The Motivation of the Appeal Sentence: a Summary (Part 1 – M. Stucchi)

Note. The Motivation of the Appeal Sentence is written in a rather technical language, which makes it very difficult to be understood in some details also for Italians, and to be summarised and translated in English (much more with respect to the First Trial Motivation Sentence). Apologize for the poor English. Bold is from the Motivation.

The full text of the Motivation has been made available on February 9, 2015. It consists of 388 pages (less than the half of the first degree sentence), to be found here

https://tegris2013.files.wordpress.com/2015/03/appello_compl.pdf  (care,  180 MB), or

It contains:

Part 1
• a summary of the first degree sentence  (p. 1 – 61)
• a summary of the civil parts statements (62 – 68)
• a summary of the defendants statements (69 – 164)

Part 2
• the decision core (165 – 176)
• the analysis of the 31 March 2009 meeting (176 – 215)
• how the experts communicated (215 – 222)
• how the news of the meeting were spread by the media (222 – 233) and the conclusion that the six defendants are not guilty, while one is not.

Part 3
• the position of De Bernardinis (233 – 270)
• the analysis of which victims have been really affected by De Bernardinis’ interview (270 – 382)
• the assessment of  De Bernardinis’ sentence (382 – 388).

As mentioned in the previous post, the main points for the acquittal of six defendants (the decision core) are:

1) the meeting of 31 March 2009 was not a meeting of the MRC – Major Risk Committee (contrary to prosecutor and first trial judge). Four defendants (Barberi, Boschi, Calvi, Eva) were members of the MRC; De Bernardinis took part in the meeting as deputy head of Civil Protection Department (CPD); Selvaggi was invited by Boschi and in the minutes he is referred as “accompanying person”; Dolce took part in the meeting as director of the Seismic Risk Department of  CPD. There was no legal number of participants (ten); it was a meeting of “investigation” which the head of CPD can ask to the MRC. In the absence of any deliberation of the meeting, the contribution of the defendants has to be evaluated separately;
2) the goal of the meeting was assessed by the letter which called the meeting (“a careful analysis of the scientific and civil protection aspects of the earthquake sequence ongoing in the L’Aquila area since four – 4 – months”) and not what contained in the press release of Civil Protection, later amalgamated into the allegation by prosecutor and first trial judge). The participants – with the exception of De Bernardinis – had no knowledge of such press release; therefore they did not take over the charge of informing the population (as stated by the prosecutor). According to the law, only CPD is responsible for doing that;
3) the evaluation of seismic risk, in the course of the meeting, was performed according to the best possible science. The first trial judge is wrong when criticizing the method and not the content of such evaluation. In particular, the Court remembers that the first trial judge did not explicitly prosecute the defendants for failing forecasting the earthquake, for failing evacuating the city or releasing an alert, for reassuring the people. The  Court observe that the defendants performed correctly, as in no way it was possible to assess that the earthquake risk was growing in the area;
4) finally  (and most important), the defendants did not reassure people. The telephone call between Bertolaso, head of CPD, and Stati, responsible of the regional civil protection, explains that Bertolaso was worried about the announcements by Giuliani of impending earthquakes and the press release by the regional civil protection assessing that “no earthquakes of any size is expected“; the defendants were not aware of such a call.   The contents of the meeting were not delivered to the citizenship through the minutes of the meeting itself, but only through an interview to Barberi and one to De Bernardinis, only one fragment of which still exists. The Appeal court does not find that such interviews contain reassuring words;  they are coherent with what said in the meeting.
5) On the other hand, the Court finds that the De Bernardinis interview, although released BEFORE the meeting, reports wrong scientific statements (the reference to “energy discharge”) and violates the duty of precision and care which should inspire the risk management. Moreover De Bernardinis failed to stress, during such interview, that he was speaking for himself, as Deputy Head of the Civil Protection, and not as a speaker of the scientists meeting.

The analysis of the 31 March 2009 meeting deals with the above topics, although more in detail.
In particular, with respect to the “energy discharge” statement, the Court states that no defendants mentioned it in the way it was then supplied to the public as if it was coming from the scientists. Therefore, the statement of the first trial judge that this topic was the background of De Bernardinis interview has to be considered wrong. Moreover De Bernardinis, in the interview release after the meeting – although probably not broadcasted – did not repeat such statement.
Attention has been given to what said by Calvi that “damage can be expected to the most fragile structures“, because the first trial judge states that this was “macroscopically wrong” from the communication point of view, and had a reassuring effect on the citizens (without explaining – says the Court – how such statement could have reached them). This statement should be read in the context of the discussion, concerning the effects of the ongoing sequence.

At the end of the meeting the regional civil protection responsible Stati said “many thanks to your issues, which allow me (!) to reassure the citizen through the media we are going to meet soon“. This is the core of the assumptions of the first trial judge concerning the “reassuring goal” of the meeting. In the press meeting Stati did not mention the experts meeting and announced that emergency plans (including the decision of starting 24h emergency services) were ready. When listened as witness in the course of the first trial (2011), Stati made different statements; the first trial judge adopted them instead, because more favourable to his thesis. As for the L’Aquila mayor, Cialente, the next day he formally asked for the emergency to be declared. As a conclusion, the Court says that all defendants stressed the high risk of the area, that a strong earthquake could not be forecasted and that the earthquake sequence could not be assessed as a precursor.

Then the Court stresses how the first trial judge concentrates his accusation around “the failure of assessing the risk” which, according to the allegation, was  performed in a “approximate, generic and ineffective way”. The courts finds that such concepts are not familiar with the law. The judge should verify the results, not the method used. This shows, according to the Court, that the judge is looking “ex post” (after the event) for a rule which could have been “broken” by the defendants, contrary to the ordinary legal procedures. According to this hypothesis, the first trial judge has devoted himself to the – unnecessary – check of the scientific procedures of the defendants. With this inspection the judge assigns to the experts duties which are of the Civil Protection and the MRC. The Court disagrees.
According to the Court, the core of the problem is, whether on 31 March 2009 “it was possible, and therefore due, to assess that the earthquake risk was increasing, in an area where it was already high”. (The court recalls that the first trial prosecutor, and the second trial prosecutor, states that the risk assessment had been performed wrongly; moreover, in a parallel trial (after the first one) for other victims [yes, there have been more trials on the same topic], the judge said that the defendants “failed to warn against the risk increase” (in this trial the evidence of the the causative connection between defendants actions and casualties was not assessed). At that stage, having clear that the quality of the scientific analysis was not a point of the allegation, the problem remains whether the earthquake sequence was to be considered a precursor or not.

The Court stresses that the first trial judge did not use own scientific consultants, but those of the parts of the trial, and he has chosen to adopt the papers by some of them. Then the Court summarizes the contribution of witnesses and consultants (Gasparini, Marzocchi, Stoppa, Mualchin, Kossobokov, Moretti), stressing that most of them have devoted their contribution to the question of the “missing alert”, which is out of the allegation, and among of the duties of the Civil Protection. The Court concludes that the earthquake sequence could not be considered as a sure precursor of a large earthquake.
Similar considerations are discussed with respect to the probability of large earthquakes. In particular, the Court opposes the statement (p. 349 of the first trial sentence) that “the magnitude increase was not a remote possibility“, supporting the idea that the risk was increasing, which does not belong to the allegation.
Finally, the Court discusses the charge that vulnerability and exposure had not been discussed in the meeting. It finds that a theoretical discussion of such themes was insignificant, and that the situation was very clear for the Civil Protection officers who attended to the meeting. Moreover, the Court finds that the reinforced concrete buildings have performed well (only 1% have collapsed, most of them with failures with respect to the building code, according to Decanini and Liberatore).

The last point of this part is devoted to the risk communication.
The allegation explicitly contains this point, with reference to law article which cannot apply  to an expert meeting. The law does not attribute to the MRC and the expert the task of communicating the risk to the public; the Civil Protection has this task. The first trial judge believes that MRC deviated from his task, taking over the responsibility of communicating; this would follow from the content of the telephone call between Bertolaso and Stati. The Court believes that the expert had no communication commitment and they did not communicate; they did not know about Bertolaso’s intention and did not reassure anybody. The evaluations of the experts have been communicated in real time to the Civil Protection officers attending to the meeting who, later, communicated with the media. The meeting was not public (as the first trial judge states): the journalist Colacito, author of the famous interview to De Bernardinis before the meeting, stated that it was impossible to take part in the meeting. The same is confirmed by professors Moretti and Ferrini, of the local university, who were denied the permission to attend. Del Pinto arrived late and stood near the door, a clear sign that he was not entitled to be there. There was no press release and nobody could watch the minutes: that means, that what was said in the meeting was not transferred outside. As for the press conference (Barberi, De Bernardinis, Stati, Cialente), the audio of it is lacking with the exception of a fragment, no newspaper reports it, nor the witnesses. As for Barberi’s interview, the Court finds that the content was coherent with the discussions in the meeting and that it was not reassuring; no witness made reference to it.

Then the Court investigates how the output of the meeting was spread by the media later. It is a very interesting analysis which would deserve a full translation. Such analysis demonstrates the no reassuring message was broadcasted, that the focus was on De Bernardinis interview given before the meeting (and broadcasted as if it was the output of it), and that the citizens and the administrators were very worried. After a couple of days any reference to the meeting disappeared.

So, the Court concludes (p. 233) that the six defendants are to be acquitted because the  “allegation does not stand”.

To be continued with the analysis of  the position of De Bernardinis

 

 

 

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