, the question was raised of constitutional legitimacy of the norms that allowed to bypass the prescriptive
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prohibitions, regarding the usability of declarations incriminating third parties in the absence of those parties, via the admittance of final judgments against the declarer containing the relevant claims contra alios [against others]. 21) A motivational deficit is also asserted regarding the hypothesised attempt at probative contamination during the appeal, even apart from the formulation of insufficient evidence expressed in this regard. 22) Also missing was the motivation regarding the aggravating circumstance of sexual violence. 23) The same could also be held regarding the theft of the victim's mobile phones. 24) Moreover, there was a clear violation of the principle of proof beyond reasonable doubt, among other things, in view of the lack of investigation into alternative solutions. Lastly, the omitted reasoning on the possibility of reclassifying the circumstances of the homicide to the less serious charge of aiding and abetting or of manslaughter is contested, as well as the application of mitigating circumstances. 4. The counsel of both defendants have therefore proposed new reasons [for appeal]. 4.1. In favour of Knox two additional reasons were provided. First it contends a breach of Article II. 606 letters a), b) and e) Italian Code of Criminal Procedure, with criticism of the whole motivational process of the judgment under appeal, which exceeded the scope set by even exorbitant pronunciation of annulment, with violation of Articles. 627, section 3, and 623 of the Italian Code of Criminal Procedure. What is criticised, In particular, the anomalous entry into the merit of the annulled judgment is criticised. The second reason complains of contradictoriness and patent lack of logic according to Article 533 Italian Code of Criminal Procedure. They proposed, finally, to apply for a postponement of the trial awaiting the decision of the European Court of Human Rights, following the application to that supranational Court, on 22 November 2013, for alleged infringement of the right to a fair trial, pursuant to Article 6 section 3 letters a/c ECHR [European Court on Human Rights] for violation of the right to defence, under Article 48 section 2 of the European Charter of Fundamental Rights; and for violation of the prohibition of torture, including Articles of the ECHR 3 and 4 of the Charter of Fundamental Rights of the EU. 4.2. The defence of Sollecito also proposed new reasons [for appeal], as summarised below.
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With the first they complained about the lack of reasoning over the time of death of Kercher. According to the defence, careful examination of objective evidence would enable them to secure the time of death between 21.00-21.20 hours and 22.13. The exact determination of death was essential to ascertain the actual presence of the accused at the scene of the crime at the moment of the attack. In particular, the analysis of the victim's mobile phone revealed further activity between the hours 21.00 and 22.13, as explained by the consultant Pellero regarding SMS on the aforementioned telephone. That would have allowed acquisition - if not with certainty whether the young English girl was still alive at 22.13, given the possibility of accidental connections - at least some useful indication in this regard. More precisely, there were the following connections over the relevant time period: 1) a first call, at 20.56, to her home number in England, remained unanswered and, unusually, this was not followed by a further call given the girl's routine behaviour, to call her family members every day; 2) another call, perhaps accidental, at 21.50, to an answering machine, which lasted a few seconds, without waiting for an answer; 3) a call, at 22.00, to the British bank Abbey, obviously an error because it was not preceded by the country code; 4) at 22.13, a text message was received on the phone, but in the place where it had been abandoned, in via Sperandio. On the other hand, the examination of Sollecito's computer registered an interaction at 21.20 and then a subsequent one at 21.26 not discovered by the postal police - but by the defendant's consultant D'Ambrosio using different software, MAC), to watch a cartoon ( Naruto ) lasting 20 minutes, demonstrating that until 21.46 Sollecito was at his house. This serves to demonstrate the non-involvement of the accused, also evident in light of the Skype call between Guede and his friend Benedetti. This would, however, require further analysis of the computer, which was unsuccessfully requested by the defence. The judge a q u o [of the trial from which this appeal is being heard] then committed a clear error in the evaluation of the witness Curatolo, not realising that the statements of the witness were rather favourable to the accused, especially in so far as he reported seeing the two lovers in Piazza Grimana from 21.30 to 24.00. There was, therefore, a contradiction within the judgment: it was not true what is
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claimed on page 50 regarding the lack of favourable evidence that might help confirm that the two defendants were, from 21.30 until about 12.30 of the next day, in a different place than the scene of the murder. In the reconstruction of the crime he had not, then, taken into account the witnesses Capezzali and Monacchia who reported the heart-rending scream at around 23 to 23.30. Except that, Capezzali was contradicted by other witnesses, residents in the area, who had stated that they had heard nothing. Moreover, they did not examine the footage recorded by the camera located near the parking lot that had recorded the passage of a subject resembling Guede in appearance and clothing. The time of recording was 19.41, but effectively 19.53, as there is a time difference of 12 or 13 minutes. Even the autopsy, according to the stomach findings, allowed the time of death to be set at between 21.30 and 22.00. Moreover, under cross-examination the consultant, Dr. Lalli, had corrected an error contained in the technical analysis signed in his name, stating that the time of death would be fixed "at not less than 2 or 3 hours after the last food (which occurred around 18.00, in the company of her English friends)” but "not more than 2 or 3 hours after eating". Given this uncertain conclusion a new expert assessment was requested which was unsuccessful, in the new grounds in the appeal, dated 29/07/2013. In short, in the light of the given facts, according to the defence, the correct time of the death of the young Englishwoman would have to be set between 21.00 and around 22.13. The second reason points out the complete impossibility of a selective cleaning of the scene of the murder, in relation to the removal of only the traces related to the accused, leaving those of Guede. In fact, in Kercher's room there had been found numerous traces of Guede and none of Sollecito. They also deduce that there is a deficiency in the reasoning regarding the presumed tampering with the scene of the crime by the accused. It had also not been taken into account, that Sollecito had no interest in such tampering. With the third reason they denounce the defective reasoning regarding the plantar footprints being attributable to a woman (size 37) as hence demonstration of involvement of several people in the crime. With reference to footprints, there was an obvious error in the judgment, which was also present in the judgment of annulment by the Supreme Court (p. 21), given that the only footprint found in Kercher's room was Guede's. The fourth reason claims violation of the law, with reference to Article 606 letters c) and e) as proof there were collaborators in the crime and of violation of
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Articles 111 Constitution, 238, 513 and 526 Italian Code of Criminal Procedure on the use of statements of Guede and the [in]observance of the necessary criteria for the evaluation of the claim regarding complicit collaborators. The fifth reason contends there is misrepresentation of evidence and patent illogic relating to the results of genetic evaluation of the knife (Rep. 36) and on the claimed "non-incompatibility" of it with the largest wound found in the neck of the victim. They suggest also, violation of assessment of evidence as per Article 192 Italian Code of Criminal Procedure. The sixth reason contends lack of reasoning for failing to take account the violation of the international recommendations on evidence collection and analysis of traces of samples of minuscule amounts and interpretation of the results. Also claimed is misrepresentation of evidence and patent illogic of the reasoning on the results of genetic testing on the kitchen knife as well as violation of the criteria of evaluation of the evidence, in Article 192 of the Italian Code of Procedure. The seventh ground deduces lack of reasoning with regard to the breach of the international recommendations on collection and analysis with regard to genetic examinations on the bra clasp (Rep. 165b) and on the blatant contamination of the item, during the searches and inspections carried out by the judicial police. The eighth reason claims violation of Articles 192 and 533 Italian Code of Criminal Procedure, on the interpretation of the genetic findings on item 165b and lack of reasoning for the blatant violation of international recommendations regarding interpretation of mixed DNA. The ninth reason claims violation of Article 192 Italian Code of Criminal Procedure and patent lack of logic concerning evidence for misrepresentation of the scientific investigation, given the failure of the DNA evidence in this case. With the tenth reason it is contested that there is patent illogical reasoning with reference to the luminol test to prove the alleged presence of bloody footprints inside the house on via della Pergola and on the bath mat as well as patent lack of logic in reference to mixed traces of Knox-Kercher and the evaluation of the circumstantial evidence concerning the involvement of multiple persons in the crime. With the eleventh reason it is claimed there is patent lack of logic or contradiction in reasoning as regards the evaluation of a motive for the murder. The twelfth reason claims identical false reasoning and misrepresentation of evidence concerning the time of the call to 112. With the thirteenth reason it is proposed the identical defect in reasoning concerning the alibi and the alleged attempt by Sollecito to cover up for the alleged co-conspirator Amanda Knox.
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The fourteenth reason denounces the violation of the principle of law enunciated by the Supreme Court and violation of the norms for judgment of the [application] of beyond reasonable doubt, specified in Article 533 Italian Code of Criminal Procedure.
AS A MATTER OF LAW
1. Considerations of logic and exposition require an examination
in limine [at
the beginning] of the preliminary issues raised by the parties. This concerns problematic points of law important prior to the proceedings – by virtue of their potential capacity to influence decisive further developments – which, while lacking substantive finality, nevertheless can take on decisive potency, at least for the purpose of delaying or suspending the present proceedings. This refers, in primis [first and foremost], to the questions of constitutional legality of the combined provisions of Article 627, Section 3, and 628, Section 2, of the Italian Code of Criminal Procedure, for alleged violation of the principle of reasonable length of trial, as provided in Article 111 of the Constitution; to the request for delay pending the ruling of the European Court of Human Rights, before which a complaint has been brought by Amanda Knox's defence of coercive treatment to which she was allegedly subjected by investigators in the course of preliminary inquiry; to multiple requests by Raffaele Sollecito's defence that questions of specific importance be transferred from the cognizance of this Supreme Court to that of the United Sections, both for reasons of their objective importance and for their potential to generate interpretive conflicts within this Court's jurisdiction. 2. All the requests are clearly unfounded. 2.1. First, there is the question, posed again, of the constitutional legitimacy of the legal norms governing the referral trial [the appeal trial after annulment]. Indeed, the response with motives of the judge a quo [of the trial from which this appeal is being heard] appears exemplary, which response, by court order of Sept. 9, 2013, holds it patently unfounded or, anyway, irrelevant to the present case. To the arguments advanced in relation to the first legal issue – which points out that the dynamics of the relations between the proceedings on points of law resulting in an annulment and the post-annulment proceedings before a referral judge are steered towards a progressive narrowing of t h e m a d e cid e n d u m [matter to be decided], which, at least as a trend, precludes the legal process from being protracted ad libitum – this observation can be added: the effect of progressive delimitation of res iudicanda [matter being judged] is pursued by the legislator as a possible outcome not only of the judgment of annulment, taken in isolation, but also
“If it is not right do not do it; if it is not true do not say it.”-- Marcus Aurelius
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Re: 2015 Sept Google Translation of ISC Motivation Report

Postby KayPea » Mon Sep 21, 2015 7:42 am

ENGLISH TRANSLATION OF THE MARASCA-BRUNO MOTIVATIONS REPORT
http://www.amandaknoxcase.com/wp-conten ... Report.pdf

Pages 21 - 36

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of the provisions of Article 628, Section 2, of the Italian Code of Criminal Procedure, according to which: in all cases, a ruling by a referral judge may only be challenged for motives not related to issues already decided by the Court of C assation, that is for failure to comply with the provisions of Article 627, Section 3 ; and of Article 627, Section 4, of the Italian Code of Criminal Procedure, according to which: " in referral p r o c e e din g s , n ullit y , e v e n a b s olu t e , o r in a d mis sibilit y e s t a blis h e d in e a rlie r proceedings or in the course of preliminary investiga tion may not be reargued ." It is forbidden that point-of-law jurisprudence, by and large, also extend to unusability, which is an expression of a general legislative principle, which confers (trend-like) finality on the rulings of the Court of Cassation (Section 5, No. 10624 as of Feb. 12, 2009, Barbara , vol. 242980; Section 5, No. 36769 as of Oct. 3, 2006, Caruso, vol. 235015; Section 1, No. 22023 as of April 18, 2004, Marine, vol. 235274; and, concerning post-annulment proceedings on precautionary measures, Section 6, No. 47564 as of Nov. 14, 2013, Tuccillo, vol. 257470; contra , Section 3, No. 15828 as of Nov. 11, 2014, vol. 263343). It is possible to affirm, therefore, that the legislator has designed a procedural mode of progressive development (the so-called "progressive judgment" principle) that could be visualised – at least in a "static" dimension – as the geometric figure of "concentric circles." On the other hand, the Constitutional Court – on the occasions indicated in the appeal signed by counsels Ghirga and Dalla Vedova – has had the opportunity to occupy itself with this question, declaring it inadmissible on the basis of arguments which the present rationale by the defence does not seem able to undermine, not advancing argumentative elements to suggest a possible, different, decisive epilogue. It cannot be left unsaid that the criminal process is, constitutionally, extended towards ascertaining the material truth, as well as towards a cognitive progression, which, corrected for e r r o r e s in p r o c e d e ndo and in iu dic a n d o , m e dio t e m p o r e intervening, reaches its ultimate end, in terms of approximating, as closely as possible, that objective, rendering to society a result commonly understood as "procedural truth," that is to say, truth procedurally ascertained ( rectius [to be precise], that which is possible to ascertain with the ordinary tools of cognition and inference at the judges' disposal). All of this, under ineluctable compliance with procedural forms, which represent, indisputably, the greatest expression of legal civility and a noble distillate of the secular process by which scientific knowledge matures, typical of Italian legal culture. And when, as in this case, one is dealing with a legal process based exclusively on indications – in the absence of direct evidence, of reliable technical-scientific inputs, or of relevant and usable declarative contributions – all the more the
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procedural truth, unanchored from material and phenomenal reality, ends by being a mere fictio iuris [legal fiction], owing to the tools of human cognition commonly employed in the process of reconstruction and revision a posteriori being limited and usually subject to opinion. Therefore, it is exactly in situations of this kind that respect for the forms is all the more necessary, representing the unfailing criterion – objective and preferential – that is the testing for correctness and for congruity of cognitive route of a judge in a problematic approach to material truth. And to perform such verification is this Court on points of law specifically called, with the powers of cognition ab extrinseco [from the outside], limited, that is, to externally checking for formal correctness, congruity and logical coherence of the justifiable totality of this cognitive progression, without any means of evaluating the true demonstrative depth of the probative elements utilised in it. Undoubtedly, such specific finalization must be aligned with the constitutional principle, from Article 111 of the Constitution, of reasonable duration of the trial, intended to resolve itself throughout the predetermined temporal phases and subdivisions. The pursuit of this ultimate end (the search for material truth) – much more so in trials of particular sensitivity like the one in question, of such difficulty as to require indefatigable inquiry and particularly complicated technical investigations – should therefore be combined with the imperative of a judicial remedy within the shortest possible time, on account of the obvious imperatives of respect for the value/person of the actors involved and of unavoidable service of justice for the victims and society. 2.2. Further, without merit is the request by the defence of Amanda Knox to postpone the present proceedings pending a decision by the European Court of Justice [sic; correctly, Court of Human Rights], where – due to the definitive status of the conviction for the offence of false accusation ["calunnia"], at that time addressed via partial judgment – a complaint has been filed of wrongful and coercive treatment to which investigators allegedly subjected the person under investigation, the appellant, to the point of damaging her will and of harming her moral freedom, in violation of Article 188 of the Italian Code of criminal procedure. In fact, an eventual pronouncement by the European Court in favour of the same Knox, in the sense of a hoped-for recognition of her unorthodox treatment by the investigators, would not be able, in any way, to undermine the internal [Italian Court] judgment, nor open the prospect for a revision of the verdict and sentence, considering that the libelous accusations which the above-named defendant made against Lumumba owing to the impact of the alleged coercive acts were also confirmed by her before a public prosecutor, during questioning, therefore, in a context free of institutionally anomalous psychological pressures; and were also
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confirmed in a memorandum ["memoriale"] bearing her signature, at a moment when the said accuser was alone with herself and her conscience, in conditions of objective tranquillity, free from external conditioning; and were even repeated, some time later, during the validation of Lumumba's arrest, before the GIP [judge of preliminary investigation] who initiated the proceedings. 2.3. Finally, the motion by Sollecito's defence to remit from this Court to United Sections questions related to the probative value of scientific results acquired in violation of international protocols, containing precise prescriptions to assure the authenticity of presentation and analysis; to the criteria for the evaluation of witness statements at trials with strong media exposure; to the usability of accusatory declarations incorporated into a judgment acquired within the meaning of Article 238-bis of the said Italian Code of Criminal Procedure, is rejected. We are dealing, by all signs, with questions of a particular moment, of doubtless relevance to the resolution of this case but of questionable capacity to generate jurisprudential controversies. At any rate, these are potential interpretive nodes this Collegium [Court] definitely cannot avoid resolving, with relevant acknowledgements provided, of binding force in shaping this judgment. 3. With these preliminary considerations, the central theme of the current judgment can be tackled, forming the leitmotiv [recurring theme] of the objections of the appellants, concerning the rulings rejecting the non-compliance by the referral Judge, of the dictum [report] of the verdict annulled by this court, underlining the criteria of the principle of law that affirms it. The assessment requested of this Court is – only in appearance – easy, given that the ratio decidendi [rationale for the decision] of the verdict of annulment lies in the realization of the obvious lack of logic of the reasoning of the challenged judgment; a realization that, then, is substantiated – and specified – in the revealed violation of the principles of completeness and freedom from contradictions. In any case, it is an indisputable application of jurisprudence that, in the presence of such grounds for annulment, pertaining to the deficiency in reasoning, the referral judge is responsible for the examination of the entire body of evidence, that he is expected to review in complete freedom to form judgments, without any type of constraints, being only required to produce motivations devoid of deficiencies of obvious lack of logic or patent contradictoriness that had caused the annulment of the first appeal verdict. In the jurisprudence of this Court of legitimacy, in fact, the assertion is repeated according to: “following an annulment for deficiency of reasoning, the referral judge is not bound by founding the new verdict on the same arguments considered illogical or deficient by the Supreme Court of Cassation, but is free to arriv e at, based on different arguments from those r e j e c t e d in t h e C o u r t o f L e gitim a c y o r r a t h e r in t e g r a tin g a n d c o m ple tin g t h o s e
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alr e a d y c a r rie d o u t, t o t h e s a m e d e cisio n o f t h e a n n ulle d p r o n o u n c e m e n t .
That because it is the judge of the lower court who is expected to have the task of reconstructing the facts emerging from the results of the trial and to appreciate the significance and value of the various sources of evidence (amongst others, Section 4, n. 30422 of 21/06/2005, Poggi, Rv. 232019; Section 4, n. 48352 of 29/04/2009, Savoretti , Rv. 245775). A problem – outlined, with appreciable discretion, in the new reasoning in favour of Knox – is when, as in the case in question, the judge of legitimacy made incursions into the “merit”, going beyond the institutional limits assigned to it, such as, for example, when a variety of alternative motives are proposed for the murderous act and the referral judge is expected to identify, in that predetermined nume rus clausus [finite number], the most appropriate to the case in question. There is no doubt, according to this Court, that in such an unusual situation the referral judge cannot be considered in any way bound or conditioned, precisely because of the clearcut discrimen [crisis] that exists in the profession, for what has been said, between cognisance of law and cognisance of fact, the latter the exclusive prerogative of the referral judge. On this matter, moreover, this Supreme Court of Jurisprudence has already expressed itself, in stating that the referral judge cannot be conditioned in his reasoning by evaluations of fact that may have escaped the judge of legitimacy, with the levels on which the respective evaluations operate b ein g diff e r e n t, a n d wit h it n o t b ein g t h e r ole o f t h e C o u r t o f C a s s a tio n t o s u p e rim p o s e it s o w n judgment o n t h e r e f e r r al j u d g e r e g a r din g s u c h a s p e c t s . M o r e o v e r , w h e r e t h e S u p r e m e C o u r t f o c u s e s a n y a t t e n tio n o n s o m e p a r tic ula r a s p e c t s f r o m w hic h e m e r g e s t h e d e ficie n c y o r t h e c o n t r a di c t o rin e s s o f t h e reasoning, that does not mean that the referral judge for the new verdict is limited only by the points specified, because he conserves the same powers held originally, which is as the judge of merit relative to the identification and eval uation of the court records, within the charge of the verdict affected by annulment. (Section 4 n. 30422/2005 cit.). In the same way, it was stated that […] any elements of fact or evaluation contained in the pronouncement of annulment are not bindi ng on t he referral judge, but are to be taken purely as points of reference in order to identify t h e d e f e c t o r d e f e c t s r e p o r t e d , a n d not as f a c t s t h a t im p o s e u p o n t h e d e cisio n entrusted to him; in addition there is no doubt that, following a pronouncement of annulment because of lack of reasoning through the identification of specific points of deficiency or of contradictoriness, the power of the referral judge cannot be limited to the evaluation of the single points specified, as if they were isolated from th e rest of the body of evidence, but is expected to consider other court records on which the decision must be based, providing the justification in the sentence. (Section 4, n. 44644 of 18/10/2011, defendant F., Rv. 251660; Section 5, n. 41085 of 03/07/2009,
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defendant L., Rv. 245389; Section 1, n. 1397 of 10/12/1997 dep. 1998, Pace, Rv. 209692). In summary at the base of the recurring lesson of this Judge of Legitimacy, on the consolidated point constituting iu s r e c e p t u m [established law], according to which the powers of the referral judge differ depending on whether the annulment was pronounced because of violation or erroneous application of penal law, or due to a patent lack of logic in the reasoning, since in the fir st case the judge is bound by the principle of law expressed by the Court, subject however that the evaluation of the ascertained facts remain unaltered in the appealed sentence; in the second case they can proceed with a new assessment of the body of evid ence, with the limit of not repeating the motivational faults of the sentence that has been annulled. (Inter alia Section 3 n 7882, of 10/1/2012, Montali Rv. 252333). 3.1. As we will see, the judge a quo [of the trial from which this appeal is being heard], in further points, remains conditioned by the prospect of the factual profile unexpectedly included in the annulled sentence; such that the stringent and analytical evaluation of the Supreme Court might unavoidably become forced towards affirming the guilt of the two accused. Misguided by this basic misunderstanding, the same judge is drawn into logical inconsistencies and obvious errores in iudicando [errors in judgment] that are here reported. 4. One cannot avoid concluding, in the meantime, in this first attempted analysis, that the history of this trial has been characterised by a troubled and intrinsically contradictory path, around one sole certainty; the guilt of Amanda Knox for the slanderous accusation of Patrick Lumumba. Regarding, on the other hand, the murder of Kercher, the ruling of guilt of the same Knox and of Sollecito in the first trial was followed by acquittal in the Court of Appeal of Perugia, as a result of an articulated analysis of the evidence; then its annulment by the First Section of the Supreme Court; and finally by conviction, in the Court of referral in Florence, followed by today’s appeal to the Court of Cassation. An objectively wavering process, whose oscillations, however, are also the result of clamorous failures , or investigative ‘amnesia’ and of culpable omissions of investigative activity. Had they been carried out these would, in all probability, have led to a picture if not of certainty, at least of tranquil reliability pointing either towards guilt or innocence of today’s accused. Such a scenario, intrinsically contradictory, constitutes in itself already a first and eloquent signal of an investigation that was never capable of reaching a conclusion b e y o n d a n y reasonable doubt. 4.1. Certainly an unusual media clamour about the event, was due not only to the mode of death of the 22 year-old, so absurd and unusual in its origin, but also to the nationalities of the people involved. (A citizen of the United States, Knox,
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accused of involvement in the murder of a flatmate, who was also sharing the experience of studying overseas; a British citizen, Meredith Kercher, found murdered under mysterious circumstances in a place in which, probably, she felt most protected, it being ‘her house’. And therefore, reflecting the ‘international’ nature of the story, it led to a sudden acceleration of the investigations, in the frantic search for one or more guilty people to placate international opinion, and certainly did not help lead to the real truth. In homicides such as this (such pressure) affects not only the timing but also the competence and the correctness of the investigative activities. Not only this, but when – as in this case – the outcome of such research depends greatly on scientific investigations, the aseptic collection of all the samples useful for the investigation – in conditions that guarantee prior sterility which avoids possible contamination – constitutes, notably, the first prudent, shrewd and essential prelude – in its turn – of a correct analysis and “reading” of the recovered samples. So when the central point of technical activity contains specialist genetic investigations, the contribution of investigative activity is ever more relevant; credible parameters of correctness must respect international standards of protocols, following fundamental rules of approach prescribed by the scientific community, on the basis of statistical and validated observations. The rigorous respect of such methodical norms offers a conventional coefficient of acceptable credibility of such results, primarily linked to their reproducibility - namely the possibility of obtaining these results, and only these, reproduced with a constantly identical method and under identical conditions, according to fundamental empirical rules. On a more general level following the scientific method starting with Galileo Galilei on the application of the ‘scientific method’. This is typically leading to “objective” reality, reliable , verifiable and agreeable – well-known to be consistent, on one hand, in the collection of empirical data agreeable with the hypothesis and the theory to be validated; on the other hand in the mathematical and rigorous analysis, associating in this way – as first affirmed by the abovementioned Galilei - "sensible experiences" to "necessary demonstrations," that constitute experimental mathematics. 4.2. As you will see, all of this is essentially missing from the present trial. Not only this, but media attention, as well as not benefiting from a search for the truth, led to further prejudicial reflexes, at least in terms of ‘procedural deviations’, generating illicit “noi se” (in the provision of information). This is not so much from the late discovery of witnesses by certain people (considering that in this case this throws into question the reliability of such declarations), as of raiding of the trial by the impromptu propulsion of detainees with proven criminal records, who are certainly not people averse to moments of pathological lying and of being protagonists in trials, and are able in this way to secure, at least for a day, their return to the limelight of television, thereby breaking the monotony of prison. We
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see amongst other things, not unusual claims by such ‘bearers’ of truths collected in the prison environment, from supposed confidences of co-prisoners in the classical hours of exercise or of socialising. Such situations are certainly not commendable, but nevertheless in the first appeal had the merit for the first time of securing the active participation in this trial of Rudy Guede (who, having been cited in the course of the first grade trial, availed himself of the right not to respond, f.3). He is a key element in this story, even though unwaveringly reticent (and never having confessed), a bearer of half truths, which moreover from time to time changed. Rudy Guede is the Ivorian citizen, and is himself involved in the Kercher story. Judged separately, this co-participant in the murder, was condemned after a fast track trial, to 30 years in prison, reduced to 16 on appeal. The reference to him is to introduce a second, irrefutable certainty in this trial (after that relating to the responsibility of Knox for the crime of calumny), namely the guilt, irrevocably confirmed, of the same Ivorian, as author – in collaboration with others – of the murder of the young English woman. Affirming the guilt of the aforementioned was the finding of genetic traces, certainly attributable to him, collected in the house in via della Pergola, on the body of the victim and in the room in which the murder was committed. 4.3. The same reference weighs, therefore, on two relevant rights of law raised by the defence; one relating to the use and validity of the above-mentioned irrevocable sentence in the present trial; and the other to the validity of statements – in terms that were characterized by anything but consistency and constancy – of Guede within his own trial, that in some way those being considered today were involved. 4.3.1. Concerning the first question, the use of that irrevocable sentence in this trial, for every possible angle, is unacceptable, as set out in the said Article 238 bis Italian Code of Criminal Procedure. According to that provision “… sentences defined as irrevocable can be used once the fact has been ascertained and are evaluated accordin g to Article s 187 and 192, section 3. ” Well, the “fact” asserted in the sentence in question is, without question, the participation of Guede in the murder “along with other persons, unknown.” The reference to procedural rules signifies that the use of such assessment is subordinate to the double condition of amenability of this fact to the “objective of the evidence”, with reference to the present trial, and the existence of other elements of proof which confirm its reliability. Double elements which, in the case under consideration, have largely positive results. And in fact the pertinence of this fact is evident, indeed accepted by this court. Equally correct is its evaluation concerning other trial verdicts, which confirm
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its validity. We are referring to multiple elements, linked to the complex reconstruction of the crime, which rule out Guede having acted alone. In the first place lies the existence of the two principal wounds (in reality three), found on the neck of the young English woman, one on one side and one on the other, with different directions and characteristics compatible (even if the conclusion is disputed by the defence) with two different knives. And further, the lack of signs of resistance on the part of the girl, under whose nails no trace of any aggressor was found, excluding any desperate attempt at opposition; the bruises on the upper arms and the echymoses on the mandibular area and the lips (probably manual acts of constriction to shut the mouth of the victim) found at autopsy, and the chilling mode of killing, not adequately evaluated in the contested judgment. And in fact, in the same judgment (pages 323 and 325) it is evident that copious sprays of blood were recovered on the right side of the wardrobe in Kercher’s room, 50 cm from the floor; circumstances which, having regard to their direction, would lead one to believe that the girl literally had her ‘ throat slashed’ while probably on her knees, with the head tilted, a short distance from this item of furniture, and was inflicted with more cuts to the throat, of which one – inflicted on the left side – caused her death by asphyxia following the flow of blood, which flowed back into and blocked the airway “impeding breathing, a situation aggravated by fracture of the hyoid bone – also referable to the action of the knife – with consequent dyspnoea” (p 48). This is a physical action that is very difficult to ascribe to one person acting alone. Except that the real importance, had it been adequately evaluated, would have resulted in relation to the quest for a motive. Thus the disproportional cruelty of the criminal action - could be considered as not being very compatible with any of the situations envisaged in the judgment, i.e. mere disagreements with Knox (which is even supported by evidence gathered from the victim’s mother), with sexual impulses of some of the participants and, perhaps, with the idea of a group sex game gone wrong. This however, was not reflected on the victim's body, beyond the digital violation by Guede, whose DNA was found in Kercher’s vagina. However it cannot be excluded that there was conscious acceptance of a preliminary physical approach that was initially consensual. This criticism renders even less compatible a break-in by an unknown burglar, when you consider whether in the natural order of ordinary events, it is really possible that a thief, at the sight of a young woman becomes seized by uncontrollable sexual urges and attacks her, with great difficulty. Then after the physical and sexual aggression, he leaves her to undergo gratuitous homicide with the brutal ferocity seen in this case, rather than making a hasty escape. Unless, of
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course, one thinks about the disturbed personality of a serial killer, of whose acts there is no trace, there having been no murders of girls in Perugia at the time and using the same methods. 4.3.2. Regarding the second question, and as regards its usability – according to the method of acquisition under Article 238 bis Italian Code of Criminal Procedure - statements made by Guede contra alios [against others] as part of its proceedings in the absence of people blamed and their lawyers. (This is by reference to Guede’s not always consistent and stable allegations, made during the preliminary investigation and reported in judgment. In these he had somehow involved Knox in the murder, but never explicitly Sollecito, while at the same time continuing to profess his own innocence, despite the presence at the scene of the murder and on the victim's body of numerous biological traces attributable to him). Here the result can only be negative. Indeed, such a mode of acquisition would result in a trick evasion of the guarantees laid down by Article 526 section 1bis Italian Code of Criminal Procedure, whose tenor is that " t h e g uilt o f t h e d e f e n d a n t c a n n o t b e e s t a blis h e d o n t h e b a sis o f s t a t e m e n t s b y p e r s o n s w h o b y c h oic e h a v e alw a y s v olu n t a rily a v oid e d e x a min a tio n b y t h e a c c u s e d o r his c o u n s el" . This would obviously, at the same time, be in violation of Article 111, section 4 Constitution, which gives the same conclusion to harmonise the trial system, according to Article 6 letter d), of the European Commission [sic; correctly; Convention] of Human Rights (Section F. n. 35729 of 01/08/2013, Agrama, Rv 256576). In this regard, it is useful to recall the principle of "non substitutability", taken by the United Sections of the Supreme Court from the widest category of "l egality of the evidence ", reflecting that, when the code establishes a prohibition or expresses non-usability, the use of other procedural instruments, typical or atypical, intended to surreptitiously circumvent such a barrier, is forbidden. (Section U, n. 36747 of 28/05/2003, Torcasio, Rv. 225467; cf, and Section U, n. 28997 of 19/04/2012, Pasqua, Rv. 252893). And even in this trial process, Guede - called to testify as a witness as a result of accusation of declarations of Mario Alessi (a man convicted of a horrendous murder of a child) - after having denied the accusation, confirmed the contents of a letter he sent to his lawyer, and then unexpectedly turned to a news broadcast, in which he accused today's applicants, and then refused cross-examination by their lawyers. Thus after recognizing the authenticity of his letter refuting Alessi’s claim that Raffaele Sollecito and Amanda Knox had nothing to do with the murder, Guede refused to be cross-examined by the defendants' lawyers, assuming that his presence in the trial was limited to the content of the statements of Alessi concerning himself. Hence, the unusability stated – in the part related to the letter that however concerned today’s appellants – cannot be used in a different procedural context, given that it was made without the prescribed guarantees.
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On the other hand, confronting the definitive attitude of closure the (appeal) court did not force the Ivorian to testify, as a result of the irrevocability of the judgment obtained against him, pursuant on Article 197 Italian Code of Criminal Procedure. And in fact, bearing in mind the successive Article 197 bis, section 4, of the Code of Procedure, he could not be compelled to give evidence about facts for which he had already been condemned, but always denied his responsibility, and could not give evidence involving his responsibility in relation to the offence in the present trial, since it was made outside such prescribed guarantees. 4.4. Finally, still as a preliminary matter, the question of law must be addressed, raised by the defence, regarding the rejection of the request for a new evidentiary hearing in the referral trial, also with regards to the execution of the requested expert assessments. The exception is based on the importance of the expected obligation of the requested evidentiary hearing, against the particular yardstick of Article. 627 section 2, the second part, that "[.....] If an appellate decision is cancelled and the pa rties r e q u e s t s o , t h e j u d g e h a s t h e m e a n s t o r e n e w a n e vid e n tia r y h e a rin g f o r t h e collection of evidence relevant to the decision ”. Obviously, the letter of the rule differs from the general discipline of the ordinary powers of the court of appeal in that field, in accordance with Article 603 Italian Code of Criminal Procedure: "un - d e cid a bilit y o f t h e s t a t e o f t h e c o u r t records”, in the case referred to in section 1, for the possibility that the request relates to evidence already collected or new; we recall the criteria laid down in Article 495, section 1, for the hypothesis of new evidence discovered after the first instance judgment; the " absolute necessity " of supplementary evidence, in case of renewal ex officio , as well as in the special case (originally envisaged and now repealed, pursuant to Article 11 law 28.4. 2014, n. 67) of the renewed request in favour of a defendant who was absent in the [Court of] first instance. This court opines that the particular wording of the rules mentioned does not authorise the belief that the new court, in the event of annulment of the appellate decision, is obliged to renew evidentiary hearings by virtue of the mere fact that parties request it. To conclude otherwise would not have rational basis and, indeed, would introduce a dystonic element into the overall discipline of the institution. Moreover, the first part of the second section of the same Article. 627 Italian Code of Criminal Procedure states that the referral judge decides with the same powers as the court whose judgment has been annulled, subject to limitations arising in law.
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For a harmonic reconstruction of the architecture of codes and obligations, therefore, we believe that the special discipline of the renewal of the evidentiary hearing in the court of referral does not detract from the general requirement laid down in Article 603 Italian Code of Criminal Procedure. Moreover, in hindsight, the call, in section 2 of Article. 627 Italian Code of Criminal Procedure, to take evidence "relevant" for the decision is merely superfluous language, given that the relevant judgment is, necessarily, essential for the evaluation by the appeal court invested with the request for supplementary evidence and to the same appreciation of a b s olu t e n e c e s sit y which led to the referral. And in fact, in no case of renewal of the evidentiary phase can one find evidence entering the trial that are not "relevant" to the decisions; and the same is true, more generally, for the entire package of evidence in a criminal trial, in consistent application of the fundamental principle laid down by Article. 190 of the Italian Code of Criminal Procedure, according to which the judge must admit evidence requested by the parties, with the exception, other than those prohibited by law, of evidence "clearly superfluous or irrelevant". In this sense and, with this understanding, we therefore need to reiterate the orientation expressed in the matter by this Supreme Court on previous occasions (Sec. 5, n. 52208 of 30/09/2014, Marino , Rv. 262,116 according to whom the referral judge, invest ed with the task following the annulment pronounced by the Supreme Court, is not required to reopen the evidentiary hearing each time the p a r tie s s o r e q u e s t, sin c e it s p o w e r s a r e id e n tic al t o t h o s e o f t h e c o u r t w h o s e judgment was annulled, such that they m ust consider only evidence if it is essential to the final decision, as provided for by art 603 Italian Code of Criminal Procedure, as well as being relevant, as stipulated in Article 627, section two, Italian Code of Criminal Procedure ; Sec. 1, n. 28225 of 09/05/2014, Dell'Utri, Rv. 260,939; Sec. 4, n. 30422 of 21/06/2005, Poggi, Rv. 232,020; Sec. 1, n. 16786 of 24/03/2004, De Fa / Co, Rv. 227924). There is no doubt, then, that the application of the powers conferred to the referral court regarding evidentiary hearings, as here, should be appropriately reasoned and the reasons, certainly, audited in the Court of legitimacy. Well, in this case, the judge a quo [of the trial from which this appeal is being heard] gave full reasons for the denial of the hearing of new evidence, considering it irrelevant to the decision. However, in other respects, the reasons for the denial emerged implicitly - but for this no less clearly - for collective reasons, retaining as complete the body of evidence in the court records. On the other hand, there is no reason to believe that, despite the peculiarities in the referral judgment, there should not apply in this matter the principle generated whereby the expertise is neutral, removed from bias of parties and placed at the
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discretion of the judge, such that
it d o e s n't f all in t o t h e c a t e g o r y o f " d e cisiv e evidence" and its refusal is not sanctionable pursuant to Article 606, first section , letter. d) Italian Code of Criminal Procedure, as it is the result of a judgment of facts th a t, if s u p p o r t e d b y a d e q u a t e r e a s o n s , is ir r e v e r sible (Sec. 6, n. 43526 of 03/10/2012, reply, Rv. 253707). 5. Having resolved, in the aforementioned words, the matter of the rulings and those primarily to do with law, we may now face the "merit" of the trial process in relation to the content of the articulated appeals. First, it should be noted that, regarding the contravention of charge b), relating to the illegal carrying of the knife indicated in the charge, we have now passed the statute of limitations, from the date of its commission. There is no choice other than to accept it, without there being evidence of more favourable reasons for acquittal based on merit, keeping in mind Article 129, second section, Italian Code of Criminal Procedure, all the more in light of the pronouncements of guilt in first level trial and the second Assizes Appeal Court. Moreover, according to undisputed guidance of this Court of legitimacy the formula of acquittal on merit prevails on the declaration of impossibility to proceed due to the statute of limitations only if there is detectable, with a simple analysis of t h e e vid e n c e , t o t al a b s e n c e o f p r o o f o f g uilt b o r n e b y t h e a c c u s e d r a t h e r t h a n positive proof of innocence, and not also in the case of mere contradiction or lack of evidence that requires a pondered consideration between opposing findings (Sec. 6, n. 10284 of 22/01/2014, Culicchia, Rv . 259,445). 6. We may now proceed to examine the motivational structure of the ruling under appeal, the object of numerous critiques by the parties. Even on first reading, discrepancies, inconsistencies, and errores in iudicando [errors in judgment] that invalidate the overall structure of the argument ab imis [from the deepest] do not escape notice. 6.1 Erroneous, in the first place, is the assertion regarding the substantive irrelevance of ascertaining the motive of the murderous act. This cannot be accepted in light of the unquestioned doctrine of this regulating Court (starting from Sec. 1, no. 10841 of 1992-09-24, Scupola , Rv. 192865) relating to the relevance of the motive as a glue that links the various elements of which proof is made, especially in circumstantial cases such as the one at hand. Not only that, but - obviously - its value as a reinforcing key to the circumstantial evidence requires the prior verification of the degree of trustworthiness of the evidence [in question] in terms of clarity, precision, and consistency resulting from analysis of the same [evidence], considered in isolation and then incorporated into a global and unitary framework (Sec. 1, no. 17548 of
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2012-04-20,
Sorrentino , Rv. 252889 in the wake of United Sections, no. 45276,
Andreotti , Rv. 226094, according to which t he “motive” [“causale”], while capable of constituting an element confirming involvement in the crime of the individual with the aim of physical elimination of the victim when, by its specificity and exclusivity, it converges unambiguously in a single dire ction, nevertheless retains a margin of ambiguity in itself, insofar as it may catalyze and reinforce the probative value of the p o sitiv e e vid e n c e o f g uilt, f r o m w hic h o n e m a y lo gic ally in f e r , o n t h e b a sis o f established and trustworthy rules of experience , the existence of the uncertain fact (i.e. the possibility of attributing the crime to the party concerned), inasmuch as, upon analytic evaluation of each piece [individually] and in the context of a global assessment as a whole, the evidence, possibly in light of its interpretive reading [ chiave di lettura ] provided by the motive, presents itself as clear, precise, and convergent with unambiguous significance). Which, as we will see shortly, cannot be maintained in the case at hand, in the face of a body of evidence which is ambiguous and intrinsically contradictory. In particular, none of the possible motives out of the range of those indicated by the annulled ruling itself can be ascertained in the present case. The sexual motive, attributed to Guede in the proceedings against him, cannot be extended tout court to his presumed partners in crime; by what has been said, the hypothesis of a group erotic game has found no confirmation of any kind; it is not possible to hypothesise, for each presumed participant a motive that has been transferred or combined due to the sharing of some motivation or another. On the other hand, an extension of this sort would require the verification of secure interpersonal relationships among the co-participants that [would] render such a transfer likely, if only in the fortuitous or spontaneous circumstances of a criminal accord. Now, for all that the sentimental relationship between Sollecito and Knox is undisputed, and for all that it has been established that the young woman did have occasion to meet Guede in a few instances, there is no proof at all that Sollecito was acquainted with or had ever frequented the Ivorian. On this point it is certainly contradictory and manifestly illogical to [on the one hand] acknowledge (at f. 91) the unreasonableness of hypothesizing the participation in such a “gory” murder in complicity with a stranger in ruling out any notion of involvement on the part of flatmates Filomena Romanelli and Laura Mezzetti (who, certainly, did not know Guede), and [on the other hand] not extend the same argument to Sollecito, who turns out never to have even met the Ivorian. 6.2. Another judicial error is to be found in the finding that the establishment of Kercher’s exact time of death was irrelevant, in the belief that the approximate
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timing offered by the expert investigations was sufficient, for all that this may have been correct at the trial stage. The Sollecito defence is right to object in pointing out the need for investigation of this point and all its implications, especially in a circumstantial case like this one. Not only that, but the exact determination of Kercher’s time of death is an unavoidable factual prerequisite for the verification of the defendant’s alibi, in the form of an inquiry aimed at ascertaining the possibility of his alleged presence in the house on via della Pergola at the time of the murder. It is for this reason that an appropriate expert review was requested. Now, on this point too one must register a deplorable carelessness in the preliminary investigation phase. It suffices to consider that the findings of the judicial police had proposed a banal arithmetic mean between a possible earliest time and a possible a possible latest time (from around 6.50 pm on November 1 to 4.50 am of the following day), thus fixing the time of death at about 11 – 11.30 pm. Examination of the gastric apparatus of the victim (who, in late evening, had consumed breakfast with her English friends), has permitted – again, in approximation, amended at the trial stage – greater restriction of the temporal range. The Court of referral has further narrowed the timeline, placing it between about 9.00pm on November 1 (when Kercher took leave of an English friend) and 00.10.31am of the next day, on the basis of the recording (in the telephone records) of a signal on one of Kercher’s own cellular phones intercepted by a cellular tower serving the zone where Via Sperandio is located, in the area where the phones in question had been abandoned by the murderers. But this finding is also approximate in that, at the time just indicated, Meredith Kercher was already dead, if only since shortly before, by the very fact that the signal was recorded in the area in which the phones were abandoned, after having been removed [from her possession] immediately after the murder in the house on via della Pergola, a few hundred metres distance from the location of their discovery. The appellant’s defence has offered a much more reliable analysis in this respect, one anchored to incontrovertible factual data. Indeed, examination of telephone traffic has revealed that, after saluting her English friend at 9 o’clock, the young woman had vainly attempted to call her relatives in England, as had been her daily habit, while a final contact was recorded at 10.13 pm, so that the timeline was restricted further to the range of 9.30/10.13 pm or thereabouts.
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7. The second criticism that must be raised against the ruling under appeal introduces to the central theme of the judgment, or rather the legal value attributable to the scientific evidence, with particular reference to the genetic investigations, acquired in violation of the rules established by international protocols3. This question, specific as it is, forms part of the lively theoretical debate on the relationship between scientific evidence and criminal trials, in search of a problematic balance between a theory – not insensitive to certain suggestions of interpretive stances from beyond our borders – that tends to put an increasing amount of weight on the contributions of science, even if not validated by the scientific community; and a theory that insists on the primacy of law and postulates that, in deference to the rules of criminal procedure itself, only those scientific experiments validated according to commonly accepted methodological canons may be allowed to enter. This cultural debate, while respecting the principle of freely-held opinion of the judge, also proposes to critically reexamine the now-obsolete and dubiously credible notion of the judge as “ pe ritus peritorum ” [expert of experts]. Indeed, this old maxim expresses a cultural model that is no longer current, and is in fact decidedly anachronistic, at least to the extent that it expects to assign to the judge a real ability to master the flow of scientific knowledge that the parties pour into the proceeding; a more realistic formulation, by contrast, sees the judge as wholly oblivious to those contributions, which are the fruit of a scientific training that he or she does not, need not, and cannot possess. This is all the more true with regard to genetic science, whose complex methods require a specific training in forensic genetics, chemistry, and molecular biology, drawing upon a knowledge base that is light-years away from the purely humanistic and juridical education of a magistrate. The consequence of acknowledging, as is inevitable, this state of legitimate ignorance on the part of the judge, and therefore their inability to “autonomously” master scientific evidence, cannot, however, be an uncritical placing of trust, which would be tantamount – perhaps on account of a misunderstood notion of freely-held opinion and of an equally misunderstood concept of “expert of experts” – to the substantial abdication of their own role by means of a fideistic acceptance of contributions by experts to whom the resolution of the case – and thus the responsibility of deciding it – would be delegated. On the other hand, if in the presence of a technical/scientific contribution ex uno latere [from one side], that is originating from only one of the parties to the proceeding, or, on the other hand, independently ordered by the judge themselves, 3 Translator’s note: this is a fragmented paragraph in the original text, lacking a direct object of the verb introduce (“introduces”); it has been translated with the same erroneous grammar in English.
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Re: 2015 Sept Google Translation of ISC Motivation Report

Postby KayPea » Mon Sep 21, 2015 7:44 am

ENGLISH TRANSLATION OF THE MARASCA-BRUNO MOTIVATIONS REPORT
http://www.amandaknoxcase.com/wp-conten ... Report.pdf

Pages 37 - 55

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level of reliability of “legal truth” as far as possible, or – if one prefers – reducing the unavoidable gap between legal truth and substantive truth to reasonable margins. After all, in the procedure of inductive/inferential logic, which allows one to proceed from the known fact to the unknown fact to be proved, the judge, in full freedom of opinion, may use any element whatsoever that serves as a bridge or glue between the two facts in question and allows one to proceed from the known one to the unknown one, according to parameters of reasonableness and good sense. The trait d’union [French: “hyphen”, presumably metaphorical as “link”] may, therefore, be most varied: the so-called “rule of experience”, legitimated by the heritage of common knowledge or by direct observation of the phenomenal reality, which records the repeatability of certain events in the constancy of identical, determined, conditions; a scientific law, of universal or simply statistical application; a law belonging to logic, which governs and guides the mental pathways of human rationality, and whatever else may be useful according to need. The probative reasoning which permits the passage from the evidentiary element to the evidentiary result belongs within the exclusive competence of the judge of merit, who, obviously, must provide an adequate motivation and of whom is required, in the case of circumstantial evidence, a twofold justificatory examination: a first examination pertaining to so-called “external justification”, by means of which the judge themselves must determine the validity of the rule of experience or of the scientific or logical law or of any other rule used; and a second examination pertaining to the so-called “ internal justification”, by means of which the validity of the result obtained via the application of the “bridging rule” must be concretely demonstrated (Section 1, no. 31456 of 21/05/2006. Franzioni, Rv. 240764). 7.1. With such considerations, in general and in the abstract, it is now time to consider, in the specifics, a very particular profile that is a lot more problematic. In the case in question, indeed, it is not about ascertaining characteristics and admissibility of an entirely new scientific method (even if practiced elsewhere for some time), as in the case examined and aforementioned sentence Franzoni , regarding the admissibility of “ Blood Pattern Analysis” or B.P.A. (a practice already known in the United States and in Germany, a result of the combination of scientific laws and different disciplines, recognised universally), in that under examination are the findings of the genetic science, of acclaimed reliability and of increasing utilization and usefulness in judicial investigations. Moreover, this Court, on more than one occasion, has already recognised the value in trials of genetic investigations conducted on DNA, given the high number of statistically confirmatory occurrences, to render the possibility of an error as
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infinitesimal (Section 2, n. 8434 of 05/02/2013,
Mariller , Rv. 255257; Section 1, n.
48349 of 30/06/2004, Rv. 231182). It is, rather, about ascertaining what value in the trial the genetic investigations can have when performed in a context when the analysis and findings are not at all respectful of the regulations approved by international protocols and those which, ordinarily, must take inspiration from the scientific method. In making implicit reference to judicial interpretation of legitimacy, the judge a quo [of the trial from which this appeal is being heard] didn’t hesitate to attribute evidentiary value to the aforementioned results (f. 217). The assumption cannot be shared. And indeed, the jurisprudence of this Supreme Court, nominated above, recognised in the genetic investigations – about its degree of reliability – full value of proof , and not merely as an element of circumstantial evidence according to Article 192, 2 nd section , Italian Code of Criminal P rocedure; adding that, in ca ses w h e r e t h e g e n e tic in v e s tig a tio n d o e s n’t p r o vid e a b s olu t ely c e r t ain fin din g s , cir c u m s t a n tial v alu e c a n b e a t t rib u t e d t o it s r e s ult s (Section 2, n. 8434 of 05/02/2013, Mariller , Rv, 255257; Section 1, n. 48349 of 30/06/2004, Rv. 231182). Which means that, in cases where the identity is established, the findings of the genetic investigation assume significant evidence, while in the case of mere compatibility with a specific genetic profile, they only have circumstantial importance. Such a declaration of principle necessitates, however, a clarification. As a general rule, it is possible to adhere to these conclusions, on the condition though that the activity of collecting samples, storage and analysis of the exhibits has respected the regulations of the experience approved by the protocols of the profession. Which must also be true, a fortiori [even more so], even in the lesser case, where the findings of the analysis don’t provide a successful identification, but rather only of compatibility. The principle of the necessary correctness of the method in the phase of collection, storage and analysis of the data examined, so as to preserve its integrity and authenticity, was stated by this Court in Section F, n. 44851 of 06.09.2012, Franc hini , non massimata , even if only on the subject of information technology evidence, on the grounds that those principles have been incorporated into the Italian Code of Criminal Procedure with the amendment of section 2 of Article 244 and the new case of Article 254 bis of the same code, introduced into law 18.09.2008, n. 48. The justifiable reasoning lies, in the opinion of this Court, in the same notion of circumstantial evidence offered by the procedural code, that, in Article 192 section
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2, orders that “ T h e e xis t e n c e o f a f a c t c a n n o t b e d e d u c e d f r o m pie c e s o f circumstantial evidence unless they are serious, precise and consistent ”, with the outcome that an element of evidence of the case, to qualify as being circumstantial evidence, must have the characteristics of seriousness, preciseness and consistency, according to a configuration borrowed from civil law (Article 2729, first section, Italian Civil Code). These characteristics are summarised in the so-called "certainty" of the circumstantial evidence, even if such a requirement is not explicitly stated in Article 192 of the Italian Code of Criminal Procedure, 2nd section. In reality, it is an additional characteristic considered as unfailing in established jurisprudence and intrinsically linked to the same burden of proof of circumstantial evidence, through which, through a process of formal logic, the demonstration of the concept of proof is arrived at – an unknown fact – starting from a known fact and, therefore, established as true. It is well understood, in fact, that a similar process would be, in nuce [in summary], fallacious and unreliable, when reasoning from facts that are not precise and serious and then certain . It being understood, obviously, that the certainty , under discussion, must not be taken in terms of absoluteness or of truth in the ontological sense; the certainty of circumstantial evidence is, in fact, in any case always a category of procedural nature, being of the that species [type] of certainty that is formed during the trial through evidentiary proceedings (cf., also on this point, the aforementioned sentence Franzoni ). Taking into account such considerations one really cannot see how the results of the genetic analysis – that were performed in violation of the recommendations for the protocols regarding the collection and storage – can be considered endowed of the characteristics of seriousness and preciseness . And in fact, crystallizing the results of tried and tested experience, formed as a result of repeated experimentation and significant statistical findings from experimental data, these rules epitomise the standards for [determining] the reliability of the results of the analysis, whether it is to determine identity, or merely compatibility with a specific genetic profile. Otherwise, no importance can be given to the acquired data, not even as circumstantial evidence (cf. Section 2, n. 2476 of 27/11/2014, dep. 2015, Santangelo , Rv. 261866, on the necessity of correct storage of the material containing genetic profiles, for the purposes of “repeatability” of technical findings capable of extrapolating the genetic profile; repeatability that is, moreover, dependent on the quantity of the trace and the quality of the DNA present on the biological exhibits collected; id. N. 2476/14 cit. Rv. 261867). In the case in question, it is absolutely certain that those methods were not complied with (cf., among others, ff. 206-207 and the cited requested findings of the expert report Conte-Vecchiotti, ordered by the Perugian Court of Appeal).
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In this regard it is enough to consider the methods of collection and storage of the two objects of major investigative interest in the current judgment: the kitchen knife (exhibit n. 36) and the bra clasp fastener of the victim (exhibit n. 165/b), for which the sentence did not hesitate to qualify the work of the investigators in terms of lack of professionalism (f. 207). The big knife or kitchen knife, found in Sollecito’s house and considered the murder weapon, was collected and then, preserved in a common cardboard box, of the sort used to package Christmas gadgets , namely agendas which credit institutions usually gift to local businesses. More unusual – and disturbing – is the fate of the bra clasp. Noticed during the first site inspection by the Scientific Police, the object was ignored and left there on the floor for quite some time (a good 46 days), until it was finally collected during an additional visit. It is certain that in the time period between the site inspection when it was noticed and the one when it was collected, there were other visits by the investigators, who rummaged everywhere, moving furniture and fixtures, in search of evidence that would be useful to the investigation. The clasp was perhaps trodden on or, in any case, moved (such that it was found on the floor in a different position from where it had initially been noticed). Not only this, but the photographic documentation produced by Sollecito’s defence demonstrates that, at the time of the collection, the clasp was passed from hand to hand by the agents, who in addition were wearing dirty latex gloves. Questioned on the reasons for the late collection, the officer of the Scientific Police, Dr. Patrizia Stefanoni, said during a hearing that initially it was not considered appropriate to collect the clasp because the whole item of underwear of the victim had already been collected. In other words, no importance was given to that small item, despite the fact that it is the common perception that precisely this fastener is the part of most investigative interest, with it being manually operated and so a potential carrier of biological traces of use to the investigation. In addition, the traces found on the two exhibits, for which the analysis gave the results which will be discussed hereinafter, were of minuscule amount ( Low Copy Number ; referring to the clasp cf. ff. 222 and 248), such that it was not possible to repeat the amplification , namely the procedure to “reveal the genetic traces of interest of the sample” (f. 238), and therefore to attribute a biological trace to a specific genetic profile. On the basis of the protocols in the field, the repetition of the analysis (“at least twice”: evidentiary hearing Major CC Dr. Andrea Berti, expert nominated by the Referral Court, f. 228; “three times” according to Professor Adriano Tagliabracci, technical consultant for Sollecito’s defence, f. 216) is absolutely necessary in order for the result of the analysis to be considered reliable,
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so as to exclude the risk of “false positives” within statistical boundaries of insignificant probability. Essentially, it is nothing more than the procedure of validation and falsification of the scientific method, discussed previously. And on this matter, it is significant that the experts Berti-Berni, officers of RIS [ R e p a r t o in v e s tig a zio ni s cie n tific h e / Department of scientific investigation ] of Rome, carried out two amplifications of trace I found on the blade of the knife (f. 299). Without the verification t h r o u g h r e p e titio n of the evidence arising from the investigation, one must ask what the relative value can be to the proceedings if they do not permit repetition, regardless of the theoretical debate on the identification more or less scientific of the findings of investigations carried out on samples so minuscule or complex. It is the belief of this Court that the Scientific truth, however elaborated, cannot automatically be transferred into the trial to be transformed, eo ipso [of itself], in judicial truth. As has already been said, scientific proof has as an inevitable postulate the verification such that the relative findings can assume relevance and aspire to the level of “certainty”; since otherwise, they remain without reliability. But, independent of the scientific importance, a fact not verified, precisely because it does not have the necessary characteristics of preciseness and seriousness, cannot achieve, within proceedings, even the value of circumstantial evidence. Certainly in this context, it is not a nothing , to be considered tamquam non esset [as if it didn’t exist]. And in fact, it is still a fact emerging from the proceedings that, albeit devoid of demonstrable autonomous value, is nevertheless susceptible to appreciation, at least as a means of mere confirmation, within an ensemble of elements already endowed with overwhelming indicative value. Herein lies, therefore, the error in judgment committed by the Judge a quo [of the trial from which this appeal is being heard] in assigning, instead, circumstantial value to the findings of the genetic investigations incapable of amplification or the result of unorthodox methods of collection. 7.2. In order to dispel any possible ambiguity on the matter, it will be of value then, to consider that with the impossibility of attributing appreciable and demonstrable importance during the proceedings, to the results of the genetic investigations that were not repeated and became incapable of repetition, due to the insignificant quantity or the complexity of the sample, it is not a remedy to evoke the effectiveness and usability of the technical findings if they are “unrepeatable”, when, as in the case in question, the defence guarantees were observed according to Article 360 Italian Code of Criminal Procedure. And in fact, the technical investigations for which the procedural rules are mentioned are those that – for perspicuous positive formulation – relate to “people, things or places
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where the state is subject to change”, in other words states of any type or genre that by their nature can change, such that it renders it necessary to seal the state without delay in the phase of the preliminary investigations, for fear of irreducible modifications, with the result that, in accordance with the requirements of law, is destined to be utilised in the evidentiary hearings. That is permitted because the assessment to be made, even if repetition is impossible due to modification of the object under analysis, is capable of revealing “established” reality or entities endowed with demonstrable value. In the case in question, despite the compliance of the procedures according to Article 360 of the Code of Law, the evidence admitted – not repeated and not capable of repetition in any way – cannot take on either probative or circumstantial relevance, precisely because, according to the aforementioned laws of science, they necessitated validation or falsification. In other words, in one case the empirical data, “photographed” in a timely manner, assumes demonstrable significance; while on the other it is devoid of such capability, precisely because its indicative value is inextricably linked to its repetition or repeatability . 8. Then in close succession the points of patent logical inconsistency in the fabric of the reasoning of the challenged ruling are identified. 8.1. An element of evidence of unchallengeable relevance - for the reasons explained hereinafter - is represented by the total absence of biological traces attributable with certainty to the two defendants in the murder room or on the body of the victim, whereas, instead, abundant traces surely attributable to Guede have been found. This was an insurmountable monolithic barrier on the path taken by the factfinding judge to arrive at the conviction of the present defendants, already acquitted previously for the murder by the Court of Appeals of Perugia. To overcome the relevance of such a negative element - undeniably favourable to the defendants - it has been claimed in vain that, after staging the break-in, the authors of the crime performed a “selective” cleaning of the crime scene, in order to remove only those damning traces attributable to them, while leaving behind, instead, those attributable to others. This hypothesis is patently illogical. To fully understand its degree of inconsistency it is not really necessary to appoint court experts, even if this has been requested by the defences. That such a selective cleaning, moreover capable of escaping detection by luminol , whose use by the investigators (also to find traces of non-haematic origin) is nowadays part of everyday knowledge, is, for sure, impossible, according to the basic laws of ordinary experience. After all, the assertion itself of a presumed carefulness in the cleaning is factually proven wrong, since in the “small bathroom” traces of blood have been
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found on the mat, on the bidet, on the tap, on a Q-tips box and on the light switch. And yet, had the defendants been guilty, they surely would not have lacked the time for an accurate cleaning, in the sense that there was no reason for the perpetrators to hurry up for fear of the possible arrival at home of other people. In fact, Knox was perfectly aware that Romanelli and Mezzetti were outside Perugia and would not have come back home that night, hence there would have been all the time necessary for a careful cleaning of the house. With reference to the alleged bloody traces in the other rooms, mainly in the corridor, there is even an obvious misrepresentation of evidence. Indeed the S.A.L. of the Scientific Police (acronym of “Stato Avanzamento Lavori” [State of Work Progress], stating the progression of the scientific investigations and their results) had excluded, thanks to the use of a specific chemical reagent [TMB], that the traces highlighted by lum inol in the concerned rooms were of haematic nature. These papers, even if duly filed into the trial documents, have been completely neglected. Not only that, but it is also patently illogical, in this context, the reasoning of the fact finding judge, who (on page 186) reckons being able to overcome the defensive objection that the luminescent bluish reaction generated by luminol can be produced also by substances different from blood (for instance, leftovers of cleaning detergents, fruit juices and many others), by arguing that the reasoning, while theoretically correct, has however to be “contextualis ed” , meaning that if the fluorescence occurs at a place where a murder occurred, the reaction cannot be but connected with haematic traces. The weakness of the argument is such, already at first sight, that it does not require any confutation, since to reason in that way one should also surmise that the house on via della Pergola was never the object of cleanings nor was a “lived” location [i.e. with people living and doing things in it]. This observation hence allows to categorically exclude that those traces were made of blood and willfully removed in that circumstance. Another big logical inconsistency concerns the explanations given by the fact finding judge with respect to the theft of Kercher’s cell phones, which were disposed of by the unknown perpetrator or perpetrators, while fleeing from via della Pergola after the murder, by throwing them on a ground below road level, that in the dark could look like open country (it was, instead, a private garden). All but plausible is, indeed, the reasoning according to which the cell phones were carried away to prevent that a possible ring could lead to the discovery of the corpse of the young Englishwoman before the expected time, [a reasoning made] without considering that such a goal could have been reached more easily by switching off said phones or by removing the battery.
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Furthermore, it is glaringly illogical - and also scarcely respectful of trial facts - to reconstruct the motive of the murder on the basis of alleged disagreements between Kercher and Knox, intensified also by the grievance the English girl had towards the flatmate for having the latter let in the house Guede, who had improperly used the bathroom (page 312). The “truth” offered by the Ivorian in one of the statements made at his trial (and usable, as previously said, exclusively for what does not concern the responsibilities of others) is, instead, another. The youngster was in the bathroom when, according to him, he heard Kercher arguing with another person, whose voice he perceived as being of a female, and so the reason of the quarrel could not certainly be the use he had made of the bathroom. It is also illogical and contradictory the argument that, in an attempt to give substance to those disagreements (moreover belied by other testimonies), does not hesitate to retrieve the hypothesis of the theft of money and credit cards that Kercher would allegedly have blamed on Knox, in spite of the fact that Knox, as well as Sollecito, had been acquitted for the charge of theft, limited to the aforementioned goods, because “the fact does not exist” (page 316). It is, in addition, arbitrary, in the absence of whatever confirmation in the trial documents, to translate into the house on via della Pergola the situation Knox, in one of her statements, had described and contextualised in a different temporal and logistical setting, namely at Via Garibaldi 130 [sic], at Sollecito’s: viewing a movie, taking light drugs, having sex and then sleeping until the late morning of November 2nd, hence at a time before, concomitant and after that of the murder. All that to introduce, as an aspect of the dynamics of the murder, the possible destabilizing and clouding effect of the drug. This, again, in the absence of whatever confirmation, also because - among the many omissions or debatable investigative strategies - the law enforcement, while collecting a cigarette stub in the ashtray of the living room, with biological traces showing a mixed DNA profile (of Knox and Sollecito), did not perform any kind of analysis concerning the nature of the formulation [of the content of the cigarette], for the reason that such an analysis would have made impossible to ascertain the genetic profile, making the sample “unusable”. And all this [was done] with the brilliant result of delivering to the trial a totally irrelevant piece of information, given that, obviously, Sollecito used to hang out at the house on via della Pergola, being in a relationship with the American girl; whereas, instead, the identification of the nature of the sample could have, perhaps, suggested investigative ideas of particular interest. The remark above is emblematic of the overall structure of the part of the challenged ruling concerning the reconstruction of the events, summarised in Section 10 and having the title: conclusive evaluations .
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It is, surely, undeniable the interpretative effort displayed by the fact finding judge in order to remedy the unbridgeable investigative gaps and the significant shortfalls of evidence with shrewd speculations and suggestive logical arguments, even if merely assertive and apodictic [dogmatic]. Now, if it goes without doubt that factual reconstruction is a task pertaining exclusively to the fact finding judge and it is not up to the Court of legitimacy to establish if the related decision does indeed offer the best possible reconstruction of the events, nor to approve the reasoning behind it, having this Judge [the Supreme Court of Cassation] to limit itself to verify if said reasoning is compatible - according to an expression often used in jurisprudence - “with common sense and with the limits of an acceptable latitude of evaluation” (among others, Section 5, n.1004 of 11/30/1999, filed in 2000, Moro G, Rv 215745), as well as compliant with the elements of evidence, according to the modified text of Article 606, section e) of the Italian Code of Criminal Procedure; it is all the same true that the reconstructive version chosen, even if compliant with the rules of ordinary logic, must, nevertheless, agree with the facts discovered at trial and be the result of a process of critical evaluation of the evidence acquired according to the procedure. In other words, the use of logic and intuition cannot, in any way, compensate for the lack of evidence or the inefficiency of the investigations. Faced with missing, insufficient or contradictory evidence, the judge should simply accept it and issue a verdict of acquittal, according to Article 530, section 2 of the Italian Code of Criminal Procedure, even if he is really convinced of the guilt of the defendant. There are, furthermore, patent [factual] errors in the reasoning of the ruling under examination. Along these lines, the assertion made on page 321, according to which, Sollecito’s DNA was found, along with Kercher’s, in the imperceptible striations on the knife deemed to be the murder weapon (Exhibit 36), is absolutely groundless. The claim is in conflict with the extensive presentation made in the challenged ruling about the exhibit (pages from 208 onwards), reporting the results of the genetic investigations attributing trace A to Knox, trace B to Kercher and finally trace I - the one unduly neglected by the Conti-Vecchiotti report - which has been attributed by a new expert report to Knox. As it will be said later, while the attribution of trace A and I to the plaintiff [Knox] goes unchallenged, the attribution of trace B to Kercher cannot have - for the already expressed reasons - the characteristics of certainty, it being a low copy number , that is a quantitatively tiny sample, allowing only a single amplification. But nowhere is it written that biological traces related to Sollecito’s genetic profile were on the knife.
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9. The ascertained
errores in iudicando [errors in judgment] and the logical inconsistencies pointed out invalidate the appealed verdict from the funditus [foundations], hence it deserves to be annulled. The aforementioned reasons for annulling can be summarised in the inability to present an evidentiary framework that can really be considered suitable to support a pronouncement of guilt beyond a reasonable doubt, as required by Article 533 of the Italian Code of Criminal Procedure in the text renewed by Article 5 of the law n. 46/2006. As for the debate about the rule having, or not, peremptory value and about its effect on the evaluation of evidence, this Court of Legitimacy has had the opportunity more than once to reiterate that the norm of law requiring a judgment “ b e y o n d a n y r e a s o n a ble d o u b t ” , f o u n d e d o n t h e c o n s tit u tio n al p rin ciple o f p r e s u m p tio n o f in n o c e n c e , did n o t in t r o d u c e a diff e r e n t a n d m o r e r e s t ric tiv e standard for the evaluation of evid ence, but codified the principle of jurisprudence according to which the issuing of a verdict of conviction must be based on the certainty arising from the proceedings of the responsibility of the defendant (Section 2, n. 7035 of 11/9/2012, filed in 2013, De Bartolomei , Rv. 254025; Section 2, n. 16357 of 04/02/2008, Crisiglione, Rv. 239795). It is not, substantially, a new or “revolutionary” principle, but only the formalisation, with an aspect of recognition, of a rule of judgment already present in our Country’s judicial experience and, moreover, already positivizzata [applied in practice], having been formally introduced as a precondition for conviction, given the pre-existing rule of Article 530, section 2 of the Italian Code of Criminal Procedure, which provides that the defendant must be acquitted when the evidence is insufficient or contradictory (Section 1, n.30402 of 06/28/2006, Volpon , Rv. 234374). Building on these premises, the principle was then strengthened such that the r ule o f j u d g m e n t s u m m a ri s e d b y t h e f o r m ula “ b e y o n d a n y r e a s o n a ble d o u b t ” requires that a pronouncement of guilt is condition al upon the body of admitted evidence neglecting o nly u nlik ely o c c u r r e n c e s , w hic h m a y e v e n b e a b s t r a c tly p o s sible “in r e r u m n a t u r a e ” [ a m o n g t h e t hin g s o f n a t u r e ” ] , b u t w h o s e r e al occurrence in the case under scrutiny cannot be confirmed by the trial evidence, resulting in this way as being outside the natural order of things and of natural human reasoning (Section 2, n. 2548 of 12/19/2014, filed in 2015, Segu ra , Rv. 262280); with the related declaration that alternative reconstructions of the events must be based on reliable elements of evidence, since the doubt inspiring them cannot be founded on pure conjectures, even if plausible, but must be characterised by rationality (cf. Section 4, n. 22257 of 03/25/2014, Guerinelli , Rv. 259204; Section
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1, n. 17921 of 03/03/2010, Giampà , Rv. 247449; Section 1, n. 23813 of 05/08/2009, Manikam , Rv. 243801). 9.1 The intrinsically contradictory ensemble of the body of evidence, whose objective uncertainty is already emphasised by the previously highlighted wavering progress of the proceedings, does not therefore allow [us] to be satisfied to the standard of [beyond a] reasonable doubt, whose establishment is an achievement of legal culture that must, always and in any case, be upheld since it is the expression of fundamental constitutional values, centered around the key role of the human being in the judicial system, whose protection in the context of a trial is also exercised by the principle of presumption of innocence until the definitive decision [verdict], as per Article 27, section 2 of the Constitution. 9.2 The aspects of the objectively contradictory nature [of evidence] can be, as shown below, illustrated for each defendant, in a synoptic presentation of the elements favourable to the hypothesis of guilt and of the elements against it, as they are shown, of course, by the text of the challenged ruling and of the previous ones. 9.3 During the analysis of the aforementioned elements of evidence, it is certainly useful to remember that, taking for granted that the murder occurred in via della Pergola, the alleged presence at the house of the defendants cannot, in itself, be considered as proof of guilt. In the assessment of the problematic body of evidence, as described by the judge of the second appeal, one cannot but bear in mind the judicial concepts of merely not punishable connivance and of participation in a crime committed by others and of the distinction between them, as established by the indisputable teachings of the jurisprudence of legitimacy. On this point, it is ius recepitum [well established rule] that the distinction lies in t h e f a c t t h a t t h e f o r m e r a s s u m e s t h a t t h e a g e n t m ain t ain s a p u r ely p a s siv e b e h a vio r , wit h o u t c o n t rib u tin g t o t h e c rim e , w hile t h e la t t e r r e q uir e s a p o sitiv e participation - of a moral or material nature - to the criminal activity of others, also in ways facilitating or reinforcing the criminal intent of the associate (Section 4, n. 4055 of 12/12/2013, filed in 2014, Benocci , Rv. 257810; Section 5, n. 2805 of 03/22/2013, filed in 2014, Grosu , Rv. 258953). Equally obvious is the repercussion of such a distinction on the subjective dimension, since in the participation of multiple individuals in a crime the subjective element consists in the consciousness and in the will of the participating individual to cooperate with other subjects to the joint realization of the criminal act (Section 1, n. 40248 of 09/26/2012, Mazzotta , Rv. 254735). 9.4. However, a matter of undoubted significance in favour of the appellants, in the sense that it excludes their material participation in the murder, even if it is hypothesised that they were present in the house on via della Pergola, consists of the
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absolute lack of biological traces attributable to them (except the clasp which will be dealt with further on) in the murder room or on the victim’s body, where instead numerous traces attributable to Guede were found. It is indisputably impossible that traces attributable to the appellants would not have been found at the crime scene had they taken part in Kercher’s murder (the room was of small dimensions: 2.91 x 3.36 m, as shown in the plan reproduced in f: 76). No trace belonging to them was found in particular on the sweater that the victim was wearing at the time she was attacked nor on her shirt underneath, which would have been the case if they had participated in the murder (instead, traces of Guede were found on a sleeve of the aforementioned sweater: ff, 179-180). This aforementioned negative circumstance accords with the fact, already highlighted, of the absolute impracticability of the posthumous clean-up hypothesis, removing some biological traces while leaving others. 9.4.1. With this premise, with regards to Amanda Knox’s position, it can now be observed that her presence in the house at the scene of the crime was considered an established fact during the trial, following her own admissions, also contained in her signed memorial, in the part where she explains how, when she was in the kitchen, after the young Englishwoman and another person went into Kercher’s room to have sex, she heard her friend’s heartbreaking scream, to the lacerating and unbearable point that she slid down, squatting on the floor, holding her hands firmly on her ears, so as to hear no more of it. On this point, the reliability of the opinion of the judge a quo [of the trial from which this appeal is being heard] is certainly acceptable concerning this part of the accused’s account, based on the plausible consideration that it was she who first mentioned a possible sexual motive for the murder and spoke about the victim’s heartbreaking scream, when the investigators still did not have the results of an examination of the body or of the post-mortem, nor witness information taken later regarding the victim’s scream and the time it was heard (statements from Capezzali Nara, Monacchia Antonella and others). In particular we refer to the appellant’s declarations of 6.11.2007 (f, 96) in the police station. On the other hand the calumnious statements regarding Lumumba, which led to her guilty verdict, with a ruling already reached, had as part of the story the presence of the young American in the house on via della Pergola, a fact which nobody at that time - except obviously the other people present in the house - could have known (quotation f. 96). According to Knox’s calumnious statement, having met Lumumba by accident in piazza Grimana, she came home with him to via della Pergola and there, after Kercher had joined them, Lumumba made sexual advances towards the young Englishwoman, and they went to her room, from where the heartbreaking scream came. In short, it
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was Lumumba who killed Meredith and she could state this because she was at the scene of the crime, although in a different room. Another element regarding her is represented by traces of mixed DNA, hers and the victim’s, in the "small bathroom", an eloquent confirmation that she had come into contact with the latter’s blood, which she tried to wash off (it seems we are dealing with washed away blood, while the biological traces belonging to her are a result of epithelial rubbing). The data leads to strong suspicion, although not decisive, considering the wellknown considerations regarding the certain nature and attribution of the traces in question. Nevertheless, even if attribution is certain, the trial element would not be unequivocal as a demonstration of posthumous contact with that blood, as a likely attempt to remove the most blatant traces of what had happened, perhaps to help someone or deflect suspicion from herself, without this entailing her certain direct involvement in the murder. Any further and more meaningful value would be, in fact, resisted by the fact - which is decisive - that no trace leading to her was found at the scene of the crime or on the victim’s body, so that - if all the above is accepted - her contact with the victim’s blood would have occurred after the crime and in another part of the house. Another element against her is, certainly, the calumny against Lumumba, which has already been referred to. It is not understood, however, what pushed the young American to make these serious accusations. The hypothesis that she did so to escape the psychological pressure of the investigators appears extremely fragile, taking into account that the woman must have realised that, sooner or later, these accusations against her employer would have been disproved, considering that she certainly knew that Lumumba had no contact either with Kercher or with the house on via della Pergola. Moreover, the possibility of having an “iron-clad” alibi would then have led to Lumumba being freed and acquitted of the serious accusation. Nevertheless, the calumny in question also represents circumstantial evidence against the appellant in so much as it could be considered as an initiative to cover for Guede, against whom she would have had an interest to protect herself due to retaliatory accusations against her. All is underpinned by the fact that Lumumba, like Guede, is black, hence the reliable reference to the former, in case the other was seen by someone coming into or going out of the flat. As part of the accusation the contested simulation of a break-in in Romanelli’s room is relevant, as matters of strong suspicion (placing of the glass fragments - coming, apparently from the breakage of a pane of the window caused by a stone
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being thrown from outside - on top of, but also underneath clothes and furnishings), the staging of which would lead to a person - being guilty of the murder and having a “qualified” relationship with the home - who would have had an interest in removing suspicion from his or herself, whereas a third assassin would have been driven by a very different need, after the murder, which would be to leave the flat immediately. Yet this element is also substantially equivocal, especially in light of the fact that, when the postal police arrived at the house on via della Pergola for another reason (looking for Romanelli, owner of the SIM card in one of the mobile phones found in via Sperandio), it was actually the appellants, in particular Sollecito - whose trial position is inextricably bound to Knox’s - who pointed out the anomaly to the police officers, that nothing had been stolen from Romanelli’s room. Elements of strong suspicion are connected to the inconsistencies and falsehoods made by the accused in the various declarations she made, especially in the part where her story was contradicted by telephone records which proved a different SMS source; in the witness declarations of Antonio Curatolo, regarding the presence of Knox in piazza Grimana, in the company of Sollecito, and of Mario Quintavalle, regarding her presence in the supermarket on the morning following the murder, perhaps to buy cleaning products. Nevertheless, the presence of intrinsic contradiction and poor reliability of the witnesses, on several occasions objected to during the trial, do not allow unreserved credit to be attributed to the respective versions, to the extent of proving with reasonable certainty, the failure, and therefore the falsity, of the accused’s alibi, who insisted that she stayed in her boyfriend’s home from late afternoon on 1 November until the following morning. Curatolo (an enigmatic personality: a vagrant, drug addict and drug pusher) - apart from the lateness of his statements and the fact that he was not new to judicial protagonism in cases under the media spotlight - was however disproved by reference to groups of young people leaving that evening in coaches for discotheques in the area, it being proven that on the night of the murder, the bus service was not running; also the reference to masks and practical jokes which he claimed to have witnessed that evening; that would lead to a conclusion that it was Halloween, 31 October, and not 1 November, the date of the murder. This contradicts the balanced assessment - but always in a context of uncertainty and ambiguity - of the witness referring (regarding the context where he saw the two accused together) to the day before he saw (in the afternoon) unusual movements of police and Carabinieri and, in particular, men wearing white overalls and headgear (they looked almost like aliens) enter the house on via della Pergola (evidently 2 November, after the body was found). Quintavalle - apart from the lateness of his statements, initially reticent and generic - offered no contribution to certainty, not even regarding the product bought by the young woman he noted on the morning after the murder, when his shop
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opened, the fact he recognised Knox is worthless as her image had appeared in every newspaper and television news broadcast. Regarding the biological traces, marked with the letters A and I (the latter examined by the RIS [ Reparto investigazioni scientifiche / Department of scientific investigation ]), found on the knife seized from Sollecito’s home and bearing Knox’s genetic profile, this is a neutral element, given the accused lived with Sollecito in his home on via Garibaldi, although continuing to also live in via della Pergola, and - as has been pointed out - this utensil showed no traces of Kercher’s blood, a negative circumstance which contradicts the prosecution’s hypothesis that it was the murder weapon. On this point, it has to be stressed that – yet again due to the questionable choice of the scientific police’s geneticists - it was decided to favour investigations aimed at identifying the genetic profile of the traces found on the knife, rather than discover their biological nature, given that the small quantities of the samples did not allow the analysis to be repeated: in fact the qualitative examination apparently “used up” the sample and made it useless for further investigations. An extremely questionable option, given that the finding of blood traces, coming from Kercher, would have given the trial an element of strong evidentiary value, showing for certain that the weapon had been used to commit the murder. The established presence in Sollecito’s home [of Kercher’s blood trace], given Knox lived there, would have led, then, to a possible deduction on the matter. Instead, finding that the traces matched Knox’s genetic profile is not considered unequivocal data and indeed irrelevant, given that the young American lived with Sollecito, some of the time in his home and some of the time in via della Pergola. Not only this, but even if it had been possible to attribute trace B with certainty to Kercher’s genetic profile, as evidence in the trial it would not have been decisive (not being a blood trace), taking into account the promiscuity and commonality of interpersonal relationships, typical of students living away from home, which make it plausible that a kitchen knife or other utensil could be moved from one home to another and that, therefore, the confiscated knife could have been moved by Knox to via della Pergola for domestic use, on the occasion of parties or other events, and thus also used by Kercher. What is certain is that no traces of blood were found on the knife, lack of which cannot be linked to meticulous cleaning. As noted by the defence, the knife showed traces of starch, a sign of ordinary domestic use and of cleaning that was anything but meticulous. Not only this, but starch is famous as a substance with a high absorbance rate, thus, it is highly likely that, in the event of a stabbing, it would have retained blood traces. In this respect the inquisitorial assumption that the young woman was used to carrying this heavy kitchen knife with her for personal self-defence, for this purpose
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using - it is said - her large bag, is highly implausible. It is inconceivable that the woman, having been told by her boyfriend to be careful when going out at night, did not use one of the switchblades which Sollecito certainly owned, as it seems he was keen on this type of weapon and had a collection of a number of such items. Finally, the footprints found at the murder scene can in no way be traced to the appellant. 9.4.2. In Sollecito’s case too the evidentiary framework which emerges from the judgment under appeal is marked by inherent and irreducible contradiction. His presence at the scene of the murder, and in particular in the room where the crime took place, is linked to the only biological trace found on the bra clasp fastener (exhibit 165/b), for which there cannot, however, be any type of certainty in its attribution, given that this trace cannot be amplified a second time, and due to its scarceness, such that it is – for what has been said - an element without evidential value. However, the strong suspicion remains that he was present in the house on via della Pergola on the night of the murder, albeit it has not been possible to determine when. On the other hand, if Knox’s presence in the home was certain, it would hardly be credible that he was not with her. Also following one of the versions given by the woman, that is the second one according to which, upon returning home on the morning of November 2, having spent the night with her boyfriend, she immediately realised that something strange had happened (door open, traces of blood everywhere); or the other, set out in her memorial, according to which, she was present in the house when the aggression was carried out, but in a different room from where the ferocious aggression against Kercher was happening, it is very strange that she did not immediately call her boyfriend, and the telephone records show that there was no telephone call between the two, even more so because, having been in Italy for a short time, she was presumably unaware of what to do in such emergencies, so the first and perhaps the only person she could ask for help would have been her boyfriend, who lived a few hundred meters from her home. Not doing so means that Sollecito was with her, which does not prejudice, obviously, the juridical relevance of his mere presence in the house, without any certain proof of his contributing to the murder action. The defence argument which consists of his interaction on his computer to watch a cartoon downloaded from the Internet, at a time completely incompatible with the time of Kercher’s death, cannot remove these strong suspicions. In fact, even if the defence reconstruction is followed and it is held as certain that Sollecito
Marasca-Bruno Motivations Report v1.0 September 20, 2015
http://www.amandaknoxcase.com/ http://www.injusticeanywhere.org/ Page 53
carried out the computer interaction himself and was present for the whole movie, the time when he finished would not be incompatible with a later presence in the house of Kercher, taking into account the short distance between the two homes, which can be walked in around 10 minutes. An element of strong suspicion arises regarding the confirmation, at the time of spontaneous declarations, of Knox’s alibi, that is the presence of both in the home of today’s defendant, on the night of the murder, as it is contradicted by Curatolo’s declaration to have seen the two together, from 21.30 to 24.00 in piazza Grimana; and by Quintavalle regarding the presence of a young woman, later identified as Knox, when his shop opened on the morning of November 2. However, as observed above, such testimony includes significant scope for ambiguity and approximation so as not to be able, reasonably, to provide foundation for certainty, notwithstanding the judicial problematic of subjective reliability expressed by the judge a quo [of the trial from which this appeal is being heard]. Yet another element of suspicion is found in the substantial failure of the alibi linked to other alleged human interactions on his computer, and even if we cannot talk about a false alibi, it is appropriate to talk about a failed alibi. There is also no certainty to be reached regarding the attribution to Sollecito of the footprints found in the house on via della Pergola, as the technical analysis did not go beyond a conclusion of “probable identity” to one of certainty (ff. 260/1). 9.4.3. It can easily be observed that the conclusion that there was a lack of an evidentiary framework consistent and sufficient to support the prosecution’s hypothesis regarding the more serious case of murder certainly reverberates on the residual, secondary accusations, listed here, d) theft of cellular phones and e) simulation of a crime. 10. The intrinsic contradictory nature of the evidence, emerging from the text of the appealed verdict, in essence undermines the connective tissue of the same, leading to its annulment. In fact, in the presence of a scenario marked by many contradictions, the referral judge should not have come to a verdict of guilt, but - as previously observed – should have reached a verdict of not guilty, given Article 530, section 2, Italian Code of Criminal Procedure. At this point only one matter remains to be resolved, regarding the type of annulment - i.e., whether it should be decided with or without a new trial - which depends, obviously, on the objective possibility of further investigation which could unravel the perplexing aspects, and offer answers of certainty, perhaps through new technical investigations.
Marasca-Bruno Motivations Report v1.0 September 20, 2015
http://www.amandaknoxcase.com/ http://www.injusticeanywhere.org/ Page 54
The answer is certainly negative. In fact the biological traces on items of investigative interest are of minuscule magnitude, and as such, incompatible with amplification and, thus, destined not to give reliable, certain answers, whether in terms of identity nor in terms of compatibility. The computers of Amanda Knox and Kercher, which might have been useful to the investigation, were, incredibly, burned by the careless actions of the investigators, causing a short circuit due probably to an erroneous power supply; and they cannot give any more information, given that the damage is irreversible. The panorama of the declared evidence is complete, given the accuracy and completeness of the evidentiary trial hearing, which occurred in both appeal trials. Guede, a certain co-participant in the murder, has always refused to collaborate and, for reasons already given, cannot be forced to take the stand. The technical assessments requested by the defence cannot be guaranteed to clarify matters, not only due to the time that has passed, but also because they relate to aspects that are difficult to verify (such as the possibility of selective cleaning) or of obvious irrelevancy (IT examination of Sollecito’s computer), given the possibility for him, no matter how long the interaction was (even if the interaction was definitely his), to reach Kercher’s house, or they are obviously superfluous, given the thoroughness of the impeccable technical investigations performed (e.g. the inspection of the body and subsequent forensic pathology tests). Given the above-mentioned considerations, it is evident that a new trial would be useless, thus the verdict of annulment without a new trial, in accordance with Article 620 letter I) of the Italian Code of Criminal Procedure, thus applying a sentence of not guilty which would also have been reached by any new referral judge, in accordance with the principles of law set out in this judgment. The annulment of Knox’s conviction with regards to crime A), excludes the aggravating circumstance criminal intent as per Article, 61 n. 2 of the Italian Penal Code. The exclusion of this part means the sentence must be redetermined, which is quantified to the same degree as fixed by the Perugia Court of Appeal, the adequacy of which has been amply justified, on the basis of determining parameters with which this judgment completely agrees. It is hardly necessary to add that the result of the judgment precludes consideration of any other defence plea, deduction or request as absorbed or implicitly rejected, while any other line of argument, among those not examined, are considered inadmissible as, clearly, it would enter into the merits of the judgment. 11. Given the above, it can only be decided as per the operative part of the judgment.
Marasca-Bruno Motivations Report v1.0 September 20, 2015
http://www.amandaknoxcase.com/ http://www.injusticeanywhere.org/ Page 55
FOR THESE REASONS
Pursuant to Article 620 letter A) Italian Code of Criminal Procedure; annuls the ruling under appeal with respect to the crime under charge B) of the rubric because the crime is extinct due to statute of limitations; pursuant to Articles 620 letter L) and 530, section 2 Italian Code of Criminal Procedure; excluding the aggravating circumstance under Italian under Article 61 n. 2 Penal Code, in relation to the crime of calumny, annuls the ruling under appeal without referral with respect to the crimes under charges A), D) and E) of the rubric because the appellants did not commit the act. Recalculates the sentence imposed upon appellant Amanda Maria Knox for the crime of calumny in three years of confinement.
Thus decided 27/03/2015 Reporting Judge Paolo Antonio Bruno
President Gennaro Marasca
Translated by volunteers of http://www.injusticeanywhere.org/ Translators: Alex K, David Anderson, David Smith, John Rowell, Komponisto, Luca Cheli Editors: Avrom Brendzel, Clive Wismayer, Hans Markus, Karen Pruett, Michael Birks
“If it is not right do not do it; if it is not true do not say it.”-- Marcus Aurelius
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