Procedural Ruling of 9-7-2011: Denial of New Expert Review

2.1 PROCEDURAL RULING OF SEPTEMBER 7, 2011 – DENIAL OF NEW EXPERT REVIEW

CONTRADICTORY AND MANIFESTLY ILLOGICAL MOTIVATION. FAILURE TO ADMIT DECISIVE EVIDENCE — C.P.P. Article 606 letters e) and d).

[pp. 27-32, translated by komponisto]

In a procedural ruling of 9-7-2011, the appellate Corte di Assise denied, among other things, a request of the General Prosecutor to order a supplementary expert review with the aim of performing genetic analysis on the quantity of human DNA extracted from the new trace sampled by the experts on the blade of the knife (trace I of the Conti-Vecchiotti report) near the point where Dr. Stefanoni of the Scientific Police had sampled the trace from which she had extracted the DNA attributed to Meredith Kercher.

Although the first inquiry formulated by the Corte di Assise di Appello was concerned precisely with new samples and analyses of any DNA found, Dr. Vecchiotti elected not to proceed to the analysis and consequent attribution of the extracted DNA because, in her opinion, the quantity was insufficient for a reliable analysis to be performed. That is, the sample was of low copy number, a term used in the literature of the field to indicate a small quantity of DNA.

However, prosecution consultant Prof. Giuseppe Novelli (an unquestioned luminary in human genetics) explained in the course of his testimony (cf. transcript of the hearing of 6-9-2011, pp. 52 et seq.) that, already at the time of the unrepeatable technical investigations performed by Dr. Stefanoni (2007/2008), it was possible to analyze low copy number DNA traces with entirely reliable results; and that, with new machinery introduced in the meantime and already widely tested, one could successfully proceed to the extraction, amplification, and attribution of DNA even with only a single cell (10, 15 picograms) available — a quantity very much below that sampled by the experts (around 100 picograms). Inexplicably, the Corte di Assise di Appello rejected the request, holding that  “Regardless of whether or not the gaps claimed by General Prosecutor’s Office, with the agreement of the civil parties, exist, the tests performed by the independent experts and the evaluative elements proposed by the consultants for the parties allow this Court to form its own reasoned opinion.”

It is true that the Supreme Court’s jurisprudence holds the motivational requirement to be less stringent for a second-level judge when the latter opts for the rejection of an investigative request, but it is also true that, in the case at hand, the motivation can be said to exist in appearance only [esclusivamente sotto il profilo grafico, e dunque meramente apparente, lit. “exclusively in graphic terms, and thus [is] merely apparent”].

Indeed, after the review requested by the defense had been ordered, a new element susceptible of biochemical analysis had appeared in the course of the technical investigations: an additional trace containing DNA, not collected previously.

This discovery should have prompted the Corte di Assise di Appello, consistently with its prior decision to order new tests, to extend [approfondire] the scientific inquiry [indagine] to obtain a more complete assessment of the traces, and in particular of those found in the course of the expert review.

In this regard, the General Prosecutor had, as recalled above, explained that new techniques of biogenetic investigation could have permitted analysis of the sample [reperto], even if the quantity was small; this was illustrated to the Court with the utmost precision and authority of Prof. Novelli, and on the basis of his statements, the state  [la parte pubblica] requested a supplementary expert review.

Faced with the discovery of new evidence and with a request for evidence specifically argued in scientific and legal terms, the Court issued a denial which lacked any real motivation and was starkly contradicted by the need for further biological investigation explicitly asserted in the procedural ruling ordering the [first] review. In the first place, because if the [Court’s] reasoned opinion concerns the results of the investigations performed by the experts, it certainly cannot be formed on the basis of evidence that, by the unilateral decision of the experts, not supported by the consultants for the parties, was not introduced. It would have been different if the experts had reported that they had not found any biological traces, and if the request of the prosecution had been to proceed with further sampling. In that case, indeed, a motivation rejecting the request based on the negative results already obtained would have been appropriate. But the case at hand is quite different: there was a new biological trace, but it was not analyzed and the corresponding profile was not extracted.

Secondly, because the second-level Court denies the relevance of an investigation that it itself had ordered with the first of the inquiries it formulated: “the Expert Panel shall ascertain: whether it is possible, by means of a new technical analysis, to identify the DNA present on items 165b (bra clasp) and 36 (knife), and to determine the reliability of any such identification; if it is not possible to carry out a new technical analysis, shall evaluate, on the basis of the record, the degree of reliability of the genetic analysis performed by the Scientific Police on the aforementioned items, including with respect to possible contamination.” After the experts extracted [repertato] a new trace containing human DNA on the blade of the knife (certainly an unusual finding if one has in mind ordinary use of the utensil, and an entirely significant one — even in and of itself, regardless of the attribution — useful for confirming what was found by the Scientifics on the same blade), they could hardly refrain from seeing the test through to the end; only by concluding this matter [solo a procedimento concluso] could they evaluate the reliability of the result — just as the inquiry itself explicitly suggested. The refusal is all the more unmotivated when one considers the state of technology at the time of the experts’ response to the inquiries, and the trenchant statements of Prof. Novelli, never denied by anyone but the second-level Court itself; the latter asserts in its ruling, contrary to the truth and to what emerges from the trial transcript, that the procedures that Prof. Novelli spoke of are still in an experimental phase (p. 84 of the ruling). Apart from the obvious error of believing the concepts of “cutting-edge” and “in an experimental phase” to be the same — in reality, they refer to wholly different situations: a technique is experimental when its reliability has not yet been fully verified; it is cutting-edge when the methods involved are innovative with respect to their predecessors — what matters more is that Prof. Novelli characterized as “cutting-edge” those techniques with which “…we have been able to analyze, to make profiles, with respect to the standard kits, in the order of ten picograms, so we’re well beyond the famous hundred picograms being talked about today.”

Public Minister: “So below the quantity that was found in these traces?”

Novelli: “It’s possible, look, I myself in my job as a geneticist often find myself analyzing small traces of DNA even relating to diagnostic issues, illnesses, diagnoses on human embryos in which we only have a single cell, we’re talking about seven or eight picograms, imagine how precise and accurate we have to be” (p. 53 of the transcript of the hearing of 9-6-2011 referred to above).

It is clear, then, that the overlooking of the statements of Prof. Novelli, who described as cutting-edge — and therefore practiced by the most equipped and qualified laboratories — those techniques which permit the analysis of quantities of DNA very much below what was found by the experts of the Court, whose motivation on this specific point is thus blatantly illogical.

In point of fact, the failure to admit a piece of evidence that the Court itself had deemed necessary, in granting the reopening of trial proceedings and formulating this specific inquiry for the experts, vitiates the ruling not only in the motivational terms highlighted up to here, but also from the distinct point of view of failure to admit decisive evidence: indeed, if the DNA sampled by the experts had been attributed to the victim, the decisive value of that result would have been obvious: it would have completely neutralized the experts’ conclusions on the unreliability of the analyses performed by the Scientific Police on the murder weapon. Furthermore, it is the teaching of the Corte di Cassazione that parties have the right to present counter-evidence even in cases where the evidence that they intend to dispute was admitted officially [officiosamente] by the judge. With consistent direction, legitimacy jurisprudence has stated, on this point: “With respect to trial proceedings, a judge who — in exercising the exceptional power under C.P.P. Article 507 — admits a new piece of evidence, must also admit the counter-evidence.” [20] We believe that this principle can and should be applied in this case as well, given that, though an expert review is involved, the object would not be an assessment, but the acquisition of data (the profile extracted from the DNA found by the experts on the blade of the knife), which would have constituted a further element of proof.

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Usable Records:

Attachment 6: transcript of C.A.A. hearing of September 6, 2011 — testimony of Prof. Giuseppe Novelli, Technical Consultant for the Prosecutor’s Office.

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[20] Cf. for all citations: Cass. no. 29389 of 5-4-2007