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The Mysterious Unanimity Of The Politkovskaya Verdict

The inability of the prosection to prove the defendants guilty says more about the process than about the case itself, the author argues.
The inability of the prosection to prove the defendants guilty says more about the process than about the case itself, the author argues.
Jurors last week acquitted four men who spent the last three months sitting together in a cage at the Moscow District Military Court. Three of the men -- the brothers Ibragim and Dzhabrail Makhmudov and Sergei Khadzhikurbanov -- are Chechens who were charged with involvement in the murder of investigative journalist Anna Politkovskaya. The fourth -- former Federal Security Service (FSB) Colonel Pavel Ryaguzov -- initially faced similar charges, but later his charges were changed to abuse of office and extortion.

There has been a lot of commentary since the not-guilty verdict came down. I think Politkovskaya's son, Ilya, summed it up most effectively: "This means that the prosecution did not present sufficient evidence against the accused."

I attended almost every hearing in the trial and I agree: the prosecutors were not able to fully demonstrate the guilt of any of the accused. But does this mean that they are innocent?

No, it doesn't. And could the jury have returned a different verdict? Yes, it might have. If the jurors had been different. I'd like to argue here that the unanimity of this acquittal can be explained not just by the lack of evidence against the accused but by the specifics of jury trials in Russia.

Blind Alleys

Let's go through the matter step by step. The investigation into the Politkovskaya murder lasted nearly two years. All that time, "Novaya gazeta" -- the newspaper where she worked -- cooperated closely with the probe and steadfastly maintained that the investigators were professionals of the highest caliber. The paper said the investigators were doing everything possible, but that the security organs were obstructing their work.

In all, 11 people were arrested. Only four ended up in court, and only three of them were directly charged with involvement in the murder. Ryaguzov was only charged in connection with an alleged tangential extortion. Khadzhikurbanov was also charged in connection with that incident, as well as being accused of helping to organize Politkovskaya's killing.

Artificially connecting two logically unrelated crimes -- crimes that were only connected by the people allegedly involved -- is a characteristic tactic of chief investigator Pyotr Garibyan. Several years ago, he also combined the cases of the murder of journalist Paul Klebnikov and the attempted murder of Aleksei Pichugin.

As a result, the notary Fail Sadpredinov ended up in the dock together with those accused of murdering Klebnikov. Garibyan believed that Sadpredinov ordered the Klebnikov murder, which was carried out by Kazbek Dukuzov. In that case, the jurors unanimously acquitted Sadpredinov, but the acquittal in the Klebnikov case was less certain. Only eight of the 12 jurors voted to acquit.

The prosecutors failed to make their case. But was it doomed from the start?
I made this diversion from the Politkovskaya case to point out that Garibyan was the chief investigator in both cases. For some reason, he was not able to fully investigate the Politkovskaya killing. He was most likely given instructions to follow just one line and to limit his probe to just certain people -- those who ended up being tried.

But since this version of events -- as we saw in court -- was rather fragile, Garibyan needed to prop it up with a crutch. That crutch turned out to be the story of Eduard Ponikarov, the head of the firm Dzhumandzhi-trevl, which specialized in organizing visas for foreign travel.

In 2002, Ponikarov told prosecutors that officials from the FSB and the Interior Ministry's organized-crime unit were extorting money from him, had beaten him, and were threatening to kidnap him. But at the time, when the trail was still hot, prosecutors declined to open a case. But later, when dirt on Ryaguzov and Khadzhikurbanov was needed, the complaint was dug up and an investigation was opened.

And during the course of this probe, Ponikarov's alleged tormentors were accused of killing Politkovskaya. Investigators believed that Khadzhikurbanov was the organizer of that crime and that Ryaguzov participated in the killing. Later this charge was withdrawn, and Ryaguzov was charged only with extortion and exceeding his authority in connection with the Ponikarov case.

The rest of what I have to say in this piece is just my own supposition, based on my intuition and my own research into the matter. The Politkovskaya case collapsed because Garibyan tacked the Ryaguzov case on to it. After all, unlike Khadzhikurbanov (a former Interior Ministry organized-crime-unit officer), Ryaguzov was never dismissed from service. When Politkovskaya was murdered, Ryaguzov had already been released after serving a sentence for exceeding his authority by planting narcotics on a suspect.

And why were Ryaguzov and Khadzhikurbanov needed? So that the case would have to be heard in the Moscow Military District Court, rather than in a civilian court. I believe that officials thought the defendants -- especially Ryaguzov -- would have a better chance of being acquitted in a military court.

In all the trials I've attended before, I've never seen the accused speaking to journalists during breaks in the proceedings from inside the defendants' cage. During this trial, Khadzhikurbanov gave a running commentary. And the taciturn Ryaguzov also spoke to journalists a few times. Maybe the goal wasn't just to have the case heard in a military court, but to insure that the guards surrounding the accused would be willing to allow their "comrades" to communicate directly with the public.

12 Confused Men

But the main question is why were these two men acquitted? While no one (except maybe the prosecutors) was convinced by the case presented concerning Politkovskaya, the evidence in connection with the Ponikarov case was pretty convincing. And this brings us to the main point: the Russian jury.

In April 2004, a jury of 12 in the Moscow Municipal Court unanimously convicted researcher Igor Sutyagin. He was accused of treason and espionage. The first jury, which --according to later press reports -- wanted to acquit Sutyagin, was dismissed. And the second, according to defense lawyers, was packed with agents of the security organs.

Jury selection in Russia is not very transparent.
I personally spoke with several jurors in that case and I was convinced that the jury comprised people who -- by their social status, upbringing, and spheres of activity -- were inclined to trust the prosecutors and doubt the defense. As a result, despite obvious shortcomings in the investigation, they were so certain that the traitor needed to be punished that they did not even pay attention to the essence of the "crime" with which Sutyagin was charged.

It has since been proven that former foreign-intelligence official Roman Yakimishen was illegally included in the Sutyagin jury. He was actually included in both the first jury and the second. Moreover, the questions that jurors had to answer were phrased in such a way that it was impossible for them not to convict. For example, jurors were asked, "has it been proven that Sutyagin gave materials to foreigners?" The jury said, "yes." And all their subsequent answers proceeded from that first one. Sutyagin was charged with giving foreigners materials from secret sources, but no one asked the jury about that.

Commentators at the time said the judges intentionally confused the jurors. They noted that the incorrect formulation of the questions jurors must answer is one of the most common and widespread ways of manipulating juries. But why am I discussing the Sutyagin case in connection with the Politkovskaya verdict? Because I think the unanimous Politkovskaya verdict is the result of the exact same trick that was used in the Sutyagin case, only with the opposite result.

Loaded Questions

As the jurors in the Politkovskaya retired to their deliberations, they were handed a sheet of questions to be answered. And the first question (I quote from the court transcript) was formulated thus:

"Has it been proven that on July 31, 2002, at approximately 12 p.m. employees of the Moscow city police and the Moscow regional branch of the Federal Security Service, using a complaint from F. Ch. Guseinov saying that his passport and the passport of his wife were being held in an extortion attempt, arrived at the office of the company Dzhumandzhi-trevl, which is located at 12 Nashchekinsky pereulok, Moscow; failed to introduce themselves to E. Yu. Ponikarov, who was in the office of that firm and did not explain the reason for their arrival; struck him with their hands on various parts of his body; and put him in handcuffs? After Ponikarov attempted to flee and summon police, they identified themselves and again struck him several times with their hands and demanded that he write out three statements -- one saying that Guseinov's passport was at Ponikarov's home, another that Ponikarov had no complaints against the police; and a third saying that Ponikarov was ready to cooperate with the FSB. They then demanded $10,000, promising to stop beating him and not to open a criminal case. Afterward, they went with Ponikarov to his home, beating him along the way and threatening him; arriving at his home, without a legal reason, they entered Ponikarov's apartment, broke his telephone and ripped out the cable to his building's entry phone; they then removed him from the apartment by force, striking him, and put him back in the car and drove him outside the city; they strangled him and threatened him and, as a result of these actions, Ponikarov received two wounds to the right side of his forehead and numerous cuts and bruises to his chest and shoulders?"

I deliberately cite this question in its ungrammatical entirety so that the reader can understand the extent to which the judges confused the jury. In this one question, they collected together all the facts that were proven in court, as well as many that were never mentioned. And what were jurors supposed to do? The judges warned them that if they have any doubt, they must respond in favor of the defendants, in accordance with the presumption of innocence. The jury complained that they couldn't answer this question. It should be noted that they have every right to tell the judges that they did not understand the question.

But they didn't do that.

It would seem that the jurors argued among themselves for quite a while. But there is no evidence that jurors felt any bias for or against police or the FSB. Therefore, although it seems likely that the siloviki did break the law in the Ponikarov case, the jurors likely just decided not to get involved.

After all, the guilt of the accused in the main case had not been proven: the evidence was all circumstantial and some of that was flimsy. It is true that one protected witness testified that he'd heard Khadzhikurbanov bragging that he'd "found some people who were unhappy with Politkovskaya's articles and he was going to work on her." But Khadzhikurbanov denied saying this and the jurors took his word over that of a witness who was being shielded by investigators.

Prosecutors were never able to bring jurors over to their side, and the effort to discredit Ryaguzov didn't help. Toward the end of the trial, prosecutors unexpectedly declared that during the investigation Ryaguzov had claimed that Shamil Burayev (the former head of the Achkhoi-Martanovsky Raion who was arrested but was later released for lack of evidence) had asked him to find out the address of a woman who's name ends in "-skaya." Once again, jurors believed Ryaguzov, who testified that he had made that statement under duress.

...Or Loaded Jury?

How can we explain the jury's behavior? Why would they believe the siloviki and not the prosecution? Is it just that the prosecutors were unconvincing? One juror answered this question: "I have no bias regarding agents of the security agencies. Since their guilt was not proven, that means it wasn't proven." And this juror is absolutely right.

But what bothers me still is that I don't believe in the touching unanimity of these 12 randomly selected people. I especially don't believe that 12 people chosen at random would all be willing to completely trust the accused policeman and former FSB agent rather than the prosecutors. This leads me to believe that not all the jurors in the Politkovskaya case ended up on the jury as a result of random selection. I would go so far as to say I think some of them were chosen precisely in order to return a predetermined verdict.

It should be possible to check whether all 12 of these jurors were legitimate by confirming that their names are on the list of potential jurors compiled by the Moscow mayor's office for the years 2005-08. But this is not possible because the mayor's office has not published that list, even though it was legally obliged to do so three years ago.

I do not mean to offend the 12 jurors who acquitted these defendants, whose guilt was not proven. But I do not believe that the jury in such a high-profile political case would be left without supervision. And this means that whoever was running the trial for some reason arranged a not-guilty verdict.

Otherwise, they simply would have disbanded the jury, which is very easy to do. It should suffice to recall that juries have been disbanded three times in the case of the March 2005 attempted assassination of Anatoly Chubais. The jury was also dismissed in the case of former Yukos security chief Aleksei Pichugin. I personally spoke with jurors from that jury and they claimed they were dismissed because they were about to acquit.

Positive Signs

I have intentionally avoided in this essay speaking about the case against the Makhmudov brothers. I completely agree that their guilt was not demonstrated. The only thing that raises doubt is that neither brother was able to remember what he was doing at the moment Politkovskaya was killed. They remember what was happening before the murder and afterward, but the moment of the killing for some reason draws a blank. It would appear to be a textbook case of selective memory.

Those who have seen the classic Sidney Lumet film "12 Angry Men" will recall how one man was able to persuade all the other jurors that the accused was innocent. I don't think this is what happened in the Politkovskaya case. I would hypothesize that the person overseeing the case (if there was such a person) set for himself as his No. 1 goal the acquittal of Ryaguzov and Khadzhikurbanov. He was likely less concerned with the fate of the Makhmudov brothers.

But while achieving the main goal demanded some concrete measures (perhaps including the use of a jury consultant), getting acquittal for the Makhmudovs was easy. There really was no evidence against them except for some doubtful telephone bills and the unconvincing expert analysis of the car that was supposedly used by Politkovskaya's murderer.

Video that showed how the purported murderer arrived at the building and the prosecutors' claims that the tape showed Rustam Makhmudov, a third brother who later fled abroad, were not convincing. Defense lawyers presented a photograph of Rustam that seemed to show he did not resemble the man on the tape.

It seems likely that jurors quickly came to distrust the evidence in the case. The jurors began deliberations from the point of view that the defendants had to be acquitted. If the person overseeing the trial was monitoring their discussions, then his only task was to ensure a unanimous verdict. So that the end of the story would resemble Nikita Mikhailkov's film, "The 12."

But despite my doubts about the impartiality of the jury's verdict and my suspicions that their decision was manipulated, the verdict is nonetheless significant. First, it demonstrated the pointlessness of this particular line of investigation and gave birth to the hope that the Politkovskaya murder will now be investigated properly.

Second, defendants whose guilt was not demonstrated in court have been released. This is a signal to judges that they must learn to acquit people when the evidence presented is insufficient.

Third, the trial made clear that the state can be forced to hold open trials.

And, finally, maybe, because of what was said during this trial, we might someday learn the truth about the murder of Anna Politkovskaya.

Zoya Svetova is a columnist for "Novyye izvestia." This piece originally appeared on the website "Yezhednevny zhurnal." The views expressed in this commentary are the author's own and do not necessarily reflect those of RFE/RL