Procedural Ruling of 12-18-2010: Admission of Expert Review

1. PROCEDURAL RULING OF DECEMBER 18, 2010: ADMISSION OF EXPERT REVIEW IN THE APPEAL TRIAL

ABSENCE OF MOTIVATION OF THE PROCEDURAL RULING OF 12-18-2010; CONTRADICTORY AND MANIFESTLY ILLOGICAL MOTIVATION OF THE VERDICT ON THIS POINT (C.P.P.  ARTICLE 606 LETTER E)).

[pp. 20-27, translated by komponisto]

The appellate Corte di Assise has motivated the admission of expert review, requested by the defense and rejected by the first-level Court, as follows: “A respect for the rule set forth by C.P.P. Article 533 (conviction only if the defendant is guilty of the crime with which he or she is charged beyond all reasonable doubt) does not allow us to entirely accept the decision of the first-level Corte di Assise regarding the investigative requests made by the defendants’ attorneys. The identification of DNA on certain items and its attribution to the defendants turns out indeed to be particularly complex, due to the objective difficulty for individuals not having scientific knowledge in formulating assessments and opinions about particularly technical material without the aid of an official expert [un perito d’ufficio], whence the need to order an official expert review.” (p. 17 of the procedural ruling of 12-18-2010).

The absence of any motivation on this point is something which [absolutely] leaps to the eye [circostanza che balza agli occhi]: the decision is supported exclusively by the redundant [pleonastico] argument relative to the particular complexity of particularly technical material, without taking into account what emerged during trial at the first level, where there was an extremely ample debate about the results of the genetic tests — with particular reference to the DNA found on biological traces collected by the Scientific Police on the knife recovered from Sollecito’s house (exhibit no. 36) and on the clasp of the bra (exhibit 165b) worn by the victim at the time of the murder  — on the part of the staff biologists [biologi funzionari] of the Scientific Police on the one hand, and distinguished consultants for the parties, on the other.

The Supreme Court’s orientation on this matter has been consistent in holding that: “The reopening of trial in the appeal phase has an exceptional character; a presumption of completeness of the evidentiary investigations of the first-level court must be overcome. Hence it may be resorted to only when the judge finds it necessary in order to come to a decision” (Cass. Sec. 3 no. 24294 of 4-7-2010) and that, precisely in consideration of the presumption of completeness of the investigations performed at first level: “the decision to proceed to reopening must be specifically motivated: account must be given of the use of discretionary power, deriving from an acquired awareness of the relevance of introducing the evidence” and of the impossibility of deciding on the basis of the existing record [decidere allo stato degli atti].

It cannot be doubted that the procedural ruling in question here does not come anywhere close to satisfying the requirements put into relief by the decisions recalled above: certainly not with the general reference to conflicting theories expounded [enucleate] by the parties at first level; certainly not with the improper reference to the provision under the amended [novellato] C.P.P. Article 533, which is to be invoked [richiamato] and applied by the judge at the time of assessing the evidence, and not before at the distinct and logically prior moment of approving the admission of a means of assessing evidence (such as an expert review).

In other words, the Corte di Assise di Appello would have needed to indicate what the gaps were (if there were any, though there were not) in the genetic tests carried out at the first level; which matters were insufficiently worked out; which aspects of the genetic investigations deserved further study. None of this was written down, and the Court was content to declare itself unsuited, on its own, to evaluate the (evidently exhaustive) conclusions submitted [rassegnate] by the opposing experts [professionisti] at first level — thereby explicitly and unacceptably asking the independent expert [perito] to make the choice about which theory to prefer.

That this was the fallacious train of thought [percorso mentale, lit. “mental path”] followed by the judges is shown by the motivation of the verdict, which — far from remedying the defect of motivation of the procedural ruling — makes the flaw even more apparent: “During the first-level trial, attorneys for the accused had, through their own consultants, already criticized many aspects of the procedure followed by the Scientific Police regarding the correctness of the evidence collection methods, the genetic tests, and the reliability of the conclusions reached. However, their request that the Court order an expert review to resolve the conflict on this point went in vain: whence the repeat of the request, subject to partial reopening of trial proceedings [rinnovazione parziale della istruttoria dibattimentale]. This Court explained the underlying need for this measure in an order arranging for an expert review on 12.18.2010: the identification of DNA on several items [reperti] and its attribution to the defendants is, in truth, particularly complex due to the objective difficulty for people without scientific knowledge of making choices and forming assessments on particularly technical matters, without the aid of a court-appointed expert” (p. 67 of the ruling under appeal).

To the problem, explained already, of absent motivation of the procedural ruling, this argument adds that of manifestly illogical motivation of the verdict; the latter has fallen into the serious error of finding it possible to delegate to others the assessment of evidence already introduced at first level, contrary to the principles which inform the freely-held opinion of the judge, recalled by this very Supreme Court: “In the matter of judgement, the evaluation of introduced evidence is the exclusive competence of the judge, who exercises it according to the principle of freely-held opinion, and is prohibited from delegating it to external scientific knowledge, whose value is exclusively instrumental and supplementary to judicial knowledge.” [18]

The mistake [equivoco] that the second-level Court has fallen into appears all the more serious if we consider the abnormal critique directed [mossa] to the first-level verdict, which had rejected the [same] request (already formulated by the defense under C.P.P. Article 507), finding that the naming of an independent expert would not have removed from the judging Court the burden of identifying the  most appropriate [congrua] interpretation from among those offered by the various experts (which, in essence, reduced to affirming or denying the attributability of the DNA analyzed by the Scientific Police to the victim and to Knox — in the case of the traces found on respectively, on the blade and the handle of the knife — and to Sollecito, in the case of the trace found on the bra clasp).

The Corte di Assise di Appello, distorting the meaning of the argument proffered by the first-instance judges, criticizes the decision in the following way: “The first-level Corte di Assise, then, saw fit to resolve a scientific controversy, recognized as particularly complex, based on scientific assessments formed directly by the Court itself. In contrast, this second-level Corte di Assise did not consider that the personal knowledge of the judges, professional and popular, was such as to allow us to resolve an essentially scientific controversy – to resolve it, therefore, on the basis of scientific criteria – without the aid of trustworthy experts appointed by the Court, and who could carry out the assignment entrusted to them with full consultation of the parties [nel pieno contraddittorio delle parti].” (p. 68 of the ruling under appeal). Thus, in a macroscopic error of interpretation [errore di lettura], the second-level Court has confused the principle of freely-held opinion at the basis of the first judges’ decision regarding the superfluousness of an independent review, with the supposed assumption on the part of the same judges of their ability to formulate their own hypotheses of a scientific nature.

The falsity and illogicality of this is manifestly obvious: it is false because the first-level Court duly examined all the theories proposed, giving a thorough account of the reasons which led to the finding that the Scientific Police’s tests were reliable; [and] it is illogical, because, were we to follow the second-level Court’s reasoning, we would end up affirming that the evaluation by the judge of the independent expert’s conclusions, too, as well as those of the personnel of the Prosecutor’s Office and the consultants for the parties, would require the services of yet another expert. And so on ad infinitum. So much for the principle of freely-held opinion of the judge.

What has been shown up to this point would seem sufficient to demonstrate the absolute defectiveness of the motivation of the procedural ruling and the illogicality of the “additional” motivation on this point contained in the verdict. But the reference to “full consultation of the parties” contained in the last passage quoted above suggests another argument in support of the total defectiveness of the procedural ruling ordering the review. Indeed, nothing has been said about the fact that the genetic tests, the evaluation of whose reliability was assigned to the independent experts via the questionable inquiries formulated by the Corte di Assise di Appello, were performed by the competent section of the Scientific Police in the form of unrepeatable technical investigations under C.P.P. Article 360, withthe protections therein provided in terms of consultation, without there having been any objection [rilievo] during any phase of the operations, and without the suspects and their attorneys having made any request for a special evidentiary hearing [incidente probatorio]. The second-level Court makes no argument in the procedural ruling of 12-18-2010 to support the absolute necessity of the review, notwithstanding the fact that the report by Dr. Stefanoni, the official in charge of the biology section of the Scientific Police, was part of the trial record [fascicolo di dibattimento] in the sense of C.P.P. Article 491, and was thus fully usable for the purposes of a decision. [19]

In this case as well, the belated motivational supplement in the verdict, prompted by the General Prosecutor’s closing argument, not only fails to fill the gap that has been shown, but adds flaw on top of flaw, and deserves to be quoted in its entirety: “Nor is the power and duty [potere dovere] to order an expert review to resolve problems too complex for the collective knowledge of the judges, popular and professional, diminished purely because the tests [accertamenti] carried out by the Scientific Police in the course of the investigations used unrepeatable testing methods, with no special evidentiary hearing [incidente probatorio] having been requested: firstly, because the inability to repeat [the test] does not stem from the methods used, but from that test truly being unrepeatable; and secondly because, in any case, the methods used do not serve to plug the gaps [in knowledge] of the trial judge, who does not become less ignorant solely because the test was performed using particular methods. After all, it is precisely for this reason that C.P.P. Article 224 allows the Judge to order an official expert review.”

This passage represents an exceptional mass of illogicality, contradiction, and erroneous interpretations of procedural law. While one cannot but agree that unrepeatability occurs when the test is unrepeatable, and that the “particular methods” to be followed derive from the unrepeatablity of the test and not vice-versa, one cannot [possibly] understand with what motivational force such a tautology could be invested, which explains nothing about the fundamental [sostanziale], preemptive, and prejudicial mistrust of the results of this test, notwithstanding the fact that procedural law confers upon it an unconditional usability —  appreciated by the Corte di Assise at first level, not without having thoroughly examined and motivatedly refuted the critical assessments put forth by the consultants for the defendants.

The second-level Court refuses, a priori, to examine the tests of the Scientific Police, which, so it says, do not render it “less ignorant” because they were performed with consultation as required and demanded by C.P.P. Article 360.

The assessment of evidence is confused with the source of knowledge; the power of the first-level judge is confused with that — restricted by the provisions of C.P.P. Article 603 paragraph 1 — of the appeal judge; the motivational obligation, even in relation to C.P.P. Article 224 (improperly cited), is ignored; the principles which govern unrepeatable technical investigations are ignored; any and all motivation on this point is omitted; and, finally, a willingness to delegate the evaluation of the results of the genetic tests to an independent expert — as in fact happened, as we shall see — is confirmed.

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Usable Records:

Attachment no. 04: C.A.A. Procedural Ruling of December 18, 2010

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[18] all citations from Cass. Crim. Sec. 3 no. 42984 of 10-4-2007

[19] all citations from Cass. Crim. Sec. 3 no. 42984 of 10-4-2007

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