English Summary of the Supreme Court of Cassation Motivation Report

From The Murder of Meredith Kercher
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On March 25th 2013 the Supreme Court of Cassation annulled the decision of the Hellmann Court that had found Amanda Knox and Raffaele Sollecito not guilty of the murder of Meredith Kercher.

On June 18th 2013 the Cassation released their motivation report explaining why the Hellmann decision was flawed. Cassation also ordered that the appeal be done over and that process started on September 30, 2013. For updates see: Nencini Appeal

The motivation report can be read in Italian here Supreme Court of Cassation 2013 Motivations

This is an English summary of that report. A complete English translation is available at The Supreme Court of Cassation of Italy Sentencing Report

Contents

Facts Considered

In the judgment of December 5th, 2009, the Court of Assizes of Perugia condemned Amanda Marie Knox and Raffaele Sollecito for the crime of the murder of Meredith Kercher, which occurred on the night between November 1st and November 2nd 2007, at the womens' home in Perugia at #7 via della Pergola, sexually abused and who suffered numerous stab wounds, in collaboration with Rudy Hermann Guede, who was defininitively convicted separately having opted for an abbreviated trial, as a result of insurmountable scientific proof at the crime scene and on the victim which led back to him. This same conviction (of the two) also affirmed their guilt for transporting the knife from Sollecito's home, for the burglary of the victim's phones, for simulating the burglary in Filomena Romanelli's bedroom, staged to indicate that third parties had stealthily entered the building via the window. Finally, Knox was convicted of the crime of slander, to the detriment of Diya (Patrick) Lumumba, who she falsely accused of the murder during the investigations into the violence.

The victim was an English student who was following the Erasmus program in Italy, living in a rented room at 7 via Della Pergola with three other girls, including young American student Amanda Knox, who came to Italy to attend courses at the University for Foreigners and shortly before the murder (October 26) had begun a relationship with Raffaele Sollecito, a computer science major at the University of Perugia. The battered body of the British student had been found November 2, 2007, at about 1:30pm, after Sollecito and Knox had lodged a complaint of theft at the apartment and after the victim's phones had been returned to them. The phones had been discovered in a residential garden on via Sperandio that day, having been abandoned by the author or authors of the murder, although at first it was thought they had been thrown by the author of the (simulated) burglary. The bedroom of the murdered victim was locked and it was necessary to break open the door, revealing the macabre scene inside.

The appellate ruling, which is the subject of this appeal, almost entirely reformed the judgment of the first instance, absolving the two defendants of having committed the murder and of simulating the burglary, while upholding the guilt of Knox for slander.

It is therefore necessary to prefix, because of the absolute difference between the two decisions, albeit in summary, brief notes on the argumentative path that the first instance judges followed, and then highlight the work of the appeal court and the reasons for the divergence of the two motivations, before getting into detail of the multiple grounds of dispute in this venue.


A Summary of the Massei Decision

The judges of the Court of Assize (Massei) were convinced of the guilt of the two defendants, based on a strictly circumstantial compendium, but conclusively evaluated in light of a logical argument that started from the false alibi and the simulation of the break-in in Romanelli's room, through the genetic investigation, the biological traces found in the bathroom of the house (locus delicti commissi, crime scene), the tracks enhanced with Luminol, as well as examination of the defendants' phone records. According to the judges of the first instance court, the two defendants suddenly found themselves free from their commitments on the evening of November 1, 2007, spent the hours after dinner at Via Della Pergola, where they had sex and took drugs. Rudy Guede was also present (having been let into the house by Knox), who had a long interest in the British student, who was on her own that night to do homework and certainly would have denied the advances of a new lover, so triggering an impulsive dynamic of sexual assault, in which the two young lovers (AK+RS) joined, Sollecito in particular attracted by the violence in which he has expressed an interest, given the type of reading and type of films he enjoyed. So the crime was considered born in a context of violence and eroticism in which the goal was to subjugate poor Meredith to the sexual appetites of those she had rejected, in a dynamic of continuous excitement at the violence, which would interest the two defendants, exalted by being involved in an exciting new experience.

In essence, in the first instance court demonstrated the guilt of the two defendants on the following evidence:

  • Traces of a theft in Filomena Romanelli's room had been artifically created to divert suspicion away from the occupants of the house, as the shards of glass from the window (broken with a stone, probably from inside the house), were found, for the most part, above and not beneath the objects scattered around the room. The room was not missing anything, not even the jewelry or the laptop, not even the nightstand drawers had been opened. The first instance court therefore considered it conclusive that the staging was the work of those who could access the house and sought to divert suspicion away from themselves. So whomever entered the house at via Della Pergola did not enter through the window but through the door, meaning they either had the key or accompanied someone who did, since there was likewise no signs of forced entry on the locks. The keys to the house had been given over to each of the four women who lived there, but that night Romanelli and Mezzetti were absent. To further support the conclusion that the break-in was staged, Romanelli had also testified that she had closed the windows of her room before leaving, so the hypothetical thief, ignoring that the fixtures were just pushed together, would break the glass and then climb the wall, a distance of about three and half meters, leaving no traces on the wall and without disturbing the vegetation below.
  • Rudy Guede appeared to have been found in the house because of the uncontested DNA evidence on the vaginal swab, on the pillow case placed under the victim's buttocks, on the left cuff of the sweatshirt discovered on the floor, on the bra found at the girl's feet, on the victim's purse, and on toilet paper found in the large bathroom used by Romanelli and Mezzetti (why didn't he flush after defecating). Not only that, but his shoeprints were made in the victim's blood in a path from the bedroom to the door of the house. The first court was certain Guede had entered the victim's home but only with the help of someone who possessed the keys, being able to validly exclude that Meredith would have let him in because if she had, there would be no reason to simulate the theft. (To say nothing of the fact that the victim was in a relationship with a boy from the apartment downstairs, empty on the night of the murder.)
  • The witness Nara Capezzali said she heard, around 10:30 or 11:00, a cry so harrowing that afterward she had trouble getting back to sleep, a scream corroborated by Antonella Monacchia, who went to bed around 10:00 and after falling asleep was awakened by a loud scream coming from below her apartment (i.e. from via Della Pergola). Witness Maria Dramis had gone to bed around 10:30 and heard footsteps running along the driveway that connects her home and via Della Pergola.
  • The witness Antonio Curatolo, a clochard who spent much of his time at Piazza Grimana, near via Della Pergola and who recognized the defendants from previous occasions, had declared to have seen them on the evening of November 1 some time between 9:30 and 11:00 at the part of the piazza that overlooks the house. In particular he remembered them at the wall of the basketball court, and they had gone by the time he left, around midnight. He added that sometimes one would go to the railing and look down toward the house. That evening at 10:30 a tow truck was assisting a vehicle and there had been a commotion produced by the car horns. The witness also stated he remembered that the defendants were no longer present at the time the buses departed for the clubs downtown, and on the day following his sighting via Della Pergola was beset by men in white jumpsuits that made them look like aliens (identified as members of the Scientific Police, who rushed to the scene of the crime on the afternoon of November 2, 2007).
  • The forensic investigations had established that the poor girl had died as a result of sexual assault, the dual mechanism of asphyxiation and exsanguination caused by the wound in to the neck (the asphyxia due to inhalation of blood and further choking/suffocation, probably following the scream heard by the neighbors, a constriction of the neck which caused the victim's hyoid bone to fracture. The time of death was placed between 8:00pm Nov 1 and 4:00am Nov 2. The knife found in Sollecito's apartment (exh. 36) was found to be compatible with the larger wounds.
  • An examination of the puncture wounds, cuts and bruises to the victim had revealed an number of harmful actions, impressive in their distribution and diversity, especially with regard to the injuries inflicted on her face and neck (the wounds were deep, four to eight centimeters), opposed to non-existent defensive wounds, a fact that did not reconcile with the fact that the young victim was fit and strong and had taken karate, which induced the court to the inevitable conclusion that the attack had been conducted by several people, who together acted against the victim, who was unable to defend herself, or shield herself with her hands to protect vital parts like the neck from being repeatedly struck. Considering the types of activity undertaken by the attackers, it is very difficult to imagine a lone individual, because it includes actions to strip the victim (who was dressed when the attack began), to violate her sexually and assault her with knife, while holding her wrists to prevent a reaction (here we find Guede's DNA on her sweatshirt cuff), but also the different morphology of the lesions, their number and distribution led the court to believe that the attackers numbered more than one. In particular, it appeared that many injuries were caused by force/grasping, and other injuries with a cutting weapon were very different in size and made from the right and then the left, which led to the conclusion that the attackers restrained the girl and struck from the left or the right depending on their position relative to her, and especially on her mouth, in order to avoid repeating the scream that must have been heard by the two neighbors mentioned above.
  • The testimony of Quintavalle, owner of a grocery named Conad, located on Corso Garibaldi, not far from Sollecito's home, said he saw on the morning after the murder a young woman waiting outside his shop at 7:45am, waiting for it to open, whom he identified as Knox. She went right to the detergents section, but he was not able to say whether she'd purchased anything. This finding made it possible to feel the urgency for cleaning supplies, even if he did not come forward for a year at the urging of someone who remembered that Quintavalle had told him he (Quintavalle) had recognized the young woman who came to his shop that morning.
  • The statements of Knox, as for being at Sollecito's home on the evening of Nov 1 until the morning of Nov 2 at 10:00am, were deemed incompatible, not only with the sighting of them in the piazza by Curatolo but also with the indications of Quintavalle, on the presence of Knox at his shop at 7:45am; she had also not reported the phone call Sollecito received from his father at 9:30am, a sign she was not there when the call came in, and her urge to lie about the time they'd eaten dinner by placing it at 10:00pm when Sollecito, on the phone with his father at 8:42 that evening, had told his father he was washing the dinner dishes. The early dinner is likely, considering both of them had commitments that evening and had found they had the night to themselves late (Knox after 8:00, following the text from Lumumba)
  • It appeared that after the 8:42 phone call from his father, Sollecito had turned off his phone and turned it on again at 6:02am the next morning (Nov 2), because at that moment he received a message his father had sent the night before ("Goodnight," ~11:00pm -ed). The computer, which Sollecito last worked on at 9:10pm, was reactivated at 5:32am for about half an hour, for listening to music. The planned trip to Gubbio had undergone a sudden change.
  • The genetic investigations had found a trace of Raffaele Sollecito's DNA on the clasp of the victim's bra, which had been cut (with a sharp instrument) and found under the pillow which had partially propped up the victim, whereas the rest of the bra, in particular one of the straps, had a trace of Guede's DNA, which led the court to believe that the two men were present at the scene of the crime at the time marked by the sexual attack of the victim. The indications on the hook had revealed 17 loci with clear evidence at each locus alleles constituting the genetic profile of the defendant, compared with the halpotype obtained from a cheek swab sample.
  • In Sollecito's home was found a kitchen knife, which appeared clean. At the base handle of the knife nearest the blade a biological trace attributable to Knox was found, Track A. The place where the trace was found suggested that the knife had not been used in a horizontal direction, but at a certain angle, to suggest that the knife was held to strike rather than to cut. In respect of that knife a conversation between Knox and her mother was intercepted (disputed in its exact translation), in which Knox declares she is particularly concerned "about a knife of Raffaele's." On the blade, invisible to the naked eye, another trace was detected (Track B) containing low amounts of DNA found to be a match to a single person, that is, the victim.
  • In the house at via Della Pergola, and particularly in the bathroom shared by the victim and Knox, mixed biological traces were discovered attributable to both (defendant and victim): On the box of cotton swabs on the sink a bloodstain was found which had a mixed trace, mixted traces were found in the sink itself and on the bidet, as a result of rubbing to clean the blood of the victim, resulting in the exfoliation of cells. The biological traces were faded red in color from washing in the sink and bidet, in front of which lay the mat which was, too, imprinted with the blood of Meredith.
  • On this mat said bloodstains were left by a bare foot, which had to be excluded as Guede's as he appeared to have worn shoes in the apartment, having left several prints of his shod feet. The print was attributed to Sollecito -- it was believed he had washed in the shower with more water, so as to eliminate any more prints being left, and identified as his thanks to the particular size of his big toe and metasursis. This print was the only one left, which showed the intervention of cleaning since the only traces of blood that remained were nothing more than residual traces from something much greater.
  • Following the enhancement with Luminol, it was shown that Knox, with her feet stained with the victim's blood, had gone into Romanelli's room and left some impressions, some of which are mixed traces of Knox and Kercher (one in the hallway and one, L2, in Romanelli's room). Other tracks were attributable solely to Knox (three in her room, L3, L4, L5) and one attributable to the victim (in Romanelli's room). The presence of Knox traces in Romanelli's room suggested that she was the author of the staging of the break-in, to create the impression that a stranger had entered through the window. It was noted that these tracks were made in diluted blood, which was considered highly demonstrative of the presence of Knox at the time of the cleaning. It appeared the attackers of the poor Englishwoman had placed a blanket over her body, had closed and locked her door with her keys, and had thrown her phones away on via Sperandio at around 12:10 (according to the data of the change of cell tower pings), where the phones were found the next day and handed over to the postal police before the discovery of the murder.
  • At 12:08pm the day of Nov 2, Knox called Meredith's English phone, which was not answered, the poor thing having been dead for several hours already, but not the Italian phone, which led the Massei court to believe the defendant was not really trying to reach her friend and just wanted to make sure the phones had not been discovered.
  • Immediately after this call Knox called Romanelli to tell her what she had seen at the house (a thief had entered through Romanelli's window and ransacked her room), while Sollecito called the police to report a theft, with nothing to report about the closure of Kercher's room and the lack of her response to Knox's phone call.
  • The two defendants say that on the night between Nov 1 and 2, they were together and they used drugs, having both been released from their commitments (Knox, as mentioned, was told not to report to work and Sollecito, who had promised Jovana Popovic a ride to the bus station to collect a delivery had been informed the package was not sent).
  • The accusation by Knox of Lumumba of having committed the murder and sexual violence to the detriment of poor Meredith Kercher was revealed to be false, in the light of recorded conversations between Knox and her mother, during which she expressed regret at having accused him in the memoriale of Nov 6 which she had given to the police.

A Summary of the Hellmann Decision

Knife and Bra Clasp

The court of second instance upheld the conviction for calunia and appointed new genetic experts, with reference to the traces found on the knife, which led to DNA identification although the amount of the trace was less than that deemed sufficient to achieve a reliable (repeatable) result and with reference to the DNA found on the bra hook, overshadowed with the possibility of contamination of the speciment and crime scene, this clasp having been collected on the second search by the police forty-six days after the first. The reason why the court wanted these new evaluations was justified by the fact that DNA identification on two items and its attribution to the two defendants is particularly complex for persons without the scientific background necessary to evaluate it and weigh the technical arguments without the aid of an expert in the field.

As to the traces on the knife (Exhibit 36), the new experts appointed by the court observed that cellular morphological investigations had revealed the presence of cellular material structures they attributed to starch granules. With respect to the genetic investigations, the experts affirmed the correct attribution of Track A to Knox, while Track B, attributed to the victim, was considered an unreliable result. The sample was considered Low Copy Number (a small trace of DNA), and as such should have been treated with the stringent criteria suggested by the scientific community, so it could not be said with certainty that the profile detected on Track B was that of the victim Meredith Kercher, and furthermore one could not rule out that this profile had been the result of contamination phenomena. For this reason Track B was not subjected to further examination, nor was a third human trace, discovered by the assessors on the blade, since this sample too was considered Low Copy Number and thus vulnerable to incorrect amplification. As for the finding on the bra clasp, the conclusion of the appointed experts was that the profile was the result of an erroneous interpretation of the electropherogram of the autosomal STR and Y-chromosome and they furthermore did not exclude that the profile obtained was also derived from environmental contamination, at any stage of the collection or handling of the specimen.

The appeal court therefore considered that the procedures followed by the scientific police were incorrect (or they had incorrectly followed correct procedures), as it appeared they had omitted the quantification phase of Track B (victim). Two amplifications would have shown twice the presence of the same allele, the court stressed, per the advisement of the appointed experts. In the presence of a small amount of material, lower than that recommended by the testing kit, in order to have a good result it is necessary to lower the threshold sensitivity of the machine, which raises the occurrence of stochastic noise that only a comparison of the tallest peaks is appropriate. Since there was no evidence of compliance with the precautions suggested by the scientific community to mitigate the risk of contamination, according to the court, it was not necessary to establish the origin of this supposed contamination. Therefore, the court shared the view of the two assessors, according tho whom the third trace identified by the assessors themselves, was not subjected to analysis since it too was deemed insufficient to allow two separate amplifications, thus avoiding the mistake of amplification committed by the original Scientific Police. The available tests were considered too cutting-edge and therefore of unknown reliability, although Prof. Novelli, consultant for the plaintiffs, testified he is able to obtain results even with very low quantities of material.

The judges felt the knife in question had not been washed since these starch granules had been detected, which were not attributed to the starch in the gloves used by the forensic police, but blood had not been detected, and the presence of Amanda Knox's DNA on the handle was explainable by the fact that she had been to Sollecito's house and probably used it for cooking. The court remarked that a knife can be held in many different ways, but he did not note that Track A had been found on the step that goes from the handle to the blade (the hilt). The clue was therefore not recognized as valuable.

Regarding the hook of the bra, the appeal court believed that the assessors were unable to extract useful DNA from the hook, probably due to degradation of the specimen over time, probably due to poor preservation. The experts therefore based their conclusions on the procedures originally followed, in addition to the belief that the Sollecito profile was definitely present in addition to the victim, but that there is no guarantee that this profile is correct, since if you take into account other peaks in the sample you could arrive at a different conclusion. The mixed nature of the trace was supposed to invoke a different calibration of the device, so that potentially relevant peaks wouldn't be missed. Not to mention that the specimen was collected and analysed only after a month and half after the murder, and approximately one meter from where it was first seen on Nov 2, and the agents had been wearing the same gloves they'd worn when handling other items. It was therefore concluded that the hooks had become contaminated as a result of previous police ingresses into the house, and it was considered likely that the DNA attributed to Sollecito had been transported by others in the room onto the hooks with their hands, or through contact with other objects and clothes in the room. From the fact that they had detected traces of Guede and those of the two on trial now it could not be inferred there had been a cleanup, because the environment was not washed. It was also said an indicative element considered to be unreliable cannot be used as the basis of inferential statistics.

Footprint in the bathmat

As for the print on the bathroom rug, steeped in blood and etched into the shape of a foot, attributed with high probability to Sollecito on the basis of measurements of widths and lengths by the first court, in the court of appeal it was held that the defense's argument that his right foot lacks continuity between the big toe and the forefoot and therefore the distal phalanx ought not to leave a mark on the mat. On this point, given that the forensic police could use the print only for negative comparisons (exclusions) and not positive, the incontrovertible morphological diversity between Sollecito's foot and the dimensional differences highlighted by the defense did not allow the appeal court to share the assessment of probable identity between the two imprints, leading the appeal court to speculate that the foot could have been that of Rudy Guede, since the the shoe prints down the hall are all from the left foot, shod with a running show. The court concluded that this clue, too, was completely without value.

Luminol prints

As regards the traces highlighted by Luminol, the appeal judges felt that even these were the outcome of probable contamination; the generic diagnosis of blood (TMB -ed) had given a negative response due to the inadequacy of the available material being tested, since the test with tetramethylbenzidine is sensitive only in the presence of red blood cells; the track with mixed genetic profiles of Meredith and Amanda appeared only in two cases, while those attributed to Amanda appeared in four others. There would not have been sufficient DNA available to provide a reliable result, concluding that the footprints in question were not significant.

Without useful biological profiles, it was noted that various other substances commonly react to Luminol, so the liklihood that it is attributable to blood was deemed inadequate. The presence of footprints attributed to Amanda was justified on the fact that she lived in the house and was commonly barefoot on the floor. Not only that, but the application of these data was only for negative comparisons and its usefulness was deemed totally lacking for failing to demonstrate that these were impressed with blood.

Bathroom traces

Turning to the blood traces in the small bathroom (on the light switch, on the faucet, on the door, the bidet, the sink, and the cotton swabs), the Court concluded that it was absolutely likely the DNA of the two women could be on the fixtures. In this situation, the collection appeared to have been done by repeated rubbing of the edge to the drain and vise verse (where the collection would have to be point-like), as well as had been seen in the collection videos, thereby creating a mixture that originally did not exist. The data was thus discarded as absolutely irrelevant.

Time of Death

Regarding time of death, the territorial (Hellmann) court believed that the wide span established in the first court had to be reduced, as the reference to the cry heard by the witness Capazelli was not linked to an objective event (the said she went to bed at 9:00, 9;30 and awoke two hours later to visit the washroom, but with good approximation) and because of the extreme ambiguity reported by the witnesses. Monacchia caused the court reservations for the fact that she came forward after a year on the urging of a journalist rather than spontaneously, as well as her imprecision when she said the scream was made "around 11:00."

The judges preferred that Guede, in a chat with a friend, had told the friend that he was in the house around 9:00, 9:30, and also the fact that the victim's cell phone made a brief (nine seconds) connection at 10:13pm, which did not require human interaction, where the last human interaction took place at 9:58, and at 8:56 there was an attempt to call her family (who did not answer). There court therefore held that the young woman could not try calling her family again, due to a sudden event. Therefore, the time of death was placed before 10:13, and this time was further used to discredit the witness Curatolo.

Slander against Lumumba

The appeal court affirmed Knox's guilt on this charge, although without the aggravating circumstance of the slander's connection with the more serious charges against her (murder). The naming of Lumumba as the author of the murder was done to put an end to a tense situation Knox found herself in, having been subjected to stringent and lengthy interrogations.

Curatolo

Antonio Curatolo testified in front of the Hellmann court on March 26 2011, two years after first testifying before the first court that he had seen the two defendants in Piazza Grimana on the evening of the murder. His testimony was considerably diminished by the court, first because of the court's perception his faculties had deteriorated in the intervening time and also for the lifestyle he led. Not only that, but the court noted that the presence of the defendants in the square had been given relative to the time the disco bus departed for the nightclubs, a time span ranging from 11:00 to 11:30, where it had been established that on the evening of Nov 1 no buses were running. The defense, also due to the fact that the witness had been talking of a day of celebration with masks and young people in costume, foreshadowed that the witness had superimposed the memory of Nov 1 with that of Oct 31. The testimony was therefore considered not significant, the court highlighting that the witness added that the next day (following the sighting) he saw the onset of men dressed in all white, because the confusion of the witness had caused him to overlay his memories. Based on his testimony alone, argued the court, the defendants had to be completely cleared.

Quintavalle

With regard to the disposition of Quintavalle, owner of the Conad grocery, the court argued that even if it were true Knox had visited his store early in the morning, even before it opened, waiting to buy cleaning supplies, this was very weak circumstantial evidence against her. It was immediately added that the testimony could not be accepted, since he was questioned by the police immediately after the murder to determine whether the two defendants in the police photograph had purchased detergents from him (having found, in Sollecito's home, two bottles of Ace bleach (with Conad price stickers, -ed) and the investigators finding a strong smell of bleach when they entered Sollecito's home to search), Quintavalle did not report the girl who had been waiting for him to open. Instead he presented himself to investigators at the urging of the above-mentioned journalist saying he was convinced it was Knox because of the color of her eyes and her pale complexion. Therefore the court discarded, a witness who waited to become convinced of the accuracy of his perception as regards the identification of the girl as the defendant. Not only that, but an employee at the store (Marina Kiriboga) had presented her doubt that the girl who appeared that morning was Knox*; the court held that if they could not recognize the defendant in the immediate aftermath of the events, then a year later could be no better.


* N.B., This assistant was also Sollecito's biweekly housekeeper up until his arrest. Kiriboga originally told investigators she did not know anything about the bleach but during a second interview she changed her story claiming she had used the bleach before. When Volturno asked why she said the opposite before Kiriboga explained that she did not remember the bleach and it was only while being interviewed by Sollecito's lawyer that she suddenly remembered it.

Murder Weapon

As regards the murder weapon, the appeal court believed that apart from the genetic investigations, there was no objective evidence that this knife had been used in the commission of the crime. The experts appointed by the investigating magistrate should have found not only the incompatibility of the seized knife with the wounds, the knife blade being 17.5cm long and the wounds at most 8cm deep. The court then held that if they had used the knife, the two defendants would not have returned it to the drawer of the house even if it were part of the rental inventory.

Simulation of the theft

As for the simulation of the burglary, the court of appeal held that it was suggested on the basis of mere guesswork, since nothing precludes a real trespassing. The court recognized the defensive argument that access to the window was helped by a nail in the wall, that it was not impossible to scale the wall without leaving any marks, and added that the launch of the rock from the outside was absolutely feasible, and the darkness of night was no obstacle for the throw, because, among other things, it was not that dark. The dynamics of the launch of the stone and the force of the impact did not necessarily mean that some glass should fall outside, as well as inside the room. Glass was on top of objects, but also under them, per Romanelli's dispostion of July 2, 2009. It was also pointed out that the deposition of Inspector Battistelli, according to whom it was noticed that there was glass on top of the clothes, did not rule out that glass could also be under them. The fact that nothing was taken in the course of the burglary was not considered by the court, probably because the initial intention of theft was abandoned for the violence. Not only that, but the court of appeal hypothesized that there had been an actual entry into the home this way, due to the fact that Guede, used to this type of crime, already had a final judgment against him.

False Alibi

To silence the fact that the falsity of the alibi was evaluated to indicate the guilt of the defendants in the context of other and more significant clues, the appeal court assumed that none of the falsifying elements relied on by the first court proved the alibi false. As for the fact that the two phones were turned off for the night, the appeal court understood this to mean they did not wish to be disturbed for reasons that are easy to understand, and explained the 5:00am music as Sollecito simply awakening and listening to music while he waited to fall asleep again.

Behavior

Lastly, regarding the conduct of the defendants in the aftermath of the murder, the Hellmann court considered it illogical that the cell phone call from Knox to Meredith was made only to ensure that no one had discovered the phones, since doing so would cause the phone to ring and cause them to be found sooner. As in fact happened, Amanda called Romanelli before the arrival of the Postal Police, and participated in the abnormal situation in the home. It was considered completely insubstantial that Sollecito reported to the police that nothing had been stolen. The court explained the different attitude displayed by the defendants and their distance from the trauma as one of the countless and varied ways people might react in the face of of tragic situations.

Appeal Arguments Against Hellmann's Decision

The Prosecutor General of the Court of Appeal of Perugia and the civil parties appealed this decision, and the Knox Defense appealed the remaining conviction for the offence of calunnia.

From Galati

The Prosecutor General has strongly contested the appeal decision, arguing a multitude of errors that follow from errors of method: primarily, the PG criticizes the Hellmann Court of Appeal for having frequently fallen into petitio principii, that is, having taken as proven what actually still needed to be proved, a begging of the question which signifies grave defects of reasoning; then for having fallen into incorrect applications of procedural principles as dictated by Articles 192 paragraph 2, 237, 238 Criminal Procedure Code; and finally for having made obvious misinterpretations of the evidence, ignoring the irremediable conflict between the known facts and their own reconstruction.

Entering into detail, the following grounds have been developed, subdivided into 16 points:

2.1.1 ‐ Violation of procedural law, and in particular of Article 192 paragraph 2 Criminal Procedure Code. PG argues as follows: The Hellmann Court of Appeal did not assess the pieces of circumstantial evidence in a comprehensive fashion; it did not evaluate them in a global and unified dimension, but managed to fragment them by evaluating each one in isolation, in an erroneous legal‐logical analysis, with the goal of criticizing their individual qualitative significance, whereas if the Hellmann Court had followed the interpretative rule of this Court of legitimacy, each piece of circumstantial evidence would have been integrated with the others, determining an unequivocal clarification of each of the established facts, so as to reach the logical proof of the responsibility of the accused. This is because the informative and justifying facts of the conclusions are not contained entirely within the premises [the established facts], but are supplemented by other fact‐finding elements outside of these same premises, since a single element relating to just some of the facts is inevitably ambiguous. Whereas the judges on the merits opined as if each element always had to have an unequivocal meaning, and as if the type of reasoning to follow was deductive. Not only that, but these single items were then incorporated into the cognitive process of decision by isolating just the aspects that could raise doubts and uncertainties, while ignoring other aspects that were rigorously shown in the first instance decision to be anchor points useful for an ex post facto reconstruction.

2.1.2 ‐ Violation of Article 238 Criminal Procedure Code: Galati highlights that Rudy Guede’s definitive conviction was received in evidence, but the second instance court held it to be particularly weak as circumstantial evidence, “given that the proceedings relating to Guede were carried out in an abbreviated trial procedure”, a weakness that was asserted in violation of the principles affirmed by this Court (which recognizes that even a judgment under plea bargaining can be received and evaluated pursuant to Article 238 Criminal Procedure Code), which led the second instance court to not concern itself with the contents of the definitive judgment, even when their observations on the questionability of the first instance decision patently contradicted the received decision, rendering them untenable. On this point, the PG also criticizes the second instance court for a lack of reasoning.

2.1.3 ‐ Non‐observance of Article 237 Criminal Procedure Code: Galati notes that the evaluation of the statement written by Ms Knox was totally ignored, even though this very Court of legitimacy had held it to be usable, as per decision 990/2008 on appeal from the decision of the Court of Review,5 it being a document originating from the accused, written by her for self‐protection. In said handwritten statement, the young woman recounted having sought refuge in the kitchen and having covered her ears with her hands so as not to hear her friend’s screams, and having seen blood on Sollecito’s hand during dinner. According to the Hellmann Court of Appeal, this handwritten statement was not reliable, since it did not represent the real occurrence of events, except that it was then used to justify the calunnia [conviction], in a passage that, according to the Prosecutor General, underscores all the contradictions in the explanation of the judgment.

2.1.4 ‐ Lack of reasoning concerning the order of 18 December 2010 by which the new testing by a panel of experts was arranged, and lack of logic in the reasoning on this point. The decision to renew expert testing during the appeal has a totally exceptional character which requires that the presumption of the completeness of the factual investigation at first instance be overcome. According to to the PG, the Hellmann Court based its decision on the presumption of the particular complexity of the (genetic) subject matter, which suggested that an expert report be ordered, without identifying any gaps in the genetic findings made at first instance, or any subjects that needed to be developed further, or any aspects deserving of further analysis. But it is immediately obvious that, in fact, the Hellmann Court of Appeal appointed an expert panel in order to delegate to others the evaluation of the evidence acquired at first trial, contrary to the prohibition of delegating this evaluation to scientific knowledge; [in doing so] they confused the principle of the judge’s free conviction [belief], which forms the basis of the belief of the First Instance court (which dismissed the analogous request [for an expert review] as per Article 507 Criminal Procedure Code), with a presumption on the part of that court of the power to formulate hypotheses of a purely scientific nature. All the more so given that the second instance court completely ignored the fact that the original tests were made in accordance with the provisions of Article 360 Criminal Procedure Code, without any criticisms having been lodged during the various phases of the operations, and without the suspects or their legal representation having requested a pre‐trial hearing [regarding testing procedures]. According to Galati, no argument was put forth by the Hellman Court to sustain the absolute necessity of the test, even though the report by Dr Stefanoni, head of the biological section of the Scientific Police, formed part of the case file and was fully usable for the purposes of the decision. According to the ex post facto reasoning reported in the statement of reasons, the Court had a priori refused to examine the findings of the Scientific Police which, according to the Hellmann Court of Appeal, did not render it “less ignorant” due to the fact that they had been carried out in the investigation phase, thereby patently confusing evaluation of evidence with actual scientific knowledge.

2.1.5 – The Prosecutor General asserts inconsistency and manifest lack of logic in the reasoning, the failure to obtain a decisive piece of evidence, in reference to the order of 7 September 2011 rejecting the request for a new test. The Hellmann Court rejected the request to supplement the expert report with a test on the quantity of DNA extracted from the new trace swabbed by the expert from the blade of the knife found in Sollecito’s house, near the location where the trace attributable to Ms Kercher was found by the Scientific Police. The task entrusted to the experts comprised new sampling and analysis of any DNA that might be found, but this task was not carried out due to the presumption of it being a case of low copy number, i.e., a very small quantity of DNA. On this point, the Prosecutor General notes that Professor Giuseppe Novelli, a geneticist of indisputable renown, stated that even at the time of the original unrepeatable testing, it was possible to analyse traces of low copy number DNA with reliable results and that it was possible to proceed with the extraction of even minimal quantities of DNA, smaller than the 100 picograms that were available. The discovery of a new trace of human DNA (an unusual finding on the blade of a knife) and the availability of ever more sophisticated instruments should have dictated a new test. The Hellmann Court instead rejected the request, with insufficient reasons that are in patent contradiction with the spirit that animated the [previous] decision to order new testing. The Prosecutor General argues that this rejection is even more unjustified given that the need arose from testing that ought to have been carried through to its conclusion, and also considering the state of technology that, according to Professor Novelli, in 2011 allowed the production of profiles even from just 10 picograms available for testing, for example on human embryos, which requires the highest level of accuracy and precision. Therefore, admitting the new evidence would have obligated the court to also admit the contrary evidence; by not having done so, the court made another clear error of law.

2.1.6 ‐ Violation of Articles 190, 238 para 5, and 495 Criminal Procedure Code, with respect to the order rejecting the Prosecution’s request for a [new] hearing of Luciano Aviello. Aviello was examined on 18 June 2011 at the request of Knox’s Defence, but he subsequently retracted [his statements] before the Public Prosecutor, who then submitted a request for a new hearing that was denied, even though the original statement had been received in evidence, in which [i.e., in the retraction] the convict declared that he learned from Sollecito in prison that it was Amanda who had committed the murder, in the course of an erotic game and also over a question of money, with the knife known as Exhibit 36. Galati argues that the Hellmann Court did not explain the dispensability of the evidence, seeing that, amongst other things, the interview statement was received (and it is not clear how it could have been used); the more so in that the statement made reference to confidences on the part of Sollecito, which could not have been held to be irrelevant for the purposes of the proceedings. Accordingly, the Hellmann Court ran afoul of the aforementioned laws, having evaluated only the retractions contained in Aviello’s declarations but not the new statements concerning the confidences allegedly received from Sollecito, as well as violating Article 511bis, 511 para 2, and 515 Criminal Procedure Code for having arranged the receipt of a statement not preceded by an examination of the party concerned.

2.1.7 – The Prosecutor General argues non‐observance of the principles of law in the evaluation of the witness Quintavalle; lack of logic in the reasoning of the evaluation of the witness’s credibility; his testimony came to be considered as weak, “in itself not suitable to even presumptively prove culpability”, whereas in fact that testimony was used to substantiate the falseness of the alibi. The evaluation of the Court was then followed, according to the Prosecutor General, by an uncritical acceptance of the Defence objections, without even a complete reading of the testimony, given that the witness did not need a year to convince himself that the young woman who showed up at his shop at 7.45 AM on the morning of 2 November 2007 was to be identified as Ms Knox, according to the Prosecutor General; his doubts concerned the usefulness of his information, not the actual identity of the girl, whom in truth he specified as having seen well, having looked at her to greet her at extremely close range (one meter, 70‐80 centimetres). The Prosecutor General asserts that Quintavalle’s recognition, for the rest, was anchored in significant traits, namely her eyes, her skin colour and her face, and not the red coat the accused is said to have never owned. Moreover, Quintavalle’s declarations found confirmation in the statements of the witness Chiriboga, heard in court on 26 June 2009 and never referred to in the second instance judgment, in patent contradiction externally with the first instance judgment as well as internally.

2.1.8 – The Prosecutor General argues inconsistency and lack of logic of the reasoning on the affirmation of unreliability of the witness Curatolo, [noting that] according to the Hellmann Court of Appeal, on rehearing the witness superimposed his memories, repositioning what he saw on 31 October onto the evening of 1 November; [the Hellmann Court] overlooked the fact that on the evening of Oct 31, Ms Knox could not have been seen in the piazza, inasmuch as she was working at Lumumba’s pub Le Chic, which was full of customers for Halloween; Knox herself denied having been in the piazza on the evening of 31 October, and it was also ruled out by the witness Spiridon Gatsios. The PG notes that the Hellmann Court also ignored the fact that on that evening, Sollecito was celebrating the graduation of the boyfriend of the sister of his friend Angelo Cirillo. The PG also notes that the fact that the homeless Curatolo mistook the date of Halloween, stating that it occurred on 1 or 2 November (having associated it with All Souls’ Day), cannot remove relevance from the significant fact that on the day following the encounter with the two, Mr Curatolo recalled the arrival of people dressed in white who looked like Martians, which rendered his report precise in spite of other inaccuracies. The Prosecutor General further argues that the assertion that he was not certain of the identification of the two young people was totally without connection to the real evidence, seeing that no one had ever suggested that Mr Curatolo did not know the two accused, whom he pointed out in court. The Prosecutor General maintains that the express finding by the Hellmann Court of unreliability of the witness was bound to an a priori judgment of a person who habitually consumed heroin (a substance that amongst other things has no repercussions on the mental faculties and on the lucidity of recall), a judgment that was never re‐examined, not even when it was shown that the unfortunate Curatolo had been a key witness in a case of murder of an elderly woman that ended with the definitive conviction of the killer, in the course of whose trial Mr Curatolo gave testimony about the order of significant events in proving the guilt of the accused.

2.1.9 – Galati argues deficiency and manifest lack of logic in the reasoning as to the time of death, unreasonably fixed by the Hellmann Court of Appeal at 10.15 PM, a time earlier than the moment in which a harrowing scream was heard by witnesses, on the basis of information offered by Guede to a friend in a message sent to him, where he admitted to being in via della Pergola around 9.00/9.30 PM. According to the Prosecutor General, no logical explanation was given for the belief that Rudy had lied about his participation in the crime but not about the hour of his presence in via della Pergola, seeing that in order to corroborate his claim of innocence, Guede would have had to indicate that the time of his arrival at via della Pergola was earlier, where he had left traces definitely attributable to him in the bathroom of the house. The finding by Hellmann that the two telephone contacts recorded on the victim’s phone at 9.58 PM and at 10.13 PM occurred at the moment of the attack has no foundation, according to the Prosecutor General, since to justify it the Hellmann Court had to hypothesize that the first contact was a failed attempt to switch off the mobile, which was inexplicably not immediately followed by another. The second contact was supposedly the receipt of a multimedia message, but the explanation is entirely dogmatic; equally conjectural is the fixing of the time of death at 10.15 PM on the sole presumption that had she not been killed, Meredith would have called her parents that evening, even though she had already spoken with both of them on that sad day. Therefore once again, in this passage, the Prosecutor General criticizes the lack of logical rigor in reasoning on the part of the Hellmann Court which, according to the Prosecutor General, yet again makes use of circular reasoning and then is totally illogical in its evaluation of the testimony of the three women in reference to a harrowing scream, around 11.30 PM, justifying the decision to not use this evidence by the simple fact of the ambiguity of the evidence concerning both its significance and its placement in time. But, argues the PG, the statements of the two women who heard the screams are facts referred to by credible and reliable witnesses, recognized as such by the same judgment and therefore having probative value, the more so as Amanda also spoke of this scream in her statement. This modus opinandi is held [by the Prosecutor General] to be inadequate, all the more so considering that the Hellmann Court did not contest the postmortem findings, which initially placed the approximate time of death at around 11.30 PM. Once again, the Hellmann Court fell into circular reasoning and into conclusions unconnected to the available evidence.

2.1.10 ‐ Lack of reasoning, inconsistency and lack of logic of the reasoning concerning the genetic test. According to Galati, the Hellmann Court assumed as axiomatic mere opinions of experts, devoid of scientific value, even when they did not concern the actual interpretation of a scientific phenomenon, but instead a circumstance that could only have an effect on that interpretation if properly demonstrated: this is the case, [asserts the Prosecutor General], for the phenomenon of contamination of evidence that the experts declared possible while carefully avoiding pointing to any justifying reasons, although this contamination formed the basis of their conclusion of absolute nonusability of the genetic profiles. The reasoning of the opinion, building on the experts’ conclusions, was as follows: even if they wanted to adopt the scientific Police’s attribution of the DNA extracted from the two exhibits (knife and clasp), it could not be ruled out that the examined DNA came onto these exhibits, not through contact, but via contamination that may have occurred in any of the phases from collection through laboratory analysis. The non‐exclusion of the occurrence of certain happenings is not equivalent to affirming their actual occurrence, forming yet another logical error whereby, according to the Prosecutor General, even though the Court is not able to actually prove that contamination happened, it assumes this undemonstrated hypothesis as a determining element for declaring the results of the genetic analyses carried out in the course of the investigations to be unreliable, adding that the burden of proof of contamination would fall on the prosecution, which would have had to furnish the impossible positive proof that it didn't happen, even though Professor Novelli had warned that it is not enough to say that a result derives from contamination, but one must demonstrate it and show its origin. The error in reasoning is obvious, according to the PG, in that the burden of proof falls on the one who asserts, not on the one who denies: if the refutation of scientific evidence entails a circumstance of fact which is the contamination of a piece of evidence, then that circumstance must be specifically proved. Nothing was said in the judgment about how the DNA found on the blade of the knife and Sollecito’s DNA on the clasp of the bra worn by Meredith could have been the result of contamination, considering how far apart in time the two tests were carried out [from other tests]. In addition, the negative controls by the biological geneticist from the Scientific Police were represented as not having been done, but turned out in fact to have been done. Nor could the experts indicate any specific source of contamination, limiting themselves instead to asserting that anything is possible. For the rest, the Prosecutor General notes that the same experts instead agreed with the tests that led to the identification of Ms Knox’s trace on the same knife that held traces of the victim; however, if the error is conducive to invalidating the results of the tests, it cannot but invalidate all of them, without distinction.

2.1.11 ‐ Lack of reasoning, inconsistency and lack of logic concerning the analysis of the prints and other traces: including the print made in blood by a bare foot on the bath mat, as well as those enhanced with luminol on the floor of the hallway attributed to the bare feet of the two accused. According to the Prosecutor General, the Hellmann Court completely misrepresented the significance of the conclusions of the expert, Engineer Rinaldi, director of the Prints Section of the Polizia di Stato, showing that it did not properly understand that the limits of the footprint analysis were the same for all of the footprints, given the absence of the minute details that characterize a person’s fingertips and toes and the soles of their feet. But after having criticized the value of the expert report as circumstantial evidence, the Hellmann Court ventured to attribute the print to the bare foot of Guede, hypothesising against all the evidence (which indicated him as shod) that he had perhaps taken a shoe off to wash his foot that was too stained with blood, without contesting anything in the watertight argumentation of the First Instance court, which had disregarded the arguments used by Professor Vinci, technical consultant for the parties, who made use of the Robbins grid to align the prints under comparison, starting from a reference point different from that used by forensic technicians who comply with the specific instructions on the matter found in the literature. As for the prints of bare feet revealed by luminol in the hallway of the house in via della Pergola, the reasoning of the Hellmann Court of Appeal to the effect that the prints would be compatible with prints hypothetically left by the two accused on other occasions was held to be illogical [by the Prosecutor General], given that luminol principally reveals traces of blood, and also that there was no proof that there was any other material sensitive to luminol on the floor; it is disputed that it could be hypothesized that Knox and Sollecito had feet stained with blood on any prior occasion different from that of the murder. Not even the traces recovered in the small bathroom were spared from rejection, for the illogical reason that the blood traces containing Ms Knox’s and Ms Kercher’s DNA were the result of a mixture arising from an error in collection technique by the Scientific Police, who mixed the blood of the victim carried into the bathroom by who knows whom, with other biological material of Amanda Knox deposited prior to the crime. The PG maintains that the argument did not even attempt to justify the singular coincidence of the presence of Amanda’s DNA in all the mixed traces containing the victim’s blood, lacking, amongst other things, the presence of DNA from others which could have explained who had carried in Ms Kercher’s blood, and how.

2.1.12 ‐ Disregarding evidence and lack of logic in the reasoning, and violation of procedural rules, concerning the presence of the accused at the scene of the crime. The Prosecutor General argues that Ms Knox had reported to her friends, who testified on these points, that she was the one who found the body, which was in the wardrobe, that the victim was covered by a quilt, that a foot was sticking out, that they had cut her throat and that there was blood everywhere, circumstances of which she had not been apprised at the time the victim’s door was broken down, since the two accused were indisputably not present then, so that this exact reality as represented cannot but be considered the fruit of a direct awareness of the facts, preceding the time of the breaking down of the door, something which can only be reconciled with the presence of the accused at the time of the deed. Amanda’s behaviour after the discovery of the crime is thus highly indicative, according to the Prosecutor General, but on this point the Hellmann Court of Appeal, with no justification, ruled out the relevance of the post delictum behaviour, asserting that reactions can be many and varied, whereas in fact this matter did not concern emotional reactions, but awareness of facts expressed with alarming precision. Nor could it be ignored, argues Galati, that at 12.47.23 PM on 2 November 2007, Ms Knox telephoned her mother in America where it was three in the morning (before Sollecito phoned his sister at 12.50 and then 112), and that this phone call occurred in the middle of the night in America, before Ms Kercher's body had been discovered; thus it must be noted, according to the Prosecutor General, that the young woman phoned her mother to tell her about the troubled state she was in before the discovery of the body. On this point, concludes the Prosecutor General, which constitutes an aspect of circumstantial evidence examined by the Massei Court, the Hellmann court made no evaluation whatsoever.

2.1.13 – The Prosecutor General argues a lack of logic in the reasoning in relation to Sollecito’s phone call to the Carabinieri on the morning of 2 November 2007, when he stated that there had been no burglary and that nothing had been stolen, whereas to the Postal Police who had turned up unaware to return the lost phones, he stated that they were waiting for the Carabinieri, having reported a burglary. The PG argues that contrary to what the Hellmann Court of Appeal held, Sollecito used the word "furto" [i.e., theft/burglary] correctly, as a synonym for carrying away; Sollecito demonstrated that he had knowledge of the real situation, namely that nothing at all had been carried away from the house, a circumstance that, should have been taken to signify his presence at the scene at the time of the deed.

2.1.14 ‐ Violations of the procedural rules and lack of logic in the reasoning concerning the declarations made by Guede on appeal: Galati holds that contrary to what was presented in the trial papers, the second instance court held the prosecution accountable for the fact that he did not appear, whereas in fact he was summoned but availed himself of the right to not respond, still being charged with a related crime at that moment, a right that he no longer had at second instance since, by that time, the conviction verdict had become a definitive judgment. Therefore, according to the PG, when he came to be heard, Guede did not avail himself of the right to not respond on the position of third parties, but in fact did respond, so the question became that of his reliability. The finding of absolute unreliability of Guede's declarations is incorrect, according to the Prosecutor General, given that Guede never changed his story as to the presence of others at the crime scene, always indicating the current defendants. On the judicial level, the finding of Guede's unreliability based on references to Article 111 paragraph 3 of the Constitution and 526 paragraph 1bis Criminal Procedure Code should have been excluded, argues the Prosecutor General, given that his nonresponse at first instance was justified by Article 210 paragraph 4 Criminal Procedure Code, as he was charged in a connected trial, whereas Article 197 paragraph 4bis Criminal Procedure Code did not obligate him to testify on appeal about facts on which a conviction had been handed down concerning him, seeing that he had denied his guilt or had not made declarations, so that in fact he was availing himself of the rights allowed him by law, and basing a finding of unreliability on that exercise of a right constitutes an error of law. The PG argues that Guede made the declarations he was able to make, answering questions on the contents of the letter sent to the television station in which he indicated the two accused as being present at the crime scene and as the perpetrators of the crime; confirmation on this point came from Ms Knox’s handwritten statement in which she placed herself in via della Pergola when Meredith was killed. The reasoning followed by the second instance court, according to which the fact that Guede did not mention the two accused in the Skype chat that he had with his friend Benedetti, in which he admitted to finding himself in the house in question at 9.00/9.30 PM, proves that the two were not present, totally lacks a logical basis, according to the Prosecutor General, since during this chat Guede in fact had no intention of giving a true account of events, rather seeking to pre‐emptively admit his presence (which he could not deny) in the house at via della Pergola.

2.1.15 ‐ Lack of reasoning and manifest illogicality of the finding of non‐existence of the staging of a crime: the Prosecutor General argues that the acquittal of the two defendants of the offence of staging, according to the formula "the fact did not occur," did not follow from a negative assessment of their penal responsibility, but was instead the consequence of the paradoxical recognition of the responsibility of Guede, who was not charged in the present trial, for having committed the attempted burglary. However, Guede was convicted definitively with the decision received pursuant to Article 238bis Criminal Procedure Code for, among other things, the crime of aggravated murder, but not for staging a crime; this staging was admitted as fact in the judgment of Guede, but deemed attributable to the co‐offenders in the crime. Galati asserts that the arguments put forward by the Hellmann Court of Appeal are not strong enough to overturn the thesis maintained at the first trial, which adheres to available facts, because they do not show how the burglar could have thought of climbing up at night without a ladder, or how the absence of traces could be explained considering that the climb would have had to occur twice, the first time to open the shutters and the second after throwing the rock, or how it could be explained that the pieces of broken glass were all found inside the house and did not obstruct the climber’s entry, which left no traces of blood on the sill. The Prosecutor General notes that if the burglar had truly broken the window before entering, it is not obvious how the glass could also have been found on top of the clothes. The PG further asks how all this could have happened while Ms Kercher was still awake, how the burglar could have gone to all this effort without taking anything except for her phones, after having been seized by a homicidal frenzy following a violent attack with a sexual component, [stating that] the alternative hypotheses formulated by the Hellmann Court would have to have been proven by inductive reasoning, whereas in fact not only were they not placed under logical scrutiny and verified against the findings of the trial, but they were taken as certainties, from which arose fallacious consequences regarding the initial hypothesis, via totally censurable circular reasoning.

2.1.16 ‐ Inconsistency and manifest lack of logic in the reasoning concerning the failure to recognize an aggravating circumstance in the aims underlying the confirmed offence of calunnia. Galati argues as follows: In upholding the offence of calunnia as charged against Ms Knox, the second instance court ruled out any link with the murder. It was not explained on what basis the court had inferred that the young woman had been stressed by the interviewers and that therefore she had committed the calunnia to "free" herself from the questions of the investigators, seeing that none of the young people who were living in that house, none of Ms Kercher's friends, and many others in the days immediately following the murder, all of whom were summoned and interrogated, had the insane idea of committing a calunnia to free themselves from the weight of the unpleasant situation. It must be considered, argues Galati, that it was Ms Knox who went-- by choice-– to the police station to accompany Sollecito; that what the Hellman Court of Appeal calls interrogations were none other than preliminary investigation interviews [with the Judicial Police], to which the young woman was subjected without any coercion whatsoever; the naming of Lumumba was absolutely not suggested by the police, who merely asked Ms Knox whether she had replied to the message that he had sent her, that her phone showed she had received, and to the young woman’s negative response it was put to her that her telephone showed that a reply was in fact given. Galati states that nothing came to light about Lumumba until the hapless girl said his name while knowing him to be innocent and argues that this knowledge of his innocence could only be born of the fact that she was aware of the perpetrators of the crime for having directly participated in it, whereas the Hellmann Court of Appeal justified its conclusion by asserting that Ms Knox knew of Lumumba’s innocence because the lack of contact between he and Meredith made her able to be certain that Lumumba had nothing to do with the murder, even if she herself were actually innocent and far from the house in via della Pergola. The Prosecutor General argues that, apart from being fallacious in itself, this reasoning does not take into account the contrary facts, namely that it was through Ms Kercher that Ms Knox and Mr Lumumba became acquainted, thus demonstrating the inconsistency.

From the Civil Parties (Kercher family)

2.2 ‐ The civil parties, Stephanie Arline Lara Kercher (sister of the victim) through counsellor Vieri Enrico Fabiani; Arline Carol Mary Kercher (mother of the victim) through counsellor Francesco Maresca; John Ashley Kercher and Lyle Kercher (brothers of the victim), as well as John Leslie Kercher (father of the victim), with four separate submissions, all under the signature of counsellor Maresca, submitted appeals arguing totally superimposable grounds which can be conjointly reported in less detail, considering that in large part they repeat the arguments developed more fully in the appeal of the Prosecutor General of Perugia.

2.2.1 ‐ Lack of reasoning in the order of 18.12.2010, inconsistency and manifest lack of logic with which a new test was arranged on appeal: According to the lawyers for the civil parties, the sole reason supplied in the decision to renew [part of the] evidence gathering phase was the scientific difficulty of the assessment, without detailing any gaps in the previous tests carried out.

2.2.2 ‐ Manifest lack of logic and inconsistency in the reasoning in reference to the application of Article 360 Criminal Procedure Code, in relation to Article 192 Criminal Procedure Code. According to the lawyers for the civil parties, the second instance court undervalued the fact that the tests carried out took place during the preliminary investigation of which the Defense was notified and had the right to attend, that at the time of those tests there were no objections concerning the sampling and laboratory activity, nor was a pre‐trial hearing requested regarding the testing, all of which proves agreement with the laboratory procedures. Not only that, but the court upheld the need to reopen the testing in order to resolve the conflicting positions of the various experts, whereas on certain other matters of a scientific nature, the court, with no expert guidance, used scientific arguments from the experts for the Defense without giving any reason for this choice. The uncertainty they showed should have pushed the court to look for "expert certainty" for the examination of all the exhibits used at Massei in support of the guilty verdict, without effecting a discretional separation and graduation of facts amongst them, as if they did not all have the same evidential value. The well‐organized investigations carried out by the Massei Court contrast with the illogical and inconsistent evaluations in the second instance judgment with respect to the bathmat print, the prints recovered with luminol, the prints with no biological profile and the ones made in blood, for all of these aspects the reasons for overturning the decision of the first instance judgment were never adequately explained.

2.2.3 ‐ Manifest lack of logic and inconsistency in the reasoning in reference to the use of the principle of reasonable doubt in sustaining the order of 18.12.2010. According to the lawyers for the Civil Parties, the verdict of conviction beyond a reasonable doubt could have been reached even after the outcome of the expert report arranged for in the second instance trial, inasmuch as the examination of the circumstantial evidence ought to have been global and consistent, the hypothetical defect of any one of these being acceptable, provided that the remaining elements were-– as they ought to have been deemed-– sufficient to reach the required level of certainty, since what is asked of isolated elements of proof being evaluated is that they display the credentials of correspondence with real events, at least with predominant probability. Proof of guilt beyond reasonable doubt can rest on items of circumstantial evidence that are not all equally certain, that is, not all established with the same level of probability.

2.2.4 ‐ Lack of reasoning of the order of 7.9.2011 rejecting a new test requested by the prosecution, inconsistency and manifest lack of logic of the judgment on this point. The lawyers for the civil parties argue that the Court rejected the request for testing of the new trace on the knife obtained by the experts Vecchiotti and Conti on the basis of a scientific judgment (scarcity of the sample), in flagrant conflict with the initial task of investigation entrusted to them, and above all detached from facts concerning recent improvements in the technical instruments used for such tests.

2.2.5 ‐ Inconsistency in the reasoning of the orders issued on the dates 18.12.2010 and 22.1.2011, inconsistency and manifest lack of logic in the judgment on this point, according to the lawyers for the Civil Parties, concerning the acquisition of documentation which is to be attached to the appeal case file, since any evaluation whatsoever as to its importance was omitted, in violation of Article 603 Criminal Procedure Code, for example, concerning the expert report on Sollecito’s computer. In fact, since these were, for the most part, reports of defense investigations carried out after the first instance decision, they should have been deposited in the file pursuant to Article 433 Criminal Procedure Code, since the possible acquisition of [such] documents into the case files can be done only with the agreement of the parties concerned; thus the acquisition of these documents was made in violation of the rules governing usability of the documents.

Additional Defence Submissions

Legal Conclusions

Pg 38 of the original

The appeals of the Prosecutor General and those of the civil parties are reasonable and should be accepted, as has been requested by the Attorney General at the hearing. In reference to the appeals of the Kercher family, that the defenses of the defendants referred to as filed on 17 February 2012, requesting that the Kercher appeals be declared more or less inadmissible, it must be said that at the bottom of the contested (Hellmann) judgment reads that the date of filing the appeal is 14 February 2012. The lawyer Maresca, defender of the victim's family, showed at the 25 March 2013 hearing the accuracy of the paper records, producing a copy the documents filed with the Registry of the Court of Florence pursuant to article 582 of the Criminal Procedure Code. The appeal filed on behalf of the Kercher family must therefore be declared admissible.

The appeal filed by Amanda Knox in relation to the sentence imposed on her for calunnia against Diya Patrick Lumumba, must be rejected. Below the reasons are developed, preceded by a brief introduction, which lead to these decisions.


Background on the limits of the power of judicial review of this court

1.1 - The collection (body) of evidence collected and processed in the two sets of proceedings on the murder of the young British student is undoubtedly circumstantial in nature -- since no one directly saw or recorded it, there is no descritpion of how the crime was carried out. This does not mean that so-called circumstantial evidence is weaker than direct evidence, because evidence is qualified by its content and degree of accuracy. What matters is the logical procedure, through which, from certain premises, affirms the existence of additional facts "to the standard of rules of probability with reference to a possible, likely connection of events, whose sequence and recurrence can be verified according to the rules of common experience" (section 1 civ. 13.11.1996, no 9961) [Sez. Un. Civ. 13.11.1996, n.9961]: as has been cited in a recent ruling of this Court (section 1, 20.12.2011, no 47250), article 192 c2 introduced the civil trial standard regarding those elements which cannot be recognised as having the same persuasive value as evidence.

Living law has developed strong valuation parameters in terms of absolute uniformity of adversarial procedure, which they send to the trial court to make a double operation: First, he is obliged to proceed with the evaluation of the piece of evidence on its own to establish its probative value. Second, it is necessary to take a global view of all the pieces of evidence, in order to determine whether the margins of ambiguity possessed by each one (if there were absolutely no ambiguities we would be dealing with proof instead of evidence) can be overcome by collating them into a single unified view so as to allow the attribution of the crime to the person(s) accused, on the basis of the totality of facts which, fitting the pieces together without gaps or leaps or logic, necessarily allow no other conclusion. (section 1, 9.6.2010, no 30448, section 1, 4.2.1992, no 6682).

1.2 - The purview of this Court on the logical process followed that allows us to come to the judgment of attribution of the crime with the use of inferences or rules of experience consists requires consideration of whether the lower court considered all the relevant information present in the file, thus respecting the rule of completeness, whether the conclusions reached can be said to be consistent with the evidence acquired, and whether these conclusions are themselves founded on inferential criteria and logical deductions that are above criticism from the perspective of respecting the principles of non-contradiction and of logical consistency. The object of the Supreme Court judges' scrutiny is therefore the probative reasoning, and accordingly, the methods used to assess the evidence, the higher court being disallowed from evaluating the clues directly. It has been underlined by article 606, c 1, letter e of the Criminal Procedure Code that the court is precluded from re-evaluation of the evidence but it is not hampered in any way to verify if the assessment of that evidence followed logical criteria "whether, that is, the criteria of inference used by the court judge can be held to be plausible, or whether different ones can be allowed, capable of leading to different solutions which are equally plausible" (Section IV , 12.11.2009 , n. 48320)

It has been said that this evaluative task had already been entrusted to the Supreme Court prior to its codification in sec. e of art 606 of the CPC, when the flaw of misinterpretation of evidence was placed under the category of a faulty explanation (motivation). Under this construct the Court may assess the trial records's explanatory value if the evidence evaluated undermines the conclusion reached.

1.3 - Therefore, following these valuation parameters and in strict compliance with the route market by legislation and which does not allow tresspassing, this Court has conducted its examination of the multiple violations (in Hellmann) raised by the PG and the Civil Parties, and has reached the firm conclusion that the Hellmann judgement suffers from an incorrect assessment of all the available evidence, having inadequately connected these pieces of evidence, having drawn conclusions sometimes contradicted by the evidence, in open violation of the principle that an assessment cannot be complete if it is self-contradictory or shows that the court has overlooked signficant findings by the first court, without adequate justification for having done so. In addition, the contested judgment presents a fragmented and atomistic evaluation of the evidence, considered one-by-one and rejected in their potential demonstration of something larger, without a broader and more complete evaluative phase. The parcelling-out (compartmentalization) of the individual elements weakened their value, since this action was inevitably followed with a disjointed evaluation of these items, ignoring the increased value these items assume when evaluated in concert with each other.

This lack of a comprehensive examination prevented the gaps inherent in circumstantial evidence from being filled by other elements and thus overcoming the limitations of any one item alone to demonstrate, by itself, the existence of a fact, since the set taken together under rigorous logical methodology, can take on a meaningful and unambiguous demonstrative meaning that is as valuable as direct proof.

The Sentencing of Knox for Criminal Slander

Pg 41 of the original

The conviction of Knox for the crime of slander to the detriment of Diya Patrick Lumumba has been the subject of complaints from both Knox's defense and by the Attorney General, who objected to the exclusion of aggravation for its connection to the murder and also the lack of recognition for the calunnia's intent to mislead the investigation away from the real perpetrators of the act.

The judgments of the first and second instance trials converge on this one fact, that the young American, subjected to stringent requests for information by the investigators in the days following the violence, because she loomed as the only person with a key to the apartment who was present in Perugia on the evening of the facts (excluding the victim), unfairly blamed Patrick Lumumba for the crime of murder and the violence against Kercher.

The overlay goes, assessment on this one point is due to the strength of the probative nature of the document, given that the accusation was wrapped in the memorial (letter to police) written 6 November 2007 (after her arrest) in which Knox wrote that she saw Patrick as the murderer, and in the the minutes of the spontaneous declarations she made a few hours before in which he indicated Lumumba as the author of the murder. The incident (accusation) occurred after Knox denied having responded to a text from Lumumba telling her not to come to work that evening, and when her response was shown to her, she had an emotional breakdown and formulated the false accusation. That Knox was perfectly aware of his innocence emerged in a recorded conversation with her mother on 10 November 2007, which makes clear that the investigators did not lead her to accuse him, further evidenced by her expression of strong remorse for having done it. According to the judges of first instance, because Knox had no personal reason to accuse Lumumba, it must be held that the accusation is attributable to a commodus discessus (Latin, "easy going away" or "comfortable retreat") undertaken to ward off suspicion and stop further investigation into herself or Sollecito.

In the court of appeal, instead, the name of Lumumba was fed to investigators in a moment of unbearable emotional pressure caused by the extreme insistence and forcing by the police in order to obtain for themselves more information for the investigation. In the opinion of the Hellmann court, if only Knox had been found in the cottage at the time of the murder, the easiest way to defend herself would be to accuse someone else of having done the deed. Therefore, according to Hellmann, even if the stressful situation were ruled out as a cause of the accusation and self-incrimination, Knox, knowing Lumumba and Kercher were strangers to one another, did not need to be present for the murder to know Lumumba to be innocent. The slander was not elevated to an element of the larger indictment for murder, it being instead considered in complete isolation from it, much less as a result of an overall assessment of the evidence available within easy reach.


2.2 In refutation of the grounds for appeal filed by the Knox defense, which was based on an interpretation of article 64 of the Criminal Procedure Code (summarized below, -ed), that Knox was not advised her words could be used against her and as a consequence should not be charged with slander of another.

Sec 64 Addresses Self-incrimination

The indagato, when interrogated, must be free of all undue influence, both psychological and physical. He must be willing to provide information (animus confitendi). The police or the prosecutor cannot use on the indagato any methods or techniques that may influence his right to self-determination or alter his memory or his capability to evaluate facts. This prohibition applies even if it was the indagato who asked that these methods or techniques were used. Before the interrogation begins, the indagato must be informed that his statements can be used against him in court; that he can choose not to answer the question, but that the investigations will proceed nonetheless; that, if he provides information concerning someone else's criminal responsibility, he will assume, as far as this responsibility is concerned, the office of witness.

The extremes of crime of slander were considered useful by both courts on its merits, because the offense of slander applies to false accusations made both to deflect suspicion away from oneself, and also done for no personal gain but to nevertheless establish the liability of someone else while knowing them to be innocent. (All that is required for the charge is knowledge that the accusation is wrong.)

The objective data is therefore absolutely irrefutable, as has been opined in both sets of the proceedings, where the subjective argument was made that the young woman named Lumumba just to escape a situation of extreme stress caused by the intemperance and zeal of the investigators, is without foundation, since, as noted, this indication of Lumumba held steady after the first statement and was reiterated in the memoriale, written in solitude and a length of time after the first reaction in the wake of a growing call by the police for a name. Knox, although young, was mature, with an adequate cultural understanding and was born and raised in the United States, where the law also does not permit a person to freely accuse others of crimes just to rid himself of an awkward situation. Thus, even after a first, albeit long moment of confusion, amnesia, confusion again, to regain control of herself and understand the gravity of the conduct she was engaging in, at least in the days following could have reported to the investigators she has put them on a false trail, with the support of a lawyer since in the meantime she had come to be investigated herself.

Knox's criminal attitude (discovered only after the recorded conversation with her mother) marks a clear divergence from a behavior to be interpreted in terms of collaboration or cooperation with the police or as the defense, given that the right of defense does not extend all the way to involving the innocent, who, it should be recalled, suffered a period of imprisonment on the basis of these false accusations. It has been said, regarding the relationship between the right of defense and the slanderous accusations in the course of the proceedings brought against her, that even lying (if the truth is unfavorable) is permissible, but when one goes beyond the strict functional relationship between refutation of the charges against her and takes the initiative to involve other parties she knows to be innocent, the mere exercise of the right to defend oneself has been far exceeded at the expense of another. The elements of the crime of slander are thus met.

In actuality, this court could only weigh in the treatment of sanctions that have been appropriately compared to the gravity of the offense, with the motivation supported logically on this point. The defense appeal must be rejected: The reliefs advanced in the appeal, according to which the AG, asking for annulment of the judgment "on all points," would have acceded to the requests of the Knox defense, regarding annulment on the charge of slander. This argument has no value, because the AG had to invest this court with a request for an annulment of the slander conviction, but instead only argued against its exclusion of aggravation in a criticism of the appeal court's logic, which would confine argument to the low rank of a detail, insignificant in the reconstruction of the facts of blood.


2.3 The complainant AG are based, not only with regard to the isolated assessment of the data, but because the discourse of justification of rules in inference suffers from being very weak, a failure to consider all the evidence and inadequate inductive logic. First it must be said that as noted by the AG, the judges of second degree have neglected at least a couple of inputs, the evaluation of which would not have allowed them to come to the conclusion they did. This is the content of the conversation between Knox and her mother in which the same Knox, though she was being said to have been forced by the investigator, told of the condition of solitude in which she wrote the memoriale, entirely different circumstances from those considered by the appeal court. Second, the claimed missing connections between Lumumba and Meredith appeared disconnected from procedural findings and in particular from the indications of the same Lumumba, who was introduced to Kercher by Knox. It is therefore manifestly illogical, the passage in the judgment in which it is said that Knox, although distant from the crime and therefore unaware of the identity of the killers, knew Lumumba to be innocent because she knew he did not know Kercher. The argument, as well as the inference, are very weak and in contrast with the information gathered, and not adequate to overcome the degree of reasonableness of the first instance judgment that more plausibly connected the slander with a desire to misdirect the authorities.

Not only that, but the discourse of justification embarks on conjectural drift arguing that it was easy to build a story around the name Lumumba by drawing on features reported in the newspapers, a statement that is, among other things, made without engaging facts, because the name of Lumumba was not circulated in the media until after Knox's short-sighted inclusion of him, to the detriment of both of them. Even more illogical is the passage of the judgment where it was written, to exclude Knox's presence in Via della Pergola at the time of the offense and to justify the release of any name out of her mouth that "in the event that she had been inside the house at the time of the murder, the easiest way to defend herself would have been to indicate the true author of the crime." This approach reveals a totally inadequate assessment of the facts, and overlooks that educated guesses had to be made with regard to the fact that the lie could aim investigators away from the defendant, holder of the keys to place where the crime was committed. The complaint by the Attorney General is correct regarding the construction of assumptions that are pure speculation, on the contradictory nature of the fractures in reasoning, and evidence on a crucial point in the economy of reconstruction attendance at Via della Pergola, ie on the finalization of the act of slander.

The reasons for the judgment regarding a correlation between the fact of slander and the more serious crime of murder and then denies the teleological relationship between them is manifestly illogical and should be reformulated within the parameters of greater plausibility and greater adherence to the information flows, having missed a critical analysis about the plausibility of the connection made and supported by the first instance judges. The passage is fundamental to the economy of reconstruction, because far from being irrelevant the presence of the the young people inside the house at the time of the act of violence shines a bright light on the development and protagonists of the horrible crime.

The Simulation of the Theft

The Attorney General (Galati) has complained about the merits of the reconstruction made by the Assize Court of Appeal (Hellmann) on the facts found during the crime scene site inspection, wherein he (Hellmann) argued, using facts interwoven with conjectures, that there was no reliable evidence on which to base that the theft was staged, and, relying on Guede's guilty verdict for murder, ruled Guede was guilty of the theft as well even though that same ruling deemed the theft to be simulated.

According to the court of first instance (Massei), Guede had no interest in simulating a theft (and was not convicted of either a theft or a simulation), while the students who lived there would have such an interest in diverting suspicion from themselves, given that no forced entry was detected and only the residents had keys. The simulation of the offense was deemed to exist on a set of data, demonstrated with high aptitude and built upon a valid inferential basis, under which followed a logical dissertation which is anchored as follows:


1. The fact that nothing was missing from Romanelli's room that had been targeted (not even the camera or laptop);

2. The fact that there was no evidence of climbing up the exterior wall of the house, a distance from ground to window of 3.5 metres/14 feet, which would be expected to leave traces of the mud and grass below;

3. The fact that there were no traces the blood on the windowsill of the climber who would have to cling between pieces of glass to sneak inside the room;

4. The fact that the glass shards were distributed only on the interior of the room, not outside the window or on the ground, a sign that it had been broken from the inside with the shutters closed to form a shield and contain the glass fragments within;

5. The fact that the pieces were scattered on top of the clothes and objects that would have been ransacked by the thief, which showed that the ransacking had occurred before the glass break;

6. The fact that the noise of the rock, presumably launched from the ground, did not concern or rouse Kercher to investigate or leave the house for help before being attacked (the same inference being true of the elapsed time between the two operations at the window and the success of a climb).


The analytical dissertation of the first judges, just to light of these insights into the improbability of the dynamics of ingression into the house through the window, not only for the labor required but also the noise level which would attract the attention of people on the street, was entirely overlooked by Hellmann in seeking to attribute to Guede the interest in simulating a theft.


3.2 According to the path followed by Hellmann, the interest in simulation would apply only to Guede following the violence, failing to consider the data acquired. The judgment condemns Guede but is contradicted by the traces of his shoe prints which form an undeviating path from the room of the poor victim to the outside of the house and do not go into Romanelli's room. Therefore, the Hellmann ruling on this point openly collides with objective data contained in this process, who reject that argument that Guede had an interest in staging a theft, already lacking in logic.

The Hellmann court recalls that Guede had previously violated homes and embarks on conjectural drift by assuming he accumulated experience in climbing such tall walls or throwing 10 lb rocks for breaking windows, which has no dignity in a discourse of a justification meant to be pegged to the objective evidence that has emerged.

It shows multiple fractures of logic: even if it were assumed that the thief had made the first ascent to open the shutters just pushed together then was always in the dark to find a rock and return to throw the 10-pound object into the room, it can still not be neglected the findings of the first instance court that this still does not answer for the lack of debris outside, the glass arranged neatly on the windowsill, the difficult access to the house itself, how this long operation escaped Meredith's notice, or the presence of shards on top of the clothing. These joints of argument are again totally neglected, the Hellmann court instead pinning its reasoning on the personality of Guede, which does not constitute solid inferential reasoning. All the Hellmann court gives to prove the break-in, despite all of this, is the fact that a small piece of glass was found at the foot of the victim.

Symptomatic of the incomplete assessment of some facts and then the enhancement of others is fact that after almost two months, Rudy had been found with wounds on his right hand compatible with the breaking of windows, since it would only gain meaning if they had deducted traces of his blood on Romanelli's window, a fact that was not recorded and because it had been denied by Guede's friends who had seen his hands following 2 November (before his flight to Germany) that they did not see any injuries, as written in his judgement. This too is ignored by the appeal court.


3.3 Clearly the manifest illogicality of the appeal court plays a significant role in its reconstruction of the facts, either because of an incomplete reading of the facts, the misapplication of inferential reasoning, or by leveraging the fact that Guede had already been convicted of the murder (again ignoring that this judgement recognizes other authors of the crime) in contradiction of procedural principles. Once again, the judgement reflects a fragmented vision, whereas if the tiles of the mosaic had been made to connect with each other, they would provide a more complete evaluation. The simulation of the theft should have been assessed in light of the investigative data collected, such as the shoe prints of Guede (in the path of escape from the house) in the victim's blood, found in many other places such as the bathroom she shared with Knox, the transport of which was most certainly carried out by third parties after the blood had been spilled.

Even on that point an indispensable method of judging is based on criteria different from that; adopted by integrating the profile in question the decisive evidence of the presence in the house of other subjects, as well as Rudy Guede. Even more so that the first instance (Massei) judgement had carefully assessed the offerings of the defense that Guede had entered through the window, rejected it after giving analytical account and finding this theory inadequate.

Testimony of Curatolo, the man in the square

The appellate courts have ruled credible the testimony of Antonio Curatolo that in the reconstruction of the Massei court his testimony was used as the basis for proving the defendants' alibi false, and this was one of the pieces of the puzzle. In this respect, and remember the Massei court had held, by correct reasoning from the point of view of the logic of law, that a false alibi is taken as a strong hint and considered in relation with the other tested elements in the context of the overall probative results.

Hellmann's method of analysis of this testimony, as pointed out by the Attorney General (applicant, Galati), is absolutely reprehensible, as manifest failure of the assumption of a thorough examination of the data and circumstances, so that the end-- taken as to whether the witness had been mistaken in indicating the two accused as present in Grimana square the evening of 31 October and not 1 November-- collides with the acquired data that contrast with the apodictic taken seriously, so as to manifest itself in all its evidence of the merits' charge of inconsistency and therefore manifest illogicality of the discourse of justification (it was in fact demonstrated by others that on the evening of 31 October neither Knox or Sollecito were there, Knox at Lumumba's bar and Sollecito at a graduation dinner, and thus both were far away on 31 October. The claim by Hellmann that Curatolo's sighting could have been on 31 October and not 1 November (the night prior to the arrival of the forensic police), is taken out of context and is a manifestly illogical statement, because it conflicts with data which establishes unequivocally that they were far away on 31 October and thus the impossibility of this hypothesis is demonstrated.

Starting from the need to untie the knot of contradictions that the testimony presented, that Curatolo had seen them in the square the night before the arrival of the Scientific Police, the court of appeal (Hellmann) after hearing the witness years later and finding this witness mistakenly thought Halloween is on the night between 1 and 2 November, had heard Curatolo reiterate fixing the sighting against the subsequent arrival of the postal police after noon the next day, nevertheless concluded that the testimony could not be implemented, due to the decay of the mental faculties of the man in the intervening years.

Again, the line of argument is manifestly illogical, since the evaluation of the testimony was correlated (regardless of its conclusions then, being into question the method of valuation) for the sole purpose of secure date reliability (the presence of the defendants in the square 11:00pm or midnight the night before the arrival of the postal police in white coveralls, itself a unique and memorable circumstance), but rejected on the basis of the decline of the witness's mental faculties, done by Hellmann without demonstrating the scientific basis for this evaluation or what bearing it has on the testimony which matched that what he testified before Massei at the first instance.

The fact that it was a homeless man who was stationed in the square all day did not lead Hellmann to support the reliability of his testimony, who furthermore ignored the witness's certainty and seriousness that he had seen what he claimed. Rather, Hellmann rejected the testimony, because the witness overlapped 31 October and 1 November, ignoring that a sighting on 31 October was impossible.

Testimony of Quintavalle, the shop keeper

Even on the testimony of Quintavalle, which was heard by Massei on 21 March 2009, the Hellmann motivation is vitiated by manifest illogicality, as claimed by the applicants (Galati), since the information flows have not been correctly transposed by the Hellmann judges, so integrated a manifest incompleteness, with consequences in terms of manifest unreasonableness of the response on the motivational point. Meanwhile, the inference rule used by the appeal judges shows all his problems, only if it is considered that the Hellmann court had to preface that the data that Knox had shown up at Quintavalle's shop in the early morning following the violence to buy detergents, even if proved, did not have any significance.

The point must be emphasised that the establishment of this fact would have crumbled the alibi (as regards the alleged continuous presence of Knox and Sollecito at Sollecito's home until late morning), and that they would have a particularly urgent need for cleaning supplies that day is not *in itself* significant, but gains significance in the context of the other pieces of the puzzle.

What's more serious is that the Hellmann court completely misrepresents how this information came to light and based its assessment on this misrepresented circumstance rather than the fact itself. The Hellmann courts bases its assessment on the fact that Quintavalle, who came forward after a year at the urging of a journalist, used all this time to convince himself of the accuracy of his perceptions and identification of Knox as the young woman he had seen that morning waiting for his store to open, who anyway, Hellmann argues, he saw at an angle and from far away. In so doing Hellmann ignores the clarity with which Quintavalle was able to describe the woman, seen from the front and only 70 - 80 cm away: clear blue eyes, pale skin, a tired expression. Not only that, but the witness had to clarify that the photos in the newspapers did not show Knox's eye color, which he was certain of upon seeing her in person in the courtroom.

The court's acquisition of this information is absolutely biased, only to misrepresent the evidence to make it appear uncertain, where the witness had to explain the reasons for his doubts and the evolution of his belief in terms of certainty.

As noted by the applicants (Galati) the Hellmann passage on this point assumed importance in the economy of reconstruction and demanded a motivation which leverages examination of all the multiple steps of the witness, whereas they were enhanced with an unacceptable selection procedure, just a few steps deemed more suitable to a conclusion which should have been rigorously demonstrated, incurring so once again in a vice of manifest unreasonableness, the evidence showed, it is not under the pretense of re-evaluation of the test, obviously inhibited here, as rightly pointed out by the defense of the accused, but the relief of a habit of macroscopic evidence consisted in the intolerable cleavage between what the witness said and how this is implemented in a justification, on a point of such importance, such as an alibi.

On this point, the new trial shall be conducted in light of the above considerations.

The Court's Non-Development of Knox's Memoriales

The Attorney General is correct on the point of the appeal court's non-exploitation of Knox's memoriale, written in English and attached to the documents of the appeal, already evaluated by this court (Cassation) in judgement #990/2008, in the case of a document originated by the accused, as its spontaneous author, for defensive purposes, in a moment of solitude (and thus after the pressure suffered at the hands of the investigators).

In this text the young woman, albeit unintentionally, clarifies to herself and to others the sequence of her actions on the night of the murder ("maybe I read and wrote emails, maybe I studied, perhaps I made love with Sollecito...") admitting only that she had smoked marijuana, had taken a shower with Sollecito and had a very late dinner, then placing in a stance more dreamlike than real, wrote of seeing herself curled up in the kitchen with her hands over her ears and hearing Meredith shouting, even though this appeared unreal, like a dream, and she was not sure what appeared to really happen. She added, cryptically, the fact that she saw blood on the hands of Sollecito, but had the impression this was blood from the fish they'd cooked for dinner. Her presence for the scream and the blood on Sollecito, represented as cooked fish, are accurate external data in a sequence not explainable, if not in terms of clarification and an attempt at admitting her presence in the house, which was confirmed with the specification to have also met Patrick (who she again slandered, this time while being of peaceful mind) by the gate of the house. The same Knox concluded her letter by saying she "doesn't remember for sure" if she was at the house that night.

And while it is true that reflections of doubt are evident, it is also true these statements could not be dismissed as Hellmann has on the assumption they were the result of psychological pressure or manipulation, primarily because this letter was written during complete solitude and because it's the court relies upon this same letter to assume Knox's capacity for consent and thus forms the basis of his conviction of Knox for slander (as well on the basis of what is narrated once again in full autonomy and again away from urgent interventions, to her mother).

And then a point on the apparent blatant contradiction in the assessment of the same test, which raises discussion of the structural coherence of the decision: even in this respect the court will have to form a new lawsuit, with greater consistency of argument, since in this case of a passage significant justification arguments, relating the presence or absence of the young woman at her home at the time of the incident.

Hellmann's Failure to Consider The Findings of Cassation in the related trial of Rudy Guede

The grievance is advanced, as the vice of legal violations found in the passage of judgment against Guede for his silence before the Hellmann court. As correctly pointed out by the public appellant (Galati), Guede at the time was still a defendant in the process (his conviction having not yet been made final), which allowed him to remain silent, since in this proceeding he had denied responsibility and his legal status at the time afforded him the right not to self-incriminate.

Guede availed himself of this right, afforded to him by law, and in fact Guede was quoted by the prosecutor general in the appeal, not to be heard on the facts of the night but to clarify whether he had said the things the witness Alessi claimed he had, cited by the defense for Knox (Alessi's claim is that Guede had confided in him that Knox was not present that night). Guede was then asked if he had ever written a letter in which he explicitly accused Knox and Sollecito of being present and participating in the murder; to this he answered in the affirmative, justifying the disclosure as a necessary reaction to the claims of Alessi. It was then that the defence of Knox and not the prosecutor which asked for confirmation of what was written in this letter, in which it was expressed verbatim: "A horrible murder of a splendid, wonderful girl, who was Meredith, by Raffaele Sollecito and Amanda Knox" and confirming the truth of what he had written.

Given this reality, certainly insufficient in itself from the circumstantial point of view, Guede having confirmed a statement made outside of the legal process, an evaluation could be expressed in terms of unreliability, but also certain is that such an evaluation is to be made separately from the legal rights exercised by Guede, on pain of falling into a clear error of law, where Hellmann judges as unreliable a man who has exercised his right to silence.

It must be added that the court of appeal has, however, dwelt in a passage on the unreliability of Guede, in rebuttal to what had been argued on appeal that the judges had sentenced Guede, who had highlighted the stench of a liar (a trait also observed by the defence for Sollecito), the revelations transitted via Skype chat to his friend Giacomo Benedetti, in which Guede does not indicate the defendants as authors of the crime. The pace of the argument on this point denotes openly manifest illogicality and unreasonableness: the frailty of argument appears in its full extent, given that it comes to value as proof the absence of the two defendants at the house a message sent by Guede to his friend, before being arrested and therefore while he still had every incentive to protect sidetracks (clues that lead to his incrimination?) by admitting to being in the house while distancing himself from the actual murder, an act of which he was most certainly a/the main actor, given the many clues he left at the scene of the crime.

The court unexpectedly overlooked the judgment of the total unreliability of Guede, even in his dialogues with friends, making reference to the supposition made by the Sollecito defense that Benedetti was the only friend Guede could count on and thus heard his sincere confidences. But this too is inconsistent, so much so that if we had to follow this policy, the Hellmann court, for completeness, should not have disregarded Guede's statement that while Amanda had nothing to do with it, the leader/author of the attack was an Italian man, repeating it several times. The same defence of Sollecito reported a passage on the judgement of the first-degree conviction of Guede, when it was bluntly concluded that it is impossible to believe him, and this could not be overcome by recovering fragments which, among other things, are refuted by the evidence acquired, to subvert the reconstructions made, such as on time of death (see below).

So once again, the Court's assessment was based on a platform of data which are absolutely incomplete, leading to conclusions without adequate logical supports, and especially in contrast with the other available evidence -- this incompleteness and inconsistency must be overcome in the trial court, in reference to the crucial aspect of reconstruction, which relates to the presence or absence of the two defendants in the house.

The Evaluation of Statements Made By Rudy Guede During The Appeal

The grievance is advanced, as the vice of legal violations found in the passage of judgment against Guede for his silence before the Hellmann court. As correctly pointed out by the public appellant (Galati), Guede at the time was still a defendant in the process (his conviction having not yet been made final), which allowed him to remain silent, since in this proceeding he had denied responsibility and his legal status at the time afforded him the right not to self-incriminate.

Guede availed himself of this right, afforded to him by law, and in fact Guede was quoted by the prosecutor general in the appeal, not to be heard on the facts of the night but to clarify whether he had said the things the witness Alessi claimed he had, cited by the defense for Knox (Alessi's claim is that Guede had confided in him that Knox was not present that night). Guede was then asked if he had ever written a letter in which he explicitly accused Knox and Sollecito of being present and participating in the murder; to this he answered in the affirmative, justifying the disclosure as a necessary reaction to the claims of Alessi. It was then that the defence of Knox and not the prosecutor which asked for confirmation of what was written in this letter, in which it was expressed verbatim: "A horrible murder of a splendid, wonderful girl, who was Meredith, by Raffaele Sollecito and Amanda Knox" and confirming the truth of what he had written. Given this reality, certainly insufficient in itself from the circumstantial point of view, Guede having confirmed a statement made outside of the legal process, an evaluation could be expressed in terms of unreliability, but also certain is that such an evaluation is to be made separately from the legal rights exercised by Guede, on pain of falling into a clear error of law, where Hellmann judges as unreliable a man who has exercised his right to silence.

It must be added that the court of appeal has, however, dwelt in a passage on the unreliability of Guede, in rebuttal to what had been argued on appeal that the judges had sentenced Guede, who had highlighted the stench of a liar (a trait also observed by the defence for Sollecito), the revelations transitted via Skype chat to his friend Giacomo Benedetti, in which Guede does not indicate the defendants as authors of the crime. The pace of the argument on this point denotes openly manifest illogicality and unreasonableness: the frailty of argument appears in its full extent, given that it comes to value as proof the absence of the two defendants at the house a message sent by Guede to his friend, before being arrested and therefore while he still had every incentive to protect sidetracks (clues that lead to his incrimination?) by admitting to being in the house while distancing himself from the actual murder, an act of which he was most certainly a/the main actor, given the many clues he left at the scene of the crime.

The court unexpectedly overlooked the judgment of the total unreliability of Guede, even in his dialogues with friends, making reference to the supposition made by the Sollecito defense that Benedetti was the only friend Guede could count on and thus heard his sincere confidences. But this too is inconsistent, so much so that if we had to follow this policy, the Hellmann court, for completeness, should not have disregarded Guede's statement that while Amanda had nothing to do with it, the leader/author of the attack was an Italian man, repeating it several times. The same defence of Sollecito reported a passage on the judgement of the first-degree conviction of Guede, when it was bluntly concluded that it is impossible to believe him, and this could not be overcome by recovering fragments which, among other things, are refuted by the evidence acquired, to subvert the reconstructions made, such as on time of death (see below). So once again, the Court's assessment was based on a platform of data which are absolutely incomplete, leading to conclusions without adequate logical supports, and especially in contrast with the other available evidence -- this incompleteness and inconsistency must be overcome in the trial court, in reference to the crucial aspect of reconstruction, which relates to the presence or absence of the two defendants in the house.

Hellmann's Refusal To Allow The Recalling of Witness Luciano Aviello

N.B. Luciano Aviello is a defense witness who testified at the appeal that his brother and an accomplice (other wolves) had been the ones to attack Meredith Kercher after mistaking the cottage for their true robbery target. He said they were confronted in the home by a woman, they murdered her and fled. Later it emerged that Aviello claims Sollecito's defense had paid him for this false testimony; the prosecutors requested to re-call Aviello to the stand for an explanation but were denied by Hellmann.


Far from being inadmissible, as proposed by Sollecito's defense, the grievance is based on a violation of procedural law not to re-hear Aviello. The Court of Assizes (Hellmann), in answer to a Knox defense request, heard Alessi, a man detained in the same prison as Guede, arguing that it is not possible a priori to exclude a witness's reliability before listening to him only because they are detained for serious crimes. He added that following the testimony of these witnesses they were dismissed as unreliable, either for lack of objective substantiation (of Aviello's story), or proof of a friendly acquaintance between Alessi and Guede.

What is unacceptable in terms of strict compliance with procedural rules is that, once the prosecutor had to ask to question Aviello in open court on the new circumstances arising after the hearing, wrapped in the minutes of the (private) questioning by the prosecutor on July 7 2011 in which the retraction is established as well as the means by which the testimony came about, was that the court decided a new hearing of Aviello was not indispensable in consideration of the acquisition of the transcript of this (private) questioning by the prosecutor. It cannot silently overlook the apparent fall of rigor of interpretation of the rules of law that govern the introduction of the minutes of new revelations and their usability. Just as correctly highlighted by the Procurator General, the lower court has anchored its decision to the parameter of "appearing not indispensable" where not a word of testimony was given where this element is not among those listed for rejecting the request for new evidence concerning an opposed declaration made by the same person at the hearing of June 18 2010, thus incurring a blatant lack of motiviation.

It was entirely to be taken advantage of that the new divulgences, besides the blackmail, had a quid of absolute novelty, as to the fact of revealing the path through which Aviello had been induced to give false testimony, incurring another weakness of the court's motivations of refusing to re-hear the witness on the assumption that they had all they needed from the transcript in the case file as an alternative to the usual means of examining a witness, falling in clear violation of procedural law which renders the transcript unusable.

To be clear, not at stake here is judgment on the reliability of Aviello, on which this Court cannot give an opinion, but rather the logical path followed to justify not following up the bribery allegation with a new hearing (the outcome of which could have been a stronger judgment by the court on his unreliability), a path which does not respect the rules of procedure, incomplete on the scope of the new statements, and not respectful of procedural rules which, on the subject of new statements, do not include "the appearance of non-indispensability" on the acquisition of new data which has emerged and which could lead to the assessment of total inadequacy of the source of this information, but only following a proper introduction in court his allegation of a plot to give false testimony convenient to the defendants. Especially since the court had granted the defense request to hear the witness in the first place (and the witnesses expressing their willingness to be examined by participating), so too the prosecutors have the right to challenge in court the spontaneity and reliability of the witnesses in the fullness of his power (not just replace statements made in court with a non-unable transcript).


tbc

The Restatement of the Time of Death

It is still worthy of attention, in terms of manifest illogical reasoning, (Hellmann's) definition of the time of death of poor Meredith. According to the appeal court, the path of reconstruction of the first court could not be anchored to the testimony of neighbors Capezzali and Monacchia, who reported a piercing scream, the sound of running footsteps on the iron steps leading to the car park below (their apartments are across from the cottage with the parking lot between them -ed), and the patter on the driveway leading to the house on Via della Pergola on the night of 1 November 2007, as, Hellmann argued these contributions were heard adjacent to an area haunted by young people and drug addicts, and it was therefore not unusual to hear cackle. Their testimony was thought by Massei to maximize the value of the witness Dramis, who had reported having heard running footsteps at about 11:30, on via del Melo, which is continuation of Via della Pergola, after he had gone to sleep around 11:00, 11:30 and only presented himself to investigators after a journalist, a year later, had persuaded him of the importance of this information. The appeal court therefore preferred, in full compliance with the defense, that the unreliable Guede had transmitted via Skype to his friend Benedetti the fact that he was to be found in the cottage around 9:00, 9:30, and this time being correlated to the victim's phone, which recorded a missed call at 8:56, an aborted call to voicemail at 9:58, and an incomplete dial at 10:00 to Abbey bank (entered as it appears in the phone without the English country code prefix necessary for international calling), and at 10:13 a data connection lasting nine seconds thought to be an incoming multimedia message, without need of human interaction. Based on this, the Hellmann court concluded that Kercher had not called her family between 8:56 and 11:00 -- after the first attempt there would be a sudden event, aggression for example, and that the numbers called at 10:00 and on were dialed by someone unfamiliar with the phone trying to silence it. Especially since the girl was attacked while she was still clothed, the appeal court placed time of death before 10:13.

The reconstructive route is interwoven with factual deductions arising from a series of conjectures and inferences, with no reliable evidence base, in spite of the findings of relevant scope and greater demonstrative value, guided by unfulfilling reasoning, which marks the multiple stretches of inconsistency with other passages in the motivation and this lack of logic should be properly censured.

On the unreliability of the indications offered by Rudy Guede, it has already been said that one cannot believe or not believe anything he offers. Just remember that it is the same defense of Sollecito which stressed, from the judgment against Guede, that he was a skilled manipulator who followed the investigation in the media and was very clever and not at all naive about building an alibi and tuning his truth as the media published updates. So the chat sent to his friend Benedetti could not be taken as a basis to overturn the strict inferential excursis operated by the first court (Massei) to determine the time of the death, if one wishes to avoid another collision with the data found. Not to mention that in this chat Guede had put Amanda in the house, said he heard the unbearable scream which would force him out of the bathroom five minutes after Amanda's arrival home, and excluded that he saw broken glass in Romanelli's room all the time he was in the house. Reality entirely disregarded by the appeal court, Hellmann concluded that Guede had entered through Romanelli's window after throwing the 4 kg rock from outside, and so creating an insane internal contradiction which shows an increasingly pronounced illogic of the court so as to necessitate the intervention of this court.

(Galati puts the above succinctly: "If the Court held the Ivorian citizen to be sincere in the tele-conversation with his friend Benedetti (here referring to 9:30), then why not also believe him when he denies having broken in, or when he recounts Meredith having it out with Amanda, or when he says that he had been at the latter’s place "many times"?

Every effort to repair the breach of logic, by examining the records on the victim's cellphone, cannot be useful remedy. Indeed it sounds entirely implausible that one can establish an alternative reconstructive hypothesis on the basis that because the victim did not repeat her call home, it must because she was attacked. That her parents didn't answer could have reminded the young woman that they had a commitment that evening and she might try again much later, as an example of a reason for not calling back not to do with the attack. Also implausible is to tie the contact with the directory (Abbey bank) number to an attempt of the assassin to mute the phone: if this were the goal, it surely would have been pursued by other means rather than simply launching the phones in working order down an escarpment on Via Sperandio where they rang the next morning.

But the most obvious forcing and certainly apparent in the underestimation of three witnesses, given autonomously yet absolutely in tune with each other, the court confused normal noise in the square with "the heartrending cry" reported by the witnesses Capezzali and Monacchia. Capezzali said she went to bed around 9:00, 9:30, and, as was her habit, roused a couple of hours later to visit the washroom (on account of the diuretic influence of medication she was taking). It was at that moment she heard the scream she described as "heartbreaking," "unusual," "long" and which "made it difficult to fall asleep again" and as she was about to reach her bedroom heard the footfalls on the iron ladder and then on the gravel and dry leaves of Via della Pergola. More precise was the timetable by Monnacchia, who said she went to sleep around 10:00. After she had fallen asleep she heard an animated discussion between a man and a woman passing along the road near her window, and then a loud scream coming from below, that is, from Via della Pergola. The witness Dramis, in turn, provided a significant finding because he said he returned home 10:30, having gone to a movie from 8:00 until 10:00, and heard running outside. The reliability of these witnesses cannot be denied just because they came forward only a year after the fact, since the late realization that information might be important does not affect the quality of the information itself.

Once again, at question is the completeness of the platform on which the conclusions are drawn. In the face of consistent data and necessarily leading to a time subsequent to that established by the court, to which you must return to the heartrending cry which was most certainly Meredith's, the Hellmann court preferred over the trial witnesses to pull strings from the declarations of Guede, made outside of this process and in any case fraught with lies. The conclusions drawn are even more strident, if one considers that this heartbreaking scream was reported by Amanda in her written statements, when the date was not yet in the public domain. Not only that, but the reconstruction made by the appeal court is not in line with the medical/thanatological (study of death) data, indicating the range of hours between 6:50pm and 4:50am, so in the middle around 11:00, 11:30, as opined by the first judges with greater adherence to the evidence available.

Thus on the point of time of death, the appeal judgement openly expresses its inadequacy, reflecting a heavy deficit of logic and contradiction with other available evidence. The referring court should rectify this.

Hellmann's Refusal To Allow New DNA To Be Tested

The criticisms brought forward by the Prosecutor General and the Civil Parties of the Hellman Court of Appeal’s decision to order a new genetic expert report in the second instance trial only partially hit the mark. Indeed, even if it is immediately obvious that the grounds for reopening the investigation in the appeal trial (hinging on the difficulty of the subject "for people who do not have the scientific knowledge to formulate evaluations and alternatives on particularly technical subjects without the help of a court appointed expert") is insufficient, delegating as it did the task of evaluating the evidence acquired through trial discussion among the parties to external scientific knowledge (a genetic expert report had already been ordered following the rules of article 360 of the Criminal Procedure Code that had made it possible to collect all the different [64] interpretations of the acquired data), it cannot be disregarded that the decision to order an expert report is among those evaluations of merit which this Court cannot censure. It is in fact a principle of living law that the judge of merit is entitled to evaluate the evidence of the trial in order to decide whether a request for an expert report is warranted; as long as it is properly justified, this decision cannot be censured on the grounds of legitimacy (Section VI, 21.9.2012, n.456). As the judge must reach his decision on a solid basis of certainty, the right to obtain a deeper understanding of a key part of the body of probative evidence cannot and should not be disregarded, as asserted by the Sollecito Defence. The need to add another expert report to the case file, even within the limits of article 603 of the Criminal Procedure Code, cannot be ruled out simply because the [original] investigations took the form required in article 360 of the Criminal Procedure Code, i.e., through discussion among the expert consultants of the parties (who in any case did not, during the performance of the [original] technical tests, express any of the multiple objections made later, nor did the parties make use of their right to ask for a pre‐trial hearing). Thus, apart from the inadequacy of the grounds, this court cannot censure the decision to proceed with a new expert opinion, which, however, even aside from the unfortunate rationale adopted, reveals the uncertainty of the judges regarding previous results ‐‐ as they held the evidence to be incomplete ‐‐ and thus also regarding the necessity of a decision in favour of a new acquisition, which cannot be questioned on the grounds of legitimacy.

Having said this, it must be added that what certainly must be censured is the management of the mandate conferred on the chosen experts. Indeed, they were asked to attribute the DNA that could be extracted from traces on Exhibits 36 (knife) and 165B (bra clasp), and to report on possible factors of contamination. In the course of their investigation, the appointed experts found a third trace on the blade of the knife taken from Sollecito’s flat (Exhibit 36), apart from the one attributed without objection to Knox and the one attributed with strong objections to the victim, right near the trace from which the DNA attributed to the victim was extracted. This [third] trace was not submitted for genetic analysis due to a decision made unilaterally by one of the experts, Prof. Vecchiotti, without written authorisation from the Court, which had in fact precisely charged her with the task of attributing the DNA found on the knife and bra clasp, because [the previous traces] were deemed to be of insufficient quantity to yield a reliable result, being low copy number. Her decision was later approved by the [Hellmann Court of Appeal] on the assumption that the [new] quantity was [also] too small to permit the two amplifications needed to ensure reliability of the result (page 84 of the [appeal] judgment).

Therefore, when the Prosecutor General and the Counsel for the Civil Parties submitted a request to complete the analysis on the basis of the scientific explanation provided by Prof. Novelli, a geneticist of undisputed repute recognized by the [appeal] court itself (page 79 statement of reasons), regarding the availability of instruments capable of reliably analysing quantities even smaller than ten picograms in diagnostic fields (such as embryology) in which the need for certainty is no less important than in the courts, the Hellmann Court of Appeal refused on the assumption that the methods mentioned by Prof. Novelli were “in an experimental phase” (page 84), thereby freely interpreting and misrepresenting the testimony of the professor, who on the contrary mentioned the use of such techniques in diagnostic domains in which the certainty of the result is essential.

All in all, the modus operandi of the Hellmann Court of Appeal which, unacceptably delegating its own function, entrusted to the unquestioned evaluation of the expert the decision of whether or not to submit the new trace for analysis, is open to understandable and justified censure, considering that the test requested by the Court should have been done, lying as it did within the scope of the expert’s mission, subject to a discussion of the results if they were not deemed reliable. In any case, a member of the panel of experts could not assume responsibility for unilaterally narrowing the scope of the mission, which was to be carried out without hesitation or reservation, in full intellectual honesty, giving a complete account of the possible insufficiency of the material or unreliability of the result. All the more so as the repeat of the genetic tests was requested in 2011, four years after the initial tests; a lapse of time during which significant progress had been made in the instruments and techniques of analysis, as Prof. Novelli, a consultant to the Prosecutor General, stressed. Precisely on receiving the information from this consultant, who spoke of cutting‐edge techniques while under oath – the Court fell into another gross misinterpretation, in a significant argument concerning the reliability of the results of the analyses made, by assuming the impossibility of repeating the tests even on traces found at a later time, thereby affecting the logic of the statement of reasons (Section I, 25.6.2007, n. 24667). The Hellmann Court of Appeal also completely ignored the authoritative points offered by Professor Torricelli, who shed serious doubt on the fact that a very small quantity was found; she quantified the useful material in the new trace as 120 picograms (hearing of 6 September 2011, page 91 of transcript), which is sufficient to execute a double amplification, and she opposed the methodology by which Prof. Vecchiotti reached the decision not to proceed, in a report obviously not endorsed by the Prosecutor General and the Civil Parties. The authoritative nature of the observations of the two consultants of the parties [66] would have required that the Court deal with their points, which irremediably conflicted with the assumptions of Prof. Vecchiotti, whose points could indeed be accepted by the Court, but only after evaluation of the opposing points, which were of equal scientific value.

It must be concluded that when it rejected the request of the Prosecutor General and of the Counsel to the Civil Parties to complete the expert investigations by analysing the new traces found on the blade of the knife collected in Sollecito’s flat, as initially mandated to the experts ‐‐ a request that was supported by more than adequate scientific knowledge ‐‐ the Court made a flawed decision, by reason of its failure to comply with the relevant laws which mandate the safeguarding of all parties in their access to evidence (article 190 of the Criminal Procedure Code), especially in an area in which the expert report (as a means of seeking evidence) was requested by the Defence, and was arranged, but was not completed regarding the new trace, even though it demanded a response more than any other.

On this point the claims of error are well‐founded, since once the new expert investigation was arranged, it had to be completed, and thus should have also analysed the newly found trace, without fear or a pre‐conceived closed mind, but with the more accurate and modern techniques of “experimental” analysis. Not doing so resulted in an error of law for failed acquisition of key evidence, with the resulting defect of obvious lack of logic in the reasoning (again due to incomplete utilisation of the inferential basis, as facts that are not just significant, but essential, were ignored), as correctly denounced by the Prosecutor General submitting the appeal.

with thanks to pmf.org

The Genetic Investigation

Also well founded is the issue raised by Attorney General, the passive acceptance by the court of the appointed experts' opinions regarding the inadequacy of the two samples in question (bra clasp and knife) for the detection of genetic profiles, as well as their opinion that it could not be ruled out that the results were derived from "contamination phenomena occurring at any stage of reporting and/or handling and/or process and/or analysis." The Hellmann court adopted all of the arguments developed in their report that, indeed, had been the subject of severe disagreement by both prof. Novelli and prof. Torricelli, consultants of the Attorney General and the civil parties whose authoritative voices were completely neglected. Prof. Novelli had agreed on the fact that protocols and recommendations do exist, but emphasised also the abilities of the operator and common sense, otherwise all DNA analysis performed since 1986 must be called into question.

Not only that, but he (Novelli) added that he had taken a statistical analysis of the Sollecito alleles on the clasp, to arrive at a chance of one-in-three-billion odds of this result being possible, which is to say that only one in three billion people have this profile. Even prof. Torricelli, who had participated as an auditor drawing up guidelines to which the experts appealed (this could mean he drew up their instructions for the assigned task, or guidelines to which they refered later -ed) noted that the presence of the Y-haplotype, very clear in all 17 loci, reveal the profile of no one other than members of the Sollecito family/genetic line, and even when only 11 loci are so analysed only 31 subjects are possible. These observations were not even mentioned in the Hellmann report much less what they indisputably demonstrate, the result of an unacceptably incomplete evaluation, with repercussions on the proper application of evidence.

Remember that in terms of control on motivation, the judge who believes in adherence to the findings of his appointed experts, which are different from the opinions of the other, equally-qualified consultants, yet does not burden himself with explaining why those other consultants are wrong, proves himself to have ignored the arguments of these consultants which are in irreconcilable conflict to those of his chosen appointees and thus fails to state any reason for preferring the experts' opinion over the others or acknowledge fallacies in the experts' conclusions.

Even more surprising was Hellmann's incorporation, without any criticism, the argument advanced by these experts on the "possible" contamination of the findings, this thesis being completely unmoored from scientific reasoning. The unproven hypothesis of the contamination was taken as axiomatic, once again forcing the flow of facts one way, to cancel the scope of evidence collected when these captured data did not lead to similar conclusions.

Laboratory contamination was also claimed by these same experts. Prof Novelli said that this contamination must be demonstrated (not simply raised hypothetically), an opportunity or vehicle shown, having analysed 255 samples and been given no evidence of this alleged contamination. Novelli absolutely excluded that this contaminant would be present only intermittently, that DNA remains suspended in the air and then falls on a given point. Dr Stefanoni, heard on appeal, reminded the court that there was no evidence of contamination on the surveys conducted on the knife, and that the six days since last analysing an object relating to the Kercher case prior to the knife made this impossible. Dr Vecchiotti (one of the appointed experts) agreed six days was sufficient to prevent laboratory contamination, the testing dates confirmed by the SAL cards, which the experts had originally wrongly reported as missing.

In particular, with regard to Sollecito, the cheek swab was extracted and processed on 6 November 2007, a profile from his shoes extracted 17 December, and the bra clasp profile was extracted on 29 December 2007. In the twelve days between processing the profiles from the shoe and the bra clasp, no traces of Sollecito were analysed. Sollecito's DNA was never shown individually, instead appearing only as mixed traces such as on a cigarette butt in Knox's kitchen (this sample was a Sollecito+Knox mix). So imagine his DNA, seeking adventure, unmingled itself from Knox's DNA and transmigrated from the kitchen to the bedroom of the victim (otherwise the Knox DNA should also be found). It could be argued, and it was, that during the time between the first and second inspections of the house, precisely this must have occurred, despite the house being sealed in the meantime, with no one entering.

So the objective data collected, already highlighted in the Massei judgement from pg 281 onward (which made reference to the video recording of the activities of the scientific police, experienced in their own protocols and in their work), rejected the hypothesis of contamination, finding that the mere passage of time might degrade the samples in the form of data *loss,* not data enrichment.

The court of second instance, supporting the contamination argument advanced by the experts, based on "everything is possible," which is not an argument because of it generality, again incurred a logical error as well as a legal one: the vehicle of contamination must be identified, it is not sufficient to merely doubt the professionalism of the technical investigators, especially in a context in which laboratory contamination is mathematically impossible, which is the kind of contamination which is more common and more demonstrable, such as failure to run negative controls. In this case Stefanoni knows to do this, but these checks were given too little significance because the experts positively claimed they had not been done simply because the documentation proving they had been wasn't affixed to their files. The discourse of contamination did not acknowledge the authoritative dissenting voices, nor does it address why contamination should be assumed to have affected only the items most damaging to the defence, again all based on the erroneous assumption that the negative controls had not been done during the original investigation and properly documented. The first instance court dwelled on an abundance of topics only partially refuted by the appeal court in an appropriate manner. Just as significant were the observations of Stefanoni, brought to the attention of the Hellmann court. This framework was to accredit the correctness of their procedures, followed inevitably by a fall to those who wanted to support a contamination factor, not being able to admit that the outcome of an scientific investigation is subject to a falsificationist approach, based on theoretical contamination of a specimen.

Every laboratory result would be easily attacked and deprived of probative value if the onus of proof of contamination were transferred from those alleging contamination occurred onto those who must now prove it didn't. The refutation of the scientific evidence, then, required a demonstration of the contamination hypothesis using specific and concrete facts.

This failure to state reasons to believe in contamination must be remedied.

Analysis of the Footprints and Other Traces

pg 70 of the original

The complaints advanced in terms of the manifest illogicality of the Hellmann motivation, as to the criteria of the evaluations of the genetic material, are well founded. An assessment of the bare footprint made in the victim's blood on the bath mat, with limited-to-no negative comparisons made (which would disqualify Guede from consideration), incurred again in a passage of open contradiction with the available evidence, ending with the attribution to Guede the footprint and assuming against all evidence that he, "after leaving the imprint on the pillow," lost his right show during the violence perpetrated on Kercher, smeared his right foot with blood and washed it in the small bathroom despite leaving no other prints in the hallway.

The assumption recognizes its deep implausibility considering Guede's handprint on the cushion which helps explain the dynamics of the facts, and does not explain how or why Guede would lose a shoe after immobilizing Kercher. This assumption, furthermore, is on a collision course with the other available facts, for example that his shoe prints leave a trail in the opposite direction, from Kercher's room out the front door of the house. The fact that only the left shoe was stained does not signify that he lost the right shoe, since at most it only proves that his right shoe did not step in the blood spilled by the poor victim as a result of her wounds, inflicted, with high probability, with two knives.

Equally it appears deficient logical vigor was adopted in a further step of the motivation, in relation to the presence of the traces highlighted by Luminol (since they were not perceptible to the naked eye), which gave the profiles of Knox and the mixed profiles of Knox and the victim, found in Romanelli's room, Knox's room, and in the hallway, tracks that could not be attributed to footprints left on other occasions, as implausibly raised by the Hellmann (appeals) court, because Luminol reveals traces of blood and it was not suggested that Knox's feet might have been stained with Kercher's blood on some other occasion.

Hellmann did not justify, as pointed out by the appellant (Galati), the coincidence of the presence of Knox's DNA comingled with the blood of the victim, whereas it was plausibly theorized by Massei that the mixed nature of the tracks (including those found in the bathroom) leads to the conclusion with adequate inductive logic that Knox, having washed her feet of the victim's blood but still with some residue, brought into her own room and Romanelli's room during the staging operation, the DNA of both of them.

While the mixed tracks found in the small bathroom suggest that Knox had to carry the blood of the victim from the scene of the crime to various points in the bathroom (on the sink faucet, on the box of cotton swabs, the bidet, the lightswitch, the door) where her tracks were found, the Hellmann court ignores Massei's findings against the defense explanation and marries himself to it without giving any reasons. In essence, the Hellmann court finds that if only the two defendants were in the house to cleanse their traces, as well as act as vehicles for others, then there ought to be more such traces and thus finds irrelevant the traces that were discovered, ignoring the likelihood that Sollecito washed himself better than Knox had.

Evaluating Knox's statements

pg 71 of the original

A final criticism of the Hellmann appeal must be highlighted, in agreement with the Attorney General applicant. The strings of the appeal, again incorrectly using fragmented clues, which referring to the period subsequent to the verification that a murder has been committed would not draw any negative inference against the defendants. This pre-emptory nature has obvious repercussions on the premise of the motivational logic, since these statements were not emotional reactions to a traumatic event, but rather are examples of the defendant demonstrating knowledge of details of the murder which turned out to be coincident with what was later determined by the investigators.

The Massei court had highlighted how Knox had always said neither she nor Raffaele had seen into Meredith's room when the door was breached because they were both close to the living room at that moment, which has been confirmed through testimony. It was, however, pointed out by all the English friends on the hearing of 13 February 2009 that Knox-- on the evening of 2 November 2007-- had told them she had found the body of her friend, this body was in front of the cabinet, covered with a duvet with a food sticking out. The friends testified that Knox had told them Meredith had had her throat cut and there was blood everywhere, whereas in her testimony of 13 June 2009 Knox said she'd seen nothing. The plurality of detail given to her friends, potentially demonstration of knowledge gained prior to the intervention of the police, even if denied by her by the time of her testimony, is neglected by the Hellmann court, and he gives no reason for finding these elements irrelevant.

This neglect is even more significant if one considers that on 2 November, before the opening of the door or the ingress into the room of the victim which led to the discovery of her body, at 3:30am Seattle time Knox called her mother for 88 seconds, called her back at 13:27 and again at 13:58. In recorded prison conversations Knox's mother asked her daughter why the younger Knox had called at this hour when nothing had yet happened. Knox asserted that "maybe" she had to think "there was something strange, as I did not know what to think." Underestimating this situation is not a subjective matter, and the Hellmann court should have considered that these phone calls home in the middle of the night were being made by Knox contemporaneously with Sollecito's calls to his sister and then to 112. (Hellmann incorrectly reverses the order of these phone calls.)

This situation, considered objectively, inexplicably does not indicate to Hellmann that the defendants possessed knowledge of the crime. The Massei court at first instance established a solid foundation for inference that these phone calls to their families well in advance of the discovery of Kercher indicates a restlessness a stranger to the situation would not have had, and knowledge a stranger would not have possessed. In the Hellmann court any such evaluation is omitted, relying instead on the subjective assertion that people respond in different ways. Hellmann objects to Massei's evaluation but does not offer anything in its place.