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October 3, 2011

"Italy appeals court clears Knox of murder"

The title of this post is the headline of this new AP story coming from Italy.  Here are the basics:

An Italian appeals court has thrown out Amanda Knox's murder conviction and ordered the young American freed after nearly four years in prison for the death of her British roommate.

Knox collapsed in tears after the verdict was read out Monday. Her co-defendant, Raffaele Sollecito, also was cleared of killing 21-year-old Meredith Kercher in 2007.

The Kercher family looked on grimly as the verdict was read out by the judge after 11 hours of deliberations by the eight-member jury.  Outside the courthouse, some of the hundreds of observers shouted "Shame, shame!"

For a host of reasons, I have mostly been disturbed by the extraordinary amount of media coverage that has been given to this Italian murder case.  Nevertheless, for a host of reasons, I doubt this latest legal development is likely to lower the case's profile anytime soon.  (Indeed, I am already speculating about how many forthcoming commentaries will have Amanda Knox and Troy Davis in the title.)

As always, I welcome reader comments on the Knox case itself, on any unique facets of the Italian criminal justice system, and also on what all the MSM attention tells us about our modern perspectives on American crime and punishment.

October 3, 2011 at 04:15 PM | Permalink


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I'd be interested if anyone can point to a concise explanation of the Italian procedures. This excerpt makes it sound like the appeals court process involved a jury deliberation? That is interesting, if true.

Posted by: Anon | Oct 3, 2011 4:23:21 PM

We have THREE levels of trial.
First (merito), Appeal and Cassazione. The accused is considered innocent until the very end. The first trial is only the beginning and there is always an Appeal with Judges and lay judges (giudici popolari)and witnesses and evidences as in the first trial. The second verdict can be very different from the first. Then there is Cassazione, that is something like to be at Supreme Court.

Posted by: Dott. claudio giusti, italia | Oct 3, 2011 6:24:23 PM

I forget.
Cassazione can send everything back to the Court of Appeal and there is a new trial with judges, lay judges, witnesses evidence and all that jazz.
After all thise time "prescrizione" (statute of limitation) can send everything to Hell.

Posted by: Dott. claudio giusti, italia | Oct 3, 2011 6:28:27 PM

I saw a bit on CNN, apparently 60% of cases in Italy have a modified outcome after the appeals process. They did not say how many of those modifications were in the defendant's favor (they did say that the appeals court is free to go either way).

I would say that a court system that sees a 60% modification rate on appeal is doing something wrong.

Posted by: Soronel Haetir | Oct 3, 2011 6:42:42 PM

In most European courts (those arising from the civil law system), there is a court of first instance ruling, in some ways comparable to an American trial court ruling, but the intermediate appeal involves both questions of law and questions of fact - effectively a trial de novo as far as the terminology of the English common law descended countries can describe it. The first appeal is typically retried before more senior judges who preside over a court with larger geographic reach and sometimes before a larger panel of fact finders. Only the final appeal in European courts to what the French call the Court de Cassation, whose scope of review is closer to that of an American appellate court.

In Italy, there are basically three levels of first instance courts - one that basically handles misdemeanors (Justice of the Peace), one that handles basically non-capital felonies (Tribunal), and one that handles capital felonies (Court of Assise). Cases above the Justice of the Peace level generally have multiple finders of fact who sit in a panel, and there is a saying that a decision by a single judge is bound to be unjust (it rhymes in French). Second instance retrials of Justice of the Peace verdicts are heard by the Tribunal. A Court of Appeals hears appeals from Tribunal decisions via a retrial. The Court of Assise is something of an ad hoc court (its judges have primary assignments with other appellate courts) from which appeals are heard by an ad hoc Court of Appeals from the Court of Assise.

The Court that heard this case in the first instance appears to have been the Corte d'Assise, which handles only the most serious felonies (what would be capital offenses if Italy had the death penalty), and from there the direct appeal is to the Corte d'Assise d'Appello (per wikipedia): "Both the defendant and the prosecutor can appeal a decision from the Corte d'Assise to the Corte d'Assise d'Appello. The Corte d'Assise d'Appello has the same composition of judges and lay judges as the Corte d'Assise, but the Giudici Togati are senior to the judges of the first court. The Corte d'Assise d'Appello must also publish written explanations of its decisions. This appeal includes a complete review of the evidence – in effect a retrial."

Evidence introduced merely to establish a prima facie case that isn't contested on appeal isn't reheard, just reviewed, but new evidence is taken on issues of fact that are appealed. This makes sense in part because almost no trials in civil law countries are "trials of record" in the Anglo-American sense. Generally, there is not a verbatim trial transcript of the lower court proceedings; the record on appeal consists of the findings of fact and law made by the first instance court opinion written by one of the professional judges in that case (or by the second instance court opinion in the case of an appeal to the Court de Cassazione).

A further appeal would have been to the Court de Cassazione: "Both the prosecutor and the defendant can appeal to the top appeal court named Cassazione. The Cassazione only judge the correct application of the law in the lower courts, it does not review the evidence. If the Cassazione does not uphold the sentence given by the first court, usually they order a new trial in front of a different court, namely: Corte d'Assise d'Appello." Presumably. the absence of an appeal to the court of Cassazione was because the appeal from the court of first instance to this court was based on alleged errors of fact and not alleged errors of law - the definition of murder was not at issue, just who actually did it.

The jury arrangement in Italy, inspired by but not very closely derived from, the Anglo-American model, is really more of a multi-judge panel of co-equal judges in which some of the members of lay people (often chosen to be "select" and serve for extended periods of time a bit like a grand jury, rather than only for a single case on a random basis like an American petit jury). In this case, both at the first instance trial and this direct appeal, one of the judges must be a member of the Italian Supreme Court (i.e. the Court de Cassazione) while the other must be a member of the Italian Court of Appeals (which hears appeals from the Italian court that has jurisdiction over serious felonies short of capital cases).

The benefit of this is that lots of the errors made in trial practice are incorrect determinations made by triers of fact at trial, rather than errors of law, and this system allows those errors to be corrected. It also makes it much less important to develop an elaborate body of legal doctrine to distinguish questions of law from questions of fact, or to develop an elaborate habeas corpus post-trial review doctrine.

Another benefit of this system is that by easing the finality of the original verdict, the incentive of both parties to engage in gross overpreparation for every conceivable possibility in a case where surprises aren't very likely is greatly reduced, reducing the cost of litigation in the 90%+ of cases that aren't appealed. It also greatly reduces the harm of "trial by surprise" by allowing full relitigation of the issues presented at the first trial on appeal.

The downside of this arrangement is that a significant minority of cases have to be tried twice, imposing an additional burden on witnesses, lawyers, criminal defendants and the judges. European civil law systems, in general, have vastly more judges per lawyer than the American system, and even vastly more judges per trial lawyer.

Posted by: ohwilleke | Oct 3, 2011 6:59:10 PM

It seems like a lot of resources go into a prosecution, but at the same time, there may be a lot fewer people prosecuted. I couldn't find any data on the number of prosecutions that occur in Italy, but there's a Pew report out there that compares incarceration rates. The US, of course, has the highest rate of any country; Italy incarcerates only about 1/10 as many people per capita, which looks comparable with most of western Europe. So while the resources devoted to a given prosecution may seem extraordinary, compared to the US, it looks like a relatively rare occurrence overall. I recognize that incarceration rates are not necessarily indicative of prosecution rates, however.

Posted by: C.E. | Oct 3, 2011 8:58:20 PM

I would say that a court system that sees a 60% modification rate on appeal is doing something wrong.

Posted by: Soronel Haeti

I would say that a court system that sees a 60% modification rate on appeal must consist of independent thinking jurists who don't rubber-stamp everything the prosecutor says and does without investigating. In the U.S. the appellate court does not look at evidence at all and all they actually rule on is whether error has been committed in the trial, and whether that error is harmless or not. Their mission seems to be to affirm verdicts, even if it takes a stretch to do so.

Posted by: msyoung | Oct 3, 2011 11:29:48 PM

Contrast the process and timeline of this result with that of Michael Morton in Texas: http://www.statesman.com/blogs/content/shared-gen/blogs/austin/courts/entries/2011/10/03/morton_to_be_freed_from_prison.html

Click on my name for link.

Posted by: peter | Oct 4, 2011 8:51:32 AM

msyoung --

"In the U.S. the appellate court does not look at evidence at all..."

I was an appellate lawyer in criminal cases in federal court for 18 years. Your statement could not be more wrong. The single most frequently litigated issue by far is whether the evidence was sufficient to sustain the verdict. (The second most frequently litigated is search and seizure, and the third is the admissibility (for one reason or another) of the defendanbt's statement)).

Posted by: Bill Otis | Oct 4, 2011 8:57:51 AM

Mr. Bill Otis:
Let me be clear. Yes, courts of appeal look at evidence, but only through the prosecutor and defense attorney's briefs. They do not hear new evidence, as was brought up in Knox's trial. Yes, sufficiency of evidence is a huge point- so let me give you an example of a sufficiency of evidence claim that failed. My son was convicted on a conspiracy count. There were no co-conspirators, no witnesses, no surveillance, no phone records, only the word of a convicted felon caught with drugs, whose claim was not that my son was in a conspiracy, but that he supplied him with the drugs with which he (the felon) was caught. He recanted that statement and was not brought to trial. Prior to that he cooperated by wearing a cassette recorder in the car with my son, but nothing incriminating came out of that conversation, as much as he tried. However, the arresting agents claimed my son made statements to them, although they lost their rough notes. So, the defense attorney stated that "statements alone are not enough to convict." Then the prosecutor says, "well, he talked about a $40,000 debt that was owed to him." No such conversation occurred. But the appellate court did not listen to the taped conversation. They only took the prosecutor's word and convicted. Yes, the appellate attorney appealed to the en banc appellate court, and they did not hold a hearing. This is the difference between the U.S. Courts and the Italian courts, from what I have heard and seen. And this is only my opinion coming from what I have read and experienced.

Posted by: msyoung | Oct 4, 2011 12:16:00 PM

If Ms. Knox's accusation and trial had been held in the U.S., she would be toast. If the appellate attorney attached an affidavit to his brief stating that an expert had found that the DNA evidence was contaminated and therefore, not reliable - the court would have most likely stated that this was not enough evidence to overturn a jury verdict. I know a case where the appellate attorney brought affidavits from 12 witnesses who said they lied about a person's drug dealing, most of them had never seen the young man in their lives until the prosecutor brought his picture and told them what to say, that they were threatened with life sentences if they didn't testify, and promised leniency if they did, and the panel said, "there is no proof that the government was aware of the perjury, therefore, there is no error." It's an eighth circuit case, I believe its USA v. Wadlington, in around 2004, or 2005.
Actually, read ohwilleke's post above, he certainly clarifies the differences in the systems better than I can.

Posted by: msyoung | Oct 4, 2011 12:32:24 PM

E intanto che Foxy Knoxy torna a casa ...

DA evidence should exonerate 7 men convicted in '90s, top lawyers say
Group of influential attorneys urges the cases be overturned
Chicago Tribune September 30, 2011

Posted by: Dott. claudio giusti, italia | Oct 5, 2011 2:03:31 PM

msyoung ~

You will have a hard time getting Bill Otis to admit he is wrong. I think Bill Otis believes that the accused has no right to a fair trial.

Charge 'em and hang 'em, Right Bill?

Posted by: Huh? | Oct 6, 2011 4:49:52 PM

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