Who was being surveyed, and why?

The acquittal of Yorgen Fenech is a fact. Whatever anyone, including me, thinks of it, nine citizens entrusted with deciding the case returned their verdict. The verdict does not, however, blind us to what may have happened before the jury ever entered the courtroom.

Jason Azzopardi has published an extraordinary account of events in the weeks preceding the trial. This raises questions which cannot simply be shrugged away.

We were told that before the jury was empanelled, a telephone survey was conducted asking people about their political allegiance, their opinion of the courts, Yorgen Fenech, Melvin Theuma and Daphne Caruana Galizia, whether Fenech should receive a presidential pardon, whether politicians were involved in the case and whether respondents agreed with what Caruana Galizia wrote.

These were not questions about toothpaste preferences. They went directly to the personalities, evidence, political associations and issues surrounding one of the most important murder trials Malta has ever seen.

We were also told that pollster Vincent Marmara testified that the survey had been commissioned by Ray Fenech (Yorgen Fenech’s uncle) and that the questions had been supplied by members of Fenech’s defence team. Marmara denies that jurors were targeted.

Azzopardi says, and Matthew Caruana Galizia confirmed, that many of the people who reported receiving the calls were potential jurors. They are implying that prospective jurors were being identified, profiled and sounded out. Again, it should be said that Marmara denies this. The University, within whose academic body he operates, has been asked to investigate.  In any case, he is peripheral to the seriousness of the matter.

Hypothetically, and leaving aside the notion that it could be argued that the defence needs to prepare itself, could such calls in and of themselves have the effect of intimidating prospective jurors?

To answer that, put yourself in the position of an ordinary citizen, whose name appears on the jury list, even if you don’t know that. You receive an unsolicited telephone call. A stranger begins asking what you think of Yorgen Fenech, Daphne Caruana Galizia and Melvin Theuma. You are asked about politicians and presidential pardons. You are asked how you vote.

Would you wonder why you had been selected?  Were you told that this was an anonymous survey, and that you were one of the random folk whose number was plucked out of thin air, and would you believe that? And would you wonder whether the caller knew anything else about you?

And, most importantly, might that experience weigh on you a few weeks later, when you found yourself summoned to decide Fenech’s fate?

Azzopardi says that when testifying about this, he was asked: “What guarantee do you have that these questions were not asked by the parte civile?” (the Caruana Galizia family)

He adds that evidence subsequently emerged in that very courtroom that the survey had been commissioned from the Fenech side and that the questions had been supplied by the defence lawyers themselves, one of whom was Charles Mercieca.

This was not, then, clever courtroom theatre. It was not an amusing lawyer’s trick to be admired over drinks afterwards. Mercieca was inviting a witness and, through him, the court, to contemplate the possibility that the victim’s family side was responsible for something which he (I have to write ‘allegedly’) knew perfectly well had originated elsewhere.

Whether there is a professional disciplinary name for this is something the competent authorities might care to consider. Nor is it the only matter that might deserve scrutiny, whatever weight one chooses to give Cremona’s tearful recantation at trial, when he claimed that he had invented the entire story about an attempt to bribe witnesses.

Azzopardi says Mercieca subsequently argued that there was nothing wrong with conducting the survey because conducting a survey was not illegal, to which the judge responded, “Dr Mercieca, don’t go there. Don’t go there.”  Why?

What was concerning the judge so much that she summoned senior police officers, ordered an immediate investigation and eventually ordered that the telephone calls stop? And what became of that investigation?

An immediate consequence was that the defence was told not to use the information gathered by the survey.  And they promised not to.

So that’s alright then.

The jury, in the slightly archaic formulation so beloved of people in Malta’s legal world, conducts its business in serenity, protected from outside influences of whatever nature.

We are not living in Escobar’s Plata o Plomo Netflix universe, after all.

But in the cold light of the morning, is it fanciful of me to think that a full-blown investigation, with call logs sequestered immediately, and with the investigation expanding if necessary and however necessary, is needed to reassure me that we’re not?