The pre-trial stage of the prosecution of Yorgen Fenech has been re-opened in response to his final technical appeal before he is tried for complicity in the murder of Daphne Caruana Galizia.

In a hearing a few days ago his legal team unleashed a flurry of distractions, white hot phosphorus aimed to stun, blind, and confuse the unknown people who stand between himself and his objective.

My barber asked me a few days later if he had understood the news correctly: that “it is no longer thought” that Fenech was the mastermind of the assassination. He used the passive voice, giving the statement an anonymous authority, synthesising how a superficial understanding of the reports of Fenech’s defenders might give the wrong idea.

It should not be long before several dozen people are called to jury duty, perhaps my barber among them. They’ll wonder if they’ve been called to hear the trial of Fenech, which they are likely to describe to their relatives inaccurately and perversely as ‘Daphne’s trial’.

They will tell their spouses and children they hope it isn’t that trial they’ve been called to hear because they may be sequestered from their daily lives for an inconveniently long period of time. They will try to craft excuses to dodge the assignment. Some will be secretly excited about the promise of a front row seat at what they might imagine will be spectacular courtroom drama.

Once the final nine are chosen and the identity of the accused is confirmed they’ll be told repeatedly that they must forget everything they’ve heard before about the case. They’ll be told that they must only reach a verdict based on the evidence presented to them in the court room since they were sworn in as jurors.

They will also be told that they are only to find the defendant guilty if they have no reasonable doubts.

Those are the tenets of a fair hearing: whatever conclusions you or I reached or assumptions my barber made before the trial the accused is presumed to be innocent until proven otherwise.

Irrespective of what his lawyers might presume, the white phosphorus thrown about by Fenech’s defence ahead of the trial exploits the weaknesses of that system. They dropped many names suggesting possible candidates for this murder. Daphne had so many enemies, they said.

They dropped the name of Darren Debono, reviving the long-discarded fuel smuggling theory which was peddled with journalists in the early hours of the investigation. They dropped the name of Ram Tumuluri, whose twisted and now proven record of corruption combined with his exotic origins and his manifest absence, make him an ideal candidate for any pulp thriller.

They especially emphasised Keith Schembri, erstwhile strong man of the Muscat government, whose name was at first included in the evidence given by the state’s witness Melvyn Theuma.

Fenech’s lawyers underlined the clues that Schembri may have had a role in the murder conveniently glossing over the fact that all those clues can only be gleaned through a reading of the compelling evidence against their client.

We must accept the circumstances in which we must operate. Fenech is entitled to a fair hearing and that fair hearing depends on the fact that the jurors who will decide his fate begin hearing the case against him presuming he is innocent.

While the evidence against him has already been heard in open court in the pre-trial stages and we all have eyes with which to see and ears with which to hear that evidence, we must still acknowledge that he denies any wrongdoing.

Since hours after the murder, Yorgen Fenech’s friends have been providing alternative whodunnits- Manuel Delia

On the other hand, without eroding the presumption of his innocence, Fenech’s defence may feel unbound by rules of conduct before his trial. After all he cannot accuse himself of prejudging his own case and no one can take away from him any benefit from the confusion of others. He is certainly not restricted from accusing others of the murder he denies having committed.

His objective need not be the conviction of others. His objective would be to ensure that the jurors who will try him, while believing they are hearing his case with an open mind, have sown deep in the recesses of their subconscious doubts in the case against him that they might believe are reasonable.

There are always doubts. Even if you’re in the same room when accused A stabs repeatedly victim B in the face. Doubts when hearing the case against someone who arranged for the killing of someone else through layers of spoken instructions are inevitable. But will they be reasonable doubts?

Fenech will walk, if out of nine jurors hearing his case enough of them allow themselves to be conditioned by inherent prejudices of a regular Labour Party voter. That’s at least half of them. A few of the other half might be politically inclined to wish it was true that the perpetrator of this crime was more obviously political.

A few others, believing Fenech to be guilty might decide to acquit him because they also believe he wasn’t alone. It would be acquittal as protest: sticking it to the man, but not the man brought in front of them. None of these would be reasonable doubts but will the jurors know it?

Since hours after the murder, Fenech’s friends have been providing alternative whodunnits, sowing doubts the prosecution of his case will consider unreasonable. Bent cops briefed the press to look for the perpetrators out in the ocean. Shrill campaigners who earned legitimacy by viscerally criticising Joseph Muscat propagated the theory that multi-millionaire Fenech was but a scapegoat of the real baddies. Labour Party politicians blamed the victim’s children. One person even blamed her husband.

Fenech doesn’t need to know who the nine people trying him will be. All he needs to know is they’ve been alive in the last six years, and they’ve picked on one or more of the conspiracy theories being peddled, even as vaguely as my barber’s TikTok feed. Any conspiracy theory will be a good alternative to the only conspiracy that can lock him up for good, the conspiracy he’s accused of, and which he denies, leading.

It remains to be seen whether Malta’s justice system, including trial by a jury of the accused’s peers, will prove capable to ensure justice.

Independent journalism costs money. Support Times of Malta for the price of a coffee.

Support Us