March 27, 2015 by AK
Peter Gill coauthored the 1985 article in Nature that proposed using DNA “fingerprinting” in forensic science. Later on, Dr. Gill developed a “super-sensitive” method of DNA typing known as “low copy number” (LCN) or “low-template” profiling.
John M. Butler, the author of the best-known textbook on forensic DNA typing, wrote in 2014:
In my opinion. over the past three decades no one has done more to advance forensic DNA analysis and interpretation than Peter Gill.
However the use of LCN DNA as trial evidence has been criticized by forensic scientists on both sides of the Atlantic. Its validity was a central issue at the so-called Omagh bombing trial in Northern Ireland in 2007, which ended in an acquittal as the judge was convinced that the LCN DNA evidence was unreliable. The US forensic biologist Dan Krane testified for the defense. Although Peter Gill testified for the prosecution, judge Weir commended his integrity:
…Dr Gill… was willing to carefully consider the propositions put to him by [defense attorney] Mr Pownall QC and, where appropriate, to disagree with his colleague [another prosecution expert] on important issues both general and specific to the case. In my view it was extremely fortunate that the prosecution decided late in the day to call Dr Gill as his evidence greatly helped to inform and bring some objectivity to the debate.
The Omagh trial fiasco prompted a suspension of the use of LCN DNA in UK courts followed by a reinstatement with stricter conditions attached. Prominent US scientists such as the FBI veteran Bruce Budowle and Dan Krane, as well as their UK colleague Allan Jamieson, have continued to criticize the use of LCN DNA for purposes other than providing investigative leads.
Some time in 2009 it became clear that key DNA evidence in the Knox-Sollecito case was highly suspicious, and that it involved LCN DNA – on the knife and possibly on the bra clasp. Greg Hampikian, a forensic geneticist and director of the Idaho Innocent Project, and Elizabeth Johnson, an independent DNA consultant, voiced these concerns in a letter to the Italian court co-signed by seven other forensic professionals, including Dan Krane.
Bruce Budowle also sent a letter of his own, criticizing the knife DNA evidence as improperly obtained.
Finally, the appeal court ordered an independent examination of the DNA evidence collection and testing, which led to the damning 2011 report by Prof. Conti and Prof. Vecchiotti of La Sapienza.
Peter Gill turned to this case relatively recently, apparently while working on his new book, Misleading DNA Evidence. The essence of his findings can be found in this interview with Italian reporters. He was even interviewed by The Daily Mail a few days ago but as I avoid linking to tabloids, it can be found by Googling (“Peter Gill” “Daily Mail”).
I would like to provide short excerpts from the book itself, as quoted by Dr. Zupancic on a support site. It’s remarkable that Prof. Gill has joined his opponents on the issue of LCN DNA usability, Bruce Budowle and Dan Krane, in criticizing the collection and testing of evidence in this nightmarish case. On the knife, Gill remarked:
…this is the kind of profile I would expect to observe, if it had originated from a contamination event.
On the bra clasp, Gill admits that
Y-chromosome testing suggested the presence of three or more males, and the DNA mixture was from three or more people,
which is exactly what the defense has been saying in support of the contamination hypothesis. Gill agrees that this hypothesis makes sense:
There is strong evidence to show that the failure of investigators to change their gloves in between handling items and potentially touching door handles is high risk, giving credibility to the defense proposition that Sollecito’s DNA was transferred as a result of cross contamination.
More generally, Peter Gill is concerned with the reasoning of the convicting judge Massei (referring to the 2009-10 trial; the logic of the supreme court and judge Nencini is similar):
…the problem is that the court debate has been based on speculation rather than experimentation – the latter is needed for any scientific debate.
In particular, Gill criticizes Massei for theorizing that Knox’s DNA on the handle of the knife comes from stabbing rather than merely cooking as
dangerous speculation that is another example of confirmation bias – there is nothing in the scientific literature that remotely supports such an inference.
Forensic science, Gills reminds us, “should not be based upon ‘armchair arguments’ about possibilities and theories.” And forensic scientists must be able to support their testimony with experimental data, not learned hand-waving:
If a scientist expresses an opinion, then this opinion must be qualified by experimental evidence. If an opinion is expressed that appears to have no supporting evidence (in terms of peer review or data analysis) so that it cannot be tested objectively, then it has no scientific basis.
Many thanks to Prof. Gill for defending good science and reason. I must add that by going through the incomplete information the police lab turned over to the defense in 2009, innocence supporters have detected evidence not merely of negligence but of massive data suppression and contamination.
March 26, 2015 by AK
When I discussed Walter Reich’s theory on the Soviet pathologization of idealistic behavior with a colleague, he mentioned a curious episode from the memoirs of a distinguished dissident. He said it was Andrei Amalrik; I’m not sure but here’s the story, anyway.
The dissident was undergoing a psychiatric evaluation, which could lead to “medical treatment” in a special mental ward. The doctors asked the man what had prompted him to make copies of prohibited books, expecting to hear about his principles and convictions. The dissident disappointed them, saying he always worked for money and did the copying for the money, too. That could have triggered an indictment for illegal entrepreneurship – pretty much every kind of small business was illegal in the USSR – but it saved him from being labeled a schizophrenic.
…[T]he mass exodus of peasants to the city has created a new type of city dweller… He is both frightened and aggressive. He no longer has any idea to what level of society he belongs.
While the old social structure in both town and village has been completely destroyed, a new one is only just beginning to form. The “ideological foundations” on which it is being built are extremely primitive: the desire for material well-being (relatively modest from a Western viewpoint) and the instinct for self-preservation…
It is hard to tell whether, aside from those purely material criteria, the bulk of our people possess any kind of moral criteria such as “honorable” and “dishonorable,” “good” and “bad,” “right” and “wrong”…
I have formed the impression, which may be wrong, that our people do not have any such moral criteria or hardly any. The Christian ethic, with its concepts of right and wrong, has been shaken loose and driven out of the popular consciousness. An attempt was made to replace it with “class” morality, which can be summarized as follows: Good is what at any given moment is required by authority…
The need for an ideological underpinning forces the regime to look toward a new ideology, namely, Great Russian nationalism, with its characteristic cult of strength and expansionist ambitions…
What, then, are the beliefs and guiding ideas of this people with no religion or morality? They believe in their own national strength, which they demand that other peoples fear, and they are guided by a recognition of the strength of their own regime, of which they themselves are afraid.
The editor-in-chief of the Russian Forbes, Eldar Murtazayev, recalls a conversation with Yegor Gaidar in the early 2000s. The reformer was skeptical about the pace of social change in Russia.
The Soviet Union existed for more than 70 years. I think that overcoming the consequence of such a distorted system will take no less time.
Murtazayev thought Gaidar’s thinking was too pessimistic.
Many years later, I think I understand what Gaidar had in mind. Twenty-five years (since the collapse of the USSR) is an enormous time span for economic reform… A quarter of a century is a huge time resource for changing a society’s national, ethnic, social makeup. But this period could be too short for a change in behavioral stereotypes…
Especially when the country is being run by a very special Soviet caste.
March 25, 2015 by AK
From Edward Luttwak’s interview with Il Giornale, February 2013. Available; on the paper’s website; a pdf of the original available here;. Previously quoted in this post. All translation errors are mine.
Title: “Italy? A country where liberty is limited by the omnipotence of the magistrates.”
Subtitle: “A US analyst: ‘Public prosecutors are a self-governing caste that is blackmailing politicians.'”
Q. Why is Italy uncompetitive?
A. Italy is burdened with costs imposed by castes, by mafias and mafiettas, organizations that use extra-economic power to control the economic space. One can truly speak of feudal domains. Let me give an example. If you need a lawyer in Washington, you don’t pay her to bring a civil suit: these lawyers work for a percentage and if they fail, they don’t get a cent. And then there’s the fiscal situation: the Italian parliament has allowed the Monti cabinet to exist and to impose the highest taxes in the world but not to reform the system to pay these taxes.
Q. How to make citizens pay their taxes?
A. It’s essential to have clear rules with unavoidable sanctions. In the US, a great deal of expenses are deductible. However if evasion is proven, it means jail time. These trials are very fast and a most minor fraud can cost several years in prison.
Q. Perhaps it’s relatively “easy” to find oneself behind bars in Italy: 43% of people in jail are in preventive detention.
A. In America, that’s unthinkable. To go prison, you have to be convicted. The idea that the prosecutor’s office can pick you off the street and put you behind bars is unheard of. The problem is who is in prison now: mostly people who have not been convicted, waiting for the trial.
Q. What role are magistrates playing in all this?
A. Those magistrates who, as in the Ruby case, allow more than 200 witness testimonies in the trial, are complicit in a criminal enterprise. Justice delayed for so long is not justice.
Q. What cases does this apply to?
A. I’m thinking of the seismologists from l’Aquila accused of manslaughter, that is for not predicting an earthquake. It’s a sign that the justice system is completely insane. In the place of those seismologists, I would show up in court with a clown’s costume to give it as a present to the magistrates. I’m also thinking of the case of Calogero Mannino, put through the wringer for 18 years until the Cassazione – whose judges are paid twice as much as our Supreme Court judges – absolved him, but now the Palermo prosecutor’s office is bringing charges against him again. This is judicial persecution. Also, the Dell’Utri case falls within the scope of our analysis.
Q. What is the impact of the disruption of justice on the Italian system?
A. The episodes I’ve mentioned invite contempt and ridicule from all the world: it seems unbelievable that Italy’s public funds can be used in such a manner. A justice system that is so slow, inefficient and twisted is a major obstacle to foreign investment. Judges, prosecutors and defense lawyers are all engaged in a conspiracy against justice.
Q. How does it affect the quality of Italian democracy?
A. A democracy has two legs: a very slender one, elections, and a very strong one, rights. In Italy, because of the magistrates’ conduct, there is very little individual liberty. The liberty of the citizenry is at the mercy of a self-governing caste, which is fundamentally anarchic. Judges who delay cases for a year, prosecutors who go after people out of mere dislike. Italy’s magistrates are well below the European level, more in line with their colleagues from Arab countries.
Q. Is it thinkable in America that a sitting member of the parliament be arrested on a non-violent charge and held behind bars for three years? In Italy, as you know, it happened to the honorable Alfonso Papa.
A. I don’t know the case of Alfonso Papa but this seems to fall under the custom of arresting people without strong evidence because there is no responsibility for that. Italian magistrates are not accountable to anyone. [Italian] politics is in thrall to a bunch of prosecutors seeking publicity. In America, a district attorney – if he arrests without evidence – won’t be reelected at the next election. Let me tell you what happened to me in Italy. I was wiretapped in an indirect way. My name ended up in a certain newspaper: it was nothing I would be ashamed of but my privacy was violated, and no prosecutor opened a dossier on the incident. I should tell you that it was a magistrate who violated the secrecy of the office but no one cares.
Q. But in theory, there is the principle that criminal charges are obligatory.
A. It seems that in Italy, the magistrates function like a caste: they protect each other with no regard to justice. In America and Britain, even in Burma, I believe, to reveal an official secret is obstruction of justice, which carries a severe punishment.
Q. Will the Monti cabinet reform the judiciary?
A. I strongly doubt it. The parliament has already blocked less controversial measures.
Q. Why don’t the parliamentary parties go ahead with a reform of the justice system?
A. The state of the justice system is an emergency. If there is no response to this emergency, the obvious reason is that politicians are afraid of acting collectively.
Q. A political class being blackmailed?
March 25, 2015 by AK
Nina Burleigh writes that Amanda Knox never retracted her bizarre sort-of-confession “officially”:
After she was arrested, Knox wrote in a notebook that she wasn’t sure of the memory described in her signed statement, but she did not officially retract her claim that Lumumba had been in the house.
Officially or not, Knox passed two handwritten notes on to the investigators, on Nov. 6 and 7. The second note contained an unequivocal retraction.
As a reminder, Amanda Knox was interrogated all night long on Nov. 5-6 at the Perugian questura. By all signs, her interrogation was planned well in advance: a team of cops from Rome had descended on Perugia, and a well-informed journalist admitted later, “[o]n the night of the fifth, we knew, journalists knew, something was going to happen.” At some point, there were as many as a dozen cops in the room with Knox.
Prosecutor Mignini – the conspiracy-obsessed, manipulative man who has persecuted dozens of innocents in his career – was also with the police by midnight, when the interrogation had barely begun.
Oddly, that crucial interrogation was never recorded even as the police had meticulously listened on and transcribed Knox’s phone calls for days. The official explanation was running out of the budget or some such nonsense, raising a huge red flag. No defense lawyer was present, either.
Know signed two typewritten statements in officialese Italian (which she probably did not quite understand) that night, at 1:45 and 5:45 a.m. The first was a “witness statement,” which is supposed to be in a Q & A format but Knox’s had no Q’s and her own “statement” was not marked as an answer – a bizzarre document. She admitted being at the house she shared with the victim and seeing Patrick Lumumba there while the crime was being committed. Lumumba had been a suspect for days – his calls had also been monitored – but to Knox, the interrogators feigned ignorance of his name.
In the morning on Nov. 6, before she was taken to prison, still at the questura, Knox wrote a note (all documents I’m quoting can be found here) and handed it to the cops. To quote parts of it (bear in mind Knox had a habit of writing down her thoughts instead of arguing, especially when under stress, a habit that went back to an early age):
In regards to this “confession” that I made last night, I want to make clear that I’m very doubtful of the verity of my statements because they were made under the pressures of stress, shock and extreme exhaustion. Not only was I told I would be arrested and put in jail for 30 years, but I was also hit in the head when I didn’t remember a fact correctly. I understand that the police are under a lot of stress, so I understand the treatment I received.
However, it was under this pressure and after many hours of confusion that my mind came up with these answers. In my mind I saw Patrik in flashes of blurred images. I saw him near the basketball court. I saw him at my front door. I saw myself cowering in the kitchen with my hands over my ears because in my head I could hear Meredith screaming. But I’ve said this many times so as to make myself clear: these things seem unreal to me, like a dream, and I am unsure if they are real things that happened or are just dreams my head has made to try to answer the questions in my head and the questions I am being asked.
Note this detail: 30 years is the maximum non-life prison term in Italy. Unless she’d been reading Italy’s criminal code – and her computer provided no such indication – Knox is probably telling the exact truth. She also reports:
The police have told me that they have hard evidence that places me at the house, my house, at the time of Meredith’s murder. I don’t know what proof they are talking about, but if this is true, it means I am very confused and my dreams must be real.
This explains a lot about the nature of the interrogation, which was not targeted at finding the truth but rather at getting someone arrested, preferably not Rudy Guede, the man who committed the crime alone (in all likelihood) and was probably a police agent of sorts.
Her “second memoriale” submitted from prison – handed to a guard on Nov. 7, less than two days after her “confession” – states clearly:
But now I remember that I can’t know who the murderer was because I didn’t return back to the house.
That’s a perfectly clear retraction to me. To put it into context, a longer excerpt from the Nov. 7 note:
I received a message from my boss about how I didn’t have to come into work and I sent him a message back with the words: “Ci vediamo. Buona serata.” While Raffaele rolled the joint I laid in bed quietly watching him. He asked me what I was thinking about and I told him I thought we were very different kinds of people. And so our conversation began, which I have already written about. After our conversation I know we stayed in bed together for a long time. We had sex and then afterward we played our game of looking at each other and making faces. After this period of time we fell asleep and I didn’t wake up until Friday morning. This is what happened and I could swear by it. I’m sorry I didn’t remember before and I’m sorry I said I could have been at the house when it happened. I said these things because I was confused and scared. I didn’t lie when I said I thought the killer was Patrick. I was very stressed at the time and I really did think he was the murderer. But now I remember that I can’t know who the murderer was because I didn’t return back to the house. I know the police will not be happy about this, but it’s the truth and I don’t know why my boyfriend told lies about me, but I think he is scared and doesn’t remember well either. But this is what it is, this is what I remember.
The notion that Amanda Knox is responsible for the 15-day incarceration of Patrick Lumumba should be put to rest. She made it clear enough to her interrogators on Nov. 6-7 that her “confession” was to be disregarded. Moreover, it was her interrogators who insisted that she imagine herself at the crime scene. Finally, the investigators knew from DNA tests by Nov. 6 that a third man, neither Lumumba not Sollecito, had sexually abused the victim.
The quote in the first paragraph is from The Fatal Gift of Beauty by Nina Burleigh. The texts of Knox’s memoriale can also be found in Candace Dempsey’s Murder in Italy.
March 24, 2015 by AK
Paul Goble has translated large excerpts from Semyon F. Gluzman’s interview with Focus, a Kyiv-based journal. Gluzman served seven years in Soviet prisons and labor camps and three years in Siberian exile for his effort to prove that the dissident General Grigorenko had been improperly diagnosed with a mental disorder. I’ve also translated a small bit myself focusing on two notorious Soviet psychiatrists:
Suddenly I learned from a broadcast by the Voice of America or Liberty that the chief executioner-psychiatrist was Daniil R. Lunts… When I started collecting facts, I realized that Lunts was not an ideologist or a judge. The man chopped off people’s heads by order; way above him there was Snezhnevsky, a member of the Academy, and others, who were not Jews at all…
One more thing that helped me a lot was a book by D. R. Lunts bought by chance in a Kiev bookstore. It turned out that, having defended his doctoral dissertation, he summed it up in a book. There was history and statistics there – for they thought they would be in charge for a thousand years. So Lunts, proud of himself, provided information that made clear the connection between the party’s political line and the diagnosing of the mentally ill, of criminals and so on…
The US psychiatrist and activist Walter Reich visited Snezhnevsky in 1983. His long report in the New York Times – now a classic – contains a striking theory which may not explain the cause of the psychiatric abuses in the USSR but offers an insight that rings true to me, from my experience as a child and a teenager in that society:
They [the dissidents] behave and speak in ways that are different from other Soviet citizens, and, for that reason, they come to be seen as strange. After all, I asked, isn’t it strange when someone openly does and says things that, under the conditions of Soviet political life, everyone knows to be dangerous? In fact, there is good evidence, based on dissident accounts, that, upon encountering dissidents, many K.G.B. and other Soviet officials are often struck by a sense of strangeness, a sense that is compounded when the dissidents start lecturing them about their rights under the Soviet Constitution. The sense that someone is strange is not infrequently followed by the suspicion that the strangeness may be due to mental illness.
Decades ago, I read about a man who studied Marx on his own in the Soviet Union – where Marxism was taught at colleges but few people actually read Marx – and found what he believed were errors in the sage’s economics. The man was so naive that he wrote down his findings in an essay, “On Errors in Marx’s Economic Theory,” and mailed it – I don’t remember where exactly – let’s say to the Central Committee or the Academy of Sciences. He was diagnosed with schizophrenia because, according to the examining doctors, “no sane person in the USSR would question the validity of Marx’s theory.”
Having read Reich, I admit that the critic of Marx probably looked abnormal – not to the honest psychiatrist but to the average street-smart Soviet citizen. “No sane person would (a) study Marx voluntarily, in his spare time, without pay, just out of curiosity; and (b) be so clueless about the country he’s living in as to write to any Soviet authority claiming Marx was wrong. Like they don’t know that in the Kremlin! No one believes that sh*t but everyone’s playing the game.”
This thinking is not at all dead in Russia – I think it’s been back with a vengeance. If you’re advocating for a cause that has no obvious impact on you, your family or your business, you’re either crazy or doing it for someone else’s money. Because paddling your own canoe and not giving a crap for people outside your immediate network is very much the norm. Not for everybody, not always, not everywhere in Russia but if people think you’ve lost your marbles, re-read Reich.
March 24, 2015 by AK
An unexpected result of my research on the mafia was to find out that mafiosi are quite incompetent at doing anything… Mafiosi are good at intimidation and stick to it…. They let the professionals and the entrepreneurs take care of the actual business operations.
If only Italian judges followed this example and stuck to their legal business, leaving science to scientists. But they just won’t, for they think they aren’t like those Mafiosi – wishfully.
Alessandro Nencini is a prominent member of the so-called Magistratura Democratica, a union of “progressive” Italian judges and prosecutors, also called “red judges” by their opponents. As a progressive, one would expect judge Nencini to take science seriously. During the 2013-14 retrial of Amanda Knox (in absentia) and Raffaele Sollecito, Nencini freely admitted he was ignorant about DNA. In which case, why not leave it to the experts?
Indeed, one of Italy’s leading forensic DNA professionals, Prof. Carla Vecchiotti of La Sapienza, who had dedicated her 30-year career almost solely to forensic identification – of which DNA is the principal tool – coauthored the 2011 report that exposed the state’s DNA tests in this case as scientifically invalid.
Nencini could also turn to the distinguished defense experts: Adriano Tagliabracci, the author of the textbook, An Introduction to Forensic Genetics, or perhaps Carlo Torre with his 40 years of experience in forensics at the University of Turin, or Prof. Sarah Gino with her excellent, and relevant CV (pdf). Even the prosecution’s experts – the non-PhD lab technicial Patricia Stefanoni, the non-forensic geneticist Giuseppe Novelli, the head of a paternity test lab Francesca Torricelli – for all their lack of relevant qualifications, might still explain the basics of DNA to the judge.
Instead, judge Nencini chose to argue with Prof. Vecchiotti on his own. She made it clear that the presence of at least two more male contributors besides Sollecito and the victim’s boyfriend on the victim’s bra clasp is direct evidence of contamination – in addition to the investigators’ dirty gloves and booties and the bra being kicked around the crime scene and mysteriously ignored for 46 days from the initial search to its belated recovery. The learned judge writes:
But the matter important to the trial is not constituted by the presence of other contributors in the mixed DNA trace extracted from the bra clasp donned by Meredith Kercher the evening she was killed, but by the presence of Raffaele Sollecito’s DNA.
Well, of course it’s a very important matter because when you find DNA that wasn’t supposed to be there – these extra people – you wonder why, and immediately suspect contamination. (I believe all those DNA tests should have been thrown out, as they would have been in the UK or the US, since the investigators and the lab technician violated multiple rules of evidence collection and testing.) But Nencini ignores that, notes that the victim was a normalissima, most ordinary girl who was involved with her male housemate – so presumably with no other males – and continues:
This can hence make believable that on the bra clasp a trace could have been also left by the girl’s boyfriend; as it is reasonable to believe that some DNA could have been deposited by some female friend [amica] of the girl who touched the clasp.
This is a veritable masterpiece of judicial thought. Not just because the judge lets his imagination run wild, although that, too.
Primarily because Prof. Vecchiotti talked about contributors to the Y-haplotype profile.
Women don’t have Y-chromosomes, judge. There’s a rare condition when they do, but one in a million or two is as good as non-existent.
You should have learned from the Mafiosi, judge. But you seem to think that the Mafia that you belong to – the judicial clique – is the smartest of all. It has surely consolidated lots of power. When you were a prosecutor, didn’t you open a case against Berlusconi for calling your caste “cancer”? I don’t know if it was just peacockery on your part, but think about message for a moment, not the speaker. He has resigned; you have metastasized.
March 23, 2015 by AK
One of the Russian participants at the “anti-fascist” forum in St. Petersburg – allegedly, the commander of a pro-Russian volunteer unit in Donbass – is reported to have publicly displayed Nazi symbols and to have been sanctioned for cruelty to animals.
The Russian word used by the reporters is zhivoderstvo, which has a broader meaning than knackery, referring to the brutal killing of non-wild animals for practical gain, such as stray dogs for soap, and figuratively to inhumane cruelty. I imagine you have to do something unequivocally disgusting even by Russian standards to be fined for mistreating animals.
I’m particularly interested in the black rectangle on the inside of the commander’s wrist in the second photo – clearly there was something there that got censored. Someone has suggested it’s a swastika. I agree it’s the most likely hypothesis, but why did fontanka.ru, in a piece seeking to expose the fakery of the “anti-fascist” event, censor a visual hint that would only strengthen its case?
Because of a recent Russian law, presumably aimed at WWII revisionism, that prohibits the public display of Nazi symbols. Or, rather, because of the creative way the law has been applied: people have been targeted for merely uploading authentic WWII photos. The St. Pete outlet, critical of the Party Line, could not risk prosecution over a swastika on some thuggo’s wrist. Had it been a pro-Ukrainian militant, that would have been an entirely different matter, and federal TV channels would be showing that hypothetical swastika from every possible angle and at every possible zoom level.
Yes, it could be some other Nazi or offensive symbol; it could be a dirty word or an obscene graphic, which would have had to be censored. From the guy’s apparent taste in body art though, I’d bet on something Ahnenerbe-ish if it must be different from a mere swastika.
March 22, 2015 by AK
A brief addendum to this post: in Italy as in Russia, prosecutors and judges often work as one team.
While they were busy with the defendant, the judge would walk out into another room serving as her makeshift chambers where the prosecutor joined her. The defense counsel and human rights observers could hear her laughing and chatting with the prosecutor.
This, from what I have read, is not at all unusual in Russian courts. Compare this to what Nina Burleigh writes in The Fatal Gift of Beauty:
A peculiarity of Italian law… is that judges and prosecutors are technically on the same side, while judges are also asked to impartially weigh evidence. They come out of the same training program, and it is not uncommon to find judges and prosecutors lunching together during trials…
It’s a feature, not a bug; a peculiarity inherent in inquisitorial legal systems.
March 22, 2015 by AK
Russia’s infamous Investigative Committee is pushing a bill to make judges in criminal cases search for “objective truth” rather than merely weigh arguments put forward by the prosecution and the defense. To that end, judges would be allowed – and encouraged – to call witnesses and otherwise conduct their own investigation during the trial.
Russian legal experts may call it a revolution, and I would call it a counterrevolution in Russian criminal justice. For this would be a throwback to the inquisitorial system of the Brezhnev decades – as the Investigative Committee’s lobbyist happily admits, inveighing against the pernicious influence of the alien Anglo-Saxon system.
Does it matter at all – Russian courts are readily copypasting from indictments to verdicts anyway? It matters still: with a vigorous defense by a well-connected lawyer and a bit of luck, an innocent defendant may get off with a suspended sentence. The bill would give even more power to judges, by default friendly to prosecutors, further emasculating the defense.
In its essential lawlessness, the state has to operate through channels of legal procedure. These have bottlenecks that may occasionally obstruct the Leviathan’s pursuit of its victims. Removing them would only empower the state against the individual.
If the bill passes, winning an acquittal in a Russian court will become even harder as the last vestiges of reasonable doubt as grounds for acquittal will be removed. The explanatory note by the bill’s sponsor makes it clear:
The legal fiction of presumption of innocence, which presupposes that irremediable doubt should be interpreted in favor of the defendant, may only be applied when it is impossible to reach an objective truth in the case, and only after exhaustive measures to establish it have been taken.
The prominent Russian lawyer Henry Reznik explains further:
This proposal in unconstitutional since it would eliminate two constitutional principles at once, presumption of innocence and adversariality.
Why is the Investigative Committee getting so itchy about it? It’s simple: they want to do away with acquittal for unproven guilt… Presumption of innocence, which this Duma deputy dislikes so much, equates unproven guilt with proven innocence. When one’s guilt has failed to be proven and all the avenues [for proving it] have been exhausted, innocence is recognized.
For example, investigators have put together elements of proof for months, perhaps a year, to provide evidence of guilt to the prosecutor. Once they have collected evidence of guilt and put together an indictment, the prosecutor decides whether there is enough evidence to insist on a conviction in court. Then it turns out during the trial that the evidence is faulty and cannot convincingly establish the defendant’s guilt. In this case, an acquittal is warranted because this doubt is interpreted in favor of the defendant.
What is the Duma deputy suggesting? If it turns out that the prosecutor has failed to provide the necessary proof, the court should not acquit but should order further investigation based on the incompleteness and should say: “Guys, you’ve done a bad job digging, go dig up some more!” Then the court stops being a body dispensing justice and takes the prosecution’s side.”
Since Russian courts can be safely presumed to be on the prosecution’s side most of the time, the bill would further consolidate this unholy alliance. And immediately comes the thought of the high windows in Mediterranean palaces of (in)justice, for Italy has already dispensed with that irksome notion, that insufferable legal fiction, presumption of innocence. I suspect I’ll never tire of repeating the maxim uttered by Italy’s supreme court in support of annulling an acquittal:
[I]t is not possible to come to a result, be it conviction or acquittal, characterized by coherence, believability and reason.
Reasonable doubt should mean one thing, acquittal, plain and simple. To argue against that is to advocate for tyranny.
March 20, 2015 by AK
The turnout was strong.
Not for an election or an opposition march but for the partial solar eclipse in Moscow. At least in the part of town where I work, people left offices in droves at lunchtime but instead of heading to eateries, occupied nearby vantage points to look at the sun through impromptu screens.
The Moscow Times does a good job documenting these devices of questionable safety. I knew well in advance the eclipse was coming but by Friday morning I had more or less forgotten about it and turned up at the office completely unprepared. My colleagues gutted a few ancient 3½-inch diskettes and I got hold of half a floppy disk. Folding it, I found the double layer provided pretty good insulation, although the sun looked sickly red and large-sized X-ray transparencies with large black areas gave a better picture.
As for soot-covered glass, it’s unsafe by today’s standards but also a time-tested eclipse observation tool. But it requires advance preparation – you’d have to soot it with a candle – while for office denizens, what matters is being able to fashion a sunscreen out of office supplies within a quarter of an hour. The colander is a stroke of genius.
Thank God for the warm, sunny weather. A perfect day for an eclipse.