The Reformer

by Stephen F. Williams

  In principle a Russian could become a full-fledged lawyer—could move from “assistant” to “sworn attorney” (from pomoshchnik to prisiazhnyi poverennyi)—only after serving a five-year apprenticeship. Happily the apprenticeship rules allowed an apprentice to engage in independent representation of a client without reaching the position of sworn attorney. For the many talented Jews hoping to become lawyers, the rules had a more serious impact, often preventing them from even securing status as an apprentice. If they overcame that hurdle, however, the barriers to their becoming sworn attorneys were of largely symbolic effect—the regime’s way of expressing its attitude toward Jews.1 Apart from these pointless obstructions, the apprentice rules did little to achieve their nominal training goals; in the words of one observer of patrons and their apprentices, “the first did not supervise, the second did not help.”2

  Maklakov’s apprenticeship was especially odd. In one sense, he had two apprenticeships; in another sense, none. A friend of his father, the very distinguished lawyer Fyodor Plevako, asked him to apprentice with him and even seemed to assume he would do so. But Maklakov declined because he thought that Plevako, awash in clients, had accumulated so many assistants that they included quite a few of “deservedly questionable reputation.” Consultation with his mentor L. V. Liubenkov, an elderly justice of the peace, confirmed his intuition and added an additional reason for avoidance. In choosing a patron, Liubenkov advised him, “Don’t go with a famous one; there you won’t learn anything. Don’t go with an unknown; there you won’t find enough work. Go with one who isn’t famous, but soon will be.” Liubenkov believed Alexander Robertovich Lednitskii met that standard, and Maklakov signed on with him. Events, in fact, made that apprenticeship a dead letter, but the two became good friends. When Maklakov set off from Russia for Paris in October 1917 to take up his post as ambassador, the Provisional Government’s wartime security measures kept his travel information largely secret; among those in the know, only Lednitskii came to see him off at the Finland Station.3

  Though Maklakov turned up at Lednitskii’s at the appointed time to start his apprenticeship, he never worked with him. Because of a chance case-scheduling shift, Maklakov stepped into the shoes of Plevako at the last minute as counsel for one of the defendants in a major trial. The client was acquitted. As Maklakov later recounted, “The defense went so well that it made my name. I became an independent lawyer.”4

  The trial involved a set of rather sensational swindles at the Northern Insurance Company. The newly appointed procurator for Moscow, Alexander Makarov, later to be Russia’s minister of internal affairs (indeed, the immediate predecessor of Maklakov’s brother Nikolai), handled the case himself rather than assigning it to a deputy. Just before the trial Plevako was called to the Caucasus to fulfill a prior obligation in another case. Talking up Maklakov with what Maklakov calls “typical Plevako hyperbole,” he urged his client to enlist Maklakov as his substitute. Because time was short, the client had little choice and acquiesced in the substitution.

  In the ensuing high-profile trial, Maklakov’s client, one Setkin, was only small-fry. He had used clients’ funds to gamble on the stock exchange and had lost. Maklakov’s strategy turned on an important idiosyncrasy of Russian law. It gave the jury the task of finding not only the elements of the crime, including “intent,” but also whether the defendant deserved to be held criminally responsible on a moral basis. Perhaps the most famous application of the principle had been in the trial of Vera Zasulich, who had indisputably attempted to assassinate General F. F. Trepov, governor of St. Petersburg. The defense was that years of deprivation and political oppression had developed in her “an acutely sensitive nature”; this provided enough of an opening to allow the jurors to acquit.5 Under Maklakov’s guidance, Setkin openly confessed his guilt, but to explain it he testified that he’d been led down that path by the atmosphere of easy profit on the stock exchange. He also undertook to compensate the injured.

  Although all the defendants were acquitted, Setkin’s case was special because he had confessed his guilt. Maklakov’s closing speech turned that seeming liability into a strength, arguing that in the circumstances a verdict of acquittal “would not whitewash Setkin’s acts.” A reporter covering the trial quoted that passage and wrote, “I congratulate the young advocate on his choice of words that were direct, truthful, honorable, and worthy of the highest justice.” Favorable publicity of this sort solved the standard problem of a young lawyer—how to find clients—and at least in that sense mooted Maklakov’s need to serve an apprenticeship.6

  Though the Setkin defense may have made Maklakov’s name, it was not his first case. That came to him through his friendship with Tolstoy and his family. Maklakov lived with his brother and sister in a small apartment on Zubovskii Boulevard, a few steps from where Tolstoy lived, on Khamovnicheskii Alley (since renamed Lev Tolstoy Street), and they were constantly over at the Tolstoys’. One day Tolstoy asked him if he would represent a member of a sect who had been found guilty of the crime of “inducement to schism” in the circuit court in Kaluga and had been immediately locked up.

  According to the client, all that had happened was that he had passed by a factory as the workers were leaving, and they, knowing him, started to make fun of him. He had evidently overdone his response, but he firmly denied any intent to stir up a religious schism. By providing bail for the defendant, Maklakov made it possible to get an immediate appeal to a Moscow court rather than a delayed appeal in Kaluga. “Appeal” here meant an opportunity for retrial in a higher court.

  The defendant had not testified at the trial, so the conviction was based simply on the evidence set out in the accusation. Maklakov was sure that if he testified the court would acquit him. But the defendant didn’t appear for the retrial, so Maklakov could only argue that even if the defendant said the words charged by the prosecutor, they showed merely a squabble, not advocacy. The court split two-to-one against the defendant. Thus, as Maklakov later said, his “first pancake was lumpy,” which quite irritated him. It turned out that the defendant had been in the courthouse all along but was too scared to enter the courtroom. Maklakov appealed yet another level up, on Plevako’s urging that the Senate (actually a court, not a legislative body) was more liberal on religious matters than the lower court. Here there was no retrial, just a review of the existing record. Maklakov notes that Tolstoy wrote to a friend on the court, asking that the matter be given real attention; he doesn’t say whether such a letter was proper under the prevailing standards.

  At this stage the prosecutor conceded that there was no inducement to schism; rather he claimed that the defendant had blasphemed by labeling the church “vegetable keeper.” But the defendant showed that some sort of Orthodox missal used that very phrase to describe the church. This brought smiles to the judges, and they acquitted.7

  Maklakov took quite a number of other cases revolving around religious conflict and idiosyncrasy, some (perhaps all) sent to him by Tolstoy.8 Maklakov’s accounts paint a picture of Russian life far outside the high culture of his upbringing. One involved beguny, a subset of the Old Believers—Orthodox Christians who rejected Patriarch Nikon’s reforms, of which the most controversial one involved the exact configuration of the fingers and thumb while making the sign of the cross. Beguny is derived from the Russian verb for “run” or “flight,” and the name seems to have been attached to this group because their rules of noninvolvement with the state, or even money, made life in regular society impossible; they lived apart in the forests of the northern provinces. This separate life made it possible for people unknown to anyone to take refuge among them; ill-wishers claimed that they harbored buyers of stolen goods.

  The beguny Maklakov represented were a couple accused of ritual murder, supposedly killing an old man by suffocating him with a red pillow. The “victim” had disappeared after “unknowns” had visited him, but his body was later found in the forest. The procurator argued that analysis of his corpse showed
suffocation by a red pillow and offered “expert” opinions in support. On examination by Maklakov, one of the experts explained that the supposedly suffocating pillow must have been red because the sect itself called this sort of death krasnaia smert, literally “red death.” Maklakov guessed that the phrase was probably a shortening of prekrasnaia, meaning “wonderful.” It appeared that the community had a practice of removing from its midst people who seemed on the verge of death, which the procurator claimed was for the purpose of suffocating them. Maklakov got the help of experts in Moscow to confirm his view, and although the local court wouldn’t allow him to call them, he used their information to frame arguments attacking the local “experts”—one of whom was a theologian who relied entirely on the other expert.

  Luckily for Maklakov and the defendant, an ancient begun approached him at his inn the night before the trial’s last day and told him that when death approached a member of the sect, the dying person was taken away from people and earthly activity so that he would die a “clean” death. But this potential witness was infuriated at the thought that Maklakov might ask him to say this in court. So Maklakov used the explanation in his summation, weaving rhetorical questions into discussion of the supposed experts’ testimony (“Why could there not be another, much more simple explanation?”).

  The jury acquitted, and Maklakov talked with several of the jurors at the train station just before he left the town. They said they believed that the death was caused by suffocation but weren’t convinced that “these people [the accused] did it.”9 The jurors seem to have done their job right, focusing on whether the accused actually committed the crime charged; only on a subsidiary issue did they go off the rails.

  Two other “religious” cases deserve brief mention. The old man who had helpfully explained the “red death” to Maklakov was later arrested for refusal to give his name. The state required identification upon request as a protection against convicted criminals wandering about. The normal penalty was to send the refuser into exile. Maklakov tried to build a record that the defendant had a perfectly innocent reason for his refusal, and he hoped to persuade the Senate that applying the law to such a person would be invalid. The old man’s explanation was that, since the reforms of Nikon, the church had taken the mark of the Antichrist, so he must not disclose his name. The logic of this is not at all clear, to be sure, but Maklakov hoped the reason might prove compelling if described by the defendant in a manner expressing full respect for the judges’ good faith. The trial judges in fact found him guilty but ruled that because of his age he should merely be confined in a charitable institution. Maklakov hoped the Senate would reverse the conviction, but the defendant declined to appeal.10

  Another case involved villagers who had torn down a church in a religious frenzy. Moses Teodosienko, a preacher from another sect, had turned up in town telling tales that he, like his namesake, was going to lead them out of heathen Egypt. Teodosienko left, and then Grigorii Pavlenko, one of the locals, convinced the villagers that he was about to ascend into heaven, and this was going to take place in the Orthodox Church. The villagers went to the church expecting a peaceful event—mothers brought their nursing babies. When they arrived, they found the gates locked, and a “voice from heaven” told Pavlenko that they should break the lock. They did so and entered. Pavlenko and two other people sat on the communion table, which broke apart. At the sight of this, the crowd went crazy, smashing everything of value.

  The authorities initially responded to these bizarre events with great anxiety, talking of shunting the case to a military court (thus making a death penalty possible). In the end they settled for a closed trial in a civilian court, charging Moses, Pavlenko, and several other villagers. The defense, allowable under Russian law, was “delirium” or “frenzy,” which seems an apt label. To pursue it would require a special inquiry, but the presiding judge cut that short. He asked Moses if he considered himself insane, and when Moses shook his head in the negative, the judge refused to order a mental examination. All defendants were convicted and sentenced to penal servitude.

  At this point the case was saved, or at least ameliorated, by Ivan Shcheglovitov, who, as Maklakov says in his memoirs, “was not yet the Shcheglovitov he later became” (an arch-reactionary in his role as minister of justice). As part of his current post, either in the Senate or the ministry of justice, he wrote a report highlighting the defects in the trial, and as a result the sentences were changed to “settlement with special medical observation.”11

  Quite apart from referrals by Tolstoy, Maklakov served as defense counsel in quite a number of high-profile political cases, or, as he said, cases that raised social issues but that the authorities preferred to regard as merely personal crimes. A collection of high-profile political trials in the period from 1901 through 1905 lists six with Maklakov as counsel, dealing with political demonstrations (Sormovo, May 1, 1902, and Novgorod, May 5, 1902), printing and distribution of May Day leaflets by members of the Socialist Revolutionary Party (Voronezh), a strike with the slogan “Destroy the autocracy” (Ekaterinoslav, August 7–11, 1903), an uprising on the battleship Georgii Pobedonosets (August 16–26, 1905), and armed resistance to arrest in a May Day demonstration (1905).12

  A good example of Maklakov’s approach is his defense of a group of peasants in the village of Dolbenkov, who had reacted to various injustices by going on a destructive rampage. They were indisputably guilty. Maklakov’s summation was printed in full in Russkie Vedomosti, a leading liberal Moscow paper. It outlines the ways in which the peasants had been provoked by their employer’s illegal behavior and the local authorities’ indifference. He depicts the violence of the peasants’ reaction as a function of the state’s own brutality and arbitrariness.

  But if you start to blame them, representatives of state authorities, then I ask you: You want to condemn them, but what have you done to remedy their boorishness [grubost]? You have worked on many projects, you have tried to make them passive, subordinate to authority, peaceful before higher-ups. But have you, state authorities, worked to soften their morals, to instill a revulsion against boorishness? And how have you tried to achieve it? In the same way . . . you handled these events, by threatening them with birch rods, that they might all be thrashed. By having Cossack whips whistling down the streets, avoiding no one, sparing not even the children and priests. There are cruel morals among us, but from on high as well as from below. We reap from them the boorishness that we’ve sown. Punish them for having finally rebelled, for having lost patience, but know that once they lost patience, once order was violated, once the crowd broke up, it was inevitable that it would do all that in fact it did. Blame them for boorishness! A bitter joke for them. They are what you have made them, and you can as little reproach them for this boorishness as you can reproach for illiteracy those who have never been taught, or reproach infantrymen assigned as oarsmen for their inability to handle the seas.13

  The trial ended in the acquittal of eighteen out of sixty-three accused. Perhaps more startling, the court itself sent a petition to higher authority asking that those condemned not be deprived of freedom or even subjected to police supervision; the petition was granted.14

  Maklakov regarded the court’s behavior as quite characteristic of the Russian courts before 1903. Defense counsel could argue for favorable interpretations of the statutes, and because “the judges were still judges, the defense counsel spoke a language that was understandable even by judges of an opposite political viewpoint. . . . This common language was founded on respect for the law and right, not on subordination to will, such as that of the monarchy, the majority, the ‘prevailing party,’ or ‘revolutionary spirit.’”15 But the courts became more politicized when a new criminal code reduced the ability of officials to penalize political offenders administratively, and the authorities thus relied more on the courts. The result was more abuse of the judicial process, which Maklakov experienced in his work.16 Jonathan Daly confirms Maklakov’s perceptio
ns. Starting in 1905 the government made a special point of appointing to provincial courts of appeal senators “capable of exercising ‘leadership’ in them.”17 We may safely take “leadership” as a proxy for readiness to advance regime goals directly and by exercising pressure on other judges.

  Before turning to Maklakov’s role in the broader efforts of lawyers, notice how, in all these cases, but especially in the Setkin and Dolbenkov cases, he tries to picture himself in the skin of the defendant. So it is not surprising that after his imprisonment by the Germans for several months during World War II, he expressed regret that he hadn’t been in prison earlier: “If I’d known what solitary confinement was like, I would have framed my defense summations differently.”18

  The rising liberation movement naturally affected lawyers defending political cases. Some developed the practice—Maklakov dates it to a trial in 1903—of going to trial and then walking out in protest, either against a specific ruling or simply in outrage at the accusation itself. In the first use of the new tactic, some peasant defendants had been whipped by order of the provincial governor, and the court ruled that such an administrative measure was not “punishment.” Apparently (Maklakov’s account does not make it clear) the ruling thwarted some sort of double jeopardy defense. At this point defense counsel collectively walked out of the trial, leaving the defendants to their own devices. The ministry of internal affairs threatened at least one of the lawyers with administrative exile but didn’t follow through.

  Maklakov recalled going to Poltava with other lawyers, not to defend but to demonstratively refrain from offering a defense. In the railway car, N. P. Karabchevskii, a very distinguished lawyer whom Maklakov describes as a lawyer of the “old tradition,” expressed his mystification at being summoned to a project where his talent would not be needed. The assembled lawyers met on the eve of the trial. Karabchevskii and another luminary of the old school, P. G. Mironov, spoke heatedly against the new tactic. They could not understand why the “sacred work of defense, their whole raison d’être,” should be cast aside. But the innovators prevailed.