Game of courts: Why investigators fear suspects could demand recusal of new magistrate

Police investigators are expecting the defence team of the men charged with the assassination of Daphne Caruana Galizia, to prolong the compilation of evidence against them with recusals of presiding magistrates.

The first magistrate, Donatella Frendo Dimech, recused herself on Thursday when she declared having known the sister of the deceased, and sending her condolences the day the murder happened. In legal jargon this is known as tactical forum-shopping.

While the choice of Frendo Dimech as duty magistrate was selected by lot, the selection was actually carried out in full view of CCTV cameras on request of the Attorney General, in a bid to take all precautions and ensure the choice of magistrate was a transparent one.

Following the recusal, however, it fell to Chief Justice Silvio Camilleri to select a magistrate, this time placing the responsibility on Magistrate Charmaine Galea. She is expected to start hearing the case on Monday morning.

Prosecutors are concerned the defence may attempt to challenge Galea as well. “The strategy would be to prolong the process to allow themselves to request bail, as they are legally in their right to do. The family’s defence team would play in their hands by allowing them to push for the magistrate’s recusal.”

Charmaine Galea was formerly a lawyer working in the firm of Toni Abela, the former Labour deputy leader who is now a judge.

But Galea has never had any political baggage, although at one point she represented this newspaper in a civil defamation case against Caruana Galizia.

Magistrates’ recusals are ultimately decided by the self-same magistrate whose recusal is being requested, on grounds established by the Code of Civil Procedure.

What happened last time

Magistrate Donatella Frendo Dimech was meant to preside over the compilation of evidence, however, at the start of the sitting, the magistrate informed the parties that she had attended the same school as one of Caruana Galizia's sisters. She also said that she exchanged birthday greetings with the sister every year, and that she had given her condolences to the woman following the murder.

Subsequently, the accused's lawyer argued that their clients feared the magistrate might not be impartial during the course of the case, and asked for Frendo Dimech to withdraw from the case. After a two-hour deliberation in her chambers, Frendo Dimech decided to recuse herself.

READ ALSO:

SMS from a cabin cruiser triggered bomb that killed Daphne Caruana Galizia
Caruana Galizia murder almost thwarted by mobile with no credit
Marsa’s ‘potato shed’: a den of criminality with a window to the high sea
The light touch of justice: how murder suspects thrived with impunity

What is the compilation of evidence?

The compilation of evidence is a pre-trial stage when the prosecution presents its evidence against the accused. The magistrate will then decide whether there is enough prima facie evidence to decree that the men should stand trial.

The prosecution should present its prima facie evidence within 30 days of the charges being filed, while the denial of bail must be confirmed every 15 days by a magistrate.

Investigators are suspecting that the three accused – George and Alfred Degiorgio, and Vincent Muscat – are still taking legal advice from top criminal lawyers, despite having been appointed legal aid lawyers.

Such is the sensitive nature of the case, that the three men are being kept in isolation from each other at Corradino prisons. MaltaToday received unconfirmed reports that the suspects at times refused food to protest at being kept in isolation. 

The compilation of evidence is expected to shed new details of how far the investigations went in establishing their culpability.

Raid kept secret from minister

The three men accused with Caruana Galizia's murder were arrested in an early morning police and army raid on 4 December at their operational base in Marsa.

The raid on the Marsa ‘potato shed’ was kept secret even from home affairs minister Michael Farrugia, MaltaToday is informed.

Investigators feared a leak would have ruined the success of the arrests, which led to seven other men being arrested but later released on police bail.

But MaltaToday has since learnt that the three main suspects appeared to have not been surprised by the early morning raid, possibly even expecting the arrest.

Who are the accused

• George Degiorgio 55, unemployed, lives in St Paul's Bay, known as Ic-Ciniz
• Alfred Degiorgio, 53, unemployed lives in St Paul's Bay, known as il-Fulu
• Vincent Muscat, 55, unemployed lives in Msida, known as il-Kohhu