The Measure of Time

by Gianrico Carofiglio

  “At no point in the investigation, let alone in the most delicate phase of this, that of the initial inquiries, was any alternative taken into consideration.

  “The questions asked of the witnesses Montesano and Rafaschieri served to give you a glimpse of different investigative possibilities that should have been examined and weren’t.

  “This explains the fact – although it remains somewhat disconcerting – that the ways in and out of the crime scene weren’t checked. I ask you, without any polemical intent: Does it strike you as justifiable that the possibility of a different way into Gaglione’s apartment wasn’t taken into consideration? Does it strike you as justifiable that a thorough search was not made for possible prints in the courtyard? Does it strike you as justifiable that no attention was paid to the French windows leading to the balcony to see if they were open or closed?

  “And again: Does it strike you as justifiable that no footage was obtained from the security cameras that must have existed in the area?

  “These were checks that were very easy to carry out in the immediate aftermath of the crime. Routine checks in an investigation like this, but which today are impossible. Because today, obviously, any possible prints in the courtyard have disappeared; because today, obviously, the footage from the security cameras in the area has been recorded over, as usually happens.

  “I don’t want to victimize the investigators. I understand the mistake, brought about by the desire to solve an alarming case as quickly as possible. What I wanted to show is that the investigation is not devoid of flaws, of gaps, of avenues of enquiry not followed up and now lost for ever. And it’s precisely in taking account of what isn’t in the investigation that we must ask ourselves if it’s possible to have a reasonable doubt as to the guilt of the accused. A reasonable doubt which means a possible alternative explanation of the evidence.

  “It is therefore time to deal with the fight in the disco called Chilometro Zero. The accused mentions it in his testimony and so does the witness Rafaschieri. It has been said that Rafaschieri’s testimony on this subject is unusable because it violates the prohibition on allowing common rumour as evidence. I don’t think the matter is quite so straightforward. I think the sanction of unusability must be modified on the basis of the principles of favor rei and favor libertatis. Unusability, in my opinion, isn’t an absolute category, but a criterion for protecting the citizen from possible abuses on the part of the investigating agencies.

  “Let’s suppose there was a tapped phone call in the course of which somebody, perhaps even the dangerous criminal with whom Gaglione apparently came to blows, explicitly claims responsibility for the murder. Let’s imagine that this call is unusable for a variety of procedural reasons. If we considered the criterion of unusability to be absolute and completely unchallengeable, we would have to ignore that conversation, even if it proved Cardace’s innocence, and confirm the original ruling.

  “Does this strike you as an acceptable hypothesis or, on the contrary, do you see it in all its frightening absurdity?

  “In reality, I believe that unusability is a sanction intended to protect suspects and defendants. Tapped phone calls that are unusable can’t be used against somebody, but they can, and in my opinion must, be used whenever they contain elements that clear a suspect; this in accordance with the two principles I spoke about earlier, favor rei and favor libertatis, in other words the general rules of the whole system, in the light of which individual rules should be interpreted.

  “If a testimony about a common rumour, in theory forbidden, offers the prospect of an alternative explanation of the facts of a case, if an indirect statement about a common rumour opens the way to reasonable doubt, which is the cornerstone of the system, the principle of unusability must be overruled and the judges allowed to decide for themselves.”

  I paused, hoping that I’d got my message across. Because I didn’t even believe in this argument myself.

  I’d made a leap in logic. There was a significant difference between my example of the tapped phone conversation clearing an innocent man and Rafaschieri’s testimony about a rumour.

  In a hypothetical case like the one I had formulated, any judge, although there might be different nuances in his ruling, would admit the tapped conversation and acquit the defendant. He would do so anyway, however objectively complex the case was to interpret. Any judge would find a way to acquit, because there would be no doubt about the veracity and validity of that conversation, even if the procedure by which it had been obtained was flawed.

  The rules on the unusability of phone-tap evidence protects suspects from unlawful procedures. The rule that prohibits testimony about rumours protects against the introduction of information that’s completely impossible to check and verify. It would be all too easy to weaken or demolish a prosecution case if you could call witnesses who, to give an example, claimed to provide an alibi by saying they had heard a rumour, that everyone was saying it, that it was common knowledge.

  So I was aware that what I was saying had no legal foundation and that, put quite simply, Rafaschieri’s testimony, at least where it touched on the fight in the disco, was worthless. I was presenting this argument to make the jurors reflect on the possibility that there really was an alternative hypothesis, and that not even considering it exposed them to the risk of a grave miscarriage of justice.

  “And in any case,” I resumed, “regardless of what Rafaschieri told us, it was the accused himself who introduced the subject of how worried Gaglione was. Gaglione, who preferred not to leave home because of a fight that had taken place at Chilometro Zero, fearing a reprisal from individuals connected with organized crime. This testimony is perfectly usable. And what it offers us is a possible scenario from which we may conclude that there is reasonable doubt.

  “The Supreme Court has repeatedly stated that evidence must allow for the reconstruction of events in terms of such certainty as to rule out the possibility of any other reasonable solution. On the other hand, it must exclude more theoretical and remote possibilities.

  “What does that mean? It means that in an evidential hearing, and this is an evidential hearing, there is no reasonable doubt if the alternative explanation to that of the prosecution is theoretical or remote. In other words, the validity of a reconstruction cannot be contested with alternatives that are purely conjectural and, ultimately, absurd. Outside such cases, the presentation of a possible alternative solution must lead to a verdict of acquittal.

  “Basically, in evidential hearings, we take the evidence that has emerged from the hearing and construct a story in which everything fits together in a plausible way. We could say: a plausible reconstruction of events that happened in the past. When is a story that reconstructs the events of the past plausible? It’s plausible when it explains all the evidence, without leaving anything out, and if it is constructed according to criteria of narrative consistency.

  “Having established this theoretical and methodological premise, let us see which stories the evidence presented here allows us to construct.

  “The first is that proposed by the assistant prosecutor in her closing statement, which basically follows the substance of the original ruling.

  “In this story, Cardace quarrels with Gaglione over the phone. Soon afterwards he goes to Gaglione’s apartment, armed with a high-calibre revolver – in other words, intending to carry out an act of violence. Before getting to Gaglione’s building, Cardace, even though driven to that act of violence by such intense malice, stops to have coffee with an acquaintance. Having calmly drunk his coffee, Cardace arrives at Gaglione’s apartment, fires several shots at him and walks out, leaving the victim to bleed to death. He returns home, carefully washes his hands, arms, face, hair and nostrils, clearly conscious of the need to remove all traces of gunshot residue in case he is stopped by the police. Then he leaves again, inexplicably – if we consider how cautious he’s been – wearing the same jacket he had on at the time of the murder, goes out f
or a walk and soon afterwards is spotted and picked up by the police. He calmly admits to the officers that he has been to Gaglione’s apartment. He is given the gunshot residue test and this cunning criminal, who’s washed and cleaned his body with such care, is caught because of the gunshot residue left on his jacket, which he’s continued to wear instead of getting rid of it, as would have been normal.

  “Some serious questions as to the plausibility of this story are not only possible, but right and proper. And above all: is this the only possible story that fits the evidence? Or to put it another way: can the evidence we have at our disposal only be explained by this story? If you wish to confirm the original ruling and convict the accused, you will answer this question in the affirmative.

  “What you must ask yourselves, however, is if there are other plausible stories able to encompass in an exhaustive, coherent and uncontradictory way all the evidence that has been presented in this hearing. Because if there are other plausible stories, not merely conjectural ones, you have to accept the fact that the evidential framework is not unequivocal, that there is no certainty in these proceedings, and you will have to acquit according to article 530 paragraph 2 of the code of criminal procedure, which provides for acquittal when the evidence that the accused committed the crime is insufficient or contradictory.

  “Well, in this hearing it is possible to imagine at least two stories, that is, two reconstructions that explain that mountain of evidence. And it is this possibility that requires you to find in favour of acquittal.

  “The second story can be told as follows. Cardace and Gaglione are connected by friendship and by illegal activities. In the hours preceding the murder, the two men quarrel over the phone. The second call, which is very tense, ends with an agreement to meet, partly to avoid talking about certain subjects on the phone. Soon afterwards, Cardace goes to Gaglione’s home and the two of them clear things up, to the extent that Gaglione, almost as a gesture of reconciliation, gives Cardace some specimens of a new kind of pills of a narcotic nature. Cardace leaves, meets Arcidiacono, stops to have coffee with him and gives him one of the new pills he himself received a short time earlier. Then Cardace returns home, where he sees his mother, and stays there for a while. Meanwhile, someone else gets into the victim’s apartment and kills him, maybe having had the intention of merely kneecapping him. Then Cardace goes out, wearing the same jacket he had on in the afternoon, the same jacket he had been wearing a few days earlier when he had gone shooting with a friend of his in a quarry. Soon afterwards the police pick him up and take him to Headquarters. On the car ride there, chatting to an officer he knows, the accused admits quite openly that he has been at Gaglione’s home. At Headquarters, he is subjected to a gunshot residue test, with all that ensues.

  “Is this merely a conjectural story? No. It’s a story that’s possible and even quite likely to an extent. So now we have at least two possible reconstructions in which all the evidence presented during this hearing can be encompassed.

  “I exhort you in this respect not to make a mistake, that of thinking that in order to select the best story it’s necessary to refer to levels of probability: we have two stories, one’s likelier than the other, I’ll choose that one. It doesn’t work that way. The burden of proof being on the prosecution means that it’s not enough for the prosecution to propose a story that’s likelier than the others to obtain a conviction. The prosecution has to propose the only acceptable explanation in order to overcome the hurdle of reasonable doubt.

  “Conversely, for the defence to invoke reasonable doubt and ask for an acquittal of the accused, it’s enough to put forward a possible explanation, an explanation that’s not far-fetched and not merely conjectural.

  “A court hearing aims to reconstruct the facts of the past and has to do so to a very high level of probability, as defined by the evidential paradigm of article 533 of the code of practice: ‘The judge pronounces a verdict of conviction if the accused is found guilty of the crime beyond reasonable doubt.’

  “We are beyond reasonable doubt when it’s not possible to imagine any alternative explanation to that of the prosecution.

  “We are within reasonable doubt when, as in this case, the evidence, all of it, with nothing left out, can be explained in a different way from that proposed by the prosecution.

  “It is not scandalous, as the assistant prosecutor seems to suggest with an appeal to emotion rather than reason, it is the rule as laid down by a justice system worthy of a civilized country, that an accused person, even when there is substantial evidence against them – and nobody disputes that in this case there is – must be acquitted if such evidence does not have one single, unequivocal explanation.

  “You are being asked to decide with your emotions, while it is your task, and your duty, to decide with reason and intelligence. If you really want to imagine a situation, imagine you are the parents, siblings, friends of somebody who finds themselves involved in a terrible case through an equally terrible misunderstanding thanks to an unfortunate combination of circumstances, thanks to shortcomings in the investigation resulting from too much self-confidence or from the hastily formed belief that the right solution has been found immediately. The only possible solution.

  “I could ask you to consider some other things. I could tell you that whoever fired those shots didn’t do so in order to kill. That’s very clear. Whoever fired those shots did so in order to kneecap his victim; the severing of the femoral artery, and the death that followed as a consequence, were almost certainly not the shooter’s intention. I could tell you that the legal definition of this act, whoever committed it, isn’t voluntary murder but unpremeditated murder. An instance, that is, in which the perpetrator acts to cause personal harm and death results from the act as an unintended consequence. I could tell you these things, but I’m not going to. I’m not asking you to consider them. I don’t think it’s right.

  “All I ask is that this appeal court discharges the contested ruling and acquits Iacopo Cardace of the charges of murder and the unauthorized possession and carrying of a firearm, according to article 530 paragraph 2.”

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  Gastoni did not ask to respond.

  Judge Marinelli turned to Cardace and asked him if he wanted to make a statement before the court retired to consider its verdict. Iacopo looked at me and I shook my head.

  “Thank you, I don’t have any other statements.” Then, a moment later: “Except that I’m innocent.” It seemed like an entreaty.

  Marinelli gave a nod that was hard to interpret. “We don’t know how long we shall be deliberating. You may all go. The clerk of the court will call you when we’re ready to come out to pronounce the verdict.”

  I remained on my feet, in my robe, facing the now empty judges’ bench. I was still there when Annapaola joined me.

  “Very good. You almost convinced me.”

  I smiled weakly. “What do you think?” Defence lawyers who’ve just finished speaking in a difficult hearing are like writers who’ve just finished a novel and give it to somebody to read. Desperate for encouragement. Terribly desperate.

  “You did a great job,” she said. “I’d acquit him.”

  Consuelo and Tancredi told me more or less the same thing. I’d done a great job. They thought we had a good chance. Even the fact that the judges didn’t know how long they would be deliberating was positive: they weren’t sure, they had to think it over. It was all good.

  So why did I feel so insecure? So scared?

  I went over to Iacopo, who was waiting for me with his hands gripping the bars.

  “Thank you.” He hesitated. “What’s going to happen?”

  “I don’t know.”

  “Fifty–fifty?”

  “Fifty–fifty, yes.”

  Iacopo nodded.

  “I have to go now,” I said. “I’ll see you later.”

  Lorenza was just outside the courtroom.

  “What do we do now, just stay here and wait for the ver
dict?”

  “Best not to. Go home, try to distract yourself. I’m going too. When the clerk of the court calls me I’ll let you know.”

  “They can’t convict him, can they?”

  I felt like hugging her, but held back.

  “We did what we could. It’s pointless making predictions.”

  On my way out of the courthouse, I told everyone I was going for a walk, left Consuelo the briefcase with the papers, took off my tie and headed for the sea.

  I walked for half an hour, unaware of my own thoughts. And I ended up walking barefoot on the long, deserted beach of San Francesco; I rolled up my trouser legs and went into the cold, very clear water, almost up to my knees. It’s nice that there’s water like this in a city, I told myself, maybe it means something. As I was looking at the slight ripples on the surface of the sea, I remembered a quotation by Elias Canetti that suggested you shouldn’t believe in anybody who always told the truth: “The truth is a sea of grass bending in the wind, it needs to be felt as movement. It is a rock only for those who do not feel it and do not breathe it.”

  I got to the end of the beach, put my shoes back on and continued as far as the pine grove.

  With the passing of time some places in the city – the pine grove is one of them – remind me ever more intensely of feelings and fantasies from the distant past. A time of awe. That’s it: some places in the city make me nostalgic for that feeling of awe. That feeling of being stunned by the force of something. I’d like so much for it to happen again. Maybe awe – if I was capable of learning it – could actually be the antidote to the way time accelerates so unbearably. Time is much more extensive for the young because they’re constantly experiencing new things. Their life is full of first times, of sudden realizations. Time runs faster as you grow older because things usually get repeated. The possibilities of choice are reduced, the ways that are barred increase, until everything appears to be limited to one single narrow path. You don’t want to think about where that path leads, and this produces an anaesthesia in your consciousness. It helps to alleviate the fear of death, but makes the colours fade.