| Reprinted from Pravda Severa
American Themis [Goddess of Divine Justice]
Through Russian Eyes
Andrei Sakharov
Recently members of the Prosecutors Office, bar and Courts from our
Oblast spent time in the United States under the program "Open World",
sponsored by the American Councils for International Education ("Open
World" is a United States government program financed by the U.S. Library
of Congress). There these members became acquainted with the work of their
American colleagues.
Impressions of what they saw were shared with Pravda Severa by
the director of the Solombala Legal Office, attorney Elena Shashkova,
judge of the Oblast Court Yuri Kuznetsov, and members of the Oblast
Prosecutors Office Antonina Podbaronova and Olga Ignasheva.
Attorney Elena Shashkova:
For exceeding the speed limit - prison
I saw what the American concept of democracy is: over there everyone
must submit to general rules. It seemed to me that the principle of
American life is - live as you wish, as long as you don't cause anyone
around you harm. This wonderful principle appeals to me very much, and I
dream of it becoming a reality in our life.
We Russians generally approach laws, norms of behavior on the street
and in society with derision; and they - with respect. And the most
insignificant (by our standards) violations in the United States are
punished harshly. For example, for exceeding the speed limit a person may
be sentenced to prison for a period of up to a year. Of course, their
prisons are not like ours, but they have no less of an effect on the
psyche: we were taken to a typical facility - it seemed as if all the
conditions for a normal life were present, but the environment was
nevertheless oppressive.
Their attorneys have the same problems
With respect to the actual work of attorneys, it differs little from
ours. Moreover, I was amazed that they have the same problems we do. For
example both here and over there attorneys are paid most of the time from
the state budget (due to the financial incapacity of citizens). Therefore,
in the States as in Russia arguments frequently arise with judges over how
much time a lawyer spent studying a case, how much the fee should be for
his work. In general, I formed the opinion that if we were to transfer our
attorneys to work on the other side of the ocean, they would assimilate
quickly.
A plea bargain may not be accepted in court
Because the volume of cases in the U.S. is very great, to save time
there exists a simplified process for handling cases. I'm not prepared
right now to talk about this in
complete detail - we were not shown all the iterations of the judicial
process, but the hearing in one criminal case we saw seemed shockingly
brief.
A man was accused of selling 400 grams of narcotics. The matter came
down to whether the accused would plead guilty or innocent. If the former,
the process would be abbreviated - the prosecution would not need to prove
guilt, the sale is simply accepted as a fact and the sentence is imposed.
The drug dealer pled guilty, and entered into a plea bargain with the
prosecution. His lawyer and the prosecutor agreed that the government
would accept a plea to the sale of a lesser amount of drugs (the entire
quantity of poison was sold in portions), and this meant a lesser period
of punishment.
The prosecution recommended that the court imprison the dealer for 12
years (there are very severe penalties for the sale of narcotics in the
U.S.). Moreover, the judge may decide not to accept the plea bargain, and
he warned the accused of this. In the present case he did just this,
sentencing the dealer not to 12 years, as the prosecutor requested, but to
20 years. All of the Russian lawyers, prosecutors and judges who were
present were surprised by the severity of the sentence.
When this sentence was announced, this man very calmly said "Thank you,
sir". Can you imagine that kind of reaction by an accused in a Russian
court? Over here he would hurl all sorts of accusations at the judge
concerning prejudice, bribes and so forth. Americans have a well-founded
belief that in imposing a severe sentence the judge is expressing not his
own will, but rather is fulfilling the demands of the law. Our people do
not always understand this.
Experienced attorney - fewer problems
The institution of the plea bargain makes the role of the lawyer very
important. He must be experienced and know what kind of plea bargain terms
a particular judge will agree to, and which ones he will not agree to. In
this manner, with an experienced lawyer the client chooses a more
appropriate position to take with the prosecution. The defense and
prosecution evaluate their odds, and this leads to a plea bargain. Why
waste time on empty pretenses when everything about the case is well known
from all angles and one can predict in advance what will be proven and
what will not. It is always simpler to reach an agreement if there is a
possibility of mutual concessions. This American practice seemed to me to
be very reasonable.
In Russia the judge takes on too much
Our judicial system differs from the American one in that the court
frequently reacts critically to the evidence offered by the defense. This
leads to a certain inertia by our lawyers during proceedings: why strain
yourself if even a 100 percent alibi may be placed in doubt by the court.
This is a major concern in the practice of Russian lawyers.
Of course, the new Code of Criminal Procedure from July 1 procedurally
has placed the prosecution and defense on a level playing field, but
everyone's perception is still as it was. You cannot immediately eliminate
the human factor, particularly since many judges have become accustomed to
having an active role in the proceedings, and frequently do not analyze
the evidence, but rather gather it. Over here it has been the practice
that the judge, correcting mistakes made by investigators, kept even
"dead" cases alive, in effect doing someone else's work. Thus, naturally,
judges will need time to adapt their work skills to the new Code.
Nevertheless there is much in our judicial system that is good. One
positive aspect is that in Russia there is a law what describes in detail
the procedures for criminal proceedings (the Code of Criminal Procedure).
When everything is regulated it creates discipline. For example, in
America there is no deadline for handling a case; therefore any given case
may last years.
On the whole the experience we shared with our American colleagues will
be very valuable to me in my work. Each meeting was useful and rewarding.
I would like to thank the organizers on the American side who received us
in the City of Portland: Judith Potter, Neale Duffett and David Cluchey.
We were received not just as professionals, but as friends, with a genuine
desire to make our experience a pleasant one.
Prosecutors of the Criminal Court Section of the Oblast
Prosecutors Office
Antonina Podbaronova (A.P.) and Olga Ignasheva (O.I.):
Plea bargains save money
O.I. - During our vacation we traveled to the capitol of the
State of Maine under the auspices of the program "Open World". My major
impression from what I saw in America: pragmatism and expediency are the
religion of Americans. Everything is so thought out to save time and
money. For example, the selection of jurors is performed by a lower
ranking judge who handles minor cases, but the trial is handled by a
different judge. We do not have this, and procedural issues are handled by
one and the same judge.
The existence of the plea bargain is also a savings of time and money.
In Russia even if a person admits his guilt, nevertheless the trial will
be conducted from beginning to end, calling witnesses from the
hinterlands. And for what? How much money is spent as a result, and if the
witness does not appear - and time! In America if the accused pleads
guilty, a trial does not take place, and the judge immediately imposes the
sentence, without a detailed examination of the case.
Pleading guilty is forever
This approach has one negative - after the plea of guilty no one can
establish the truth. Even if a person has slandered himself and the judge
knows it, he pleads guilty and is punished (and consequently there can be
no rehabilitation - Ed.). Over here a confession must be supported
by the evidence in the case, and the judge deciding the case must be
governed by an "inner conviction". In the event that the jurors convict an
accused, but the judge is convinced of his innocence, he has the right to
dismiss them.
Instead of prison - unremitting control
A.P. - In Maine for insignificant crimes connected with drug use
and alcohol a person is not necessarily imprisoned. So that the convicted
person does not lose work, the judge imposes on him a regime of
"probation", i.e., the person is free of custody, but is under strict
control by the court and police agencies. He is forbidden from having any
alcoholic beverages in his home, and from appearing anywhere in a state of
insobriety.
Some individuals undergoing this regime are required each day to meet
with their parole officer and explain to the official "how I spent my
day", and the convicted person spends only his weekends in prison. Such a
practice is much more effective than simply imprisoning someone for 3
months - the person will come out and again start breaking the law. And
after a year of probation he'll be so tired of the unremitting control
over his life that he'll swear off crime once and for all... People in
Portland do not lock the doors to their houses, they simply have nothing
to fear - all of the criminals are either locked up or don't dare to
sneeze and attract the attention of the police.
Moreover, the concept of "cleansing the record" does not exist in the
American judicial system: he committed a crime a second time - go to
prison, and it doesn't matter at what age the first crime was committed.
But it also happens that a criminal jury finds an accused not guilty of
murder, but the civil court, conversely, awards /a monetary judgment in
favor of the victim. The result is that a person who is, as it were,
officially found not guilty is required to pay a large sum of money to the
relatives of the deceased.
O.I.- After becoming acquainted with the justice system of the
U.S. we became convinced that it is quite possible to work under the new
conditions (jury trials, transfer of a portion of the prosecutorial
authority to the courts). There is no need to fear such a system of
justice - it works quite effectively.
Red tape reigns everywhere
There are moments in America reminiscent of our reality. We attended a
conference of Maine lawyers at which the issue being decided was the
transfer of a portion of the cases from the "district" courts to the
jurisdiction of the state court. The main purpose of this step was to
lessen the case load of the "district" courts. But they simply could not
decide it - each side was pulling the blanket onto itself. In part, the
lawyers were opposed to the transfer, in their words because they could
not travel from other places to Portland. Whatever red tape there was,
remained. It is curious that the symbol of American justice is the turtle.
Informing for the good of society
Informants are a common thing in the States. One drug kingpin got
caught with a stash of drugs on account of his neighbor. She noticed that
the drug dealer had put his yacht in the water unseasonably early, and
reported this to the police. The police found on board a load of drugs,
and now the kingpin will be spending the next several decades in prison.
Smoking is harmful to the wallets of Americans
O.I. - American life is filled with pragmatism. We parked our
car in a space reserved for service vehicles and within five minutes
someone had called a tow truck. Fortunately one person from our delegation
had stayed behind to doze in the car, and he did not allow the vehicle to
be towed. Otherwise it would have been necessary to pay to have the car
released from impoundment. So you see that if there is chance to make a
little cash, Americans always act efficiently.
Recently in America there has been a campaign against smoking, and the
main reason has become not concern for the health of the nation, but the
effect of smoking on national income. It's been calculated that Americans
waste a ton of time smoking, on account of which labor productivity has
suffered. And they've started telling Americans that smoking has a
negative effect on incomes - for them this is a strong incentive to quit
smoking.
In the States people economize with conveniences
A.P. - That Americans try to save money and spend carefully is
obvious. In addition, everything is aimed at personal convenience and is
well thought out. Family crisis centers operate at police stations, and a
person can come in with any sort of problem and talk to a psychologist. We
noticed that child safety seats are kept at police stations, and we asked
why. They were surprised at our question: "How could we answer calls
relating to children without them - what if we have to take the child with
us? He has to be accommodated in the vehicle."
Over there they know how to work but not relax
We visited a well known attorney: his office is very plain, no rich
furniture or other luxuries. Work is more important than anything else,
and whatever career goals you achieve, luxuries in the office don't
matter. Everything is done for maximum result with minimum expense.
O.I. - Having decided to travel to America we expected to
encounter pleasant smelling lavatories and powder rooms, but it turned out
that we were not prepared for a particular (from our viewpoint) excessive
benevolence to one's fellow man. In America the notion of personal space
is highly developed: you can go up close only to a person you know well-
to act otherwise is impolite and the person may feel uncomfortable. I'm
very absent-minded, so I often violated people's sense of space, and
people would excuse themselves: I didn't step on the person's foot - they
put their foot under mine. Russians who happen to be in the U.S. and
encounter this attitude begin to think that Americans should teach
Russian, not the other way around: "After all they're always hovering
around me".
It may be that this is another side of the lack of Russian-style
friendship in America: it does not occur to anyone to ask a friend for a
loan or come by to baby sit a child - it's not customary. In the latter
example it would be viewed as an imposition on a person's time - there are
paid baby sitters, call one.
In the States they are very proud of their democratic attitudes at all
levels. It's customary for a millionaire to interact with a porter with
the utmost respect: he works and receives money and that in itself is a
great service. An official with a rank equivalent to our deputy minister
met our delegation practically on the street, accompanied us to her
office, and poured us water.
Why do the Americans invite us over there and pay for the whole trip?
In the U.S. they suppose that in this way Russia will more quickly
transition to a more civilized level of relationships in society, and
America can spend less money for weapons.
A.P. - Many people thanked us for spending part of our vacation
on this trip - for them this was a shock. |
