Myths of jury trials: should you always follow the letter of the law?

The fashion for democracy came to Russia, as is known, from civilized Europe. The Russian creative class wanted to imitate the Europeans in everything. For immoderate democrats, the goal was a republic, and for moderates, a constitutional monarchy. This topic was started by many liberals from the nobility: Radishchev, the Decembrist Republicans, Herzen and Ogarev. In the 19th century, liberal scientific and philosophical circles like the “New World”, led by D.S. Merezhkovsky and Z.N. Gippius, came into fashion, where the role of the Church was denied (everyone is his own priest) and there were sobs about how stuffy they were to live under tsarism (later, in 1918, they received liberation so that they could barely escape from Russia to a half-starved life in France).

It must be said that the Russian emperors did not protect autocracy “more than their eyes.”

You can start with Alexander II. Under him, there was an extremely unsuccessful organization of the abolition of serfdom – “one end for the master, the other for the peasant.” Further movement along the path of liberal reforms was also crooked, this also applied to justice reform. There were many bottlenecks there, which were identified, for example, by K.P. Pobedonostsev. Here are a few passages from his article “Judicial Reform” (1865): “Government power had the right to interfere in the administration of the court, if not directly, then indirectly, and the lower bodies of the court were completely suppressed by the supervision of administrative power… The new charter removes this from the judge yoke and provides the court with its own circle of activities.” Judicial reform was carried out by new statutes of legal proceedings in 1864.

Pobedonostsev’s remark is relevant for all countries and peoples and at all times. The independence of the court from the authorities was always indicated, and the right of the judge to make decisions independently always formally took place, and the result depended on the judge’s firm conviction that he was right. I saw this while working in the Military Collegium of the Supreme Court of the USSR (1969–1973). No member of the Politburo of the CPSU Central Committee or lower could force a member of the Supreme Court of the USSR to make an unjust decision (especially since the court was headed by A.F. Gorkin, a member of the All-Union Communist Party of Bolsheviks since 1904). At that time, special importance was attached to the legality and validity of the court decision. The Military Collegium was the highest cassation and supervisory authority, higher was only the Plenum of the Supreme Court of the USSR, consisting of experienced jurists.

Emperor Nicholas I attached particular importance to strict adherence to laws and trusted professional legal expertise. To do this, in 1835 he opened privileged schools of law at two universities (St. Petersburg and Moscow) – the Imperial Schools of Law. Please note – jurisprudence, not legality, because understood that law and justice are closely related, but they are not the same thing. For the last 30 years, people have preferred not to notice this difference. The Nicholas School educated an elite of lawyers with traditional moral unity, devoted to the emperor, a group of cultural legal officials. Nowadays there is an urgent need for such, if you will, purely presidential schools, and not numerous faculties (the name alone speaks of the optionality of the science of law) and law schools, from which artisans from jurisprudence emerge.

There is a question: should people’s fates always be put on trial? Is there anyone else on earth who is given the gift of acting not according to the letter of the formal law, but of being merciful? We don’t discuss Jesus Christ – he is always merciful.

In the spiritual space of our everyday life, this someone is always present and implements that ancient patriarchy that spiritualizes the unspiritual state power. Emperor Nicholas I saw the need for such a figure: “The advantage of autocratic power consists, first of all, in the fact that the autocratic ruler has the opportunity to act according to his conscience and in certain cases is even forced to neglect the law and resolve the issue the way a father resolves the dispute of his children; for laws are a creation of the human mind and they could not and cannot foresee all the intentions of the human heart.” Emperor Alexander III clearly demonstrated the advantage of this power. Some drunken man spat on his portrait in a public place. The man was put in the stocks and sent to hard labor, which was reported to the sovereign. The emperor’s reaction: “And I have to feed this fool at public expense? Let him go immediately with a document that I spit on him.”

Who was spared the death penalty in the USSR? Presidium of the Supreme Council. The Supreme Court of the USSR was preparing for the hearing a brief summary of the aggravating and mitigating circumstances of the case and a summary of whether to pardon or not. The Chairman of the Supreme Court of the USSR A.F. Gorkin at the Plenums of the court always advocated pardon, emphasizing that he was not a lawyer, but a teacher by training.

Sometimes there were few mitigating circumstances. Let me remember one of the cases. The soldier went to take guard duty, received a machine gun and, through the partition in the weapons room, shot five old-timers (this was the third year of service – the so-called “grandfathers”), who repeatedly mocked him, which was confirmed by witnesses. He was sentenced to death, considering that the state of sudden emotional excitement (the so-called affect) no longer existed, because It’s been two days already. The mother arrived, almost an old woman. It was more than a month before the Plenum, and I advised her to return home for now. She replied that she had nowhere to go – she had sold her house in the village to pay a lawyer three thousand rubles (a lot of money at that time). I didn’t tell her anything, but I went to the chairman of the judicial council, a member of the Supreme Court of the USSR, Major General Yu.D. Kozlov (a participant in the Second World War), and reported that the lawyer was clearly cheating – he was taking the case for 20-30 minutes, realizing that he won’t help anything. The lawyer had to answer: he returned the money to the convict’s mother and was expelled from the bar following a letter from the Supreme Court of the USSR. Now a number of lawyers behave no better: first they find out the “budget” of their participation, and then the essence of the case.

With today’s superabundance of laws and regulations, even a qualified lawyer cannot do without a lawyer (especially in civil cases). Lawyers and the jury are a laboratory product of the liberal class, and “the learned class is alien to the world. It despises experience that does not come from thinking… Even in England, where there are no faculties of law, the guild of lawyers took control of the education of their own shift and thereby isolated the development of legal concepts from the general development. Thus, what we still call jurisprudence is either the philology of legal language or the scholasticism of legal concepts” (see O. Spengler “The Decline of the Western World”, written in 1917–1918).

Thus, the learned class in Russia, based on the European experience, in 1864, introduced into the new judicial statutes, including the jury system borrowed from France. He immediately had opponents from among famous legal experts who had many objections, but the main thing is that several non-lawyers, and especially not legal scholars, can, without clear justification, cancel out everything done in the case by professional legal expertise and render a verdict “guilty or not guilty” .

What did the apologists for liberal reforms in justice write in 1864–1866? “Our jury trial, although borrowed from France, showed so much emotional originality that the similarity remained in the same forms… This court gave birth to the legal profession… (Prof. Andreevsky in his lecture “On Criminal Defense”).

Let’s check in the high-profile case of V. Zasulich. If she had not been tried by a jury, she would have been convicted of attempted premeditated murder. From the moment when General Trepov gave the order to flog the prisoner Bogolyubov, convicted of a serious crime, until the moment of the assassination attempt, more than 6 months passed, that is, a state of passion was excluded. Trepov, by the way, received permission from his superiors. But read the lawyer’s speech on the case. There is almost no word on the substance of the criminal offense (in passing). But this is definitely a manual on oratory, or rather, on verbiage. In Soviet and modern courts, he would be asked to speak on the legal merits of the case, and if not, he would be deprived of the word and could be expelled from the courtroom. Here is a quote from his speech: “No matter how gloomy one looks at this act, one cannot help but see an honest and noble impulse in its very motives… Yes, she can leave here condemned… and all that remains is to wish that the reasons that produce such crimes are not repeated… ” That is, the lawyer himself recognizes Zasulich as a criminal, but not the jury – she is acquitted. Kony himself called this verdict the end of justice. The famous Russian philosopher V.S. Solovyov appreciated this with a short verse: “A well-intentioned, but vile joke – what kind of geldings are grazing the people now.”

Nowadays, the topic of juries is being raised by the wonderful Russian actor and talented director N.S. Mikhalkov. First the film “The Twelve”, now the play. Actually, this is in form a remake of the Hollywood “12 Angry Men”. Somehow the Zasulich case and its assessment by a number of contemporaries did not alarm Mikhalkov. He chose the actors to play the jury perfectly. The social cross-section of opinions about the attitude towards the behavior of “Caucasians” in Moscow was also successful – noisy weddings, Lezginka, etc. The rest talk about anything, but least of all about business. They became fixated on the dagger (one or two), but did not remember whose fingerprints were on it, nor on the money found in the accused’s pocket. One of the jurors reasonably states “the case has not been fully investigated,” but the jury does not have the right to direct him to a new investigation. When we admire the footage of a Lezginka boy in his native village with the delight of the militants and in the cell, we completely ignore the fact that blood feud was and remains a recognized custom among a number of mountain peoples, despite the criminal punishment for it.

Returning to the film and the play, let’s say: if the boy is innocent (and he was acquitted), then why is the murderer not punished? We at the Ministry of Internal Affairs always found the culprits. Currently, jury trials are provided for under 19 articles of the Criminal Code of the Russian Federation. By the way, there are not 12 jurors, but 8 or 6 (depending on the level of the court), but the lofty goals of the 1864 reform to establish a “swift, just, merciful” court are still far from being realized. Apparently, B.N. Almazov, famous in the past, is right: “Russians are broad in nature, our ideal of truth does not fit into the forms of narrow legal principles.” This is how it will be in Russia if we live according to the liberal patterns of the reforms invented.