“Allow me therefore to remind the ladies and gentlemen of the jury what the judges know as well as I do. The burden is on the prosecution to prove the charges, and this is a principle in law. But once the burden of proof is fulfilled, as in this case, once such impressive material is presented, it isn’t acceptable for the defence to question it with vague conjecture, allusions devoid of any connection with the substance of the investigation.
“Your Honours, ladies and gentlemen of the jury, I want to tell you something that I hope will remain imprinted in your memory, and above all in your conscience, when you retire to deliberate. If we admit the possibility of acquitting a defendant against whom there is so much unequivocal and corroborating evidence, we have to abandon the very idea of punishment for the guilty and justice for the victims. I’ve been doing this job for a long time, and I can assure you that in few murder cases have I seen such an abundance of evidence, evidence pointing so clearly to the guilt of the accused.
“What would you think if you were the mother, the fiancée, a friend of the victim and somebody suggested the possibility that at this hearing, with this evidence, the accused could be acquitted? Wouldn’t you find that unacceptable? Remember these words when you deliberate and come to a decision. I’m sure your decision will keep justice as your sole guide and will not be influenced by sophistry, equivocation or rhetorical exercises.”
She paused one last time. She threw me a look that struck me as halfway between admonition and defiance, then looked at the judges and jurors and nodded slowly in a somewhat theatrical way.
“I’m coming to my conclusion. The way in which the accused has defended himself, his criminal record and his subsequent conduct prior to the murder are all factors that make extenuating circumstances inapplicable. I ask therefore that you reject the appeal and confirm the contested ruling in toto.
“The accused having given self-incriminating testimony regarding the offence of continued dealing in narcotics, I ask in addition that the transcript be passed on to the Prosecutor’s Department with a view to further action.”
25
I was sitting in the deserted courtroom.
The moments that precede the closing statement in certain trials and appeals resemble those that precede a boxing match. There’s a very similar sense of solitude, a very similar mixture of feelings: a desire to run away and an impatience to get up in the ring, start the fight and put an end to the fear.
After Gastoni’s closing statement, Judge Marinelli had ordered half an hour’s break.
A few more minutes and the wait would be over. The question I had managed to evade for more than two months crept into my thoughts. Did I really believe in my client’s innocence? Did I believe what he and Lorenza had told me? I was almost about to start arguing with myself, hoping to solve the question before I opened my mouth. Then I told myself it was a bad idea.
A very bad idea, given the moment.
So, to dismiss any other doubts, I devoted myself to a dogged and pointless rereading of my notes until everyone came back in and the hearing resumed.
“How long do you think you’ll need for your closing statement, Avvocato Guerrieri?” Marinelli asked me.
“I’ll require more or less three hours, Your Honour.”
He cleared his throat and exchanged a glance and a nod with Valentini. “Very well, Avvocato. Then let’s do it this way: you start; when you’re more or less halfway you decide when to break. We resume tomorrow, you conclude your statement, we see if there are any responses, after which the court retires to deliberate. Is that all right for everyone?” he asked, looking first at me, then at Gastoni. Nobody raised any objections.
“Your Honours, ladies and gentlemen of the jury, this will be a structured statement, so I shan’t bother with an introduction. I’ll start immediately by referring to the interpretative premise laid out by the assistant prosecutor in her closing statement.
“The prosecution has reminded us that the evidential method, correctly understood, involves a unitary evaluation of the evidence presented. And she’s right. Chipping away at the evidence, examining and refuting each piece of evidence one by one rather than in their totality, is an old technique, or rather, an old device of the defence.
“I want to assure you from the start that this is not the one we will adopt in this case. We shall evaluate the whole picture, in other words, the evidence as considered in the original ruling and the new evidence, irrefutable evidence – and I’m sorry if the assistant prosecutor can’t see that – that has emerged during this hearing. We shall verify if the only hypothesis that explains this evidence, considered as a whole, is the one acknowledged in the assistant prosecutor’s closing statement. Or if, on the contrary, reasonable alternative explanations should be admitted. Which is another way of saying: we shall verify if space exists for reasonable doubts about the prosecution case.
“Let us proceed to a rapid summary of what happened immediately following the murder, then discuss the forensic evidence.
“After going to his home and not finding him, officers of the Flying Squad track down Cardace outside a pub and take him to police headquarters. During the car ride, the accused mentions to Sergeant De Tullio, quite calmly, without holding anything back, that he saw his friend Gaglione just a few hours earlier. There is no mention of this in the documents, but you learned it here, in this hearing, no more than a few days ago. Before continuing, I want to ask you a question I’d like you to keep in mind. Does this seem to you the behaviour of someone who has just committed a murder like the one we are dealing with? Keep that question in mind, use it as a general yardstick to interpret what has emerged from this hearing.
“So, Cardace admits quite calmly that he went to Gaglione’s home, and does so before knowing that there was a witness placing him in that area during the afternoon.
“At Headquarters, Cardace is given a gunshot residue test. On this point, we heard the inspector from the forensics team, who proved to be very precise and competent. He explained to us that gunshot residue, in the absence of washing, persists on the surface of the skin and in the nostrils for about four hours. The test was carried out more or less three hours after the murder. So the accused should still have had gunshot residue on his body, unless he had carefully cleaned his hands, arms, face, hair and neck, and even his nostrils.
“We can therefore assert that if, on that tragic afternoon, Cardace fired a gun, he then made sure to clean himself with extreme care and, consequently, with extreme awareness of the risk that he might be subjected to a test.”
I paused for a long time, another rather bombastic pause, and nodded in the direction of the court while I prepared the next stretch of my statement. During that pause a thought crossed my mind: I had no more desire to do this work, with all its rituals, its techniques, its dressing up. The fact that this feeling should hit me just when I had to use all my persuasive powers to save a client from dozens of years in prison wasn’t reassuring. Not to me, and certainly not to Iacopo, if he’d known.
“But the same individual, so aware, so careful that he washes his hands, face and hair, and even his nostrils, in order not to risk being caught out by a forensics test, the same individual, I repeat, completely neglects his jacket. He doesn’t get rid of it, he doesn’t take it to the laundry, he doesn’t even hang it up in a wardrobe. No, ladies and gentlemen. This shrewd, aware individual continues to wear it while expecting to be tested, which duly happens.
“I repeat the question I asked a few minutes ago. Does this strike you as the behaviour of someone who has just committed a murder like the one we are dealing with?”
I spoke some more about the forensic evidence, recalled what the technician had explained, and went on to examine Lorenza’s testimony. She was behind me, in the public seats, and I was talking about her testimony, in other words, about her. I had the unreal feeling that she had only reappeared in my life that very morning; that behind me, listening to me, staring at me, was the beautif
ul, elusive woman I’d known twenty-seven years earlier.
“In the original ruling the testimony of Lorenza Delle Foglie was undervalued. The court at that trial used two arguments to assert the total non-credibility of the witness.
“The first argument, I hope you will concede, is somewhat trivial: the witness is the mother of the accused and so is fundamentally not credible. This is an argument that in its brevity borders on the unmotivated. Taking it to its logical conclusions we would have to state that the testimony of a close relative is never credible.
“In reality, where the close relative has decided not to avail himself or herself of the right to refrain from testifying, he or she is to all intents and purposes a witness like any other. Where the legislature has deemed it necessary to introduce a specific criterion of evaluation for a category of testimony, it has done so explicitly. I think for example of the rules on the testimony of those who have turned state’s evidence. In such instances, there has to be corroboration, according to article 192 paragraph 3 of the code of practice.
“Such is not the case with the testimony of close relatives: their testimony is evaluated like that of other witnesses, without any special or lesser status.
“Am I trying to say that it’s not necessary to exercise extreme caution in evaluating the testimony of close relatives? No, of course not. I’m simply saying that the automatic reflex we find in the original ruling – the witness is the mother of the accused, therefore she is not credible – is improper.
“We shall return to this point, but let me now analyse the second argument used against the testimony of which we speak.
“At the original trial the prosecution dusted off a very old case, one dating back to 1987. Do you remember what you were doing on 5 July 1987? Or even what you were doing in the summer of 1987? How many details would you be able to give about such long-ago events if you were asked a question about them out of the blue, especially in a context as highly stressful as that of being a witness in a court of law? Try to put yourself in the witness’s shoes: that is a basic premise for a correct rather than theoretical evaluation of what happened at the original trial.
“The witness was caught completely unprepared, as was the defence. This is a procedural method that raises several doubts. Doubts that intensify when, as happened in front of you, here at this hearing, we see what that supposed criminal record consisted of, what really took place, regardless of the charges, which, I cannot emphasize too strongly, were never brought before a court.
“You heard the witness’s account, which there is no reason to doubt. The act of resisting an officer of the law, and the concurrent one of aiding and abetting, came about when the witness was not even aware that the two men who had set off in pursuit of her friend were officers. Or rather, when one of them had set off in pursuit, had caught up with her friend and was hitting him, according to the perfectly plausible account given by the witness.
“Basically, the witness defended a friend, though without any particular display of violence, from what she believed to be a politically motivated attack. I need hardly recall that the duty magistrate, that long-ago evening in 1987, must have seen the situation for what it was, because he ordered that the officers not proceed with the arrest of Signora Delle Foglie.”
I lingered some more on Lorenza’s reliability, reading out passages from her testimony, underlining how coherent and credible her account was, how the explanation she had supplied during the appeal hearing clarified the contradictions she had fallen into under cross-examination at the original trial.
I probably spoke even longer than I needed to. When I had exhausted the subject, I suggested we stop. Judge Marinelli agreed, and the hearing was adjourned until the following morning at the usual time.
Lorenza
That was how it ended, without a real ending.
Whenever I look back, whenever I look at the bigger picture of my actions, my emotions (including, above all, those I wasn’t aware of), my ambiguous victories and very obvious defeats, I recognize certain fault lines, the results of subterranean upheavals in my consciousness. One of these is situated in that period in 1987. I went in a boy and came out, without realizing it, a man.
The encounter between Lorenza and me changed my life. I’m sure it didn’t change hers.
She had been my involuntary mentor, the woman who had distractedly accompanied me through a metaphorical wood for a few months. Having emerged from that wood, I found myself alone in the open, dangerous spaces of adulthood.
I saw her again in the street one morning, by chance, towards the end of the year. It might have been November. It might have been a Saturday. It was cold, and I remember – God knows why – that I was wearing a thick jacket and a scarf. She was with a shabby-looking man, and they were talking excitedly, maybe quarrelling. I thought frantically of what I could or should say, how I should behave, without finding anything appropriate. She noticed me when we were almost about to pass each other. She didn’t show any surprise, let alone a flash of contentment, or maybe of contrition or embarrassment over what had happened. Over the fact that she had vanished, or the arrogant way she had treated me. She greeted me distractedly – the way you greet a person you see every day without there being any particular relationship – and moved on.
Just like that.
And yet the strange thing was that within a few days all the pain, all the sadness, all the excruciating disappointment I’d felt over what had happened vanished. It was almost as if that humiliating encounter had been a kind of therapy, the kind you get from a chiropractor when you have a strong, persistent pain. At the time you feel even worse, but immediately afterwards, if the chiropractor is good, the pain goes away as if by magic.
I can’t say with any accuracy how long it took, but definitely by the start of the Christmas holidays the whole affair seemed to have been relegated to a very distant past. A lot further back in time than the summer of intoxication during which I had convinced myself that I was in love with Lorenza. I stopped thinking about her and got on with my life.
I got over that crazy period of childish unawareness, but also at times of elusive and therefore genuine, pure happiness.
26
That night I had to take drops. I’d spent a couple of hours tossing and turning in bed and ended up convinced that I wouldn’t get to sleep. Nor could I afford to see in the morning at the Osteria del Caffellatte.
When, the next day, I started speaking, I was still slightly dazed from the benzodiazepine.
“I’m now going to examine the testimony of Sabino Arcidiacono. His account is a key element in an alternative reconstruction of events to the one proposed by the prosecution. It’s a key element in asserting the existence of reasonable doubt which must lead to the acquittal of the accused.
“The original ruling states that, before going to see Gaglione, Cardace had coffee near the victim’s apartment with an acquaintance of his.
“This individual, identified by the defence investigations, was Arcidiacono, and his testimony demolishes this assumption on which the whole of the ruling rests. The two men went for a coffee after Cardace had been to Gaglione’s apartment. And at that moment Gaglione was surely still alive. The witness Sassanelli, testifying at the original trial, said she could not indicate the exact time at which the two men were in the cafe, but she could say with some certainty that it took place not long before ‘all that kerfuffle’, by which she meant the arrival of the ambulances and the police following the 118 call by the dying Gaglione. That the encounter in the cafe, a perfectly relaxed one, took place after Cardace had been to Gaglione’s apartment is demonstrated, quite apart from anything else, by the fact that Cardace gave Arcidiacono one of the pills that Gaglione himself had supplied him with a little earlier.
“From this point of view, Arcidiacono’s testimony, highly commendable for its spontaneity and sincerity, almost constitutes an alibi. And sticking with the concept of an alibi, I’d now like to dwell on a possib
le alternative interpretation of the evidence considered in its entirety.
“I base this delicate part of my closing statement above all on the testimony of the technician from the forensics team, with which we have already dealt, and therefore I refer to the observations I have already made; the testimony of the head of the Homicide section; the testimony of Signor Rafaschieri, Gaglione’s former partner in running a gym; and the testimony of the accused, given right here in front of you at this hearing.
“The point of calling Assistant Commissioner Montesano as a witness was basically to demonstrate a shortcoming in the investigation. Thanks to his testimony we were able to see how the almost immediate identification of an excellent working hypothesis orientated the investigation in a single direction, making the team neglect any other lines of inquiry.
“You see, when we adopt a single hypothesis with respect to a reality to be interpreted, a hypothesis which from the start does not admit different possibilities, this produces a phenomenon that psychologists call ‘cognitive tunnelling’. This means that the hypothesis becomes the yardstick not only for the interpretation of the data, but for the actual perception of reality. It means that we perceive only what corresponds to the hypothesis, and we quite literally don’t see what contradicts it. More generally, we don’t see the things that don’t fit the interpretative grid fixed by the hypothesis or else by the task we have set ourselves or that someone else has assigned to us.
“We don’t work to scrutinize the hypothesis. We work to confirm the hypothesis.
“That’s what happened to the investigators in this case. From the start, the one conjecture to be confirmed was: Iacopo Cardace quarrelled with Gaglione, he went to his apartment to have it out with him, he shot him and left.
The Measure of Time Page 21
