Reasons for the Decision

Translated by Teddy, of http://www.injusticeanywhereforum.com

What really happened in that apartment located on the first floor of 7 Via della Pergola in the time period 21:00 and 24:00 of 1 November 2007, the timing, the means, the circumstances of the brutal homicide could only have been revealed, at least in demonstrating a sense of compassion towards the poor victim, by the accused; that instead have preferred to fill their statements, made on various occasions, with lies, reticence, back-peddling, half-truths, insinuations, unlikely perspectives, thinly veiled accusations against each other; and so without it, it is necessary to rely on the elements that emerge from the court proceedings.

The Judge of the first level trial should be given credit for the meticulousness and logical-jurisprudential rigor with which he analyzed all the possible hypotheses, giving precedence to those more in line with the findings emerging from the investigations, the testimonies, expert assessments, and from the statements of the protagonists, providing – in the view of this Court – a correct and well argued reading of the facts that emerged, that hold up against the equally well-argued critique put forward by Guede’s defense; which should be acknowledged for having left no stone unturned in searching for a different reading of the facts, and for its participation, passion and the meticulousness with which it honored its professional duty.

It should be noted that the author of the appealed sentence is a person of considerable experience who is respected as a balanced and professionally qualified person: therefore, not easily influenced by the enormous (“raging”) media pressure surrounding this case that was provoked by the defense.

Before going into the details of the grounds for the appeal and the arguments put forward in the course of the discussion, it seems opportune to dwell briefly on the profile of the protagonists of the proceedings being examined, as emerged from the court proceedings.

  • Who was Meredith (pg 32)

Meredith Susanna Cara KERCHER would have been 22 years old on 28 December in the year she was murdered. She was born in London and there she lived, in the Couldson area; she was studying for a degree in European Studies; she arrived in Perugia in September 2007, having signed up for the Erasmus program in order to complete the degree course to read Italian and Latin. In the photographs published on the Internet she seems to be a girl who is full of life, at home in a provincial city that gave her more freedom of movement compared to the large metropolis from where she came and where she was experiencing the beginnings of a sentimental romance with an Italian boy, Giacomo Silenzi, the only person of the male sex who, according to Romanelli and Mozzetti, had had access to her bedroom.

Those who knew her (the English girlfriends; the girls who shared the apartment, the boys from the flat below), describe her as a discrete girl, serious, reserved, attached to her home life : a family person (Romanelli says that she was never separated from her mobile phone – one of those found by Alessandro Biscaririi in the garden of his house and handed over to the Police by his mother – because she was concerned for her mother’s health, with whom she was continuously in contact); all which, without being puritanical, at times indulging herself in minor transgressions (the odd drink, puff of a joint shared with others, some sexual relations with Giacomo Silenzi, as stated by him); different, however, from her flatmate Amanda Knox, who was more brazen and extrovert, less respectful of rules, sexually uninhibited (Meredith reported to her friends Robin Butterworth and Amy Frost of the embarrassment she felt when seeing condoms and a vibrator in clear view in her flatmate’s beauty case in the bathroom); the same two friends mentioned above also reported on the embarrassment of the girl [Meredith], who evidently did not know how to say no, when the boys from the floor below (including Silenzi) had left her the keys to their apartment, with the job of watering, every so often, the cannabis plants; in short she was a girl full of zest for life, looking to expand her horizons, but measured and sensible, certainly not in search of easy adventures and also somewhat rigid on the topic of sentimental relationships (see the discussion on fidelity, with Romanelli and Mezzetti).

  • Who is Rudy (pg 33)

Rudi Hermann Guede was born in Agou, Ivory Coast, 26 December 1986. At the age of 6 he came to Italy with his father (it seems his mother disappeared immediately after his birth: witness Gabriele Mancini), with whom he settled for a while in Perugia; once his father, with whom it emerges he had a difficult relationship, had to return to the Ivory Coast and having only an aunt living in Lecco as his only point of reference, the social services, who had already been called to take care of him, entrusted his care with various families in Umbria, the last one being the Caporali family, owners of the “Liomatic” company, that sponsored a basketball team in which he sometimes played; once he reached the age of eighteen and was no longer under the protection of social services, he started his drifting and disorganized lifestyle, showing an aversion to every type of commitment and responsibility: He would disappear and then reappear in Perugia, leaving comfortable positions of work, found for him by people willing to help him (though always showing to these people the better side of his character) or he would get himself dismissed, he would abandon his friends, only to reappear in moments of need.

He is prone to excess: many of his friends and acquaintances report having seen him drunk or heard that he had made use of drugs (see in particular, Vykintas Rakauaskas, Rebecca Savoy, Benedek Avital, Stefano Bonassi, Abukar Mohamed Barrow, Zafer Salim); he is not new to unlawful behavior (27 October 2007, as already mentioned, he is taken by surprise in a nursery school in Milan, where he had found shelter, in possession, amongst other things, of a computer found to have been stolen from a lawyer’s office in Perugia); it emerges that he is a competent internet user and frequenter of Internet Cafés (his friends Mancini and Benedetti were contacted by him via Internet programs), demonstrated by the fact that while communicating with his friend Giacomo Benedetti via Skype from an Internet Café, at the same time he was following the latest news on the investigation, always over the Internet, through a Mediaset broadcasting channel; in the end he showed himself to be very capable and not at all inexperienced in creating alibis for himself and in modifying his “truths” bit by bit as the media published updates on the developments of the investigation.

At this point, we must first say that the Court does not agree with the assumption of the GUP, which moreover can be demonstrated, about the use in this case of the recordings of the Skype conversations between the accused and Benedetti.

Apart from the fact that these conversations were fully authorized by the recipient Benedetti and were fully and justly utilized by the defense to demonstrate Guede’s intention to return to Italy and hand himself over to the police, it is sufficient to note that the conversations on the computer via Skype are not, at least at this moment (and even more so at the time that they occurred) open to interception, being encrypted calls using complex encryption algorithms, such that no judicial authorization could have allowed their interception and capture; secondly they occurred in the presence of the police of SCO, who not only were able to listen in but also to intervene indirectly, suggesting to Benedetti the questions to be asked of the defendant on the means in which he would return to Italy and the place to meet.

In any case, “the audio recording of the discussion, occurring between those present or through transmission tools, by a person that participates, is documentary evidence that is fully utilizable even if carried out on suggestion or on behalf of the judicial police, being, in any case, a recording carried out by the participant of the conversation, unfamiliar with the investigative equipment used and entirely legitimate to be used as evidence in the trial” (Cass, Section 6, 24 February – 22 April 2009, N. 16986).

On the questions of the trial raised by the defense, the Court has already ruled, rejecting it, in the decision of 18 November 2009…

Indeed, except for the compatibility of the requests put forward at the trial ; having chosen the fast track procedure, especially in the Appeal phase, the acquisition of the documents supporting the request to call Mohammad Egbaria to the stand to testify, who had alleged having seen the defendant on the night of 1st November 2007 and the testimony of the aforementioned witness, concerning facts neither decisive nor directly connected with the crime under examination, in fact, even if the circumstance is true, it adds to or takes away nothing from the credibility of the version of facts provided by the defendant, taking into account also the contrasting and opposing statements made by other witnesses (second Cass., Section 6, 10 November 2005, n. 45240, the integration of evidence on appeal, although not excluded absolutely, can be permitted, of the court’s own motion, only for documents indispensable to the acquisition with the aim of deciding and relating to the procedural capacity of the defendant or the same conditions of the crime of the punishment, excluding that it can appeal in order to deal with the evidentiary weaknesses or to obtain proof against the accused)… The request for expert assessment to verify the existence of biological traces on the towels that the defendant claims to have utilized in an attempt to stop the blood that was pouring out of the victim’s throat has not been accepted, not only because it is not a decisive piece of evidence, but above all because it is not useful, as emerges from records of the scientific police who had not found biological traces on that towel because it was completely soaked in blood, which did not permit the collection of DNA and one of them, indeed was affected by mould.

Also irrelevant the request for expert assessment of the defendant to verify that he suffered from an acute stress disorder, that would have justified his fleeing the scene and the failure to assist the victim, a disorder noted only in this phase and as to the existence of which, moreover, the Court has serious doubts which will be explained in the following.

Taking into consideration now the main reason for the appeal; concerning the non-existance of a sexual attack, the jury maintains that the arguments in favour of the plea, though precise and suggestive, are not convincing and not enough to affect the arugment in support of the contrary hypothesis;

From the evidence submitted some indisputable facts emerge: 1) the defendant was present at the scene of the crime, as emerges from his own statements, before, during and after the homicide; 2) on the body of poor Meredith there were found traces of sexual intercourse with GUEDE (see the results of the tests on the vaginal swab, which allowed, via the genetic markers of the y-halotype, the identification of the defendant in the biological material found), intercourse that finished with the mere penetration of his penis or of his fingers, seeing as no traces of sperm were found; 3) on the bra of the girl and on the sleeve of the sweatshirt, from that worn that evening; it was found other biological material that is identified as belonging to GUEDE; 4) on the body of the victim, as revealed by the civil parties, 43 cuts that, even excluding those caused by the fall of the body onto the floor, are considerable and caused by violent actions upon her and made by pointed and sharp knives or with strong pressure of the hands and limbs (for example, the bruising found on the mouth, the nose and the area of the submandibular and on the thighs), certainly incompatible with the theory of the thief who, caught by surprise while stealing, had wanted to eliminate an inconvenient witness.

It should be noted, however, that medical forensics, through the work of the consultants and experts, were not able to determine the existence or otherwise of sexual violence, on the basis of the observation that a high number of women who are victims of sexual abuse (classified in the order of 75% by Professor Aprile) do not show lesions of a traumatic nature, while, on the contrary they can be found following consensual sexual relations; but it is also true that the consultants and experts have provided significant data and observations, though leaving them for the interpretation of the judges.

The first judge noted that according to the first analysis, Lalli-Epicopo, the purple marks of bruising present on the internal side of the labia minora of the victim could be explained by the absence of vaginal lubrification* symptomatic of sexual activity in the absence of the preparation and availability of the woman, that can be attributed therefore either to, hurried intercourse, completed or attempted, or [penetration] against the wish of the individual.

The consultants nominated by the Public Minister observed that “in absence of vaginal lubrification, the introduction of the penis or even only of the fingers is capable of making such bruises due to the pressure employed and/or due to the rubbing”.

The consultants Bacci-Liniero-Marchionni nominated later by the Public Minister also leaned towards penetration of a violent nature; and again the expert Professor Aprile, in the pre-trial investigation, stated the sexual activity was about the same time as the lethal event, and a crime of a sexual nature. ..

According to the expert Professor Umani Ronchi, there was then an escalation of violence against the victim, proved by the small wound on the cheek, which would not have made sense if it had been made after the deep knife wound on the neck, which was lethal, while it would have made sense if it had been hypothesized that it was made to reduce her resistance.

Furthermore, leading to the same conclusion are the bruises found on the victim’s thighs, a clear sign of an application of pressure on them; the discovery of the DNA and the Y chromosome traced to GUEDE on the left sleeve cuff of the victim’s sweater, biological matter in the form of flakes of epithelial cells, which are produced by consistent pressure of the hand on an object and therefore to be interpreted as the act of restraining Meredith’s arm.

The defense discussed the possibility of contamination of the exhibits, in the sense that the genetic profile of the defendant could have been transported on an object (the victim’s sweatshirt and bra) by an operator or by others present in the apartment on Via della Pergola; it was also suggested that the biological traces attributed to the defendant on some of the objects could have originated from his sweat.

Inspector Battistelli of the Postal Police* who intervened in the late morning of 2 November, stated that he had blocked access to all those present after Meredith’s door had been opened and had observed the presence of copious traces of blood and the body of the victim that protruded from under the blanket.

Doctor Stefanoni, in the course of a long and detailed testimony during the prelimary hearing, was careful to make clear that all the procedures had been respected by the personnel of the Scientific Police who had taken samples, with a change of gloves for every collection of material considered significant, change of shoe covers and controlled routes between zones of the house, use of disposable tweezers and of small plastic bags in which to place the exhibits, of suits and masks, as seen from the photos produced, specifying that the contamination could occur only with material carried from outside and not from that which was already present inside; she also excluded contamination from the laboratory, with the analysis following the conditions of article 360 cpp, in which the consultants of the parties were permitted to participate, who did not raise objections; she added that the transfer of DNA is not at all easy, requiring contact of a large quantity of contaminated material and, in any case, fresh and not dry; nor did the movement of some objects compared to the first inspection (part of a bra with the clasps, mattress, pillow, door of the cupboard) cause the transfer of genetic material already present in the apartment.

Regarding the sweat, Doctor Stefanoni explained that sweat does not contain cells, and that it [transfer] can only happen through the transfer of cells of a hand, for example, that squeezes the object.

Paradoxically, to the doubt suggested by the defense a response was provided, certainly not inspired by scientific criteria, but by good sense, by GUEDE, in the conversation, while under surveillance on 13 March 2008, in the Perugia Capanne prison, with Giacomo Benedetti when, speaking of the knife found in Sollecito’s house (the one with the traces of Amanda’s DNA on the handle and Meredith’s DNA on the blade), he said, referring to the hypothesis that the trace was made from sweat : “Meredith has never been in that house… if it was sweat… it doesn’t remain there for 3 days on the knife”.

But, in the opinion of the Court, what most convinces us that there was sexual violence is the unreliability of the reconstruction of the facts provided by the defendant and confirmed in the hearings, during spontaneous statements, statements however, from which the reference to the unlikely ringing of the bell that announced the entrance of Amanda Knox in the house disappeared, in other words of a person in possession of the keys to the house.

The battered body of Meredith, marked in several places by pointed and sharp weapons (probably two, given the different width found in the wounds), provides a different reading of the situation. In particolar, the version that there was consensual sexual intercourse with the victim was found to be entirely unbelievable.

It emerges from the court documents that of the three personal meetings that the defendant claimed to have had with the victim prior to the homicide, only one has been proven: the one a week before the homicide, in the basement of 7 Via della Pergola in the apartment of the boys from the Marche region in which Amanda and Meredith were also present, where Guede showed an interest in Amanda, which he spoke of, without however showing any interest towards Meredith (witness Stefano Bonassi). With regards to the meeting at “Domus” [discotheque] on the night of Halloween, in which he claimed to have exchanged a few words and a kiss (he clarified it was on the cheek when testifying; furthermore the meeting was organized a few days before the homicide, in the house of some Spanish friends, with whom the English girl had no connection), none of his friends and none of Meredith’s friends (in particular Amy Frost, who was with her all night) saw the two speaking together or even being anywhere near each other. Regarding the meeting at the local [bar] the “Shamrock”, on the day of the rugby World Cup final between England and South Africa, played in Paris on 20 October 2007 and won by South Africa, which was transmitted in TV in the aforementioned local [bar], she met during the course of it the defendant who apparently made fun of Meredith for the defeat of her team, none of the friends who he frequented most at that time, Alex Crudo and Philip Michael Maly, also present at the transmission of the match, had noted Guede talking with Kercher, who they did not even know, indeed it was the defendant himself that reminded them, after the homicide, that that girl was present that day in that bar.

In addition, none of the boys from the Marche region, who had also made salacious comments about Amanda on the occasion of one of the two visits that Guede had made to their home (it was the defendant himself who said to his friend Benedetti in the Skype conversation to have only been twice in the house of the Marche boys: page 42 of the transcripts) had noticed Guede show any interest in Meredith, reporting instead his interest for Knox; not even his friends Crudo and Maly, that he frequented continuously, had ever heard him speak of an interest towards the girl; furthermore Philp Maly also contradicted Rudi’s version that stated when they met in the centre of Perugia he had confided to him [Maly], that on that that same evening of 1st November he [Rudi] had an appointment with a girl.

But also from the version provided by Meredith’s friends it emerged that none of them had ever heard her mention any interest for Guede, who none of them knew, and nor had she confided in them of having an appointment with a boy on the evening of 1st November.

Robyn Carmel Butterworth, in whose house the victim ate her last meal on the evening of 1st November 2007, said in her statements made to the British police on 4th November 2007 (see translation in the court documents), that if Meredith had had the intention of having sex with someone, she would have told her about it.

Nor had Sophie Purton, the last of the English friends to have seen Meredith alive that evening, leaving her at 20:55 ten minutes away from the house on Via della Pergola (see entry of assistant of P.S. Mauro Barbadori), ever heard of any appointment that the girl had arranged: they were both tired, due to the late night the day before and had decided to go home to their respective homes to rest.

The hypothesis, proposed by the defense, who suggested the girl did not confide everything to her friends, referencing the fact that she apparently did not mention to them her use of cannabis, does not seem plausible, with her having on the contrary confided in them something far more serious, such as the embarrassing task of watering the cannabis plants of the boys on the floor below (statements of Amy Frost at Bergamo Police Station dated 8 February 2008), as well as the sexual relations with Silenzi (witness Purton, 3 November).

In light of this, the hypothesis appears entirely improbable that Kercher, whose reserved character was well known within her circle of friends and acquaintances, so much so as to appear aloof to Giorgio Cocciaretto, from the same region as the inhabitants of the basement flat, as was well known her inflexibility on the subject of sentimental relationships (Romanelli and Mezzetti stated on 7th May 2008 to have heard her say that she would never betray anybody), could have opened the door to Guede, appearing there without any apparent reason and, not long later, sharing intimate moments and having sexual relations with him, interrupted due to a lack of condoms.

It is therefore more reasonable to conclude that the defendant’s entrance into the girls’ apartment on Via della Pergola was with the help of Amanda Knox.

The arguments in favor of this hypothesis are: 1) the fact that the two knew each other (other than the various witness statements, Amanda also admits it during a conversation with her father, which was overheard when under surveillance on 20th November 2007 at the Capanne prison in Perugia); 2) the fact that there were no signs of a break-in through the front door; 3) the fact that, as we will see later, the breaking of the glass in Romanelli’s bedroom was a mise-en-scène [staged]; 4) the fact that both Knox and Sollecito were present at the scene of the crime, not only because, after his intial reticence Guede himself admits it, though providing vague references to the latter [Sollecito], who he probably must have seen with Amanda given the intense love story between the two, but on which it seems he had not focused his attention; but also due to the objective evidence obtained during the course of the investigation.

In looking closer, where one replaces the figure of Patrick Diya Lumbumba, in Amanda’s slanderous reconstruction of events given to the police on 6th November, with the figure of Guede, that version however later shown to be false, would make sense (meeting at the basketball court in Piazza Grimana, where it just so happens the defendant was a frequent visitor, where he also confirms to have been that evening, probably after having made sure that his friends from the Marche region were not at home which was followed by entrance into the apartment when only Kercher was home alone, by both of them [Guede and Knox] and Sollecito, with an unclear recollection of the presence of the latter [Sollecito]).

It is not known, not having heard the interested person [Knox], why Amanda indicated Diya instead of Guede, but it is likely that she could have done it because the latter, unlike the former, could have disproved her declared non-participation in the sexual violence and the following homicide, indicating however, a person of colour, in case somebody might have seen her going in the direction of the house or leaving it.

With regards to the staging of the burglary in Romanelli’s room and the complete undressing of the victim, the GUP agrees in essence with the version put forward by the defendant that it happened after he and the other two had left the apartment.

However, the defense observed that it would not have made sense to remove the victim’s bra at some later point in time; to make it appear that there had been a sexual assault, while it would have made sense to make it appear there had been a sexual assault that led to murder, so as to hide the perpetration of a theft, related to Guede’s statements that he had heard Kercher complaining of missing money, for which she was primarily accusing her flatmate Knox.

This reconstruction is not convincing, because, apart from the two mobile phones, taken most probably by Knox and Sollecito, probably to avoid causing concern amongst the flatmates on hearing Meredith’s mobile phones ringing without an answer from inside her bedroom, there is no proof that money or anything else was stolen from Meredith’s bedroom, not being able to consider the statement of the defendant, who apparently became aware of the theft by overhearing it, a circumstance that is obviously not possible to verify, given that Kercher had, yes, complained to the English friends of Amanda’s behavior, because of her untidiness (for example she reproached her for not cleaning the bathroom), of her tendency to be half-naked [in the flat], but she had never accused her of stealing something from her, taking into account also of the fact that if it is true what the flatmates stated, that Meredith usually paid the rent in cash, there was no proof that she had already withdrawn the necessary amount.

Except that, still, the intent could have been to make it seem more like a sexual assault committed by an unknown person who had entered through the window or to make it seem that Meredith was open to the idea of group sex that concluded tragically. Furthermore, it seems more likely to this Court that the bra was removed from the victim during an escalation of violence enabling Guede to give vent to his sexual instincts on her, given that, based on the statements made by Dr. Stefanoni, the clasps present on the piece of clothing [bra], on which the genetic profile of Sollecito was found, were found to be twisted, showing that force had been applied to remove them, while the edge of the garment [bra] seemed to have a clean cut, suggesting that it was cut by a knife, during the frenzy of the sexual assault, made difficult by the victim’s resistance, who according to close relatives was not at all the petite girl unable to react that one would believe, having played sports and even taken a course in kick-boxing according to her sister, which explains the presence of blood on the strap of her bra as coming from the smallest wound made while the victim’s resistance was being overcome; to which we can add, according to the medical consultants nominated by Knox’s defense, the round spots of blood found on the front side of her thorax and arriving there through respiration after the lethal cut proving that the garment had already been removed, as it would not make sense, on the other hand, that it had been removed in the following phase during the clean-up of the traces.

Therefore it was the refusal and unexpected resistance of the victim, overwhelmed but not subdued, by minds already altered by the admitted (by Amanda) consumption of drugs in the throes of excitement, which triggered the murderous rage.

Furthermore, that the entry of the defendant could not have been through the window of Romanelli’s bedroom, whose glass was found to be broken by a stone, appeared immediately obvious to the investigators for the evident difficulty of the climb (the window was at a height of about three metres above the ground, with there being an easier entry into the apartment below where, among other things, nobody was at home that evening), so it can be safely concluded that it was staged, so obvious that Romanelli herself, interviewed by the Public Minister on 3rd December 2007, stated “… then, well, while we were there we began to realize bit by bit that the burglary had been staged, also because glass from the window could be clearly seen on top of the clothes; it’s strange because whoever opens the window causes the pieces of glass to fall on the floor and then there would be the clothes on top of them, but instead the glass was everywhere, all over the place… on top of the clothes”.

The only possible explanation of the apparent staging can be an attempt to divert suspicion away from Amanda, who had the keys to the apartment and who, in the absence of the other two flatmates, was the only one who could have freely entered into that house, providing access also to Sollecito and Guede and it is likely, based on the statements made by the latter, that the staging was carried out at a later time, during a later entry into the house, after the murder; a staging carried out by whoever had a real interest in distancing all suspicion away from themselves (Knox and Sollecito), certainly not by Guede, who could not have entered into that house just as he pleased and who had never entered there before that night (see Skype conversation with Benedetti of 19th November 2007, page 88: “when I was with Meredith it was the first time that I had stepped into that house”).

Also the alibi, initially provided by the defendant in the conversation with his friend Giacomo Benedetti, to have left the scene of the crime for just enough time needed for it to happen, namely the entrance into the bathroom to fulfill an unexpected need to defecate, appears unlikely.

Although it was not possible to extract DNA from the feces due to the presence of bacteria, traces of Guede’s biological profile were detected in the fragments of toilet paper that were found in the toilet bowl: but this only proves that the defendant did indeed go to the bathroom, feeling, as he had stated, constipated due to having eaten a kebab, and one can also presume that it was due to this emergency that he was accompanied and brought into the house.

As for the rest [of his version], it is noticeable that the iPod that Guede claimed to have been carrying has never been found (and for the big fan of music that he claims to be, it is difficult to believe that he got rid of it, as it certainly was not in any way incriminating, unlike the Nike shoes, which he indeed stated to have thrown out).

In addition, the version according to which, on hearing Meredith’s scream, he rushed out of the bathroom without even flushing, is however contradicted by the fact that he had enough time to clean himself, as shown by the toilet paper that was found.

On the next part of his story, about the murderer that later took on a vague resemblance of Sollecito (he does not name him, but provides a compatible description, also with reference to the Napatljarri jacket and of the syllable “af” that he heard the victim utter after the stabbing) that turns against him injuring his hand with the knife and, in reaction, leaves him with the much-repeated phrase “black man found…”, the GUP has dedicated a lot of time in demonstrating how unlikely it is, based on the fact that the aggressor, armed with the knife, had abandoned the scene in the face of minimal resistance, leaving at the scene an inconvenient witness, trusting in the fact that not only would he not have been believed, but that he would have been considered the real murderer simply due to the color of his skin!

It is disappointing that this surreal hypothesis was, up to a point, supported by the defense when during the debate it brought up the figure of Tom Robinson, the black protagonist in the novel “To Kill a Mockingbird”, who was unjustly accused and convicted for sexual assault, as if the fact that that person being tried was black could have had some influence on the current trial and that, however, could have influenced and caused a distorted reading of the many serious and undisputable evidence against the defendant: it is obviously not so, it being the judge who is called to interpret the facts and not the influences of the media.

With regards to the hand injury that the defendant claims to have received in the scuffle with the aggressor, it was confirmed to exist in the photograph taken of his hand by the German police (however, difficult to see); it was however revealed by his friends Crudo and Maly, with whom, according to his version, he met on the same evening as the murder and, according to the statements of those two, on the evening of 2nd November, they had not at all noticed the injury, that should have been fresh and not bandaged.

Nor does it seem a significant demonstration of his rush to leave the bathroom the fact that the defendant omitted to flush, with this being consistent behavior to that verified a few days earlier in the house of the marchigiani (witness Benassi), [text missing in Italian version on page  45].

There is nothing to prove that Kercher could have been right-handed, as hypothesized by the defense, with it being obvious that almost everybody would defend themselves with both hands when being attacked by a sharp weapon, as long as one of the hands was not being restrained.

It is on this point that it should be remembered that the medical examination prepared by the GIP discovered bruised abrasions on the front of the legs, compatible with the action of being held down (page 39 of the expert’s report).

The absence of bruising on the left wrist does not appear to be significant, with the sweatshirt having acted as a protective layer and so it can be hypothesized that the pressure was exerted on the cloth, instead of on the arm, or the restraint used was not strong enough to affect the arm.

Furthermore, with reasoning that is easy to agree with, the first judge refuted the hypothesis that the victim was not wearing her sweatshirt (found covered in blood) at the moment she was wounded, as there would have been streaks of blood and evidence of smudging on the left hand of the girl; instead it was revealed that apart from the presence of some streaks which were visible in the photographs, the blood present on that hand and the clearly visible stains of blood on the arm in question were produced later, when the sweatshirt had already been removed, due to contact with the blood that flowed heavily from the main wound.

As for the fact that the traces of the defendant’s genetic profile on the sweatshirt were quantitatively inferior to that found on the purse, which was interpreted by the defense as showing a lighter touch and almost insignificant compared to the contact with the other object, this argument is not convincing.

Given that, as reminded by Dr. Stefanoni, the DNA traces are left only if an object is held with a certain amount of pressure, it seems logical to reason that the flaking epithelial cells, deposited by an energetic grip with the hands, can be more voluminous on a rigid object compared to a softer object, like with the sweatshirt, without taking into account [text missing?], the habit, the fact that Guede could have found himself in a state of inebriation, due to ingesting alcohol or drugs, similar to the previous time.

To summarise, in the half-truths that evolved over time coming from the mouth of the accused, his account was often filled with surreal lies, lying even on minute details (for example, in the interrogation by the Public Minister he denies being known by the nickname of the baron, and yet in the Skype conversation with his friend Benedetti, page 83 transc., he had explained that the basketball friends called him the baron for his likeness to the player Barron Davis), resulting in a version that is completely incompatible with the reality of facts perceived and heard.

For this reason, and not for any other reason, his reconstruction of events cannot be accepted.

With this the second reason for the appeal has been partially answered, concerning the defendant’s lack of intention to murder.

The poor battered body of Meredith exemplifies the most obvious refutation: one person could not have made all those wounds and cuts on various parts of the body, otherwise one would have to suppose that, … while holding a knife and trying to overcome her resistance, there could also be signs of being held down, as inferred from the bruises on the mouth and nose and the subconjunctival hemorrhaging found and the signs of strangulation, inferred from the bruises found on the neck, and the likely use of two knives deduced in light of the different thickness of the wounds to the throat and, as correctly observed by the GUP, traces of Guede’s genetic profile were found on the cuff of the victim’s sweatshirt, an obvious sign of a confrontation, such that the left hand, unlike the right hand that was apparently more free, shown to have only a small and insignificant wound, that was described by the medical consultant, suggesting that she defended herself mainly with her right hand, which, as testified by Doctor Stefanoni, the presence of blood as found on the cuffs of the sweatshirt, can cause those traces to become diluted.

While it is not necessary to examine the position of Knox and Sollecito, who are being judged separately, the multiple attacker nature of the murder aggravated by the sexual assault forces us to at least spend some considering them.

We have already discussed the evidence of their presence in the apartment on the evening of 1st November 2007, revealed by the DNA traces of Sollecito on the bra clasp of the victim, of the traces found on the knife in Sollecito’s house where the victim had never been (witness Romanelli) considered compatible with the wounds by the expert witnesses, at least with the deepest one, and having traces of Knox on the handle and Kercher on the blade; supported by the presence of Amanda’s lamp in Meredith’s room (statements of Romanelli and Mezzetti of 7th May 2008); by their lies, including Sollecito’s to Inspector Battistelli to have called the Carabinieri, which instead was found to have been made after the arrival of the Postal Police; from the break in mobile telephone usage of the two, revealed by the logs, between approximately 21:00 of 1st November until the morning of the next day; from the footprint compatible with Sollecito on the bathmat (Consultants Boemia-Rinaldi); the footprints of the two revealed by Luminol; from the discovery of diluted blood stains present on the wash basin and on the bidet containing the genetic material of, other than the victim, also of Knox (see testimony of Stefanoni); from the phrase “I was there” that Amanda let slip out in her intercepted conversation with her parents while in the Capanne prison in Perugia; from the statements (in the third session of questioning by the Public Minister) of Rudi Guede, where he brings Amanda into the scene of the crime for the first time providing more precise details on the wielder of the knife.

Another element indicating it was a murder carried out by multiple attackers is from Nara Capezzali’s testimony, who, refuting the story of the defendant that he stayed behind longer than the others in an attempt to staunch the victim’s wounds with towels, stated that, though not knowing the exact time, on hearing the “harrowing” scream of a woman, which caused her considerable distress, so much so that for a while she could not get back to sleep, after a brief period she heard footsteps of people running, some going towards steps leading to via del Melo and via del Pinturicchio and others going towards via del Bulagaio, without after that hearing any noise in the following moments in which she remained awake; and it is without doubt that she is to be believed, considering the distressing effect of a person screaming would have in the silence of the night, on a person that was in a state of slumber.

The one who went running towards the iron staircase was Guede (the defendant himself admitted to it in the questioning of 26th March 2008), a fact confirmed by the testimony of Alessandra Formica that stated that her boyfriend, while they were coming down the stairs of Sant’Antonio car park, was violently bumped into by a person of colour that was running quickly towards via Pinturicchio. This testimony, including the reference to the presence of a pick-up truck in via della Pergola, allowed her to connect the event which concurs with the testimony of Giampolo Lombardi, driver of the pick-up truck, as being soon after 23:00.

On this point, a phrase that Guede let slip when trying to explain to his friend Benedetti his reasons for fleeing Meredith’s house, though claiming to have not been involved in the murder, seems significant: “I feared that they would have given the blame only to me”. (Page 16 transcript of conversation via Skype).

Almost at the same time, Sollecito and Knox were seen by Antonio Curatolo in Piazza Grimana, most certainly coming from the direction of via della Pergola, while they repeatedly looked back down in the direction of via della Pergola where, with all probability, they returned once they disappeared from the view of the witness [Curatolo], as soon as it had been ascertained that Meredith’s scream had not caused alarm, nor caught the attention of the neighbours or passers-by, nor caused the intervention of law enforcement, with the intention of getting rid of as much as possible their traces and distancing suspicion away from the only person that could have entered the house that evening with the keys, through the mise-en-scène [staging] of the burglary.

The defense contends that there is no proof the defendant held the knife considered to be the murder weapon and that, consequently, there is no proof that he is a voluntary accomplice in the murder.

Premeditation is not contested, nor are there elements to sustain that the trio already had intentions to commit crimes before entering the house; certainly the introduction into the property of a knife, later found in Sollecito’s house, and not being part of the cutlery set available to the flatmates, as stated by Mezzetti and Romanelli, seems somewhat disturbing, but nothing enables one to conclude that it was carried with the purpose of carrying out an illegal and perverse plan, that only minds accustomed to crime and without scruples could conceive; on the other hand, one only need think of  Sollecito’s obsession, amply disseminated by the media, to always go out with a knife in his pocket.

If there was no premeditation and if, in line with the prosecution’s hypothesis, the homicide was the final act in an escalation of violence, then Guede participated fully, not only for being the author of the sexual assault, but also for having held down the left hand of the victim while she was given the fatal wounds.

Indeed, after the failed attempts to physically hold her by her neck, evidence of which was found by the medical examiner, then the knife came out in an attempt to overcome the victim’s resistance which was used with increasingly harmful effect, the defendant must have realized that, at least in terms of the malicious intent, of how the final outcome of the violence used would turn out; not to mention that he who is involved in a violent act against a person cannot be unaware of the moment that excessive force is used, especially if carried out by more than one person and using weapons, in murder; taking into account the fact that Meredith, who knew the defendants, if allowed to live, could have been a prosecuting witness for the sexual assault she suffered.

In light of the above, the third reason for the appeal is rejected, relating to the non-participation in the crime.

On this point, the defense’s assumption does not seem reasonable, that Rudi did not act in participation with the other two co-defendants, whether for the considerations described above, or for the fact that as said, the prosecution’s theory did not contemplate premeditation and a pre-arrangement, leaving space for the idea that the criminal intent evolved only after the three entered into the apartment and realized that Meredith was at home alone.

After all, it is proven that Amanda knew Rudi, as was quietly admitted by the latter and it is of no importance whether or not the defendant knew Sollecito, with it being understood that it was Amanda and not Meredith to facilitate his entrance into the apartment on via della Pergola; the unreliability of the witness Kokomani, who testified to have seen them all together, with it being unsure if it was the evening of 31st October or 1st November, who made fanciful statements that were rightly discredited by the first judge, is certainly not enough to reduce the likelihood of this fact.

With regards to Guede’s claim to have staunched the wounds with towels, an action that nevertheless took place after the lethal attack, it certainly cannot be used to infer the absence of a will to kill.

Whilst it may be that it was only he, without any help from the others, that tried to stop the copious loss of blood from Meredith’s neck (as said, it was not possible to determine the presence of biological material on the three towels covered in blood), it is also true that, according to Capezzali’s testimony, this must have occurred immediately [after the attack], given that the same witness shortly after the scream heard the sound of many footsteps on the lane in front of her house, going in the opposite direction, and while she remained awake, she did not hear any other noises of footsteps afterwards: and the defendant did indeed leave the house running, heading up the metal staircase in a hurry and bumping into the boyfriend of the witness Formica as he fled; that the scream, so powerful that it penetrated through the closed windows of Capezzali’s house about seventy metres away from the house on via della Pergola, would have drawn the attention of the neighbours and could have facilitated the discovery of the crime.

If this is true, it seems completely out of place to appeal to “acute stress disorder” as reason to justify the defendant’s sudden flight, with Meredith dying.

In fact apart from his statements which attribute his fleeing, not to a state of confusion and of an altered state of mind, but due to having heard suspicious noises coming from the floor below, it is exactly his subsequent actions that refute [the possibility it was] an unexpected onset of a mental disorder.

Indeed nothing would have stopped the defendant, who knew that Meredith was still alive when he fled from that house, to have made a phone call, perhaps anonymously from a public telephone box, if not to “113” then at least to “118”, to call for the intervention of the emergency ambulance services.

Instead, according to his statements, his concern after having passed by his house to clean himself up (that he was covered in blood is proven by his hand print that was left on the pillow next to the victim’s body), was to create for himself an alibi, to get himself seen by his friends Alex Crudo and Philip Maly, who nevertheless state having seen him only the next evening; there is, however, the testimony of Martin Carolina Espinilla that testified having seen him at [the discotheque] Domus on the night between the 1st and 2nd November, in the company of people she did not know; testimony which confirms the defendant’s intention to get himself noticed in a place distant from via della Pergola.

On the night between 2nd and 3rd November 2007, Guede was seen at Domus by Rebecca Savoy and Benedik Avital and on that occasion, Giulia Davis states that in the moment that a minute’s silence was requested to commemorate the death of the English girl, she was dancing with the defendant.

Then, according to the statements of Alex Crudo, there was nothing strange in his friend’s behaviour.

Alarmed by the initial rumours of the investigation, Rudi left Perugia on 3rd November; on 4th November it emerges that he was accused by news sources in Munich of using the false name of Kevin Wade.

[Here there is a short sentence that the optical character reader has produced gibberish, the readable part follows]

No evidence of an alteration of his mental state, absence of emotions, [gibberish], also during the one minute’s silence to commemorate Meredith’s death.

Rightly the first judge did not consider relevant the example evisaged in the discussions [of the trial], of Dr. Richard Kimble, played by Harrison Ford in the film “The Fugitive”, since that character, finding himself before his wife’s dead body, felt the obligation to inform the police force, something which Guede thought best not to do, as would any person who wants to demonstrate they were not involved in the crime, even at the risk of not being believed, calling upon the emergency medical services to help a person seriously wounded. Neither was the behaviour of Knox and Sollecito any different in the police station on the day the tragic incident, according to the statements of the victim’s friends.

It remains apparently inexplicable why the defendant, though having immediately indicated, in fairly general terms the aggressor armed with the knife, did not immediately name Knox and state his connection with the aggressor; not only that, but once called upon to speak in open court to repeat finally what he had stated regarding the people present at the tragic event, he availed himself, as documented by the Prosecuting General, of the right to remain silent.

One can obviously agree with the defense that the right to remain silent is guaranteed to the defendant as part of the trial proceedings; one agrees less when the defendant, as in the case in question, is called upon to be a guaranteed witness, having to report on facts committed by third parties, given his declared non-involvement to both the sexual assault and the homicide, even if formally, exercising that right cannot be faulted, as it would have been suicidal on behalf of the interested party to bring into the proceedings the statements previously made by the defendant.

The only rational answer is that Guede remained silent as long as he could, because in view of the profound connection of the events, to accuse Amanda and Raffaele would have exposed him more than likely to counter-accusations on their part.

In light of this, in addition, also the sixth reason must be rejected, proposed as an alternative, concerning the non-application of the so-called anomalous participation, in which article 116 c.p. therein explains.

Guede participated actively in all phases of the criminal events: protagonist of the sexual assault, as we have seen he contributed to the direct violence in weakening the victim’s resistance, up to the final tragic moments, even when the sharp weapons were brought out.

Even if the other two co-defendants made no mention of the towels used, it is not likely, in light of the timeline provided by Capezzali, that the defendant went back and forwards to the bathroom by himself, to fetch the towels with which he could staunch Meredith’s wounds; but even if this were true, it does not in any way prove his non-involvement in the most serious aspect of the crime.

Indeed as the General Prosecutor in the hearing revealed, there would have been a dispute if the defendant, on seeing that events were going beyond his expectations, had in some way interrupted the escalation of events, either by stopping the accomplices or leaving the scene of the crime, and not when the attack had already produced the easily foreseeable result.

Because, indeed, for “concorso anomolo”[1] to apply requires that the outcome was not intended, not including “dolo alternativo”[2] or “dolo eventuale”[3], becoming otherwise the responsibility for which article 110 of the Penal Code applies: it is, in addition, necessary that the more serious outcome is not the consequence of exceptional factors, having occurred, merely incidentally and not caused by the basic criminal conduct, unforeseen by the perpetrator (see Supreme Court, Section 1, 24th October-17th November 2006, no. 37940); in theory it is also necessary, for responsibility for the crime to be shared in which article 116 of the penal code, that the agent has not foreseen and accepted in concrete the risk of the alternative outcome that is brought about by the accomplice of the less serious crime (most recently, Supreme Court, Section 5, 8th July – 9th September 2009, no. 39339; Supreme Court, Section 2, 13th-18th May 2009, no. 20885; Supreme Court SS.UU, 18th December 2008 – 9th January 2009, no. 337, that revised the “concorso ordinario” in place of that so-called “anomolo”, though without certain proof regarding the effective animus nocendi (will to harm), in the case of accomplices that had accepted the risk that the serious wounds planned could go too far resulting in murder).

Equally unfounded, in the view of this Court, was the fourth reason, concerning the violation of the principle of guilt beyond any reasonable doubt, to which article 533, first paragraph of the Penal Code refers.

Some points, such as the uncertainty of the defendant’s departure from the apartment after the others, the impossibility of determining whether the defendant was the only one to try and staunch the wounds of the victim with towels, the link between the wounds to the defendant’s hand and the action of the attacker armed with a knife, and the failure to flush the toilet as being caused by Meredith’s “excruciating” scream rather than a simple oversight, have already been addressed in examining the other grounds for appeal, which we referred to in our earlier deliberations.

As for the lack of an explanation for why Guede did not return like the others to the scene of the crime to remove his traces, despite having more reason to do so, having left more traces than the others, this court notes that actually the first judge has already provided an explanation, pointing out that while the defendant had no connection with that house, it was instead of primary interest to those that had such a connection, Knox, who lived there and her partner Sollecito, to suppress any possible indication that could direct the investigators towards them, staging the breaking of the window and the attempted burglary to imply an entrance to the scene by an unknown murderer by other than the main door, and with the elimination, for them in an unfortunate way, of the mobile phones that, ringing hopelessly, could have attracted the attention of the other flatmates or of other people, before they would have had time to construct their alibi.

It didn’t take much, in fact, to deduce that the first investigations would have centred on the residents of the house and its regular visitors, as indeed occurred, with the help of the unexpected event (discovery of the mobile phones).

It should be added that the defendant, according to what he stated, did not own a mobile phone, and the co-accused, who fled in a different direction, did not have any way of informing Guede of their intention to return to the scene.

In addition, while the return of Knox and her boyfriend to the scene where the crime had been committed a little while earlier, would not have aroused any suspicion, nor would it have caused any eye-witnesses to view it as suspicious, this would not have been the case if Rudi had been seen returning to that house; it would have been a lot more convenient to be seen by his acquaintances to build an alibi, either not suspecting or underestimating the fact that the fingerprint, left on the pillow, could lead to him: and this is not a contrived theory, but only a logical and reasonable deduction.

Regarding the argument concerning the missing money, reported by the defendant from the outset, to support the hypothesis of the theft followed by murder, in addition to what has already been said regarding its improbability, it’s enough to add that the murder of Meredith seems to be entirely out of proportion with the discovery and dispute about the missing money, first because Amanda could easily have directed suspicion toward the other flatmates, secondly because Meredith, though often critical of her laid-back behaviour, was a friend of Amanda, they socialized together often, they had friends in common and there was no reason that, facing such accusations, or rather such suspicion, she would have, together with her accomplice, restrained her friend and abused her body, that is easily visible in the colour photographs produced by the General Prosecutor; abuses that seem better explained by a moment of madness and out-of-control sexual impulses.

The explanations of the G.U.P seem to be correct regarding the staging and the removal of traces (but not all) by the co-accused at a later time, which is compatible, not only logically (they would have had to stage a burglary that had already occurred), but through the testimony of Capezzali and the statements of Guede himself, who had stated that when he left that house, no window was broken and the house was in order.

Regarding the fifth reason, relating to the lack of aggravating circumstances due to trivial reasons, if one agrees with the defense that the first judge did not provide any specific reasoning, it emerges however that he concluded their existence in the explanation of the verdict, by reference to the “disturbing seriousness” of the actions compared to the aim.

Given that this aggravating circumstance is compatible with the so-called impulsive intent [dolo d’impeto], which was hypothesized in this case (see most recently, Supreme Court, Section 1, 28th May – 16th June 2009, number 24894), we find that the murder and even the multiple sufferings caused to the victim before that, appear to be entirely out of proportion with a need to satisfy a sexual impulse, which was not in any way encouraged by the victim.

However, in the opinion of the Court, the last ground for appeal, advanced in the alternative, relating to denial of the mitigating circumstances, is well-founded.

The Court took note of the arguments in support of the denial by the first judge: seriousness of the conduct, not mitigated by the eventual late change of heart demonstrated by the use of the towels (on his own or with the others), actions that occurred after the crime by the accused (with dishonesty and lying in the versions of facts provided), rejection of the possibility of being redeemed by people close to him; elements in which the Prosecutor General complained of his unwillingness to specify details in the case against the others accused, as shown in the Court records, demonstrated by the choice of preferring to not respond to questions requested by the Prosecution.

He also took into account arguments in his favour, put forward by the defense; the lack of previous convictions (no longer sufficient after the introduction of the 3rd paragraph of article 62 bis, introduced with statute no. 125 in 2008), the fact that it was not him that held the knife that inflicted the mortal wound on the victim, the voluntary return to Italy after fleeing to Germany, his young age, the “acute stress disorder” that would justify his lack of aid to the victim and the subsequent escape abroad.

Taking into account such elements, the Court holds such mitigating circumstances can be accepted. It observes, indeed, that his life spent so far drifting, has not compromised in an irreparable way the defendant’s personality, considering also his young age and despite the difficulties endured, that have marked his infancy, with a severe and frequently absent father and a mother that abandoned him forever from the moment of his birth.

It must also be mentioned that, due in part to the positive influence of his friend Giacomo Benedetti, Guede expressed right from the first contacts his intention to return to Italy to hand himself over to the police and, once arrested in Germany, without hesitation he gave his consent to be handed over to the Italian authorities.

In addition, he was the only one of the defendants to apologize to Meredith’s family, even if referring only to his lack of help to her [in her dying moments], as was recognized by the lawyers of the girl’s relatives who participated as civil parties.

Then, apart from the attempt to staunch the flow of blood from the wound and the proof that it was not he that held the knife that was compatible with the worst of the lesions, it should also be remembered that Guede was the only one, even if in a somewhat fanciful reconstruction of events, to indicate the perpetrators.

Taking into account the elements and the circumstances of the crime and, above all else, of the unspeakable suffering inflicted on the victim, the panel holds that it must deliver a judgment in which the mitigating and aggravating circumstances are considered of equal value.

As a result of the aforementioned judgment of equivalence, the sentence applicable becomes that covered in article 575 of the Penal Code.

In conclusion, the panel holds that the standard sentence on which to apply the reduction of one third for the process chosen, must still be in relation to the undeniable seriousness of the crime, being the maximum foreseen of 24 years.

For the rest of it, the appealed sentence is confirmed in full. There is no margin for modifying the civil rulings, since there was no appeal on this point.

Finally, the defendant is ordered to reimburse the costs sustained in this phase by the civil parties, which are to be paid as stipulated in the original sentence.

For This Reason [P.Q.M.]

The Corte di Assise di Appello of Perugia pursuant to articles 443, 605, 599 of the Penal Code with partial reform of the sentence delivered on 28th October 2008 by the Judge of the preliminary hearing [GUP] at the Tribunal of Perugia against Rudi Hermann GUEDE, appealed by him, with the generic mitigating circumstances being equivalent to the contested aggravating circumstances,

REDUCES

the punishment of the appellant to 16 years of imprisonment.

CONFIRMS

the rest of the appealed judgment.

CONDEMNS

the appellant to payment of the expenses of the civil party Adalia Tattanelli that comes to €1,500 in total not including Italian and European taxes and reiumbursed in lump sum as per law, of those of the civil parties John Leslie Kercher, Arline Carol Mary Kercher, John Ashley Kercher, Lyle Kercher, who settles for a total of € 8,000 not including Italian and European taxes and paid in lump sump as per law, as well as those of the civil party Stephanie Arline Lara Kercher that comes to a toal of € 5,000 not including Italian and European taxes and reimbursed in lump sum as per law.

Indicates the term of 90 days for the submission of the motivation of the verdict.

Perugia, 22nd December 2009.


[1] A simple description of “Concorso Anomalo” would be to describe it as applying to a situation where one of the perpetrators of a crime commits an act more serious than what was desired, and that was not the intention of the accomplices.

[2] “Dolo alternativo” applies to a crime where the perpetrator foresees that it is certain or possible that there will be one of two outcomes, but is not sure which one it will be. E.g. shooting somebody could kill or could injure.

[3] “Dolo eventuale” applies to a crime where the perpetrator is well aware that the outcome that occurs could have happened. E.g. If shooting somebody the perpetrator knows that he may kill.

Advertisements