Reasonable Doubts (25 page)

“So I’ll see you tomorrow in court?”

“Yes,” I replied.

“Tomorrow in court,” I said, out loud, once I was alone.

45

The assistant prosecutor that morning was Montaruli.

We’d twice had the worst magistrate in the Department of Public Prosecutions and twice had the best, I thought, without any particular effort at originality.

It should have been a bad sign. If Porcelli, or someone like him, had been there, I wouldn’t have worried, even about his closing argument. Some assistant prosecutors stand up when the presiding judge gives them the floor, say, “I ask for the sentence to be upheld,” and consider they have earned their salary.

Some even have the nerve to complain that they work too hard.

Tired and disillusioned as Montaruli might be, he wasn’t a member of that club. It should have been a bad sign that it was him, but instead I was pleased.

“You’ve done an excellent job in this case,” he said, walking up to my bench.

I stood up.

“I read over the transcripts yesterday,” he went on, “and that’s what I thought. An excellent job. I’ll ask for the sentence to be upheld, but I wanted you to know that I really had to think long and hard about it. Much more than I usually do in cases like this.”

As the judges came in, he gave me his hand, and for some reason his grip conveyed a slight sadness, an inscrutable
nostalgia. Then he turned and went back to his seat, and so he didn’t see the gesture I made, nodding slightly so that my head touched my closed fist. A greeting and a mark of respect, which Margherita had taught me.

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 Macrì.

“There can be no doubt that the witness Avvocato Macrì 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 method. 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
.