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Can Brittney Griner receive a fair trial in authoritarian, anti-gay Russia?

The answer is complicated.

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Brittney Griner is one of the most prominent out athletes in the world.
Photo by Michael Gonzales/NBAE via Getty Images

The news for Brittney Griner keeps getting worse. On Thursday, a Russian news agency reported the WNBA star’s detention has been extended while she awaits trial for drug charges.

Can a prominent Black, out gay woman receive a fair legal shake in authoritarian, anti-gay Russia?

The answer is not absolute in either direction, though anti-LGBTQ sentiments could certainly impact how her case is handled.

Griner was taken into custody at an airport near Moscow in mid-February for allegedly having vape cartridges containing hashish oil in her luggage. Russian officials announced March 5 they had detained an American basketball player, who was quickly identified as Griner.

The charges that Griner is facing carry a maximum penalty of 10 years in prison. She’ll be detained until May 19.

Griner’s legal team challenged her detention, but their appeal was denied.

There’s a broad consensus that Griner’s arrest couldn't have come at a worse time, given Russia’s invasion of Ukraine. Experts fear the two-time gold medalist and WNBA champion could be used as a ploy for Russian president Vladimir Putin to leverage against the U.S. in response to crippling economic sanctions.

But Russia’s status as a pariah state doesn’t necessarily mean Griner is walking into a kangaroo court, says Jeffrey Kahn, a professor of law at Southern Methodist University.

“In terms of the rules, if followed, yes: it is possible to get a fair trial in Russia,” he said. “But these rules are enforced by, they’re interpreted by, they’re applied by human beings.”

The Russian criminal justice system used to be a classic example of the inquisitorial system, meaning the court is actively involved in investigating the facts of the case. Under the inquisitorial model, the state usually names a special prosecutor — the investigator — to gather all of the evidence. The evidence is then put into a case file, which determines what pieces of information can and cannot be referenced in court.

Contrastingly, Western countries use an adversarial system, in which both sides are allowed to tell their stories at trial. The court is an impartial referee.

Though post-Soviet reforms brought some adversarial elements to Russia’s system — the defense is now allowed to conduct its own investigation — courts still largely rely on tradition.

“For all intents and purposes, the case file really is the center of the trial,” said Kahn. “There is still a deep sentiment that the investigation ought to be done by the investigator, and anything else is not quite up to snuff.”

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Griner is a seven-time WNBA All-Star.
Photo by Stacy Revere/Getty Images

The New York Times reported Thursday Griner is “OK” and permitted to meet with her legal team several times per week. Representative Collin Allred, Democrat of Texas, said last week Griner had been denied U.S. consular access by Russian officials.

But U.S. officials are largely powerless to help Griner, since a foreigner arrested in Russia is subject to the jurisdiction of its laws. That might be why Griner’s friends and family have been relatively quiet about her predicament.

While Russia’s legal system is harsh, Griner faces little chance at a just resolution if she becomes a political symbol. “If it becomes political, then her life is in the hands of one man and his government, Vladimir Putin,” investigative journalist T.J. Quinn said recently on an ESPN podcast.

That’s when Griner’s identity as a prominent gay woman could become especially problematic. Putin’s government has enacted a rash of anti-LGBTQ laws, further stirring homophobic sentiment in Russia.

Last summer, Russia cited public opinion polling that shows widespread animosity towards LGBTQ people in a case brought forth by six nationals challenging the government’s refusal to provide legal recognition to same-sex couples. The case was heard in front of the European Court of Human Rights, which ruled in the plaintiffs’ favor.

The Council of Europe on Wednesday expelled Russia from the human rights body as retribution for its war in Ukraine.

Since Griner’s alleged crime doesn’t qualify for a jury trial, she’ll be put in front of a singular judge, who will be tasked with deciding her fate.

How that judge feels about LGBTQ people is anybody’s guess.

“Will the judge, who’s the decider of fact, have a bias against her because she’s an out lesbian? I simply can’t even speculate,” said Kahn.

Griner has played in Russia for several years, along with other WNBA stars who can make five to eight times as much playing overseas than in the U.S. Clearly, she found her experience in Russia to be tolerable enough to keep playing there.

But then again, playing basketball as a free woman is different than sitting in a jail cell awaiting trial.

“She might’ve thought, ‘The bias and prejudice I’m going to get from some of the people out in the stands and the newspapers and what not, I’m going to get no matter where I play, and I’m just building up a thick skin about it,’” said Kahn. “‘But I never thought I’d be accused of a crime where that’s going to matter much more to me.’”