“If our defence has in some way unintentionally been lacking in respect for that sorrow, I ask for their pardon.”
The judge looked at me without fondness. He thought that starting that way was just an expedient to curry favour with the jury. I was so sure he thought it that I felt compelled to tell him I knew, and that I didn’t care a hoot.
“It may be thought that this is just a rather shabby way of gaining the sympathy of the court. Or at least of the jury. It would not be absurd to think this, because we lawyers often get up to such tricks. And anyway, everyone is free to think of it as he pleases. Not least because criminal cases are not debated and decided on the basis of the charm of the defence counsel or the prosecutor. Thank goodness. Cases are decided – if I may state the obvious – on the basis of positive proofs. If they are present, the verdict is guilty. If they are lacking – or even if they are merely insufficient or contradictory – the verdict is not guilty.
“We therefore have to ask ourselves on the basis of what criteria we can affirm that the evidence in a case is sufficient, enabling us to convict the defendant, or else insufficient or contradictory, in which event we must acquit him.
“In our consideration of these matters we may confidently start from the manner in which the public prosecutor proposed them.
“The public prosecutor – and I made an exact note of his statement – said: ‘There is a high degree of verisimilitude in the hypothesis that the defendant arrived in Bari from Naples, went on to Monopoli, having already worked out his criminal design in detail, or in the grip of a raptus, or brainstorm, reached Capitolo, probably switched off his mobile so as not to be disturbed, seized the child’ etc. From this ‘high degree of verisimilitude’ the public prosecutor deduces an important, if not indeed decisive, item of evidence – in order to maintain the defendant’s guilt and to ask you to sentence him to prison for life.
“Therefore, to verify how well founded and reliable is the line of argument adopted by the prosecution, we have to ascertain the meaning of the word ‘verisimilitude’.”
I paused, picked up the sheet on which I had earlier made a note in the library, and read: “Verisimilitude, we read in the most authoritative dictionary, is ‘the appearance of being true or real… the likeness or resemblance to truth, reality or fact’.
“And under the heading ‘truth’ we read this definition: ‘conformity to fact; agreement with reality’. And under the heading ‘appearance’: ‘apparent form or look, especially as distinguished from reality’. We also find an explanation of the phrase ‘It looks real’ as being used of something artificial that imitates reality to perfection. What looks real is therefore something artificial, something which imitates reality.
“Do you remember the definition of ‘verisimilitude’? The word used by the public prosecutor? It refers to something that looks true or real, that imitates reality but does not correspond to it. Something, in short, to be distinguished from reality. By using this term the prosecutor implicitly and unconsciously admits that he cannot use the words ‘true’ or ‘real’. You see clearly how in the very words of the speech for the prosecution there lurk its irredeemable shortcomings.”
At this point, as I expected, Cervellati lost his cool and protested to the judge. It was unacceptable that the defence should be permitted to pour scorn on the function of the public prosecutor with cheap sophistical arguments. The judge did not appreciate the interruption and reminded the public prosecutor that the defence could say what it liked, short of personal abuse. Cervellati attempted to add something, but the judge told him, brusquely this time, that he could make his comments on my speech – if he so wished – when the time came for his response. That was that, he said, and he would tolerate no more interruptions. He turned to me and invited me to proceed. I thanked him, carefully avoided making any reference to the interruption, and went ahead.
“What we have said briefly about the meaning of these key words – truth, reality, the appearance of reality – therefore offers us an interesting approach to interpreting the arguments used by the public prosecutor and the psychological premises underlying those arguments.
“A trial, however, is not based on a psychological interpretation of what the public prosecutor says. Neither, in order to verify whether his reasoning is right or wrong, is it based on an analysis of what the public prosecutor has said. Because the public prosecutor might have followed a wrong line of reasoning and arrived nonetheless at correct conclusions. That is, it might be right to pronounce a sentence of guilty. In spite of the public prosecutor’s mistaken reasoning and on the basis of a different, more correct line of argument.”
Cervellati got to his feet, dumped his robe on his chair and ostentatiously left the room. I showed no sign of noticing.
“It is therefore not enough to single out the defects in the prosecution’s argument. We have to ascertain whether the evidence assembled does or does not enable us to formulate a judgement corresponding to the truth. We do not wish to shirk this task. But before we tackle it I wish to repeat one concept.
“It is a concept which I would like you to bear in mind throughout these proceedings and, above all, when you are in camera. To bring in a verdict of guilty it is not enough to say that a certain version of the facts, a certain hypothetical reconstruction of the facts, is likely, or even very probable. You must be able to say that this reconstruction is the truth. If you can do that, then it is right for you to send the defendant to prison. For life.
“The hypothesis put forward by the prosecution in this trial runs as follows: on 5 August 1999 Abdou Thiam unlawfully restrained Francesco Rubino, a minor, subsequently causing his death by suffocation.
“Can we assert, on the basis of the evidence provided, that this hypothesis is true? That is, can we assert that this is a correct description of how events happened in fact and truth, and not just a mere conjecture as to how they might have occurred?”
I paused as if I had lost my thread, glanced down and passed the first two fingers of my right hand across my brow. After a moment or two I looked up towards the bench, still without speaking. There was dead silence. Everyone was looking at me, expectant.
“Let us examine this evidence together. And in particular let us examine the statements of the witness Renna, proprietor of the Bar Maracaibo. To avoid any misunderstandings, I would like to say at once that I agree with the public prosecutor in saying that this witness is telling the truth. Or to be more precise, this witness is not telling lies.”
Another short pause to give them time to wonder what I was aiming at.
“Because a lie is an assertion made in the awareness that it is contrary to the truth, and I am convinced that Signor Renna did not make assertions in the awareness that they were contrary to the truth. In saying that he saw Abdou Thiam pass his bar on just that afternoon, at just that time, Signor Renna thinks he is telling the truth. And in fact he would have no reason to bring false accusations against the defendant.
“To be sure, it emerged from his examination that he has, to put it mildly, no particular liking for the non-European citizens who gravitate towards the area of Capitolo and the vicinity of his bar.
“I want to read you a brief passage from that cross-examination. We are speaking of the non-European citizens whom Signor Renna calls ‘niggers’. Counsel for the defence asks whether these persons interfere with Renna’s custom.
“The witness replies, ‘They interfere, they interfere, and how!’