Staging of a Crime
9. STAGING OF A CRIME
ABSENT AND MANIFESTLY ILLOGICAL MOTIVATION – C.P.P. Article 606, letter e)
[pp. 93-98, translated by komponisto]
With respect to this charge, the ruling has acquitted the defendants because the act did not take place [perché il fatto non sussiste].
Before proceeding to the detailed examination of the Court’s motivation, we must explain an anomaly that has ended up distorting the principles established by the legislature in C.P.P. Article 238 bis, as illustrated in the preface.
The (limited) usability of the definitive ruling issued in the same case [per gli stessi fatti, lit. “for the same facts”] against Rudy Guede, was, as we know, subject to being evaluated by the Court under the rule of judgement dictated by C.P.P. Article 192, 3rd paragraph; that is, together with all the other elements of proof introduced into the trial of Knox and Sollecito.
In the case at hand, the Court has revisited the issue of the staging, without assessing any new evidence not already used and evaluated in the definitive ruling that convicted Rudy Guede of the murder of Meredith Kercher. All witnesses confirmed the statements they made in the course of the preliminary investigation, and the evidence available to the different judges was the same; yet their conclusions turned out to be opposite. The local Court has redone this part of Rudy Guede’s trial — and has found him guilty, in contrast to the definitive ruling. The defendants’ acquittal of the offense of staging a crime is not the result of [any] failure to establish their [own] criminal responsibility, but is rather the consequence of a paradoxical finding that Rudy Guede — not on trial in these proceedings — was responsible for committing the act. Aside from this anomaly which [itself] makes the territorial Court’s decision on this point illegitimate, it seems appropriate to show how, in this case too, the reasoning of the appeal judges reduces to a petitio principii.
In the ruling under appeal, it is claimed that “The first-level Corte di Assise rules out the possibility that Rudy Guede could have had an interest in staging the burglary via breaking the window, recalling that he himself had been surprised inside a Milan nursery [asilo] just a few days earlier, where he had illicitly entered at night…so that it would be truly strange … for him to have staged an illicit act that he was in the habit of committing in order to deflect suspicion from himself.” (p.115)
And further: “In truth [however]… it is exactly that evidence which leads the Court to maintain that there clearly was a staging which suggests that Rudy Guede thought he could remove suspicion from himself, since a professional thief does not stage a burglary but commits it for real.” (p. 115)
According to the C.A.A. [then], in contrast to the ruling of the Corte di Assise, Rudy Guede had an interest in staging a burglary.
The notion that Rudy had an interest in staging is, first of all, stupefying, to say the least: why in the world would he? If someone had [in fact] seen him, and he knew it, he would not have been able to do anything; if he did not know it, the device still would not have helped him; [and] if no one had seen him, its purpose would have been to make the evidence point to a thief, reinforcing the possibility that it would have ended up pointing to him. The staging could not have been carried out but by someone with an interest in diverting suspicious from those who were in that house — practically only Amanda, as the other two tenants (Romanelli and Mezzetti) and the young men of the first floor had ironclad alibis.
Independently of this paradoxical premise, it should be noted that the C.A.A.’s argument is a fallacy known since ancient times, called corax (after Corax [of Syracuse], who is credited with identifying it). Like the petitio principii, the corax is a “circular” — thus “futile” and “inconclusive” — argument. An argument that proves nothing. To give an example, the argument is of the form: “since Smith [Tizio] publicly accused Jones [Caio] just a few days before his murder, it is improbable that he is the one who killed him; otherwise he would not have threatened him in front of witnesses!”. But the argument is circular — as we have said — for the simple reason that every corax can be answered with another corax. In fact, in the example just given, one can object that “it was him after all, since he thought that making that very threat would protect him from this accusation!”… By means of this logic — to summarize without showing how many coraces could follow, because they are infinite — one does not manage to prove anything. No circular argument, indeed, can be used to prove anything.
On a logical [logico-giuridico] level, the hypotheses of the Corte di Assise is not [so much as] scratched by the appeal judges’ response, since the latter is logically nonexistent, falling into the circular-argument fallacy known as a corax.
As for the veracity of the staging, the arguments offered in the ruling under appeal do not suffice to prove the opposite. This is because the conclusion that the C.A.A. comes to is based on hypotheticals: if the shutter was open (not taking into account at all Romanelli’s statements in the first-level trial; see the transcript of the hearing of February 7, 2009, at pp. 25, 26, 67, 68, 96, 103, 104, 115, and 116); if a window is broken it can also happen that no fragments remain on the sill; if the intruder entered via the window, they might also not have left signs on the wall or on a nail, which turned out to be straight and uncut, etc. It seems obvious that we are going beyond probability, so deprecated by the C.A.A. in the conclusion of its own motivation, and instead reasoning on the basis of mere possibility.
Independently of the erroneous formulation of the argument, the ruling leaves us in the dark on a whole series of points that it should have clarified in any case. Indeed, it fails to explain:
- how in the world the climber could have thought to go up without a ladder at night, especially without knowing beforehand about the existence of the nail;
- how it could have happened that, in such conditions of time and place, the climber left no trace on the wall;
- why it should be thought plausible that the climber could really have resorted to a two-step process, having to first push the shutters aside and then proceed to ascend after having thrown the rock — aside from the uncertain result of such a throw;
- why the glass fragments which, due to the throwing of the stone, should have fallen on the outside as well, were found only on the inside; and also why, in any case, they did not hinder the ascent of the climber, who left no traces of blood on the sill, proving that there were no cuts to the hands.
Finally, it is wholly incongruous that if the climbing thief had really broken the glass before entering through the window, the glass fragments could be found above and below the clothing; and it is still more incongruous to think that this could happen after the ransacking of the clothing, given that one cannot see how the fragments could have ended up — that is, climbed back up — on top of the already-ransacked clothes. The illogicality of the theory based on the frenetic nature of the maneuver is manifest, as this argument is devoid of any concreteness or coherence, also because the supposed burglar had then immediately wandered off somewhere else [aveva ben presto sconfinato in ben altro], so as to make all commentary on the reasonableness of this explanation unnecessary.
And above all: the obstinacy [pervicacia] of the climber, steadfastly determined to perpetrate the burglary, as it is explained, without having first checked that there was nobody inside the house? This applies all the more in the case of the 9:30/10:15 pm timeline hypothesized by the Court, when it is reasonable to assume that there were still signs of Meredith’s presence, she having just come home. However, if we assume the opposite, at whatever time one wishes to hypothesize, it is wholly incongruous that the unknown person could have made such a clatter [fracasso] as supposed with the throwing of the rock and the shattering [frantumazione] of the glass, without Meredith noticing and taking flight, seeking shelter, or calling someone for help; and further, one cannot see why in the world the climber, intending to commit a burglary, did not steal anything when all was said and done, took only the telephones which were then abandoned, and, on the other hand, had been possessed by an unusual homicidal madness, subjecting the poor victim to the treatment we know she received — something which implies an approach of an entirely different nature and a criminal plan of quite another type.
But to all these questions — which the first-level ruling had taken up, giving an answer that was coherent and in line with what emerged at trial — the ruling under appeal gives no response at all. On the contrary, it formulates hypotheses which would have to be proven by an inductive argument; but these hypotheses, far from being checked against the certain elements resulting from the trial, become, for the judges, certainties [themselves] from which to pump out [far scaturire] consequences [just] as fallacious as the initial hypothesis.
The whole motivation on this point follows this pattern, described in the preface as petitio principii, and realized as a motivational flaw in the form of nonexistent motivation, or that of manifestly illogical motivation (C.P.P. Article 606 1st paragraph letter e)).
Attachment 22: transcript of Perugia Corte di Assise hearing of February 7, 2009