12.11.09

Amanda Knox's Escape Chances

The Italian trial of exchange student Amanda Knox was billed as a clash of cultures—an American innocent in a justice system stacked against her. Attorney Gerald L. Shargel weighs the evidence.

It’s a nightmare scenario. A 20-year-old American exchange student is arrested and jailed for a murder that she says she did not commit. She waits in a lonely Italian jail cell for more than a year before she is brought to trial. Nearly another year passes before the jury's guilty verdict is announced. The sentence: 26 long years in a remote Italian prison.

In prisons across America, from Angola to Attica, from Trenton State to Pelican Bay, there are thousands of inmates, most rightfully but some wrongfully, who have been convicted on far less evidence than the prosecution presented in the case of Amanda Knox.

For Amanda Knox, many argued that the deck had been stacked—the cards dealt from the bottom. A malevolent prosecutor armed with evidence that The New York Times’ Timothy Egan described as "flawed and flimsy," unfairly secured a conviction in a country where, according to another Times reporter, Rachel Donadio, "the general assumption is that someone is guilty until proven innocent. Trials—in the press and in the courts—are more often about defending personal honor than establishing facts, which are easily manipulated."

As the Knox case proceeded to trial, the cultural clash was palpable. Although Knox had an Italian lawyer, the case was defended American-style: Blame the police and the integrity of the investigation. In the United States, that strategy is de rigueur. In Italy, the "blame the authorities" defense is considered offensive and "personal honor" is indeed in play (the Italian police have now brought a proceeding against Knox's parents for criminal defamation).

At trial, the defense lawyers had their work cut out for them. Knox's confession to the police was either beaten out of her, or at the very least it was coerced, and in any event she was in a hashish-induced haze for the 14 hours that she was questioned; Knox's bizarre behavior while waiting to be questioned by the police, turning Manson-esque cartwheels, was just a Seattle kid being a Seattle kid; DNA evidence was unreliable because the sample was tainted; the remaining forensic evidence could simply not be trusted; witness testimony was suborned, and so it goes. Enter the doubters and conspiracy theorists, skeptical of the Italian justice system (two of the jurors are judges, Alan Dershowitz complained to a Times blogger), arguing that the Italian police are corrupt and the Italian prosecutors are unfair. Cries are now heard round the world that Amanda Knox was railroaded.

I don't know whether Amanda Knox is guilty or not. But I do know this: In prisons across America, from Angola to Attica, from Trenton State to Pelican Bay, there are thousands of inmates, most rightfully but some wrongfully, who have been convicted on far less evidence than the prosecution presented in the case of Amanda Knox. Knox's admission that she was in the house where and when Meredith Kercher was murdered, Knox's DNA on the alleged murder weapon, her false exculpatory statement claiming that a demonstrably innocent man had committed the murder, testimony from independent sources that Knox was at the scene of the crime—all combine to provide a stunning direct and circumstantial case.

The jury credited this and other evidence despite defense contentions that the DNA evidence was contaminated, that the knife introduced by the prosecution could not have caused the wounds that were found on Kercher, that witnesses called by the prosecutors were liars, and that other key evidence was planted by the authorities. But those who criticize Italian justice and what is now claimed by so many to be a wrongful conviction should pause for a moment and take a deep breath. It appears unlikely that Amanda Knox would have fared any better in an American court. In the absence of a guilty plea, incriminating evidence introduced at an American trial is commonly rebutted with claims of prosecutorial misconduct, contamination of scientific proof or the planting of evidence. And, as in Perugia, juries in the United States much more often than not reject these defenses. It may be that in the United States there are no judges on a jury; but that European model is intended to promote, rather than impair, a fair result.

None of this is to suggest that Amanda Knox committed the murder or that she was not wrongfully convicted. In this country, lawyers and organizations such as the Innocence Project struggle for years to free the wrongfully imprisoned. Continued public attention and meaningful review by an Italian appellate court (vested with the right to reconsider the facts) may well result in Amanda Knox’s ultimate release. I just don’t think we should assume, particularly on some murky account of the facts, that the Italian courts afford only kangaroo justice.

Gerald L. Shargel, a member of the New York Bar since 1969, has handled numerous high-profile cases at both the trial and appellate level. Mr. Shargel, a practitioner-in-residence at Brooklyn Law School, recently authored a law review article published in the Fordham Law Review, "Federal Evidence Rule 608(b): Gateway to the Minefield of Witness Preparation."