The Calunnia (Charge F)

“But she Accused an innocent man…! No innocent person would do that.” At first glance this is perhaps the most damning piece of circumstanional “evidence” against Amanda Knox for the murder of Meredith Kercher. Sometimes this point is even made in a high pitched voice on American TV [1]. It is the thing that makes people think “She knows something…” or “She has something to hide…” or at least “She’s a horrible person, how could she do that?”

Below is a closer examination of the calunnia charge and statements of Amanda Knox.

See also:

What is Charge F?

Charge F is the one all of the courts including the Hellmann appeal found Amanda Knox guilty of. The charge reads as follows: [2]

F) For Amanda Knox only, the crime of calumny against Diya Lumumba, known as “Patrick”, an offense charged as a continuation [nella forma continuata] in that the alleged false accusations, regarding Lumumba’s responsability for the murder of Meredith Kercher, were contained in several statements made by Knox to investigators on November 6, 2007 and in a note [memoriale] presented to the Police on 11-6-2007; a crime aggravated in the sense of C.P. Article 61 no. 2 given that it was hypothesized that, with this false accusation, Amanda Knox sought to obtain impunity for herself, for Raffaele Sollecito, and for Rudy Hermann Guede.

But every court also had their own view on how the calunnia was related to the murder charge:

  • Judge Massei found the crime of Calunnia was directly related to the murder (in concorso) and added one year to Knox’s prison sentence for murder. [3]
  • Judge Hellmann at the appeal found the calunnia unrelated to the murder and sentenced Knox to three years in prison, time served.[4]
  • The Supreme Court rejected Amanda Knox’s appeal against that conviction and confirmed it, but they found that Judge Hellmann’s separating the callunia from the murder was illogical and also found his application of mitigating circumstances wanting.[5]
  • On November 25, 2013 Amanda Knox’s lawyers filed an appeal to the European Court of Human Rights against the in Italy finalized conviction for calunnia. [6]
  • Judge Nencini was ordered by the Supreme Court only to consider the application of aggravating circumstances concerning the calunnia, which he did increasing her sentence to 28 and a half year in prison. He also saw the calunnia as strong circumstantial evidence related to the murder charge (as advised by the Supreme Court) [7]

What is Calunnia?

The crime of “calunnia” is defined in Article 368 of the “Codice Penale” as follows: [8]

Anyone with denunciation, complaint, demand or request, even if anonymously or under a false name, direct judicial authority or another authority [who] have the obligation to report, blames a crime that he knows the one innocent of, who simulates against someone the traces of a crime, shall be punished with imprisonment from two to six years.

The penalty is increased if someone blames anybody of a crime through which the law prescribes a penalty of imprisonment for a maximum ten years, or another more serious penalty.

The imprisonment is from four to twelve years if the act results in a prison sentence of up to five years [the penalty] is from six to twenty years if the act results in a life sentence, and apply life imprisonment, if the fact results in a condemnation to death.

What is the calunnia conviction based on?

The “evidence” concerning the calunnia consists of:

  • a “witness statement” typed up by the police and signed by Amanda Knox at 1:45 am on Nov 6, 2007.[9]
  • a “spontaneous statement” typed up by the police and signed by Amanda Knox at 5:45 am on Nov 6, 2007.[10]
  • the so called “first memoriale” or “the gift”: a three page handwritten statement Amanda Knox handed over to officer Rita Ficcara around 2 pm on Nov 6, 2007.[11]

The first statement signed at 1.45 am on Nov 6, 2007

Calunnia (Charge F: Statement signed by Amanda Knox on November 6th, 2007 at 1.45
Amanda Knox statement signed 1.45am November 6, 2007

In the first statement reads:

In addition to what has already been reported via the preceding statements rendered here at this Office, I wish to explain that I am aware of other persons whom I frequent and who have frequented (if occasionally) my residence, who have also made the acquaintance of Meredith, and whose cellular phone information [relative utenze cellulari] I [hereby] provide.

One of these persons is Patrik, a citizen of color about 1.70-1.75 [m] tall, with pigtails, owner of the “Le Chic” pub located on Via Alessi, whom I know to live in the area near the Porta Pesa rotunda. Tel. 393387195723, a location where I am employed two times per week on Monday and Thursday, from 10:00 pm to around 2:00 am.

Last Thursday, November 1, a day on which I normally work, while I was at the house of my boyfriend Raffaele, at around 8:30 pm, I received a message on my cellular phone from Patrik, who told me that the premises would remain closed that evening, because there were no customers, and thus I would not need to go to work.

I responded to the message by telling him that we would see each other at once; I then left the house, telling my boyfriend that I had to go to work. In view of the fact that during the afternoon I had smoked a joint, I felt confused, since I do not frequently make use of mind-altering substances, nor of heavier substances.

I met Patrik immediately afterward, at the basketball court on Piazza Grimana, and together we went [to my] home. I do not recall whether Meredith was there or arrived afterward. I struggle to remember those moments, but Patrik had sex with Meredith, with whom he was infatuated, but I do not recall whether Meredith had been threatened beforehand. I recall confusedly that he killed her.

The Office records that the statement was interrupted and that Amanda KNOX was placed at the disposition of the Judicial Authority for further proceedings.

This is the statement that officially changed Amanda Knox’s status from witness to suspect. She placed herself at the scene of the crime at the time of the murder and “confusedly” recalls that he (Lumumba) killed Meredith Kercher.

It is also noted that the questioning was interrupted at that time. This interruption took place according to Article 63 of Code of Criminal Procedure (c.p.p.) [12]:

1. If in the courts and the judicial police charged a person or a person not subject to investigations makes statements which disclose evidence of guilt against him, the authority concerned shall stop the examination and warned that as a result of such statements may be carried out investigations against him and invites him to appoint a defender. The above statements can not be used against the person who made ​​them.

2. If the person had to be felt from the outset as an accused or person under investigation, his statements can not be used.

The second statement signed at 5.45 am on Nov 6, 2007

The second statement of November 6th was signed by Amanda Knox at 5:45 am.

Calunnia (Charge F: Statement signed by Amanda Knox on November 6th, 2007 at 5.45
Amanda Knox statement signed 5.45am November 6, 2007

In the second statement the direct accusation of Lumumba killing Meredith Kercher is gone, but “the scream” and a vague mention of Raffaele Sollecito is added, it’s interesting that this statement in its first sentence is labeled as “spontaneous”:

I wish to spontaneously report what happened because this case has deeply disturbed me and I am very afraid of Patrick, the African owner if the pub called ‘Le Chic’ on Via Alessi where I occasionally work. I met him on the evening of the first of November, after having sent him a message replying to his, with the words ‘see you’ [‘ci vediamo’, lit. “we’ll see each other”].

We met immediately afterward around 9:00 pm at the basketball court on Piazza Grimana. We went to my house at Via Della Pergola no. 7. I do not recall exactly whether my friend Meredith was already home or if she arrived later, [but] what I can say is that Patrik and Meredith went off to Meredith’s room, while it seems to me that I stayed in the kitchen. I cannot recall how much time they stayed together in the room but can only say that at a certain point I heard Meredith screaming and I, frightened, covered my ears. Then I don’t remember anything anymore, I am very confused in my head. I do not recall whether Meredith was screaming and if [I? she?](*) also heard thuds [tonfi] because I was involved, but I was imagining what could have happened.

I met Patrik this morning, in front of the University for Foreigners, and he asked me some questions, specifically he wanted to know what questions I had been asked by the Police. I think that he also asked if I wanted to meet with journalists perhaps in order to find out if I knew anything about Meredith’s death. [I am] not sure whether Raffaele was present that evening but I do remember waking up at my boyfriend’s house in his bed, and that I returned in the morning to my residence, where I found the door to the apartment open. When I woke up, the morning of November 2, I was in bed with my boyfriend.

It is recorded that KNOX repeatedly brings her hands to her head and shakes the latter.

Since this statement was given without a lawyer for Knox present, the Italian Supreme Court [13] would later find the statement as “not usable against Amanda Knox or other persons accused [of the murder of Meredith Kercher], because it was as made ​​without the guarantees defensive by a person who had already formally assumed the role of investigated.”

They also found that the first statement made at “1.45 on November 6, 2007, after which the report was suspended and she was placed at the disposal of the judicial proceeding, emerging evidence against him, are only usable contra alios” also with regard to the murder charge.

They also said about the usability of the first memoriale: “On the contrary, the memorial written in English and translated into Italian by K. is fully usable, pursuant to art. 237 Code of Criminal Procedure, since it is a document from the investigated, who was the author of spontaneous material for defensive purposes.”

The First Memoriale

Calunnia (Charge F): Picture of the so called
Amanda Knox memoriale 1 written on November 6, 2007

The so called “First Memoriale” was written by Amanda Knox after her arrest. It was given to officer Rita Ficcara shortly before she was taken to prison. A few excerpts, for the full transcript see the links below:

In regards to this “confession” that I made last night, I want to make clear that I’m very doubtful of the verity of my statements because they were made under the pressures of stress, shock and extreme exhaustion. Not only was I told I would be arrested and put in jail for 30 years, but I was also hit in the head when I didn’t remember a fact correctly. I understand that the police are under a lot of stress, so I understand the treatment I received.

However, it was under this pressure and after many hours of confusion that my mind came up with these answers. In my mind I saw Patrik in flashes of blurred images. I saw him near the basketball court. I saw him at my front door. I saw myself cowering in the kitchen with my hands over my ears because in my head I could hear Meredith screaming. But I’ve said this many times so as to make myself clear: these things seem unreal to me, like a dream, and I am unsure if they are real things that happened or are just dreams my head has made to try to answer the questions in my head and the questions I am being asked.
[…]
I also know that the fact that I can’t fully recall the events that I claim took place at Raffaele’s home during the time that Meredith was murdered is incriminating. And I stand by my statements that I made last night about events that could have taken place in my home with Patrik, but I want to make very clear that these events seem more unreal to me that what I said before, that I stayed at Raffaele’s house.
[…]
Who is the REAL murder [sic]? This is particularly important because I don’t feel I can be used as condemning testimone [sic] in this instance.

Judge Massei puts emphasis on this half sentence: “And I stand by my statements that I made last night about events that could have taken place in my home with Patrik,” ommiting the “but I want to make very clear that these events seem more unreal to me that what I said before, that I stayed at Raffaele’s house.”
It’s interesting that in the original Italian translation of this memoriale, the word “accusatorie” the subsequent judges seemed to have focussed on is missing. It looks like judge Massei has added the word to his quote from the memoriale on page 418 of his motivations report: “confermo le dichirazioni -accusatorie- fatte la scorsa notte riguardo gli avvenimenti che possono essere successi a casa mia con Patrick…”[14].

Does this evidence meet the requirements of Art. 368 C.P.?

As quoted above Calunnia commits:

“Anyone with denunciation, complaint, demand or request, even if anonymously or under a false name, direct judicial authority or another authority [who] have the obligation to report, blames a crime that he knows the one innocent of,”

Is that the case here?
“I recall confusedly that he killed her” is an accusation made to an authority who “have the obligation to report”, these requirements of Art. 368 are met.
But what about the “that he knows the one innocent of part? This requirement can only be met if Amanda Knox was involved in the murder of Meredith Kercher. There is no other way for her to know that Lumumba was innocent of the crime. If Amanda Knox wasn’t involved in the murder of Meredith Kercher she couldn’t know and she couldn’t have committed Calunnia.
Another problem here is, that the Calunnia is used as “evidence” against Amanda Knox when it comes to the murder charge.

Is the Calunnia evidence that Amanda Knox was involved in the murder of Meredith Kercher?

The theory of the prosecution that most of the judges followed is that Amanda Knox named Lumumba to divert the attention of the investigators away from herself, Sollecito and Guede. They base this on the notion that she didn’t recant her accusation for many days [15] despite expressing “remorse” to her mother in a recorded conversation in prison on November 10, 2007 [16] and “At the very least, in the days immediately following her improvident initiative, she could have signalled to the investigators that she had put them on a false trail, utilizing the support of her lawyer, given that she had become a suspect in the interim.” [17]

The judges seem to forget that Amanda Knox was placed in isolation after her arrest as the “La Repubblica” reported. [18] The first opportunity to speak to her lawyers was just minutes before the November 8, 2007 detention hearing before judge Matteini [19].

But what about “not recanting her statements for many days”? It seems that one piece of evidence concerning the calunnia and the murder of Meredith Kercher is ignored by all of the courts despite Vice-Commandante Argiro’s testimony [20] that it exists and was handed over to the prosecution: the so called “Second Memoriale”.

The Second Memoriale

According to Vice-Commandate Argiro’s testimony, the “Second Memoriale” was given to him on November 7, 2007 and delivered to the prosecutors office on November 8, 2007. It gives a description of how she spent the night with Raffaele Sollecito at his apartment. These are the closing paragraphs, for the full transcript see the links below:

This is what happened and I could swear by it. I’m sorry I didn’t remember before and I’m sorry I said I could have been at the house when it happened. I said these things because I was confused and scared. I didn’t lie when I said I thought the killer was Patrick. I was very stressed at the time and I really did think he was the murderer. But now I remember that I can’t know who the murderer was because I didn’t return back to the house.
I know the police will not be happy about this, but it’s the truth and I don’t know why my boyfriend told lies about me, but I think he is scared and doesn’t remember well either. But this is what it is, this is what I remember. [21]

“But now I remember that I can’t know who the murderer was because I didn’t return back to the house.” At this point, this is as close to saying “Patrick is innocent” Amanda Knox could get. There was already the “I don’t feel I can be used as condemning testimone [sic] in this instance.” from the First Memoriale. Given that if she wasn’t at Via della Pergola 7 the night Meredith Kercher was murdered she can’t know who was there.
If she had stated “Patrick is innocent.” it also would have been an admission of guilt applying the logic of the courts that ties the calunnia to the murder. She must have been involved, she can’t know that Patrick is innocent, if she wasn’t there. Perfectly caught in the realm of circular reasoning.

Conclusion

Amanda Knox accusing Patrick Lumumba of murdering Meredith Kercher during her questioning on the night of November 5/6, 2007 has harmed her reputation and was used as an important piece of “circumstantial” evidence against her concerning the murder charge. Especially her “not recanting” was used against her.

But she recanted, unsure, confused, half-heartedly and still frightened in her first memoriale, and more clearly, but unable to say “Patrick is innocent” because she wasn’t involved, in her second memoriale. Without a lawyer this was the only thing she could do.

If she had a lawyer, as it was her right, after she made the first statement, this lawyer would have advised her to “remain silent” as her lawyers advised her at the detention hearing. The “spontaneous” declaration of 5.45 would have never happened and there wouldn’t have been a need for the two memoriales.

But given the circumstances, lawyerless and later in solitary confinement, writing the two “memoriales” was all Amanda Knox could possibly do. It’s not her fault that the first one was misinterpreted by cherry-picking one half-sentence and that the second one was completely ignored by all of the courts.

Charge F was upheld by all of the Italian courts so far and the March 2013 verdict by the Supreme Court made it final. With all legal options exhausted in Italy Amanda Knox filed a complaint with the European Court of Human Rights in November 2013. This complaint has been accepted by the court and on April 29th, 2016 the ECHR communicated a request for more information to the parties.

Calunnia -bis

In early 2010 Amanda Knox was charged for Calunnia again, when the prosecution filed charges against her for statements she made on the stand in 2009 about the nature of the questioning on November 5/6, 2007.

This one, after various delays and finally being assigned to the courts of Florence, ended with an acquittal in January 2016, because the crime does not exist. This acquittal became final in May 2016 because the prosecution did not file an appeal against it.

References:

[1] Example: YouTube: Amanda Knox murder trail redo at 1.20 minutes.
[2] Massei Report Page 3
[3] Massei Report Pages 417-419
[4] Hellmann-Zanetti Report: Calunnia
[5] Chieffi Report: Conviction of Knox of the Crime of Calumny
[6] Amanda Knox Blog Entry “European Court of Human Rights”
[7] Nencini Report pt.2 Page 36 (of the pdf).
[8] LeggeOnLine.it: Art. 368 C.P.
[9] Statement signed at 1.45 am ItalianEnglish translation by komponisto
[10] Statement signed at 5.45 am ItalianEnglish translation by komponisto
[11] The First Memoriale
[12] LeggeOnLine.it: Art. 63 C.P.P:
[13] Corte Suprema di Cassazione: Sentenza del 21 aprile 2008 n. 16409
[14] Massei Report Page 418
[15] Nencini Report pt.2 Page 40 (of the pdf).
[16] Massei Report Page 418, Chieffi Report Page 41, Chieffi Report: Conviction of Knox of the Crime of Calumny
[17] Chieffi Report Page 43 Chieffi Report: Conviction of Knox of the Crime of Calumny
[18] Una rosa rossa per Meredith In isolamento i tre amici arrestati
[19] Amanda Knox “Waiting to Be Heard”, Chapter 14
[20] English translation of the Testimony of Vice-Commandante Raffaele ArgiroItalian Page 71
[21] The second MemorialeTranscript

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