Ruling concerning Rudy Guede
[Sentenza relativa a Rudy Guede, pp. 26-29; translated by komponisto]
Before undertaking the reexamination of what emerged at the first-level trial, as well as the examination of the further investigations at the present level which resulted from our partial reopening of trial proceedings [parziale rinnovazione della istruttoria dibattimentale], it is necessary to observe that the power of this Corte di Assise di Appello to evaluate these results is not in any way hindered by the ruling issued by this same Court (in another composition) in the case of co-defendant Rudy Guede, on 12-22-2009, made irrevocable following the rejection of the appeal to the Cassazione.
The General Prosecutor and attorneys for the civil parties have argued that, in denying Rudy Guede’s appeal, the Corte di Cassazione put down “unmovable poles” [paletti insuperabili] for this Corte di Assise with regard to the reconstruction of the crime and the evaluation of the evidence; and, although they modified the scope of [ridimensionato] this argument at the end of the discussion by claiming this ruling as only one element to be assessed, they nevertheless emphasized the particular relevance of this element.
It is only too obvious that the ruling in question is not absolutely binding [on us]; that would be contrary not only to the norms of positive law governing the force [efficacia] of criminal verdicts in other cases (C.P.P. Article 654), but also to all the basic constitutionally-guaranteed institutional principles (Constitution, Article 111), since the current defendants would be made to suffer the effects of a ruling issued in a case in which they were not involved.
But, in truth, the ruling in question, introduced under C.P.P. Article 238b and thus usable as evidence only as one among other elements evaluable under C.P.P. Article 192 paragraph 3 (see Cass. Section 2, Ruling no. 16626 of 2-28-2007 (submitted 5-2-2007) Rv. 236650; Section 3, Ruling no. 8823 of 1-13-2009 (submitted 2-27-2009) Rv. 242767) itself seems particularly weak as evidence, as the proceedings concerning Rudy Guede were held under the fast-track system [celebrato con rito abbreviato], so that the judges who considered the position of Rudy Guede were not able to conduct the investigations of a [proper] trial [delle acquisizioni della istruttoria dibattimentale] — in particular the independent expert review that we performed– either at the first level or at the present level, despite the complexity of the case, at least with regard to the current defendants.
Furthermore, it is the Corte di Cassazione itself, in the ruling cited by the General Prosecutor and attorneys for the civil parties, which warns: “Thus right from the outset we must resist the attempt — reflected in [literally “pursued by”] the entire structure of the defense case, but out of place in the context of this decision — to involve the [Cassazione] panel in endorsing the hypothesis that others, Raffaele Sollecito and Amanda Knox, were responsible for the murder, aggravated by sexual violence, of Meredith Kercher. The decision that this Court is called to make concerns only the responsibility of Guede with regard to the act under dispute…”
And indeed, reexamination of what emerged at the first trial and further investigations resulting from our partial reopening of trial proceedings at the present level do not confirm the hypothesis that more than one person was necessarily involved in the crime.
From a reading of the ruling of 12-22-2009, this hypothesis was arrived at [configurata] by accepting essentially all the arguments put forth by the Public Minister, and in particular by regarding the following elements as certain:
– that the DNA found by the Scientific Police on the bra clasp in the murder room is to be attributed to Raffaele Sollecito, and that this DNA was left at the time of the crime itself;
– that the DNA found by the Scientific Police on the blade of the knife taken from Raffaele Sollecito’s house is to be attributed to Meredith Kercher, and was left at the time of the crime;
– that the wounds present on the body of Meredith Kercher, because of their position [direzione] and number, as well as various characteristics (length of medium [tramite], width, etc.) cannot have been caused by a single lone aggressor but [only] by more than one aggressor;
– that the absence of defense wounds on the arms and hands of Meredith Kercher confirms the necessary participation of more than one individual in the aggression;
– that entrance into the inside of the apartment on Via Della Pergola was permitted by the only person — besides Meredith Kercher — who had access [ne aveva la disponibilità], that is Amanda Knox; the Corte di Assise di Appello having held that the [supposed] entrance by means of the window, following the breaking of the glass, was merely a mise-en-scène to divert the investigation toward the unknown perpetrators of an attempted burglary.
However, analysis of each of the individual elements on which the conspiracy hypothesis [ipotesi del concorso] rests leads one to doubt the necessary participation of more than one person in the commission of the crimes alleged, and thus to reject the notion that the ruling concerning Rudy Guede could represent decisive evidence [un elemento di valutazione determinante] in ascertaining the responsibility of the current defendants, even in only this respect (conspiracy [concorso] of more than one person); and at any rate, even if we were to take it for granted that a conspiracy of persons was required, the ruling does not thereby acquire decisive evidentiary value for recognizing the current defendants as the accomplices of Rudy Guede.
It follows that the ruling in question, which we can accept with regard to the responsibility of Rudy Guede (which is certainly not undermined [non viene certo meno] by regarding the single-actor hypothesis as the most reliable) insofar as the items of evidence against him are numerous and unambiguous (from his DNA being found not on one item but on several, even in the vaginal swab, to the print on the pillow and the blood on the sweatshirt worn by the victim, to the shoeprints; and even his previous behavior, as one experienced in entering apartments to rob, equipped with a knife, even [simply] to bother [other] youths), does not assume any relevance in ascertaining the responsibility of the current defendants.