This article aims to be a short commentary on the final ruling concerning the Kercher murder case, the so-called Marasca Report, the one definitively closing the case by acquitting Amanda Knox and Raffaele Sollecito after almost eight years.
But it is also intended to be a final thought about the case before leaving this chapter of my life behind me and dedicating myself to other causes.
Since the acquittal is based on paragraph 2 of article 530 of the Italian Code of Criminal Procedure, which provides for a judge to pronounce a verdict of acquittal “when evidence is lacking, insufficient or contradictory”, it was to be expected that it would not have been a clearcut, one-sided proclamation of innocence.
Also, by paying attention to the text of the verdict back in March, it was already clear to me that, since the acquittal for the charge of staging a burglary was due to the defendant not having committed the crime and not to the crime not existing, this new ruling was going to accept the theory of a staged burglary and hence, most probably, of multiple attackers.
It is a ruling with both lights and shadows, but indeed appreciation for it greatly varies if one looks at it only from the point of view of the specific case, or from the point of view of its potential effect on Italian criminal justice in general.
I will therefore summarize in the following sections first what I don’t like in it, mainly from the point of view of a supporter of Knox and Sollecito’s complete innocence, then I will expand on what instead, are its big merits, not simply for this case, but for Italian justice in general.
As done before, I will use the name “Marasca” to represent the ruling as a whole, rather than the individual judge.
There is a ghost haunting the solemn corridors of the palace of the Court of Cassation in Rome. It is called, in Italian, “conflitto in giudicato” and it has always frightened the judges of Italy’s highest court.
A “conflitto in giudicato” of the worst type happens when two definitive rulings, that is two different rulings issued by Cassation’s panels to close a case, conflict about the verdict on some element of the same case.
Throughout the years, Cassation judges have always tried to dispel such a haunting presence by trying to ensure that all of their rulings were “aligned” and coherent, as much as possible.
Hence it isn’t particularly surprising that Marasca agrees with Guede’s ruling about the presence of multiple attackers and the burglary being staged: ruling otherwise would have caused a major “conflitto in giudicato”, and probably that was also one of the causes of the annulment of the first acquittal.
There is however a difference: while Marasca writes very few words, if any, in upholding the concept of a staged burglary, so much so that one derives it was deemed staged more from the verdict than from the ruling, he expands quite a bit on the reasons for supporting the multiple attackers theory.
Some of those reasons are the usual ones and have been debated for years, and I will not discuss them further now (lack of defensive wounds, just to quote one), but while this could just be a mechanical rehashing of corny arguments, there is also something new that makes me think the judges of the panel, or at least a majority of them, really believed in what they were writing.
Specifically they really believed that Meredith Kercher’s killer was much more “criminally skilled” than petty thief Rudy Guede and, all the more so, than two nerdy students.
They seem to think so because of the cruel way the Englishwoman was killed, according to them the “frightful way” she was killed is something worthy of the “disturbed personality of a serial killer”.
While there are some who think Guede could be a serial killer caught after his first murder, I have to say the small number of wounds and their localization made me wonder at times.
In many other cases I have read about which involved knives and first time murderers, there are almost always many wounds (tens of them indeed) and they are spread all over the torso and the abdomen: big easy targets.
Here instead we have a limited number of wounds, with only one meant to be deadly and which indeed is deadly and all of them in a small area: something reminiscent of an execution.
On the other hand, since, as we will see, the mainstay of the reasons for the acquittal lies in the absence of biological traces of Knox and Sollecito in the murder room, one would expect that the judges would extend the same consideration also to these unknown “others” and exclude them too.
Unless they thought, without writing it down and without even hinting at it, that those others came more than prepared for an “execution” and were appropriately dressed to leave no trace, for instance with full overalls including booties, like those sported by the Scientific Police, for instance.
But this is clearly just a runaway speculation and our judges, if they ever considered something like that, never dared to articulate it.
Another big shadowy area concerns the calumny against Lumumba.
Sure, Knox had already been definitively convicted for that charge, but it nevertheless looms large in this report too.
It first shows up when the judges have to decide about a request by Knox’s defense to postpone the decision until the pronouncement by the ECHR on the conviction for calumny.
Clearly the panel wants to find a quick reason for going on and rejecting a request that would introduce such a long delay and unfortunately they come out with a few incorrect assertions.
Essentially, to reject the request, they say that even if the ECHR should rule that Knox’s human rights were violated, she has no hope for a revision of her conviction, because she repeated her slandering accusation against Lumumba thrice (a bit like Saint Peter …): in her first memoriale, in front of the prosecutor and in front of the judge of the preliminary hearing (Matteini).
Now, while the real content of the first memoriale is a matter of interpretation and in any case is something of a fruit of the poisoned tree, what is factually false is that she accused Lumumba in an interrogation in front of the prosecutor (which didn’t take place, according to the records, on November 6, but in December, when Lumumba was already free) and that she accused him in front of Matteini, since she chose to say nothing in that context.
But what is in my opinion even worse, also from a more general point of view, is the dogmatic assertion that an interrogation in front of the prosecutor is a “context institutionally immune to anomalous psychological pressures”.
Whatever that “institutionally” may mean, there are a few videos in Italy showing that that’s not exactly the case. Cases in which interrogations were recorded.
Other negative aspects related to the calunnia charge are connected to what in my opinion is the inappropriate evaluation of both Knox’s “spontaneous statements” and her first memoriale.
First of all the two statements should not be even quoted, having been declared inadmissible by Cassation itself, the first for use against Knox, the second for use against anybody.
But this is Italy and they were happily used throughout the proceedings.
As regards the memoriale, we indeed have two of them and the second one is a total retraction of any accusation against Lumumba, but, conveniently, it is never quoted in any ruling.
And even the first one is not a repetition of accusations written “in conditions of objective tranquillity”, as Marasca claims, since it is a confused hodgepodge where Knox openly states she cannot trust her memory.
And it was written in the morning of November 6, after having spent the night at the Questura (the central police station) and while being factually, if not formally, under arrest.
Not exactly your preferred “condition of objective tranquillity”.
Then there is the importance given by the ruling to Knox’s statement about being at the cottage while Kercher was killed and hearing her scream.
As said before, this statement should simply not even be quoted, it being inadmissible, but since no one cared about the inadmissibility (which in Italy evidently exists only in theory, like many other things concerning justice), Marasca thought it was correct to do the same, possibly also because in this particular ruling no consequence (i.e. conviction) was to come in any case.
Admissibility aside, the reasoning in the ruling about the scream constituting a strong element of suspicion about Knox’s presence at the cottage because she mentioned it before Capezzali, is intrinsically contradictory, since Marasca, on page 33 of the original Italian text, upholds an early time of death (before 22.13, just like Hellmann) and in such a case Capezzali simply did not hear Kercher’s scream.
Then there is the almost comical paragraph wondering about the possible reasons for the calumny against Lumumba.
Marasca deems “very weak” the hypothesis that Knox was led to slander Lumumba by psychological pressures, because she should have quickly realized that such accusations would have soon been belied, since she knew Lumumba did not have any acquaintance with Kercher or the house at Via della Pergola.
This was the exact same reasoning Hellmann followed to deduce that Knox could have known that Lumumba was innocent even without being at the crime scene.
You know what?
The First Penal Section of Cassation in 2013 quashed Hellmann on this point stating that Knox knew that Lumumba indeed had an acquantaince with Kercher, since Knox had introduced her to him!
Or better, just one comment: when you are under heavy psychological pressure you don’t think about what will happen tomorrow, you want that pressure to cease now.
Another very shadowy area of the ruling concerns the presence of Knox alone or of Knox and Sollecito at the time of the murder or later that night.
Here more than shadow we should talk of fog, a thick one indeed.
Essentially the ruling says that there are “strong elements of suspicion” in favor of their presence (and more particularly of Knox) at the cottage at some unspecified time between the evening of November 1st and the morning of November 2nd.
There is the possibility they were there during the murder, but they could have been there later.
Or indeed they could have not been there at all, since Marasca states on page 47 that there is no “tranquillizing certainty” that Knox’s alibi (having been with Sollecito since the late afternoon of November 1st to the morning of the day after) is false.
This because Curatolo’s and Quintavalle’s credibility is extremely doubtful, and also the “mixed DNA” of Knox and Kercher in the small bathroom suffers from the low reliability shown by the forensic investigations throughout this case.
It is true that in a couple of passages the ruling seems to take for certain Knox’s presence at the cottage, albeit a margin of ambiguity remains in the words used, but it must be kept in mind that Marasca includes the morning of November 2nd in the time interval he considers, and Knox’s presence that morning is uncontested.
As concerns the allegedly staged burglary, Marasca, while accepting it as such in his verdict (as mentioned before), does not write a single word to uphold this conclusion, indeed defining the staging (“simulazione”) as “contestata”, which in this context should mean “for which they have been charged”, but could also be translated as “disputed”.
He also says that the breaking of Romanelli’s window was caused by a rock “apparently” coming from the outside and that the glass shards were “above but also below the clothes”.
Is this perhaps a way of stating “I don’t believe it but I officially have to believe it”?
In any case the ruling deems that Sollecito pointing out to the Postal Police that the burglary was anomalous, since nothing had been stolen, constitutes a contradictory enough element to the prosecution’s theory that he and Knox staged it.
And this brings us to the second part of this article: what is wrong with the prosecution case and the investigations.
According to the ruling there is an “unsurmountable monolithic barrier” against the conviction of the defendants for murder, namely “the total absence of biological traces attributable with certainty to the two defendants in the murder room or on the body of the victim”.
And indeed the case is all there: it was impossible for two more people besides Guede to attack Meredith Kercher and stab her in that small room without leaving behind any trace.
The alleged “selective” cleaning is, according to the ruling and to common sense, totally impossible, to a point, says Marasca, that no expert report is needed to certify this.
Besides that, “the assertion itself of a presumed carefulness in the cleaning is factually proven wrong, since in the small bathroom traces of blood were found on the mat, on the bidet, on the tap, on a Q-tips box and on the light switch”.
And what about the infamous bloody footprints?
Finally this panel admits, and indeed points out, something all the judges in these proceedings (with the exception of Hellmann) had conveniently “forgotten”: the Scientific Police themselves “had excluded, thanks to the use of a specific chemical reagent [TMB], that the traces highlighted by luminol in the rooms concerned were of haematic nature. These papers, even if duly filed into the trial documents, have been completely neglected.”
There isn’t really much more to say: the fabled “bloody footprints” were not made in blood.
And what about all the pages of rulings and expert reports, and the hours of discussion in the courtroom in three trials to sustain or confute the attribution of those footprints (including the one on the bath mat) to Knox and Sollecito?
Just a few, implicitly scathing, lines.
For Knox: “the attribution to the plaintiff [because she has appealed to Cassation] of the footprints found at the murder scene is anything but certain”.
For Sollecito: “no certainty could be acquired concerning the attribution to Sollecito of the footprints found in the house at Via della Pergola”, since all the technical analyses and expert reports could only reach an opinion of ‘probable identity’ ”, but no certainty.
And this was really long overdue, since in every convicting ruling one read, concerning the footprints, that these analyses could give only “probable” identification or compatibility, or that they were useful only for exclusions and not for positive identification, and yet they were used precisely to attribute them to Knox and Sollecito with a claim of certainty.
And Meredith Kercher’s phones?
“Anything but plausible is, indeed, the reasoning according to which the cell phones were carried away to prevent a possible ring leading 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.”
Finally, what about the motive?
“None of the possible motives among the range of solutions suggested in the ruling of the remand [trial] could be ascertained in the present judgment”;
“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 roommate for the latter having let into the house Guede, who had improperly used the bathroom”;
“the hypothesis of a group sex game has found no confirmation at all”.
To quote the Bard: much ado about nothing.
But there is not just that.
Do you remember all the convoluted “reasoning” displayed by Nencini (and Massei) to find contradictions, “strange” behaviors, indications of guilt?
Do you remember the shower, the lamp, the door Meredith never locked, the length of Knox’s calls to Romanelli, the kiss, the lingerie, Knox’s call to her mother when in Seattle it was night, Knox saying Kercher had been found “in the wardrobe”, the cartwheels and God only knows how many other mainstays of the guilters’ arsenal?
No, they are not examined by Marasca, not even quoted indeed.
But they are implicitly dealt with in a single period, a really scathing one, a teaching that goes far beyond this trial and that, if applied, would have spared Italian justice many wrongful convictions throughout the years.
“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, paragraph 2 of the Code of Criminal Procedure, even if he is authentically convinced of the guilt of the defendant.”
The judge must apply the law: that’s revolutionary, in Italy.
Something else is rather revolutionary in this ruling, and that’s the treatment reserved for the investigators, the Scientific Police first of all, but implicitly also the prosecutors, since they, in Italy, control the investigations and the police.
The unusual interest of the media in the case, so says Marasca, increased by its international character, has certainly done no good to the investigations: the search for “substantial truth” was damaged by such attention, so much so that the investigations were suddenly accelerated “in the spasmodic search for one or more perpetrators to be presented to the world’s public opinion”.
“One or more perpetrators”, not “the perpetrators”, in Marasca’s own words.
But what greatly suffered was also the quality of the forensic, and particularly genetic, investigations.
Back in 2013 the First Penal Section wrote in their ruling that the videos of evidence collection showed that said collection “was performed with the guarantees of the protocols of the Scientific Police, accustomed to operate in such conditions”.
The same ruling also stated that contamination had to be proved by the defense and denied that there had been any important alteration of the crime scene between inspections.
In 2014 Nencini added that, after all, international protocols are not all that relevant.
Today the Fifth Penal Section reverses all that, and while they never openly criticise the First Section, their arguments are the exact opposite of those of the Chieffi panel in 2013.
“The criterion of correctness cannot but be the respect for the standards established by international protocols”.
Evidence collection must be “aseptic”, and performed “in an environment whose sterilization has been previously assured, so that it may be shielded from possible contamination”.
These fundamental rules were not followed in this investigation, says Marasca.
Trace 36B, the alleged Kercher DNA on the blade of the knife, and trace 165B, the alleged Sollecito DNA on the bra clasp are not even elements of circumstantial evidence since the lack of a double amplification (recommended by international standards and by the basics of the scientific experimental method) prevents them from being considered scientifically reliable results.
Also, for the knife protocols were not followed with regard to the chain of conservation of evidence, since it was stored in a cardboard box casually taken from some drawer, while the situation for the bra clasp is even worse.
The fact that it was collected 46 days after the murder is even defined as “disturbing” (inquietante) and Stefanoni is scolded for having initially neglected it, thinking that having collected the remainder of the bra was enough.
The bra clasp was kicked around, its collection was performed with dirty gloves, in an apartment turned upside down by various inspections that had deeply altered the crime scene.
In two words, the collection was certainly not “aseptic” and the environment in which it took place was not at all “sterilized”.
The Scientific Police are also repeatedly scolded (and after a while it becomes like shooting on the Red Cross) for not having chemically tested the content of the cigarette with a mixed Knox-Sollecito DNA found at the cottage and for not having tested the knife for traces of blood, preferring to concentrate in both cases on DNA alone, while the Postal Police get their fair share of criticism for having “incredibly” (Marasca’s word) fried a certain number of hard disks.
To be honest the Scientific Police DID test the knife for blood, even if not on trace 36B, which was used only for DNA analysis, but by extracting another trace at a later time.
Indeed (Marasca apparently ignores this, but basically it’s not matter for a legitimacy judge) the Scientific Police’s SAL documents (SAL = Stato Avanzamento Lavori, State of Work Progress) testify that a trace (Trace Code 28669-01-036-05, Sample ID Code 200048651) was extracted on December 17th, 2007 and tested with TMB.
It gave a negative result.
Hence the case for innocence is even stronger than Marasca makes it: the police DID search for blood on the knife and found none.
The ruling has a further argument against the relevance of the alleged Kercher DNA on the knife (phantom DNA that shaped these proceedings, since it was the only thing that allowed the knife to be considered the murder weapon for almost 8 years): even if there had been such DNA on the knife, it would have had little importance, since it could have been at the cottage before, even handled by Kercher, given that Knox during the last week before the murder lived as if she had two homes and could have moved utensils from one house to another to cook or for other reasons.
For those who, like me, believe that knife never left Sollecito’s apartment, this is not a main argument, but it is perfectly coherent with a context in which, as in the Nencini ruling, such movements of utensils are used to justify the presence of the knife at the cottage on the night of the murder.
The Italian Perspective
This ruling has been hailed as almost revolutionary by almost all those who in Italy fight against wrongful convictions and for a much needed improvement of the judicial system.
The common feeling is that its importance and its teachings go far beyond this particular case.
Specifically, three points are considered as particularly important for present and future cases:
- judges have been reminded that they cannot compensate for lack of evidence with their own personal logic and intuition;
- the serious criticism of the forensic investigations can pave the way to their improvement and make future judges more careful in blindly accepting the results presented by the prosecution;
- the criticism of the influence of the media may help (hopefully) to limit such undue influence on the investigations and consequently on the trials themselves, an influence that in Italy has reached levels probably unheard of in most, if not all, Western countries.
All that is great, and certainly a new hope, but on the other hand it also reveals how disastrous and devastated is the landscape of justice in Italy.
Things must really be going badly for people to hail as revolutionary the invitation to judges to apply the law instead of their personal intuition.
Things are certainly not going at their best when scientists (because the Scientific Police and the RIS should be made up of scientists) have to be reminded by judges that scientific protocols must be applied.
Things are far from good when a ruling by the highest court in the country has to remind the investigators that they are not accountable to the media and don’t have to satisfy them.
But that is the Italian reality and the ruling portrays it well.
Goodbye to all that
Italian justice has many flaws, but no country is immune to such flaws and indeed, by following a few American cases, both personally and through Injustice Anywhere, I have become accustomed also to the many defects of the American judicial system.
The Kercher case was a battle in the war against all these failures.
Knox and Sollecito’s definitive acquittal means this battle has been won, but the war goes on and indeed there are new potential battles popping up almost every day, even too many for the always too few people of good will who have joined the fight.
It is therefore time, at least for me, to leave the Kercher case and its protagonists behind, never forgotten, but not anymore an almost constant thought.
It will always remain special for me, since it was the case that introduced me to the failures and limits of human justice, and to the possibility and duty of trying to improve it, but now it is time to fully dedicate myself to other cases and other battles.
There are already at least a couple I have begun to get involved in in Italy (Bossetti/Gambirasio and Scazzi/Misseri) and more in Canada (Nyki Kish) and the US (Jeffrey Havard, Peter Wlasiuk, and others).
That’s the present and the future, Perugia now is the past.
I sincerely hope Amanda Knox will, as she has vowed, join this war: perhaps this participation will teach her to less often turn the other cheek and to be confrontational when it is needed.
A real war isn’t fought, much less won, by the Salvation Army.
A special thanks to Kate Wilson for having proofread the article and for the inspiring discussions on the topic.