| Posted: Thu Dec 06, 2007 10:04 pm Post subject: The Theory of the Crime............beachy |   |
| First of all, I should like to say that I do not see the reason for all the pessimism on here about whether or not this case will ultimately be resolved. What's wanting at the moment is for the letters rogatory to be delivered and approved, and I have no doubt they will be. The UK has a Mutual Legal Assistance Treaty (MLAT) with Portugal, so failure to approve the letters rogatory would not just be a legal decision negative to the PJ, it would mean reneging on a treaty obligation to an ally, something I think the British government (any government, for that matter) would be extremely loathe to do no matter how much support there is within Gordon Brown's government for the McCanns; unilateral abrogation of a treaty is a very, very serious matter in diplomatic terms. If Jacqui Smith does not approve the letters rogatory, good luck next time a not-yet-charged British embezzler or murderer flees to Portugal, and the government knows it.
I have been posting for several days now that I believe the interviews will take place in Britain late next week at the earliest. I now believe it might be sometime the week following, and even that would be lightning speed for what is usually a slow diplomatic process, but never fear, they will take place.
So why are the PJ coming? Is this a last-ditch attempt to salvage the case based on "failed" forensics? In my opinion, no. It was always inevitable that they must do this, no matter the results of the forensic tests.
Why, you may ask? If there had been a 99.999999% match between Madeleine's known DNA and the material found in the boot of the hire car, would the McCanns not have been charged already? No.
One cannot just hypothesise the theory of a crime when asking for charges to be laid in a disappearance/possible death case. Suppose the forensic analysis had establish that Madeleine's DNA had been found in the boot of the hire car, and that such DNA was contained in "corpse fluids." That would mean that, well, a dead Madeleine was hauled about in the hire car. How did she die, and who was responsible? The DNA would tell you nothing about that.
What would be the charge, and who would one slate for it? Was her death an accident? Did someone strike her in anger, perhaps not intending to do any serious harm but knocking her down in the bathtub or into a piece of furniture and accidentally killing her (which would constitute manslaughter)? Or was it premeditated (least likely of all theories, in my opinion, but one that would be wide open if there was a corpse in the boot of the car)?
And who would one charge? Kate McCann? Gerry? We know that the McCanns were away from Portugal for several days at a time last summer after hiring the car, and that many people could have had access to it, especially if they left the keys to the car in PDL during periods whilst they were away. One would not have had to be on the rental contract as an authorised driver in order to use it. Against the rules and all that, but if one has a body to hide, breaking the rules of a hire car company would be the least of one's worries. There have been reports in the press this week that Russell O'Brien may have been in Portugal and had access to the car whilst Jerry and Kate were away around 10 June. We also know that other friends and relatives were constantly about the villa. There are a plethora of people who could have put Madeleine's body in the car, not just her parents.
My point is this: In order to establish exactly what happened to Madeleine in PDL that night, the PJ have to conduct more interviews. I am sure they are hoping for an outright confession, or that one of the tapas 7 who witnessed something will break ranks and tell. It might be possible to formulate a theory of the crime from testimony obtained in the re-interviews even if no one admits anything, depending on what they already have in the way of evidence and statements that can be laid out and compared against any glaring inconsistencies. We shall see about that, but in the event, absent a confession or a willing witness, it was always going to be necessary to do additional interviews in this case in order to determine what happened to Madeleine that night in Portugal.
Even if Madeleine's body should be found tomorrow with, say, a fractured skull or broken neck, the legal/law enforcement dilemma would be the same. How did it happen, and who is responsible? Sometimes a victim will fight a perpetrator so that DNA is found under the victim's fingernails, or some other evidence, such as fibres from the perpetrator's clothing, are found on the victim. That is either unlikely or easily explained away if the perpetrator is a family member, caretaker, or someone else known to the child, so even finding a body might not do them all that much good.
My personal belief is that the PJ probably have enough forensic evidence to prove that Madeleine is dead. If the DNA from the hire car is, as we have heard so often, an 80 or 88% match to Madeleine, if it was found in the tyre well or some other place in the car where accidental transfer would be highly unlikely, if it is possible to examine hairs found in the car and establish that they are a match to Kate McCann's mitochondrial DNA and appear under a microscope to have come from a dead person, that with along with the cadaver dog alert (admissible in Portugal, apparently, if a trainer can testify as an expert witness) should be enough to prove beyond a reasonable doubt that Madeleine is dead, in my opinion, even absent any other evidence which the PJ have that we do not know about.
This is why I say that, in my opinion, it might be simpler to just charge the McCanns with neglect resulting in death, which if I understand correctly carries a sentence of up to 10 years in prison in Portugal. I should think that if that were the charge, it would not be necessary to prove HOW Madeleine died, merely that she is dead. If press reports are correct and the investigation has established that the children were left alone for several hours per night on several consecutive nights, and if reports from yesterday were correct that there is CCTV evidence indicating that not all the alleged checks on the children were made, that should be by far the easiest charge to prove.
The question has been raised on this forum, what would happen if the McCanns were charged with neglect now and Madeleine's body were found later, along with evidence that indicated something like manslaughter? I do not know what Portuguese law is on double jeopardy. My sense of it is that if anything relating to Madeleine's death is a part of the charge now, jeopardy would attach and more serious charges could not be laid later. But personally, I do not believe that is really a problem, for the following reasons:
(1) Child neglect resulting in death carries a penalty of up to 10 years in prison. I do not know the penalty for manslaughter in Portugal, but I doubt it is any more than that.
(2) The objective here, in my opinion, is justice, not crucifixion. I do not believe that Madeleine was deliberately killed by anyone. A penalty of 10 years, or whatever part of that a panel of Portuguese judges decided was adequate punishment, should be sufficient to achieve the ends of justice.
(3) There could be other charges, such as making false statements to the police and improper disposal of a corpse, which might also be laid.
(4) I think it would be to the advantage of everyone to have this whole tragic business over. The PJ, who have spent endless amounts of time and money on it, doubtless have plenty of other crimes to keep them busy; every law enforcement agency in the world does. If the McCanns and/or others are charged and convicted, the sooner the better, I say, so that they can pay whatever debt it might be determined that they owe to society and start to rebuild their lives. The tapas 9 have amongst them 7 very small children. For all sorts of reasons, but especially for them, this needs to be over.
Just my opinion . . . | |
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