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Exactly two months after Brittney Griner was arrested for allegedly bringing drugs into Russia, the same question looms over her case as has from the beginning.
Is the WNBA star the defendant in a criminal investigation or the diplomatic pawn of a hostile government?
From the start, some experts have described Griner as a “high-profile hostage” targeted by Russia as a potentially valuable bargaining chip. Others say Griner is at risk of becoming entangled in the conflict between Russia and the West over the invasion of Ukraine, but insist that so far there is no evidence the Kremlin has interfered with her criminal case.
Which path that Griner’s case follows will play a major role in determining how much longer the two-time Olympic gold medalist spends behind bars half the world away from her loved ones. Russia’s aggressive enforcement of its strict drug laws suggest Griner has a slim chance of an acquittal if she goes before a judge. And yet leaving her fate to the Russian legal system could be far less harrowing than having Vladimir Putin’s regime dictate her future.
“Ordinary cases involving ordinary people who don’t attract the interest of the state can run just fine,” said SMU professor Jeffrey Kahn, an expert in Russian law. “But if the state does get interested in a case … then there’s no telling what could happen. A phone call from someone high up in authority could decide the case, and no amount of legal argument is going to change that result."
Where Griner’s case stands now
Griner has been behind bars since Feb. 17 when she flew into a Moscow airport and Russian customs officials allegedly found vape cartridges containing hashish oil in her luggage. She is under investigation for the large-scale transportation of drugs and faces up to 10 years in a Russian prison if convicted.
In Griner’s first preliminary hearing last month, her Russian attorney unsuccessfully challenged the legality of her arrest and failed in attempts to have her transferred to house arrest. The court instead extended the length of her pretrial confinement by up to two months to give investigators more time to build a case against her.
Griner is scheduled to reappear in court on May 19. At that time, investigators could again request more time to gather evidence or declare the case file ready and formally bring charges against her. Griner’s Russian defense attorney would then have the opportunity to object to any evidence that should be suppressed or request the collection of something missing. Only after that would the trial be scheduled.
A consular officer from the U.S. embassy in Moscow visited Griner on March 23, according to a State Department spokesperson, and verified “that she is doing as well as can be expected.” The spokesperson told Yahoo Sports that the State Department is in “frequent contact” with Griner’s legal team but declined to offer specifics regarding where she is being held or the living conditions at her prison.
Why some experts fear Griner is in a ‘hostage situation’
Since Griner was taken into custody six days before Russia began its assault on Ukraine, the timing instantly raised suspicions. Many experts in diplomacy expressed concern that Russia had seized Griner as a potential asset or viewed her arrest as an unplanned chance to gain leverage over the U.S.
“If we want her out of jail, Russia is going to have some terms,” Evelyn Farkas, a former top Pentagon official, told Yahoo Sports in early March. “It could be a prisoner swap. They also could use it as an implicit threat or blackmail to get us to do something or not do something. Either way, they find it useful.”
The severity of the accusations against Griner also raised concerns that her fate had become ensnared in the geopolitical fight between Russia and the West. Multiple legal experts questioned why the discovery of cannabis oil vape cartridges in Griner’s luggage would spark a criminal investigation into “large-scale” drug smuggling.
For William Pomeranz, a professor of Russian law and the acting director of the Kennan Institute, Russia’s treatment of Griner since her arrest also inspires suspicion. Russia did not grant U.S. embassy officials access to Griner for five weeks, nor does it seem to be in any hurry to charge her and get her case to trial.
“I have every expectation they will drag out the process as much as possible,” Pomeranz told Yahoo Sports. “I think that essentially and unfortunately, Brittney is in the equivalent of a hostage situation. Russia has previously in this position proposed different prisoner exchanges for Russian citizens who have been convicted of illegal arms sales or drugs sales. I’m sure the Russians would at some point be happy to exchange Brittney for one of them.”
Why other experts see no evidence of Putin getting involved
Tom Firestone assesses Griner’s plight slightly differently than Pomeranz. The former resident legal adviser to the U.S. Embassy in Moscow told Yahoo Sports that so far he sees no evidence of political interference in Griner’s case, that delays are common in the overburdened Russian legal system just like they are elsewhere in the world.
"From what I have seen about the case procedurally,” Firestone said, “it appears to be proceeding in a manner consistent with other similar cases.”
To Firestone, the limited coverage of Griner’s case in the Russian state media is the clearest sign that it seems to be following a typical legal track. So far there have been no attempts to use Griner’s arrest as anti-American propaganda. In fact, aside from the release of her mugshot last month, Griner’s detainment has received little to no attention in Russia.
That’s a stark contrast to the cases of ex-Marines Paul Whelan and Trevor Reed, both of whom the U.S. has claimed are wrongfully imprisoned in Russia on trumped-up charges. Putin himself called Reed a “drunk and a troublemaker” in an interview with NBC News last June and lobbied for a prisoner exchange.
The silence from the Kremlin regarding Griner could suggest that Putin doesn’t deem Griner as valuable or that he’s too preoccupied with the war and crippling economic sanctions to formulate a plan for how to try to use her. Either way, Firestone and other experts interpret it as a positive development for Griner, one that could make it easier for her attorneys to negotiate a pre-trial cooperation agreement, the Russian equivalent of a plea bargain.
While cautioning that this “could change tomorrow,” Firestone said that Griner so far has been treated like any other criminal defendant.
“Nothing that I’ve seen,” Firestone said, “suggests that [her case] is being handled in an unusual manner."
Spotlight or silence? How Griner’s loved ones can help
There’s a reason that Griner’s family hasn’t done interviews or social media posts on her behalf and that outspoken WNBA players haven’t staged any “Free Brittney” protests.
Their silence is part of a strategy to avoid saying anything inflammatory that might politicize Griner’s case, drive up her value as a prisoner or jeopardize her safety.
WNBA commissioner Cathy Engelbert alluded to that strategy in her speech prior to last week’s draft. While Engelbert reassured the public that the WNBA is working with Griner’s attorneys, elected officials and the Biden administration to bring Griner home, she offered no specifics and said little else.
“I know we're all frustrated, but we do need to be patient,” Engelbert said. “I know the players have been amazing at following the advice that they're getting and we're getting in order not to jeopardize her safety in any way. We just continue to follow that advice and continue to work on it.”
To Firestone, it’s in Griner’s “best interest” if her supporters continue to remain quiet and avoid politicizing her case. It maximizes Griner’s chances of reaching a favorable pre-trial cooperation agreement or receiving a minimal sentence.
"But,” said Firestone, “if the case goes overtly political in Russian, if they start spreading information through the media accusing her of bringing in drugs to distribute in Russia, then at that point there’s much less cost to raising the profile and making it political. Or if she gets convicted and gets a long sentence, as happened to Trevor Reed and Paul Whelan, then they have much less to lose."
Even if Griner’s family and friends speak out, no amount of public or media pressure is likely to make much difference during a period of renewed hostility and distrust between Russia and the U.S. The former Cold War adversaries are as close to cutting off diplomatic relations as you can be without actually severing ties, not exactly the ideal environment for negotiating the release of a high-profile detainee.
As William Partlett, a Melbourne Law School professor and expert in Russian politics, put it last month, “Given the decreasing connections and trust, any deal is likely to be more difficult and protracted.”
Clues that could reveal what’s ahead for Griner
Whether Putin views Griner as a diplomatic chess piece should become clearer in the coming months as she continues her journey through the Russian legal system. Experts say to pay close attention to whether the court sets a trial date at Griner’s May 19 hearing or continues to grant investigators more time to build their case.
To Kahn, the investigation is simple enough that it would be suspicious if there are more delays. The only witnesses in the case appear to be Griner and the airport border guards who allegedly found the drugs. The primary evidence is the hashish oil allegedly obtained at the checkpoint.
“You might ask what is there to investigate? Why is it taking so long?” Kahn said. “That’s where a little bit of doubt and suspicion and concern creeps in that maybe it’s dragging along because it can drag along, up to a certain time limit.
“There could be bureaucratic or other ordinary explanations for what at first glance seems like sinister machinations of the state. But if we come back on the 19th and the prosecutor and the criminal investigator say more time is needed, you really have to wonder why?"
The other barometer that experts point to is whether the Russian state media begins to use Griner’s arrest in Putin’s propaganda wars. There hasn’t been any coverage yet that suggests Russia views Griner as more than an ordinary criminal defendant, but that could change without warning leading up to her potential indictment and trial.
“From Russia’s perspective,” says Pomeranz, “I think this can turn political when it’s necessary.”