Businessman Acquitted Of Masterminding Journalist Murder

There is a fence around a court of law, and it is called the presumption of innocence, and the reformer who wishes to tear it down because it has just produced an intolerable result should first be asked why it was built. It was built, if I recall the carpenters correctly, not to protect the innocent - the innocent need no protection, being innocent - but to protect everyone else from the mob’s absolute certainty that it already knows the verdict before the trial begins. The court in Valletta has just acquitted Yorgen Fenech of masterminding the car-bomb murder of Daphne Caruana Galizia, a journalist killed in 2017 for the crime of writing things down accurately, and the whole of Malta, along with a good portion of the civilised world watching from outside it, is now standing at that fence with an axe.

I understand the axe. I have some sympathy with the arm that swings it. When a wealthy man is acquitted of ordering the death of a woman who spent her working life exposing the wealthy, the natural and not at all foolish suspicion is that wealth has purchased what it always tries to purchase, which is an exemption from consequence. The Nationalist Party, the civil society groups, the international federations of alarmed journalists - none of these are fools, and their outrage is not decoration, it is data. But here is the paradox, and it will resolve, I promise you, into something uncomfortably sensible: the fence that frustrates them this Wednesday is the identical fence that, on some other Wednesday, in some other courtroom, protects a poor man from being hanged because a crowd outside was certain, and crowds are always certain, and crowds are wrong with a regularity that ought to embarrass anyone who trusts them.

The proper response to an acquittal that offends the conscience is not to demand that the conscience override the verdict. It is to ask, with the patience of a man who actually wants an answer, whether the trial was conducted honestly - whether the evidence that convinced so many outside the courtroom was permitted to speak inside it, whether the institutions of the Maltese state, which have not exactly covered themselves in glory since 2017, did their office with the diligence the murdered woman’s life deserved. That is a different question from “the verdict is wrong, therefore verdicts should not matter,” and it is the question the outraged crowd, in its outrage, keeps forgetting to ask, because outrage is a wonderful engine and a terrible navigator.

Consider what actually happened to Daphne Caruana Galizia’s fence - the ordinary institutional fences of Maltese public life, the ones that were supposed to keep the wealthy from buying the police, the passports, the planning boards. Those fences were dismantled long before the bomb went off, quietly, over years, by clever people who found them inconvenient. Nobody held a public meeting to abolish them. They simply rotted, unrepaired, while the smart operators of Malta discovered that a small island with large money moving through it is a place where fences are decorative. The bomb that killed her was not a failure of the courtroom; it was the last and loudest evidence that the fences were already gone. To now demand that the courtroom compensate, retroactively, for seven years of rot by convicting on the strength of public fury is to ask one remaining fence to do the work of a dozen that were quietly removed while everyone was looking elsewhere.

So the resolution, which I said would be uncomfortable, is this: the people who are right to be enraged at Yorgen Fenech’s acquittal are wrong if they conclude that the trial system failed them. What failed them happened years earlier, in the customs offices and the licensing boards and the political appointments that let a man become wealthy enough and connected enough that his guilt or innocence would eventually require an entire nation to hold its breath. The presumption of innocence did not kill Daphne Caruana Galizia’s case. It merely arrived, punctual and impartial, at the scene of a crime that had already been committed against the institutions themselves, long before the car exploded, and stood there asking, with maddening reasonableness, for proof.