Where was she at that moment?
For a few seconds, as I thought about that question, things around me went out of focus and the voices became a blur. By the time I’d come back to my senses, Montaruli had already started speaking.
“… so we appreciate the efforts made by counsel for the defence. Efforts which have shown a rare degree of commitment, and it is only right to acknowledge them. These rare efforts notwithstanding, no evidence has been produced during this hearing which substantially helps the defendant’s case.
“Confronted with one overwhelming piece of evidence – the discovery of drugs in the defendant’s private car – counsel for the defence has succeeded only in presenting us with a series of conjectures, insufficient in themselves to invalidate the body of evidence on which the original sentence was based. Needless to say, it is not enough to suggest some vague alternatives to the hypothesis put forward by the prosecution for this hypothesis automatically to fall apart.
“If that were the case, no one would ever be found guilty. It is always possible to formulate hypothetical alternatives to the version of the facts which has led to a defendant being sentenced. For these alternatives to constitute a valid basis for a request for acquittal, let alone an actual acquittal, they must at least be somewhat plausible.
“The higher court of appeal has often stated that what is presented as evidence must allow for the reconstruction of the facts and the guilt or innocence of the defendant in terms that are so certain as to exclude the acceptability of any other reasonable solution. Not to mention more abstract, more remote possibilities, based on conjecture and speculation. Otherwise, it would be sufficient to say to the judge: Look, things might not have happened the way the prosecution alleges, because everything is possible, and obtain the defendant’s acquittal for that very reason.
“If that were so, it would no longer be a question of presenting evidence, but of making a demonstration per absurdum following rules borrowed from the exact sciences, which have no place in the exercise of the law.
“In court, what is evaluated is the acceptability of the hypotheses proposed by the parties to explain the facts of the case. The final decision must rest on the most plausible hypothesis, in other words, the one which can encompass within a coherent, persuasive framework all the elements that have emerged from the investigation and the court proceedings.
“In this particular case, none of the new evidence presented by counsel for the defence appears to contradict the hypothesis put forward by the prosecution. On the contrary, it can easily be encompassed by that hypothesis. Let me briefly explain how.”
He briefly explained how. Everything he said was sensible and convincing.
For a few minutes, my attention wandered, and I tried to imagine the kind of closing argument another prosecutor might have made. Porcelli, for example. By the time I again focused on Montaruli’s words, he was talking about Macri.
“There can be no doubt that the witness Avvocato Macri has not conducted himself in a particularly open manner, either in the course of his testimony or indeed in the course of this whole affair.
“Clearly, he has not told the whole truth about his relations with Luca Romanazzi. And it is certainly possible that this Romanazzi is involved in some way in the illegal traffic which forms the basis of this case.
“But none of the new evidence proposed by the defence is incompatible with the charges against the defendant. Let us take it as read that Romanazzi was involved in smuggling the cocaine into the country. In other words, let us take as read something which, although pure conjecture, is reasonable. But even if we do, what of it? Does it rule out Paolicelli’s guilt?
“Could not the fact that Paolicelli was defended by the same lawyer as Romanazzi instead constitute a further indication that Paolicelli is part of a highly structured criminal organization, capable, like all such organizations, of providing legal assistance to its members when they are in trouble?
“Let me propose a different hypothesis. Paolicelli and Romanazzi travel together on the ferry, because they are accomplices in the cocaine smuggling operation. Passing through customs, Paolicelli is stopped and the drugs discovered. Romanazzi wants to help him and does it in the only way he can, given the way things are developing. He can hardly launch an attack on the customs police barracks and free his friend. Instead, he sends for a lawyer he trusts, a lawyer whose job it is, according to this hypothesis, to provide legal assistance to any members of the organization who are in trouble with the law.”
He stopped for a moment to catch his breath. I don’t think it was also to collect his thoughts. His thoughts seemed pretty lucid to me.
“Let me be clear about one thing. I’m not saying it happened like this, because I don’t have sufficient evidence to state that categorically. I’m saying it could have happened like this. I’m saying it is a reasonable conjecture, which encompasses the new evidence presented by counsel for the defence in the course of this hearing within the original prosecution hypothesis. It is a conjecture at least as reasonable as the one which I am sure counsel for the defence will propose to you in his closing argument.
“But when I say ‘at least as reasonable’, I am erring on the side of caution. In point of fact, it is a much more reasonable conjecture than the hypothesis that there was some kind of conspiracy, some fiendish plot to destroy Paolicelli.
“In conclusion, we have two hypotheses to explain the new evidence presented during this hearing. One, which is fully compatible with the overwhelming body of evidence presented in the original trial, would lead to the sentence being upheld.
“The other, of whose validity counsel for the defence will soon attempt to convince you, is based on a whole series of hypothetical and unlikely conjectures. What is being proposed as grounds for acquittal is not a reasonable doubt but, if you’ll pardon the expression, an improbable doubt. A doubt that derives from imagination, not from a strict application of evidential method.
“I am sure that counsel for the defence will be quite capable of presenting this improbable version of events in an appealing and persuasive way. I am also sure, however, that you will keep that rigorous evidential method constantly in mind, because without it there is only chaos.
“It is in the name of that method that I ask you to uphold the original sentence.”
46
Slow motion.
One frame at a time.
The prosecutor concludes his closing argument and sits down. Mirenghi tells me that I may proceed with my closing argument. I hesitate for a moment, then slowly stand up. I make my usual gesture of adjusting my robe around my shoulders. Then I straighten the knot in my tie. I pick up a sheet of paper containing my notes. Then I have second thoughts and put it back on the bench along with the other papers. I push my chair back, and move around the bench until I have my back to it.
The judges are there in front of me, looking at me.
I think about a lot of things that have nothing to do with this hearing. Or maybe they do, but in a way that’s hard to explain, even to myself.
Whichever way things go, I think, after this case is over I’ll be alone. I’ll never see that little girl again.
At least, not as a little girl.
It’s possible I’ll meet her again many years from now, in the street, by chance. I’m sure to recognize her. I’ll have white hair-I already have some now – and she will pass me by without even noticing me. Why should she?
Where is Margherita now? What time is it in New York?
Slow motion.
Mirenghi ostentatiously cleared his throat. And all at once time started moving normally again. The people and objects in the courtroom were once again solid and real.
I glanced at my watch and started to speak.
“Thank you, Your Honour. The assistant prosecutor is right. You must, as you always do, apply strict criteria for evaluating the evidence in order to come to a decision. He is right when he talks, in a theoretical way, about me
thod. But now, in a concrete way, dealing with the specific case concerning us today, we must see if it is possible to arrive at an acceptable conclusion with which we can all agree.”
I turned back to the bench and again picked up the sheet of paper with my notes.
“The assistant prosecutor, quoting the higher appeal court, said
… I’ve noted down his words… the higher court of appeal has often stated that what is presented as evidence must allow for the reconstruction of the facts and the guilt or innocence of the defendant in terms that are so certain as to exclude the acceptability of any other reasonable solution. Not to mention other more abstract, more remote possibilities. Otherwise, it would no longer be a question of presenting evidence, but of making a demonstration per absurdum following rules borrowed from the exact sciences, which have no place in the exercise of the law.
“Correct.
“What that means, basically, is that it is not possible to disprove the validity of the prosecution’s hypothesis by presenting other alternatives based on imagination and conjecture. Developing this concept, the assistant prosecutor has asserted that, when faced with an abstract plurality of explanations, we have to choose the one explanation capable of encompassing all the evidence in a coherent way. In other words, leaving aside any improbable or merely conjectural explanations, on the basis – and let us take note of this, because this is where the weakness of the prosecution argument rests – on the basis of a criterion of plausibility that can be expressed in statistical terms, that is, in terms of probability.
“Plausibility, as the assistant prosecutor sees it, means compatibility with a kind of script of normality, developed on the basis of what usually happens.
“What usually happens, when certain given elements of fact are present, therefore becomes the criterion according to which we decide what may have happened in a specific case.”
All three were listening to me. Incredibly, Russo seemed the most alert.
I went over everything that had emerged during the hearings. It didn’t take long. They had already admitted all these things as evidence, they were as familiar with them as I was. This recap was only there to introduce my main argument.
“At the end of the day, what is it that we do in court? All of us, I mean. Policemen, carabinieri, prosecutors, defence lawyers, judges? We all tell stories. We take the raw material contained in the evidence, gather it together, and give it a structure and meaning in stories that present a plausible version of past events. The story is acceptable if it explains all the evidence, if it doesn’t leave anything out, if it forms a coherent narrative.
“And a coherent narrative depends on the reliability of the laws of experience, which we use to extract from the evidence those stories which present a version of past events.
“Stories that in a way – in an etymological way – we have to invent.
“Let us look briefly at the two stories which can be told on the basis of the material that has been presented to us.
“The story told in the sentence handed down in the original trial is a simple one. Paolicelli purchases a large quantity of drugs in Montenegro and tries to smuggle these drugs into the country hidden in his car. He is discovered and arrested. And even confesses his guilt.
“This story is constructed on the basis of a single significant fact: the discovery of the drugs in Paolicelli’s car at the border post. To go from an established fact – the presence of drugs in Paolicelli’s car – to the unestablished sequence of events which constitute the story told in the sentence from the original trial, it is necessary to go through a logical process.
“How do I know that the story I have told is a true account of past events? By applying to the established fact – the finding of the drugs in Paolicelli’s car-a law of experience, which we could summarize like this: if someone has a quantity of drugs in his car, those drugs are his.
“This is a highly reliable law of experience. It tallies with common sense. Normally, if I have something in my car – especially if it’s something of great value – then that something belongs to me. It’s a law of experience. But it isn’t a scientific law, and it allows for alternatives.
“The assistant prosecutor says, quite rightly, that the new evidence that has emerged during this appeal hearing is not incompatible with this story.”
I glanced at Montaruli before I continued.
“But now let’s see what other story it is possible to tell on the basis of the evidence we have.
“A family spends a week’s holiday in Montenegro. At night their car stays in the hotel car park and – in case it needs to be moved – the keys are left with the porter. The night before they are due to leave someone takes those keys.
“Someone who knows that Paolicelli and his wife are going back to Italy the next day, in that same car.
“This someone, with his accomplices, strips the bodyshell from Paolicelli’s car – his wife’s car, to be more precise – and fills it with drugs. Then they put everything back where it was, the car and the keys. It’s a good way to carry out an extremely lucrative operation with the minimum of risk. An operation set up by an organized group, which goes about things in a highly professional way, involving a division of roles and tasks. One of these tasks must be to check that everything goes well on the journey, to follow the unwitting courier and make sure the drugs are retrieved once they are in Italy. This retrieval probably to be carried out through a targeted theft of the car itself.
“At the border post in Bari, something goes wrong. The customs police find the drugs and arrest Paolicelli, who makes a confession without a lawyer being present-a confession which is therefore completely unusable – with the sole purpose of avoiding his wife being arrested.
“Immediately after the arrest, someone, in circumstances which are bizarre to say the least, suggests to Paolicelli’s wife that she appoint a lawyer from Rome. This lawyer has previously had a nasty brush with the justice system himself, in which he was arrested, charged and then acquitted for the offence of criminal conspiracy to traffic drugs. This same lawyer has a private relationship, the nature of which is unclear, with a man who – as Macri himself says – has also been charged with drug trafficking. By a curious coincidence, this man was travelling on the same ferry as Paolicelli.
“Of course it could be, as the prosecutor hypothesizes, that Paolicelli and this man were accomplices in the illegal operation.
“I must point out, however, that there exists at least one important piece of evidence which contradicts this hypothesis. The file contains printouts of the defendant’s mobile phone records, and those of his wife, during the week immediately prior to the arrest. They were acquired, quite correctly, in an attempt to identify possible accomplices, but when they were examined nothing significant emerged. There weren’t many calls that week, almost all of them between Paolicelli and his wife, and none to numbers in Montenegro. And none to any phone users related to Romanazzi. If the customs police had found any, they would surely have highlighted it, given that Romanazzi had previously been charged with drug offences. Instead, the note that was sent to the Prosecutor’s Department with these printouts simply states that nothing significant emerged from an examination of the phone records.
“We can therefore explain the presence of Romanazzi on board that ferry by saying that he was there to keep a close watch, without any risk to himself, on the transporting of the drugs by the unwitting Paolicelli, and to make sure that the next phase, the retrieval of the drugs, went well.
“And it could be that it was in fact Romanazzi who suggested to Paolicelli’s wife, through a go-between, that she appoint Macri.
“Why would he do that? To follow as closely as possible, through a person he trusted completely, the development of proceedings. To make sure that Paolicelli didn’t tell the investigators anything that might compromise the organization, for example anything about the hotel in Montenegro, the person with whom he left the keys, and so on. Indeed, Macri
advises Paolicelli to exercise his right to remain silent and the whole process goes through without the defendant making a single statement, apart from the false confession he made immediately after the arrest.
“Let us also remember that when the sequestration order on the car is lifted-a car which is the property of Paolicelli’s wife – Macri is anxious to go personally and pick up the car from the police pound.
“What lawyer does something like that? And why does he do it? As a rule, as we all know, the lawyer gets the sequestration order lifted and then the client is the one who goes to pick up the car.
“Macri acts in a very unusual way, for which we must find a reasonable explanation, even if only a hypothetical one. Isn’t it possible that there was something in the car which the investigators had not found and which those responsible for the illegal operation had a major interest in retrieving? More drugs, perhaps. Or else a GPS tracker that had been planted in the car at the same time as the drugs. I’m sure you know what a GPS tracker is.”
Of course I was sure they didn’t know.
“A GPS tracker is a satellite signaller. It’s used as an anti-theft device in luxury cars, and is also used by the police to keep track of the cars of suspects under investigation. With a GPS it’s possible, from a long distance, to track down the location of a car to within a few yards. And it’s all done using mobile phone networks. If the device installed in the car is found, then it’s possible to trace those phones. Do I need to add anything more? Is it really absurd to hypothesize that the gang which planted the drugs in Paolicelli’s car also installed a GPS tracker to be on the safe side, and the customs police did not find it? Is it absurd to hypothesize that Macri personally collected the car in order to retrieve any remaining drugs and that compromising device? That device which, if found by the investigators, would have made it possible for the police to trace the traffickers’ phones? How else can we explain the actions of a lawyer who not only gets the sequestration order lifted, which is perfectly normal, but also goes personally to collect the car, which is quite abnormal?”
Reasonable Doubts gg-3 Page 19
