A Fine Line (8 page)

The statements of an indirect witness require corroborating evidence; the statements of someone who has turned state's evidence require corroborating evidence. The statements containing the indirect testimony of someone who has turned state's evidence (which therefore do not report facts directly perceived but only
heard about
) require twofold corroborating evidence, even in the custody phase.

Whoever had written that ruling, a woman, was a competent magistrate – although a little verbose. I thought, as I often do, that the same concepts, for which hundreds of words had been used, could have been summed up in a few sentences. More or less like this: you first of all have to work out if the person making the accusation is intrinsically reliable (that is, if he isn't an obvious liar or if his statements aren't patently contradictory and implausible), then you have to see if there is corroborating evidence to confirm these statements. The need for corroborating evidence is even stronger if the statements are hearsay and not based on direct personal knowledge. The end.

Jurists, with rare exceptions, are unconsciously and tenaciously averse to clarity and brevity.

Having defined her methods, the judge addressed the question of Capodacqua's intrinsic reliability. His story – she wrote in her ruling – was consistent, devoid of contradictions, with accents of sincerity (I wondered for a few moments how it was possible to identify the “accents of sincerity” in statements you haven't heard for yourself and that you read only in the bureaucratic summary of a transcript) and no reasons emerged as to why Capodacqua should have lied and made false accusations.

Having therefore clarified that Capodacqua appeared
intrinsically
reliable, the ruling went on to examine the so-called objective, or external, corroborating evidence.

This examination hadn't produced very inspiring results: reading between the lines, it was clear that the judge hadn't much liked the way in which the Prosecutor's Department had conducted the investigations. The phone taps carried out on Larocca's landlines and mobiles had not shown anything substantial. According to the records, there had only been two contacts between Larocca and Salvagno, but it was an element – so the ruling said – devoid of unambiguous significance. Firstly, the contacts had taken place at a period of time different from that of the presumed corruption; secondly, the two of them, according to what had been reported by Capodacqua, were friends and therefore there was nothing strange in the fact that they sometimes (sporadically, in any case) communicated by telephone.

The investigations into Larocca's bank accounts and assets had not highlighted any unusual cash flow. Larocca took his salary, had shares in a quantity that was entirely compatible with his income, and owned the apartment where he lived. Nothing abnormal there.

The only element classifiable as corroborating evidence in a technical sense was the statement of Nicola Marelli, Avvocato Salvagno's office clerk, the person who, according to Capodacqua's statements, had handed over (without knowing the contents) the envelope containing the fifty thousand euros. The ruling quoted extracts from the transcript of Marelli's brief statement to the prosecutor in Lecce.

        
ANSWER:
I have worked for more than ten years in the office of Avvocato Corrado Salvagno, who unfortunately died last year as the result of a road accident.

        
ANSWER:
It is a group practice and I have continued to work there, with Avvocato Salvagno's partners, since his death.

        
ANSWER:
As far as I know, Avvocato Salvagno and Judge Larocca had been good friends for a long time.

        
ANSWER:
I did not spend time socially with my employer, so I could not say with any certainty how often, and under what circumstances, he saw Judge Larocca. I remember that the judge was sometimes a guest on Avvocato Salvagno's boat, occasionally for trips lasting a few days. I think they sometimes met for dinner but, I repeat, I am not in a position to supply details on these meetings.

        
ANSWER:
Every now and then, over the years, I delivered packages from Avvocato Salvagno to Judge Larocca. They were mostly Christmas presents, and I delivered them to the judge's home.

        
ANSWER:
I deny having ever delivered envelopes or documents of any kind to Judge Larocca. Whenever I had to file papers of relevance to the appeal court on behalf of Avvocato Salvagno, I would go to the clerk of the court's office and definitely not directly to the judge.

        
ANSWER:
I cannot say for certain that I delivered packages – mostly bottles of wine – to Judge Larocca only on the occasion of the Christmas holidays. It is possible it happened on other occasions. In fact, now that you draw my attention to the circumstance and urge me to remember more clearly, I am able to say that it definitely happened. One of Avvocato Salvagno's clients is a producer of excellent wines. Sometimes bottles of wine came into the office and Avvocato Salvagno told me to take some to Judge Larocca, who is apparently a lover of good wine.

        
ANSWER:
Avvocato Salvagno would give me ready-wrapped packages and tell me to take them to the judge's apartment. Sometimes I left them with the porter, sometimes I delivered them to the judge personally.

        
ANSWER:
I do not know when the last time I made a delivery to Judge Larocca was.

        
ANSWER:
I am aware that you are urging me to make an effort to remember more clearly, in particular if I made any of these deliveries between the month of June and the month of July 2008, that is, a few months before the death of Avvocato Salvagno. I cannot rule out the possibility that I made a delivery before the summer holidays, but I cannot be more specific than that.

        
ANSWER:
I think I made that delivery to the judge personally, in other words without leaving the package with the porter.

        
ANSWER:
Handing over the package, I said it was from Avvocato Salvagno. The judge thanked me. He seemed to know that the package was going to be delivered.

        
ANSWER:
I did not deliver any envelope.

        
ANSWER:
I cannot rule out the possibility that the package contained an envelope, but I do not know because I was not present when the package was wrapped.

        
ANSWER:
Now that I remember more clearly, I can confirm that from the way the judge received me I had the impression he was waiting for me.

Nicola Marelli's statements – wrote the judge – constituted a small corroboration of Capodacqua's statements, but were “insufficient in themselves to prove to any acceptable degree the truth or otherwise of the accusation of corruption”.

Continuing her ruling, the judge now clarified her thinking by summarizing its essential points. Capodacqua was reliable when he reported Ladisa's confidences. It was likely that Ladisa had given Avvocato Salvagno the sum of one hundred thousand euros in the belief that half of that sum would be used to bribe the judge. And it certainly couldn't be ruled out that the fifty thousand euros really had been paid to Larocca as payment for Ladisa's release. But nor could another hypothesis be ruled out, which allowed for an alternative explanation of the evidence and prevented the granting of the requested custody order: Salvagno might have been influence peddling.

No element to support the accusation – in fact, rather the opposite – emerged from an examination of the ruling, later confirmed by the Supreme Court, with which the appeal court under Larocca had overturned Ladisa's sentence and ordered his release.

Such a ruling did not present any evident anomalies, appeared well argued, although perhaps a little too formalistic, and in any case, as already stated, had been confirmed by the Supreme Court.

Even an examination of this ruling did not produce any elements to corroborate the accusation of judicial corruption and therefore,
as things stood,
the petition had to be rejected.

*

When I'd finished reading, I stopped to think.

It was a correct ruling, and all the more admirable when you realized that the judge wasn't at all convinced of Larocca's innocence. On the contrary. Reading between the lines, I had the impression she was saying: If I had to – or was allowed to – base my decision purely on my own intuition, on my inner conviction, I would gladly grant the petition for a custody order. Since, however, I am required to observe strict rules on the evaluation of evidence, I can't do that. Not today, at least –
as things stood
: there was a menacing undertone in those words at the end of the ruling.

All right, I've exaggerated a bit, but that was pretty much the impression I got from reading those papers. And, paradoxically, that impression made me even more nervous than I would have been if the ruling had ordered my client's arrest.

There are times when hints of suspicion feel much more unpleasant than things that have been openly declared, whether real or presumed. At this point, all I could do was call Larocca and ask to meet.

Or rather, to be more precise, at this point all I could do was throw myself into bed, seeing that it was now late and my eyes were clouded by the exhaustion of a rather intense day and the bourbon that had concluded it. I would phone Larocca the following morning.

As I tossed and turned between the sheets, a troublesome thought occurred to me. If I met that group of boys in three or four years' time, they would slaughter me.

Time was on their side.

The last image I had before I fell asleep was Annapaola, with her baseball bat, moving with nonchalant elegance.

It's funny when a man feels safe because he's physically protected by a woman.

11

I woke up quite late. It was Saturday: I had to call Larocca and I really didn't feel like it. I looked for every possible excuse to put it off. Shower, shave, breakfast, reading the news online, meticulous checking of a few pointless emails. I thought of having a chat with Mr Punchbag, but he's not really a morning person. So I decided to look at the local news, just in case they mentioned a night-time brawl in Via De Giosa in which a few kids had got hurt and that a police investigation was under way to identify those responsible. I didn't find anything, and felt somewhat relieved. The last thing I needed was to find myself being investigated for aggravated assault and grievous bodily harm.

In the end, having run out of excuses, I phoned. It only rang twice, but the voice that answered wasn't Pierluigi Larocca's.

“Hello?”

“Good morning, Avvocato Guerrieri.”

“I was looking for Judge Larocca. Who am I talking to?”

“This is Manfredi. The judge left me his phone because he's in the lecture theatre for the seminar.” Then he added, in a tone of apology or justification: “He asked me to answer if there was any call for him.”

He was a clerk of the bar association, and he spoke as if I should have known what seminar he was talking about.

“I'm sorry, Manfredi, what seminar is that?”

“The seminar for the postgraduate students. Wait, let me read you the title: ‘Ethics and roles in criminal trial procedure.' Judge Larocca's lecture will be starting soon.”

I decided to go. I would tell Larocca what I'd found out when he finished his lecture or if there was a break in proceedings. It seemed to me a less disagreeable way to communicate such unpleasant news. Of course, I told myself, it would have been even more unpleasant if the examining magistrate hadn't rejected the custody petition, but I didn't suppose it would be amusing, for a man whose job was concerned with other people's freedom, to find out that someone was trying to deprive him of his.

I put on a pair of jeans, a blue shirt and a blue casual jacket. I chose rubber-soled shoes that were maybe a little garish, and didn't bother with a tie. I hesitated for a moment, then told myself: This isn't a hearing, it's Saturday, and anyway, who cares?

As usual, it took me exactly a quarter of an hour to cover the distance between my home and the appeal court, on the sixth floor of which the bar association has its offices. Sometimes the obsessive predictability of my movements, their times and rhythms, feels oppressive. It's as if my life is like the sum of the routes taken by the ball in an old pinball machine. You had the feeling at first, if you were not expert at the game, that there were a lot of possibilities, accidents, surprises. Then as you continued playing – maybe it was a pinball machine in the bar near your home, or at the seaside, or in the pool hall near school – you realized that the routes repeated themselves. You got to know them all, and after a while you didn't want to play on that pinball machine any more and went to find another. Finding a new and different pinball machine would be the right cure, I told myself, dismissing the subject from
my mind as I got into the lift that would take me up to the bar association.

The lecture theatre was quite crowded and all the seats were occupied, except those in the front rows, to which I'm incontrovertibly allergic and so didn't even consider.

At the speakers' table were the head of the bar association, Larocca and a cadaverous-looking man I didn't recognize. Glancing at the posters for the event, on both sides of the door, I learnt that he was a professor of judicial administration I had never heard of before. He would have been perfect at the reception desk of an undertaker's.

Larocca must have started just a few minutes earlier, because he was still at the preliminary stage of thank-yous and pleasantries.

I looked around. Most of the seats were occupied by trainees and young lawyers. There were also a few old workhorses who were there to be noticed by Judge Larocca and to congratulate him immediately afterwards or in the succeeding days for his wonderful lecture. Whatever he said.

There weren't many magistrates present, and those who were had the embarrassed air of people who have ended up somewhere by mistake and now don't know how to leave without being noticed. A colleague of mine who was part of the bar association and whose name I could never remember – Tommaso or Lorenzo? – appeared at my side, a fine fellow who had inherited an excellent practice but was genetically incapable of understanding the law. “Hello, Guido, what on earth are you doing here? We don't usually see you at these events.”

“Hello. I had to go to the secretariat for some information, and I saw that this meeting was on. It sounded interesting, so I thought I'd stay.” I didn't think it was appropriate to
inform him of my professional relations with Judge Larocca, let alone the nature of the latter's legal problems.

“Whenever you need anything from the association or the secretariat, just call me and I'll see to it. Not that I'm not glad to see you. Quite the contrary. You get my drift, of course?”

“Of course, thank you, you're very kind,” I said, hoping he would stop there.

“Guido, you know the respect and friendship we feel for each other. If I could do you a favour, I'd be more than happy. But what happened to your face?”

A street fight: I smashed a few heads, but took a couple of blows too. Now I'd really appreciate it if you could piss off. If you don't, and keep talking, I'll headbutt you. Keeping in mind the respect and friendship we feel for each other, of course.

I didn't say that. I nodded and replied that it was nothing, I'd fallen off my bike and grazed myself. Then I smiled, trying to convey, in a single expression, respect and friendship and an urgent request to go away and leave me in peace. It must have worked because Tommaso-Lorenzo gave me a slap on the back and told me he'd leave me to follow the lecture. Result.

In the meantime, Larocca had started his presentation.

“For lawyers as for magistrates, identifying – and respecting – the rules of ethics requires before anything else an effort of intellectual honesty.

“When we observe the world of criminal justice without allowing ourselves to be misled by rhetorical and moralistic prejudices, we discover some disturbing truths. We have to take these truths into account if we want to interpret our respective roles in an ethically correct and unhypocritical way.”

I noticed he had some papers in front of him, but he barely looked at them. He simply turned one over at regular intervals and glanced quickly at the one underneath.

“The first disturbing truth is that very often – certainly in the vast majority of cases – defendants, regardless of the constitutional presumption of innocence, are wholly or partly guilty of the crimes with which they are charged. Of course, some are innocent, but they're a minority.”

He made a studied pause and looked around at his audience, who were hanging on his every word. The argument was deliberately provocative, although basically true. Larocca was a good orator.

“Both magistrates and defence attorneys are aware of this truth, even though, for different reasons, they often deny it or don't admit it. One of these reasons is a defective or hypocritical understanding of the presumption of innocence as defined in article 27 of the Constitution. A criminal lawyer who makes his living from that work and who maintains that most of his clients are innocent is either a liar or a fool. And if you'll allow me a little personal digression, there are few things that annoy me more than certain lawyers who babble on about their clients' innocence as if they feel uncomfortable with their role, or as if they think that all judges are stupid. Not that I'm saying that the group to which I belong is immune from the virus of stupidity…”

Another pause, underlined by an expression of false innocence – almost a grimace – to allow his audience, composed mostly of lawyers, to enjoy the joke. Some laughed, some exchanged a few words with their neighbours: they felt united in the healthy complicity of the intelligent against the stupid. Those who feel this solidarity most strongly are the most stupid, I thought. The joke, in any case, was classic
Larocca. It spoke of his contempt for the incompetence and trickery of some of his colleagues.

The murmur died down and he resumed.

“The work of the criminal lawyer consists, mostly, of representing guilty defendants – guilty, often, of serious and repugnant crimes – and of trying, by all legitimate means, to get them acquitted. I repeat:
representing guilty defendants and trying, by all legitimate means
,
to get them acquitted
.

“If that is the case – and it is – it's necessary to understand how the work of a lawyer can be compatible with ethics. And not just the work of a lawyer, but the work of a judge too, for even the work of a judge – and this is something we often neglect – can be sensitive from an ethical point of view. We should never forget that judges have other people's freedom in their hands and, consequently, often their lives, too. It's an aspect that should fill us with dismay and yet we take it for granted.

“Our problem, therefore, is twofold: how to admit the ethical legitimacy of defending someone guilty of terrible crimes, and how to admit the ethical legitimacy of one person depriving another person of his personal freedom.

“Where do we locate the ethical legitimacy in these two problematic spheres? Where do we locate the single idea of justice that we can all share without being influenced by the diversity of our moral standpoints?

“We locate it in the rules of procedure. The rules of procedure and our respect for them are the only way to see that
justice
is done. Basically, there can be no real justice outside a respect for the rules of procedure.

“The judge and the defence attorney mustn't let their personal beliefs and their moral frame of reference interfere with their work and the respective choices they make. The only shared and shareable common ground is that of
the rules of procedure, which judges must make sure are observed without worrying about the consequences, and which lawyers must respect without worrying about the consequences.

“You don't like what I'm saying? You'd prefer a more romantic idea of justice? So would I, but unfortunately such an idea is often a rhetorical device, and it's often precisely those who talk about it the most who are the least interested in obtaining it. Often those involved in the proceedings aren't interested in getting justice. They're thinking about other things, because they're human beings.

“Defence lawyers don't want justice. In other words, they don't want the guilty to be sentenced or amends to be made to the victims. They want to win cases. And I add: they're right to do so, because that is their role in the mechanism, in the overall picture. If defence lawyers didn't want to win cases, defendants would be deprived of real protection, and in particular innocent defendants – however few of them there are – would be at greater risk of being unjustly sentenced. When a defence lawyer says he wants justice to be done, he's almost always lying, consciously or unconsciously.

“You know the old joke about the lawyer who's just won a difficult case, phones his client and tells him that justice has triumphed. Without hesitation, the client replies: Never mind, we'll appeal immediately…”

Again a few laughs, a few murmured exchanges. I noticed that I, too, was smiling. It was an old joke, but the kind that endures because there's an element of truth in it.

“The defendants don't want justice, they want to be acquitted. The defendants' counsel don't want justice, they want their clients to be acquitted.

“And now I'll say something that's a bit hard to take. Even prosecutors don't want justice. But – except in a few rare cases
of clear bad faith – they don't know it. They think they're pursuing justice, but they often confuse the idea of justice with a sentence passed on a defendant they consider guilty. And since for many of them, a sentence passed on those they consider guilty
is
justice, they're ready to accept, to ignore, or even to cover up the breaking of the rules of procedure, which if followed might lead to the acquittal of a defendant they consider guilty, especially if it's of a serious crime.”

It struck me that if I were a prosecutor, one of the good ones I knew and who behaved impeccably, I'd have been annoyed to hear a statement like that.

“You might object: at least judges are interested in seeing that justice is done. They haven't – they shouldn't have – any interest in one result rather than another. Unfortunately, things aren't so simple.

“Do you have any idea how many rulings by examining magistrates that I have to deal with as head of the court of appeal are a copy – without a single word changed, without a shred of genuine argument, without a shred of critical control – of the prosecutor's petition?

“Does a judge who copies a prosecutor's petition word for word, even leaving in the occasional grammatical error, want justice? Maybe he's only trying to do as little work as possible. Or maybe he feels he's on
the same side
as the prosecutor and the police. Maybe he's convinced that his job is to get rid of criminals, or presumed criminals, rather than guarantee that the rules are respected.

“Does the judge who realizes he's made the wrong decision, but argues it in the most nit-picking way possible because he doesn't want his rulings to be thrown out on appeal or overturned in the Supreme Court, want justice or is he thinking of his career? Is his own narcissism the dominant factor?

“I could give many other examples, but I think you get the idea. The members of each of the groups working in the criminal courts are convinced, often in good faith, that they're pursuing justice, but it's an optical illusion.”