Looking For America

On this eve of Columbus Day, it’s a fair question to ask what his ‘discovery’ has wrought as well as why Native Americans aren’t celebrating.

By Conrad Black, National Post · Oct. 8, 2011:

The case of Amanda Knox presents us with not only an interesting human drama, but also raises questions of comparative international criminal law. Italy is not generally regarded as, and does not hold itself out as, any great paragon of jurisprudence. It has few famous jurists and no particular following among legal academics or jurisconsults. Yet its judiciary’s laudable willingness to revisit Ms. Knox’s case with fresh eyes suggests that other nations might examine Italy’s methods.

Ms. Knox, at the time of her arrest in 2007, was a 20-year-old American woman living in the Italian city of Perugia as a university exchange student. She was convicted of murdering her British female roommate in a drug-and sex-fuelled incident, along with two codefendants, including her Italian thenboyfriend. She also was accused of criminal slander, for accusing a local tavern operator of the crime.

At her first trial, neither she nor the jury was provided an interpreter. As a result, the jurors regarded her imperfectly communicated testimony as somewhat sketchy. As for the incriminating evidence, it consisted of what was successfully argued on appeal to be a grossly insufficient amount of DNA material. Her family, from Seattle, engaged forensic and technical evidence experts, hired additional counsel, mobilized a prodigious public-relations campaign and launched an appeal. In the United States, the appeals courts renounce any fact-finding or evidence-sifting function by hiding behind the Bill of Rights’ guaranties of trial by an impartial jury. The same isn’t true of Italy.

In practice, in the United States, over 90% of criminal cases are determined in favour of the government without trial, because the prosecutors press-gang witnesses by threatening them with prosecution themselves, granting immunities for prosecution for perjury and frog-marching them into court in great numbers. The jurors are deemed to have judged the facts correctly and the higher courts intervene only to ensure due process (which, in general, they define as the issuance of a guilty verdict). The principals in the case are not heard on appeal, only their lawyers are. And, of course, the impartiality of an American jury and the promptness of their justice are romantic heirlooms from the era of the authors of the Federalist Papers. (Canada’s system is vulnerable to some of these same criticisms, but generally speaking the odds are not stacked quite so high against defendants.)

After four years in an Italian prison, Amanda Knox had developed her Italian to high proficiency and gave a very moving statement in court. She had been pilloried as a treacherous murderer at the time of her trial, but re-emerged as a plucky young person condemned on very thin evidence. Her public relations team, paid for by a second mortgage on the family home and the assistance of friends and neighbours in Seattle, mobilized a U.S. senator from Washington, Maria Cantwell, and played very effectively on the generosity of spirit of most Italians, especially toward a damsel in distress. The opposition faction, anti-American law-and-order knuckle-draggers, were gradually outgunned, and Ms. Knox’s brilliant and affecting address to the court of appeal (something that would have been impossible in an American or Canadian appellate court, where, as noted above, only lawyers plead the case) turned the balance decisively.

It is hard to judge, in this as in so many cases, the extent to which the court was moved by the balance of evidence, carefully reviewed, and by the public relations tide; as courts are, in the words of my distinguished National Post colleague (and friend) George Jonas, “the zeitgeist in robes.”

In the manner of all prosecutors, when the fairness of the original verdict was questioned, the Italian prosecutors responded like wounded animals, screamed with rage at Ms. Knox’s ingratitude for receiving a mere 26-year sentence, and announced that they were now seeking life imprisonment. Extensive evidence was submitted on the inadequacy of the DNA support for a guilty verdict, to a mixed jury of two judges and four lay people. (American and Canadian appeal courts, by contrast, feature a panel of, usually, three judges only.)

Deliberations were not excessively prolonged, and Ms. Knox appeared to be at the outer limits of her composure when the court returned to render judgment. Her conviction for slander was upheld, although she cogently alleged that she had been bullied by prosecutors into making the slanderous allegation. But the penalty for that crime already had been served, and the far more important conviction for murder was overturned. She was released, and departed almost at once for the United States.

Ms. Knox’s conduct has been a model of protesting her innocence, behaving ingenuously and attracting the support of the good-natured and fair-minded; she is an attractive and well-spoken young woman. Italian justice has shown itself compassionate, efficient, and not above admitting error and putting things to rights. These are not the best known and most frequently encountered traits of Canadian criminal justice, much less the grim conveyer-belt to severe imprisonment or the execution chamber that usually constitutes criminal justice in the United States.

If this whole drama had unfolded in the United States, in fact, Ms. Knox likely would still be in prison: It is scandalous and notorious how reluctant American prosecutors are to yield even to overwhelming evidence of innocence from DNA, and it seems indisputable that many innocent people have been executed in the United States, even in recent decades.

Just three weeks ago, three long-convicted men accused of murder and imprisoned in Arkansas, including one who had spent 17 years on death row, were cleared on DNA evidence, beyond any question. But to regain their liberty, they had to plead guilty to a lesser offence, for which their imprisonment had already atoned, and in their allocutions to court, by prior agreement, stated that their guilty pleas were completely false and that they were in fact, as innocent as jay birds, but were going through with this lugubrious farce as a condition of release and to allay official fears of civil suits.

I believe readers are adequately familiar with my travails in the coils of the U.S. justice system, and I will avoid my customary screed on the subject. Yet the Knox case brings up many of the same issues. It obliges even Canadians, who are generally justified to regard their justice system as light years more just and condign than the American legal circus, to ask if they do not have something to learn from Italy in this matter: An appeal was achieved without difficulty, and in the teeth of prosecutorial pawing of the ground and hyperbole, the key facts were reviewed and reassessed by a mixed jury and not just a group of the trial judge’s chums from the courthouse lunchroom, and justice delayed, but unstoppable, was done.

Such a thing would be almost impossible in the United States, where the dignity of the state and invincibility of the prosecutors require that nostalgic notions of due process (such as those supposedly entrenched in the Bill of Rights, without which the Constitution of the United States would not have been ratified and promulgated) be tossed aside like dead mice. Canadians should look at both systems, Italy’s and America’s, and ask which one they would rather emulate.


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