The ben trovato school of jurisprudence

Nina Burleigh, the author of The Fatal Gift of Beauty (which I have quoted before), writes in Newsweek ahead of the final ruling by Italy’s supreme court due next Wednesday in the Amanda Knox and Raffaele Sollecito case (which she expects to be yet another Italian disaster):

The appeals judge, Pratillo Hellmann [who acquitted the couple in 2011], had considered the testimony of independent experts who contradicted the scientific police on the DNA. He… stressed the fundamental illogic of the theory that even though the fingerprints and DNA of a known burglar were at the crime scene, it must have been a “staged” burglary scene, not allowing for the possibility that an actual burglary was committed that night. He wrote that he believed Guede was the “single agent” of the crime.

…In an interview with Newsweek, he called the investigation “scarily amateurish,” adding, “The problems with the scientific evidence all come from the same source. They do not know how to conduct investigations. The prosecutor doesn’t, and in this specific case, nor do the police.”

What they do know is how to retaliate:

Hellmann’s ruling cost him. He had been in line to be chief magistrate in Perugia but was savaged for his decision and retired…

That’s only understandable and so familiar: the post-Soviet Russian judiciary has likewise expelled – exorcised – judges who dared to rebuff bad-faith prosecutors.

Burleigh reiterates this point from her book:

The implausibility of the prosecution’s scenario is shocking from the outside but is acceptable in the Italian legal system, where the narrative is more important than the details, and cultural norms often favor conspiracy theories over simpler explanations [dietrologia or Cidu’s razor – AK]. Unlike the Anglo-Saxon system, which is adversarial, the Italian system is inquisitorial (with roots in ancient Rome, the medieval Papal States and then Fascist Italy). Under this system, prosecutors are not required to convince judges and jurors “beyond a reasonable doubt.”

That’s true, and it’s a fundamental problem at the heart of the inquisitorial system, which pretends to search for the truth but ends up accepting flawed narratives over hard facts contradicting them. Italian-style narrative-building also tends to be based on circular logic. Italy has made large steps towards adversarial trials but the system’s core remains unchanged. In 2013, Italy’s top court opined in the Stasi case:

[I]t is not possible to come to a result, be it conviction or acquittal, characterized by coherence, believability and reason.

So the prosecution’s case is incoherent, unbelievable and unreasonable: surely it means an acquittal? Not at all, said the wise men of Rome; quite the contrary, the acquittal must be annulled!

Back to Nina Burleigh’s piece:

Hellmann blames self-protection among the fraternity of magistrates (the civic category to which both judges and prosecutors belong) for the current conundrum. “It was simpler and more useful career-wise to convict them,” he says of his fellow judges. “You need to be within the system to understand. The *magistratura* is a sect. I never really got involved with the politics within it. I was just the kind of judge who did his work and that’s it. Inside the system, there are parties, and if you are not part of one of them, you are out of the game.”

Asked whether he thinks bias played a role in the case, Hellmann says, “Absolutely! It is striking how biased it was.”

The famous US strategist Edward Luttwak minces no words in his interviews with the Italian media – just look at the headlines: “In Italy, justice does not work and the magistrates are not credible.” Trials are incredibly slow, he says, because judges are both grotesquely lazy and grotesquely overpaid: members of Italy’s supreme court (dozens of them) are paid more than members of the US Supreme Court. Luttwak also speaks of “the incredible provincialism of the judges who act without any awareness of international norms including those adopted by Italy.”

In another interview, Luttwak is no less scathing (all translations are mine):

Judges, prosecutors and defense lawyers are all involved in a conspiracy against justice…The citizens’ liberty as at the mercy of a self-governing, fundamentally anarchic, caste. Judges who postpone cases for a year, the prosecutor’s office that decides to go after a person they don’t like. The Italian magistrates are well below the European level, more in line with their colleagues from Arab countries.

A lot of ItalIans understand that but attempts at reform get stalled by the sect of the magistrates, allowed extraordinary powers by anti-Mafia laws (near-warrantless wiretapping: the whole Sollecito family were tapped for months; detention up to a year without charge: both Knox and Sollecito were subjected to that). Berlusconi tried the right thing for the wrong reasons; Renzi, a Florentine master of intrigue, is trying that again but without much success either. Fighting the mafia was not worth giving so much power to the judicial mafia.

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