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This should raise una piuma del collo -- o due ...

An American in the Italian Wheels of Justice

NY TIMES
By LIZ ROBBINS
December 5, 2009

The trial took nearly a year. But now that an Italian jury has determined that Amanda Knox, a 22-year-old American student, is guilty of murdering her British housemate in Perugia, Italy, in 2007, the legal wrangling has in some ways just begun.

The verdict was delivered at the unusual hour of midnight local time, with little explanation but a sentence. From that odd timing that capped a drawn-out trial, to the circumstantial evidence introduced, to the jury — made up of two judges and six civilians — that was not sequestered, the proceedings were so distinct from the American justice system. And so confounding to some.

“It’s a strange case to American ears,” said Alan M. Dershowitz, a prominent criminal defense attorney and Harvard University law professor.

And yet, Mr. Dershowitz called the verdict “totally predictable,” saying that the trial was just a “confirmation of the investigation.”

He added: “This is not the end of the line.”

Ms. Knox and her Italian boyfriend Raffaele Sollecito, 25, had been accused of slitting the throat of Ms. Knox’s housemate, Meredith Kercher, 21, of Surrey, England, in November 2007 after a scuffle escalated into their coercing her into a sexual game. Ms. Knox was sentenced to 26 years in prison, and Mr. Sollecito, 25 years. They were tried together. Ms. Knox was also convicted of defamation, as she originally accused her boss, Patrick Lumumba, of the crime before changing her story.

In an earlier trial, a third defendant, Rudy Guede, 22, was sentenced to 30 years for sexual assault and murder, as the judge ruled that he was one of three assailants.

The case, played out in the international media, provoked polarized reactions throughout Italy. But throughout this trial peppered with such unlikely antics by Ms. Knox as cartwheels and grins, her parents complained that the anti-American sentiment was palpable. They claimed the prosecution’s attacks on their daughter’s character were appalling and irrelevant, and based on evidence that was circumstantial. Not surprisingly, they said they would appeal the verdict.

Defense lawyers insisted that prosecutors failed to provide a motive for why Ms. Knox would murder Ms. Kercher.

One leading scholar on international law said that in the context of Italy’s complicated judicial system, and its stark differences with the legal process in the United States, this case could have important international ramifications.

“I think this is a scandal of the first order,” said George P. Fletcher, Columbia University’s Cardozo professor of jurisprudence. “I don’t think this is an expression of anti-Americanism.”

Rather, Professor Fletcher said, this verdict came about because the Italian judicial system has not “adapted correctly” the American judicial system.

“We are the only country in the world that has a real jury system,” Mr. Dershowitz said.

In Italian criminal cases, the jury includes two professional judges, one of whom is the presiding judge in the case. “Many of the European countries have this mixture,” Mr. Dershowitz said. “In general, the lay jurors don’t have as much lay influence as the professional judges.”

Also, the jury is not sequestered until deliberations, opening them to the inflated media coverage of a trial. And in the case of Ms. Knox, there seemed to be leeway about how much inflammatory prejudicial evidence was allowed.

Prosecutors linked Ms. Knox to the murder with forensic evidence that included a D.N.A. sample that was found on the handle of a kitchen knife, although one that was wiped clean and, according to defense attorneys, not the same size as Ms. Kercher’s wounds. In their concluding arguments, the prosecution showed an animated version of how they believe the crime was committed.

And in a sharp departure from American jurisprudence, the prosecutors portrayed Ms. Knox as promiscuous and wanton.

“In the United States, character evidence does not come to play in the trial unless the defendant puts it in play,” Mr. Fletcher said. “The prosecution can’t come into court and say my guy is a bad guy. In this case, even if there a sexual motive, so what if, say, she had a dozen boyfriends? That is not relevant here.”

For his part, Mr. Dershowitz explained in a telephone interview, there is at least one difference between the Italian and the American system that could actually work in Ms. Knox’s favor. “The best chance of getting a fair assessment comes at the appellate stage,” he said, explaining that trial is “more probing.”

As Rachel Donadio writes in The Times:

Unlike in the American system, where appeals center on issues of law, not fact, in the Italian system, defendants can ask to retry the entire case from scratch in the first round of appeals.This is known as a de novo review.

“The chance of getting a reasonable review of the case is fairly high,” Mr. Dershowitz said. “It is a highly circumstantial case. Everybody has to at least acknowledge that there is a plausible claim of innocence.”

Prosecutors had argued for a life sentence for Ms. Knox and Mr. Sollecito.

“Life sentences are usually reserved for hitmen and mafia murders,” Mr. Dershowitz said. “In Italy at least, the sentence reflects a division. It could be that there are some doubts.”

Moreover, in Italy a jury does not need to be unanimous but only needs a majority to convict on murder. The entire jury deliberates on the verdict, while the judge decides the sentence and awards the damages. How the jury in this case voted has not yet been released, nor has a longer explanation of the verdict. That could take up to 90 days.

In another departure from American law, in addition to the verdict and sentence, Ms. Knox was ordered to pay punitive damages to the Kercher family — about $4.24 million (2.8 million euros) — which happens in the United States only in a civil trial. But those damages are still pending a separate civil trial.

“I think we have to have the courage to condemn this proceeding because we do not want international courts paying attention to this kind of interaction between the common law and the civil law systems,” Mr. Fletcher said.

Ms. Donadio described the Italian court proceedings as “Kafka-esque.”

Or as Mr. Dershowitz acknowledged, the Italian legal system “is not among Europe’s most distinguished.”

Copyright 2009 The New York Times Company