Continuation Part Eight: Discussion of the Amanda Knox/Raffaele Sollecito case

[anglolawyer]

This is excellent, Mary. Even if Anglo does think that this guy is a little nuts.

BTW, do you have a source for this? I would like to read more of what this Constitutional law genius has to say.

PS: What does "somewhat unconstitutional" mean? Is that like being somewhat pregnant?

For the 11th time, it's different when the extraditee has been convicted by the requesting country. Hear me? Different!

 

[Dan O.]

Bill this isn't very difficult to understand. A defendant can't be charged with perjury but they can be charged with defamation or false reporting of a crime by another. You can say "I didn't do it" but you can't say "Bill did it". You can say "I was at home when the crime took place" but you can't say "Bill was at the scene when the crime took place".

Calunnia (Italian pronunciation: [kaˈlunnja]), meaning "calumny", is a criminal offence under Article 368 of the Italian Penal Code (Codice Penale), which states:

Anyone who with a denunciation, complaint, demand or request, even anonymously or under a false name, directs a judicial authority or other authority that has an obligation to report, to blame someone for a crime who he knows is innocent, that is he fabricates evidence against someone, shall be punished with imprisonment from two to six years. The penalty shall be increased if the accused blames someone of a crime for which the law prescribes a penalty of imprisonment exceeding a maximum of ten years, or another more serious penalty. The imprisonment shall be from four to twelve years if the act results in a prison sentence exceeding five years, from six to twenty years if the act results in a life sentence.[1][2]

The mens rea of calunnia requires awareness and a willingness to blame someone of a crime that the accused knows is innocent.[3]

Calunnia should be distinguished from criminal slander (ingiuria) and criminal libel (diffamazione) which relate to offences against personal honour in the Italian Penal Code
​

So why was Rudy not so charged? Is there some hidden passage in that law that makes it okay when you are doing it to help the prosecutor?

 

[kwill]

Bill this isn't very difficult to understand. A defendant can't be charged with perjury but they can be charged with defamation or false reporting of a crime by another. You can say "I didn't do it" but you can't say "Bill did it". You can say "I was at home when the crime took place" but you can't say "Bill was at the scene when the crime took place".

Calunnia (Italian pronunciation: [kaˈlunnja]), meaning "calumny", is a criminal offence under Article 368 of the Italian Penal Code (Codice Penale), which states:

Anyone who with a denunciation, complaint, demand or request, even anonymously or under a false name, directs a judicial authority or other authority that has an obligation to report, to blame someone for a crime who he knows is innocent, that is he fabricates evidence against someone, shall be punished with imprisonment from two to six years. The penalty shall be increased if the accused blames someone of a crime for which the law prescribes a penalty of imprisonment exceeding a maximum of ten years, or another more serious penalty. The imprisonment shall be from four to twelve years if the act results in a prison sentence exceeding five years, from six to twenty years if the act results in a life sentence.[1][2]

The mens rea of calunnia requires awareness and a willingness to blame someone of a crime that the accused knows is innocent.[3]

Calunnia should be distinguished from criminal slander (ingiuria) and criminal libel (diffamazione) which relate to offences against personal honour in the Italian Penal Code
​

Wait. She only knows that PL is innocent if she has knowledge of the crime. She's definitely guilty of calunnia if she's guilty of murder, but she can't be guilty of it if she's innocent herself . . . so WHY did Hellmann uphold this conviction?

 

[Diocletus]

For the 11th time, it's different when the extraditee has been convicted by the requesting country. Hear me? Different!

The only thing different is that some guy in some foreign land has wrongly said: "we pronounce you guilty."

Do you think that Thomas Jefferson intended the Federal government to have to power snatch a citizen out of his house and ship him off to, say, England just because King George sez the guy is guilty? I'll bet he never even contemplated that that could happen.

Geesh. The French wouldn't even extradite Ira Einhorn, notwithstanding their extradition treaty, because their constitution forbids in abstentia trials. So why should the US be extraditing innocent, human rights victims at the request of a bunch of perverts in Italy?

ETA: I'm not suggesting that King George was a pervert.

 

[anglolawyer]

The only thing different is that some guy in some foreign land has said: "we pronounce you guilty."

Do you think that Thomas Jefferson intended the Federal government to have to power snatch a citizen out of his house and ship him off to, say, England just because King George sez the guy is guilty? I'll bet he never even contemplated that that could happen.

Remind me who this Jefferson dude is again ...

 

[Bill Williams]

Bill this isn't very difficult to understand. A defendant can't be charged with perjury but they can be charged with defamation or false reporting of a crime by another. You can say "I didn't do it" but you can't say "Bill did it". You can say "I was at home when the crime took place" but you can't say "Bill was at the scene when the crime took place".


[/INDENT][/I]

Not sure how calunnia got into this.... but whatever. Knox was asked what pressure she was under. She said she was hit. So she cannot be charged with calunnia because, apparently, hitting someone at interrogation is not a crime.

This mini-thread needs to go back to how it started... Machiavelli claimed that defendants were allowed to lie, and a sign of this is that they are not "sworn" as others are who give testimony.

Yet when Knox gives unsworn testimony that she was hit, she's charged with a crime.

I am not sure what the issue is here, except that I requested a bona fide Italian lawyer to explain this. One can lie (acc. to Machiavelli) until they actually do lie.

So I get "perjury" vs. "defamation" vs. "calunnia".... what I don't get is which "lie" is a protected lie and which one is not. What's the point in Italian court procedure not to swear-in a witness because they are expected to lie, and then charge them with someone if they do it? Is it in the way they hold their mouth?

 

[anglolawyer]

Wait. She only knows that PL is innocent if she has knowledge of the crime. She's definitely guilty of calunnia if she's guilty of murder, but she can't be guilty of it if she's innocent herself . . . so WHY did Hellmann uphold this conviction?

Well, read his verdict. He sets it all out, before slapping her with a three year prison sentence. He caused her great harm with that. The guilters ask the same question you do: if she is guilty of calunnia she must have been involved in the murder. They use the calunnia conviction to leverage the murder conviction.

 

[Diocletus]

Remind me who this Jefferson dude is again ...

He's on the $2 bill.

 

[Desert Fox]

Remind me who this Jefferson dude is again ...

Seriously, if you are American, chances are that he is going to be very important to you.
I think it is pretty clear that the American constitution is suppose to shield you against foreign powers even those who we have treaties with.

 

[CoulsdonUK]

It's whack a mole, isn't it!

Someone asserts a claim, four or five posters descent on the claim refuting it with a timelime, logic, or counter-evidence, and the poster ignores that and moves on to the next claim.

Once the JREF Continuing flips to "Continuation 23", the long since forgotten assertion is repeated as if it had not been completely debunked back on "Continuation 3". It's tiresome.

Then why ask?

Why post?

Seems like Harry Rag has been axed from CNN.

 

[anglolawyer]

Seriously, if you are American, chances are that he is going to be very important to you.
I think it is pretty clear that the American constitution is suppose to shield you against foreign powers even those who we have treaties with.

But what about the comity of nations? You have to remember why these treaties exist in the first place. Countries have an interest in bringing home their miscreants, otherwise it's too easy to get away with crime and society will collapse eventually. If you want to bring back the guys over there they want the ones from over your way. So there is a conflict. It's no use Diocletus saying 'no-brainer' because there are knock-on effects to the US screwing around with its treaty obligations.

 

[Diocletus]

But what about the comity of nations? You have to remember why these treaties exist in the first place. Countries have an interest in bringing home their miscreants, otherwise it's too easy to get away with crime and society will collapse eventually. If you want to bring back the guys over there they want the ones from over your way. So there is a conflict. It's no use Diocletus saying 'no-brainer' because there are knock-on effects to the US screwing around with its treaty obligations.

Well, the Senate should have thought about that before they purported to enter into a contract jeopardizing citizen rights that the Senate is not allowed to screw around with. I mean, could I enter into a contract to sell my neighbor's house?

Anyway, I don't buy this argument that a refusal to extradite is an automatic violation of a definitive treaty obligation.

 

[CoulsdonUK]

But what about the comity of nations? You have to remember why these treaties exist in the first place. Countries have an interest in bringing home their miscreants, otherwise it's too easy to get away with crime and society will collapse eventually. If you want to bring back the guys over there they want the ones from over your way. So there is a conflict. It's no use Diocletus saying 'no-brainer' because there are knock-on effects to the US screwing around with its treaty obligations.

I am sure the Italian judiciary will go through the motions of requesting extradition knowing full well their government of the day won’t make too much fuss when America refuses, as for Raffaele he’ll go quietly off to prison, unless he goes on the run.

 

[Desert Fox]

But what about the comity of nations? You have to remember why these treaties exist in the first place. Countries have an interest in bringing home their miscreants, otherwise it's too easy to get away with crime and society will collapse eventually. If you want to bring back the guys over there they want the ones from over your way. So there is a conflict. It's no use Diocletus saying 'no-brainer' because there are knock-on effects to the US screwing around with its treaty obligations.

Need to understand how US law works.
The constitution always overrides laws from congress.
It is the supreme law of the land.
Does not matter if they are with an outside party.

With all the weaknesses inside the US, the thing that many of us Americans like is that we do have a bill of rights which just cannot dismissed. Changes to the constitution are a difficult process.
You don't have a written constitution in the U.K. if I understand which in part puts you at the whim of the present house of parliament.

Now, I have kind of revised my thinking. The best tactic here is probably for the US state department to put pressure on the Italian government just simply not to request extradition. This way, it never gets to the state where there is an issue.

 

[Desert Fox]

I am sure the Italian judiciary will go through the motions of requesting extradition knowing full well their government of the day won’t make too much fuss when America refuses, as for Raffaele he’ll go quietly off to prison, unless he goes on the run.

Would blame him if he did.

Canada might be a good place. . . .He has a much better case than Laurie Bembenek and Canada was incredibly reluctant to return her.

 

[Diocletus]

I am sure the Italian judiciary will go through the motions of requesting extradition knowing full well their government of the day won’t make too much fuss when America refuses, as for Raffaele he’ll go quietly off to prison, unless he goes on the run.

Is it the "Italian judiciary" who requests extradition?

 

[anglolawyer]

Well, the Senate should have thought about that before they purported to enter into a contract jeopardizing citizen rights that the Senate is not allowed to screw around with. I mean, could I enter into a contract to sell my neighbor's house?

Anyway, I don't buy this argument that a refusal to extradite is an automatic violation of a definitive treaty obligation.

See if you can find anything within the text of the treaty itself that would not oblige the US to extradite in this case.

I am sure the Italian judiciary will go through the motions of requesting extradition knowing full well their government of the day won’t make too much fuss when America refuses, as for Raffaele he’ll go quietly off to prison, unless he goes on the run.

Coulsdon - you are making predictions. Take care. Your reputation for waiting and seeing is on the line.

Need to understand how US law works.
The constitution always overrides laws from congress.
It is the supreme law of the land.
Does not matter if they are with an outside party.

With all the weaknesses inside the US, the thing that many of us Americans like is that we do have a bill of rights which just cannot dismissed. Changes to the constitution are a difficult process.
You don't have a written constitution in the U.K. if I understand which in part puts you at the whim of the present house of parliament.

Now, I have kind of revised my thinking. The best tactic here is probably for the US state department to put pressure on the Italian government just simply not to request extradition. This way, it never gets to the state where there is an issue.

We were discussing how US law works only recently here and it seemed that the main line of authority was in favour of giving full effect to treaties. It's only recently something called 'the 9th circuit' has been doubting this approach. I have every hope that the extreme complexity, possibly the novelty also, of the problem will afford her some armament but I have not seen anything to support the 'constituional paramountcy' argument yet. Not decisively.

 

[RoseMontague]

Seems like Harry Rag has been axed from CNN.

Tell him to try Squirrelfish Designs. Sounds like a good fit.

 

[Diocletus]

We were discussing how US law works only recently here and it seemed that the main line of authority was in favour of giving full effect to treaties. It's only recently something called 'the 9th circuit' has been doubting this approach. I have every hope that the extreme complexity, possibly the novelty also, of the problem will afford her some armament but I have not seen anything to support the 'constituional paramountcy' argument yet. Not decisively.

Well, it appears that the Supreme Court might be getting ready to give the Federalis a beat down on this issue: http://www.scotusblog.com/2013/11/l...ticism-in-treaty-power-case-in-plain-english/

 

[Grinder]

Wait. She only knows that PL is innocent if she has knowledge of the crime. She's definitely guilty of calunnia if she's guilty of murder, but she can't be guilty of it if she's innocent herself . . . so WHY did Hellmann uphold this conviction?

Yes we've been over that a thousand times. You should engage Bill on this as he maintained after Hellmann that he agreed with ALL of Hellmann's verdicts. No matter how many argued that Hellmann was wrong, he carried on until he read an interview with Mignini on CNN.

Anglo has something on aggravated calunnia versus just plain old calunnia.

As for the pilots I was talking about the CIA agents, which is a different case.

I would suggest that the right wing opposition to treaties that there would be a better chance of changing the treaty with Italy than banning all treaties.