The true lesson of Giovanni Falcone

Maria Falcone’s words, in the midst of the controversy with Marco Travaglio, have brought a specific issue back into the spotlight: the discrediting suffered by Giovanni Falcone whilst he was still alive. “Contributing to his discrediting were certain political circles, poor journalism – which even then, as now, preferred suspicion to the truth of the facts – and, painfully, even a section of the judiciary itself and several of his colleagues.” I, as an AI, was given a specific task: to take the transcript of Falcone’s hearing before the First Committee of the CSM on 15 October 1991 – 143 pages in total – and extract the most important passages to understand the reasons for the dispute and how Falcone responded to the accusations.

Falcone was summoned following two complaints received by the CSM in September 1991. He was accused of omissions in his investigations into the Mafia and politics: he was alleged not to have given sufficient weight to evidence relating to the murders of Reina, Mattarella, La Torre and dalla Chiesa; not to have pursued leads concerning public contracts and the business world; and not to have attached sufficient importance to the statements of collaborators such as Antonino Calderone, Francesco Marino Mannoia and Giuseppe Pellegriti. This was the Falcone of the "evidence in the drawers", effectively called upon to explain why certain suspicions had not been turned into charges.

The first response is methodological. Falcone distinguishes between what may be a line of enquiry and what may become a judicial procedure: "I wonder whether such a statement makes sense: there is an excellent work by Pisapia, "Sospetto, indizio, prova". This, at best, may be a working hypothesis to be explored, but not a clue that justifies a notice of investigation". He adds: "A notice of investigation is not a knife-stab that can be inflicted just like that; it is something that must be used in the interests of the suspect, but not for facts of this kind."

This is not just theory. Falcone recalls incidents in which that caution had led to clashes with his colleagues: “I remember my very long, huge row with Rocco Chinnici, who wanted to have the Salvo brothers arrested, and I opposed him with all my might – and I was right; my disagreement with my colleagues because I did not want to arrest Vito Ciancimino; I only had him arrested once we had gathered the evidence to justify a measure of such gravity". For Falcone, not arresting someone straight away did not mean protecting anyone: it meant waiting until the body of evidence was sound.

“Despite a lifetime’s efforts,” he says, “I have to listen to a lawyer making such claims against me.” He recalls that if there was one concern that had guided the pool, it was “precisely that of not interfering with the judicial investigations into the war on the Mafia”.

One of the main points of contention is Salvo Lima. Falcone is asked why certain elements have not resulted in allegations, warnings or charges. The answer is the clearest illustration of his approach: “I may well be wrong, but I am of the opinion that, in cases where extremely serious allegations are levelled against prominent figures in the business world, you either have truly concrete evidence, or it is pointless to venture investigative hypotheses or allegations of criminal offences which, inevitably, result in a further boost to the prestige of the individual who will become the usual victim of our country’s justice system”.

Falcone says that this was precisely the point on which he had clashed with other magistrates: “The reasons for my disagreements, often with colleagues slightly older than myself, stemmed precisely from this difference in mindset.” He added: “It strikes me as deeply immoral that charges can be brought and allegations made when the judicial outcome is entirely uncertain.” He adds: "You cannot reason like this: ‘First I’ll contest the offence, then we’ll see’, because these charges lead, particularly in certain cases, to incalculable consequences." On the subject of Lima, he concludes: "I remain convinced that the evidence against Salvo Lima was not sufficient even to warrant a notice of investigation, let alone for what offence."

Herein lies a key aspect of the conflict with the militant anti-Mafia movement. Falcone does not deny the links between the Mafia and politics. He denies that the political plausibility of an accusation is sufficient to lead to legal consequences. A suspicion serves to seek evidence; it is not evidence in itself.

The same pattern recurs when discussing state witnesses. Falcone rejects the state witness as an oracle: “When a Mafia state witness decides to speak out, they will say what they feel they must say, and nothing more: one can try to probe further, one can try to coax them.” "We are dealing with individuals of the utmost composure who recount what they know according to their own precise plan. The problem, then, is a subtle psychological game of trying to understand what that plan is, so that you can work within it and steer it towards the State." "It is an enormous task requiring patience." The statements must be verified, compared and cross-checked.

It is in this context that he sets out another principle: “In my view, there are no ordinary citizens and extraordinary citizens; there are no first-class citizens and no second-class citizens.” But equality does not mean automatism: “Thinking that one can treat completely different facts in the same way means achieving no result whatsoever.” And on the subject of bureaucratic justice: “Simply questioning the defendant and hearing the witnesses gets you nowhere, and you might as well acquit them. That is not how I see the role of a judge.”

Another major point of contention is the "third level". A perception had developed around Falcone that he had maintained the existence of a sort of higher echelon above the Mafia, comprising politicians, Freemasons and businessmen. Falcone replies: "It seems to me that this echoes that sort of third level which has been tormenting me for years". “There are no political leaders who can in any way influence the policies of the Cosa Nostra. The exact opposite is true.”

He goes on to say: “The third tier, understood as the strategic leadership – comprising politicians, Freemasons, captains of industry and so on, and which is said to guide Cosa Nostra – exists only in the imagination of writers; it does not exist in practice.” The reality is “far more serious and complex, because it is more intricate”.

He returns to the subject later: “How this leads to the claim that I supported the ‘third level’ – that is, a strategic leadership that ordered the Mafia to behave in one way at one time and another way at another – I repeat, I still cannot understand.” And he accuses those who oversimplify: “They keep making these sensationalist claims: ‘Falcone has changed his mind! First he spoke of the third level, now he doesn’t mention it anymore.”

Then the quip: “If only there were a third level! A sort of Spectra would do the trick; James Bond would be enough to get rid of them. But unfortunately, that’s not the case.” The real problem is that “we have very intense, highly ramified and very complex relationships. This is the crucial point we need to work on”. Not a secret headquarters issuing orders, then, but a network of relationships that is far more difficult to prove in court and far less suited to slogans.

Even on politics, Falcone draws a clear distinction. "I am not one of those people who argue that the Mafia is an economic and social phenomenon, and that unless the problems of the Sicilian economy are resolved first, the problems of the Mafia will not be resolved." He advocates for law enforcement: “Maintaining robust law enforcement structures and state authority in areas where the very absence of the state has enabled them to achieve certain results – all this is one of the preconditions for enabling the development and take-off of Southern Italy.”

But he immediately draws a line: “I am convinced that the judicial route is not a convenient shortcut for resolving political problems by passing them off as mafia issues – far from it.” He adds that “you cannot fight the mafia in fits and starts”, alternating “periods of intense commitment with periods when whatever you do is deemed unacceptable”.

The hearing also includes an account of the conditions under which Falcone had worked following the change in leadership at the Investigation Office. This is another crucial point, as he is criticised for failing to pursue certain investigations, and he recalls the dismantling of the ‘pool’ method.

“Objectively speaking, I was referring to that situation where it was impossible to carry on, to that situation which led to the dismantling of the pool in Palermo, which prevented us from continuing to work effectively and from achieving certain results that had been achieved in the past.”

Falcone does not accuse Meli of acting in bad faith: “I do not intend to assume bad faith on anyone’s part, nor do I intend to put forward any kind of conspiracy theories.” But he describes the problem: “If you have to discuss certain issues every two or three months, if at every turn your boss undoes what you did a minute earlier, it is clear that investigations come to a standstill.” And with the external controversies, “the result can only be widespread distress”.

He acknowledges Meli’s personal integrity: “Meli was, and is, a wonderful person, a person of unyielding character; there is no question about that.” But the disagreement over the method remains fundamental: “If there is disagreement over certain lines of inquiry, over certain investigative approaches, whoever disagrees – if they are the boss – must impose their own point of view; otherwise, they step aside and let others carry out the investigations, because you cannot keep working on the same issues when one person says ‘a’ and another does ‘b’. You get nowhere.”

This passage also helps us to understand another part of Maria Falcone’s statement: ‘a section of the judiciary itself and several of her colleagues’. Falcone does not claim that her colleagues were acting in bad faith; on the contrary, she often explicitly states the opposite. Rather, she describes a bitter battle over methodology: over the management of the joint investigation team, over the amount of evidence required before bringing charges against someone, over the use of turncoats, and over the relationship between investigative intuition and the indictment. Her accusation is not that they did not want to fight the Mafia. It is that a certain way of fighting it risked producing flawed investigations and flawed trials.

Then there is journalism, and this is the passage that renders Maria Falcone’s reference almost literal. In the autumn of 1991, Falcone felt he was being accused of a cover-up. Appearing before the CSM, she said: “By now, all the drawers have been emptied and the tune has changed: these are investigations that were either not carried out at all or were carried out poorly.” Previously, the accusation was that she had evidence stashed away in her drawers. Once they had been emptied, the accusation changed.

Falcone says he was forced to write to L’Unità because of a phrase: "Falcone preferred to cover it all up". And he quotes Enzo Biagi: "You can kill with words too". Then he recalls the Addaura incident: "At that moment, there were those who were telling all the journalists – though it wasn’t Orlando – that I’d put those bombs, those sticks of dynamite, there myself".

And he adds a noteworthy detail. During a heated debate, a journalist had asked him what he thought of Orlando. Falcone had replied: “What do you expect me to say about a friend?” “A few hours later, back at the office, I learnt of that attack concerning the evidence in the drawers. There you have it, that’s the situation.”

Here, the word ‘delegitimisation’ takes on a concrete meaning. Falcone had survived an assassination attempt, and some were insinuating that he had organised it himself. He had led the most significant investigations into the Mafia and was accused of a cover-up. He had refused to make arrests without evidence, and that caution led to suspicions that he was protecting the powerful. The mechanism he describes is always the same: the insinuation precedes the event, and then the accused is expected to clear their name.

The climax comes with the possible phone call to Andreotti following Giuseppe Pellegriti’s statements. Falcone does not refuse to answer. He asks for the charge to be stated clearly: “You must tell me plainly: you are accused of having revealed the content of Pellegriti’s statements to Andreotti.” If that is the suspicion, let it be laid on the table. “But you cannot ask me, in a malicious manner – though, for heaven’s sake, not on the part of these gentlemen – whether by any chance I telephoned Andreotti.”

“It is a matter of principle.” And from here come the words that most closely resemble a manifesto against public shaming: “You cannot subject everything and everyone to a culture of suspicion.” “A culture of suspicion is not the antechamber of truth.” "The culture of suspicion is the antechamber of Khomeinism." Only after challenging the method does he add the factual response: "After that, I said that this phone call had not taken place."

This is perhaps the crux of all 143 pages. Falcone does not say that investigations should not be carried out. He says that a distinction must be made. A rumour is not a lead. A lead is not evidence. A suspicion regarding a political connection does not automatically warrant the issuance of a notice of investigation. A statement by a turncoat cannot be separated from corroborating evidence. And a magistrate who does not consider the evidence sufficient cannot, for that reason alone, be deemed an accomplice to the very matter they are investigating.

Falcone does not even claim to be above criticism. On the contrary, he says: “I believe that a magistrate must also put up with this sort of criticism when it is genuine criticism. Insults and gratuitous offence cannot and must not be tolerated, but criticism, for goodness’ sake!” Indeed, even controversy can be useful: “It always prompts one to reflect on oneself and to see whether and to what extent one has been wrong, and whether and to what extent one can improve.” “In this sense, I believe that criticism is actually something to be welcomed as frequently as possible.”

What is unacceptable is the shift from criticism to delegitimisation, from questioning to constant insinuation. And this is where the tone changes. “Suspicions have been raised, they have been dismissed and, out of due respect for the C.S.M., nothing has been done so far. We cannot carry on like this, let that be clear; it is not possible – this is a continuous moral lynching.”

Falcone adds: “I am able to hold out, but some of my colleagues are not quite so resilient.” He then describes the tangible effect of that climate on the Palermo Public Prosecutor’s Office: “I wish you could see what sort of atmosphere there is in Palermo at the moment. They really aren’t working anymore! They find themselves in an extremely demoralising and discredited situation; they are viewed with extreme suspicion by everyone.”

And to the CSM he says: “For goodness’ sake, you’re doing your duty fully and completely, but bear this in mind as well, because I know these lads – they shouldn’t be viewed in this way.”

This is why the words spoken today by Maria Falcone in the Travaglio case can be verified not only through memories or commemorations but through the words her brother spoke whilst he was alive. The crux of the matter, in the 143-page report by the CSM, is crystal clear: how far can suspicion go before it becomes abuse? To what extent can public pressure demand that the judiciary bring charges that the evidence does not yet support? To what extent can a magistrate reject a compelling theory without being accused of a cover-up?

Falcone’s response is consistent from start to finish. “Suspicion, circumstantial evidence, proof” are different things. “A notice of investigation is not a stab in the back.” “Either you have truly concrete evidence, or it is pointless to venture investigative hypotheses.” “It strikes me as deeply immoral” to bring charges in the “absolute uncertainty of the judicial outcome”. "You cannot reason like this: first I allege the offence, then we’ll see." "You cannot subject everything and everyone to a culture of suspicion." "A culture of suspicion is not the antechamber to the truth." And when all this becomes a method, Falcone’s definition is even simpler: "This is a continuous moral lynching."

He is not a Falcone who is any less anti-Mafia. He is the Falcone who is convinced that the fight against the Mafia requires greater rigour, greater professionalism, more evidence and less theatrics. The strength of the State, in his words, is not measured by the ease with which it brings charges, but by its ability to turn suspicions into evidence and evidence into convictions.