Friday, 7th August 2009
LIVING BY THE SWORD
Apologies if you’ve missed me and all that – all the usual excuses can be trotted out, the heat, the fact that so many people seemed to be enjoying themselves on the previous blog, sniping at each other about planning and related issues, all that stuff, but the fact, is, time and inclination didn’t match up, and I had my weekly column to combine with setting off for a longer than usual long weekend up North.
Anyway, here we are again, with some words designed to irritate, amuse and annoy. I suppose, given my exalted position in real life, I should start with a health warning: what I am going to write does not in any way, shape or form reflect the opinion of Malta’s legal beagles as a combined corpus. It just reflects my own opinion, for what that’s worth.
As anyone with even cursory access to the ‘Net is aware, there have been less than complimentary bits and pieces flying about concerning that Taliana bloke, the one who is alleged to have killed Mr Clifford Micallef by dangerous driving. His representatives have been making the point that all this negative publicity is endangering due process, perhaps making it difficult for their client to get a fair trial.
Of course, in an ideal world, they would have a point: legal issues should be debated in a sterile environment, where the only facts that are relevant are those which are adduced in evidence and where the person charged with judging the person charged is entirely objective and dismisses from his or her mind anything extraneous thereto.
We do not live in an ideal world, and nor have we ever.
Leaving aside the perfectly cogent point, incidentally, that Mr Taliana will be tried, eventually, by a Magistrate who is trained to ignore Facebook and the comments section of the electronic papers and anything else that isn’t legally admissible (which is one of the best arguments for keeping laymen out of the debate, clearly) the law and the process of justice is not, actually, meant to operate in a vacuum, for all the not-so-valid argument that once something is sub judice, it is not susceptible of public comment.
Which means that, contrary to what the narrow view of due process may lead one to think, having a degree of influence over the judicial process by society’s take on something is not completely to be sneezed at. This is not to say that the baying hounds of the great unwashed should be the final arbiters of any debated issue, but the fact that they’re baying at all does need to be taken into consideration, to a greater or lesser degree and depending on the circumstances.
And of course, this fact needs to be taken into consideration not by someone who depends on said great unwashed for his or her tenure of office but by someone who will take a judicious view of the baying. This is why I can’t for the life of me understand how the Yanks can reconcile judicial independence with the weird notion they have of electing many of their judges by popular vote, along with the dog-catcher and the local sheriff.
But that is their problem, along with many others.
Getting back to Mr Taliana’s case in particular, though, there’s another reason why he can’t really grumble about the level of public comment his case has generated.
He was certainly not backward in coming forward when he put himself up into the virtual world, with all those silly pictures of him being all macho and cool with his motor and various other accoutrements of the young wannabe-Alpha male. He only has himself to thank now that these particular chickens have come home to roost all over him.
I part company with Daphne Caruana Galizia (and the Archbishop of wherever, for that matter) on the way people use the ‘Net and the social networking sites in particular. I don’t find anything that bad about people announcing to the world that they’re about to have breakfast or that they’re out with their Prince Charming (you know who you are) or whatever: if they get too irritating, I can block them out and they’re not taking up my bandwidth to tell me that they want some more wine.
In fact, I’m as guilty (and probably as inane) as the next man or woman.
But the virtual world has become as relevant and as real (now there’s an oxymoron) as the real one, pretty much, so Mr Taliana, and anyone else who puts misguided stuff up on the ‘Net has only himself to blame if it’s used against him.
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Comments
I respectfully beg everyone's pardon for starting my comments of a few days ago this way, 'Only in America jurors are confined while the trial is going on, In most other parts of the world' but should read, 'Not even in America, as in most parts of the world are jurors sequestered from the beginning of a trial...'
A bit of research turned out the following:
"Sequestration has fallen so far out of favor that judges rarely bother anymore" - .Brendan I. Koerner (2003) -American
"Jury sequestration is rare. Typically ordered in sensational, high-profile criminal cases, sequestration begins immediately after the jury is seated" - West's Encyclopedia of American Law.
" Prior to enactment of the 1995 legislation, New York mandated sequestration of deliberating jurors in all criminal trials. Although virtually every other jurisdiction in the nation had rejected mandatory sequestration" - HON. JONATHAN LIPPMAN, Chief Admin.Judge NY
"The jury in Scott Peterson's upcoming double murder trial will not be sequestered, the judge ruled Thursday, saying the only way to stop jurors from hearing or seeing any publicity about the case would be "if we parked them on Mars." San Jose' News (2004)
Malta and a few others excepted.
Do you know that we had that system in Malta, when the "whites' were exterminating the 'red Indians' in North America?! Do you know that we hasd such system in Malta when Canada had the French as their Masters? A basic History study teaches you much!
Perhaps the logical conclusion to your question is that it is you who is misguided about illegal immigration and not him. Ever stopped to think about that?
Since you believe that other countries also confine their jurors during trials, why did you not name a few? I can always learn something new from you.
I thank you in advance.
@ Adrian Borg Cardona
I like your anecdote, these simple episodes highlight some nice characteristics of our people, pity that we rarely see stuff of this sorts in our newspapers or on TV. So very humane! And fried lampuki with green olives, raw tomatoes and chips are so nice to eat.lol
What I find most reprehensible is not pretrial discussion by the general public but any orchestrated campaign in the media to trammel the course of a fair trial by jury. I have in mind a fairly recent case where the credibility of a key witness (who happened to have criminal record) was deliberately undermined by a persistent campaign in a section of the press. Comments about the credibility of that witness should have been left in the hands of the presiding judge. It is not in anybody’s interest that the course of justice be perverted by such organized campaigns
"Only in America jurors are confined while the trial is going on...."
Another false statement.
Only in America jurors are confined while the trial is going on, In most other parts of the world, the media is prohibited from disclosing certain information in order to prevent undue influence on jurors .
In Canada, having myself served on a case in the recent past, the jury goes home every day during the trial but they are instructed by the judge not to discuss the case, not with a spouse, children or the public, much less the media
The jurors are usually sequestered at the end of the trial when both the Prosecutor and Defence have concluded their submissions and addressed the jury. It is also worth mentioning that before the jury retires for a verdict, the judge addresses the jurors and gives them instructions how to proceed, what evidence they may consider and how the law applies to the particular case. For example, in a homicide situation, the judge will explain the difference between a premeditated murder versus manslaughter.
At that point the jury is sequestered and will not be released until a verdict is reached. The American system the verdict is determined by a majority of votes, in Canada unanimity must be reached.
Continued
In the case under discussion, the publicity is such that if this had happened in a larger country, a 'change of venue' would be requested by the defence counsel as the publicity is deemed to render a fair trial almost impossible. This argument is only partially true since a respectable and experienced judge will order the jurors to disregard whatever they had heard or read about the case and to consider only the evidence produced by the Prosecution. Besides, where can an alternate venue be found in Malta and Gozo where the publicity has not already spread like wild fire?
The judge's last words to the jury would be that 'the verdict is to be reached after every reasonable doubt is removed'. In Canada, unanimity is required therefore if one juror does not agree with the rest, and after several attempts are made to re-examine the evidence with no different result, then the jury is deemed to be 'hung' and a new trial is ordered. In Malta a simple majority decides the case.
With all this discussion going on, everybody seems to forget that a trial will not commence until after the accused submits his plea.
I have difficulties to understand the rule of press silence during the course of a sub judice case.The logic (Sic) for the embargo on public discussion is that the judges can be biased or influenced. Isn’t it insulting (to judges) to believe that they, who have the capability to dissect the issues and analyze them, would be carried away by the public debates.
In countries like USA with its jury system, juries are confined while a major case is going on. They are kept in a closed room, with food brought to them from outside, forbidden contact with even their families and friends. They are completely isolated from the rest of the world. I am not suggesting that judges must be confined; I am just seeing an anomaly. Judges are intelligent enough to assess the evidences that may get published in the media or discussed in television channels. In this blogging world, how can we prevent public discussions?
I am inclined to think that our law is not only unjust but also impossible to practice especially when I see the American Courts acting very liberal in permitting media comments.
The piece in question was not just a hatchet job .......I could have understood where that was coming from....... but it was clearly intended to interfere or at the very least influence the course of justice. That I cannot accept and that is why I would not consider forwarding it to anyone.
Whether it actually does influence matters is not relevant. What is important is that it is TRYING to.
That is not acceptable.
Patrick