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When Dead Souls Sue

“It hath often been said, that it is not death, but dying which is terrible.”

— Henry Fielding, Amelia

There’s a big difference between the Russian Court that tried Sergei Magnitsky and the United States Supreme Court that agreed to hear the appeal of Charles Warner. The Russians are content to try a dead man for crimes allegedly committed before death whereas the United States Supreme Court does not want the name of a man it permitted to be executed to appear on an appeal by that man in which he hopes the Court will stop his execution from taking place.

Sergei was a Russian accountant and auditor who worked in the Moscow law firm of Firestone Duncan. While employed there he was investigating a tax fraud that implicated local tax officials and police officers.  Before he was able to complete his investigation he was arrested and imprisoned on the grounds that he had engaged in assorted acts of tax fraud.  Under Russian law he could be (and was) imprisoned for one year without being tried.  During that year he was denied medical treatment, confined to increasingly small cells and, eight days short of the one-year period, he died as a result of untreated pancreatitis,acute heart failure and toxic shock.

The family was outraged.  It believed he was arrested in order to derail the investigation he was conducting and attributed his death to a lack of medical care.  Russian authorities were understandably upset at these claims since, if true, they reflected badly on the Russian legal system. They were especially upset that in repeated interviews the family said Mr. Magnitsky died because of the failure of the authorities to give him proper medical care and, in addition, insisted he was innocent of the charges.  When the family refused to quit giving interviews to the press, the authorities took advantage of a provision in the Russian criminal code that permits a dead person to be tried for crimes committed before death.  Although the criminal code says only the family can demand a trial of the dead man, the prosecutor explained at the beginning of the trial “that the case was reopened to decide the issue of Magnitsky’s possible rehabilitation” since the family insisted on giving interviews in which they asserted Mr. Magnitsky’s innocence. That, said authorities, was the same as demanding a trial.

The Magnitsky trial lasted five-months and at its conclusion the judge delivered a 1 ½ hour verdict finding Mr. Magnitsky guilty as charged.  Commenting on Mr. Magnitsky’s “physical absence,” however, he said no further investigation into his conduct would take place nor would any jail time be imposed on Mr. Magnitsky.   It is by comparing this to the recent actions of Chief Justice John Roberts and his colleagues on the U.S. Supreme Court in the case of Warner v. Gross that one appreciates how civilized that body is

Warner is one of many cases that have been before the courts in which they have been asked to decide on the most humane way to rid society of its unwanted members. A number of recent executions have caused the subject of the procedure to act in ways that inspire revulsion in the onlookers since instead of seeming to die peacefully, they appear to be enduring excruciating pain. Warner was an appeal to the Court by four inmates on death row in Oklahoma.  They were challenging the chemicals Oklahoma uses in executing criminals on the grounds that the chemicals cause extreme suffering and violate the constitutional ban on inflicting cruel and unusual punishment. The four men asked the Court to put their executions on hold while the Court considered their claims. Under the rules of the Court, five Justices have to vote in favor of stopping an execution but only four Justices have to vote in favor of hearing an appeal. In poor Mr. Warner’s case, things got backwards.

On January 15, 2014, four Justices (instead of five)  voted to stop Mr. Warner’s execution and as a result he was executed a few hours later. On January 23, 2014, however, four Justices voted to hear Mr. Warner’s appeal and the case of Warner vs. Gross was added to the Court’s docket. Continuing to refer to the appeal by Mr. Warner’s name, however, was  something of an embarrassment to the Justices since it gave the impression that the Court was agreeing to consider the appeal of a man who did not want to be executed after the Court had already permitted the execution to proceed.  If it did not change the name there would be a disturbing similarity to the Russian court that spent 5 ½ months trying a dead man.  Chief Justice Roberts would be the first to recognize the awkwardness of that.  Fortunately, for the Court three other convicts, including Richard Glossip,  had joined in Mr. Warner’s appeal. To avoid looking foolish, the Court removed Mr. Warner’s name and substituted Mr. Glossip’s name.  The case is now called Glossip vs. Gross.  Whether that sleight change of name  kept the Court from looking foolish, others can decide.

Christopher Brauchli is an attorney in Boulder, Colorado. He can be emailed at brauchli.56@post.harvard.edu.

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