“It’s a foregone conclusion and the trial is to uphold the state and confirm the power of the state,” says William Pomeranz, the acting director of the Wilson Center’s Kennan Institute in Washington and an expert on Russian law. “Justice is not the immediate issue.”
So what can people expect for Griner over the coming weeks and maybe months? ESPN spoke to several experts about the case.
What will happen Friday?
“A trial there is not a trial in the U.S. sense — opening statements, jury selection, ‘call your first witness’ — none of that,” says Tom Firestone, a former resident legal adviser to the U.S. Embassy in Moscow, and currently a partner at Stroock & Stroock & Lavan.
For the most part the “trial” will be a judge reading the prosecutor’s case file into the record. At some point prosecutors will call witnesses, and the judge will often lead the questioning. Sometimes the prosecutors sit there “like potted plants,” one expert said.
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Griner, like most defendants, is expected to spend the trial in a steel-barred cage. There is no jury (Russia uses juries only for the most serious felonies), and there are typically no surprises in court.
“It will just be a very dry recitation of the facts,” says Pomeranz. “There is not going to be a Perry Mason moment.”
Technically Griner’s trial will be public, but not in the sense that Americans understand.
“They let in a couple of people to watch, but I wouldn’t call it a public trial,” Pomeranz says. “I’m sure some state media will be allowed in just to get some initial photos of the proceedings, but I assure you that they won’t let Western media in.”
Firestone says sometimes Russian courts will say a trial is public, but then anyone who isn’t directly connected to the case will be turned away. Her family will not be there. Sources said U.S. Embassy officials are expected to attend the trial with the intention of demonstrating the government’s commitment to her case.
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What can the defense do?
Griner has as good a legal team as she could probably have in Russia, but that doesn’t change her odds in court: 99% of Russian criminal cases end in a conviction, and that’s without the political factors in her case.
“It’s a fantasy for average Russians. It’s a double fantasy for someone in this sort of political case,” Pomeranz says.
There’s a big Catch-22 for defendants, Firestone says: During the investigative phase the defense can find exculpatory evidence and submit it to the prosecutors, but the prosecutors don’t have to include it in the record.
“And then you can try to present it in court and the judge won’t consider because it wasn’t in the case file,” he says.
“That’s the Russian criminal justice system in a nutshell,” Pomeranz says.
The defense has the right to object during testimony, but rarely does and is rarely successful.
What is the evidence against Griner?
No one knows yet other than the prosecution. Maybe they have the goods on her and there’s definitive proof that she did exactly what she’s accused of. Maybe there will be manufactured or specious evidence; there is a well-established history of that from Russian prosecutors.
Witnesses have been known to pop up describing incriminating conversations and scenes. But experts say none of that matters: Evidence will be presented, the judge will accept it, and she’ll likely be convicted as a result.
What’s her best strategy?
It might not be what you expect.
“Traditionally, the best defense is to admit your guilt and hope you get a lesser sentence,” Pomeranz says. “There’s not a lot of examples of people raising strong defenses and getting acquitted.”
In fact, he says, Russian judges tend to be forced out of office if they acquit too many defendants.
Also, experts say, Russia likely would require Griner to admit guilt as part of any deal to release her. A “not guilty” plea and a strong defense could lead to Russian authorities making her life more miserable in the meantime.
Sources close to Griner declined to say how she intends to plead, but experts say that with no chance of acquittal it would make strategic sense to just plead guilty now. That might cause headaches for the U.S. State Department and the White House, but it could make Griner’s life more bearable, and a deal to go home more likely.
How long will the trial last?
Once the trial begins, it can move in fits and starts. Firestone says sometimes a judge will adjourn for several days for no obvious reason. Sometimes, he says, court starts for the day and a witness doesn’t show up “and the judge adjourns for a couple of weeks.”
So while Griner’s case might seem straightforward — she either had vape cartridges with hashish oil or she didn’t — it could take weeks or months to conclude the trial.
“This one is not straightforward because they need to convince everyone she’s guilty and that they have the goods on her. So this is not a normal case,” Pomeranz says. “I would expect there’s a lot of evidence that has to be read into the record and we will just have to see what it is.”
If it’s a foregone conclusion, why are they having the trial at all?
“It’s a negotiation strategy,” says Danielle Gilbert, an assistant professor of military and strategic studies at the U.S. Air Force Academy.
“The trial — and the threat of a long sentence — gives the Russians more negotiating leverage,” she says.
Convicting and sentencing Griner are intended to rouse her supporters into pressuring the White House to make a deal that’s beneficial to Russia. And it works only if Russia treats the proceedings as though they are legitimate.
“Hostage diplomacy relies on the pretense of law to feign a legitimate process,” says Gilbert. “The Russian government is depending on Americans’ own respect for the rule of law to mask their intention to use Griner for leverage.”
“Unfortunately,” he says, “as soon as Griner will be released, the Russians will try to find somebody else and put them in the same position and start over with a different set of conditions.”
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