One of the most unfortunate aspects of the attorney general’s most recent blunder is that Yorgen Fenech’s lawyers never really got the chance to set the record straight and ‘clear their names’. Speaking of names, you may be wondering why I chose to refer to them as Fenech’s lawyers and not by their actual names. My contention, you see, is this: if they had been anyone else or, more specifically, anyone else’s lawyers, they probably wouldn’t have had any kind of case to answer.

Let’s get a few things straight.

When it comes to the criminal justice system the world over, police and prosecutorial errors are rife and probably account for 50 per cent (or more) of acquittals. At the same time, it is true that Malta and her justice system have never been so heavily and intensely scrutinised by the media and the public as now, particularly when the case under scrutiny involves Fenech and, by extension, his defence lawyers – Gianluca Caruana Curran and Charles Mercieca.

It is a truth universally acknowledged that your case is as good as your lawyer and that, when it comes to criminal cases, a good defence lawyer is one who is trained to recognise prosecutorial errors both before and during a case and then use these to his clients’ advantage to secure an acquittal.

And that is exactly what happened here. I am now referring to the defence lawyers who assisted and represented fellow lawyers Caruana Curran and Mercieca and who succeeded in having them acquitted of private bribery. 

So, while the attorney general might technically have been to blame, credit at the same time belongs to the lawyers who zoomed in on the error and righted it. Errors on charge sheets, summonses, bills of indictment are common enough and are even lost on lawyers and, sometimes, the court itself.

Prosecutorial gaffes rarely capture the interest or imagination of the public and when all runs smoothly the man in the street is really none the wiser.

Indeed, it is only when a certain Fenech stands to ‘gain’ that the knives come out.

Besides, this was not your average glaring error but hair-splitting devil-in-the-detail which, l am almost certain, would have gone unnoticed by your average lawyer and perhaps even one with years of courtroom experience.

Allow me to digress. Twenty-five years ago, on a trip to the US, I remember driving to the mall with my American friend. We entered the parking lot at the same time as another car was exiting. The gentleman in the car signalled that it was full, whereupon my friend prepared to follow him out. But I was having none of it. I insisted that she continue driving in and not take the guy’s word: perhaps he was lying or simply mistaken. She looked at me incredulously, almost as if I was slightly mad.

That snapshot has stayed with me ever since. Indeed, I revisit it often; for while I was the naturally suspicious islander and doubting Thomas, she was the American who took people and things at face value. We did, in fact, go on to find a parking space that day and I was vindicated. Of course, there’s a very good chance that the man had made an honest mistake and there was no sinister agenda. But I wasn’t taking any chances.

While the AG might technically have been to blame, credit at the same time belongs to the lawyers who zoomed in on the error and righted it- Michela Spiteri

So, yes, I can perfectly understand, and identify with, any deeply ingrained mistrust and suspicion. Fast forward then to this case. There has been no shortage of conspiracy theories regarding it. Everyone seems convinced that the attorney general’s ‘mistake’ was deliberate and amounted to prosecutorial misconduct. I, on the other hand, don’t buy it.

If you are a regular reader, you will know that I have a love-hate relationship with our justice system. I am often scathing and critical but, like most love-hate relations, I am fiercely protective of it when everyone else isn’t. Moreover, having worked for seven or so years at the attorney general’s office, I am quite familiar with excessive caseloads, inadequate resources and staff shortages. The mistake, therefore, did not come as a surprise. And, by the same token, I find it hard to believe that it was agenda-driven.

I also know that the attorney general had a choice here. The prosecution could have instituted summary proceedings against the lawyers or opted instead for a more onerous criminal inquiry. They went for the latter. Overkill in other words. But why go for the jugular and then make a deliberate procedural mistake? Unless, of course, the prosecution knew the case would be lost on its merits and saw this as a convenient way of ‘saving face’ while ensuring that Caruana Curran and Mercieca never really got clearance. Or would that be pushing conspiracy theory a bit too far? 

I have read a number of articles which seem to suggest that the presiding magistrate would definitely have found Fenech’s lawyers guilty if it had not been for the attorney general’s mistake because money was offered. That, I’m afraid, is complete balderdash. That Caruana Curran offered money to journalist Ivan Martin was never in dispute. In fact, it emerged from Caruana Curran’s own statement and was actually one of his and Mercieca’s lines of defence.

More to the point, the offence of bribery requires clear proof of a quid pro quo (something in exchange for something else). But not every quid pro quo amounts to a criminal offence. Questioned under oath, Martin made it clear that neither Caruana Curran nor Mercieca had asked him for anything in return for payment.

It’s all very well to speculate. Everyone, it goes without saying, is entitled to his opinion whether or not this was an attempt at bribery. But to suggest that the magistrate herself pronounced on the merits here is not only sinister and unfair but also manifestly false.

Conclusion: there is a marked difference between the court of public opinion and a court of law.