“Questionable conjectures” and “illogical reasoning” produced a decision which “does not correspond to the reality or the nature of the crime.” That is how Italian legal scholar Nello Rossi explains the conviction of prosecutors Fabio de Pasquale and Sergio Spadaro for their failure to disclose information to Shell and ENI during the trial of the two for paying massive bribes to secure the rights to Nigerian oil tract OPL-245.

Writing in the January issue of a leading Italian law journal (original; translation), the former judge, Deputy Chief Prosecutor, and High Council of the Judiciary member excoriates the November 11 judgement by a trial court sitting in Brescia (here), showing it to be the result of an unprecedented, unrealistic reading of the governing law together with misstatements if not down-right misrepresentations of the facts.

In finding the prosecutors guilty of failing to perform an official act, the court ruled the law requires prosecutors to automatically turn over to defendants all material received from any third-party before or during trial no matter its credibility or relevance. That the two decided to secretly withhold the material, the court said, showed they knew withholding it was a crime. To buttress its decision, the court added that the material’s disclosure would have affected how the judges in the bribery case assessed the evidence.

Rossi’s meticulous analysis of the court’s decision eviscerates each of these contentions.

About the law Rossi says no other court has ever interpreted the official act statute to hold that prosecutors are robots – that they must disclose all material received relating to a case no matter the source, the material’s relevance, or its credibility – citing among other decisions a recent one from the jurisdiction where de Pasquale and Spadaro were tried. Beyond the jurisprudence, Rossi notes the perverse consequences such a reading would produce, allowing defendants to bury the prosecution and the court in an avalanche of irrelevant and possibly intentionally falsified material.

Of the many facts the court got wrong, its assertion de Pasquale and Spadaro secretly decided to withhold the material is the most critical — and flatly erroneous. As the official record makes clear, the two spoke to the head of their office and a senior prosecutor in the office about whether to disclose it. As Rossi writes, their actions represented “an act of absolute transparency. . . and is proof the two did not act with a logic of concealment.” Indeed, it shows the very opposite of acting criminally.

The material itself, documents and a video tape, allegedly undermined the credibility of Vincenzo Armanna, a key figure in the bribery scheme. But as Rossi explains, the veracity and hence admissibility of some of the documents was questionable, not surprisingly given that at the time de Pasquale and Spadaro received the documents a separate criminal investigation was then underway into nefarious efforts to derail the bribery case.

As to the video tape, the trial record in the bribery case shows defendants’ attorneys already had a copy. Moreover, Rossi explains, the presiding judge in the bribery case testified in de Pasquale and Spadaro’s prosecution that he believed “the complete unreliability of Vincenzo Armanna had clearly emerged during the investigation.” The undisclosed material casting doubt on his credibility was thus of no evidentiary import but merely cumulative.

Given the overwhelming evidence they paid a bribe, the acquittal of Shell and ENI in the bribery case followed by the conviction of de Pasquale and Spadaro are two enormous wrongs.

As an earlier post reports, one courageous judge has already taken a step to repair the damage these wrongs have worked on the Italian justice system. Italian citizens and their judges, prosecutors, and lawyers must hope that Rossi’s article leads the appeals court to right the wrong done de Pasquale and Spadaro.