Italian justice on trial:
Judge Alessandro Nencini reads the verdict
in the retrial of Amanda
Knox and RaffaeleSollecito
last month. The
pair's conviction for
murder, after an earlier acquittal, has baffled
average people and legal
scholars alike.
After Amanda Knox, it's Back to the Drawing Board for Italian
Justice (Diritto, Italy)
"Try explaining to an American that a defendant can be
convicted, then acquitted, and convicted again, while still waiting for a final
verdict, and, in the meantime, put in jail for four years. Whether you explain it
to an average man on the street or a distinguished jurist, he will look at you
as if you are a savage from some superstitious, godforsaken tribe. ... The
moral of the story: I haven't a clue (like everyone else) of what happened that
night when a girl was killed, but I know for certain that in the court of
justice, after seven years, no certainty has been reached."
Amanda Knox doing time in Italy: Whatever the truth of the charges against her, Italy's justice system seems to have made a hopeless muddle or the case - at least for Americans.
Try
explaining to an American that a defendant can be convicted, then acquitted,
and convicted again, while still waiting for a final verdict, and, in the
meantime, put in jail for four years. Whether you explain it to an average man
on the street or a distinguished jurist, he will look at you as if you are a
savage from some superstitious, godforsaken tribe. It goes without saying that
if one of their citizens, like Amanda Knox, were to find herself convicted by
such a mechanism, sending her back would be out of the question. This
is somewhat paradoxical, because when it came to one of our citizens, whom they
convicted (Silvia Baraldini), they didn't want to return her because they were
convinced she would be released. When they finally surrendered her, the justice
minister (OlivieroDiliberto) welcomed her at the airport as if she
had returned from the Gulag.
So, rightly, they see us as a tribe that is not only unreliable, but provocative.
The
good thing (so to speak) is that we remedied such regrettable issues with Law
No. 46 of February 20, 2006 - better known as the Pecorella
Act. The act established that in cases of acquittal, the prosecution may
only appeal to the Court of
Cassation [which rules on trial procedure rather than evidence]. The reasoning was simple: in 1988 the Criminal Code adopted
the
accusatory model [Americans would say the "adversarial model"], which establishes that a conviction can only be
imposed when there is no "reasonable doubt" of guilt. So if a
tribunal or court has already acquitted a defendant, then it is quite obvious
that from that point forward, there is a reasonable doubt.
The
Pecorella Act was sent back to the legislature because the president of the republic
(then Carlo AzelioCiampi) had doubts
about it. Yet it was approved again and enacted. Then the Constitutional Court,
with three coordinated judgments, tore it to pieces. The underlying reason: the trial process must be taken as a whole, so if they acquit you on your
first or second appeal, you're still not considered innocent, because one must
wait for the entire legal process to conclude. In a process wherein the parties to
the trial must be equal - if the defense can file an appeal, so, too, can the
prosecution.
Posted By
Worldmeets.US
Try
to make an American, who considers a verdict final, understand this. For an
American, the trial, which occurs in a courtroom, is a cross-examination of
both parties that concludes with a verdict. So if you're acquitted, the state
loses its right to charge you - forever (aka/double jeopardy). This is
profoundly reasonable because it is in no way true that the parties have
equal capacities; the weight of the state is immensely superior to that of the
citizen.
Add
to this, quite consistently, the United States has no Court of Cassation, which
has a place in systems of civil
law [most of continental Europe], but not common law [the U.S. and
Britain]. Under the common law [prevalent in the United States,] the following
of proper procedure is guaranteed by the judge, who presides, but in criminal
cases like murder, a jury and not the judge rules on guilt.
An
appeal to the Court of Cassation, as provided for by the Pecorella Law, is
supposed to center not on the merits of a case, but on whether the rules of
legal procedure are followed. In Italy, however, the Court of Cassation has increasingly
issued sentences based on merit, examining not only the correctness of the
trial process, but also the propriety and reasonableness of motivations (which
in the USA, rightly, does not exist). These opinions, in turn, have become
literary phenomena, which, rather than explaining the reasons for a verdict,
delve into an examination of circumstances and conscience - just like the tribal
stuff of shaman.
The
moral of the story: I haven't a clue (like everyone else) of what happened that
night when a girl was killed, but I know for certain that in the court of
justice, after seven years, no certainty has been reached. I know, however,
that (as with the infamous reform of Title
V of the Constitution), we already possessed a remedy, but then we repealed
it, so now we have to go back and review the whole shebang, because this is
nonsensical.
