Amanda Knox Part 4: “Caught Between Two Traditions”: Italy’s Hybrid Legal System

“Caught Between Two Traditions”[360]: Italy’s Hybrid Legal System

by Martha Grace Duncan*
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All I am going to say is that she wasn’t discriminated against because of being an American.

Dr. Stefano Maffei[361]

Maybe the [limited] reforms in our criminal procedure are a kind of inoculation against the American way. After all, the adversarial system doesn’t go with European feeling.

Professor Elisabetta Grande[362]

I. Was Italy’s Legal System to Blame?

Having explored both the role of the Madonna/whore complex and the role of cultural differences, we come now to the third and final topic in our effort to “interpret the interpreters” of Amanda. This topic is, of course, Italian law. What part, if any, did it play in the initial targeting, arrest, and conviction of Amanda?

Others, too, have addressed this topic and some—viewing Amanda’s treatment as a miscarriage of justice—have placed substantial blame on the Italian legal system. For example, after the first guilty verdict in 2009, Maria Cantwell, a United States Senator from Washington, released a statement saying that she had “serious questions about the Italian justice system and whether anti-Americanism tainted this trial.”[363]

While rejecting the theory of anti-Americanism, George Fletcher, a law professor at Columbia, described the verdict as “a scandal of the first order.”[364] By way of explanation, he stated that Italy (which for a time had endeavored to model its procedure on that of the United States) had failed to “adapt correctly” the American legal system.[365] In a similar vein, Alan Dershowitz, a law professor at Harvard, opined that the Italian legal system “is not among Europe’s most distinguished.”[366]

But these observations are quite sweeping. On a more specific level, some aspects of Italian criminal procedure that have been vehemently criticized include, inter alia, the concurrence of civil and criminal trials before the same judges,[367] the flagrant use of character evidence,[368] the failure to sequester those sitting in judgment,[369] and the exposure of defendants to double jeopardy.[370]

In contrast to these critics, some comparative law scholars have argued that the continental legal system, including its Italian iteration, is as likely to achieve justice as the American system, albeit through a different path. One such scholar is James Q. Whitman, a law professor at Yale. In his article, Presumption of Innocence or Presumption of Mercy: Weighing Two Western Modes of Justice, he suggests that the American and continental criminal systems both have virtues—the former doing a better job of protecting the innocent from conviction, the latter of being merciful to the convicted criminal.[371] He believes that the United States would do well to emulate the more humane approach of the continental model, specifically by showing more concern for the guilty.[372]

In the Appendix to his article, Whitman focuses directly on the Italian system and its treatment of Amanda.[373] He acknowledges that, at first blush, she does not appear to have been treated with mercy because of her heavy prison sentence. He argues, however, that Amanda’s actual time served would have been shorter than the nominal sentence had her conviction been upheld.[374] In addition, he explains that Amanda was not the kind of defendant who typically benefits from Italy’s paternalistic ethos. He writes: “[S]he did not admit her guilt and throw herself on the mercy of the justice system . . . . There is a great deal of mercy to be had from the Italian system; but . . . it is largely for those who do not display defiance toward the state.”[375]

Like Whitman, John W. Head, a comparative law professor at the University of Kansas, defends Italian criminal procedure against the condemnation it received during Amanda’s case. He focuses on two criticisms: the failure to sequester the lay judges and the absence of due process. As to the first, he argues that the professional judges, who work alongside the lay judges, lend guidance to the latter and thus diminish any prejudicial impact stemming from the exposure of the lay jurors to the media.[376] As to the second, he suggests that because of the safeguards provided by Italy’s many opportunities for appeal on both the facts and the law, “the Italian system might in fact afford more protections than are available in the U.S. system.”[377]

In a final example of a scholar who defends the Italian system in the context of Amanda’s case, Julia Grace Mirabella seeks not only to assess the validity of the criticisms but also to explain their origins. In her excellent student note, she writes that these criticisms stem from a misunderstanding of the inquisitorial tradition in which Italy’s criminal procedure is rooted.[378] In addition, she claims that Americans tend to contrast the ideal of the adversarial model with the practice of the Italian model, to the detriment of the latter.[379] If, instead, Americans were to consider the practice of their own system, with its economic inequities and other flaws, she believes they would make a fairer comparison.[380] Such a comparison would reveal that Amanda might have been found guilty in the United States just as she was in Italy’s very different criminal law system.[381]

But what exactly is Italy’s criminal law system? It is often referred to as a hybrid,[382] but what is it a hybrid of? Simply put, it is a composite of the two dominant Western models of criminal procedure: the Anglo-American, which is adversarial, and the continental European, which is inquisitorial. But since this answer obviously begets more questions—What is adversarial? What is inquisitorial?—we risk embarking on a process of infinite regress. As a compromise between a brief but simplistic answer and a more profound but lengthy one, I will limit my response to reviewing the basic philosophical tension between these two classic modalities.

Central to this tension is that the adversarial system, while placing value on the truth, also holds fast to other values—in particular, protection of the individual from the state.[383] In contrast, the inquisitorial system is designed to seek the truth above all else, and reflects a greater trust in the state and its representative—the public prosecutor.[384] To put the distinction less abstractly, the adversarial procedure resembles a competition between two sides—the prosecution and the defense—whereas the inquisitorial procedure resembles an official inquiry, a direct seeking of the truth.[385]

Like the rest of continental Europe, Italy is imbued with an inquisitorial tradition dating back hundreds of years.[386] Yet in the late 1980s, inspired by the American adversarial model which was then considered prestigious, Italy embarked on an ambitious project to adopt a more adversarial system.[387] As might be expected when such an entrenched paradigm is challenged, these reforms met with considerable resistance.[388] When the dust had settled, what was left was still a predominantly inquisitorial system, albeit one with some new adversarial elements.[389] Hence the description of Italy’s legal system as hybrid.

This nebulous hybridity together with the confinement of my experience to the adversarial system and my awareness that legal practice diverges from theory were factors in my decision, made early in this research project, to seek clarity from criminal law experts in Italy. The first such expert I arranged to interview was Dr. Stefano Maffei, a senior lecturer in criminal procedure at the University of Parma. I met him on a drizzly morning in Bologna, much like the morning when I met Amanda and Madison for breakfast in Seattle some nine months before.

  1. In Bologna’s Historic Center with Dr. Stefano Maffei—December 9, 2014[390]

Italian men are car fanatics and worship all things automotive.

Graeme Chesters, Living and Working in Italy[391]

Rain is lightly falling out of a dove-gray sky on the morning when I leave the Grand Hotel Majestic Già Balioni and set off down the hill to meet Stefano Maffei. Originally, I was to travel by train to Parma, where Stefano works, or to Modena, where he lives. But this week Bologna is hosting an auto show, a big one, “the biggest in all of Italy,” according to Stefano, and as he wants to attend the show, we are to meet in Bologna. He will not be able to drive near my hotel, as private vehicles are banned in the city center, so he has told me to wait on the street opposite the Bologna Centrale station.

“How will I recognize you?” I asked him last night, when we spoke on the phone.

He assured me that he would be easy to spot. “I’m young and I’ll be wearing a black leather jacket,” he said. “And I’ll be driving a Porsche—a gray Porsche convertible.”

Not being a car aficionada, I doubted my ability to recognize a Porsche, convertible or otherwise. So before hanging up, I took the precaution of saying, “I’ll be wearing a black wool coat and a bright teal scarf.”

It’s a good thing I did, because the street opposite the train station is crowded with moving cars and motorcycles. Stefano has instructed me to find the Una Hotel and stand in front of it, but the covered walkway is too close to the buildings for me to read their names. Moving out from under the portico, I walk back and forth along the curb, searching for the word “Una,” while also keeping an eye on the street. I think that perhaps, by some miracle, I will recognize the Porsche or even Stefano in his black leather jacket.

No longer protected by the arcade, I am starting to get quite wet when a voice calls, “Marta!” A man three cars away is beckoning to me through his open window. Relieved that we have found each other, I run over, open the door, and collapse into a deep seat of pumpkin-colored leather. Stefano greets me and continues to drive, circling the neighborhood. I can’t tell whether he has a particular destination in mind or is simply searching for any place that will serve our purpose. At last, he pulls into a parking lot and leads me into a building where I follow him through a series of corridors to a bleak room, enormous and bare except for the small white tables and folding metal chairs distributed throughout the space.

Selecting a table, he sits down, without taking off his jacket. Now that we are face to face, I notice that he is strikingly handsome, with thick, dark eyebrows and a Greek nose. Under his jacket he wears a crisp chocolate shirt, buttoned up all the way, with a pair of sunglasses looped over the neckline. On one side of his glasses, a small adornment, silver and crescent-shaped, glints in the fluorescent light.

Matching my behavior to his, I start to sit down without removing my scarf and winter coat, but they make me too hot in the stuffy room. I unwind the scarf, shrug off the coat, and toss both garments over a chair, accidentally dropping one of my gloves on the floor. “Piacere di conocerla!” I say, retrieving my glove. “A pleasure!” I am indeed happy to meet him in person after communicating by e-mail and cell phone with uneven results. “I am learning Italian,” I explain, “but have only just begun.”

“Actually, everyone in Italy speaks English,” Stefano says. I must have looked surprised, because he quickly adds, “Or prefers to speak English rather than listening to Americans trying to speak Italian.”

I decide to divert the conversation to a safer path. “Is most of your scholarship in the field of criminal procedure?” I ask. Halfway through the question, I realize how ignorant it sounds, as if I have not come prepared for the interview.

“I am an academic lawyer but a peculiar one,” he replies. “I’m only at the University of Parma for one semester a year. My interests are very practical.” As it is apparent already that Stefano and I have different sensibilities, his acknowledgement of that difference, instead of being disturbing, reassures me that there is some common ground between us. “I run a program for Italian lawyers,” he says. “It’s called ‘English for Law and International Transactions.’ Every year, I take a group to Philadelphia so they can see an American trial.”

“Oh.” I nod uncertainly. Having seen only Stefano’s academic résumé, which highlights his Ph.D. from Oxford and his publications, I had been unaware of this side of his life. “What inspired you to organize these excursions?” I ask, aligning my gloves, which have been lying askew on the table between us.

“I’m a huge fan of the American system,” he answers. “I’m in love with the fact that the jury doesn’t have to give reasons for its decisions.” Certainly, this aspect of the American system is very different from Italy’s, I reflect. In the first place, Italy does not have a jury, at least not in the sense that Americans use the term: as a body of fact-finders composed entirely of lay people. Second, as Stefano implies, Italy’s judges must provide a written opinion (the motivazione) for every verdict.

I wonder whether Stefano’s experience in court caused his ardor for “unreasoned” verdicts, so I ask, “Do you have a practice as well?”

“I help British barristers whose clients are facing extradition to Italy,” he says. I nod while absorbing this new information; it helps me understand why Stefano has been quoted in the media about the possibility of Amanda’s extradition to Italy.

As the discussion about his career tapers off, I venture to inquire into a statement Stefano made in an e-mail, one he sent me before I came to Italy. “You wrote, ‘It’s not that I think Amanda is guilty; she just is,’” I recall.[392] “Why are you so convinced of her guilt?”

While I speak, Stefano is gazing out of a window far across the room. Turning his face briefly toward me, he answers, “All I’m going to say is that she wasn’t discriminated against because of being an American.” As he resumes looking out, disappointment assails me. I have come so far to talk to him, only to find that he has decided to be reticent. Nevertheless, I press on, hoping to salvage something from the interview.

“So you believe she was treated fairly?”

“Her Italian boyfriend is from one of the richest families in Italy; he had the best lawyers in Italy. Yet, he too was found guilty. Yes, I think she was treated fairly.” Stefano speaks English with impressive fluency and a musical intonation. I have to caution myself lest his lilting cadence distract me from the gravity of what he says.

He turns again to face the far-off window. I seem unable to evoke his interest and keep the conversation going. But while I am trying to think of a promising topic, he surprises me by volunteering an answer to the question I had asked earlier. “The case against Raffaele and Amanda is overwhelming; I’ve never seen so much circumstantial evidence! It’s not a very interesting case as a result.”

“Besides,” he says, “Amanda’s not suffering; she’s free in Seattle.” He makes a sweeping gesture in the air, as if to suggest a bird in flight or maybe the distance between Italy and the United States. His view of Amanda’s situation is so different from my own that I hardly know how to reply. Silently, I recall what Amanda told me when we met—that she could not take any job where people would recognize her. The moral opprobrium, the stigma that attaches to being a felon is considered part of the punishment in our Anglo-American law,[393] but to Stefano that branding appears to be insignificant.

It occurs to me that at any moment, Stefano may decide to call a halt to the interview and go to the auto show. Before that happens, I need to understand why he believes Amanda to be guilty. At the risk of annoying him, I raise the topic again. “A few minutes ago,” I say, “you referred to the overwhelming case against Amanda, but wasn’t there doubt over every witness, over the supposed murder weapon, the tainted bra clasp, and the footprints?”

Stefano thinks for a minute before answering with confidence. “When the Supreme Court nullified the acquittal,” he says, “it was as if they had a puzzle with five hundred dots. Every single dot could be something else, but taken all together, the dots can only mean one thing.”

The argument is one I have heard before, during an exchange with a criminal law professor at the University of Florence. I am aware that in continental Europe, judges often employ the “holistic” approach to interpretation, whereas in common-law countries, they rely more heavily on the “atomistic” approach.[394] Doubtless because of my immersion in the Anglo-American system, the “holistic” approach is unconvincing to me. I wonder how the sheer quantity of evidence can be compelling if every piece of evidence is ambiguous or compromised.

“I was very surprised at the second opinion,” Stefano goes on. “When the Court of Appeals acquitted, it claimed that if you take one piece out, the whole case falls apart. They took out the DNA from the bra clasp, which was contaminated, but DNA is not necessary to prove guilt.” His comment puzzles me, because the Court of Appeals had not merely challenged “one piece.” Rather they had questioned the credibility of witnesses, rejected the lower court’s analysis of the footprints and the motive, and declined to attach incriminatory meaning to Amanda and Raffaele’s behavior after the murder.[395]

Stefano’s cell phone is ringing. He answers and speaks briefly in Italian. I gather that the caller is a friend he is meeting at the auto show. He glances at his watch while hanging up.

“Do you need to leave?”

“Yeah, I’m afraid I really do.”

He drops me off across from the train station, in the same place where he found me, just an hour earlier. It is still raining. Retracing my steps on the via dell’Indipendenza, this time plodding uphill, I notice that all the shops are bustling with customers, in sharp contrast with the previous day when they were silent and empty. Thanks to a cautionary e-mail from Stefano, I knew in advance that businesses would close on December 8 for the Feast of the Immaculate Conception—a holiday dating from perhaps as early as the seventh century in the Eastern Church.[396] It is a remarkable juxtaposition: on the one hand, my Italian colleague with his luxury sports car and his specialized international law practice; and on the other, this quaint and ancient holiday, celebrating the purity of the Virgin Mary, who was believed to have been conceived without the stain of original sin.[397]

  1. Interlude: A Stroll Through Bologna, the Cradle of the Legal Profession

In Bologna the porticoes . . . contribute to an overall harmony by subordinating the part to the whole, and the individual to the community. Here, unlike in other cities, every building gives some part of itself to the street.

Naomi Miller[398]

Back in my room at the Grand Hotel Majestic, I realize that several empty hours remain before my next appointment. Looking for inspiration in the hotel reading room, I learn something remarkable, which prompts me to venture back out on the streets. What I have learned is that Bologna’s architecture is intimately entwined with the rise of the legal profession in the West. In particular, its unique porticoes—the rose and umber stone arcades that extend over the sidewalks—were not erected to shelter pedestrians from the elements, as one might think. Rather, their construction was provoked by the renown of Bologna’s law school, which, in the Middle Ages, drew men from all over Italy and even far-flung places in Europe to study jurisprudence with the great doctors of law.[399]

This dramatic infusion caused a housing crisis. In response, the city authorities passed a law permitting any Bolognese family that took in a student to expand its property, beginning one floor up to avoid encroaching on the already-narrow medieval passageways. According to the law, families who built these additions were obliged to construct wooden columns to support them, connecting the columns with graceful arches; and so began the portico Bolognese.[400]

I marvel at this history while I walk for hours under the porticoes, absorbing the ambience of the medieval town. Unfortunately, my continued walking on the hilly, cobblestoned streets aggravates an old, painful foot injury. I debate whether to buy some more comfortable shoes. On the one hand, I want to make a good impression on the professor I am going to meet; on the other, my foot is really hurting. Finally, comfort triumphs over vanity. I stop in a store, where my errand turns out to be a big undertaking, involving, in the end, all the clerks in the store. Together, we enjoy a good laugh because—between my Spanish and primitive Italian, the store owner’s native Catalán, and the clerks’ limited English—we can find no common language in which to discuss feet and shoes. Still, when I leave I am clad in a pair of New Balance sneakers, my patent-leather dress shoes ensconced in a bag harmlessly swinging from my arm.

The sneakers assuage the pain as I walk along the via Marsala and turn onto the via Zamboni on my way to talk to Michele Cainiello, a professor of comparative law at the University of Bologna. It is beginning to rain when I enter the school through the arched doorway and approach the receptionist. Since we have not specified a room in which to meet, she suggests that I wait in the inner courtyard, where I will be sure to see the professor when he arrives. It is not a pleasant place. A yellowed plastic sheet hangs over dingy pillars and a stained, crumbling façade. Even in the yard itself, I can spot no flowers or plants, only some weeds struggling to grow between the stones. The setting makes me feel disheartened, almost repulsed, so sharp is the contrast with my expectations. The law school of the University of Bologna—one of the most important centers of learning in the Middle Ages[401]—strikes me as positively dreary.

  1. At the Università di Bologna with Professor Michele Caianiello—December 9, 2014

“This is the least I can do for you,” Michele says with a smile, when I offer to pay for the espresso he has just bought me from the vending machine. Carrying my cup, I walk behind him to a small room where we set down our briefcases and remove our coats and wool scarves. We appear to be in a seminar room, windowless and plain, only a little more attractive than the inner courtyard of the law school where I had waited. But Michele’s buoyant spirit offsets the gloom of our surroundings. He is remarkably kind when I explain the reason for my unprofessional shoes, which clash with my pearls and the new dress I bought especially for this trip. Another person might have remained silent or given me a disapproving look, but Michele confides his own similar conflict, putting me at ease. “This morning I thought I should wear a suit to meet you,” he says, smiling, “but then I said to myself: ‘No, it’s my day off!’”

Even without a coat and tie, Michele looks like the quintessential law professor, with his well-worn briefcase, wire-rim glasses, and goatee fading from gray to white as it approaches the point of his chin. He is nicely dressed, in a cobalt-blue pullover sweater on top of a light blue button-down shirt. Of the shirt, only the collar and cuffs are visible, and they bring out the pale blue color of his eyes.

Our exchange about clothes makes me think of Amanda and her attire during the trial. I decide that this may be a good way to begin our legal discussion. “Do you think Amanda’s way of dressing and behaving hurt her case?” I ask without preamble, blurting out the words.

He lifts his paper cup to his lips, takes a sip of coffee, and sets the cup back on the big mahogany table before answering. “In your country,” he says, “you have the jury, which is not obliged to provide reasons for its verdict. In Italy, we have not the jury; we have a panel of judges, and they must provide the written ‘motivation’ for their decisions.” I nod, remembering how Stefano had talked about the American jury, how he loved its freedom to render a verdict without giving reasons. “Of course,” Michele adds, “they do not always say their true reasons; they’re not going to put something into the ‘motivation’ that might lead to reversal on appeal.”

Absorbing his explanation, I turn to another of the questions I have been wanting to ask. It concerns the reforms in the legal system that occurred in 1989. The date seems too long after World War II to be a consequence of the War, so I ask, “What led Italy to undertake the reforms in 1989?”

Lifting his hands to his temples, Michele carefully adjusts the glasses that have slipped down his nose. He thinks a minute before answering. “The inquisitorial system was perceived as fascist,” he tells me. “It was associated with Mussolini, who was discredited. Before World War II, we had a Constitution but it could easily be altered, and indeed Mussolini altered it profoundly, despite the promises he made upon taking power. Then,” he pauses dramatically and looks at me, “your country won the War.” I blush, because his admission has abruptly put us on an unequal footing. It seems that I am a little embarrassed to be from the country that won the War.

“After the War, the United States proposed a new Constitution [for Italy],” he goes on, “one that would be higher than ordinary law. For fifteen years, we treated the Constitution as mere wishful thinking, but in 1963, scholars began to advocate a real adversarial system. We had little confidence in our government, and the adversarial system seemed better suited for challenging its truth.” Pushing his chair farther away from the table, Michele stretches his arms out to the side and arches his back. “Forgive me for talking so much,” he says. “It’s just that it is beautiful to discuss comparative law.”

I am struck by Michele’s unabashed passion for legal history and philosophical thought. He reminds me of friends I had in Colombia who would debate theories of revolution far into the night, their slender fingers holding cigarettes or bocadillos—the Colombian dessert made of sweet guava paste, always topped with a slice of cheese.

I assure him that, far from being bored, I am captivated by what he is saying about Italian history. “In the sixties and seventies,” he continues, “it wasn’t possible to make reforms in criminal law because of the wave of terror that endangered Italy. We call that period the anni di piombo. Do you know the phrase?”

I nod. The expression is vaguely familiar, no doubt from the books I have been reading about the violent women in Italian cinema.

Seeing that I am silent, Michele swallows the last of his coffee and explains, “The phrase means ‘years of lead.’”

“‘Lead’ as in bullets?”

“Yes. Terrorists’ bullets. Only when the militant factions had been beaten, in the late 1980s, could the legal reforms be implemented.”

Before coming to Italy, I struggled mightily to understand Italy’s ambiguous criminal procedure. Occasionally I would read an article that captured this ambiguity in its very title, such as “Italian Criminal Procedure: A System Caught between Two Traditions.”[402]

An especially confusing figure is the Italian public prosecutor, who has no counterpart in the Anglo-American system. Wielding enormous power, this official occupies roles that, in the United States, we associate with both a lead detective and a lead prosecutor, and is known to Americans mostly from literature set in civil law countries—for instance, Javert in Les Miserables, Porfiry Petrovich in Crime and Punishment, and the examining magistrate in The Stranger.[403]

Michele has written about this figure in a book chapter that I happened upon months before. It is another source that epitomizes the Italian system’s hybridity in its title: “The Italian Public Prosecutor: An Inquisitorial Figure in an Adversarial Proceeding?”[404] Here, Michele explains that Italian prosecutors are conceptualized as members of the judiciary; they are categorized along with judges under the rubric of magistrati. At the onset of their careers, prosecutors must submit to the same examinations as judges and, once in office, they enjoy the same lifetime tenure and independence that judges have under the Constitution. Finally, prosecutors, like judges, are required to be neutral in a criminal case, at least during the preliminary investigation. They are duty-bound to seek out evidence that will exculpate as well as inculpate the suspect. But in practice, Michele writes, the prosecutors only seek evidence that will hurt the suspect; therefore, the prosecutor’s duty to be neutral is merely a “ghost provision.”[405]

A ghost provision, I repeated to myself when I read it, liking the phrase. I reflected that the obligation to be neutral certainly was a ghost provision during the preliminary investigation of Amanda, when Giuliano Mignini was the prosecutor. Far from seeking both exculpatory and inculpatory evidence, he seemed determined to prove Amanda’s guilt.

Given Michele’s expertise, I decide to inquire about something else that I have been wondering about. “Would you say the Italian prosecutor gained power through the reforms?” I ask. “I mean, do you think the reforms, despite being intended to help the accused, might have hurt Amanda’s case?”

Instead of answering, Michele holds up his hand, palm outward, signaling for me to wait. He starts to open his briefcase and then, since our table is high, he stands up to get better leverage. Still silent, he removes a sheet of paper from his briefcase. It is graph paper, the grid made of fine blue lines, the squares so small that the paper itself appears to be blue. Michele angles the paper on the table in front of him with a corner pointing toward his chest and begins to write. The room is quiet but for the sound of his pen carefully drawing lines on the sleek bluish paper. While Michele works, I finish my now-tepid coffee and look around. Carved out of the wall is a frieze I had not noticed when we came in. It depicts a hovering cupid, his bow extended, his arrow aimed at a naked woman lying on the floor.

Michele stops writing, looks over the sheet of paper, and pushes it across the mahogany table to me. He has drawn two flow charts on the page, labeling the one on top, “1930 Code of Criminal Procedure” and the one on the bottom, “1989 Code.” Above and beside the lines, he has identified the legal figures and processes that dominate each stage: for example, “police,” “judge of instructions,” and “trial.” As he reviews the diagram with me, I see that under the old code the power in the pre-trial phase rested mostly with the police and the judge of instructions, whereas afterward that power devolved to the public prosecutor, who took over direction of the preliminary investigation instead of handing it off to the police.

Listening to Michele talk about the investigation reminds me of Prosecutor Mignini and his closed-mindedness—his suspicions of Amanda from the very first day. Although that phase is long since over, it continues to color the case. “What do you think will happen to her?” I ask. “Since the Court of Cassation nullified the acquittal last time, does that mean they are likely to rule against her again?”

Michele assures me that a different panel on the Court will decide this appeal. The judges can reverse the conviction, he says, for either of two reasons: a mistake of law or an inconsistency in the judges’ written motivation.

I nod, remembering that the Court of Cassation, in nullifying Amanda’s acquittal, adduced “contradictions and inconsistencies” as a reason for its decision.

“What if they affirm the conviction?” I ask. “What if they request extradition, but the U.S. refuses to extradite?” I tell him about the cynical prediction made by one of my Italian friends, namely that the Italian government will lack the courage to ask for extradition, lest it lose face if the United States declines the request.

Michele disagrees. If the Italian high court rules against her, he thinks that Italy will ask for Amanda’s extradition, pursuant to the treaty between the two countries. Nevertheless, he concedes that the process can be very political. “Do you remember the Chilean dictator Pinochet?” he asks. “He was in England for medical care when Spain asked the United Kingdom to extradite him to Spain.[406]

“To Spain?” I ask, not understanding.

“A lot of the people he ‘disappeared’ were Spaniards living in Chile,” Michele explains. “That’s why Spain wanted him extradited to their country.”

“Oh,” I say. I had not known that. “And did England honor the request?”

“No. At the time, Margaret Thatcher was the Prime Minister, and she befriended Pinochet, even visiting him in the hospital. Chile had supported the United Kingdom in the war over the Falkland Islands and, in gratitude, she refused to extradite Pinochet.”

I have never heard this story before, and I am fascinated. I would love to talk more, but Michele tells me that his wife and three young sons are waiting at home so he must say goodbye. Leaving the law school, I discover that the rain let up while we were talking and the sun has gone down. The sky is awash in a deep purple tint and the buildings and sidewalks, even the arcades which were so colorful in the daytime, are indistinguishable in the winter twilight. I walk to the intersection of the via Zamboni and the via Marsala, turn right, and stroll along under the porticoes.

The university quarter is growing more deserted by the minute. I am apprehensive about being alone, but I brush the feeling aside; tonight, happiness envelops me like a coat of armor. Not only has Michele proved to be a delightful person, but he has also taught me a lot about the history of Italian law, more than I could have gleaned from many books. As I turn onto the via dell’Indipendenza, the brighter, busier street where my hotel is located, I reflect on how generous Michele has been to me, like Bologna itself, where “every building gives some part of itself to the street.”[407]

. . .

But it is one thing to learn about Italian law in the abstract, and quite another to see the actual site where the law was applied to a particular case. It is a cold, wintry morning when I finally see the inside of the courthouse where, between January 16 and December 4, 2009, Amanda and Raffaele stood trial for murder.

  1. At the Palazzo del Capitano (the Courthouse of Perugia) with Claudia—March 3, 2016

The courthouse of Perugia is not a place that just anyone can enter. I have been turned away three times and I only succeed on the fourth attempt when a Perugian friend, an interpreter and self-described “fixer,” manages to obtain written authorization for me from the Public Prosecutor. After obtaining that authorization, with its impressive seal and signature, I feel like Dorothy in the Wizard of Oz, returning to the Emerald City with the requisite broomstick of the wicked witch. How can they turn me away now? I think.

Still, I don’t want to take the risk of waiting, so the very first thing I do the next morning is set off to the Palazzo with the official letter, accompanied by my trusty guide Claudia. The doorkeeper appears to be the same one who refused me entry on my previous visits. She is a middle-aged woman with dark hair pulled back in a rhinestone clip, who wears a sort of work uniform composed of a navy jacket and matching pants. In no way does she resemble the blustery doorkeeper in the Emerald City with his drooping moustache, spear, and double-breasted green suit, but the discrepancy cannot quash my fantasy of being a heroic character like Dorothy and her brave friends.

Upon seeing the authorization, the doorkeeper speaks to a burly man in Italian and he tells Claudia and me to wait. As the wait turns into fifteen minutes, then twenty, Claudia becomes more and more annoyed at what she calls “the Italian bureaucracy.” She begins to worry out loud that we will not be admitted, but I, having never even gotten through the door before, feel certain that this time will be different.

And sure enough, the burly man eventually returns, beckoning us to follow him. We enter an elevator that is just large enough for the three of us, descend one flight, and then follow the man down a dark narrow passageway. Again we descend a flight and walk down a gloomy corridor that would make the perfect setting for a film noir. At the end of the corridor, the man stops and searches through a massive set of keys, opens a heavy door, and lets us in.

At first I am disappointed. The room seems pretty ordinary for all this fuss. But when the man turns on the light, I see that while the middle of the room is filled with mundane things—cheap modern chairs, tables, and a podium—the walls are medieval, made of bricks that have faded through the centuries. The bricks are crumbling badly—when I accidentally lean against them, they leave a smear of white dust on my coat.

Then I look around the room, expecting to see flags, seals, or other civic symbols such as are routinely present in American courtrooms but can spot nothing of the sort. Instead, three friezes of the Madonna and Child adorn the back wall and in front, directly behind the judge’s podium, a large crucifix depicts Jesus writhing in agony.

If only I could linger here for a few hours, I think, and try to imagine what it would feel like to be on trial for murder. I would try to picture Judge Massei sitting under the crucifix, the other members of the court next to him—their red, white, and green sashes stretched diagonally across their chests, from the right shoulder to the left hip—and the police officers, with their sky-blue berets and crisp white shirts, facing the court. Perhaps, if I could muster the courage, I would even listen for the low, gravelly voice of Prosecutor Mignini deriding me with his scathing description of my grisly crime, and then the quiet voice and even pitch of Judge Massei pronouncing the verdict, “Colpevole.” Guilty.[408]

But the man with the keys is just standing there, waiting; obviously he is not going anywhere without Claudia and me. Nor does he have anything to do while waiting. I do not wish to make him waste time, suffering boredom, while I am not visibly occupied, so I reluctantly signal that we can leave. The man takes out his massive key ring with the loud jangling keys and locks up the door again before leading us back to where we started.

Somehow, Claudia reaches the doorkeeper’s desk ahead of me. She appears to feel a connection to the woman, for when I arrive she is already speaking to her in a hushed tone. “I was trembling the whole time we were down there,” she says. Later she will explain to me that it was because of her brother, who worked as an interpreter on Amanda’s case and spent many hours in that courtroom.

Then the doorkeeper tells us something surprising: she has never gone down to the courtroom.

“How long have you been here?” I ask in rudimentary Italian.

Tres anni.” Three years. She adds that whenever the prisoners do not enter the courthouse through the front door but instead are brought to court straight from their cells in the dungeon, she changes the images on her surveillance monitor to avoid seeing them. She cannot bear the feelings these handcuffed prisoners evoke in her.

“E lei lavora qui?” I ask in a teasing tone. And you work here?

Acknowledging the irony, she smiles.

After leaving the courthouse, Claudia and I walk southward along the via Baglioni in the direction of the Brufani Palace Hotel, where I am staying. When we reach the via Mazzini, we cut across to the main street of Perugia, the Corso Vannucci. While trudging over the cobblestones, we reflect on the conversation, marveling at what the woman has told us. We are both astonished at her casual revelations—that she has never been in the courtroom, that she is afraid to do the very job she is paid to do. As we approach the medieval fountain, we compare impressions of the woman’s motivation for eschewing any glimpse of the handcuffed prisoners. She has confided that she is protecting herself from feelings, but which ones? Which are the feelings she wants to keep at bay? Our understanding, it turns out, is the same: that the doorkeeper is afraid of the convicts but feels more pity than fear.[409]

II. Conclusion: On Judging and Being Judged

Everyone cried except Amanda and Raffaele. They were kissing each other.

Amy Frost, British friend of Meredith, testifying in court.[410]

None of us stands outside humanity’s black collective shadow.

C.G. Jung[411]

  1. Summary

From its beginnings at the crime scene in Perugia to its denouement in the Court of Cassation in Rome we have tracked Amanda’s odyssey through the Italian criminal justice system. In “What Not to Do When Your Roommate is Murdered in Italy,” we have observed how Amanda’s peculiarities—her playful cuddling, her inappropriate dress, and her general “lack of gravitas”[412]—provoked suspicion and condemnation on the part of the police, prosecutor, and judges.

In “Behind the Cartwheel,” we changed our focus from the story itself to an investigation of the reasons for Amanda’s behavior. Specifically, we considered the concept of naïveté—the reason offered in Amanda’s memoir and in the writings of many people who believe in Amanda’s innocence. Arguing that naïveté is judgmental and vague, I proposed that we look instead to Amanda’s age or, more exactly, her developmental stage—emerging adulthood, with its traits of intense identity exploration, self-focus, and poor judgment—to account for her seemingly inexplicable actions after the murder.

In “Interpreting the Interpreters,” we shifted from Amanda’s behavior to that of those who sat in judgment upon her: the police, prosecutors, judges, and society at large. In attempting to understand the severity of their censure, we sought illumination in the Madonna/whore archetype, with its Christian, Italian, and psychological roots; and cultural differences, including those between Italy and the United States as well as those between Perugia and Seattle. Finally, we considered the impact of Italian criminal procedure, with its deep inquisitorial tradition and partial adversarial reforms.

  1. Beyond Amanda: Parallels from Australia and the United States

This case occurred in a particular time and place, under circumstances that—like all fact patterns—can never again occur in exactly the same way. But the case of Amanda Knox has an interest beyond the tale of an isolated miscarriage of justice, for it resonates with other legal proceedings that took place in different eras, on different continents, in which individuals were punished for their “strangeness” yet ultimately found innocent of wrongdoing. By examining such parallel instances, we can challenge the theory that any single factor was the sine qua non for what happened to Amanda.

Consider, for our first parallel instance, the case of Lindy Chamberlain, whose nine-week-old baby, Azaria, disappeared in 1980 while her family was camping in the outback in Australia’s Northern Territory.[413] Chamberlain claimed that a dingo had taken the baby but, at the time, dingoes were not known for attacking humans and her allegation was widely disbelieved.[414] Besides her implausible story, Chamberlain’s demeanor and dress also evoked suspicion inasmuch as they failed to match the template of a grieving mother. Her sundresses with the spaghetti straps, her “cold” and “detached” manner, and her unflinching description of the precise way that dingoes tear the flesh off their prey—all raised questions about whether she truly mourned her child.[415]

Given this background, many Australians did not think it much of a stretch to conclude that Chamberlain had killed her baby. To be sure, there was no obvious motive, but Lindy’s husband was a pastor in the Seventh Day Adventist Church, of which Lindy too was a devout member. This sect was little-known in Australia. Thus, when rumors spread that Seventh Day Adventists engaged in child sacrifice, some Australians readily believed them;[416] some even accepted the rumor that Azaria’s name meant “sacrifice in the wilderness.”[417]

Although the state could come up with no body and no plausible motive, Chamberlain was put on trial for murder. Convicted and sentenced to life at hard labor, she spent three years in prison before the chance discovery of Azaria’s soiled matinee jacket in the vicinity of a dingo lair corroborated her story and brought about her release. It was not until 2012 that she was completely vindicated by a coroner’s ruling that a dingo had, in fact, killed her baby.[418]

Comparing Lindy Chamberlain’s case with Amanda’s, we find both differences and similarities. The most obvious difference is that Australia’s legal system derives from English Common Law,[419] and its criminal procedure is adversarial, not inquisitorial or hybrid like Italy’s.[420] In adversarial systems, evidentiary rules are stricter than in inquisitorial ones;[421] yet this feature did not spare Chamberlain from being judged largely on her “strangeness” rather than on germane facts.

As for the similarities, both women were scorned for their failure to show grief after a death. The lack of obvious sadness was interpreted not only as bizarre but also as a sign that they had actually desired the death of the victims and been involved in their murders. These interpretations were both flawed, but for different reasons. The person Amanda lost was an acquaintance of only five weeks. If Amanda erred, it was not that she failed to mourn but that she failed to empathize with the grieving people around her or at least to feign sympathy, even if her “inner spirit” was not engaged.[422]

Lindy Chamberlain, by contrast, had lost her own baby. If we make the reasonable assumption that she loved her daughter, then the rich literature on mourning, which emphasizes denial and postponement, would apply. Consider, for example, the words of psychoanalyst Otto Fenichel: “In the affect of grief, postponement seems to be an essential component.”[423] Grief, he explains, is a “wild and self-destructive kind of affect,” which would “overwhelm the ego” if it were not gradual and delayed.[424] Historian Drew Gilpin Faust describes the same phenomenon in her book, This Republic of Suffering: Death and the American Civil War. In a chapter entitled “Realizing: Civilians and the Work of Mourning,”[425] she writes: “For many bereaved, even assimilating the fact of a loved one’s death was difficult.”[426] Faust later adds that “[h]ow to mourn was often something that had to be learned.”[427]

Besides being judged for their failure to mourn, another analogy between the cases of Lindy Chamberlain and Amanda is that both were derided for wearing “inappropriate” attire. At first blush, the reader may suppose, as I did, that this sort of censure would be limited to female suspects; however our next example, the case of the West Memphis Three,[428] belies this assumption.

In 1994, three young men in their teens were charged with the murder of three eight-year-old boys found gruesomely killed in West Memphis, Arkansas. Because all of the victims were naked and bound and because one had been mutilated in the genitals, authorities suspected the involvement of a satanic cult.[429] Based on this suspicion, they picked up eighteen-year-old Damien Echols, who was known for his interest in the supernatural, and his friends, Jason Baldwin and Jessie Misskelley.[430] All were interrogated without a lawyer.[431] Jessie Misskelley confessed to being at the crime scene and implicated the other two in the murders.[432] However within hours of the confession he recanted, and from that time on he steadfastly refused to testify against his friends. [433]

Jessie’s refusal left the state with scarcely any evidence usable at trial against Damien and Jason.[434] But almost a month had passed since the victims’ bodies had been found and the police were becoming desperate for someone to blame.[435] The prosecutors elected to proceed against Damien and Jason, compensating for the weakness of evidence with the graphic power of the satanic cult theory. As one detective said, “We’ve got a story that is very, very believable. It is so close to perfect that we have to believe it.”[436]

At trial, prosecutors introduced evidence of the teens’ supposed weirdness as seen in their long hair, their taste for heavy metal music, and their eccentric attire.[437] Damien, in particular, was known for wearing black,[438] a color that—like the scarlet hue of Amanda’s panties[439]—scandalized onlookers. It was rumored that dressing in black and listening to heavy metal were associated with Satanism.[440] In his closing argument, using religious language reminiscent of Amanda’s trial, the prosecutor pointed at Damien and said, “There’s not a soul in there.”[441]

In the end, all three young men were convicted of murder. Damien, being the oldest and the supposed ringleader, was sentenced to death, whereas Jason and Jessie were given life sentences.[442] Eighteen years later, the revelation of jury misconduct, new DNA testing, and heightened public scrutiny of the case paved the way for a rarely used plea agreement.[443] Under the terms of the agreement, Jason, Jessie, and Damien all were unconditionally released.[444]

The cases of Lindy Chamberlain and the West Memphis Three confirm that the kind of legal nightmare Amanda experienced was not an isolated incident. For in those cases too, people were suspected of murder based on behavior unrelated to the crime. In all three of the cases, authorities hastily developed a fantasy about a killing, such as “sex game gone awry” or “satanic cult,” and then, instead of critically examining the fantasy or pausing to think of other theories, they treated their fantasy as fact and grounds for a murder trial.

  1. Motes, Beams, and Shadows: Explaining our Defective Judgment

So what are we to take away from this study? How should we judge? After the botched cases we have just discussed, it is tempting to adopt the well-known precept from the Sermon on the Mount: “Judge not, that ye be not judged,”[445] and thereby dodge the numerous possible ways of getting it wrong.

But it would be a tad difficult for the legal system to give up judging and even if it were possible, there is reason to believe that this is not what Jesus had in mind. According to the scholarly exegesis in the Interpreter’s Bible, Jesus meant that we should eschew “censorious judgment and too quick condemnation,” not avoid judging altogether.[446] In an interesting exposition, the Interpreter’s Bible goes on to say that judging entails risks: “[I]n every censure we reveal ourselves. If we call someone lazy, we confess that we know what laziness means.”[447] Apart from the risk of self-revelation, the exposition continues, there is also the very real danger of judging wrong, or of “transferring” our faults to another,[448] as in the story about beholding the “mote . . . in thy brother’s eye” and not the “beam . . . in thine own.”[449]

What the Interpreter’s Bible calls transfer, psychoanalysts call projection[450] or projective identification.[451] Regardless of what we call it, the idea is the same: we take the badness that we cannot bear to see in ourselves—what Jungian analysts have named the shadow[452]—and attribute it to someone else. And sometimes we take an additional step, punishing that other person for our own inadmissible thoughts and feelings.

Assuming that this analysis is correct, a solution to our problem is implied. If only we could summon the courage to acknowledge our shadow—admitting to consciousness the shameful defects such as selfishness, greed, anger, and lust, that are present in us all—then we might not be so inclined to project them onto another. Being kinder and more tolerant toward ourselves, we would have less need for surrogate victims or scapegoats, like Amanda.

Epilogue: At no. 7 via della Pergola—March 3, 2016

Perugia maintains, even revels in, a reputation for gloom, bloody feuds and dark doings.

Jonathan Boardman, Umbria[453]

What we call a beginning is often the end
And to make an end is to make a beginning.
The end is where we start from.

T.S. Eliot, Little Gidding[454]

When Claudia and I turn the corner, we lose the buildings’ protection, and the icy wind slaps our faces with surprising power. Claudia pulls the faux-fur collar of her beige parka tighter around her neck, and I tug at the ends of the gray and white wool scarf that I bought only yesterday, together with a padded jacket, for extra protection from Perugia’s late-winter weather.

The bitter wind demands all our attention and we are silent as we traverse the via della Pergola, wading through mud and gravel that sticks to our shoes in clumps and giving a wide berth to the men working in the street. Metal barricades with red and white diagonal stripes block off the intersection, warning of construction, but no one seems to care where we go as long as we avoid the men, so Claudia and I descend the hill and cross the yard, walking right up to the front porch of number seven.

The first time I came to Perugia, in October of 2013, my guide was Claudia’s older brother, Gaetano. Thirty-five-years-old, smart and knowledgeable with a sense of humor and a passion for English, he had been, in nearly every way, the perfect guide. Throughout Amanda’s detention and first trial, he had worked as an interpreter and assistant to a British journalist reporting on the case; thus he knew all the locations I needed to see, and he readily took me to see them, but only from a distance. When I asked if we could go inside the questura, or into the yard of Amanda’s villa, he responded, “It’s too dangerous.” When I wanted to submit a formal request to see the courtroom where Amanda was tried, he warned, “You really don’t want the authorities to know you’re interested in this.”

To explain his apprehension, Gaetano recounted an experience that had occurred several years earlier, when Amanda was incarcerated in Capanne Prison. In his role as the British journalist’s assistant, Gaetano requested that his name be put on the list of Amanda’s visitors. One night soon thereafter, the police called him demanding that he report immediately to the questura. This incident, along with his proximity to the entire case, left him with a profound trepidation.

It left me with trepidation, too. After hearing his story, I decided that Gaetano could assess the risks entailed in my research much better than I, so I reluctantly deferred to his judgment. But now, two years and four months have passed since that first visit, eight years and four months since the murder occurred, and I am resolved to see the places I need to see, immersing myself in the atmosphere of Perugia so that I can understand, as far as possible, what role the city’s history and culture played in Amanda’s arrest and conviction.

Luckily for me, Claudia, who has had no previous involvement with the Perugian legal system, is not intimidated by the Italian authorities. Although she expressed fear on the Corso Garibaldi (the street where Raffaele lived), and although she “trembled the whole time” we were in the courtroom, still her fears have not deterred her from bringing me to the spot where I now stand in my muddy shoes—only a few feet from the front porch and barred door of Amanda’s villa.

The porch is strewn with assorted objects, the largest and oddest being a dilapidated wooden armoire with peeling wallpaper lining and a missing door. Propped against the armoire, someone has left a broom with a red broom head and a mop with a blue handle. On the dusty brick floor, beside the mop, lies a red bucket on its side, its mop-bucket wringer fallen halfway out. These objects make the villa look deserted, and the place feels ominous but at the same time disappointingly mundane.

Staring at the porch, I can’t help thinking how much the villa has changed since September 2007, when Amanda, beguiled by its charm, signed the lease for her room immediately. Had she chosen to live elsewhere, I reflect, her life would almost certainly have been different, as she never would have been involved in this case. Instead of serving four years in an Italian prison, she would have spent one year abroad and gone home to Seattle, changed but not traumatized, leading a life of relative anonymity instead of being known throughout the world for her role in a murder case.

And I have another thought too: this place changed my life, because I most likely would not have come to do research in Italy, or made so many dear friends here, or started learning a marvelous new language, were it not for this case of a young American tried for murder in Perugia. I would not have acquired a fascination with comparative law or regained my adventurous spirit. No, none of that would have happened were it not for the infamous crime that took place on the eve of All Soul’s Day 2007, on the very lot where we are standing. This rundown, desolate villa, now surrounded by weeds and dead leaves, on a street thick with fragmented pebbles and slime—this is where it all began.

 

Notes

* Ph.D., Columbia University; J.D., Yale University; Professor of Law, Emory University. An early version of this Article received the Judith Siegel Pearson Award for Nonfiction in 2014. I am grateful to the judges. Previous versions of this Article were presented at the Dipartimento di Giurisprudenza, Università degli Studi di Torino; the European University Institute, Fiesole, Italy; the Emory Law Faculty, the Emory Psychoanalytic Studies Program, and the Emory Workshop on Geographies of Violence. My thanks go to the participants. My thanks also go to Robert Ahdieh, Giulia Alagna, Cathy Allan, Flavia Brizio-Skov, Michele Caianiello, Elisabetta Grande, Joe Mackall, Stefano Maffei, Alice Margaria, Claudia Marzella, Gaetano Marzella, Colleen Murphy, David Partlett, Lucia Re, Bob Root, Elena Urso, and Liza Vertinsky. Deep appreciation goes to my research assistants: Stefania Alessi, Mary Brady, Andrew Bushek, Peter Critikos, Sarah Kelsey, Tess Liegois, Zishuang Liu, Mike McClain, Jon Morris, Kaylie Niemasik, Sarah Pittman, Faraz Qaisrani, Deborah Salvato, Shannon Shontz-Phillips, Anthony Tamburro, and Michelle Tanen.

[360] Luca Marafioti, Italian Criminal Procedure: A System Caught Between Two Traditions, in Crime, Procedure, and Evidence in a Comparative and International Context 81 (John Jackson et al. eds., 2008).

[361] Interview with Dr. Stefano Maffei, Senior Lecturer in Criminal Procedure, Università di Parma, in Bologna, Italy (Dec. 9, 2014).

[362] Interview with Elisabetta Grande, Professor of Comparative Law, Università del Piemonte Orientale, in Turin, Italy (Dec. 11, 2014).

[363] Michael Cooper & Isolde Raftery, A Court Fight and a Tireless Battle Over an Image, N.Y. Times, Oct. 4, 2011, http://www.nytimes.com/2011/10/05/us/court-fight-and-tireless-battle-over-an-image.html [https://perma.cc/692W-9WFV] (quoting Senator Cantwell).

[364] Liz Robbins, An American in the Italian Wheels of Justice, N.Y. Times The Lede Blog (Dec. 5, 2009), https://thelede.blogs.nytimes.com/2009/12/05/an-american-in-the-italian-wheels-of-justice/ [https://perma.cc/HAY3-YN5U] (quoting George Fletcher).

[365] Id.

[366] Id. (quoting Alan Dershowitz). See also Frank Bruni, Sexism and the Single Murderess, N.Y. Times, May 4, 2013, http://www.nytimes.com/2013/05/05/opinion/sunday/bruni-sexismand-the-single-murderess.html [https://perma.cc/V4DV-4D25] (describing the case against Amanda as “profoundly flawed” and saying that the “Italian judiciary works about as smoothly as the Italian government”).

[367] See Timothy Egan, An Innocent Abroad, N.Y. Times Opinionator Blog (June 10, 2009), https://opinionator.blogs.nytimes.com/2009/06/10/an-innocent-abroad/ [https://perma.cc/ST7M-BNLX].

[368] James Q. Whitman, Presumption of Innocence and Presumption of Mercy, 94 Tex. L. Rev. 933, 990 (2016).

[369] See Amanda Knox Case Puts Spotlight on Italy’s Courts, CBS News, Oct. 3, 2011, http://www.cbsnews.com/news/amanda-knox-case-puts-spotlightspotliht-on-italys-courts/ [https://perma.cc/8TUS-HFGZ]; Mark C. Waterbury, The Monster of Perugia: The Framing of Amanda Knox 122 (2011).

[370]See Doug Longhini, Amanda Knox and Double Jeopardy: Does it Matter in Italy?, CBS News (Jan. 31, 2014), http://www.cbsnews.com/news/amanda-knox-and-double-jeopardy-does-it-matter-in-Italy/ [https://perma.cc/Y22W-3QN5]; Olga Khazan, Amanda Knox and Italy’s ‘Carnivalesque’ Justice System, Atlantic, (Jan. 30 2014), ].

[371] See Whitman, supra note 368, at 933–34.

[372] See Whitman, supra note 368, at 935.

[373] See Appendix: The Amanda Knox Case, in Waterbury, supra note 369, at 985.

[374] Whitman, supra note 368, at 990 (explaining that Italy has “a statutory presumption that offenders will not serve out their nominal sentence”).

[375] Whitman, supra note 368, at 989–90.

[376] John W. Head, Criminal Procedure in Transition: Observations on Legal Transplantation and Italy’s Handling of the Amanda Knox Trial, in Festschrift in Honor of Feridun Yenisey (Ayse Nohuoglu ed., 2014).

[377] See id.

[378] See Julia Grace Mirabella, Note, Scales of Justice: Assessing Italian Criminal Procedure Through the Amanda Knox Trial, 30 B.U. Int’l L.J. 229, 248 (2012). Accord Danielle Lenth, Note, Life, Liberty, and the Pursuit of Justice: A Comparative Legal Study of the Amanda Knox Case, 45 McGeorge L. Rev. 347, 349 (2014) (cautioning against criticisms of foreign legal systems and arguing that Amanda could have been found guilty in the United States).

[379] Mirabella, supra note 378, at 257.

[380] Id. at 258.

[381] Id.

[382] See, e.g., Giulio Illuminati, The Frustrated Turn to Adversarial Procedure in Italy (Italian Criminal Procedure Code of 1988), 4 Wash. U. Global Stud. L. Rev. 567, 575 (2005); Mirabella, supra note 378, passim.

[383] See Mirjan R. Damăska, The Uncertain Fate of Evidentiary Transplants: Anglo-American and Continental Experiments, 45 Am. J. Comp. L. 839, 843 (1997); Marvin E. Frankel, The Search for Truth: An Umpireal View, 123 U. Penn. L. Rev. 1031, 1034 (1975) (“It becomes evident that [in the adversarial system] the search for truth fails too much of the time.”).

[384] See Mirjan R. Damaška, Evidence Law Adrift 120–21 (1997). But see Elisabetta Grande, Dances of Criminal Justice: Thoughts on Systemic Differences and the Search for the Truth, in Crime, Procedure and Evidence in a Comparative and International Context 145, ­­146–47 (John Jackson et al. eds., 2008) (arguing that neither system is more committed to the truth but that the inquisitorial model seeks “ontological truth, based . . . on the belief that an objective reconstruction of reality is attainable,” while the adversarial model seeks “interpretive truth,” based on the belief that neutrality and ontological truth cannot be achieved).

[385] See Elisabetta Grande, Italian Criminal Justice: Borrowing and Resistance, 48 Am. J. Comp. L. 227, 245 (2000) (describing one procedural model as a “party-controlled contest,” and the other as “an officially-controlled inquest”); John H. Langbein, The Origins of the Adversary Criminal Trial 333 (2003) (“Adversary procedure presupposed that truth would somehow emerge when no one was in charge of seeking it. Truth was a byproduct.”).

[386] See James Thomas Ogg, Adversary and Adversity: Converging Adversarial and Inquisitorial Systems of Justice, 37 Int’l J. Comp. & Applied Crim. Justice 31, 31 (2013); Carlo Calisse, A History of Italian Law 18–20(Layton B. Register trans., 1928).

[387] See, e.g., Grande, supra note 385, at 231.

[388] See id. at 228, 238 (discussing resistance to the transplanted elements).

[389] See id. at 256.

[390] Interview with Dr. Stefano Maffei, Senior Lecturer in Criminal Procedure, Università di Parma, in Bologna, Italy (Dec. 9, 2014).

[391] Graeme Chesters, Living and Working in Italy 424 (2007).

[392] E-mail from Dr. Stefano Maffei, to author (Aug. 9, 2013, 14:02 CEST) (on file with author).

[393] For the seminal opinion on the importance of stigma in Anglo-American criminal law, see Morissette v. United States, 342 U.S. 246 (1952).

[394] See Mirjan Damăska, Atomistic and Holistic Evaluation of Evidence, in Comparative and Private International Law 91 ­­­(David S. Clark ed. 1990); John Jackson & Máximo Langer, Introduction: Damăska and Comparative Law, in Crime, Procedure and Evidence in a Comparative and International Context 1, 16 (John Jackson et al. eds., 2008); Jennifer L. Mnookin, Atomism, Holism, and the Judicial Assessment of Evidence, 60 UCLA L. Rev. 1524, 1534‒36 (2013).

[395] See John Follain, A Death in Italy 433–38 (2011).

[396] See Immaculate Conception, in 7 The Catholic Encyclopedia 674, 677 (1910).

[397] Id. at 674−75. For a discussion of the doctrine of the Immaculate Conception, see supra text at Part III, notes 291−94.

[398] Naomi Miller, Renaissance Bologna 156‒57 (1989).

[399] For the relationship between the porticoes and Bologna’s fame as a center of legal studies, see Mary Tolaro Noyes, Bologna Reflections 23‒24, 148‒49 (2009). For the eminence of Bolognese doctors of law in medieval times, see Hastings Rashdall, 1 The Universities of Europe in the Middle Ages 126‒27 (1895).

[400] See Noyes, supra note 399, 23–24.

[401] See James A. Brundage, The Medieval Origins of the Legal Profession 221 (2008) (saying that by the last quarter of the twelfth century, Bologna had become Europe’s most highly regarded center of legal studies).

[402] Luca Marafioti, Italian Criminal Procedure, supra note 360; See also William T. Pizzi & Luca Marafiota, The New Italian Code of Criminal Procedure: The Difficulties of Building an Adversarial Trial System on a Civil Law Foundation, 17 Yale J. Int’l L. 1, 3 (1992).

[403] For a path-breaking article using literature to explain the role of the public prosecutor, see Richard Weisberg, Comparative Law in Comparative Literature: The Figure of the “Examining Magistrate” in Dostoevski and Camus, 29 Rutgers L. Rev. 237 (1976).

[404] Michele Caianiello, The Italian Public Prosecutor: An Inquisitorial Figure in Adversarial Proceedings?, in The Prosecutor in Transnational Perspective 250, 251 (Erik Luna & Marianne Wade eds., 2011).

[405] Id. at 251.

[406] See Warren Hoge, After 16 Months of House Arrest, Pinochet Quits England, N.Y. Times (Mar. 3, 2000), http://www.nytimes.com/2000/03/03/world/after-16-months-of-house-arrest-pinochet-quits-england.html [https://perma.cc/7LGY-ZCJR].

[407] See supra text accompanying note 398.

[408] Amanda Knox, Waiting to be Heard: A Memoir 369 (2013).

[409] Interview with Claudia Marzella, in Perugia, Italy (Mar. 3, 2016).

[410] Barbie Latza Nadeau, Angel Face: Sex, Murder, and the Inside Story of Amanda Knox 63 (2010).

[411] C.G. Jung, Civilization in Transition 297 (R.F.C. Hull trans., Bollingen Series, Pantheon Books 1964).

[412] Nina Burleigh, The Fatal Gift of Beauty: The Trials of Amanda Knox 288 (2011).

[413] See John Bryson, Evil Angels: The Case of Lindy Chamberlain 39‒48 (1987).

[414] See James Gorman, After 32 Years, Coroner Confirms Dingo Killed Australian Baby, N.Y. Times (June 11, 2012), http://www.nytimes.com/2012/06/12/world/asia/after-32-years-coroner-confirms-dingo-killed-australian-baby-html [https://perma.cc/BKD2-5ZPB].

[415] See Dianne Johnson, From Fairy to Witch: Imagery and Myth in the Azaria Case, in The Chamberlain Case: Nation, Law, Memory 7, 14‒16 (Deborah Staines, et al. eds., Australian Scholarly Publishing 2009).

[416] Frank Bongiorno, The Eighties: The Decade that Transformed Australia 79 (2017).

[417] Id. See also Diane, supra note 415, at 18.

[418] Malcolm Brown, After 32 Years of Speculation, It’s Finally Official: A Dingo Took Azaria, Sydney Morning Herald (June 12, 2012), http://www.smh.com.au/national/after-32-years-of-speculation-its-finally-official-a-dingo-took-azaria-20120612-2071l.html [https://perma.cc/YU3V-FXWX].

[419] Australian Criminal Law in the Common Law Jurisdictions 16 (Kenneth J. Arenson et al., 4th ed., 2014).

[420] See Ogg, supra note 386, at 31 (comparing criminal trial procedures in Italy with the “more traditional adversarial system” of Australia).

[421] See John D. Jackson & Sarah J. Summers, The Internationalisation of Criminal Evidence 72 (2012) (“[T]here is little room in the continental European context for notions of admissibility or for exclusionary rules in the sense that they are understood in common law countries . . . [because] all the evidence must be heard by the judge or the fact-finder.”).

[422] Cf. Goffman, Behavior in Public Places, supra text at Part I, note 65 (describing the concept of the “inner spirit” in relation to outward presentation).

[423] Otto Fenichel, The Psychoanalytic Theory of Neurosis 162 (1945).

[424] Id.

[425] Drew Gilpin Faust, This Republic of Suffering: Death and the American Civil War 137 (2008).

[426] Id. at 144.

[427] Id. at 165.

[428] See generally Mara Leveritt, Devil’s Knot: The True Story of the West Memphis Three (2002).

[429] See id. at 58–59.

[430] See id. at 52–53, 67.

[431] See id. at 76–77.

[432] See Nathaniel Rich, The Nightmare of the West Memphis Three, N.Y. Rev. of Books (April 4, 2013) (book and movie review), http://www.nybooks.com/articles/2013/04/04/nightmare-west-memphis-three [https://perma.cc/L3LM-KZVD].

[433] See id.

[434] See Leveritt, supra note 428, at 74.

[435] See Leveritt, supra note 428, at 73–74.

[436] Id. at 98.

[437] See id. at 53−55, 232, 258, 288.

[438] See, e.g., id. at 43, 100, 110, 235.

[439] See supra text at Part I, notes 95–99.

[440] See Leveritt, supra note 428, at 100−01, 366 n.136.

[441] Id. at 1.

[442] See id. at 276; Rich, The Nightmare of the West Memphis Three, supra note 432.

[443] See Rich, The Nightmare of the West Memphis Three, supra note 432.

[444] See id.

[445] Matthew 7:1 (King James).

[446] 7 The Interpreter’s Bible 324‒25 (George Arthur Buttrick et al. eds. 1965).

[447] Id.

[448] Id. at 325‒26.

[449] Matthew 7:3‒5 (King James).

[450] For explanations of this defense mechanism, see Charles Brenner, An Elementary Textbook of Psychoanalysis 91 (rev. ed. 1974); Nancy McWilliams, Psychoanalytic Diagnosis 107–11 (1994).

[451] See McWilliams, supra note 450, at 110‒12.

[452] See generally, e.g., Robert A. Johnson, Owning Your Own Shadow: Understanding the Dark Side of the Psyche (1991); Meeting the Shadow: The Hidden Power of the Dark Side of Human Nature (Jeremiah Abrams & Connie Zweig eds., 1991); Sylvia Brinton Perera, The Scapegoat Complex: Toward a Mythology of Shadow and Guilt (1986); see also, e.g., M.L. von Franz, The Process of Individuation, in Man and his Symbols 158, 168‒76 (Carl G. Jung ed., 1964).

[453] Jonathan Boardman, Umbria: A Cultural History 23 (2012).

[454] T.S. Eliot, Little Gidding 31, 38, canto 5, in Four Quartets (Harcourt, Brace and Co. 1943).