Nine good men and true

The acquittal of Meinrad Calleja of the charge of complicity in the attempted murder of Richard Cachia Caruana, the prime minister's personal assistant, and the declaration by Eddie Fenech Adami, hot on the heels of the acquittal, that the Cabinet had discussed a reform of the criminal justice system, have raised a hornet's nest.

The verdict in the Calleja trial has given new life to the old quip that, if you ever get into trouble with the law, your fate is likely to be determined by nine people who are not even smart enough to get out of jury duty. But for Dr Fenech Adami, the jury's decision was one of more than passing interest. He invested heavily in the outcome by meeting Joseph Fenech, Il-Hafi, personally in the dead of night, and procuring for him three presidential pardons. The outcome leaves him personally frustrated and politically wide open to criticism. Alfred Sant is having a field-day.

I can understand that the prime minister is dismayed by the result but is he justified in calling into question the process of trial by jury? Has the jury system "collapsed", as Justice Minister Tonio Borg claimed, just because a particular jury decided that the preponderance of evidence tipped, ever so slightly, in favour of the defendant?

The jury is an old and powerful democratic institution. The famous constitutionalist and President Thomas Jefferson described the right to "trial by juries impartially selected", as opposed to judging by officials appointed by the government, as the best of all safeguards of liberty and property.

We used to think of the jury - nine fair-minded people standing between the might of the government and an accused individual - as a jewel of the Maltese criminal justice system. But privately many lawyers and judges acknowledge today that a trial before a jury can be a roll of the dice, with all the randomness and uncertainty that implies. They see juries acquitting obviously guilty defendants or unable to reach a verdict in even the most overwhelming cases.

Not every judicial system uses a citizen jury. Japan had a jury system but dropped it. Jury trials have been restricted or even abolished in most countries, including Germany, France and the Netherlands.

The rest of Europe uses them only to try major crimes or political crimes against the state and relies on small panels of professional judges for less serious crimes.

England, which has a jury system but has sharply curtailed the right to trial by jury, is plagued by the same problems being faced in America, particularly after the O.J. Simpson, Rodney King and Menendez brothers trials.

During a l994 murder trial that took place in the town of Hove, England, four jurors consulted a Ouija board to "contact" the murder victim and were persuaded by it to render a guilty verdict. The conviction was reversed on appeal and the defendant had to be retried. He was convicted again this time in the conventional manner.

The Maltese Cabinet may feel that the jury in the Calleja trial might as well have used a Ouija board too.

Arguments favouring retention of the jury system were summarised in five points by the 1982 House of Commons Law Reform Commission in England:

¤ A jury is a diverse group of people of varying experience and it reaches its collective verdict after serious deliberation about the evidence.

¤ Because it represents a social cross-section of the community, the jury represents community conscience and, thus, (in the commissioners' opinion) ensures a just resolution of criminal cases.

¤ The jury acts as citizens' protection against oppressive laws and persecutory enforcement. When a properly instructed jury acquits an accused, no judge or other official can reverse the decision. Throughout history, juries have asserted the conscience of the community against unjust laws and arbitrary government authority.

¤ The jury involves the public in criminal justice and serves an educational function.

¤ The jury "undoubtedly" increases the public's trust in the justice system.

But are these arguments rock-solid? For example, why is it presumed that a jury will be more diligent or efficient at fact-finding than trained professional jurists, i.e. judges? How logically-rational is the notion that a group of amateurs, some of whom may justifiably resent being coerced into jury duty, are able to judge the guilt or innocence of another human being objectively and justly? Can we expect the jurors in a particularly complex trial to comprehend the evidence?

Many critics believe that jurors frequently misunderstand instructions from the judge on legal issues, fail to recall critical evidence and suffer from boredom and apathy during trials - concerns which were raised in the Bondì+ TV programme, but regrettably tackled in a theatrical manner, rather than in a reasoned way. Joseph Giglio's thoughtful and sensible remarks were drowned by the politically-motivated shenanigans of the rest of the panel and Lou Bondì himself.

Mr Bondì could have asked such questions as whether juries are efficient or whether they serve as a drain on limited judicial resources, whether jurors could do a better job by being allowed to question witnesses during the trial when the evidence is unclear or unhelpful, whether the jurors' comprehension of the proceedings might be improved if they were allowed to discuss the case as it is in progress and whether judges should give some preliminary instructions as to matters of law at the beginning of a trial.

These, surely, are valid items for discussion and might ultimately result in more accurate and principled verdicts, rather than slanging matches over the prime minister's unfortunate remarks and the opposition leader's equally unhelpful reactions.

Is it time to excuse the jury - permanently? I personally believe that there is a case for reform but the prime minister and his Cabinet have done this country a grave disservice by juxtaposing the reform with the outcome of the Calleja trial.

Now, a cool analysis and a reasoned discussion, leading to consensual agreement, between experts and the people's representatives in parliament, has been banished for good. Yet again, leaders have failed to lead and have sunk to the lowest common denominator.

To me, the question is not whether or not to preserve the jury system - of course it should be preserved. I am not convinced that the weaknesses of the system justify throwing the baby out with the bath-water.

I would appeal to Prime Minister Fenech Adami and his Cabinet to beat a hasty, statesmanlike retreat and depoliticise the whole matter. Let them appoint a bi-partisan and representative commission to examine the jury system, determine whether certain criminal offences should in future be tried by smaller panels of judges, study the systems and experiences of other countries, conduct research among past jurors and among the general populace regarding their perceptions, understanding, confidence and satisfaction in the jury system and report to parliament within nine months. This would then serve as the basis for the proposed White Paper.

By then, hopefully, emotions will have died down and reason reasserted itself. That could be the prime minister's final bequest to the nation prior to his departure from the political scene. It would surely mitigate the bitter results of the polls and surveys reported in last Thursday's edition of this newspaper.