Issue link: https://maltatoday.uberflip.com/i/1546553
THE verdict delivered by the jury in Republic of Malta vs Yorgen Fenech was a punch in the stomach for many well-mean- ing citizens. More than that, the trial and its outcome con- stitute a bill of indictment against Maltese society and its institutions on at least three fronts. The first is political. The proceedings offered yet an- other disturbing glimpse in- to 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 con- cerning a murder investiga- tion could apparently travel through political and personal networks. The second is institutional. The trial revisited extraordi- nary failures surrounding the original murder investiga- tion—leaks of confidential in- formation, missing electronic devices, questionable relation- ships between senior police figures and politically exposed persons, and investigative de- cisions 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 pri- marily concerned with the third failure—the jury and, through it, a more uncomfort- able question about Maltese society itself. For years we have repeat- ed that "the institutions have failed us". The Fenech verdict forces us to consider a more disturbing possibility. Some- times we are capable of failing ourselves. The jury acquitted Yorgen Fenech of complici- ty in the murder of Daphne Caruana Galizia and of con- spiring to have her killed by a resounding eight votes to one on both counts. After approximately eight hours of deliberation, eight of nine or- dinary citizens concluded that the prosecution had failed to prove Fenech's guilt beyond reasonable doubt. Many peo- ple including myself were stupefied. I find that verdict extraordinarily difficult to rec- oncile with the evidence pre- sented at trial. Fenech's own account What makes it particularly difficult to comprehend is that some of the most incriminat- ing elements did not depend exclusively upon Melvin Theuma. They emerged from Fenech's own account. Yorgen Fenech admitted un- der cross examination that he "passed information be- tween Theuma and Schembri". Fenech admitted under oath that Melvin Theuma had giv- en him a price tag for Caruana Galizia's murder. Any con- scientious human being would have refused outright and con- tacted the police soon after getting rid of Melvin Theuma. Fenech's course of action, al- so delivered under oath, was to bide for time with Theu- ma, telling him "I'll get back to you", get Keith Schembri's confirmation of the existence of the plan and his fiat to car- ry on with it and subsequent- ly 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 expla- nation 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 commit- ted for the murder, what ap- pears 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 ex- tremely rare for every fact sur- rounding 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 convo- luted 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 se- quence 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 abso- lute certainty about the de- fendant'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 empir- ical studies have frequently as- sociated it with a certainty in the range of 90% to 95%. While this range is not prescriptive, it illustrates the fact that rea- sonable doubt is not synony- mous 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 involve- ment 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 con- spires with others not alone! Schembri's alleged in- volvement does not exclude Fenech's. Discrediting Melvin Theuma was undoubtedly easier. Theu- ma was no stranger to the criminal underworld, he had dabbled with illicit gambling. Yet, in criminal trials related to organised crime, the prosecu- tors rarely have the luxury of re- lying on star witnesses of exem- plary 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 there- fore not about Theuma's moral fortitude, but whether Theu- ma's evidence was logically credible were it mattered most and more important whether it was independently corrob- orated. Let us for the sake of argument concede that Theu- ma's uncorroborated assertions should be treated with the ut- most suspicion. This does not, however, make Theuma's secret recordings (that were played to the jury during the trial), disap- pear. 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 as- sistance 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 consider- ably beyond Fenech's separate admission about handing Theuma €50,000 before the murder. Whatever credibility one ascribes to Theuma's tes- timony, these recordings con- tained 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 pic- ture is impossible to reconcile with Fenech's insistence that he wanted absolutely nothing to do with the plot. Fenech's testimo- ny 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 8 maltatoday | SUNDAY • 13 SEPTEMBER 2026 OPINION What does the Yorgen Mark M. Scerri Academic with a doctorate in applied geosciences nebuchadnezzartheneb. substack.com