Amanda Knox’s conviction for criminal libel against Patrick Lumumba was upheld recently in an Italian court. This was a disappointment to many, not just to Ms. Knox who had said, prior to the holding’s announcement, that a victory would finally allow her to clear her name. The murder case against her always intrigued me, but that mission statement caused me to take a closer look at the evidence for the stabbing death of her roommate for which she was tried, convicted, then exonerated.
After Amanda Knox’s 2007 arrest for the murder of Merideth Kercher, her English roommate in Perugia Italy, news outlets began to have a field day fueled by Ms. Knox’s icy, and at times incongruous behavior. This included romantically kissing her then-boyfriend and future co-defendant outside the crime scene, and doing yoga in the police station. Ms. Knox’s family quickly hired a P.R. firm. Little by little she became something of a folk hero in the United States, helped along by public support from Donald Trump. Here was a young, pretty, American student abroad charged with a grizzly stabbing homicide. Her involvement was unlikely; her behavior, defiant.
Americans, who usually have a soft spot for being tough on crime, have another apparently softer spot when the crime occurs in a different country with a different kind of defendant. The fact that the Italian equivalent of our Supreme Court ultimately overturned her conviction in 2014 and dismissed the case, appears to show she was innocent all along. Several books and a Netflix movie followed.
When it comes to murder, the unspoken reality of my business is that the overwhelmingly vast majority of criminal defendants are guilty and the state can prove it. Appeals are routinely denied because unless you have a Constitutional error, the standard of review is a reasonable probability that you could have prevailed without the error. You can also claim there was insufficient evidence to support the verdict, but the appellate court cannot reweigh the evidence. Prevailing on any of these grounds is rare, but would entitle you to a new trial.
People are wrongly convicted, but that’s perhaps rarer still. How rare? In the U.S. over the last 30 years, the number of murders has ranged from roughly 14,000 to 24,000 per year. The Innocence Project claims to have exonerated 250 in more or less that same time span. To be fair, fewer than half of all murder cases are “solved,” meaning an arrest is made, and not all of those make it to trial due to plea bargaining. Of those that do, “innocence” isn’t the question (or the answer). The question is whether the burden of proof has been met.
Ms. Kercher was discovered stabbed to death in her room in an apartment shared by Ms. Knox and two other roommates. Owing to statements made by Knox and her then-boyfriend, the two were arrested a few days later along with Patrick Lumumba, a local pub owner and part time employer of Ms. Knox.
As any casual Dateline viewer will tell you, a solid alibi is the best defense because law enforcement will typically move on to the next person of interest, eliminating the need even to present such evidence at a trial. This is what led to Lumumba’s release three weeks later, and to Ms. Knox’s undoing.
There are only a few defenses to murder: self-defense, accident, or, “I wasn’t there.” Amanda Knox’s defense was the latter, or alibi, making this case a who-done-it. Often an alibi defense, when asserted early to law enforcement, will lapse into accident or self-defense when the alibi does not hold up. You can see that beginning to happen in this case when Knox’s alibi is refuted by cell phone records (and by her boyfriend). At that point her alibi changes. She then claims to have had a sort of marijuana-induced amnesia about the night’s events, conceding she may have been there. She then implicates Patrick Lumumba: “I vaguely remember that he killed her.”
This is a circumstantial case. Most cases are, because rarely is there a reliable eye witness or crystal clear video of the crime. A criminal prosecution is therefore a reconstruction of many individual pieces of evidence, including attempts at concealment by the defendant. The underlying idea is, what are the odds that all of this is a coincidence?
All cases, in fact, are circumstantial to some degree. It would be a foolish prosecutor with multiple eye witnesses to a crime who does not bother to introduce any other evidence implicating the defendant. On the other hand, weaker evidence can undermine stronger evidence, and sometimes backfire. O.J.’s attempt to put on a glove in court is a good example. As I learned from my trial advocacy professor, the defense sometimes only needs to kick out one leg of the table to make it collapse. This strategy stems from the fact that of all the pieces of evidence against a criminal defendant, none would get a conviction on its own. Taken together, however, the possibility of a defendant’s lack of involvement can become vanishingly small. That was the case against Amanda Knox.
According to the prosecution’s theory of the case, there were multiple perpetrators. After the initial processing of the crime scene, and Lumumba’s release, Rudy Guede, another African man, emerges as an assailant. The forensic evidence against him was stronger than against the other two. Though he has maintained his innocence to this day, he admitted to having been in the apartment when the murder was committed but implicates an unknown assailant. He first says Knox was not there, then changes that story. He opts for his own trial on a faster timeline and with a lesser potential sentence, an option not available here in the U.S. Nevertheless, Guede is convicted.
That left Knox and her boyfriend, Raffaele Sollecito, to be tried as the other participants. Multiple perpetrators were assumed to have committed the crime due to bruising on Ms. Kercher’s arms and a conspicuous lack of defensive wounds from a knife attack while she was conscious and unbound.
The prosecution introduced evidence that Sollecito’s DNA was on Ms. Kercher’s ominously severed bra clasp, and Knox’s DNA was mixed with Ms. Kercher’s in several blood droplets in the hall and in the bathroom. A bloody shoe print attributable to Knox was discovered under Ms. Kercher’s body. Knox’s and Ms. Kercher’s DNA was found on a knife in Sollecito’s apartment. Though there were the usual arguments about contamination, sample size, and methodology, I didn’t see anything to completely undermine the reliability of the DNA evidence. The fact that the severed bra clasp sat on the floor of the apartment for over a month doesn’t explain how Sollecito’s DNA got on it. Nor does the crime lab’s processing of multiple pieces of evidence at the same time, by itself, indicate cross contamination. Nevertheless, that was the cornerstone of the Italian Supreme Court’s justification for the ultimate dismissal of the case.
What convicted them, in my opinion, was not DNA – at least not entirely. First, their alibis relied on each other. That’s a problem since they were both accused of having committed the same murder. And, in any event, their stories quickly crumble. Were Knox’s statements to police coerced as she claimed? False confessions typically have a couple hallmark attributes: a somewhat gullible suspect believes he will be released if he simply tells law enforcement what they want to hear, even if that includes a confession. Through lengthy and incessant browbeating, incriminating details are fed to the suspect who then repeats them as his own. This suspect typically recants straight away, since he never actually believed what he said.
In a rarer situation, called an internalized confession, a suspect is led to believe he was responsible. This generally involves someone with a low I.Q. who is coerced into believing what he’s told by law enforcement after a long period of time, 16 hours on average. Is this Amanda Knox?
When Sollecito and Knox first speak to the police, their story is that they had spent the night at Sollecito’s apartment and had slept until 10:00 a.m. the following morning. But Sollecito’s story changes when contradicted by his cell phone records. He then says Knox left his apartment for several hours that night. Knox is interviewed shortly thereafter. At that point she is confronted with Sollecito’s changed story and her own cell phone history, and says she actually accompanied Patrick Lumumba to the apartment that night. This was prompted by her last text message that evening which was to Lumumba saying she would see him later. According to Knox’s later account, the signed statement she made after a long night in the interrogation room was all a marijuana and coercion induced delusion.
But she first tells this story sometime before 1:45 a.m. at which point she’d only been questioned for a couple hours. Theoretically she might still be working a normal shift at her pub job. The statement was ruled inadmissible, however, not due to coercion, but due to a violation of her right to an attorney. She sticks with that story many hours later, however, after it was determined her right to an attorney had been waived. Later, she claimed the story had been coerced, not only by browbeating, but by actual physical violence in an interrogation that went on for 53 hours over 5 days. She claimed they “broke” her.
Sollecito also claimed to have been yelled and sworn at. Lumumba said they never attempted to coerce him into making any false statements, and he was arrested along with Knox and Sollecito and held for weeks.
Prior to the finger pointing, much tabloid fodder was created by Knox and Sollecito kissing outside the crime scene just after having found out Ms. Kercher had been killed. Were they Bonnie and Clyde? Whatever else this suggests, it’s a pretty strong indication of circling the wagons by two young people who had only known each other a week. She explains that she was scared at the time because it could have been her who was killed. Odd enough, but in a secretly recorded conversation prior to her arrest, she told her family she was “incredibly nervous” while at the police station. This would be fear of a different kind, but could account for the yoga.
The trial transcript was interesting to read due to how informal it all was with lengthy spoken objections and everyone talking at once, at times. Then the witness would launch into a narrative, uninterrupted. Here in the U.S., we have very strict and at times complex rules about how witnesses are examined and cross examined, especially in a criminal trial. The lawyers in this case could not have engaged in the sort of grandstanding in our courts that occurred there. And witnesses aren’t entitled to say whatever they want. Judges enforce the rules like officials in the NFL. The jury’s role is also strictly delineated and shielded from the judge’s. In fact, evidence is always the lowest scoring area of law on the California Bar Exam for this reason.
I will not go piece by piece through everything because, as with most cases, there’s no single piece of evidence that conclusively establishes guilt – or innocence. But fluctuating stories to law enforcement about the night your roommate is murdered, and for which you have no alibi, will overcome a lot of reasonable doubt. As far as Knox being coerced into giving a false confession, not only don’t the timing and circumstances fit the typical profile for that, but also it wasn’t technically a confession. It was a false accusation against someone else, not unlike Guede’s or Sollecito’s statements. It wasn’t used against her to prove its truth, but to prove its falsity. Unlike Lumumba, all three implicated another without admitting guilt, while sticking as close as possible to the facts as presented to them.
Ms. Kercher’s discarded phones were quickly recovered the following morning. This led to the unexpected arrival of the Postal Police to investigate who surprise Knox and Sollecito. This causes more unusual behavior by the couple. For example, they didn’t mention that they had just attempted to force entry into Ms. Kercher’s room, a story they gave to authorities later. Instead, the Postal Police are told it’s not unusual for Ms. Kercher to lock her door.
As incriminating as Knox’s statements are, the staged robbery, Ms. Kercher’s locked door, and the apparent effort by someone to clean the crime scene, all point to an inside job. The universe of potential suspects narrows dramatically here.
How could Knox and Sollecito go from decent respectable students with no criminal records to killers? (Guede was not a violent person, either, for that matter, though he had a criminal record.)
I believe the Lumumba situation provides a clue, at least as to Amanda Knox. Due to his arrest and his weeks-long incarceration as a suspect, Lumumba lost his pub and ended up leaving the country. Knox has maintained that responsibility for his arrest, and subsequent troubles, lies with the police who coerced the incriminating statement from her. Her only apology to him was that she was sorry she was too young to be able to stand up to law enforcement.
At the time that the criminal libel verdict was upheld, Knox was not facing any further punishment. This is because the sentence was less than the four years she had already served on the murder. It appears that being incarcerated for four years for a crime she didn’t commit didn’t have the effect of making her sympathetic to Lumumba’s being incarcerated for a crime he didn’t commit, notwithstanding the fact that her accusation caused his arrest, coerced delusion or not. This verdict had nothing to do with whether or not she committed the murder. Knox’s apparently boundless capacity for her own victim-hood, however, has fueled yet another book on the subject.
The inability to take responsibility for your actions, or sympathize with your victim, are hallmark traits of a narcissistic sociopath. In this light, Knox’s treatment of Lumumba appears to be another piece of evidence in the circumstantial case against her. We will never know what went on that night. But it’s not hard to imagine that once Ms. Kercher was stabbed – even if it was a surprise to Knox or Sollecito or both – that there appeared to them to be no way out and the cover-up began. Ms. Kercher had to be killed. Guede fled, but Knox and Sollecito could not.
There was some evidence that Ms. Kercher had judged Amanda Knox for her lifestyle, and that there was a possible dispute over rent. Did Ms. Kercher cross Knox? Did Lumumba? Knox and Sollecito were perhaps a dangerous combination. According to both their accounts, they were together at every opportunity from the time they met until they were arrested for the murder two weeks later. Throw in Guede and the result was fatal, a “perfect storm.”
What makes this case more ominous than a confrontation with Ms. Kercher that went too far, is that Knox and Sollecito both turned off their phones around 8:40 p.m. a little less than an hour prior to when the murder is alleged to have occurred. Given that they’d only known each other a week, I don’t know what the entirety of Knox’s and Sollecito’s phone records would prove. But Knox worked a couple nights a week at a bar until 2:00 a.m., she liked to party, and she had the night off. Couple that with her fragmentary and wildly fluctuating recollection of events on the night of the murder when her phone was off. I read one news account at the time that stated simply, “The couple turned off their phones and went to bed.” At 8:40?
In a later account of Knox’s evening alone with Sollecito, Knox recalled taking a shower with him in which she distinctly remembers him washing her ears. Perhaps it was that night, perhaps it was another. But considering all that bathing at Sollecito’s apartment, why did she come back to her apartment the next morning to take a shower? It was after this shower that she says she observed the bloody footprint on the bathmat, and that someone had not flushed the toilet after defecating. Hard to believe a woman this fastidious about personal hygiene would not notice these things or the smell.
But a more central question is, if Rudy Guede, a casual acquaintance of Knox, didn’t do this by himself, who else could have possibly participated with him? The other roommates were out of town and whoever stuck around and attempted to cover up the crime would almost certainly have known this. Whoever it was took the time to break a window in another room, and scatter clothes around without leaving any DNA or other trace evidence. Guede’s DNA was all over the room in which Ms. Kercher was murdered.
The half-shattered window had undisturbed glass on the sill and was on an exposed second story with no clear means of approach, making this a dubious point of entry, especially considering other easier alternatives. All this, and the fact that the scattered clothing had broken glass on top of it, undercuts the interrupted lone burglar theory; and if it doesn’t, the lack of defensive wounds on the victim does. Someone also attempted to clean up some of the blood evidence, and someone locked Ms. Kercher’s bedroom door which apparently required a key.
The prosecution’s theory of the case was that the three perpetrators were playing some kind of deadly sex game. Granted, that is odd. A sadistic sex crime is typically perpetrated by one evil man. And how and where did Knox and Sollecito connect with Guede? There’s no electronic record of any contact; the pair turned off their phones while at Sollecito’s nearby apartment when Knox found out she wasn’t going to be working that night.
Even less explainable, however, is Amanda Knox reiterating the lone burglar theory years later, notwithstanding evidence of multiple perpetrators and a staged break-in. Even the appellate court, when deciding in her favor, stated that the other perpetrators had not been found. The point is not the weakness of the evidence supporting the lone burglar theory, but that someone in her position, convicted and exonerated, would continue to advance the lone burglar theory if she wasn’t there, or any theory at all.
I’ve read over and over again in statements posted by Team Knox, as well as by the Italian court’s final decision to dismiss, that without the DNA nothing puts Amanda Knox in Ms. Kercher’s room at the time of the murder. Setting aside the bloody shoe print, the evaluation of evidence is not a mechanical or scientific test where a postulate is proved by revealing a specific marker determinative as to guilt. DNA can sometimes turn it into that, as it appears to have done here. But the concept is flawed when applied to the law in this way because it leads to a corollary, equally flawed, which is that lack of DNA proves innocence. Once DNA was introduced, it became the “bloody glove.” The circumstantial evidence in this case is what makes any scenario in which Amanda Knox is not involved appear unrealistic, notwithstanding how desperate local police and prosecutors were to resolve the crime quickly, or how flawed the DNA evidence was.
I recall a cold case murder trial I watched during law school. There appeared to be so little evidence. The case relied almost entirely on shifting statements by the defendant over the 30 years since the night his wife left him, and after which, she was never seen again. He had no criminal record before or after his wife left, and he continued to work in their family business all that time, a peaceful, quiet man. Her family testified on his behalf.
Nevertheless, he was convicted. I recall the prosecutor’s closing argument in which he said that the defendant gave himself away. Elizabeth Loftus, the pre-eminent memory expert, had testified compellingly for the defense about how our memories are unstable and fluid to explain his shifting stories. I recall feeling that a tremendous miscarriage of justice had possibly occurred.
Three weeks later, the defendant agreed to lead police to her body, which, due to time, or to one last deception, was never recovered. He said they argued that night, he shoved her, and she hit her head on the coffee table and died.
Knox’s statements contributed to her conviction, in part, because they determined her defense. In California, doing nothing to prevent a murder is not a crime. And, “accessory after the fact” is punished by a maximum of 3 years. Even if these defense positions had been viable legal options, neither could have been presented to the jury without a complete about face, something she may have decided, or been counseled, to avoid. It would also have been impossible to admit any involvement and have any hope of continuing her life as she knew it.
As I’m sure my prosecutor colleagues would agree, Amanda Knox would have been convicted of murder in the U.S. on these facts, and against this defense, just as she was in Italy. Had Ms. Kercher been an American, the U.S. could have asserted jurisdiction over the matter. But she wasn’t. Instead, thanks to the Knox’s PR firm, to misplaced DNA analysis, and to the indefatigable Amanda Knox herself, this case has become the story of a wrongly convicted American student abroad – a story in its second theatrical retelling on Hulu.