Having been acquitted on the merits, an accused defendant ought not to have to stand trial twice for the same crime. This is as true in the United States as it is anywhere else in the world. Like say, Italy, where the men and women depicted to the left are engaged in a ceremony in the “highest court” of that nation. While they look as impressive as a college of cardinals, the system they lead has demonstrated today that it leaves something to be desired.
On November 1, 2007, Meredith Kercher, a British national studying in Perugia, Italy, was sexually assaulted and stabbed by her then-boyfriend, an Ivorian national, Rudy Guede. Later that night, she was found dead of stab wounds. This, no one disputes. Mr. Guede is presently serving sixteen years for the sexual assault and stabbing. The question is about whether he acted alone and if not, whether someone else delivered the fatal blow.
Ms. Kercher’s flatmate, American national Amanda Knox and her then-boyfriend, Italian national Raffalle Sollecito, were arrested shortly afterwards and tried for the murder of Ms. Kercher. They initially blamed a third party and then blamed Mr. Guede of the murder; everyone denied the accusations. The third party got out of the picture and the focus came on Ms. Knox and Mr. Sollecito, on the theory that the murder was part of a sex game gone wrong. This based on the idea that Ms. Knox bought some underwear that was kind of sexy while the investigation was underway, she didn’t seem particularly broken up about it, her DNA was found on a knife that may or may not have been the murder weapon, and Mr. Sollecito’s DNA was found on a clasp of one of Ms. Kercher’s bra.
Under Italian criminal procedure, after the equivalent of an indictment and prelimianry hearing, an initial trial called a dibattimento is held before a single judge, called il (o la) Guidice del Dibattimento. The standard of proof is “beyond a reasonable doubt” and a formal opinion is necessary. But “beyond a reasonable doubt” may not mean quite what it does in the United States or a commonwealth country; the standard is of the judge’s intimo convincimento, or internal mental conviction.
Ms. Knox and Mr. Sollecito were found guilty (colpevole) of murder after their dibattimento, on December 4, 2009. What appears to have been the critical issue was DNA evidence collected on a knife found in the apartment. I cannot determine with accuracy whether this knife was the putative murder weapon: some sources say it was, others say it wasn’t.
For murder cases, what happens next is a second trial before a new court, called le Corte d’Assise, which consists of two full-time professional judges (guidici togati), and six citizens of the comune (the rough equivalent of a county in the United States) where the case is being re-tried, called popular judges (guidici poplari) who are chosen at random from those local citizenry who have not been convicted of any major crimes, are not from the excluded professions of the judiciary, military, police, or clergy, and have completed the equivalent of high school. These are not jurors, as they render opinions on both the law of the case and the disputed facts. Notably, they also continue to work at their regular jobs while serving as judges. Obviously, such procedures are going to be long and drawn-out as these lay judges must re-arrange their professional and personal lives to made time for periodic meetings of the court and trials — and as a result, trials before la Corte d’Assise can last years.
From there, either side may appeal to la Corte d’Assise d’Appello, an appellate court also made up of two (now more senior) professional judges and six lay judges drawn at random. An appeal in la Corte d’Assise d’Appello includes a comprehensive review of the evidence, and is in effect a retrial.
Ms. Knox and Mr. Sollecito were acquitted of murder after their trial before either la Corte d’Assise or la Corte d’Assise d’Appello, I cannot determine which, in October of 2011. The reason I cannot tell which court did this is because in both cases, the court conducts an evidentiary review, in essence re-trying the entire case from scratch. In this sense, it is very unlike the American system of justice, in which reviewing courts do not address facts but only questions of law. But whether the reviewing court was la Corte d’Assise or la Corte d’Assise d’Appello, the reason for the acquittal (assoluzione) was perché l’imputato non lo ha commesso — because the defendant did not commit the crime.
The so-called “Italian Supreme Court” is called the Cassazione. Here, at last, is something that looks more like the realm of pure law which American lawyers expect to encounter on appeals. The evidence is not at issue, only the correct application of the law. I presume when the BBC refers to the “Italian Supreme Court” they are referring to la Cassazione. There is a technically higher court of Italy, la Corte constituzionale della Repubblice Italiana, or Constitutional Court, which is commonly called la Consulta. But criminal matters typically go before the Cassazione rather than the Consulta; the Consulta would only be involved if some aspect of the case implicated a violation of the Constitution of Italy.
At every phase of the case up to the Cassazione, either side can appeal and seek a new trial. And in most cases, the appeal is in effect a new trial. And as we’ve learned today, the Cassazione decided to reverse the acquittal from the appeals court, and sent the Knox/Sollecito case back down to a trial court to start over again. So you can get a new trial from the Cassazione, just not in the high court itself.
As Stephen Green put it earlier today: “Italy is cool because you can keep holding the same trial until you get the right verdict.”
Ms. Knox and Mr. Sollecito remain at their liberty during the proceedings, which is a mitigating factor. But I must report some degree of distress at seeing this as the justice system. The system I’m familiar with in the United States would not tolerate this. Nor should any system. If the “beyond a reasonable doubt” standard is to be taken seriously, and if judges and jurors are presumed to be reasonable people, then an acquittal means that a reasonable doubt exists and the defendant is not guilty.
I’m not an Italian citizen. I’m part Italian by ancestry but I don’t particularly want to stake a claim to a legal system like this. Sure, people can disagree about the evidence and what it all means. But successive retrials at the request of the prosecution does not seem at all consistent with notions of fairness and due process and presumptions of innocence and the proper application of the burden of proof.
Good luck to Ms. Knox and Mr. Sollecito. And may we never have to learn about extradition rules with respect to this case.