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
