Appeal or wait? Brittney Griner’s legal team faces tough decision post-sentencing, says expert

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US basketball star Brittney Griner’s legal battle is far from over, despite being sentenced to nine years in a Russian prisonsays Russia expert Kimberly St. Julian Varnon.

The two-time Olympic gold medalist was arrested in March for bringing two vape cartridges with cannabis oil into Russia. She pleaded guilty in July, but said she “had no intention of breaking any Russian law,” and added that she brought the vape canisters into Russia because she had packed in haste for her flight.

But St. Julian Varnon says now that the award has been passed, Griner and her legal team have some options. She says they will be able to appeal the decision, which could reduce her sentence, and Griner will also be able to ask for a pardon from Russia President Vladimir Putin.

US President Joe Biden is facing increasing pressure to make a prison swap with Russia that would see the hoops star return to home soil.

St. Julian-Varnon advised the WNBA Players’ Association on the case and is a PhD student at the University of Pennsylvania. Here’s part of her conversation with The Current guest host Peter Armstrong, and a look at what a prison swap might look like.

Where do you think we are in that process and what are the big challenges of getting that deal done?

So this morning, as The New York Times reported, Russia is now in earnest engaging in negotiations for a prisoner exchange. The deal has been on the table for a few weeks now. But Russia has always said that it will not engage in any negotiations until the Russian legal process has been completed — and with the conviction, that process is complete.

I think the next few weeks are going to be important, because Brittney Griner and her defense team have the legal possibility for an appeal. So they have 10 days to file that appeal from the conviction date.

So depending on if they file an appeal, which they probably will, the appeal could take days, weeks to months, depending on how far up it goes. And actually, in the Russian legal system, there are successful appeals. Many of them don’t overturn sentences, but they do decrease sentences towards the minimum that the Russian legal code allows.

WNBA star Brittney Griner is escorted to a courtroom. Russian officials said the country would be open to discussing a potential prisoner swap with the US (Evgenia Novozhenina/The Associated Press)

So that’s also a possibility. But in terms of the prisoner exchange, we have to think about the appeals process.

But also, will Russia accept a two-for-one deal that it seems that the United States is offering: Viktor Bout, the convicted arms trader who is in American federal prison, serving a 25-year sentence, in exchange for Brittney Griner and Paul Whelan, who was convicted of espionage in 2021.

So you have a problem in terms of American politics and how this deal is being viewed. Political discourse is split right now. There are Americans who think that Brittney Griner, she admitted guilt, she’s guilty so she’s not unlawfully detained, that she should serve a nine-year sentence.

And then on the other hand, you have people who want her out immediately, who want this deal to be done. And then you have another group of people who are concerned that, is it fair that a convicted arms dealer such as Viktor Bout gets out of prison in exchange for two Americans?

So this is a very complicated situation for the Biden administration, never mind American mid-term elections are coming up in November. So this situation that has been a political firestorm since the news broke has a lot more meaning right now as we go up towards the midterm elections.

Quite clearly, the Russians have more bargaining power than the US Am I right in that?

Absolutely. The cards are in Russia’s hand. They get to dictate the terms of the negotiations. They also get to dictate the time frame. And because Russia knows how much public pressure is on the Biden administration, what impetus is there for Russia to move quickly on this?

The longer they drag this out, the more public pressure is on Biden and the more they can try to get out of the United States. And so this is what the Biden administration is having to deal with. You have your cards on the table. Everybody knows your hand. But we don’t know what Russia is willing to do, or what Russia’s asking for.

Meanwhile, she’s in a Russian jail. Can you just give us a sense of what the conditions that she’s facing are like, while she’s being held there?

She’s in pre-trial detention, as she will be until she’s moved. She was sentenced to a penal colony. So pre-trial detention is kind of like a jail.

Griner holds an image of a basketball team at his hearing on Thursday. (Evgenia Novozhenina/Pool Photo via AP)

The penal colony is a totally different ballgame. The penal colony, if you think about the gulag in Soviet history, these are just the descendants of the gulag. You’re going to be doing a lot of work. It could be manual labour, it could be sewing uniforms, and it’s more of a camp. So think less of cells and more like barracks.

And the problem there, I think, is you’ll see more of isolation. So there’s no guarantee that she’ll have anyone with her that speaks English.

On the one hand, you have this decision that she and her legal team will have to make about an appeal. But if you think there’s even a chance that there could be a political deal for a prisoner swap … how tricky is that decision going to have to be for Griner and her team?

It is a very tricky situation. So if you don’t do the appeal, you’re hedging your bet on a prisoner exchange or, now that she’s convicted, she can file and write to President Putin and ask for a presidential pardon.

It is possible, however, you’re putting a lot of eggs in one basket.

So what the appeal does is it allows her to challenge this nine-year sentence and possibly get it down to the minimum of five years. So these are all things they’re going to have to think about.

But I do think they’re probably going to go for an appeal just to do everything that they can with the Russian legal system to try to get her either a smaller sentence or get her released.

Written by Philip Drost. Produced by Anis Heydari. This Q&A was edited for length and clarity.

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