This column first appeared on Malta Today

Hot on the heels of the “not guilty” verdict in the Yorgen Fenech trial which left (almost) everyone reeling and more conspiracy theories than you can shake your fist at, fresh news emerged which continue to stun an already shell-shocked nation.

It was reported that before the trial started, Vincent Marmara had confirmed under oath during a meeting behind closed doors between the defence and prosecution in front of Judge Edwina Grima that he had accepted to carry out a survey for the defence team, after it was commissioned by Yorgen Fenech’s uncle Ray Fenech. The survey was purportedly to “gauge the public’s perception” of Yorgen Fenech. Marmara claims that the sample of 500 respondents was chosen after their phone numbers were randomly generated.

According to news reports, the questions were about Yorgen Fenech, murdered journalist Daphne Caruana Galizia, the police investigation and the judicial system. Respondents were also asked for their views on the presidential pardon granted to self-confessed middleman Melvin Theuma and whether they believed the mastermind behind the murder had been caught. They were also asked if they believed Fenech had ordered the assassination and what their opinion of the case would be without the influence of media scrutiny.
Once again, the public has been hit between the eyes with astonishing revelations which have led to multiple questions, some of which immediately spring to mind.

1. Did Marmara really use the name “Malta Surveys” a separate company which belongs to Silvio DeBono, when phoning respondents? He claims he didn’t, the parte civile lawyer Jason Azzopardi says he has the names of people who were contacted, who said he did. Either one side or the other is not telling the truth on this very crucial point. The name of another survey company does not just appear magically out of thin air for no reason, especially when it concerns such a hot potato as this particular trial. Apart from the fact that an innocent party was dragged into it, if someone lies about something like this then I would think their very credibility about everything else they say would be immediately shot down.
2. Were the respondents truly chosen at random from among the public, or was the list of potential jurors for the month of July (whose names are openly published in Government Gazette) the ones who were specifically targeted for this survey? This, of course, is the crux of the matter because it is one thing to get a general feel of what the man-in-the street thinks (which is a legitimate tool used elsewhere), but it is a completely different kettle of fish if those who were selected to serve on jury were included in the survey and therefore allegedly handpicked to favour the defence. The question which arose here is one which many, including myself, were repeatedly asking: were those who replied to the survey cross-checked with the people who were eventually chosen as jurors? In his right of reply, Marmara said that he did provide the phone numbers of the respondents and all other information requested by the Court.
3. Should the practice of publishing the names of the potential jury pool be abolished? I think it should. If you google the Government Gazette and list of jurors for any given month, you will find people’s full names, their occupation, and place of residence. In such a highly politicised trial such as this one, even a layperson could easily figure out their political opinions with a couple of clicks on Facebook, especially since so many people on social media are no longer reticent about openly stating their views. In a country where we all know each other and are probably even distantly related to someone who knows someone, narrowing down the list of who the potential jurors were would not really have been that difficult. This also raises the question of whether trials by jury should be discarded in an insular, highly polarised society such as ours, not just in this high profile case, but for all murder cases. After nine years of hearing about this case in the media, I doubt there was any person in Malta who didn’t have an opinion about who was behind the murder of Daphne Caruana Galizia, or indeed, an opinion about the journalist herself. Would judges have returned a different verdict? We will never know.
4. The next, most obvious question is of course: are we questioning the validity of trails by jury simply because the verdict jarred against our own personal opinions and was not what many were hoping for? Would there have been the same outraged reaction had Yorgen Fenech been found guilty? When news of the possible jury tampering emerged, there were many who drew parallels with the film The Runaway Jury, in which an unethical jury consultant uses all means possible to blackmail, profile and manipulate the chosen jurors in favour of his client. This is, of course, a very grave allegation, and in fact the defence has threatened legal action against any further “baseless accusations” against them, although this statement does not seem to have deterred public perception one iota; the comment boards are still replete with speculations about how the jury could have possibly come back with this bizarre verdict. I don’t think this threat was a wise move, as it smacks too much of trying to use a chilling effect to clamp down on freedom of expression and the right of the public to ask questions. On the contrary, the not so veiled ‘warning’ has served to simply rekindle the fire embers once again.

If there was any shadow of a doubt that the jury had been compromised, I would assume that the Judge would have asked for a fresh list of jurors, even if it meant delaying the start of the trial. The statement released on Friday by the defence team pointed out that this is what happened: “the court subsequently changed the list of potential jurors for July as a precaution and asked each person drawn whether they had been contacted to participate in a poll. Each and every single juror whose name was drawn, whether subsequently empaneled or not, replied in the negative. This was done on oath.” Be that as it may, it could also very well be that the representative sample was used during the jury selection stage to accurately profile the demographic of the “ideal juror” who would most likely return the not guilty verdict.

Of course, there is also another possible explanation: that despite all the evidence to the contrary, including the infamous interrogation tape where Yorgen Fenech admitted his collusion, the prosecution simply failed to prove their case against Fenech beyond a reasonable doubt. Instead, it seems the jury believed he had been set up to take the fall instead of someone else (or several others) and should not be punished further.

And yet…having heard it for ourselves, that interrogation leaves no doubt in many people’s minds, including mine, that Fenech should have been found guilty, if not for complicity, at the very least, for criminal association to commit murder. Personally, I can’t imagine one of my good friends, let alone my bosom buddy, talking to me about a murder plot and not going straight to the authorities. Of course, I would like to think none of my friends would be capable of such a thing, but I also know that if they were, I would not want anything further to do with them, and I would definitely not allow myself to be embroiled in some heinous crime. We heard a lot about supposed “friendships” in this trial, but there comes a point when one’s clean conscience has to come first when someone’s life is at stake.

However, as I said last week, we were not the jurors, we were not privy to their deliberations, and we do not know what other aspects of the reams of testimony, or indeed any other factors, were enough to sway their vote. We can only wait and see if the Caruana Galizia family is successful with their appeal of this verdict. Meanwhile I will end this column the same way I ended last week’s column: It cannot be that “no one” orchestrated Daphne’s murder. All those who were behind it, no matter who they are, need to face the consequences for what they did – anything less than that is unthinkable.