Scholarship Saturday: A dead Private – the greatest influence on Leo Tolstoy

By Isaac Kennen

Scholarship Editor
www.caaflog.org

The Air Force Judge Advocate General’s School’s quarterly publication, The Reporter, has a new digital face, a new online home, and a new blog-like format. (Previous versions can still be found on the AFJAGS website here and here.)

Recent articles posted to the new site cover topics as varied as an assessment of recent efforts to provide law of war and human rights training to the Columbian military, to a practical guide to sentence rehearing proceedings.

An article from that publication, by Air Force Major R. Scott Adams, recently caught my eye: The Court-Martial of Private Vasily Shabunin: An Obscure Trial and its Lasting Impact on Novelist Leo Tolstoy. 

Major Adams’ article contains a detailed account of famed author Leo Tolstoy’s experience as a defense counsel representing a young Army Private who was ultimately executed for striking his Captain.  The article also notes that Tolstoy once, while weeping, said:

[The experience with Shabunin] had much more influence [on me] than all the seemingly more important events of life; the loss of or recovery of wealth, successes or failures in literature, even the loss of people close to me.

In 1866, Count Lev Nikolayevich (“Leo”) Tolstoy (bio/obituary here) was 38 years old and no longer serving in the military. He had published several autobiographical novels by that time (Childhood, Boyhood, and Youth), and the book The Cossacks, but he had not yet published his most famous tomes, War and Peace and Anna Karenina. He had studied law at Kazan Imperial University, but was not a practicing attorney. Nonetheless, Tolstoy was asked to defend Private Shabunin by a couple of old Army buddies, who also happened to be members (jurors) detailed to the court-martial.

The trial occurred during a time of dramatic social upheaval in Russia.  The disaster of the Crimean War, a bloody conflict between Roman Catholic and Eastern Orthodox Christians over access to the Middle East, had left, by some counts, over a million Russian soldiers dead and the Imperial Army in shambles, backwards and weak. To remedy the problem, the Emperor had set in motion a wide-reaching agenda of radical reform throughout Russian society.

Five years before Private Shabunin’s trial, “Alexander the Liberator” had freed the vast Russian peasantry from serfdom. But he left conscription in place. And a conscripted “recruit” in the Imperial Russian Army served for life. Tolstoy later concluded that Shabunin may have been motivated to strike the Captain because he was “persuaded that death was better than the living agony of exile.”

Tolstoy’s performance at trial was lackluster. But, Shabunin’s appeal was also summarily dismissed because Tolstoy failed to ensure his pleadings met procedural filing requirements.

Draconian consequences for clients on appeal due to counsel’s failure to comply with appellate procedures should seem familiar to modern American military justice practitioners. The unflinching dismissal of appeals due to counsel’s failure to comply with procedural filing requirements were this blog’s #5 Military Justice Story of 2016.

For example, in United States v. Reese, 76 M.J. 297 (C.A.A.F. 2017) (CAAFlog case page), a service member’s appeal of his convictions on false official statement and marijuana offenses was summarily dismissed because, although he asked his counsel to file his appeal in a timely manner, that attorney failed to do so. Similar facts prevailed in United States v. LaBella, 75 M.J. 52 (CAAF 2015) (CAAFlog case page). And, in United States v. Williams, 75 M.J. 244 (CAAF 2016) (CAAFLog case page), blundering by government counsel deprived the Air Force TJAG the opportunity to certify a case for review.

All in all, this article is a good read. And, as Major Adams puts it:

[The article] brings to light an obscure court-martial of profound historical and literary significance. . . . [It] also operates under the hope that understanding courts of the past will draw a common emotional experience with today’s military justice practitioners.

- Originally published on November 10, 2018 on www.caaflog.com. Preserved by archive.org, here. In the CAAFLog archive, without attribution, here.