Advocacy on the case ruling already written: 'It cannot be relegated to practice'

A few sheets of paper found by the defence lawyer on the bench, with a guilty verdict already written. It had been reported by lawyer Paolo Cassamagnaghi, who had told of 'a dozen pages resting on the trial dossier', in which 'the sentence of conviction had already been written, the defendant's criminal responsibility was declared and the reliability of the offended person was taken into account'. The defence lawyer's reaction, after a brief informal discussion with the judges of the sixth penal section on what he had seen, together with the defence lawyer's colleague Roberta Ligotti, was to ask for the recusal of the panel called to judge a man under investigationfor sexual assault on a minor.

For Cassamagnaghi, the only thing missing from the sheets was the indication of the penalty, to be inserted in a space left blank. The hearing, which was supposed to begin with the hearing of a technical consultant of the defence, who was supposed to report on the reliability or otherwise of the offended person, began, however, with the defence pointing out that it had forwarded to the fifth criminal section of the Court of Appeal a request for recusal. The judges then declared that they would refrain from proceeding with the trial. At first, the defence had also asked whether those papers could be read out in the courtroom, but they were told no.

The secretary of the Milan Criminal Chamber, lawyer Federico Papa, and the president of the Milan Bar Association Antonino La Lumia, intervened in a joint note on the issue of the document anticipating the verdict and on the recusal of the panel. "Certainly one cannot derubricate what occurred as an operational practice that would not affect the substance of procedural guarantees. The decision must not only be the result of an unprejudiced screening and consequent to the contribution of all the trial parties, but it must also appear to be so". The paper emphasises that 'in the assessment of criminal liability, form is substance and the appearance of third party and independence of the judge in the assessment of the defence's evidence counts no less than its effectiveness. Similarly, one certainly cannot be untroubled just because the procedural mechanism, set up to safeguard those principles, worked, thanks to the accidental discovery of the printout by the defenders".

The trial was assigned to another panel, although the document was considered by the president of the Court of Milan to be a simple written note. "The only guarantee for the future is that the judging bodies remain firmly anchored to those principles, having as an insuperable paradigm the rules of the accusatory process and of the formation of evidence in full and effective cross-examination between the parties," reads the note, "which must be recognised as having equal probative value and, why not, also considering the possibility of being able to change one's mind, always anchored to the principle of reasonable doubt.