The Juries Out on Juries in Russia: part I
Of all the issues that separate Russia from the rest of the developed world, the question of the rule of law is the most intractable. From the point of view of the long-term development of Russian society, it is also the most serious. The ultimate problem is that the supremacy of the courts over all outside influences is not taken for granted, either by foreigners doing business here or by Russians themselves. It is widely suspected that judges can be “bought”, or at least influenced, by powerful members of the hierarchy which largely monopolises power in Russia.
While there are undoubtedly many judges with an independent cast of mind, especially younger ones, and there are many stories of cases being correctly decided (even if usually by the winning side), it does seem to be true that the closer an issue gets to the interests of the centres of power, the less confidence the general public has that it will be resolved purely according to law.
This is a profoundly unhealthy state of affairs. But it is neither new nor unique to Russia. And there is one important exception to this generalisation: namely the jury trials which have been held since the early 1990s in serious criminal cases. Might the humble jury be the lever that cracks open the path to justice in Russia?
This is not so absurd a hope as it might seem. It nearly happened a century ago. But the Russian government recently passed laws restricting the types of case in which jury trials are available. Allegations have been made of jury-rigging by the state security services. Is the “power vertical” necessarily on a collision course with the principles of “street” justice? These articles will describe the background to this clash ideas about how states should be run.
Since there is such a widespread ignorance of what juries have really done over the centuries, both within Russia and in the West, I will start by sketching in the general history of the institution which most British subjects and American citizens believe is their strongest defence against state tyranny. We cannot assess how far Russia has deviated from the norm unless we are clear about what the norm is. Most people derive their ideas about juries from modern American court-room dramas, possibly augmented by books like John Grisham’s The Runaway Jury. These are not the norm, even in America today.
Juries first emerged in twelfth-century England where a group of men were sworn (juré in French) to tell the truth about the facts of a dispute which was before the king’s court. Jurors were witnesses, not adjudicators. They were people who were chosen to decide issues (usually connected with the ownership of land) because they knew the history of the dispute and the parties involved. This, of course, is the opposite of modern juries who are expected to come to court without any prior knowledge of the issues or parties.
Two types of jury evolved very early on: the grand jury and the petty jury. The grand jury was commissioned not to try a case but to investigate a dispute to see if there was enough evidence to put someone on trial. This system survives now only in the United States, but it has a big role there.
Its most visible triumph in modern times was achieved by the Federal Grand Jury of the District of Columbia which empanelled twenty-three ordinary citizens on a sweaty June day in 1972 to decide who, if anyone, should be sent for trial in connection with the recent break-in at the Watergate building near the White House.
No power in the land could have prevented those jurors from concluding, if they thought the evidence warranted it, that the President of the United States had been involved. Twenty months later, this is what they did, vindicating John Adams’s words in the Massachusetts Constitution of 1780 that there should be “government of laws not men”. Five months after that, Nixon was forced to resign the Presidency. No other country has such a ruthlessly disinterested system of potential prosecution at the very highest levels of the state. Russia lacks it altogether.
In England, grand juries were progressively enfeebled during the nineteenth century, and formally abolished in 1933. Prosecution decisions were put mainly in the hands of the police. Being citizens in uniform, and not a gendarmerie under the control of the state as they are in most European countries including Russia, the police were thought to provide adequate safeguards against abuse of power by government. But perhaps because they lacked the ethos associated with an officer corps, or perhaps because the same policeman might be acting as investigator and prosecutor, some high-profile miscarriages of justice resulted, especially in the 1970s and early 1980s in connection with the IRA terror campaign.
The resulting public outcry eventually forced a change. Surprisingly it was only in 1986 that the current system of an independent Crown Prosecution Service started operating in England. Scotland, by contrast, has had an independent state prosecution service, under the Lord Advocate, since the sixteenth century.
The petty (or petit) jury is a completely different body from the grand jury. It replaced a system which usually involved trial by battle, in which the accused fought the victim of his alleged crime. Contrary to the popular conceit in modern England, this was not a universally popular change. A the time of the baronial wars, more people appear to have trusted their strong right arm than blackgowned lawyers speaking dog Latin. The right to jury trial is encrusted by self-congratulatory myth as one of the immemorial liberties of freeborn Englishmen. This is very far from historical truth.
But in law myths are important because a legal system can work only when the public has confidence in it. Legal fictions are necessary, like “the Crown” or “the Queen’s peace” in Britain or, in the United States, the words “Equal Justice Under Law” which were carved above the entrance to the newly-opened Supreme Court building in 1935, at a time when racial segregation was still part of the law of the land.
The right to jury trial in criminal cases appears to go back at least to Magna Carta, England’s great founding legal “treaty” signed in 1215 by King John (who was illiterate) and his barons. One of the key features was that all free men (a term which is in dispute today but is thought to have included about half the population) were entitled to trial by their “peers”. The meaning of that term is also in dispute today, but the essence of it seems to have been that serious criminal trials must have private citizens rather than the king’s men deciding guilt or innocence.
This is what we think of as the natural jury function today, and in one of the more authoritative studies of Magna Carta (by J.C. Holt) the reasons for its introduction are described in terms that could be applied to Russia today, where for the most part there is government of men not laws:
“Despite feudal custom, kings behaved on occasion in as arbitrary a manner as convention and immediate political circumstances would allow. The English records of the twelfth century bear frequent witness to the operations of the king’s will, to actions stemming from his wrath which were exercised by force and violence. To be in the king’s mercy, to have to purchase his good will, was one of the more likely fates which might befall an active, ambitious vassal. All this stemmed from the fact that for all its increasing refinement, government was still very personal… All kings used the threat or fact of imprisonment as a potential deterrent… Kings enjoyed an ill-defined capacity to direct, suspend or withhold justice. [They were ready] to ensure that judgment inclined favorably towards the king’s friends and ministers and away from those who were out of favour or distrusted.”
In Magna Carta, King John famously accepted that “to no one will we sell, to no one deny or delay right or justice.” Though this commitment was observed as much in the breach as in the observance over succeeding centuries—especially under Henry VIII when a near-Stalinist system operated—the ideals expressed in the document animated the world of English law, and eventually American law.
It should not be forgotten that the American War of Independence arose in part because the Crown would not abandon in the colonies prerogatives which many there considered abuses of the principles of Magna Carta, and which it had long been forced to abandon at home. Many soldiers in the Continental Army, including George Washington, thought of themselves as fighting the King for their rights as Englishmen. To this day, Magna Carta features at the heart of much American legal education.
For all its grounding in the highest ideals of medieval justice, and despite its ability to bring the likes of President Nixon to trial, the American jury system has seen abuses as naked as anything which happens in Russia today. If I may take an example which, though extreme, is relevant in that it took place in the middle of the so-called “Red Scare” of 1919, and because it exhibited some of the symptoms that typically disfigure Russian justice today.
That year in Tulsa, Oklahoma, the longest trial in the state’s history took place after a Dutch-born “Red” agitator called Kreiger allegedly bombed the house of an employee of Standard Oil. The case was described by the journalist and author Eugene Lyons who later came to Russia and wrote about the Stalinist show trials of the 1930s. His point was that American justice may not have been as bad as its Soviet counterpart, but it was hardly free from taint. Today, the Khodorkovsky trials look reasonable by comparison.
Before the hearings began, Standard Oil hired an assistant to the public prosecutor, and he seems to have taken charge of the case. The defence lawyers would have been run out of town altogether, Lyons wrote, but for the presence in court of “the picturesque 300lb dictator of a nearby town”. He happened to be the last independent oil operator in the vicinity, and therefore “hated Standard Oil as much as Standard Oil hated the Reds”. This man gave Lyons and Krieger’s lawyers “the sharp-eyed protection of a little army of private gunmen who sat in court, under orders to shoot down the first man who touched us.”
The oilman had recruited his gang “from the prisons of the Southwest under laws permitting the parole of prisoners who could show respectable jobs waiting for them.” He gave automatic support to anyone “accused of an attempt to erase a Standard Oil official.” His only regret, expressed after the trial, was that Krieger had pleaded innocent because that implied that “private terror was not part of [his] code”.
Lyons continued: “The judge puffed a big cigar under the No Smoking sign. Spectators with revolvers in their holsters threw ‘Howdy!’ to their friends in the jury box… and clergymen who sat in court preached sermons to the jury on Sundays, since jurors could not be denied the solace of spiritual uplift, on themes as remote from the case as patriotism and foreign agitators.”
At the end of the case, Lyons wrote: “The jury reported eleven to one for conviction. The only recalcitrant juror emerged [from the jury room] with visible proofs that the arguments used on him were the kind that left marks on the body. We learned later that he had a personal grudge against Standard Oil in some matter connected with a pipeline on his farm. His insistence on Krieger’s innocence apparently had no more to do with the evidence than the others’ insistence on his guilt.”
In this context, the recent reports in, for example, the New York Times to the effect that elderly ladies on the jury in the Paul Klebnikov murder trial in Moscow were “monolithic”, and that they had tried to use personal arguments on a fellow juror to persuade him to vote for acquittal of the two Chechen accused, sound more disappointing than scandalous.
Could it be that, for all their failings, Russian juries are not so uniquely ineffective as some sections of the media seem to think they are? Could it be that Russians idealise foreign legal systems, and assume their own to be inferior and corrupt?
If legal systems, like banks, depend to a large extent on public confidence, then it is doubly important that an unblinking assessment is made of the way Russian juries work and have worked. We need to understand to what extent a state apparently committed to centralised power has been prepared for a degree of popular involvement in the process of administering criminal justice.
Next month: Ian Mitchell will trace the history of Russian state justice up to the introduction of juries in 1864, shortly after the abolition of serfdom, and assess the quality of popular justice after that, until the Revolution.