Francis Powers - Operation Overflight

It hung very heavy.

Often I’d wondered whether there were other Americans in Lubyanka. Maybe even as I took my walks there was someone in one of the adjoining courtyards, waiting for a signal.

Desperate for communication of any kind, I hit upon a way to make my presence known. Although I was forbidden to speak, no one had said anything about whistling.

As I walked, I’d whistle American songs.

Finishing one, I’d listen for a reply.

That there wasn’t one today didn’t mean there mightn’t be one tomorrow, or the day after.

On June 30 I was informed that the investigation was officially completed. There would be no further interrogations.

My first reaction was relief. After sixty-one days the questioning was finally over. Despite all their tricks, I had succeeded in keeping from them the most important things I knew.

The self-congratulatory feeling lasted only until I was returned to my cell. Then I realized that except for reading and walks, there was no way to fill my days.

Another realization followed. Now that the investigation was finished, I was that much closer to the trial. And whatever came after.

On July 9 I had a visitor.

Mikhail I. Grinev was a small, balding man in his early sixties, with horn-rimmed glasses and a wispy goatee. His English was so poor as to be nearly unintelligible—he had studied it in school, used it little since—but as interpreter he had brought along an English teacher from Moscow University.

Grinev informed me that he was a member of the Moscow City Collegium of Lawyers and had been appointed my defense counsel.

I had been hoping for a lawyer of my own choice, an American.

Not permitted.

For seventy days I had been held in solitary confinement. Except for a few heavily censored letters, no communication with the outside world had been allowed. Repeated requests to see a representative of my own government had been denied. Albeit involuntarily, I was learning a few of the differences between Soviet and American law. Grinev would teach me quite a few more.

This was a courtesy visit, he explained. We could not actually start work on my defense until we received a copy of the indictment.

When would that be?

Sometime before the trial; the date was not yet set.

I was curious to know whether the trial would be open to the public. My wife and parents had applied for visas; if granted, would they be allowed to attend?

Grinev didn’t know, or so he said. I was to be tried before the military division of the Supreme Court of the USSR. Often in cases involving state security, as did mine, such trials were closed to the public. The military division, he went on to explain, consisted of three generals—Lieutenant General Borisoglebsky, chairman; Major General Vorobyev, of the Artillery; and Major General Zakharov, of the Air Force—who acted as judges.

I was civilian, I noted, not military.

That was not important, Grinev said. In the USSR all espionage cases came under jurisdiction of the military division of the court.

Would there be a jury?

There were no jury trials in Russia. I should realize, he added, I was being tried before the highest court in the land. And the procurator general himself, Roman Rudenko, would act as prosecutor. Remembering Rudenko from the interrogations, I wasn’t surprised at this.

Procurator general, Grinev explained, was a position corresponding to that of Attorney General of the United States.

The following background piece on Rudenko appeared in The New York Times on August 18, 1960, the second day of the trial. Although I was not to read it until much later, it bears reprinting here for its insight into his character and motivations:

“Traditionally, there is only one side of criminal law in the Soviet Union that offers the attorney opportunities for fame, stature, and high office. That is the right side, the prosecution side. It is the side that Roman Andreyevich Rudenko, meticulously and without ostentation, as traveled for thirty years. He revealed his traits again yesterday in prosecuting Francis Gary Powers, the American reconnaissance pilot. Mr. Rudenko appeared in court as chief prosecutor, not because he is an unusually brilliant lawyer or because he is a particularly striking performer in public, like the late Andrei Y. Vishinski. He apparently holds the office of prosecutor general because he has been a faithful and thorough executor of whatever law was decreed by his superiors in the worst days of Stalin as well as in the best days of Premier Khrushchev.

“He has purged and he has purged the purgers. He has helped to concoct false confessions and fantastic indictments, and he has dealt affably and studiously before a tribunal run in the Anglo-Saxon manner.

“He has stretched the law as ordered, to arrange secret and unconstitutional proceedings, and he has presided over efforts to reestablish the law against the former ‘abuse.’”

Reviewing his career, The New York Times characterized this adaptable man as “careful, capable, and colorless.”

I had the distinct feeling that Grinev expected me to feel grateful for these honors. But he went on to add the liabilities. Since I was to be tried before a branch of the highest court, there could be no appeal of the sentence. While technically possible to appeal to the full bench of the Supreme Court, such requests were almost always refused. Of course, a personal appeal could be made to Premier Khrushchev or to President Brezhnev.

It was interesting. I felt, that we were discussing appeals even before we got around to a defense.

I was fortunate, Grinev continued. In 1958 Soviet criminal law had undergone a tremendous reform. Previously the penalty for espionage had been twenty-five years’ imprisonment, with death in some cases. Now maximum imprisonment was fifteen years.

But still death in some cases?

Yes, he admitted.

Was this one of them? In short, what were my chances?

He couldn’t tell me that, not until after he had seen the indictment. Also, a great deal would depend on my testimony in court.

We wouldn’t have to worry about that factor, I told him, because I didn’t plan to testify. Since there was no question of my guilt, my intention was to plead guilty and let the court sentence me.

That was not the way the law worked in the Soviet Union, he explained. Even should I plead guilty, a trial would still follow, with the prosecution introducing its evidence. As for not testifying, the prosecution would simply read the transcripts of all my interrogations into the record.

Also, my refusal to testify would be held against me.

The explanation that followed was highly technical but boiled down to this: in the Soviet Union there was no such thing as the right to remain silent, no privilege against self-incrimination. They could not force me to testify. But if I didn’t, the judges could draw unfavorable inferences from my refusal. Too, this would show that I was uncooperative and did not feel sincere repentance. And these mitigating circumstances were my only chance to reduce the sentence.

If I had no further questions, he would see me again when he received the indictment.

I had one, though I suspected his presence was in itself the answer. Was he a member of the Communist party?

He nodded affirmatively.

I observed that in my particular circumstances, being both defended and tried by Communists, I could see no prospect of having a fair trial.

On the contrary, he replied, the state guaranteed every accused person a defense. And it was his job to supply it.

Escorted back to my cell, I thought about another important difference between American and Soviet law. In the United States there is a confidential relationship between attorney and client. You can tell your lawyer things you do not wish the prosecution to know, things instrumental in shaping your defense. In short, you can trust your attorney. I couldn’t trust mine.