A Trial Without Evidence

The verdict is in. Amanda Knox is guilty, sentenced to 26 years in the brutal murder of her roommate.  The only thing missing is proof.

For aficionados of the Nancy Grace school of law, this is what they would have happen in every trial.


To many Americans, this trial is an outrage. “It’s probably the most egregious international railroading of two innocent young people I’ve ever seen,” said John Q. Kelly, a former prosecutor known for getting a civil verdict against O.J. Simpson for the murder of his ex-wife. Speaking on CNN last month, he called it “a public lynching based on rank speculation.”

But that’s how this trial looks through the eyes of an American lawyer, whose world hasn’t collapsed into Nancy Grace-like platitudes and assumptions.  In Italy and the United Kingdom, Amanda Knox was excoriated for her “inappropriate” post-murder behavior, and that’s enough to justify her conviction.  Indeed, it’s enough to demand her conviction.  She must be guilty, proof be damned.



The Italian legal system is wholly foreign to me, though I do know that many of the protections that characterize our system, real juries, vetted for bias, and proof beyond a reasonable doubt, are not a part of it.  I know it takes a very long time for a trial, as this one lasted almost a full year, leaving Knox in custody for almost two years prior to her conviction.  The head judge at her trial is required to provide an explanation for the verdict within 90 days of its rendering.  I wonder if it will say more than “we believe she did it.”

There is no making sense of this from our frame of reference.  It doesn’t begin to comport with anything remotely familiar to what we consider a fair trial, a system of justice.  Obviously, the Italians see things differently, and aren’t particularly concerned that this translate easily into English. 

During the summation, the prosecutor told the jury about the things Amanda Knox might have said to Meredith Kercher before the alleged drug-induced orgy that ended with her throat being slashed.



“You are always behaving like a little saint. Now we will show you. Now we will make you have sex.”

This would be a horrible thing to say, except that it never happened.  No one says that such a statement was ever made.  But summations in Perugia aren’t limited to evidence, as they are here.  Rather, this is a permissible indulgence into  fantasy, a made up dramatization of what the prosecutors contend might have happened.  It’s used to inflame the jury.  It’s what prosecutors try to do everywhere, except that there are no restrictions on such fabrications in Italy.  Still, arousing passion gets a far better visceral response that appealing to reason.  Reason requires evidence.

For those who seem to be in a perpetual rush to do away with all those “technicalities” that get in the way of sentencing defendants who are deemed guilty from the moment the police announce whodunnit, is this really the sort of trial that meets with your satisfaction?  You applaud our system in its failures, arguing that we give criminals too many rights.  Well, Amanda Knox has enjoyed the alternative.  Are you happy now?  Is this really what you prefer?

45 comments on “A Trial Without Evidence

  1. Stephen

    I think that this will go down as a technically valid but deeply unsatisfying conviction. I’m almost certain that with all the cameras and international media attention on it the trial and investigation were carried out to the letter of the applicable law. The problem is that unless you decide on the facts and law you end up with an arms race of who can play to the jury more and that just doesn’t answer the big questions like “who killed the victim?”, it just shows that the professional advocate can write a persuasive speech.

  2. burt hoovis

    “I’m almost certain that with all the cameras and international media attention on it the trial and investigation were carried out to the letter of the applicable law.”

    That could be the most laughably naive thing I read in some time.

  3. Stephen

    I’m just declaring my presumptions. I think it’s a fair starting presumption that people are more careful than they would normally be if there’s a reporter looking over their shoulder and writing stuff down. Whether or not that extra care leads to it being perfectly correct or not is a matter to assess based on evidence.

    You’d need to know Italian criminal law and inquisitorial litigation to be able to identify any faults in the handling of this case. That’s a black art to anyone from a common law jurisdiction.

  4. Eric Johnson

    I sort of followed the alleged “facts” of this case (how could you avoid it especially in Seattle) and I’ve defended some clients in criminal proceedings. From a defense perspective, looking in, one of the things I might have hoped for was an ability to portray Ms. Knox as primarily focused on her books and not associating and/or working to any great extent with certain people in this Italian setting that might be more notorious or which people could read into, e.g., persons IDed as Patrick Lumumba, Rudy Guede, her co-def. I’m not sure if the defense was able to do that in this case. I feel bad for Ms. Knox if she is innocent. I’ve also witnessed a few people who were wrongfully accused and/or convicted and people of course, including jurors, interpret what they see in body language, facial expressions, and what they hear from the defendant at trial. But, of course I wasn’t there, did not analyze this in any depth and I’m not able to really compare the strengths and weaknesses of the criminal systems in the US and Italy which you seem to be addressing (although I have spend quite a bit of time in Italy). In sum,I just heard a lot about the charges, etc., photos in the media here and almost nothing from the Ms. Kercher’s camp or the British media. I wonder if Kercher’s side or their reps (excepting the prosecution) communicated much with the media prior to the conviction?

  5. SHG

    So your point is that you have no point at all?  What happened to Meredith Kerchner is horrible, and the loss to her family must be excruciating.  But that is a constant, and has no bearing on whether Amanda Knox is a killer.  While I hope the Kerchner family finds solace, an unproven conviction does no one any good.

  6. CrimeCounsel

    What did the United Kingdom do wrong? You leave us alone, we’re adversarial, just like you!

    Seriously though… I can’t make the same comments as you Scott simply because I do not understand the inquisitorial system at all… This case leads me to want to find out more.

    Without knowing anything about the system however, I would say it looks rotten…

    (Except in relation to removing bias in juries of course, which would be extremely interesting discussion for us English lawyers some time.)

  7. SHG

    I’m considering holding the Brits primarily responsible for this fiasco.  Mostly because I can’t speak Italian, not that I’m all that great with English either.

  8. Dissent

    I’m having a tough time wrapping my head around the fact that the jury consisted of two judges plus six members of the public and that conviction only requires a majority vote, not unanimous agreement.

    Even more confusing, from what I found online, Italian criminal procedure does have a standard of “proof beyond reasonable doubt,” but this article leaves me wondering how it was applied, if at all, in this case.

    I guess we’ll have to wait and see what the jury says their process/thinking was.

  9. SHG

    The standard was changed in 2006, but while it uses the same words, it’s hardly the same concept.  From my understanding, it bears little resemblence to what we understand our burden to be. But what it is remains unclear.

  10. bobo

    It is clear to me that she is not only not guilty (ie lack of proof) but factually innocent as well. There is nothing technically valid about this case. This prosecutor has a history of inventing sex cult theories out of cloth. Disgusting man. There is hope on appeal–in Italy the appeal reach is much wider than in U.S. system, although it will take years to play out. My prediction is the conviction will be overturned and I hope that Knox gets a lucrative book deal for her troubles. Oh…in case you think you should keep talking to the police even after you have been put in custody…keep your mouth shut (another reason she was convicted)

  11. SHG

    Obviously, I think she wasn’t proven guilty.  But factual innocence?  That’s an entirely different matter.  I’m unaware of any affirmative evidence proving innocence.

  12. bobo

    She testified. What more do you want? Granted, there was no alibi defense. Just a shocking lack of evidence and richly implausible prosecution theory, no logical motive, from which I have taken the liberty of opining factual innocence.

  13. Lilly White

    I don’t see how her innocence has been proven, and whatever we can come up with to criticize the Italian judicial process is mere speculation. Even her family on TV, they’ve mentioned nothing of her innocence. So it really makes me wonder if her everyone is saying she should be released ONLY on the basis that there’s a “belief”, however small , that she didn’t do it? Well in that case the fact that OJ wasn’t convicted in the case against him for killing is wive “perfectly” “proved” his innocence?

  14. Mark S.

    This case reminds me of the book, “The Monster of Florence,” by Douglas Preston. A great deal of this non-fiction book describes the bizarre nature of the Italian legal system and the strange appeal of salacious conspiracies in their culture. Seems to be quite a few parallels here.

  15. Eric Johnson

    No, I think you got my point. A secondary point though is that everybody should have shut up. All the media pundits including the wacky lawyers from here who routinely do the media likely got her convicted. But let me know if you want my (trying to be nice)primary point and I’ll send a blunt e-mail your way.

  16. SHG

    You’re muddling two different concepts. Under American law, the burden is on the prosecution to prove guilt, not the defendant to prove innocence.  I agree that she didn’t prove that she was innocent, and in most criminal cases, proof of innocence is impossible.  But we don’t convict people because they can’t prove innocence. We convict because the prosecution has proven guilt beyond a reasonable doubt.  If that isn’t accomplished, then the defendant should be acquitted.

  17. bobo

    Exactly. As I alluded to earlier, this prosecutor is one and the same. Doug Preston would probably like to write this book too, but this prosecutor almost had him locked up on a conspiracy charge while writing “The Monster of Florence”, so he is wary of returning to Italy. If you recall, there were two completely separate sets of prosecutors in the Florence cases and even the other prosecutors thought this one was nuts. The sex orgy, for example, is made up out of whole cloth.

  18. CrimeCounsel

    I haven’t heard of any innocent Italian wedding parties being vapourised recently so I guess not.

    Shame

  19. Thomas R. Griffith

    Sir, we also convict via plea-bargaining, which denies one an appeal, acquittal and any hopes of a pardon.

    In the Post “Plea-Bargaining 201″, former career prosecutor (Mr. Casey O’Brien) told us that he’d seen three types of cases go to trial since the 80’s. The very strong, very solid and very close, with the remaining 95% pleading out. He declined to mention the percentage that went to trial only to plead out, depriving juries of their duties and of course denying the prosecution the opportunity to prove guilt beyond any reasonable doubt.

    Curious to know if Italy also plays the plea-bargain game or not? Thanks.

  20. Akid

    She looked guilty and psychotic from the get go. Those dead-eyes are freakishly immoral. That’s enough for me.

  21. SHG

    Well, now that you say so, who needs evidence when there are freakishly immoral dead-eyes.  If that’s enough for you, then that’s all that really matters.

  22. Chris Halkides

    Mike Nifong used an ill-considered email and a barfight in which the lacrosse player did not land a punch to turn the Duke lacrosse team into “hooligans” some of whom were violent rapists. Nancy Grace and others helped. Prosecutors of arson cases in which someone has died sometimes put forth bizarre motives. I recall one case in which arson was alleged for a sum of money less than that needed to bury the unfortunate individual. Cameron Todd Willingham’s fondness for playing darts was turned into a motive for murder in Corsicana, TX. Is it possible to reform our system to keep prosecutors from this kind of behavior?

    Chris

  23. SHG

    Much as I appreciate your sentiments, I try to keep the comments focused on the specific issues raised in the post at hand rather than a shotgun approach to impropriety.  There are other posts here that deal with some of the cases you mention.

  24. SHG

    The DNA evidence has been the subject of much derision, and has long since been debunked as material as far as most US lawyers are concerned.

  25. Mason

    This case reminds me to a certain extent of the Scott Peterson case in California. Originally he appeared to be a devastated husband looking for his missing wife. Then more and more inconsistencies came out, along with his affair with some other women. And the body of Laci and her unborn fetus washed ashore, and Scott was arrested.

    From Wikipedia: “In later press appearances, members of the jury stated that they felt that Peterson’s demeanor—specifically, his lack of emotion, and the phone calls to Amber Frey in the days following Laci’s disappearance—indicated that he was guilty. They based their verdict on hundreds of small ‘puzzle pieces’ of circumstantial evidence that came out during the trial, from the location of Laci Peterson’s body to the myriad of lies her husband told after her disappearance.”

    Knox repeatedly changed her alibi and fingered her employer (Lumumba) as the culprit. A knife with trace amounts of Knox’s DNA on the handle and Kercher’s DNA on the blade was found in Knox’s boyfriend’s apartment, which she had never entered. Her boyfriend bought a large quantity of bleach (he came back 45 minutes later for another container) the following morning, allegedly to clean up traces of blood on his possessions and the said knife.

    The simple fact is that the news media in the U.S. speaks English, not Italian, so it was easier for them to interview the Knox family than the Italian prosecution team. The methodology of the prosecutors may be alien and overwrought, but the circumstantial evidence was strong enough to get a conviction. Americans living in Rome have commented online that the concerns about the reliability of the Italian justice system is excessive, especially since the victim was British and the convicted included an Ivorian (?) and a native Italian. Alleged “anti-American” bias is flatly false.

  26. Mike

    One of the characteristics of this case is that those, like you, who are convinced of Knox and Sollecito’s guilt, will reliably include at least one piece of evidence that is not true. There were media reports that Sollecito bought bleach, and court testimony that he was in a store, but the other person who worked in the store, said that he didn’t come in that morning. The store’s records didn’t show a sale of bleach that morning. His housecleaner testified that the bleach in his house had been there long before the murder.

    I do agree that the trial and decision was not explicitly anti-American, it was more a case of prosecutorial tunnel-vision, trial in the media, and a variety of cultural misunderstandings, and all that can happen in the U.S. as well.

  27. A Voice of Sanity

    Two excellent articles on the reality of Italian ‘justice’.  Crime novelist Doug Preston on Meredith Kercher’s murder and The Monster of Florence (Geoffrey Luck).  [Ed. Note: Links deleted.]

    Quote: The travesty of justice undergone by Douglas Preston and Mario Spezi is the tip of the iceberg. The Italian judiciary is a branch of the civil service [which] chooses its members, is self-ruling and is accountable to no one: a state within a state! … Political and dishonest judges have an infallible method of silencing or discrediting opponents, political or otherwise. A bogus, secret indictment, the tapping of telephones, the conversations (often doctored) fed to the press who [sic] starts a smear campaign, a spectacular arrest, prolonged preventive detention under the worst possible conditions, third degree interrogations and finally a trial that lasts many years ending in the acquittal of a ruined man … It may be of interest to know that miscarriages of justice in Italy (excluding acquittals with a ruined defendant) amount to four million and a half in fifty years.

  28. A Voice of Sanity

    The Scott Peterson case is one of the cases that proves that the US system is at least as bad as, if not worse than, the Italian system. In the Kerchner case there was at least evidence that could perhaps be construed as pointing to guilt. In the Peterson case every piece of evidence went to innocence, none to guilt (despite the $11 million one account says was expended).

    As for the jury and their comments, they are not sincere. Despite their many TV appearances and their ‘book’, not one of them has ever offered a coherent explanation for the conviction. They took the ‘puzzle pieces’ comment from the prosecution.

    Any time a prosecutor remarks about ‘puzzle pieces’ or the like it is a sure sign that he has no clue as to the truth but is hoping confusion and prejudice will substitute for good evidence and reasoned conclusions. If the evidence is there, the conclusion should be obvious. Any appeal to the jury to ‘solve’ the case is a sure indication of a case that should never have been brought.

    That particular case is one that is a disgrace to the US system and, IMO, proof that the criminal legal system is no more a profession than is the selling of soap or cereal to housewives.

  29. Harry Rag

    The evidence against Amanda Knox and Raffaele Sollecito is overwhelming.

    Amanda Knox’s DNA was found on:

    1. On the double DNA knife and a number of independent forensic experts – Dr. Patrizia Stenoni, Dr. Renato Biondo and Professor Francesca Torricelli – categorically stated that Meredith’s DNA was on the blade.

    2. Mixed with Meredith’s blood on the ledge of the basin.

    3. Mixed with Meredith’s blood on the bidet.

    4. Mixed with Meredith blood on a box of Q Tip cotton swabs.

    5. Mixed with Meredith’s blood in the hallway.

    6. Mixed with Meredith’s blood on the floor of Filomena’s room, where the break-in was staged.

    7. On Meredith’s bra according to Raffaele Sollecito’s forensic expert, Professor Vinci.

    A woman’s bloody shoeprint, which matched Amanda Knox’s foot size, was found on a pillow under Meredith’s body. The bloody shoeprint was incompatible with Meredith’s shoe size.

    Two independent imprint experts categorically excluded the possibility that the bloody footprint on the blue bathmat could belong to Rudy Guede.

    Lorenzo Rinaldi stated:

    ““You can see clearly that this bloody footprint on the rug does not belong to Mr. Guede, but you can see that it is compatible with Sollecito.”

    The other imprint expert print expert testified that the bloody footprint on the blue bathmat matched the precise characteristics of Sollecito’s foot.

    An abundant amount of Raffaele Sollecito’s DNA was found on Meredith’s bra clasp.

    Barbie Nadeau noted that the murder dynamic implicated Knox and Sollecito:

    “Countless forensic experts, including those who performed the autopsies on Kercher’s body, have testified that more than one person killed her based on the size and location of her injuries and the fact that she didn’t fight back—no hair or skin was found under her fingernails.”

    Knox’s and Sollecito’s mobile activity on the night of the murder was suspicious and highly unusual. They turned off their mobiles at approximately the same time shortly before Meredith was killed.

    Police investigator, Letterio Latella, testified that Knox’s and Sollecito’s mobile phones were inactive most of the night, and that activity on their mobile phones stopped almost simultaneously.

    Latella stated that he did not find any evidence of a similar “blackout” of Knox’s and Sollecito’s mobile phones in the month before the murder.

    Although both Knox and Sollecito claimed they woke up after 10am the next day, they turned on their phones at 6.02am.

    Amanda Knox voluntarily admitted that she involved in Meredith’s murder in her handwritten note to the police on 6 November 2007. This confession contained significant elements of truth.

    Amanda Knox and Raffaele Sollecito both gave multiple conflicting alibis and lied repeatedly. Their lies were exposed by telephone and computer records, and by CCTV footage.

    Neither Knox nor Sollecito have credible alibis for the night of the murder despite three attempt each. Sollecito refused to corroborate Knox’s alibi at the trial.

  30. SHG

    That’s quite a list of evidence. I can’t help but wonder why it has been refuted by so many experts given how clear and certain you are about it.

  31. Harry Rag

    I don’t recall any experts refuting the fact that Amanda Knox and Raffaele Sollecito both gave conflicting multiple alibis and lied repeatedly.

    No-one can dispute the fact that Amanda Knox voluntarily admitted that she was involved in Meredith’s murder on 6 November 2007.

    Defence experts claim there was contamination whenever DNA evidence is presented at a trial. This is nothing new.

    The defence experts in this case testified that contamination was theoretically possible. However, they were unable to prove there had been any contamination.

    Alberto Intini, the head of the Italian police forensic science unit, pointed out that unless contamination has been proved, it does not exist. “It is possible in the abstract that there could have been contamination, but until this is proved, it does not exist.”

    With the double DNA knife, there was a total of six instances of the Amanda Knox-Meredith Kercher combination of genetic traces. Do you really believe that it is a coincidence that there were six incriminating instances of this specific combination of genetic traces?

    There was an independent review of the forensic evidence in 2008. Dr. Renato Biondo, the head of the DNA Unit of the scientific police, reviewed Dr. Stefanoni’s investigation and the forensic findings. He confirmed that the forensic findings were accurate and reliable. He also praised the work of Dr. Stefanoni and her team.

  32. Harry Rag

    Perhaps, Amanda Knox and Raffaele Sollectio should try taking some fish oil. It might help them remember all the details they conveniently couldn’t remember about the night of the murder.

  33. SHG

    I see that you have no greater strength in wit than in facts.  Whatever. Your views are stated, but now you’re just boring and vapid.

  34. A Voice of Sanity

    “Two excellent articles on the reality of Italian ‘justice’…. [Ed. Note: Links deleted.]”

    Why delete the links? Without them the post is meaningless. With them you can read some salient comments on the case and on the Italian system. This was a silly thing to do.

  35. SHG

    The links were deleted because I don’t allow links in comments.  It’s not your place as a commenter to add links, no matter how “salient” you think they are.

  36. Charlie Wilkes

    Amanda and Raffaele are completely innocent. One problem is that the media presented all the prosecution’s allegations, but did not cover the defense rebuttals with anywhere near as much alacrity. Google “Amanda Knox shoe print” for a good example. A prosecution witness claimed a bloody shoe print matching Amanda’s shoe size was found on a pillow in the murder room, and many news organizations reported that. But, a consultant for Sollecito’s defense showed conclusively, i.e beyond all doubt, that the blood traces matched the tread on a shoe identical to the pair Rudy Guede admits he wore at the crime scene and then ditched in a dumpster after he fled to Germany.

    If anyone wants photographic proof of what I say above, email me at [email protected]

    As for the DNA evidence, Chris Halkides is one of many scientists who have dismissed it as complete junk. Thank you Chris for getting involved and spreading the word.

    I would like to say that the US system is as error-prone as the one in Perugia. I got involved in this case because I have read so many books about wrongful convictions in the US, and they rankle me. Anyone who thinks it can’t happen here should read about the Kelly Michaels case in New Jersey. It’s just one of many examples, albeit one of the most ludicrous.

    My hope is that this case will help bring more attention to the problems in criminal justice both at home and abroad. But the first priority is to get Amanda and Raffaele out, because they had nothing to do with this ghastly murder.

  37. Chris Halkides

    Scott,
    The prosecution moved the time of death back at least an hour in their closing remarks. They might have caught the defense flat-footed, but their TOD does not make sense from the point of view of lack of food in Meredith’s duodenum. I am disappointed that the judge allowed the prosecution to change the TOD in closing remarks.

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