Monday, 3 February 2014

Amanda Knox and a Broken Justice System

Featured on Liberal Democrat Voice

I got really annoyed on Thursday evening, when I read a comment on CNN in an article entitled 'Amanda Knox retrial verdict: Six things to know'.

Firstly, why was she back on trial?  Fair enough, that's a question the answer to which anyone interested in the verdict should know.  Second up:

Had I been eating cornflakes I would have choked on them.  "Renewed questions about the effectiveness of Italy's justice system"?  Here is a line that (if it wasn't) might as well have been lifted directly out of a release from Amanda Knox's well-funded PR machine.

Compare and contrast with its coverage of the execution of Troy Davis, a man put to death in Georgia despite the fact that most of the original prosecution witnesses had subsequently retracted their testimony, alleging they were put under pressure to testify by the police and the DA.

That's right - Davis is a "convicted cop killer"; Knox is a "U.S. student".  For Amanda Knox it was all about how the presiding judge (who is Alessandro not Alessandra Nencini) would rule (it was actually two judges and a jury that made the decision), whereas for Troy Davis "a jury and several judges on appeal have determined that Davis killed Savannah, Georgia, police officer Mark MacPhail in 1989."

In the Davis case, CNN went on to note
While assertions that the U.S. executes more blacks than whites are incorrect -- the country has executed 263 more white people than black people since the death penalty's 1976 reinstatement -- inequalities exist when a murder is interracial.
According to the Death Penalty Information Center, 15 white defendants have been executed for the murder of black victims, but 246 African-Americans have been executed for killing whites.
 It's not entirely clear what this means.  Here's how Amnesty International puts it, which is rather more clear.

And not a mention to be had of course of the criticisms that the U.S. criminal justice system is broken, as Attorney General Eric Holder was forced to admit late last year.  Personally, I agree with Clive Crook (no, really), writing on Bloomberg in the wake of Holder's speech when he said
A broken system of justice shouldn't command the utmost faith; it should arouse the utmost skepticism. And his appraisal was actually too generous. America's criminal-justice system is not "in too many respects broken": It's a national disgrace, from top to bottom.
To be fair to CNN they did later carry a piece in which they interviewed Alan Dershowitz, where he pointed out that
This is not a case, as it's been projected in the media, of no evidence at all. It's a case of the kind that would have resulted probably in a conviction in most courts in America. And so yet, because she is attractive, and because she has created a media campaign all over the country, she's become very popular.

Then there are cases like Ryan Ferguson's, where Ferguson spent a decade in jail because his accuser dreamed he and Ferguson may have killed someone (an accusation that he later recanted).  Despite the fact that the judges who overturned his conviction ruled that prosecutors had withheld vital information from the defence, did CNN have any about the effectiveness of the judicial system that allowed this to happen?  No, CNN got to the really important stuff.

Or John Thompson, who had his award of damages thrown out by the U.S. Supreme Court after he sued because prosecutors (working under New Orleans D.A.Harry Connick Sr.  - yes his dad) once again failed to turn over evidence to the defence that would have exonerated Mr. Thompson.  I could cite many, many other examples, but I think the point has been made.

Or what of Herbert Smulls, executed just last week by the state of Missouri and pronounced dead four minutes before the Supreme Court of the United States had announced its decision on whether to order a stay of execution.  (As it turned out, they ordered no such stay, but that is beside the point, except from Mr. Smulls' perspective, because he is dead).

"Such frantic communication from defense attorneys to state officials is not uncommon in the hours leading up to an execution-- the state, after all, has the body of the man it seeks to execute (literally, habeas corpus). What is striking here, though, is not just that state lawyers failed or refused even to respond to Smulls’ attorneys but that these officers of the court, and corrections officials, essentially divested the Supreme Court of jurisdiction by killing the litigant."

CNN's 'journalists' would be serving the American public much better if they didn't reserve their snarky commentary about the "effectiveness" of judicial systems for foreign jurisdictions.

UPDATE: NPR actually carried a story this morning on how last year was a record year for exonerations in the US (a rather soft word for miscarriages of justice).  It points out that about 1/5 of the exonerations comes from police and prosecutors having a change of heart and re-opening or re-examining old cases.

This chimes with the criticisms of William Stuntz, who in his book The Collapse of American Criminal Justice

laments the fact that criminal statutes have limited the discretionary power of judges and juries to reach just decisions in individual cases, while the proliferation and breadth of criminal statutes have given prosecutors and the police so much enforcement discretion that they effectively define the law on the street.

(The above is from an excellent but lengthy discussion of Stuntz's work by former SCOTUS judge John-Paul Stevens in The New York Review of Books).


Alex Macfie said...

Your use of the phrase "Amanda Knox's well-funded PR machine" woudl appear to show which side you are on when it comes to her innocence or guilt. However, in the run-up to her first trial, she was subject to systematic character assassination in the Italian media, based in part on leaks from the prosecution team, and gleefully reprinted in the UK press. The press coverage alone would have caused the trial to be stopped if it had taken place in the UK (of course, the shocking weakness of the case against her meant it would have been thrown out for lack of evidence, but that's another matter). The newspapers that printed the prejudicial reports would also have been put on trial for contempt of court (as they were over their coverage of Chris Jefferies when he was under suspicion for the murder of Jo Yeates). You can hardly blame Amanda Knox for hiring someone to counter the lies being printed about her and those close to her.

I take your point on the hypocrisy in the different US media reporting on the cases of Amanda Knox and Troy Davies; however, I don't think one's home country's justice system needs to be perfect to be able to criticise those in other countries. I suppose that as I'm from the UK I ought to be on the side of the "colpevisti" in this matter, with the murder victim Meredith Kercher being British. Except that I don't think that should have anything to do with it; I am against injustice anywhere and to anyone, and the case against Amanda Knox and her ex is based entirely on supposition, conjecture, faulty logic and prejudice. [All the actual evidence points to Rudy Guede, acting alone.] So I don't think Meredith's memory is well served by the conviction of the pair.
And I know that the UK justice system is not infallible either, but I don't think that should prevent me from commenting on the many clear flaws in the Italian system that have emerged from this case, for example:
-- There are no reporting restrictions on court cases, hence the Italian media being allowed to effectively convict Amanda Knox and Rafaelle Sollecito in advance of the first trial.
-- The prosecutor can brief the media on the progress of the case, without any concept of sub judice.
-- Juries are not sequestered or warned against forming opinions from the media; indeed they seem to be positively encouraged to do so.
-- Civil and criminal defamation suits can be filed against people for statements they make during police questioning (whether voluntarily or under duress) or in court (no concept of 'privilege'). Moreover, these slander trials can occur in parallel to the main criminal trial, even in front of the same judge and jury. Also public officials can sue for slander without restrictions, so not only could Mignini brief the press about the case for the defendants being guilty, he would threaten to sue anyone who dared contradict his claims.
-- The victim's family are represented in the criminal proceedings, to the extent of involved in deciding what evidence is heard in the case. It appears the Kercher family's lawyers have been using this to try to suppress evidence favourable to the defendants.
These problems cannot be explained away or excused as just their having a different type of justice system from the Anglo-Saxon model. They strike at the heart of a fundamental right to a fair trial. I've read that Amanda Knox has filed a complaint with the European Court of Human Rights over the proceedings against her. I watch with interest, especially as the ECtHR has upheld more complaints against Italy over judicial issues than any other country under its jurisdiction.

Chris Connolly said...

Hi Alex,

I am on no particular side, not having heard all the evidence presented in the case.

However, it is an undeniable fact that Amanda Knox and her family have been running an extremely efficient and well-funded PR campaign in the United States. If you think the campaign, which is focused on public opinion in the United States, not in Italy, has as its main purpose to 'counter the lies being written about her in the Italian press' you are, in my opinion, being rather naive.

And while you say that your criticism of the Italian justice system comes not from a perspective of it being different from the Anglo-Saxon model, I am afraid it does: the purpose of English and derivative judicial systems is to weigh the evidence; the purpose of Napoleonic judicial systems is to get to the truth. Consequently your criticisms carry much more weight when levied at the English than the continental justice system.

Your criticisms of the case are generic, rather than specific, i.e. they are criticisms of the Italian justice system, rather than how this case was dealt with. This is part of the Knox P.R. strategy: to try and discredit Italian justice. The same criticisms could be made of any Italian criminal trial, which is why any appeal by Knox to the ECtHR will certainly fail, because the criticisms you make of Italian justice are not in breach of ECHR Article 6.

I am against miscarriages of justice wherever they occur, but in discussing the Knox case, I'd like to stick to the specifics of the case, not engage in attempts to de-legitimise the Italian criminal justice system. And when we get down to specifics, Alan Dershowitz, as something of an authority on the law, considers that there was enough evidence to convict Knox in most courthouses in the U.S. The case was not based "based entirely on supposition, conjecture, faulty logic and prejudice."

Anonymous said...

Chris Connolly has it in a nutshell. You need to read the transcripts (available in this case and not as I am lead to believe as is always the case in the US)to understand the nature of the trial and the evidence. I did briefly and personally am not convinced that a "beyond reasonable doubt" status was acheived...but it was a brief reading and the transcripts are huge. What really irritates me though is the implication that the trial and the judgement are not conducted seriously. what motives would the juges have in doing so. Surely it is easier on the mind intuitively to let someone go free if there is not enough string evidence. The judges are not paid by conviction rates as far as I know so that wouldnt be regarded as a failure. They still hopefully work on the premie that "its better to let 100 guilty go free than convict an innocent man". Especially if you still have the death sentence like in some places of the US (rather barbaric?)

Alex Macfie said...

Yes, my criticisms are generic, and of course any appeal that Knox's legal team makes to the ECtHR will be couched in terms specific to her case. For instance, they will probably claim (in the challenge to the calunnia conviction) that her rights under article 6 were violated by the use against her in court of a confession/accusation that she made under duress. But those generic problems resulted in the specific facts that will form part of Knox's complaint. The fact that the generic criticisms could be applied to any Italian trial is neither here nor there. The ECtHR examines whether whether an individual's rights under the ECHR are violated based on the facts of that specific case. For a country to argue that those facts are simply the result of normal application of its laws or legal system would not work in its defence. If it did, then hardly any individual would ever win any complaint against a country in the ECtHR!

You can say that the Napoleonic judicial system aims to "get to the truth", but it is difficult to see how (i) allowing trial by media, (ii) allowing prosecutors to brief the media without restrictions while threatening defamation actions against anyone who contradicts them, or (iii) allowing people who are not material witnesses to a case to argue against presentation of evidence, can promote a search for the truth. It is also difficult to see how they are consistent with the right to a fair trial. It doesn't matter what the system is: allowing prosecutors free rein to say what they like while gagging the defence with the threat of defamation charges is intrinsically an attack on the right to a fair trial.

So it is a bit rich to complain about Amanda Knox having a "PR machine" when you consider that Mignini had a much more powerful PR machine (backed up by the full power and resources of the Italian state) at his disposal, and he certainly used it. If she did not use the media to put across her side of the story, the only thing the US media would print would be the negative stories reflected from the worst of the European press. That is what tends to happen in criminal trials: the press print articles that present the defendant/suspect in the worst possible light, and largely ignore the defence case. It is why in sane jurisdictions there are strict rules on media reporting of criminal trials.

Chris Connolly said...

Hi Alex,

Thanks for responding. I am afraid I just can't see how any allegations of a confession/accusation made under duress are in breach of Article 6 unless the Defence were prevented from putting to the Court that the statement was made under duress. My point about the generic criticisms is that these will have been levied, in some shape or form, in a lot of cases coming from Italy. In 2012, 99.7% of applications from Italian complainants were struck out or deemed inadmissible. Therefore the systemic issues you complain of will have been raised before, repeatedly. And there is just no way in this world that the ECtHR is going to hold that the fact that Italian juries are not sequestered means that the tribunal is not independent and impartial, as required by Article 6§1 of the Convention.

Some of your points about criticism of Mignini are well made, but it is a huge logical leap to go from there to the conclusion that it deprived Knox of a fair trial, unless you believe that it was a trial by press and the judges and jury disregarded the evidence in front of them and just went along with whatever was written in the press. Twice.

And finally, you are again missing the point that the Knox PR machine is not focused on Italy, its work is designed to build up public support for Amanda Knox in the United States, in the hope that public pressure here would have an effect on the judicial process in Italy, and the extradition process in the United States. It has worked. This convicted murderer had her hand held in sympathy on a national breakfast TV show after a weepy interview. It is all about building public pressure to stop her deportation (which in any event I don't believe the Italian government is going to ask for, so in that respect her PR machine has been very effective).

Ultimately you appear to believe that this was an actual trial by media, and most of your criticism flows from that assumption. It is not one, however, that I share.

Anonymous said...

Hi Alex,
For comparative purposes and in a separate vein you should maybe look at the Enrico Forti case. Unfortunately the trial deliberations are not published (or at least I haven't been able to find them on the Internet). It shows up the differences (of weight of evidence and flexibility of appeal) between the two types of judicial systems. Both in this case delivering dubious (to my mind) results

Alex Macfie said...

Anonymous 1: The motive that judges have for upholding dubious convictions is saving face: protecting the image of the justice system. Senior UK judge the late Lord Denning said in 1988, "We shouldn't have all these campaigns to get the Birmingham Six released if they'd been hanged... It is better that some innocent men remain in jail than that the integrity of the English judicial system be impugned." Not many judges would be this blunt, but he was probably only saying what some judges might be thinking. This desire to save face is likely why the Guildford Four's first appeal failed in the 1970s, when a notorious IRA gang was arrested and admitted responsibility for the pub bombings for which the Four had been convicted. The judges accepted that the Balcombe Street gang had been involved -- how could they not when the gang's testimony was completely credible, corroborated by the evidence? -- but still dismissed the Four's appeal by stating that all of them had done the bombings together (when there was not a shred of evidence for this). I suspect that saving face has played a strong part in the recent reconviction of Messrs Knox and Sollecito. Not wanting to admit that a mistake has been made can be a powerful motive. It is also probably why Mignini didn't just drop charges against them when Rudy Guede was arrested, despite the credible evidence suggesting he was the sole killer.

Anonymous 2: thanks for the info on Enrico Forti. The case does seem troubling on the face of it. And there is perhaps some hypocrisy on the parts of both Italians and the Americans in supporting the pursuit of dubious cases against someone of the other's nationality while supporting the case of their own compatriot. But I agree with your point that injustices can happen under any justice system. Indeed I mentioned some that happened in the UK, and I don't think the UK is free from injustice now either, although I doubt a Guildford Four or Birmingham Six could happen now due to much stricter rules on admissibility of evidence from confessions. The issue is not so much the type of justice system as how well it is run.

Chris Connelly: The proportion of complaints of all types that are rejected isn't the point, especially when most are rejected on procedural grounds (e.g. not exhausted relevant domestic legal channels). Like I said, Italy has had more complaints on Article 6§1 upheld than any other signatory country. Nor is it relevant that the systemic issues might have been raised before. Remember that the ECtHR is not a supreme court, it cannot order a country to change its laws, only to provide redress to the specific person wronged. So the same issues can easily be raised again and again.. I suspect this will happen in the UK with prisoners voting; despite a ruling against the country on this, it is most unlikely that the UK will any time soon change the law to allow even some prisoners to vote: the unpopularity of this measure makes it more politically expedient to keep the blanket ban on prisoner voting and risk further ECHR challenges.

Alex Macfie said...

The media misinformation about Amanda Knox was based largely on leaks from the prosecutor. So it was the same misinformation that was used in the court, meaning that it was not a question of the court "disregarding" the evidence put before it in the first trial. I do not think that the court did this, but I do think it took an 'impressionistic' view of the evidence, just looking superficially at the supposed mass of evidence against the accused and concluding from that that they must have been guilty. By this approach, Bill Roache would have been convicted last week, but instead the jury took a critical look at the claims, found them to be contradictory, and came to the only logical conclusion. The second trial of Knox and Sollecito did look critically and logically at the evidence and found the prosecution claims to be lacking. The recent reconviction is based on resurrecting the so-called "evidence" that was discredited when it was examined critically, reviving the impressionistic approach that because there appears to be so much evidence against the accused (never mind that much of it is fabricated) they must be guilty.

Anonymous said...

How any reasonable person would believe Knox is guilty is outrageous! Clearly a victim of disdain for Americans and an over zealous prosecutor, Knox was portrayed in the media as guilty even though ALL evidence pointed to Guede. There was no credible DNA of hers at the crime scene and no motive.

Anonymous said...

And I don't understand how a system that allows "double jeapordy" can NOT be questioned as being flawed. I suppose your point is that the American system is flawed as well, but at least in the US when you are found innocent the case is over. I believe if you read the comments from the judge that threw out the original conviction and read up on this case you will find there is no reason at all for a guilty vetdict