That morning I felt good. I knew I had done everything in my power. I was afraid, but it was a healthy fear, not the fear of being caught out, of everyone realizing I was a fake. I was afraid of losing the case, afraid that Abdou might be convicted, but not afraid of losing my dignity. I didn’t feel I was an impostor.
Cotugno spoke for a little more than an hour. He used a lot of adjectives and adverbs and succeeded in saying absolutely nothing.
In the lunch hour I went up to the sixth floor, to the Bar Council. I needed to consult a dictionary to check on an idea that had come to me while Cervellati was speaking. I found the sole employee locking everything up and on the point of leaving, but I managed to persuade her that it was an emergency. She let me into the library, where I quickly looked up what I wanted and made a few notes. Then I thanked her and left.
I would have liked at that point to take a short stroll, but the heat out of doors was intolerable. So I went to the bar, ordered a smoothie and a croissant, sat at a table and whiled the time away.
When the moment came I returned to the courtroom, took off my jacket and put on my robe. Almost simultaneously the bell rang, the door opened and in filed the court. I remained standing as I watched them, arms folded, weight on my left leg. They all seated themselves and so did I. Silence reigned.
“I call on the defence,” said the judge curtly.
I was just getting to my feet when I noticed some of
the court looking at a spot immediately behind me. I felt a gentle squeeze on my left arm, just above the elbow. I turned and saw Margherita. She was slightly out of breath, and there were beads of sweat on her upper lip. She flashed a smile at me, and sat down on my right without a word.
I made a brief pause before beginning.
“Your Honour, ladies and gentlemen of the jury, as the public prosecutor has already said, this trial is concerned with the most horrible and unnatural of crimes. The violent death of a child, with its aftermath of immeasurable, incomprehensible sorrow for the parents of that child.
“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!’
“ ‘Forgive me for asking, but if they are a nuisance, why don’t you call the municipal police, or the carabinieri?’
“ ‘Why don’t I call them? I call them all right, but d’you think they come?’
“In short, Signor Renna – he tells us so himself – does not like the presence of the non-European citizens at Capitolo and in the vicinity of his bar. He would like the strong arm of the law to intervene and move them on, but this doesn’t happen. He is somewhat incensed.
“All this, be it clear, does not mean that he has deliberately told us untruths about Signor Abdou Thiam.
“But setting aside his liking for – or dislike of – ‘niggers’, and his unsatisfied demand for the strong arm of the law to act in some way against these ‘niggers’, has Signor Renna told us the objective truth? Can we affirm beyond any reasonable doubt that the version provided by this witness corresponds to the truth of the actual facts with which we are concerned?
“One element of doubt may be inferred from the little experiment with the photographs, which you will remember. Renna failed to recognize the defendant in a photograph, in fact in two photographs, which you have in the records and can verify for yourselves as to their likeness to the defendant. The very man who is here in court and, above all, the person whom the witness declares he knows well and whom he saw pass his bar that August afternoon.
“Does this mean that Renna invented the lot, that he is telling lies? Certainly not. The fact that he doesn’t like ‘niggers’ and that he sensationally failed the photographic test does not mean that he knowingly lied.
“When he says he remembers that that afternoon Abdou Thiam passed his bar, without his usual bag, walking quickly in a southerly direction, the witness Renna is telling the truth.
“In the sense that he does in fact
remember
this sequence of events and fixes it on that afternoon. To be more precise, he tells us what he believes to be the truth. The really interesting thing – and this introduces us to the fascinating subject of how the memory functions – is that Renna believes that that is the truth, because he
remembers
those events, even if they never happened. Not in the terms of his account.”
Pause. I needed these notions to settle in the minds of the court, and especially of the jury. I made a pretence of rummaging in my notes until about ten seconds had passed. Just time for them to wonder what was coming next.
“Now I want to tell you about a scientific experiment into the functioning of the memory and the mechanism by which memories are produced. A team of American psychologists, at Harvard University I believe, set out to test the reliability of childhood memories. A number of children of nine or ten years old were told a story by their elder brothers or sisters, who were instructed in what to say. The story was that at the age of four or five they had escaped an attempted kidnapping. They were told that they had been in a supermarket with their mother, and at a moment when her attention was distracted a stranger had seized them by the hand and made for the exit. Their mother had realized what was happening, had started shouting and had put the would-be kidnapper to flight.
“The episode had never in fact occurred, but a few months after being told the story the children not only thought they remembered it – and really in a certain sense they
did
remember it – but in telling the story they even added details that were not there in the original version.
“Were these children lying? That is, were they saying untrue things in the awareness of doing so? Certainly not.
“Did these children give an account of things that had really happened? Certainly not.
“It is an acknowledged fact – and one of the most important objects of study in modern forensic psychology – that both children and adults make mistakes about the source of their memories and are convinced that they remember contexts, facts and details which have in fact been suggested by others. Deliberately, as in the case of the experiment I have recounted to you. Or involuntarily, as in many situations in everyday life and also, at times, during criminal investigations.
“On the basis of these considerations we can give an answer to the question put by the public prosecutor in the course of his speech, regarding the reliability of the witness Renna. The public prosecutor asked himself, and above all he asked
you
: what reason did Renna have for lying and therefore falsely accusing Abdou Thiam?