|
|
|
Spring 2001 LEGAL EXCHANGE NEWS In March of this year a legal delegation from Maine participated in "first of its kind" comparative mock trials with Russian lawyers and judges in Archangel, Russia. The delegation consisted of Professors Judy Potter and David Cluchey of the University of Maine School of Law, Superior Court Judge Roland Cole, Cumberland County District Attorney Stephanie Anderson and Maine lawyers Neale Duffett and Ray Pelletier. While in Russia, the group performed one civil trial and one criminal trial. The Russian participants included law school professors, six Russian trial judges, four of whom visited Maine last summer, a prosecutor and two private attorneys. Students of Pomor State University Law School in Archangel played the roles of witnesses and jurors. The trials were performed in a large courtroom at the Archangel Regional Courthouse, which was filled with spectators made up of Russian students, lawyers, judges and press. A family law dispute was chosen for the civil case, involving issues of child custody, residence, alimony and support. The same set of facts was tried first under the Russian system and then under the -American system. Under the Russian system the litigants themselves have a more active role. Each party made a statement on his or her behalf, after which each of the judges on the three judge panel and each attorney addressed questions to the parties. Closing statements were given by the parties, followed by their attorneys. At the conclusion of the trial the Russian court ruled that under Russian law the particular court hearing the case could not order either of the parties to leave the family apartment, and that issue needed to be handled in a different proceeding. Therefore, it also refused to make any child custody or support decisions and simply left the parties and their children divorced, but living together in the same apartment. In the American version of the case Professor Judy Potter and Ray Pelletier, an attorney with Verrill & Dana, LLP, played the roles of counsel for the husband and wife, respectively. Mr. Pelletier, who is fluent in Russian, conducted his examinations and arguments in Russian, which seemed to amuse the audience. Judge Cole awarded the apartment to the wife and children, gave primary custody of the children to the wife, liberal visitation to the husband, ordered the parties into co-parenting counseling and ordered the husband to pay child support. Following the trial Russian and American participants conducted a panel discussion and fielded questions from the Russian audience. The criminal case involved a robbery of a young woman who was accosted late at night by a young man who claimed to have a knife. The facts were chosen to present issues of witness identification and credibility. In the Russian version of the case, which was tried without a jury as is normally the practice in the Russian system, the three judges played a much more active role than do judges in the United States. After the victim and defendant each made a statement on his or her behalf, the judges actively questioned them, as did the prosecutor and defense counsel. The defense counsel made a motion to exclude a post arrest identification of the accused since it was conducted in apparent violation of the Russian Code of Criminal Procedure. The Court denied the motion. The judges found the defendant guilty and imposed a seven year sentence with forfeiture of his property. Before the American version of the trial started, Judge Cole gave a short lecture on how a jury trial is conducted in the United States. Professor Cluchey lectured on the basic evidence rules. The American version of the case was presented by Cumberland County District Attorney Stephanie Anderson and Neale Duffett., an attorney with Cloutier, Barrett, Cloutier & Conley, as prosecutor and defense counsel, respectively. The all-Russian jury was made up of 8 students, 2 law professors and 2 municipal judges. The arguments and examinations by counsel were vigorous and lively, leaving the jurors spell-bound. The jury took a very short time to acquit the defendant of all charges. There was considerable newspaper coverage of the delegation’s activities, and TV and radio reports. Newspaper reports and comments by Russian host organizations indicated that this is the first time that such comparative US/Russian trials have been conducted in Archangel, and perhaps in Russia. For translations of the Archangel newspaper articles, see below. REICHE SCHOOL - CLASSIC SCHOOL NUMBER 3 The informal relationship between Deborah Twombly's 5th grade class at the Reiche School in Portland and Svetlana Kuznetsova's class at Classic School Number 3 in Archangel is now in its 4th year. The students have often exchanged letters, artwork, calendars and other small items representing their respective schools and local communities. A large package from School Number 3 arrived in March 2001 and Deborah's students prepared a return package for May 2001. DEPARTMENT OF TRANSPORTATION EXCHANGE It is hoped that an intern from the Archangel Regional Transportation Administration will be hosted by the Maine DOT for 6 weeks starting in June 2001. In addition, MDOT is planning to host the Archangel Oblast's Transportation Commissioner, Deputy Governor Peter Orlov, from July 21 to 28, 2001. Mr. Orlov may be accompanied by one or two members of the Archangel Regional Duma. NEWS/NOTES FROM THE ARCHANGEL REGION Signs of spring: On April 16th, the ice on the Northern Dvina River became too thin to walk on, 2 days later the river ice moved out in Kotlas , and on April 26th the ice moved out in Archangel. In mid-April, the teachers and students at Archangel School Number 6 performed 10 days of community service: they gathered clothing and shoes for the orphanages and they performed household chores for World War II veterans. Similarly, the teachers and students at the Archangel State Technical University put on a benefit show which raised money to buy boots and shoes for orphans. The Plesetsk Spaceport (180 miles southwest of the City of Archangel) plans to launch 10 earth satellites in 2001. MEMBERSHIP RENEWALS ARE DUE Enclosed with this newsletter is your 2001 Membership Renewal Form (if you have not yet paid). Please take a moment, make your tax-deductible check payable to the "Archangel Committee" and mail your check and form to: Archangel Committee P.O. Box 105 Portland ME 04112 Thank you! WHAT IS YOUR E-MAIL ADDRESS? If you have E-mail, send us a message at gpmaine@arkhangelsk.org and we'll keep you informed! INTERNET NEWS The Archangel Committee extends our gratitude to Great Works Internet, 9 Pomerleau Street in Biddeford, for hosting our Website. Please check out our spectacular Website at www.arkhangelsk.org, Special thanks to our webmaster, Jim Jacobsen. DATA BASE OF NAMES Help us gather a list of people from Archangel who have visited Maine over the past 13 years, including students, teachers, artists, business people, government officials and friends. If you have any names, addresses, telephone numbers and/or E-mail addresses, please send them to us by mail to P.O. Box 105, Portland ME 04112 or by E-mail to gpmaine@arkhangelsk.org. March 14, 2001 How Does Our Justice System Differ from the American System? By Andreechev Yesterday in the Oblast Court there began ... a game. In the framework of cooperation between the legal clinic of Pomor University and the University of Maine a large group of jurists from Portland - Sister City to Arkhangelsk - is visiting our students and judges. The delegation includes a judge (Roland Cole), a prosecutor (Stephanie Anderson), two lawyers (Neale Duffett and Ray Pelletier) and two university professors (David Cluchey and Judy Potter). Yesterday the first working games took place in the form of a practice trial - involving a civil case (family dispute) viewed from the Russian and American sides. Today a criminal case is being presented. The participants in the trials are judges from the civil and criminal collegiums of the Oblast Court and American Judge Roland Cole, Russian and American prosecutors and lawyers, and students of the legal clinic of Pomor State University, which are representing the interests of the parties. Students and teachers from other law departments in the City were invited to play the role of the public in the court room. Judgments and verdicts in the family and criminal cases will be rendered on the basis of Russian and American law. Participants will discuss the verdicts which, undoubtedly, will differ and will allow to some extent a comparison of "our" and "their" laws. The lawyers will also enjoy comparing the judicial process, while the students will-be able to gain skills in preparing for a court session, working with evidence, witness examinations and participating in discussions. This is the first time such mock trials with participation by professional judges take place in Arkhangelsk. March 22, 2001 Court There (in America) and Here (in Russia) By Nuzhnaya As we reported, last week in the Oblast Court there took place quite unusual - practice court trials. With the participation of jurists from Portland (State of Maine, USA), who traveled to Arkhangelsk in the framework of cooperation between the legal clinics of Pomor University and the University of Maine. For two days professional judges, prosecutors and lawyers (ours and American) conducted two court cases each - identical civil and criminal matters, moderated by American Professor David Cluchey. The parties and witnesses in the civil case (as well as the accused and jurors in the criminal case) were students from Pomor Law School. After the court proceedings they discussed the similarities and contrasts between the judicial processes of Russia and America with the assistance of the judges, their teachers, and the professors from the State of Maine. Spectators in the court room consisted not only of judges and law students, but also our corespondents. Case No. 1: First Consider the Children The facts for the civil (family) dispute were thought up by the Americans with the maximum, as they probably thought, relevance to Russian reality. A husband &rid wife are getting divorced, they have two daughters, three and six years old. There is also a grandmother - the husband's mother. They are renting an apartment with three bedrooms, which is not within their means. The wife doesn't work - she cares for the children. The husband wants custody of the children and for the apartment to be awarded to him, but grandmother will take care of the children. He says that his wife always paid little attention to the children, often hung around with friends and even took trips. The wife wants to remain in the apartment with the children and receive alimony for herself and them: she can't work full time until the children finish school. The wife's friend - one of the witnesses - testifies that the mother-in-law never does anything, just sits and criticizes the wife... Our judges after five minutes in the deliberation room decided: to grant the husband's complaint for divorce, to deny the wife's complaint seeking money from him, to refer the dispute about the apartment to a separate judicial proceeding. The American judge Roland Cole granted the spouses joint custody of the daughters, but left the apartment to them and their mother: after all she "is best qualified" to raise the children. The main actors in the Russian court process were the spouses themselves: the judges, prosecutor and attorneys directed their questions to them. Their answers were such that the proceeding looked more like a family squabble: "He provides money only for food, but I need money myself, for example, for transportation..." "I gave in to her desires, and allowed her to suffer moral decay. What are your reasons for drinking?" Questions, answers - just as in real life. During a break I inquired what the judges sitting in the court room were thinking. They said that such divorces don't occur over here, that everything in this family is too good: the husband is working, supports the family, there is even a grandmother who can baby sit the children. The police were not called a single time, there were no fights - what's the problem? Live and let live. A divorce here is when they fight, break the dishes and then divide-up the spoons. When the American judges and lawyers took the "stage" everything changed. Now the parties were more subdued - the lawyers did the talking. And so vivaciously and articulately, just like in the movies. They demonstrated cross-examination: the wife's lawyer conducted the examination of her and directed questions to her husband and his witnesses, the husband's lawyer took charge of questioning her client. The wife's lawyer - the vice chairman of the Archangel Committee in Portland Ray Pelletier - conducted the examination in Russian and did not always correctly frame the questions, but meticulously questioned his client about the children: who feeds them, who changed the diapers, who does the laundry, who do they turn to when they wake up at night, and so forth. The husband's lawyer, Judy Potter, also without superfluous words and even with humor elicited everything that was needed. The judge took all this in and sometimes intervened: after the husband declared that he watches educational programs with his daughters, Roland Cole asked: "And do you know what teletubbies are?" The student kept his composure and answered: "I don't know their names, but I know their colors" With respect to the student who was playing the role of the mother-in-law the judge inquired how old she was, and she answered: "Sixty". The judge then observed that he is two years younger, but would like to look as good as this "grandmother." "I considered above all the children, - said the American judge, commenting on his decision. - The parents must be parents, this is their fundamental job and, in order to raise good children they must cooperate." Therefore he ordered joint custody - the father will visit the children, deciding together with the mother all financial problems. The interests of the grandmother were also considered, and she will be allowed to visit her grandchildren and be with them when the parents are absent. And to divorce the spouses and leave them to live in one apartment - this is totally the Russian way, isn't it? That way they'll live in discord, tormenting not only themselves but the children. You're Giving Jurors to the Russian Courts! By Sakharov Case No. 2: In the criminal proceeding a quite common crime was presented: robbery with a weapon or implement used as a weapon (Article 162, Part 2, Par. G.). The fact pattern of the case was as follows: a young man was walking home from work and on the way he robbed a young woman of 370 rubles, in the course of which he threatened her with an object resembling a knife. The victim called the police, which resulted in a patrol detaining the suspected fellow in the vicinity of the crime, which fellow at the appearance of the cop car started to run. The girl identified him. (Although she saw him only two seconds). The testimony of the victim represented the primary case against the accused. Our judges dealt with the situation very quickly, the meek attempts on the part of the attorney to prove that the detention by the police violated the code of criminal procedure were unsuccessful. The court announced the verdict: guilty. Seven years incarceration. The American proceeding was completely different. The main difference between their court and ours: guilt or innocence is decided by a jury of twelve persons, not the judge. The latter just determines the amount of punishment. The defense counsel and prosecutor do not address the judge, but rather the jury. The defense attomey rnust convince them of the innocence of his client, and the prosecutor, naturally, the opposite. The jurors alone decide which side's evidence is convincing and whose arguments are more weighty. The jurors were selected from the students attending the seminar. They were so hypnotized by the competition between a genuine American prosecutor (Stephanie Anderson) and defense counsel (Neale Duffett), with their vivid verbal depiction of the facts, that with typical youthful liberalism the students found the accused completely innocent of the crime. In our justice system everything, as a rule, is settled by one individual in the person of the judge. And one cannot help but wonder, why after all do we have public proceedings in which the prosecutor, defense counsel and witnesses participate? It would be enough to forward to the court in written form the records, examinations, speeches by the defense counsel and prosecutor, and a verdict or decision could be written in the peace and quiet of chambers. And we wouldn't need any tedious crowded court sessions. Because essentially the judge in our system is simply a civil servant, for all intents single handedly deciding all disputes. The participation in certain proceedings of two peoples assessors in reality, as a rule, is a fiction. The judge has the ability to manipulate the participants in the proceeding according to his views. There are so many hooks in our laws that if one wishes, any action by the defense counsel on behalf of his charge can be "baited" [on the hook] and tossed so far away that no one will be able to interfere with the disposition of the case. For our judges the fact that a person being approached by the police began to run is already proof of guilt. The fact that people are sometimes hurrying somewhere and may break into a run makes no difference... Our statutorily declared adversarial trial process remains only a declaration. The lawyer mumbles something, introducing into the record the next document in order on behalf of the accused. And so what? Somewhere in the confines of their chambers the judges ahead of time consider the evidence presented by the parties, then enter the courtroom with their minds almost made up. Whether to admit a document offered by the defense counsel into the record or deny a motion - little turns on this decision by the judge. Quite a different matter with a jury, which listens to the arguments of the defense counsel from beginning to end and compares them with the conclusions of the prosecutor. As the American judge Roland Cole said, the institution of the jury protects society from incorrect decisions by judges. Essentially they are judges, just selected from the people. Trial by jury is really a complete process, not an abomination. And the main protagonists, prosecutor and defense counsel, actually compete with each other before the jurors, and don't just discharge their duties with their opening statements. The judge merely insures that everything takes place within the framework of the law. Moreover, he [the judge] is actually independent. You can't pressure him with administrative resource concerns or other methods - the primary decision is made by the jurors. The result is less paper shuffling, the judges are freed from the performance of processes which interfere with the case. They actually "judge", regulating the flow of the trial. Still another "plus" of the American court system: the work of the attorney is immediately obvious, and "hack work" does not make is past the jury. The defense counsel is compelled to perform, to try to prove the innocence of his charge, otherwise he will completely discredit himself. An attorney who does nothing in defense of his client will quickly be out of work. And no amount of promises from the judicial bench can force him to deceive the accused: "Just admit your guilt and they'll let you go" (as happens in our system). It would be good not only for more of our lawyers, but also many of our prosecutors to take part in practice trials like these, in order to better learn from the Americans how to articulately, elegantly, clearly and logically compose their arguments. As it is, sometimes in our courts the parties cannot tie two words together, even if you were to subject them to an examination of their oratorical Skills. The judge who presided over the Russian version of the trial was not satisfied with the decision of the "American jury", viewing the result with no sense of humor. When asked why they reached the decision they did, the "jury" was unable to give a well founded answer. Maybe they simply felt sorry for the "accused". However, the verdict pleased the spectators and they greeted it with applause. |
|
Send e-mail to webmaster with
questions or comments about this web site.
|