Drug trafficking trial flounders after judge forced to dissolve jury

Updated at 6pm

The trial of three men indicted for allegedly having trafficked almost 2,000 ecstasy pills in 2008 had to be cancelled on its first day, after it became apparent that a supplementary juror had been present in the courtroom while the parties were discussing whether to remove offences from the bill of indictment.

On Monday, Madame Justice Edwina Grima presided over the trial of Rio Micallef, 41, David Tabone, 40- and 34-year-old Darren James Vella, who stand indicted for trafficking the drugs, a crime punishable by imprisonment for life. Micallef is also indicted for the possession of 1,940 MDMA, valued at €18,624, while Tabone is further accused of possession of MDMA pills and cocaine. All three men are denying the charges.

But the plans were thrown into disarray after the judge was informed that the man chosen as supplementary juror number 12, had been in the courtroom’s public gallery before the sitting, during discussions on potential amendments to the bill of indictment.

The defence lawyers asked the judge to order the dissolution of the jury, telling the judge that before the jury had been empanelled, one of the reserve jurors had been present in the courtroom whilst parts of the bill of indictment’s narrative, relating to verbal statements Vella had made to the police, and which the Court of Criminal Appeal had declared to be inadmissible, were being removed.

Prosecutors Godwin Cini, Kevin Valletta and Danika Vella suggested that the court should first establish whether there was any truth to this allegation. The court duly ordered the deputy registrar to privately contact the juror and ask him whether he had heard the submissions, whilst also ordering that footage from the courtroom CCTV cameras be produced.

“I was explicit and clear. I said that if any prospective jurors are in the courtroom, they are to leave immediately,” the court recalled.

When she returned from speaking to the juror in question, the registrar informed the court that he had told her that he had been playing a videogame on his phone at the time and had not been paying attention to what was being said in court. His attention had only returned to the courtroom when the judge had ordered the jury to be called into the courtroom.

Judge Grima asked whether the defence would object were only the supplementary jurors were to be replaced. Object it did, however.

Cini argued that the objection had no basis. There was no risk, he said, because the supplementary jurors were kept apart from the jury, and there was no risk of contamination. “Jurors are kept separate from supplementary jurors so unless they are telepathic, they cannot communicate amongst themselves.”

But lawyer Franco Debono insisted that there was, arguing that supplementary jurors “aren’t just for decoration.” “The panel is a single entity. If it is tainted, it is tainted,” he said, adding that even if the same pool of potential jurors were to be called back tomorrow, they now already know the names of the defendants and charges they are facing.

Lawyer Arthur Azzopardi pointed out that “the first thing a person who is not selected as a juror will do is check the news to see what the jury was about,” arguing that it was unlikely that the jurors would forget what they read about the trial in the news in the space of a week.

The judge considered dismissing the supplementary juror after calling him to testify to see whether he had said anything to the other jurors about what he had heard, allowing the jury to proceed if he hadn’t.

But Debono expressed doubt as to whether a juror could legally disclose what he had discussed with the other jurors and pointed out that the court could not take him at his word.

The jury was irremediably tainted, argued the lawyer. “You cannot fix this by simply removing a supplementary juror. Also, if he was playing a video game, when he was meant to be following a trial by jury, I don’t know what that says about him.”

Lawyer Michael Sciriha said he was sympathetic to the court’s efforts to save the trial, “but it is unsalvageable.” Sciriha insisted that continuing with the trial would lead to constitutional proceedings, which he said, would unfairly cast a shadow over the judge.

“I think the juror did not tell the registrar the truth or was, let’s say, ‘imprecise.’” was lawyer Arthur Azzopardi’s diplomatic suggestion. “Whatever this man says from here on, I cannot have peace of mind that he would be telling the truth. If you are playing a video game you shouldn’t have noticed that the jurors are being called. And if he did notice, why did he come back to the courtroom?”

“The defence understands the court’s desire to have this case decided as soon as possible, but the risk is palpable,” concluded the lawyer.

“This morning we already had one juror ask to be excused and a supplementary juror take her place,” said Azzopardi. “These three men behind me have been waiting for 16 years for this trial, but to continue with this trial today would be an injustice.”

After retiring to chambers to deliberate on how to proceed for approximately an hour, the judge returned to the courtroom and discharged the jurors, postponing the trial to a future date.

What was the trial about?

The defendants had been arrested in September 2008 after a consignment of ecstasy pills which the prosecution said Micallef was to hand over to Tabone and Vella in a Birkirkara garage belonging to Vella.

Text messages intercepted by the authorities indicated that the latter two were to then sell the drugs on to a number of third parties and reap massive profits.

The police had been following their movements in Birkirkara and on 15 September 2008 the three accused were seen meeting in their cars outside the Butterfly Bar in Birkirkara, before following each other to the garage in Triq il-Knisja l-Qadima.

It was outside the garage that Micallef realised that they had been followed by the police, ducking behind a parked van and running off, chased by police officers who subsequently arrested him.

Other officers arrested Vella and Tabone, the latter of whom was found to be carrying €9,330 and an electronic weighing scales in his bag. Traces of cocaine and ecstasy were detected on the scales.

Two bags containing 1,940 white pills, later determined to be ecstasy pills with a street value of €18,624, were recovered from underneath the van which Micallef had been seen crouching behind. Drugs were also found on Tabone’s person.

Prosecutors Kevin Valletta, Godwin Cini and Danica Vella are representing the Office of the Attorney General in the proceedings.

Rio Micallef is being assisted by lawyers Franco Debono, Jose Herrera and Alex Scerri Herrera.

Lawyers Arthur Azzopardi and Jacob Magri are representing David Tabone. Lawyers Michael Sciriha and Matthew Xuereb are Darren James Vella’s defence counsel.