[Alibi, pp. 123 - 130; translated by komponisto]
As has already been recalled in summarizing the motivation of the ruling under appeal, the Corte di Assise of first level has held the alibi offered by the defendants (having remained together for the entire night at Raffaele Sollecito’s house, where they had also dined) to be not only unproven, but even certainly false, and has considered this to be serious evidence of guilt, since — according to that Court — there can be no reason for offering a false alibi other than awareness of one’s own guilt.
In truth, falsity of alibi, even if hypothetically present [sussistente]*, would represent only one piece of circumstantial evidence [un indizio], to be assessed in the context of other, more significant circumstantial evidence [indizi], but certainly not itself proof of guilt; and furthermore, conviction of the crime of murder cannot constitute a penalty [sanzione] for the falsity of the alibi offered, but [can] only [be] the arrival point of a demonstration of guilt beyond all reasonable doubt; whereas, however, a false alibi can also be explained by the fear of being implicated [coinvolti] in the crime of murder by the simple fact of having been in the house on Via Della Pergola, without having participated.
Furthermore, examining the jurisprudence in this area, one realizes that assessing the gravity of the evidence represented by falsity of alibi is different in the case of precautionary measures [misure cautelari, e.g. preventative detention] than in the case of judgement of the merits [of a case, i.e. at trial]. Indeed, it is one thing to evaluate the alleged falsity in the interest of protecting precautionary needs, proceeding to a balanced weighing of the the gravity of the evidence [indizi] against [such] needs; it is [quite] another thing to evaluate the significance of the alleged falsity when the question is no longer one of finding a balance between precautionary needs and possibly serious circumstantial evidence [elementi indiziari anche gravi], but one of coming to a definitive decision on the [merits of the] charge[s] beyond all reasonable doubt — so that, once the most serious and important circumstantial evidence has failed, such as the results of the assessments performed by the Scientific Police, the alleged falsity of the alibi offered by the two current defendants could not by itself allow one to regard their responsibility [for the crime] as proven.
In any event, this Court does not find that one can maintain that the alibi offered is false.
The first-level Corte di Assise held that the alibi was false on the basis of the following evidence:
- the two defendants had been seen in Piazza Grimana by witness Curatolo between 9:30 pm and 11:00 pm;
- Raffaele Sollecito’s computer, examined by the Postal Police, did not present any trace of human interaction after 9:10 pm until 5:32 am;
- the fact that the computer did not present interaction in that time span meant that the two youths, contrary to what they had asserted, had not remained at home but had gone out, and had spent the night awake, because otherwise the computer would not have been active again in the early morning;
- the message sent to Raffaele Sollecito’s cellular phone at 11: 14 pm turned out to have gotten through only at 6:02 am, a sign that the phone had remained off during that length of time, and Amanda’s cellular phone was also off during that period;
- the turning-off of the phones meant that the two youths had gone out of the house;
- their dinner had furthermore been eaten well before the time they had indicated, since, when Raffaele Sollecito’s father had called his son, around 8:42 pm on November 1, the latter was already in the process of washing the dishes, complaining about the leaking of water from the sink: which led one to believe that they had already eaten dinner, and made it possible that they had left the house to go to Piazza Grimana, where they had been seen by Curatolo already at 9:30 pm;
- moreover, it was unlikely that the two had remained asleep until late while having the intention of making a trip to Gubbio, because the realization of that intention — according to that Court — involved the necessity of awakening early, considering the road to be traveled;
- nor was it likely that Amanda Knox, if indeed she had spent the night at Sollecito’s house, had then gone to her own house on Via Della Pergola to shower: what need was there — asks the Court — considering that after having made love with Raffaele she had already washed in the evening at his house?
- furthermore, that Amanda Knox had not remained in bed with Raffaele Sollecito was also proved by the statement made by Quintavalle, who had recognized Amanda Knox as the young woman who, on the early morning of November 2, had waited in the street for his store to open; which she had [then] entered, going into the household and hygiene section [reparto igiene e casa], even if he had not remembered [any specific] purchases made by the young woman;
- and further, during her interrogation, Amanda Knox had not mentioned the phone call made to Raffaele from his father the morning of November 2 at 9:30 am, whereas she should have remembered it since it happened when — according to their alibi — she was still at Raffaele Sollecito’s house.
This Corte di Assise of second level, however, finds that none of the above elements, whether alone or in conjunction with the others, can serve to prove that the version given by the two defendants was false, as these elements have no unambiguous meaning whatsoever in themselves, and — also in light of what later emerged during the proceedings — can find an explanation different from that adopted [operata] by the Corte di Assise of first level, and more plausible based on notions of common experience.
The unreliability of witness Curatolo has already been explained (even if, in truth, once the time of the attack on Meredith Kercher has been determined to be around 10:00 pm, he would, if reliable, actually serve to fully exonerate the two current defendants).
That the two had dined prior to the indicated hour does not seem decisive, but in any event there is no proof that, at 8:42 pm, when Raffaele Sollecito, while speaking to his father on the telephone, informed him that he had realized that the sink was leaking water while he was washing the dishes, they had already had dinner. It could very well have happened that he had intended to wash dishes that had remained dirty from lunch before actually sitting down for dinner, or it could have happened that a few dishes or items of cutlery had been washed before dinner had yet been finished, in order to immediately remove dirt from a pot or a plate so as not to have it stick in a more noticeable [marcato] manner; the fact remains that Raffaele Sollecito did not in fact communicate to his father that they had already finished dinner, but only that he was with Amanda.
And indeed these are his father’s statements on the matter in the course of his testimony (hearing of 6-19-2009): “…he told me if I’m not mistaken that evening of the call that water had, that while he was washing the dishes or doing something in the kitchen water had spilled on the floor, this is right…”
And again: “…that he was at home and was messing around in the kitchen and this problem had happened, basically. That he realized while he was washing the dishes that water was spilling on the floor…” Hence there is no talk at all about dinner being already finished.
But also the fact that the computer, examined by the Postal Police, did not reveal human interaction between 9:10 pm until 5:32 am does not rule out that the two youths remained at home anyway. The other computers used by Raffaele Sollecito were not analyzed, since their hard disks were destroyed after they were seized, so that it cannot be excluded that these were used even after 9:10 pm; but in any case it is obvious that remaining in one’s house does not entail [non può essere caratterizzata da] continuous interaction with one’s computer. Furthermore, since no one — neither the Public Minister, nor the civil parties, nor even the attorneys for the defendants — requested the testimony [esame] of Raffaele Sollecito, no explanation on this point is available to be checked.
In truth, the trace of an interaction with the computer at 5:32 am is more surprising than the lack of interaction in the hours preceding; but such a thing can be explained by Raffaele Sollecito waking up again at night, even unbeknownst to the girl who was with him, and [having] an impulse during what was after all a romantic night (he had been spending it together with the girl he loved) to listen to music while waiting to go back to sleep. On the other hand, it would be less understandable for a young man (who in any case was unquestionably not accustomed to crime), during the same night in which he had been involved in such a serious felony (and thus himself also the victim of an immense tragedy, even if hypothetically guilty) to have the desire and the [state of] mind [la voglia e l'animo], only a few hours after the tragedy, to listen to music on the computer, as if nothing had happened.
The first-level Corte di Assise does not even rule out, on the basis of the Giglio-D’Ambrosio investigation [consulenza] performed on the computer (for the defense), that there could have been a certain interaction, a few seconds in duration, after midnight, to watch a film, but — argues that Court — since the time was subsequent to the time of the attack, this would not exclude [the defendants'] responsibility for the crime, as it does not prove that they remained at home in the period preceding the connection. Except that — apart from the complete uncertainty of the fact introduced — we must recall the observation made above regarding music: can it really be likely that the two youths, after a tragedy of this type, proceeded to watch a film? The answer can only be no, and it would be of no use to object that this assessment is based merely on a criterion of normality, and thus of probability rather than certainty, because the inference made from the absence of proof of human interaction in the time span between 9:10 pm and 5:32 am is itself a mere conjecture, and one contrasting with a normality criterion at that.
Cellular phone off: in reality, Raffaele Sollecito’s cellular phone remaining turned off during the period from 11:14 pm to 6:02 am is not a directly proven circumstance, but [rather] an inference deriving from the fact that the State Police have ascertained that the good-night message sent by Raffaele Sollecito’s father 11:14 pm on November 1 reached his son only at 6:02 am the following day, despite the fact that no anomalies in the functioning of the network were found.
However, a defense consultant showed that the signal did not reach every point in the house regularly; which could explain, possibly in conjunction with other external factors (for example, the occasional presence of an obstacle), the delay in the reception of the message (not a rare occurrence, as anyone used to exchanging SMS knows well), so that it cannot be considered certain that the phone was turned off. But what is most important is not so much whether the phone was really turned off, as the significance attributed to its being turned off by the Corte di Assise of first level. Indeed, one cannot understand why, once premeditation has been ruled out — and even simply the previous planning of an “orgy” (in reality the first-level Corte di Assise has portrayed the tragedy as the end result [epilogo] of an entirely random occurrence) — Raffaele Sollecito should have turned off his phone upon leaving the house together with Amanda Knox, since it seems rather more natural that he had turned off the phone because he had stayed at home together with his girlfriend (his whole world was there at that moment), with whom he was preparing to spend a night of intimacy, and did not have reason to expect a call from home, his father having already called him earlier. And, in any case, the presence in the house of a land-line telephone [telefono fisso] as well (a circumstance verified by the police) guaranteed that it would be possible to receive any urgent calls, notwithstanding the cellular phone being turned off.
And in this context it is likewise probable that Amanda Knox, sleeping over at Raffaele Sollecito’s house, but without having her battery charger with her, had turned off her own phone in order to save the battery.
We reiterate that, once all premeditation has been ruled out, it is not logical to interpret the turning-off of the cellular phones as evidence of leaving the house rather than remaining inside it.
The unreliability — or at any rate, the extremely low reliability — of the testimony given by Quintavalle has already been explained, so that it certainly does not serve to rule out the possibility that Amanda Knox had slept over at Raffaele Sollecito’s house until a later hour; while the planned trip to Gubbio did not require an “early bird” rising [una "alzataccia"], considering that Gubbio can be reached from Perugia in about 45 minutes, and that the two youths, presumably, intended to make a trip of a few hours, and certainly not an in-depth study of the city on a historical and cultural level; so that they could well have left even at 11.
And further, it is not the least bit unlikely that Amanda Knox, before leaving for Gubbio, had planned to take a shower in the house on Via Della Pergola: not only because — as she herself asserted — the shower on Via Della Pergola was more functional, but also because she had clothing and underwear there to change into before leaving for Gubbio.
Amanda Knox’s failure to mention the 9:30 am call from Raffaele Sollecito’s father does not necessarily imply that the alibi is false, since it can be explained by the non-importance attributed to that call by Amanda Knox, or by her not having been aware of it because perhaps she was still sleeping, or was in the bathroom, or, in fact, by her having been mistaken about the time at which she left Raffaele Sollecito’s house to go to Via Della Pergola, possibly prior to that telephone call.
Finally, it will be recalled that at the present level [of appeal], the General Prosecutor has proposed, as further evidence that the alibi is false, that persons (Alessi, Aviello, and others) to be deemed unreliable (and in fact so deemed by this Court) were called to give testimony about alleged disclosures made in prison by Rudy Guede concerning the innocence of the two current defendants of the crime. Except that it is obvious that the attempt by the defense — a duty, in consideration of the seriousness of the charges — to introduce any evidence in favor of the defendants, even by means of the testimony of individuals later held to be unreliable, cannot in any way be interpreted as indicative of the falsity of the alibi, with which the attempt in question (carried out furthermore by the defense attorneys and not by the defendants) has nothing to do, since it involves circumstances (disclosures allegedly made in prison) years subsequent to the facts of the case.
Likewise, attempts on the part of their family members to prove their innocence — legitimate or not, it is of no importance here — cannot be made to reflect [non possono ricadere] on the current defendants, nor can they be interpreted as symptomatic of the falsity of the alibi.
The reality is that we are in the presence of entirely ambiguous circumstantial evidence which acquired [trovato] value as indicative of the falsity of the alibi in the interpretation of the first-level Corte di Assise only because it was read at that time in light of genetic [i.e. DNA] investigations performed by the Scientific Police which were held to be reliable; so that, with this reliability having collapsed, the evidence in question can be interpreted in an entirely different manner, consistent with the alibi offered.