What does the Yorgen Fenech trial say about Malta?

The verdict delivered by the jury in Republic of Malta vs Yorgen Fenech was a punch in the stomach for many well-meaning citizens. More than that, the trial and its outcome constitute a bill of indictment against Maltese society and its institutions on at least three fronts.

The first is political. The proceedings offered yet another disturbing glimpse into the proximity that existed between political power, big business and people operating on the fringes of legality. They exposed an environment in which Yorgen Fenech enjoyed extraordinary access to some of the most powerful people in the country and in which confidential information concerning a murder investigation could apparently travel through political and personal networks.

The second is institutional. The trial revisited extraordinary failures surrounding the original murder investigation—leaks of confidential information, missing electronic devices, questionable relationships between senior police figures and politically exposed persons, and investigative decisions that remain difficult to comprehend. Whatever view one takes of Fenech’s guilt, nobody can seriously emerge from this case reassured about the manner in which Malta’s institutions operated during this period.

This article, however, is primarily concerned with the third failure—the jury and, through it, a more uncomfortable question about Maltese society itself. For years we have repeated that “the institutions have failed us”. The Fenech verdict forces us to consider a more disturbing possibility. Sometimes we are capable of failing ourselves. The jury acquitted Yorgen Fenech of complicity in the murder of Daphne Caruana Galizia and of conspiring to have her killed by a resounding eight votes to one on both counts. After approximately eight hours of deliberation, eight of nine ordinary citizens concluded that the prosecution had failed to prove Fenech’s guilt beyond reasonable doubt. Many people including myself were stupefied. I find that verdict extraordinarily difficult to reconcile with the evidence presented at trial.

Fenech’s own account

What makes it particularly difficult to comprehend is that some of the most incriminatingbelements did not depend exclusively upon Melvin Theuma. They emerged from Fenech’s own account.

Yorgen Fenech admitted under cross examination that he “passed information between Theuma and Schembri”. Fenech admitted under oath that Melvin Theuma had given him a price tag for Caruana Galizia’s murder. Any conscientious human being would have refused outright and contacted the police soon after getting rid of Melvin Theuma.

Fenech’s course of action, also delivered under oath, was to bide for time with Theuma, telling him “I’ll get back to you”, get Keith Schembri’s confirmation of the existence of the plan and his fiat to carry on with it and subsequently hand in €50,000 in cash to Theuma. Fenech conjured a convoluted explanation for this transaction, Theuma had already paid €30,000 for the hit job, and according to Fenech, he wanted Theuma to stop the process and not lose money.

Essentially, Fenech’s explanation for the transaction was that he gave the person, who apparently approached him, out of the blue, with a plot to assassinate Caruana Galizia, a person who quoted him a price for the hit job, €20,000 over and above the €30,000, Theuma had already committed for the murder, what appears to be for want of a better description a present!

In a situation in which the jury necessarily had to put the pieces of the evidential puzzle together, as they were asked to do by Judge Edwina Grima in her final address, it is extremely rare for every fact surrounding a crime to be known, let alone placed before a court. The jury was nevertheless confronted with a remarkable sequence of events described by Fenech himself under oath.

However, eight jurors out of nine believed that this convoluted sequence of events could be rationally and logically reconciled with the behaviour of a person who absolutely wanted to have nothing to do with the hit job. Indeed, this sequence of events also appears to have raised sensible doubt about Fenech’s culpability. It is important to emphasise that “proof beyond reasonable doubt” does not imply absolute certainty about the defendant’s culpability. Where it so, convictions for crimes would become exceedingly difficult without a complete documentary or eyewitness record. The standard required from the prosecution allows some residual uncertainty.

Legal scholarship and empirical studies have frequently associated it with a certainty in the range of 90% to 95%. While this range is not prescriptive, it illustrates the fact that reasonable doubt is not synonymous with 100% certainty.

Discrediting Theuma, introducing Keith

The strategy of the defence team, which was swallowed by the jury, hook line and sinker, rested primarily on two pillars; discrediting Melvin Theuma and muddying the waters by placing Keith Schembri at the centre of the plot. Yet Schembri’s potential involvement can in no logical way be construed as incompatible with Fenech’s. One of Fenech’s accusations was conspiring to kill Daphne Caruana Galizia, and one conspires with others not alone!

Schembri’s alleged involvement does not exclude Fenech’s. Discrediting Melvin Theuma was undoubtedly easier. Theuma was no stranger to the criminal underworld, he had dabbled with illicit gambling. Yet, in criminal trials related to organised crime, the prosecutors rarely have the luxury of relying on star witnesses of exemplary character. For example, in the Sicilian maxi trial (maxi processo), the star witness was a certain Tommaso Buscetta, himself a mafia mobster and a long-standing member of Cosa Nostra.

The relevant question is therefore not about Theuma’s moral fortitude, but whether Theuma’s evidence was logically credible were it mattered most and more important whether it was independently corroborated. Let us for the sake of argument concede that Theuma’s uncorroborated assertions should be treated with the utmost suspicion. This does not, however, make Theuma’s secret recordings (that were played to the jury during the trial), disappear. In one recorded exchange Fenech does not in any way contradict Melvin Theuma who tells him that the hitmen got the €150k they asked for. On the contrary, Fenech and Theuma continue to discuss financial assistance to the

imprisoned hitmen and when Theuma reminded Fenech that he had already helped them, Fenech replied he wanted to carry on helping them. The two also discussed further payments and paying for the Degiorgio brothers’ legal expenses.

This evidence goes considerably beyond Fenech’s separate admission about handing Theuma €50,000 before the murder. Whatever credibility one ascribes to Theuma’s testimony, these recordings contained Fenech’s own words. Theuma’s testimony could have been a complete fabrication yet Theuma could not have retrospectively put words in Fenech’s mouth on a recording he secretly made before Fenech was arrested. The resulting picture is impossible to reconcile with Fenech’s insistence that he wanted absolutely nothing to do with the plot. Fenech’s testimony just doesn’t add up.

17 Black and Daphne’s unfinished business

The attempt to place Keith Schembri at the centre of the murder also risks obscuring the fact that Fenech had an extremely powerful motive to kill Daphne. In February 2017, Daphne revealed the existence of a mysterious Dubai company, 17 Black. Daphne did not reveal the ownership of the company, however in the comments section beneath the article, Daphne made the connection between 17 Black and Electrogas Limited (the owner of the new Maltese power plant) and Yorgen Fenech. At the time of the murder, she had not yet publicly established the full significance of 17 Black, its ownership or its financial connections. These only emerged after her death. In 2018, it was made public that 17 Black was a target client for the Panama companies associated with Keith Schembri and Konrad Mizzi. In November 2018, Yorgen Fenech was identified as the owner of 17 Black.

As confirmed by the Caruana Galizia family, Daphne had been working on uncovering the ownership and significance of this company. Had she succeeded, she would have exposed Fenech, personally, to a corruption scandal of gargantuan proportions.

The revelation of the existence of 17 Black in February 2017, provided Fenech with a powerful personal reason to fear the results of Caruana Galizia’s investigation. Schembri also possibly had a motive to silence Caruana Galizia, however his interests converged with Fenech’s and his potential involvement is certainly not an alternative to Fenech’s.

Given that the defence strategy rested so heavily upon discrediting Theuma and introducing Keith Schembri as an alternative centre of gravity, I struggle to understand how eight jurors out of nine arrived at an acquittal. Could eight people genuinely reconcile Fenech’s insistence that he wanted absolutely nothing to do with the murder plot? Could they confront Fenech’s testimony with Fenech’s own secretly recorded words and conclude that the contradictions were sufficient to create reasonable doubt rather than to reinforce the prosecution’s case?

One possibility is that by attacking Theuma’s character, multiplying alternative narratives and repeatedly directing attention towards Schembri, the defence generated sufficient doubt for the jury to lose sight of the cumulative evidential picture. But the extraordinary nature of the verdict should inevitably prompt us to raise a more uncomfortable question; whether factors lying beyond the evidential record could have influenced the manner in which that evidence was perceived. That question must be approached with considerable caution.

A survey, personal consequences

There is no evidence presently, that any juror was threatened or bribed or improperly contacted, and Fenech’s acquittal, however inexplicable one may find, is not per se, evidence of jury tampering. Yet direct interference is not the only mechanism through which power can affect civic judgement. Fenech was presented during the trial as a man of enormous wealth and connections, while the proceedings themselves exposed the jury to allegations and evidence concerning criminal networks, political connections and the acquisition of weapons through the dark web. It is therefore legitimate to ask, whether perceptions of power and possible personal consequences can affect decision-making in a society as small and densely interconnected as Malta?

Additionally, the revelations surrounding a pre-trial survey commissioned by Fenech’s uncle, Ray Fenech, warrant serious scrutiny. Especially because it was conducted after the list of prospective jurors had already been published. The survey asked respondents questions directly related to Fenech, Caruana Galizia and the murder case.

Judge Grima herself rebuked the defence over the timing of the survey and its failure to disclose it. Lawyer Jason Azzopardi alleges, on the basis of information supplied directly to him by people who said they had received the calls, that many of those contacted appeared on the official list of prospective jurors. He says that around 50 people came forward. Mathematically the chances of a purely coincidental overlap between even 10 people chosen for the survey and at the same time featuring in the shortlist of the 250 potential jurors is so low this is extraordinarily unlikely, let alone 50 or more.

It is worth pointing out that so far there is no hard evidence that the jury was improperly influenced, much less that they explain the eventual 8–1 verdict. Nevertheless, a survey commissioned by a close relative of an accused, prepared with the involvement of his defence team, asking questions about the accused and his murder trial after the prospective juror list had already been published, inevitably raises legitimate questions, particularly when allegations subsequently emerge that some of those contacted were themselves on that list.

Yet even if every suspicion concerning the survey were ultimately disproved, the central question posed by the verdict would remain. Perhaps the explanation does not lie in some dramatic conspiracy at all. Perhaps the more uncomfortable explanation lies partly in us. One of our undergraduate students, in her dissertation examined why Maltese young adults, who were aware of environmental problems, nevertheless frequently remained outside organised activism. While its findings cannot simply be transplanted into a jury room as an

explanation for this verdict, some of the mechanisms identified raise wider questions about Maltese civic culture. People could care about an issue while deciding that publicly assuming responsibility for it was not worth the uncertain benefit and potential personal cost.

This research concerned environmental activism. But the broader question it raises is difficult to avoid: What happens to civic responsibility when citizens believe that confronting entrenched power carries personal risk while producing uncertain results?

The easiest conclusion from the Caruana Galizia saga has always been that Malta was betrayed by its institutions. There is ample evidence for that conclusion. But institutions are not extra-terrestrial objects imposed upon us. They are staffed by Maltese people, sustained by Maltese political culture and ultimately embedded within Maltese society. Police officers, politicians, civil servants, businesspeople, journalists, witnesses and jurors do not arrive from somewhere else. They are us!

And this is what makes the Fenech verdict so profoundly unsettling.