The Garlasco incident shows us why the judicial system needs reforming

When the ‘No’ vote to the proposed changes won the referendum on the justice system – quite unexpectedly, at least in my view – I, who for years had written and spoken about the inevitability and urgency of reforming a system that was dangerously superficial and so protracted as to amount to a cover-up, decided that I would resign myself to the situation and that, at the very least, I would no longer feel distressed or outraged; indeed, I admit – and I am ashamed to say – I might even have smiled – on the principle that those who bring misfortune upon themselves have only themselves to blame – at the sight of the victims of judicial inefficiency, errors, abuses and blunders, even the most egregious ones.

It is an indignant decision, and in my heart a definitive one, along the lines of ‘let Samson die with all the Philistines’. Like that – mutatis mutandis in the obvious direction – of Turgenev when, whilst reading his new masterpiece Fathers and Sons with feeling to a friend and young colleague who had come to visit him, he realised that Tolstoy had fallen asleep and swore eternal enmity towards him. Or like that of André Gide when, after his experience in 1912 as a juror at a session of the Assize Court in Rouen, he swore to himself to bid farewell to ‘the appalling, almost agonising clamour of the entire judicial machinery’, despite having always been rightly convinced that no community could do without courts and judges. It is a decision I had firmly made up my mind about following the victory of the ‘No’ vote against the reform proposed by the capable and courageous Nordio, as I was saying, but the devil makes the pots and…

On Thursday at the market, the butcher, visibly infuriated, vented to customers as they entered, repeating the same complaint like a broken record: “I’ve spent a fortune on the family holiday – a trip to Peru for the best hotel, plus a beach hut, parasol and front-row sun loungers – and them? Nothing – my wife, children and daughters-in-law spent every single day shut away in their room with their mouths agape in front of the telly, flicking from one channel to another because every single one of them, from morning till night, was broadcasting nothing but shrill, screaming talk shows about the Garlasco affair.” Goodness me!

On Friday, back at the market, it was the exact same old story from Bepi the fishmonger, the only difference being that it was no longer the beach but the Cadore mountains. Intrigued, I had two televisions brought into my studio and sat glued to them for the rest of the week, spellbound and almost in a state of ecstasy.

Goodness me, what a hellish mess! Although I’ve spent my whole life dealing with courtrooms, I struggled to work out whether they were applying the current code or the repealed one, as well as at what stage, at what point and even against whom the proceedings were taking place. When I realised that it was the status quo being defended by the ‘No’ camp, I was overcome by a marked intensification of the axiological anxieties and palingenetic torments that have always haunted me, and I could not help but decide to break my presumptuous, somewhat overly Aventine silence.

I recall the lengthy discussions, as long as forty years ago, regarding what was then the imminent ‘new code’ (that is, the one currently in force), particularly concerning ‘discovery’ – in Italian, nothing more than ‘revelation’ or ‘discovery’ in the sense of ‘let’s lay our cards on the table’ – but… in American English… a captivating and mysterious term for our magistrates at the time. Discovery – I remind myself – under the current Code is the moment when investigative secrecy finally ceases with the filing of the case documents and the service of the notice of conclusion of the preliminary investigations (Article 415-bis of the Code of Criminal Procedure). Preliminary investigations to determine who is responsible? On the contrary, preliminary investigations (Article 326 of the Code of Criminal Procedure) are solely intended to determine whether the report of an offence is manifestly false and should therefore be dismissed, or whether it warrants careful scrutiny at trial – that trial which is the very heart of the proceedings, where, once the duty of hushed and tightly guarded investigative secrecy has ceased, the defendant’s liability can finally be discussed openly, with the documents in hand.

The reason is clear. Since evidence must be established solely during public hearings in the presence of all parties and free from any preconceptions (and no longer – as under the old code – in the closed investigative chambers of the judicial police, the public prosecutor or the investigating judge), in light of the changes introduced by the then-imminent Code of Criminal Procedure, it was customary to explain that the judge must know nothing—absolutely nothing—about the facts before the trial commences, but must be and remain a completely impartial third party, like an Olympian seraph, awaiting the adversarial proceedings between the parties, which, much like a sung Mass, must take place before his very eyes.

Who could have anticipated what would follow? Were the distorting upheavals and current degenerations, in defiance of all this ‘virginity’ and ‘discovery’, even conceivable? Absolutely not. So unimaginable, in fact, that I have been unable to understand – despite my aforementioned extensive experience in courtrooms and the goodwill I have shown during this weekend of full-immersion television viewing – how, during the phase covered by investigative secrecy, it was possible to have access to on-site reports or recordings of wiretaps from the previous day, or expert reports that had never been filed, or interviews with external experts on the significance of certain pieces of evidence, or even – believe it or not – value judgements on the details of the circumstantial evidence from magistrates serving in other judicial offices in other regions… who had travelled there in search of publicity.

In short, the Garlasco case has become a veritable Piedigrotta of self-styled criminologists who recite the top-secret minutes from the previous day’s proceedings from memory… but how do they do it? Who provides them with these documents? Is it really impossible to ascertain the source??? Highly informed and relentless talk shows, up-to-the-minute and often vulgar pundits of all stripes, a myriad of self-styled criminologists, a whirlwind of confidential and non-confidential documents, detailed books even written and published in anticipation of a trial that will be scheduled who knows when! Opposing and highly motivated camps, all with their thumbs ready to pass judgement for or against, a bullfight featuring the unfortunate bull – or gladiator, if you prefer – trying to defend himself; that unfortunate bull who, these days, is still – albeit likely in good company – the poor fair-haired lad with icy eyes, that young suspect mocked by the media for his naive response – in our view, that alone would have been enough to acquit him – regarding the menstrual cycle of the poor victim, whose probable innocence we had already written about in these pages following the final conviction, many years ago.

Is the glass half full or half empty? On reflection… with a cool, calm mind, of course, the Garlasco incident may prove providential for those who, like Carlo Nordio and all of us who wanted reform, continue to believe that the justice system in our country is intolerably shameful and needs to be reformed. A providential epiphany or, rather, a merciless exposure of all the problems within this system – problems which were defended by the victors of the ‘No’ campaign (or overlooked; one does wonder, however, how they are coming to terms with this spectacle) and which the reformers, on the other hand, wanted to eliminate, not merely out of a sense of decency.

Epiphany. This refers, for example – and as happened on no fewer than two occasions to the hapless ‘blond-haired, ice-eyed lad’ – to the madness of the public prosecutor challenging acquittal judgements, with the aim of securing a conviction… obviously beyond all reasonable doubt… of the person acquitted by his colleagues, who are not officially barred from practising. Or to the slowness of the proceedings, which unfortunately justifies the many ‘I don’t remember’s’ from those privy to the facts. Or to the media lynching he endured with the approval of the majority.

Yet another revelation: this refers to the illegal yet brazen dissemination of preliminary material for media use which, as in this case, often devastates people’s lives and misleads investigations.

Yet another revelation: for some time now, a pathological drift in the preliminary investigations towards the heart of the trial has been noted – it is no coincidence that someone, Cassandra perhaps? has gone so far as to claim that the trial is in the hands of the police – but, naturally, still on the subject of Garlasco, no one would ever have suspected what is being said in the television debates of recent days. As if, right from the outset of the inquisition, some rogue elements from the RIS in Parma might have stepped in – on their own initiative and with great effectiveness, given the lingering repercussions, even years on, of the final conviction – to influence and then cement the atmosphere surrounding poor Stasi with monstrous, unlawful advice from psychologists… outsiders and sycophants – to this end, incredibly, informing them of the contents of secret documents – and even to influence the investigations through omissions, alterations and the removal of certain pieces of evidence; all behind the backs of unsuspecting magistrates from the public prosecutor’s office and the court, perhaps because they were trained within a single, non-specialist culture and still markedly united by a single career path.

Yet another revelation: this refers to what has emerged with crystal clarity regarding the now absolute dominance in legal proceedings of scientific evidence over syllogisms and legal treatises; with a serious risk – given that, to this day, the knowledge of judges and lawyers is almost exclusively legal, and that their laborious stammering on the subject of alleles and Bloodstain Pattern Analysis appears pitiful and, above all, unsettling – that jurisdiction may, in practice – that is to say, unofficially – shift from judges to technical consultants. Indeed, one need not be a far-sighted visionary to observe and conclude that scientific knowledge will never be definitive; that the future of legal proceedings will, as traditional and now outdated judicial syllogisms are gradually abandoned, consist of a sequence of increasingly sophisticated and complex technical assessments – in other words, a battle between forensic experts; that it would be unreasonable, as well as impractical and perhaps laughable, to assume that, in order to verify the correctness of methodologies and understand the procedures and conclusions of the parties’ experts – in short, to understand anything at all – the judge would be compelled, on a case-by-case basis, to appoint his or her own technical expert, resulting in an immeasurable waste of resources and, above all, of time.

How can we remedy the situation? The United States – our judicial mentors – tackled such issues as early as 1923 with the Frey case; perhaps we ought to get a move on too. We believe there is only one way forward. First and foremost, legislation providing for a cultural shift in the training of the judiciary and the legal profession, including in-depth study of the main subjects of applied forensic science. With a view to the future, de iure condendo in accordance with and for the purposes set out in Article 102 of the Constitution, we envisage a specialised and multidisciplinary judge, supported by scientific experts – as is, in fact, already provided for and implemented – if we recall correctly – in the fields of business law, juvenile justice, agricultural law, prison law, immigration law, crime prevention and perhaps others.

Returning to the Garlasco case—so shameful that it has forced me to speak out after months of resentful silence—one cannot help but recall, and I say this with good reason, Poisson’s statistical law, which, not coincidentally, echoes the old detective saying: ‘a single cockroach is always an exception’. Unfortunately, this can happen, despite the daily and honest professional commitment of the judiciary and law enforcement agencies, when preliminary investigations run rampant, judges are friends and colleagues of the public prosecutors, and everyone – or almost everyone – craves visibility and the limelight.

In conclusion. Nothing untoward would have occurred had the discovery process been kept within the time limits laid down by law, had one not always been able to rely on the unchecked acquiescence of the media, if investigative secrecy and publication bans had been respected, if the investigations had truly remained preliminary to the trial, if the trial had taken place within a reasonable timeframe under cross-examination by all parties, if the public prosecutor had been able to focus on directing the investigations from a separate and autonomous office – in short, if the reform proposed by the courageous Nordio had come to fruition.