The Jury Is Back : A Murder Case Involving Two Gypsies Tests the Waters of Civil Liberties in Russia, Where Juries Have Been Banned for 75 Years.

A train pulls out of Moscow’s Paveletsky Station in a swirl of snow and steam. It is a wintry afternoon, Election Day for Russia’s new Parliament. Settling into his overnight compartment, Sergei Pashin, a lawyer on President Boris N. Yeltsin’s legal team, stows his fur hat, puts on his slippers and makes room for his traveling companions--boxes full of courtroom computer equipment.

Pashin has already voted, for the “Russia’s Choice” slate that supports radical reform. Now he’s headed for Saratov, a city on the Volga River about 450 miles and 18 hours away. A team traveling with Pashin from the American Bar Assn.’s Moscow office debates the best way to guard the boxes, which spill over into the group’s sleeping quarters. Pashin picks up his book, a Russian edition of “The Name of the Rose.” Later he will turn to his other reading material: Criminal Case No. 6391.

Scholarly, soft-spoken and barely into his 30s, Pashin heads the reform unit of Russia’s State Legal Agency, which works at the president’s behest. His job, he says, is “to sell new ideas to the public.” The one taking him on this trip is borrowed from Russia’s pre-Revolutionary days: trial by jury.

Pashin is Russia’s chief crusader for jury trial, and his message is simple: True democracy isn’t possible without criminal justice. And after decades of abuse, criminal justice isn’t possible without juries. Pashin also likes to say that jury duty is a way to help raise the low level of legal awareness, “a way to help turn people into citizens.”

It’s a tough sell in today’s Russia, where crime is sharply up and liberal reform is generally beating a retreat. Newspapers are packed with stories about Mafia schemes, murdered bankers and street brawls that turn into shootouts--not exactly the perfect time for citizens to be learning about the link between democracy and civil liberties for defendants. But thanks to Pashin’s quiet persistence, the jury project is still on track.

By the time the train pulls into Saratov the next day, the election tallies are showing a trend. Russia’s new State Duma will be dominated by conservatives, Communists and the ultranationalists led by Vladimir V. Zhirinovsky, a lawyer who has suggested on-the-spot death sentences for suspected organized-crime kingpins.

For Pashin, the Dec. 12 election news isn’t good, but the timing is significant. The criminal matter in his briefcase will come to Saratov’s court in a few days. “So, while the election is deciding who will take what seat at the top,” he says, “down below, a real event is happening--a demonstration of adherence to a democratic ideal.” Russia’s first jury trial in more than 75 years.

Judge: “State your full name.” Defendant: “Artur Martynov.” Judge: “Date of birth?” Defendant: “25 of April, 1972.” Judge: “Nationality?” Defendant: “Gypsy.” Judge: “Criminal record?” Defendant: “None.”

In a third-floor courtroom of the Saratov Regional Court, Artur Martynov and his brother Alexander rise to hear Chief Judge Alexander Galkin read the charges against them. Around midnight on Jan. 25, 1993, the indictment says, the brothers wantonly murdered three acquaintances after a night of heavy drinking and card-playing. The motive: robbery. The weapon: an ax handle. If convicted, the two face up to 15 years in prison or even the death penalty.

The violence erupted in Artur’s rented shack in the dreary factory town of Engels, across the river from Saratov. The 21-year-old Artur is pleading innocent. Alexander, 23, admits using the ax handle, but only in self-defense. Both deny robbing the victims, who, they say, threatened them with deadly force.

Pale and slight, with dark, close-cropped hair, the two have spent the past year behind bars. Normally, they’d be placed in a metal cage during the trial, but in deference to the jury, the cage has been removed. By Russian standards, in fact, the renovated courtroom is elegant: freshly paneled and painted, with a new jury box and rows of public seating. The Russian tricolor hangs on the wall behind Galkin, who is wearing, for the first time, a judicial robe.

When the Martynovs were arrested, juries didn’t exist in Russia. But by the time prosecutors were ready to go to trial, Pashin and company had pushed their jury bill through the old Russian Parliament. The law, which took effect last November, says that felony defendants in nine of Russia’s 88 oblasts, or regions, from suburban Moscow to Siberia, can opt for jury trial over the usual judge tribunal.

Informed in jail of his new right, Artur Martynov immediately decided that with a jury, he had “a chance.” His court-appointed lawyer, Svetlana Romanova, tried to talk him out of it. “I said, ‘There’s a certain risk; it’ll be the first jury trial, and it’s your case,’ ” she recalls. There was also the danger of drawing jurors who disliked Gypsies.

But the Martynovs computed the odds differently. Barely literate (Artur signed his pretrial statements with an X), they easily grasped what their fate would be in a traditional court before a judge and two “people’s assessors.” Defendants call the lay assessors “nodders” because they almost always vote with the judge, who, more than 99% of the time, issues a guilty verdict.

To prepare for the case, Romanova and Vera Afanasyeva, Alexander’s lawyer, met with their clients a few times. But they didn’t investigate the events surrounding the killings or interview anyone on the court’s witness list. Those are the prosecutor’s exclusive rights. “Russian defense attorneys don’t know how to investigate a case; they’ve been prohibited from doing it,” says Stephen Thaman, a former Oakland public defender who now runs the ABA program to aid jury trial in Russia. “In the past, some have even been arrested for tampering with witnesses for interviewing them.”

The jury ensures an independent verdict, but it hasn’t changed any of this.

Nor will it alter the trial’s non-adversarial nature, which allows the court wide latitude with witnesses. “You have the right. . . ,” Galkin begins, addressing the defendants in a speech he knows by heart after 20 years on the bench. He tells the Martynovs that they can personally question witnesses and object to motions. So can the victims’ survivors, who sit near the prosecutor.

The judge then turns to the potential jurors who fill the courtroom’s first four rows. The 30 people have been randomly chosen from local voting lists. (The U.S.-provided computer gear lugged from Moscow is meant to expedite that.)

Galkin thanks them for coming, adding that they will be paid (about $2.50 a day). “Today is a historic event in the life of Russia, the rebirth of jury trial,” he says. “I understand your anxiety. I’m anxious myself.” Actually, Galkin is poised and assured. He has been studying up on jury trials since returning from a Harvard University jury seminar a year earlier, though he likes to tell reporters that his know-how comes from watching courtroom scenes on “Santa Barbara” reruns.

Voir dire of the jurors is next, though it doesn’t reveal much about the panel. Even the prosecutor’s telling question--”Are any of you not happy with the work of the prosecutor’s office or the court because you think your rights have been violated?”--fails to elicit a raised hand. Ninety minutes into the trial, Elizabeta Dunayevskaya, a 45-year-old piano teacher, becomes Russia’s first modern juror. When the jury box is full, Galkin administers the oath. One by one, the nine women and three men stand and say, “I swear.”

*

Juries first appeared in Russia in 1864, as part of the Great Legal Reforms of Czar Alexander II, who liberated the serfs three years earlier. Then, as now, juries were phased in gradually. Then, as now, potential jurors had to be 25 to 70 years old and free of criminal charges. In fact, the new jury law closely resembles its 19th-Century predecessor.

Jury trial flourished during the next 50 years, “and between 1864 and 1917, we had a whole constellation of brilliant defense lawyers,” says Alexei Galoganov, a prominent Moscow lawyer. In two famous trials, one near the beginning of this great experiment and one at the end, juries handed down acquittals that flew in the face of the czar’s authority. In 1878, a jury cleared Vera Zasulich, a young radical who admitted taking a shot at St. Petersburg’s governor. And in 1913, a Kiev jury made up mostly of uneducated peasants acquitted a Jewish merchant, Mendel Beilis, of ritually murdering a Christian child--a charge trumped up by the anti-Semitic Black Hundreds group.

But the Bolsheviks banned jury trial as “bourgeois” shortly after taking power in 1917. Instead, they set up the courts that essentially survive today. Once controlled by the Communist Party, most judges today remain rubber stamps for prosecutors. “Why would a defense lawyer spend his talent and ardor on the judge and those assessors?” asks Galoganov. “He knows no one is listening. The judge doesn’t listen, because he’s busy putting down the verdict.”

The move to bring back the jury began in 1991, when Russia was still part of the Soviet Union. “The Concept of Judicial Reform” was a clarion call issued by the old Russian Parliament’s Legal Reform subcommittee, a hotbed of liberal thinking in the Mikhail Gorbachev years.

Astonishingly frank, the subcommittee’s document described Russia’s courts as “inherited from a totalitarian regime,” “merciless” and as a place where prosecutors won unearned convictions with “mediocre or even bad” investigations. It recommended the return of jury trials.

Pashin was a committee consultant at the time and wrote part of the document. For that, at the age of 29, he was awarded the title of Honored Lawyer of the Russian Federation--the youngest ever to receive it. That same year, he drafted the law that created Russia’s Constitutional Court. (For that he got a bonus of two months’ pay. A new father at the time, he bought a washing machine.)

He joined Yeltsin’s State Legal Agency when it was established in 1992 to study legal issues. Among the reforms he pushed through was a long-overdue law on habeas corpus, which allows arrestees to appeal their detentions through the courts. Then he worked on the jury bill. “Pashin’s very bright, very quick-witted,” says Valery Rudnev, a leading legal writer for the daily Izvestia, who calls the agency “a mighty mobile machine for reforms.”

Pashin studied jury trial at Moscow State University Law School, where he took courses called “Bourgeois Public Law” and “The Reactionary Substance of the Bourgeois Criminal Process.” The classes often taught the concepts--presumption of innocence and trial by jury--that they were meant to criticize. “There were layers of text, and we were skilled at taking them apart,” Pashin says, adding that for students, “some things were just ritualistic, like uttering a prayer. We’d say, ‘The capitalists deluded their people with the help of their reactionary criminal process.’ And then we could go on with the discussion.”

Other Russian reformers besides Pashin have worked to bring back the jury, but by now, jury trial is linked to Pashin’s name. “He’s the real gray matter behind the project,” says the ABA’s Thaman.

Political savvy was another matter. Pashin twice failed to pass the jury bill through the old Parliament last year, largely because of fierce opposition from Russia’s then-Chief Prosecutor, Valentin Stepankov. From the dais, Stepankov pronounced the idea “foreign” and the work of “armchair legal scientists.” One of Pashin’s colleagues in Parliament, Mikhail Paleev, helped to horse-trade with Stepankov’s office to reach a compromise bill. Though it kept the crucial new preliminary hearing to exclude any illegal evidence at the trial, it retained many familiar features of the old court system.

“It’s not going to work,” predicts Izvestia’s Rudnev. “Personally, I am in love with the idea of jury trial. But we are trying to squeeze the jury into the framework of the former Soviet court procedure.” Pashin prefers to think of it as merely a first step. “The new law,” he says, “belongs to the transitional period.”

After the law passed in Parliament last July, Pashin stepped up his own training sessions at the Russian Legal Academy, a brushup college run by the Justice Ministry. His classes stretched into the fall and continued through October’s bloody White House uprising and the crackdown that followed. At mock trial after mock trial, he coached hundreds of judges and lawyers through the new jury trial procedure. Not surprisingly, their skills were pretty appalling. (A devoted viewer of “L.A. Law” probably could have mustered more poise.) “It’s very new; I feel like an idiot,” a longtime defense lawyer complained, grappling with the notions of excluded evidence, juror selection and the simple act of leaving his chair to question a witness.

In November, officials began scrambling as the jury law went into effect in the first five regions involved--suburban Moscow, Ivanov, Ryazan, Saratov and Stavropol (Moscow and St. Petersburg are excluded for now, because their chief judges haven’t as yet supported jury trial). The Justice Ministry had to intervene in Ryazan when reports filtered back that the juries were being handpicked by the court. Saratov, however, was ready. By mid-November, its court put the first jury trial on the calendar for Dec. 15 and assigned the case to its chief judge, Alexander Galkin.

*

With the jury in the box, Judge Galkin delivers an eloquent discourse on presumption of innocence, the nature of evidence and jurors’ responsibilities. He has adapted much of this from a jury trial Bench Book being prepared by the ABA and a team of Russian scholars.

When he finishes, prosecutor Vyacheslav Simshin, wearing the quasi-military blue uniform of his profession, rises to elaborate on the indictment. Simshin has been practicing his speeches for weeks and rereading his Dale Carnegie self-help books. Standing squarely in front of the jurors, he maintains that on the night of Jan. 25, 1993, the Martynovs planned to rob and murder their three drinking buddies.

The Martynovs struck them with the ax handle, he says, and “with exceptional cruelty” finished the job by stomping on the fallen men. The two then grabbed a denim jacket, a mink hat, a gold chain and other items altogether worth about 40,000 rubles, roughly $60 at the time. Finally, Simshin says, Alexander tried to set the victims aflame.

Simshin must prove exceptional cruelty--stomping and burning--as well as the intended robbery, to get a conviction on the aggravated murder charges. Seated near the jury, the victims’ survivors sob. The jurors remain impassive.

The defendants testify that the three men attacked them for their privatization investment vouchers and some jewelry. “One of them said, ‘I’m such a dangerous person in Engels, I’ll burn your house,’ ” Artur testifies.

At the time, Artur was so drunk he was passing out on the couch, the brothers testify. Alexander thought the men were trying to strangle Artur, and he struck out with the ax handle. The men fell, but were still alive. Alexander dragged Artur out of the house, and the brothers fled.

There are problems for the Martynovs with this version. For one thing, at the preliminary hearing, evidence that could have helped them was ruled inadmissible. Another friend was with them that night--a man, they say, who might have gone back into the house to kill and burn the victims. But this witness was deemed too “mentally ill” to testify. (After the trial, defense attorney Romanova reflects that perhaps she should have opposed the exclusion.)

For another, the Martynovs told a different story when they were arrested. Artur initially confessed to attacking the victims, but now he says he was only trying to take on his brother’s responsibility. Alexander confessed to setting the fires--because police beat him, he maintains. The jury must decide which version to believe.

As prosecutor, Simshin gets first crack at the defendants. “How did you make money?” he begins.

Artur: How do people live now? I was unloading things in the railway station.

Simshin: Why do you have no permanent place of employment?

Artur: Nobody was hiring me. Where should I go?

Simshin: What was your brother Alexander doing in Engels?

Artur: He just came to visit me.

Simshin: Were there times when you drank together?

Artur: When I had the chance.

Simshin: When did your wife leave? What was the reason?

Artur: I drank at her sister’s birthday party and she quarreled with me. Not a quarrel, she just decided to leave me.

Simshin: Were there occasions when you used violence toward her?

Artur: (Silence).

Simshin: Did you beat your wife?

Artur: Well, sometimes. Maybe slap her a little bit.

Simshin’s initial salvo is aimed at establishing the defendant’s poor character. Then he asks the brothers--and a string of witnesses--to describe the boots, jeans and jackets they were wearing as they fled Engels. He hopes this will corroborate the circumstantial case assembled by investigators: that robbery was the motive for the alleged crime. But the testimony doesn’t support this allegation.

Returning to his earlier strategy, he calls an Engels resident as a witness and asks: “Are these the people who live next door to you?” After some shrugging and peering at the Martynovs (Gypsies “all look alike,” the neighbor complains), the man says yes.

“And how did they behave?” Simshin asks. The witness answers this one immediately. “They behaved,” he says, “like Gypsies.” Judge Galkin adjourns for the day.

JUDGE: ARTUR MARTYNOV, please explain where you gave truthful testimony.

Artur: Here in the courtroom.

Judge: Why did you give other testimony at the time of the preliminary investigation?

Artur: I wanted to help my brother. But first they beat me, made me sign my first testimony--I didn’t sign, I just put a cross there.

Simshin: You had pressure from the police or investigators?

Artur: When I started telling the truth, they didn’t believe me. They started beating me, saying, “Tell us the truth.”

Simshin: You told someone? A doctor or nurse?

Artur: There isn’t any treatment there. They treat you like a dog. Go there at night sometime, you’ll hear people crying. Please explain, where could I complain?

Trying to point out that the Martynovs could be lying in court, Simshin only elicits this potentially damaging testimony (which jurors later say they believed. Coerced confessions, after all, are part of Communism’s legacy).

Simshin: Why did you give testimony at the preliminary investigation that you burned the house?

Alexander: Because I was scared. The police brought me to a little yard, they blindfolded me and asked me to run. I refused. They started beating me, made me kneel, told me to crawl and they were firing shots. I gave this wrong testimony so they would stop.

Simshin calls more witnesses to testify about what the Martynovs were wearing after that night of violence. But they say the two were dressed as poorly as usual and that they had no extra money or jewels. The police who arrested the Martynovs can’t recall anything about their jeans or boots.

Simshin’s forensic evidence is no clearer. Tests conducted on traces of blood found on the defendants’ clothing are not inconsistent with his theory that blood burst from the victims as they were stomped on. But defense attorneys, gaining confidence as the trial progresses, point out that the tests are not conclusive, either. Simshin then reads aloud a pretrial report on the Martynovs’ poor “character”--their drinking and divorces. Romanova and Afanasyeva counter with a reading of the victims’ past convictions for violent crimes.

Finally, out of ammunition, Simshin makes a dramatic motion. In light of the shoddy investigation, he moves to lower the charges. “The materials were not compiled in the right way,” he says. He will drop the robbery and “wanton” murder charges altogether. (The victims’ relatives, who might have objected at this point, were not in court. They stopped coming after the first day.)

The new indictment accuses Artur of killing just one man, and Alexander of the murder of the other two, “while exceeding the limits of necessary self-defense.” The possible punishment: work-camp sentences of up to 10 years. Closing arguments the next day, Judge Galkin says, will be based on the softened indictment.

Out in the corridor, Pashin looks extremely pleased. Is he certain that Simshin’s hand was forced by the presence of the jury? “I’m completely sure,” he says.

*

“Distinguished jurors, an investigator restores a picture piece by piece,” Simshin says. “It’s like when a little boy takes sugar from the jar without his mother’s permission. The next day, he learns that his mother knew. How? Because his mother was washing the floor carefully, and found the tiny grains. . . . “

The jury hears closing arguments for about an hour. By now, both sides are wielding the time-honored courtroom weapons: folksy wisdom, patriotism, platitudes about the simple life of poor people. Simshin’s sugar story comes not from his Dale Carnegie book, but from a textbook for foreign lawyers written by William Burnham, a specialist in Russian court reform at Wayne State University Law School in Michigan. (An excerpt in Russian has been floating around legal circles.)

“It’s well-known, that sugar bowl story,” laughs Burnham, an ABA observer in Saratov. “I first heard it 15 years ago in Chicago. It’s used where there’s a great deal of circumstantial evidence.”

Asked for their last words, the defendants, too, make their appeals. Artur Martynov: guilty. “Citizens, please believe me. I was drunk. I didn’t do anything,” Artur says. Alexander adds: “I didn’t kill. I just hit and we left.”

Galkin reminds the jurors that their ultimate decision need not be unanimous, although they must try for unanimity during their first three hours of deliberation. After that, a majority rules. A 6-6 vote results in acquittal.

Two hours later they are back, with a unanimous decision. Artur Martynov: guilty. But it is “probable” that his actions were committed in self-defense. Alexander Martynov: guilty, but in defense of his brother. The jury recommends leniency for him. The case has essentially been reduced to manslaughter.

Galkin reads the sentence: For Artur, a year and a half in a work camp. For Alexander, a year. Both are to include time served. The Martynovs smile for the first time, and embrace.

“It was a good, just verdict, based on evidence and the honest work of the jury process,” Pashin says afterward, in his usual measured phrases. Then with uncharacteristic euphoria, he breaks into a grin. “It’s a real holiday,” he says. “And tomorrow is my birthday.” He’ll be 31.

*

“It takes a long time to change a system, it doesn’t happen overnight,” Burnham says on the phone a few weeks after the trial. “But the way to judge if the Russian jury system is working is if it re-instills confidence in the judicial system.”

More than a dozen jury trials later, it’s still too early to know. Already, there has been one outright acquittal, and slowly, defendants in the targeted regions are opting for jury trials. But decades of judicial abuse have embittered Russia’s citizens and left them without a notion of their rights or their power as jurors. After the Martynov trial, one juror, Dunayevskaya, the piano teacher, said that she had been put off by the defense attorneys’ desire to acquit their clients, “because one can’t start declaring the murderer to be fully innocent.”

Another juror, unhappy with the light sentence, is more cynical. “Everything was decided beforehand by the judge,” he says, adding, “It’s not time to start jury trial in Russia. What’s necessary at the moment is a tough, cruel law. We have to get rid of criminals, to have a civilized country.”

The new Constitution approved by Russian voters in December calls for juries, and to Pashin this means that jury trial “will be hard to undo” despite the outcry against crime. It may take 10 to 15 years, he says, but eventually juries will be phased in all over Russia, as they were in the 19th Century. But the Saratov jurors’ sentiments show just how far Russia is from creating the enlightened citizens that Pashin hopes for, and legal reformers know it.

“You know, the economic calamities have told on the population,” says Alexei Galoganov, the defense lawyer. “They have many bitter feelings. Envy. Greed. A feeling about the unfairness of fate. And you need to fight all those feelings to make jury trial work. To make a person forget all his personal hardships and put all his attention to deciding fairly on the fate of the person in the dock.”