Thursday, January 13, 2011

Italy the EU and the international standards of justice

Why have trails at all?  What's the point?  Prosecutors are usually right, police investigate.  If the police knew they were not handing suspects off to a court but rather directly summary punishment / execution they would even be more careful.  We already have a grand jury system to avoid the worst abuses.  So why bother with the expense and time of a trial?

I want you to think if you really object to extrajudicial punishment.  Is it OK to punish the probably guilty or do you need the virtual certainty of beyond a reasonable doubt?  Julian Assange's lawyers were arguing in a British court last week that there was a serious threat of Assange disappearing into the USA's now fully functioning extrajudicial punishment system.  Prior to 2001 the idea that the USA would be OK with running an extrajudicial punishment system in a systematic large scale manner was unthinkable.  I'm still deeply ashamed that I agree with Julian Assange that there is no guarantee once he is in US custody of a fair trial.  The world has started treating the USA like Egypt when it comes to criminal justice because we have started to act like Egypt.

The country that has most effectively led the charge against the USA on violating international norms of justice is Italy.  Italy forms the backbone of the EU's opposition to the death penalty (link).  The advertisements in the upper left hand corner of this post are by Benetton, a series of people on death row in America whose faces are being used to promote their clothing.    The point of this image is to demonstrate how mainstream opposition to the death penalty is in Italy, that being associated with the anti-death penalty movement is like an American company wanting to be associated with Nascar.

But what is the moral basis of opposition to the death penalty in a foreign country?  Italy makes the standard arguments: lack of deterrence, unfairness, inevitability of error, barbarity of methodology, cost but those are essentially domestic arguments.  There they attack the death penalty for undermining human dignity and lacking deterrent value and the irreparable harm that it causes.   But if you think about it there is underlying idea that trials should have a universal moral legitimacy beyond the scope of the governed.  That governments should not engage in the naked use of power, they have physical possession of the citizen of another country and thus the right to with them what they will.  In other words it is irrelevant to the United States whether Italy thinks our justice system is moral or immoral unless there is some underlying basis of morality that needs to be appealed to.    They are one of the primary authors of UN 62/149, which calls for an immediate moratorium on the death penalty precisely because they do believe in an underlying moral basis for criminal justice that is subject to international oversight.

The EU and Italy in particular have argued forcefully that 
  • The Death penalty
  • Torture
  • Detention without trial, Guantanamo Bay
  • Renditions (kidnapping)
undermine our -- with "our" being the west, the civilized world, the member states of the United Nations... -- shared sense of justice.  But what basis do they have for these complaints if they hold that people captured by Italians should be subject to arbitrary Italian law without any international review or input?  

Now lets return to the original question about why have trials.  In the 12th century Henry II, King of England,  was trying to centralize power.  One of the ways to do this was to develop a direct relationship between the governing authority (the King's judges) and the people (the jury) that bypassed the local officials (the sheriff).  So Sheriffs would have the authority to execute, judges ruled on matters of law (guaranteeing the King's control of the law) and juries ruled on matters of fact.   The jury guaranteed the King's laws were applied in a way that the people approved of, preventing a popular resentment from building up against the national government which the local government could exploit.  Thus by empowering the people as a check on their local governments, the King enhanced his own power and created a system which had legitimacy at every level.  For a person to be convicted and punished: the local government, national government and people need to agree.

And this established a basic concept in law that the punishment of offenders needs to have popular consent.  It should be noted that Henry II's reforms  was the point our system forked from the Inquisitorial system, the system that exists in Italy today. Italy accepts the underlying morality of Henry's reforms if not the specific mechanism (the jury) .  For example Italy certainly considers Israeli trials of Palestinians to lack legitimacy because they arise out of an "occupation government" that is to say a government that lacks the consent of the governed.   Italy's attacks on Israeli justice point to another example of where Italy as a matter of policy holds that criminal law is in some sense universal and not just an arbitrary use of power by the state, and moreover needs to be.

So given that, what should Italy's response be when they've held a trial and Americans find the evidence wanting?  This is a big deal, normally the punishment not the actual guilt is in question, so this is an unusual case.   Yesterday, a poster on my board showed me the actual forensic methodology used to disqualify Raffaele Sollecito's alibi and there is no doubt that the methodology is highly questionable (see windowserver.log, Raffaele Sollecito's alibi witness for an extended discussion).  That Raffaele should be doing two decades in prison based on is a travesty, it is quite simply morally repulsive.  I do not see how Italy can claim to believe in universal standards of justice and behave like this.  Every time I learn more about this case I become further disgusted with Italy's handling of it.  I don't think I'm alone in the effects of education.

This trial reminds in many ways of Mumia Abu-Jamal, an activist with a domestic terrorist organization called MOVE conviced for the 1981 murder of Daniel Faulkner who developed a widespread following almost immediately that became a major political cause in 1984.    Since the early 1980s there have been movies about his conviction pro and con continuing today (as those links show).  Italy itself is on Mumia's side (see item Y).  In Mumia's case I thought he was guilty and was rather opposed to MOVE though at this point I think he's reformed and I'd have no problem with his release.  Amanda is well on her way to achieving this same kind of long term controversy.  The parades the films the.... all attacking their justice system all undermining Italy's ability to be a leader on human rights.  You would think they would want a lot in exchange for losing their moral authority.  I don't understand is what Italy possible hopes to gain from his.

The "best case" for Italy is that Amanda does her time. Interest in her case wanes.  She emerges a hardened criminal, no longer the girl with the naive faith in justice, no longer the girl who couldn't bring herself to even look at the crime scene photos.  Now she seen people sliced dozens if not hundreds of times, she has seen done far worse than anything Meredith Kercher was involved in.   Since Italy has a shortage of prison beds to keep this "murder" in prison means they have had to not hold many other prisoners.  To simplify lets say over the course of 25 years say a dozen Albanian prostitutes that rob/stab customers. So they have an extra 200 stabbings to show for their detention.  Destroying Amanda and driving their domestic crime rate up is the best case for Italy as far as I can tell.  If someone wants to propose a better case feel free.

Another possible case, is she dies in prison or is seriously injured, particularly if it is at the hands of a guard.   High security prisons are not low risk environments so this is a very likely outcome.    If interest has waned then this really doesn't matter very much, most likely as her death would be a passing footnote.  If interest has not wained she becomes a martyr.  She's remembered forever as the image to the left.  Seattle unquestionable severs their sister city relationship with Perugia (link).  Italy has no moral authority on criminal justice issues for a generation, the EU move to suspend the death penalty is over.  And that's assuming that there are no cases involving Italian nationals around the time of her death in Washington or Oregon courts so that things heat up even further.  The same sort of thing would happen if the court of appeals reverses on premeditation and Amanda and Raffaele get life.   These are the scenarios where there could be real meaningful blowback for Italy and its the sort of thing the state is not well equipped to avoid.    The US still suffers substantial blowback from an assassination we were involved in 1953.

A more reasonable possibility is that the court of appeals is sane enough to realize what happens when the American girl is still in jail for over a decade more than the rapist on a rape murder and gives her a sentence reduction that gets her sentence down around Guede's or shorter.  At worse  they both get paroled after about 8 years in jail, 2015 or so.  There is lingering resentment but the issue can die down.  People like myself who think she's most likely guilty of something like manslaughter, aggravated sexual assault or obstruction can live with an 8 year or less sentence.   While obviously I support immediate release due to severe prosecutorial and judicial misconduct, this would be a very sane outcome that's easy to achieve at this point.    A way to backoff from a train wreck that I would urge the court to consider.  

And those are the scenarios with no upside.  Normally there isn't much upside to imprisonment, states detain dangerous people so they don't reoffend.  The argument being that these prisoners pose an ongoing threat.  The people to whom Amanda posses the most threat, assuming she were guilty, are the people the city she is likely to return to, Seattle.  The people of Seattle are eager and enthusiastic for her return.  They clearly understand and embrace the risk.  The downside of release simply does not apply in this case.   Even from a purely pragmatic standpoint the plusses and minus for Italy seem unbalanced in continuing their persecution.

On the FOM side, I'm running into essentially a different group of authoritarians than usual.  Usually the authoritarians I deal with tend to see a group of church leaders as being essentially infallible, truly wonderful people motivated only by the best interests of all concerned, people who by default should be trusted.  Now those people tend to have a fairly skeptical view of the government and the courts.  They quite often have seen the IRS engage in abuses and have enough connection with the working and lower classes to have seen the innocent get convicted in traditional courts all the time.  Many of the people who believe most fervently in church discipline do so because they believe the state has become utterly morally corrupt.  If they are authoritarian towards the state it is usually mainly in theory not in practice, Gary North felt free to talk about the Obama inauguration with an essay, The Audacity of Hype.

This new group seems to view courts in essentially the same way.  Their argument is that we as individuals have no right to question the details of the court cases.  A good example was when I had a problem with a statement in Massei.  The guilt side made sarcastic comments about Raffaele's defense, the innocent side provided me with more information about how the analysis was conducted.  One side argues for blind faith the other for reasoned discourse.  The forensic case is key for me, because it proves that  even when we know that some of the findings in Massei, are easily demonstrably falsifiable the persons who support guilt are unmoved to change their opinion regarding that fact, not about the entire case but about the finding.    In 1519 Luther stood against this very attitude at the Diet of Worms and held that all men were bound by conscience to judge the good by conscience, by reason and by divine law.  While I would never compare myself to Luther I would urge all readers to consider his words with regard to the blind submission to Massei as the final arbitrar of truth:
Unless I am convinced by the testimony of the Scriptures or by clear reason (for I do not trust either in the pope or in councils alone, since it is well known that they have often erred and contradicted themselves), I am bound by the Scriptures I have quoted and my conscience is captive to the Word of God. I cannot and I will not retract anything, since it is neither safe nor right to go against conscience. God help me. Amen. Here I stand, I cannot do otherwise. 

See also:
  • Brazil / Italy debate over Ceseare Battisti (link
  • Politics and Inerrancy another foray into the connection between religious fundamentalism and support for right wing ideology.  
  • The economist has been critical of Italy's justice system over the years considering it an underfunded, slow and inefficient mess.  (sample editorial)
  • An article published later (Oct 3, 2011) talking about how Perugia has been negatively effected by this case: Perugia fights sex-and-drugs image.


halides1 said...


This is a very interesting article. Benjamin Sayagh wrote on the problems of using precautionary detention in this case in an article called
arrested abroad. I am not a lawyer, but from what I can gather, Italy does not have a habeas corpus statute.

CD-Host said...

Its a good article. I agree that preventative detention is really really bad. Its one of the reasons I appreciate our right to a speedy trial. There are things we can learn from foreign courts; but at least on paper, I love our system.

As far as a quick arrest, Amanda could be in the dictionary next to flight risk. Even on my article on prosecutorial abuse I say it came out of his correct decision to toss her in jail during the investigation and then the physical evidence not panning out the way he had hoped.

I know I disagree with most FOA in saying that the suspicions and the indictment are justified but the conviction is not. But I'm OK with saying:
I think she probably had something to do with before or after the fact, but probably having something to do with it falls far far short of being proven to have been a primary in a murder beyond a reasonable doubt.

The correct solution to the Amanda Knox problem was allowing her to plead to a reasonable charge like obstruction.

halides1 said...


I disagree about the decision to put her and Raffaele in prison before the forensics came back for several reasons. First, there are other alternatives, such as house arrest. Second, Raffaele was not a flight risk. Third, arresting them increases the chances of cognitive bias in the investigation by forensic police.

You wrote, "People like myself who think she's most likely guilty of something like manslaughter, aggravated sexual assault or obstruction can live with an 8 year or less sentence." Can you expand on why you believe this?