SUPREME COURT RULING

Italian Laws & Legal Process

SUPREME COURT RULING

Postby Michael » Sat Nov 01, 2008 4:26 pm

[center]SUPREME COURT: THE AUTHOR OR THE CO-AUTHOR, APRIL 1, 2008


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Frank Sfarzo wrote:Amanda Knox, Raffaele Sollecito and Rudy Guede must remain in jail.
At the hearing of the First Section of the Supreme Court of Cassazione this morning, before Presiding Magistrate Torquato Gemelli, the Prosecutor General asked that their appeals be rejected. The defense attorneys for the three parties then spoke, after which the Court retired to private chambers for its ruling.
The Court could have struck down the earlier ruling by the Court of Freedom of Perugia, the result of which would have been the release of Amanda, Raffaele or Rudy, or all three of them.
The judges emerged from the council chamber at 8 pm and announced their decision. They confirmed the Prosecutor's vision of the facts and the ruling of the Court of Freedom, which on November 30, 2007 approved custody for the three suspects.
Rudy's attorney, Walter Biscotti, said of today's ruling: "We were expecting this. But we have our strategy and we plan to pursue it."

No mercy for our three young friends. If they call it palazzaccio there's a reason after all.



PERUGIA SHOCK

Frank Sfarzo wrote:"Give me 30 years!" --Rudy told the PM-- "but because I didn't save Meredith, not because I killed her!"
This is how the Ivorian guy was screaming his innocence to PM Mignini during the interrogation session on March 26, 2008.
We had already appreciated his sincere repentance for what happened, as expressed in his diaries and in other touching writings. Unfortunately for him, while his soul may be safe his ass - technically speaking - appears to be far from.
As we might expect, on April 1 the Supreme Court of Cassation rejected his appeal to cancel the decision of the previous court, which had denied him conditional release during the investigation.
Today, the Supreme Court's reasons were filed. The judges think that the clues against Rudy are not just serious, as they are for Amanda and Raffaele, but "very serious."
The interpretation given by the Court of Freedom, for the Supreme Court, is correct across the board. In addition to the suspect's admission that he was present in the house, the versions he has given to date are "totally unlikely." In fact, the versions themselves are grounds for believing in the "subsistence of serious and concordant evidence of the active participation, conscious and voluntary, of Guede in the murder," even if we still need to determine the dynamic of the facts and "the role of the author or material coauthor" or of the "instigator."


The one who is convinced of Rudy's innocence is his attorney, Walter Biscotti.

The very first question he asked Rudy -- within the privileged environment that is the client/counsel relationship -- was if he killed Meredith. He tells us that he heard the little word "no." And ever since, his mission has become that of fighting against the mountain of clues overwhelming this guy and proving his innocence.
This is a task that would have scared anyone. It would be much easier to point to a lesser crime and then with confession, cooperation, abbreviated trial, extenuating circumstances, repayment to the family and good conduct in jail, Rudy could be in semi-freedom by the time he was 25. But compromises are not Walter Biscotti's style. He wants to fight this unequal struggle and he wants this unlucky guy --who took the wrong way since he was abandoned three times in a foreign country-- to be totally exonerated.

Hard task but at least Rudy is in good hands, it seems.



PERUGIA SHOCK


CORTE SUPREMA DI CASSAZIONE
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RAFAELLE: SUPREME COURT RULING

Postby Michael » Sat Nov 01, 2008 4:36 pm

[center]RAFAELLE: Q & A WITH THE SUPREME COURT[/center]


Frank Sfarzo wrote:Raffaele Sollecito's Q/A with the Supreme Court, same chamber as Amanda. As we can see the Supreme Court does not directly address really everything.

Raffaele:
-The knife that was seized from my kitchen does not have my DNA on it. Besides the victim's DNA, there is only Amanda's DNA.
-Meredith's organic traces on my knife got there by chance and are not related to the murder.
Supreme Court:
Even if your DNA is not on your kitchen knife, this cannot only be used against Amanda insofar as it has been certified that the knife came from your house and Meredith never went to your house. Therefore, until we have proof to the contrary, we are assuming that this knife was under your control at all times and that it was used at Meredith's house.

Raffaele:
None of my biological material was found at the crime scene.
Supreme Court:
The absence of your biological traces at the crime scene is not significant. Moreover, there is a Nike shoe print compatible with the shoes you were wearing at the time of your arrest. It is true that the identification with your own pair of Nikes is still uncertain, as the Court itself admits, but the size of the print left in the victim's blood excludes the possibility of its being attributable to Rudy Guede, since he has a much bigger shoe size. However, the real value of the print resides in the fact that just a few people may be involved in the crime and not even Knox --who admitted her presence in the house -- has excluded your presence at the crime scene. And since you said you never entered the room we have no reason to believe that the print was left the following day.

Raffaele:
The clues against Amanda have been arbitrarily transferred to me on the erroneous assumption that we must have been together that evening.
Supreme Court:
For the same reasons given above, we can exclude that clues against Knox have been arbitrarily transferred to you.

Raffaele:
The phases of discovery of the corpse are insistently used as a clue against me.
Supreme Court:

Raffaele:
No blood traces were on the sole of my Nike shoes, and I was even wearing them at the time of my arrest.
Supreme Court:

Raffaele:
It has not been proven that I wasn't using my computer after the last interaction at 21.10 pm. After that time my computer was downloading films, even though this has not yet been proven.
Supreme Court:
The alibi you have provided is not necessarily false but, so far, has failed. Correctly, your defense refutes it technically as a clue against you; nevertheless, you were unable to prove your absence from the crime scene.
It is certain, however, that you interacted with your computer at 5.32 the next morning, and that at about the same time you turned your cellphone on. This runs counter to your assertion that you were sleeping and that you woke up at 10 am. In fact, your night was--to say the least--sleepless.
And this data is consistent with the cessation of phone traffic for both you and Amanda on the evening of November 1, 2007.
The proof that you were home is acquired until 20.40 pm (Popovic visit) or 20.10 pm (last interaction with computer). But this does not cover your whereabouts at the time of the murder, set at between 22 pm and 23 pm.

Raffaele:
The time of my telephone conversation with my father, which I said took place at 23 pm but which instead was at 20:40 pm, has no significance whatsoever since we don't know the time of death. The time of death has been indicated by the pathologist as 23 pm, but it depends totally on the time at which Meredith had dinner, and someone said the dinner was at 18 pm. So the time of death could be moved back to 21 pm, which is right after the Popovic witness came to see me. And she found me at home and not about to go out.
Supreme Court:
The time of death is between 22 and 23 on November 1, 2007.

Raffaele:
My statements were wrongly interpreted as an attempt to aid and abet someone else.
Supreme Court:
This doesn't emerge from the investigative evidence. Anyway, this matter falls outside the jurisdiction of this court.

Raffaele:
The precautionary measures are not necessary.
As for the possibility that I can alter the evidence: this danger is no longer relevant since Guede was brought back [He implies that by having Guede the most part of the investigation is over].
The flight risk is neither concrete nor specific [i.e.: no particular place to go or person to reach is indicated].
That I am dangerous is presumed illogically, and only by taking into account the content of my blog, which is in fact totally conventional.
Supreme Court:
In light of the forgoing, as for gravity of the charges the Court of Freedom was correct.
The possibility of altering the evidence has not ceased just because Guede has been brought back. The investigation is evolving continuously and the positions of the suspects have yet to be defined. Their behavior has shown reluctance to cooperate and lying. You yourself admitted that you told "un sacco di cazzate" [a load of bullshit].
You are a flight risk because of the gravity of the charges.
Your danger to society matches your weak character and your personality, which we can't define in terms of harmless juvenile stereotypes, since the context includes the habitual use of drugs.



PERUGIA SHOCK
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AMANDA: SUPREME COURT RULING

Postby Michael » Sat Nov 01, 2008 4:42 pm

[center]AMANDA: Q & A WITH THE SUPREME COURT[/center]


Frank Sfarzo wrote:Amanda: Q and A with the Supreme Court

On April 1st, the Supreme Court rejected the requests of Rudy, Raffaele and Amanda, as we know. Let's get into the more technical aspects now, and reread the grounds expressed by the Supreme Court. Let's look at the exact nature of the "dialogue" between Amanda Knox's defense and the Judging College of the First Penal Section of the Supreme Court of Cassazione (with President Torquato Gemelli and Counselors Emilio Gironi, Maria Cristina Siotto, Umberto Zampetti, Margherita Cassano).

Amanda:
Rudy's statements when he was arrested in Germany were in my favor, and they were not transmitted to the Court of Freedom, in violation of Art. 309 cpp.
Supreme Court:
You are right, the Court of Freedom erred in not admitting those statements by arguing that the defensive rights of Guede were not respected in Germany.
In fact, the defensive rights of Guede were respected.
But his statements, released within an extradition process, were not "elements in favor of an investigated person" to be used in your favor. They could have been used if they were exonerating you, but they were merely Guede's defensive statements suggesting another version of the facts in general rather than denying your responsibility. Therefore, they can't be used as "elements in favor of investigated person" (as ruled by Cass. Sez. Un. 26/9/2000).

Amanda:
They used the statements I made at 1.45 am on November 6 when I didn't not have the presence of an attorney to defend me.
I was questioned again at 5.45 am and gave "spontaneous statements," but these are not admissible due to the status I had acquired in the mean time.
Both are violations of Article 63 cpp.
Supreme Court:
Statements released without the proper legal guarantees can't be used contra se (against the person) --not even against other suspects-- when there is already circumstantial evidence against the person who makes them.
But when the person is heard as a witness the total lock-up (can't be used at all, not against the one who makes them nor against other suspects) provided by Article 63 cpp does not apply.
In this case, the fact that he is just a witness and as such outside the facts protects him from possible abuse by the investigators (Cass.Sez.Un. 13/2/1997).


Arguing from these principles, the statements you made at 1.45 can only be used contra alios (against another person).
As a result of those statements, the interrogation was suspended and you became "indagata"(a suspect).
The "spontaneous statements" made at 5.45 am are not admissible against you or against other suspects because you had already become "indagata" and you did not have legal protection.
But, the memoir you wrote was a spontaneous defensive act and is admissible against you.

Amanda:
The circumstantial evidence against me does not meet the standard required by law to keep me in jail because:
I'm a young foreigner; I have a clean record; and my behavior was influenced by the use of cannabis.
My memoir was not correctly translated and was used only partially.
The record of my conversation with my mom in jail (17 Nov) was misinterpreted.
The DNA traces on the knife and my blood traces in the small bathroom are not proof.
The scientific results are not proof against me.
They were used to theorize my presence at the crime scene and the role I played in the crime.But this theory is not logical.
Supreme Court:
The clues against you are serious.
The knife that was seized at Raffaele's house belongs to Raffaele's house, not to the victim's house, and has traces of Meredith's DNA on the blade and of your DNA on the handle.

Raffaele initially said he spent the whole evening with you but then, during questioning on 5 and 6 November, he said that you went out and did not return until at about 1 am.
Robyn Butterworth said that on 2 November you described the position of the corpse to her although, in light of the intervention of the postal police, you could not have been aware of this information.
Laura and Filomena described a sweatshirt you were wearing on the day of the crime and that sweatshirt has not been found.
In the memoir you described realistically how Meredith was screaming, how you reacted to that and the presence of a man in the room. Then you described the traces of blood you saw on Raffaele's hand during the dinner of 1 November at around 11 pm.
While talking to your mother in jail you said "This is so stupid, because I can't say anything else. I was there, I can't lie about that, there's no reason I should."
By inserting such elements into a wider picture, we notice that a shoe print in the crime scene is considered to belong to Raffaele. The alibi Raffaele gave has failed because he tried to maintain that he was working at his computer during the crime, although no human activity was detected on his computer. He stated that he received a call from his father at 11 pm, when in fact that call was at 20.40 pm.
The phone traffic of both your cellphone and Raffaele's stopped at 20.40. Raffaele said he spent the night sleeping, but his computer and cellphone were turned on again at dawn on 2 November.
Traces of Rudy were found at the crime scene and Rudy is someone you know.
In the little bathroom were found: traces of Meredith's blood on the little carpet, of you on the sink and of both you and her on the bidet.

The Court was correct in deducting and concluding the presence at the crime scene of Rudy Guede, Raffaele Sollecito and you.
The Court explained correctly why it cannot accept your explanation about the interpretation of the recorded conversation of November 17, of your memoir, of the scientific results, and of the examination of Raffaele's computer and cellphone.

Amanda:
As for the restrictive measures:

Since the results of the investigations say that I did not commit the crime and the statements of Rudy have been acquired it is obvious that I can't alter the evidence.
The flight risk is non-existent due to the cooperation and treaties between Italy and United States, which would enforce the judiciary consequences if I am found guilty.
I could certainly not commit the same crimes again.
Supreme Court:
The restrictive measure cannot be denied due to the gravity of the crimes; your negative personality, which we have deducted from the investigation and from your behavior during investigation and court hearings.
Your freedom could threaten the collection of evidence and the completion of the next steps, such as further testimony, face-to-face sessions, etc. Not to mention the flight risk due to your status as a foreign citizen and the fact that the sentence if you are found guilty could possibly be more than 2 years of incarceration.



PERUGIA SHOCK
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RUDY: SUPREME COURT RULING

Postby Michael » Sat Nov 01, 2008 5:00 pm

[center]RUDY: Q & A WITH THE SUPREME COURT[/center]


Frank Sfarzo wrote:Has been a tough job (not to be repeated) but for the third time we wanted to take the reader right inside the dispute between Court and Defendant, reporting all technical aspects as expressed by the Court itself.
The first part is only data, but then the speech becomes quite refined. This is something quite different from the abstract you can find everywhere, something for very motivated readers, don't you even try if you are tired.

The Supreme Court remarks:

From the investigation, the following facts have emerged:

- The apartment showed no signs of being broken into.- Meredith had recently started a relationship with the boy downstairs, Giacomo.- Meredith had some very close English girlfriends, who have said that she was not interested in dating other guys.- She spent the evening of November 1 with her girlfriends at the home of one of them and, after watching a movie and eating dinner, she returned home at about 9 pm, telling her girlfriends not that she had a date but that she was tired and wanted to get to bed early.- The time of death is estimated to be around 11 pm on November 1 (if we presume the meal to have been consumed until 9 pm).- The probable cause of death is a meta-hemorragic shock due to a vascular injury to the neck made by a 'cut and tip weapon' [a knife]
-There were no unequivocal signs of rape.
- According to Nara C., living in a house more or less across from and above the house at Via della Pergola, about 2 hours after she went to bed (she says at around 9.30 pm), she heard a terrible scream of a woman, followed immediately by the footsteps of more than one person running away in different directions. - Another witness, Alessandra F., remembers of having met a black boy, at about 10:30-10:45 pm,who was running up the stairs of piazza Grimana.
- A bloodied shoe print found at the crime scene was compatible with the Nike shoes worn by Raffaele Sollecito at the time he was arrested.- A knife was seized from his house (it did not belong to the victim's house) with the DNA of Amanda Knox on the handle and, on the blade, that of Meredith Kercher (who had never been in Sollecito's house).
- The blood detected in the bathroom shared by Knox and Kercher was from both of them.
- A bloodied palm print found on the pillow on which the victim was lying presented 16/17 points of correspondence with Guede's right hand, which was on file with the police.
- Rudy Guede had been to the house on occasion, and admitted that he was there on the night Meredith Kercher was killed.
- His genetic profile is a match with the feces in the larger of the two bathrooms and with the biological material detected on a vaginal swab taken from the victim.

The suspect Guede offered this version of the facts:

He met Meredith Kercher at a friend's house on October 31. The next day he went to her house, where his sexual advances were interrupted only because he did not have a condom and the victim did not want to have unprotected intercourse.
While he was in the bathroom next to the kitchen, where he had gone, he heard the buzzer and then a loud scream coming from Kercher's room.
He rushed from the bathroom and into the girl's room where he saw, from behind, a male shape, slightly shorter than him, wearing a black jacket and a cap on his head.
He saw Meredith bleeding on the floor and tried to stop the assailant, who tried to hit him but then escaped because Guede threw a chair at him. Guede then tried to help the victim, who was still alive and trying to say something. He could make out just two letters: 'a' and 'f'. But he fled because he was terrified of the noise made by the people who appeared to still be lurking around there, and because he thought he would be accused of the crime. He was unable to call for emergency assistance because he had no phone and because he feared he would be taken for the assailant.

When he left, the room was tidy. A red duvet was on the bed, the victim was totally dressed, and the door to the room was open.

The Court of Reexamination remarked that this version of facts is not reliable because it is inconsistent with some objective findings and certain logical arguments, and because it is undermined by decisive falsehoods.
Accordingly, the Court ruled that the serious circumstantial combination of clues linking the suspect to the crime was valid, and that the story told by the suspect was an attempt to explain the physical evidence of his presence at the crime scene.
The Court has also ruled that all the precautionary requirements of art. 274 c.p.p. were satisfied and could be guaranteed only through continued detention.

Here is what the suspect countered, through his lawyer Walter Biscotti.

Rudy:
The knife with Meredith's DNA was found at someone else's place of residence, and the prosecutor has attributed the execution of the murder to other people, without describing my role in cooperating in the crime or advancing arguments for it. Accordingly, the principle of 'co-operation of a group in a crime' was wrongly applied.
Indeed, my mere presence at the crime scene does not prove my co-operation in the crime because if one considers that a co-operative crime has a unitary nature, it is necessary to analyze the conduct of every single suspect in order to demonstrate a necessary link —material, functional or psychological— to the commission of the crime itself.
Supreme Court:
In order to assess the serious clues of guilt we must consider the peculiarity of the investigatory phase, which implies the necessary fluidity of the charges (S.C. 2004 and 1996). This means that new data can still be added to the investigative picture. Accordingly, an exhaustive definition of conduct and psychological elements is not necessary.
It is true that, even during the preliminary investigations, when we have a group crime every participant must have acted with knowledge of the role of the others, and must have willingly acted in concert (ex multis, S.C. 2003), but the "description" of the conduct, meaning the role of the co-participant, does not have to be a necessarily immutable datum between the time of notification and the final decision [i.e., the judge's sentence].
The principle of correlation between notification and sentencing is not violated—not even if we move from the charge of material co-participant to arrive at the role of moral co-participant.This case would mean a relationship of limitation and not of heterogeneneity between the first and second role (S.C. 2007, 2006, 2005). [the S.C. means that, in the eyes of the law, the first role (that of material co-participant) is not different in nature from the second role (that of moral co-participant), so the two roles are not heterogeneous].

Your role and conduct at this stage does not need to be fully understood by the judges. It is only necessary that your co-operation—conscious and deliberate—be indisputable with respect to the homicidal action. At this point, whether or not the Court's assessment of the role of author or material co-author, of sender, instigator, conscious 'strengthener' is attributable to you is a matter of indifference in so far as the application oh these measures [the ongoing detention] are concerned. From this perspective and within this scope, the Court's interpretation was correct. It moved from your admission of having been present in Kercher's apartment before, during and after the murder and of having spent time with her, even with incomplete sexual intercourse, for a long fraction of time, to then going to the toilet during those few minutes in which an unknown assailant allegedly entered the house and committed the murder, to then fleeing as soon as he met you, as you returned from tending to your physiological needs.

From the admission of your presence at the place, your acquaintance with the victim and the sexual intimacy you had with her, the Court, logically and thoroughly, excluded—because they are wholly lacking in credibility and indisputably false— your statements according to which you were supposed to meet the young girl. Your 'strategic' withdrawal to the toilet, the unexpected and violent appearance of the stranger, his immediate flight, even if he was armed and only because you threatened him with a chair, your version of the position and condition of Meredith's body and of your fingerprints near it, and your version of a separate flight —first of the aggressor and then of yourself (contrasting with the witness who heard more than one person fleeing right after the scream of pain launched by a woman).
The lack of any credibility of these versions led the Court to the logical conclusion that there are serious and concordant clues that your participation in the crime was active, conscious and deliberate, even though there is currently some doubt as to exactly how it happened.

Rudy:
The post-mortem report shows that the signs of sexual activity may result only from hurried sexual intercourse and does not confirm or deny the occurrence of rape.
Consequently, there are no arguments to support the accusation of sexual violence, of which I've been charged unjustly. Moreover, in the absence of sexual violence, the unifying reason for a collective crime falls.
Supreme Court:
It's undeniable that about the existence of grave clues of sexual violence the court has been brief. But this lack of argumentation is, in the sentence itself, evidently related to the assessment that this clue is not relevant for the purpose of affirming your evident and indisputable participation in the murder. For this reason, your claim that, without a clear clue of sexual violence even the subsistence of the clues of guilt for your participation to the murder would fall, is totally axiomatic.


PERUGIA SHOCK
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