The land of public shaming. Judicial error and its breeding ground

Garlasco is a case study that faithfully illustrates what happens in the day-to-day administration of justice in our country, all the more so when, for a variety of reasons, a legal case comes under the spotlight and attracts the voracious attention of public opinion. In the quiet, anonymous day-to-day reality of the Italian judicial system, many of the dynamics that, in these highly publicised cases, captivate, astonish and outrage the public, actually recur very frequently – it’s just that nobody knows about them. To put it plainly: it is an absolutely exceptional occurrence for a public prosecutor and their investigators, once the investigation has been completed and the case file submitted to the defence so that the latter may finally refute the prosecution’s case – or at least seek a partial revision of it – to take even the slightest step back. Not to mention scientific evidence: specialised police units and the public prosecutor’s technical advisers establish truths which, as a rule, leave no room for second thoughts. In my professional experience, I cannot recall any technical consultants for the prosecution ever saying at any point, ‘perhaps we were wrong’. It is a judge at the various levels of the court system who assesses the limitations and validity of the investigation; never does the prosecution independently reconsider its position, especially after it has made its reconstruction of the facts public. In short, the conclusion of an investigation is normally a point of no return in day-to-day judicial life, a non-negotiable conclusion, a truth to be defended tooth and nail, despite the fact that the Code provides – and certainly not by chance – for the opening of a preliminary hearing with the defence aimed precisely at subjecting the prosecution’s case to an initial test of its robustness. This deep-rooted and widespread mindset amongst investigators – who evidently regard the prospect of possibly having to acknowledge a truth different from that hypothesised and reconstructed by their own investigation as a source of shame – is precisely the ideal breeding ground for judicial error, all the more so if the case has attracted significant media attention from the outset.

Whilst re-examining the reconstruction of the facts is already an unusual occurrence in an investigator’s day-to-day work, it is utterly unthinkable that this could happen in full view of the public. What else was the Tortora case, if not the staunch defence of an incredible investigative blunder, built – amidst that almost global media furore – on the decision to give absolute credence to the accusations of a deranged individual who had already been described in previous judgements as a pathological serial slanderer, without carrying out a single investigative check (not a single one!), before the arrest warrant was issued?

So here we are at the very latest twists and turns in the second investigation into the murder of Chiara Poggi. The suspect, Stasi, was at the time implicated by the now-famous traces of blood on the pedals of the bicycle on which he allegedly returned home after brutally murdering his beloved, without any established motive. Traces – according to the investigators – matching Chiara’s DNA ‘beyond any reasonable doubt’. Today, the Pavia Public Prosecutor’s Office informs us that, following that initial positive result, the forensic team itself carried out two further tests, both of which yielded radically opposite results; and that these two tests – a fact presented to us as indisputable on paper – were never disclosed to the parties involved and, as far as we can gather, not even to the public prosecutor in charge of the investigation. The revelation has caused a sensation, and observers are now asking why and how this occurred, openly discussing the possibility of a cover-up and probing its possible motives. This is certainly a sensational development in the investigation, and it is the Paduan investigators who must answer those questions, not us from the comfort of our sofas at home. If any sinister motives are uncovered behind a cover-up aimed at pinning that brutal murder on an innocent person, we shall take note of them with dismay. In the meantime, for all the reasons I have mentioned earlier, I shall simply not be at all surprised by what has happened, as reconstructed today by the Pavia Public Prosecutor’s Office.

It is all too common for investigators, following initial reassuring findings, to become trapped by their own suspicions and accusatory hypotheses, almost instinctively directing all subsequent investigative evidence towards confirming them, and thereby downplaying, overlooking or even ignoring any possible evidence to the contrary. If, moreover, that accusatory narrative becomes part of the public discourse, this dynamic becomes inexorable, because the credibility of the investigation and of those conducting it is at stake. Admittedly, the system entrusts the public prosecutor with oversight of the judicial police’s work (which, in the case of the two negative test results on the pedals of Stasi’s bicycle, as we have learnt, was apparently even circumvented). But if this oversight, whether out of conviction or even mere professional laziness, results in full endorsement of the judicial police’s investigations (which, believe me, happens very frequently), it is difficult to turn back. The investigation has tilted towards a suspect, nurtured that suspicion and made it its own, presenting it to public opinion as the solution to the criminal mystery: the die is cast. In the case of the popular presenter of ‘Portobello’, it was even vividly put that ‘the innocence of the investigation demanded Tortora’s guilt’.

It must be said that, in the Garlasco case, that unshakeable conviction regarding Alberto Stasi’s guilt did not hold up in two separate trials on the merits, both of which resulted in acquittals with unanimous verdicts, even without the sensational investigative discoveries of recent days; but frankly, I doubt that, had those two negative analyses of the pedals been made public, the case would ever have reached the stage of indictment. And yet, the force of the suspicion surrounding Stasi’s guilt was such that it even overcame a double acquittal, which – in my view – is the real scandal of this case. This opinion is not mine alone, given that, shortly afterwards, the legislature deemed it necessary to amend the law, which now finally prevents the public prosecutor from appealing to the Court of Cassation against a double acquittal on the grounds that the reasoning is illogical, as indeed happened in Stasi’s case. In other words, under the legislation currently in force, Alberto Stasi would be a citizen definitively judged innocent by two successive acquittals.

The defence will now push for a retrial, which, however, can never compensate Stasi for the long period of imprisonment he endured, nor for the destruction of his life. Nevertheless, it is difficult to believe that this painful affair, despite its sensational media coverage, has at least fostered greater understanding amongst the public of the constitutional principle of the presumption of innocence, and of the need to place limits on the public prosecutor’s power to appeal. I watch the TV programmes, scroll through the heated social media feeds, and see, in reality, two opposing camps, each ravenously seeking their own culprit: some point to Stasi, others to Sempio. As for the latter, the vast majority of the rightly relentless critics of these exposed investigative omissions do not hesitate to become supporters, without batting an eyelid, of an accusatory hypothesis built on the idea that a size 42 shoe print could have been left by someone who now wears a size 44. The truth is that ours is a country that succumbs to the irresistible allure of the gallows; it is the country of the ‘tricoteuses’; it is a country that is, above all, quick to demand longer prison sentences for everyone; it is a country willing to go to great lengths in defence of an innocent person who has been wrongly accused and convicted, on the essential condition that, at the same time, it is presented with a new culprit, more or less at any cost.