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George Washington University Law School

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Sunday, August 12, 2012

Random thoughts on the Gu Kailai trial

Here are some more or less random thoughts on the Gu Kailai trial. For this analysis, I’m going to rely primarily on three sources, abbreviated as follows:

1. Xinhua Report: The account of the trial published by Xinhua, China’s official news agency, on August 10th in Chinese and on August 11th in English.

2. Zhao Report: The account of the trial published by observer Zhao Xiangcha in Chinese here and translated by me here.

3. Court Statement: A statement from the Hefei Intermediate People’s Court read out to the press after the trial by a court official on August 9th.

I’ll start with some random observations and then conclude with some summarizing thoughts.

Random Observations and Questions

Zhao Xiangcha. Who is Zhao Xiangcha, why was he allowed to attend the trial, and why did he feel it was fine to publish a report of the trial on line? This was a trial so sensitive that attendance was strictly controlled, and by Zhao’s own account even his pencil was confiscated. In 1980, Liu Qing was sentenced to prison for (among other things) distributing a transcript (not alleged to be inaccurate) of Wei Jingsheng’s supposedly public trial. Why was Zhao Xiangcha confident he could do this?

Why Hefei? The Xinhua Report says, “To ensure an impartial handling of the case, the Ministry of Public Security, the Supreme People's Procuratorate and the Supreme People's Court designated the Public Security Bureau of Hefei City, the People's Procuratorate of Hefei City and the Intermediate People's Court of Hefei City to carry out the investigation, prosecution and trial of the case, respectively.” It is not clear what the legal basis was for this trio of designations. I have discussed this at greater length elsewhere.

The real reason for not holding the trial in the obvious candidate location, Chongqing, can be easily guessed: too many Gu/Bo friends in the police, procuracy, and courts. But why, of all other possible places, choose Hefei? Some people say it’s because Hu Jintao has connections there; others say it’s because Supreme People’s Court president Wang Shengjun has connections there. More interesting is why these connections lead to the selection of Hefei. According to some people I’ve talked to, it’s not just because those connections make the place more reliable. After all, if the top leaders decide on a verdict, is there any court in China that’s going to defy them? No, apparently it boils down to (why didn’t we guess?) money. Wherever the investigation and trial are held, the center is going to pour a lot of money down there. This is a chance for the locals to make out like bandits. Thus, lots of places in China want to be given jurisdiction over this matter, and the place with the best connections wins. Caution: this is all just unsourced speculation.

Residential surveillance. The Xinhua Report says that Gu Kailai was put under residential surveillance (jianshi juzhu监视居住) on March 15, 2012. This raises interesting questions. My recollection is that she disappeared around this time. If she was being held in residential surveillance, where was the residence? Presumably she had residences in Chongqing and Beijing; either place is possible. But nobody knew where she was. Well, maybe she was home but just wasn’t answering the door. But if she was in Beijing or Chongqing, how could the Hefei police, who were in charge of the investigation, enforce it there? Maybe there are provisions for interjurisdictional cooperation in this kind of thing. It seems at least as likely to me, though, that she was subject to the recently legalized, but at the time illegal, practice of the police putting you under residential surveillance at their residence – some kind of guest house with bars on the windows and large guards at the door, possibly in Hefei. But this is all speculation.

Did Gu get to select her own counsel? China’s Criminal Procedure Law (Articles 32, 33) seems to promise a defendant the right to have a lawyer of her choosing, and the Xinhua Report says Gu exercised this right. But there is some reason to be skeptical. On June 10th, Reuters quoted anonymous sources as saying that Shen Zhigeng, a Beijing lawyer experienced in defending anti-graft cases, had been hired by Gu’s family. (This is not quite the same, of course, as saying he had been hired to represent Gu in her criminal trial.) The Zhao Report says that this choice was vetoed by the authorities and that she was required to accept Jiang Min, a prominent Hefei attorney, as her lawyer. Is there any fire behind this smoke? There are two reasons for thinking that maybe there is. First, Shen was evasive when asked by reporters to confirm whether he was representing Gu.

When Reuters called Shen on Sunday, he would neither confirm nor deny he was working for Gu or her family.

"It's still not for certain. I still haven't met with her yet," Shen said, when asked if he was Gu's attorney.

"The judicial (authorities) don't allow comment on these things," he added, when pressed to explain his possible role. "Now the judicial bureau doesn't allow us to have contact with the media," he said.

It’s certainly not true that judicial authorities as a general rule don’t allow lawyers to say whether they are representing particular clients. Thus, if authorities specifically told him not to say anything about this case, that implies that he was connected with it in some way.

Second, it’s hard to understand why Gu would voluntarily have chosen Jiang Min to represent her, and easy to understand why the authorities would have chosen him. From his law-firm bio, it’s clear that he’s a solidly establishment lawyer: a vice chairman of the All-China Lawyers Association and the chairman of the Anhui Lawyers Association. On the other hand, his CV is utterly innocent of any indication of experience in criminal defense, let alone death penalty defense. I don’t even see courtroom experience of any kind. He’s a financial and commercial law expert, apparently mostly transaction-side. He may be very capable at what he does, but is this the résumé you really want in your death penalty lawyer?

“Public” trial. Contrary to what the law would seem to require, Gu did not get a public trial. Attendance was restricted to a government-selected audience. Art. 11 of the Criminal Procedure Law says that unless the law otherwise provides, all trials shall be public. There are exceptions for various kinds of cases – for example, cases involving state secrets (Art. 152). But we have seen no statement invoking any of these exceptions, and indeed the Xinhua Report declares that the trial was a public one. Obviously, if “public trial” just means “trial with a selected audience”, then it has no meaning at all. And this isn’t just me imposing my own interpretation on Chinese legal terms. Fake “public” trials of this kind are common in China, and Chinese commentators make the same point.

Failure of witnesses to appear in court. As far as we know from any of the accounts, the testimony of a number of witnesses was presented, but only one or more (the Chinese source is ambiguous) experts (jiandingren 鉴定人) appeared in court. The Chinese term here refers, I believe, to people such as the guy from the police lab who testifies about what the blood test showed. Chinese law does not in so many words actually require witnesses to show up in court, although that would be a plausible interpretation of what it does say. It requires that testimony be subject to questioning (xunwen 讯问) and confrontation (zhizheng 质证), and it’s hard to see how those rights could be properly exercised against a piece of paper read out by the prosecution. Nevertheless, the Gu trial is far from unique in this respect. One study from about a decade ago found that 85% of trial testimony was simply read aloud in the court and not subject to cross-examination. Indeed, the same study found that in 243 cases of witness testimony being read aloud in the absence of the witness, in 58 cases the name of the witness was not even revealed. No witnesses at all showed up in the Li Zhuang trial in Chongqing. While Gu Kailai may have gotten a raw deal in this sense, it was far from a uniquely raw deal.

Did she indeed confess to everything? All the reports state in various ways that Gu confessed. The Zhao Report says, “She fully admitted her acts in the case without reservation; she offered no objections.” The Xinhua Report says that she “confessed to intentional homicide”. It seems, however, that in fact she did question parts of the prosecution’s case.

Her lawyer raised a number of questions about the prosecution’s case.

  • There was no proof that the poison was cyanide, and the primary symptoms of cyanide poisoning were not present. (Zhao Report)
  • There were problems with the chain of custody of the blood sample. (Zhao Report, Xinhua Report)
  • Heywood’s family had a history of cardiovascular disease; excessive drinking could have brought on heart failure. The level of poison found was quite low. A charge of attempted murder might be more appropriate. (Zhao Report)
  • There was evidence of mysterious doings on the balcony of Heywood’s room after Gu left. Maybe somebody else was responsible. (Zhao Report)
  • She should not be held totally mentally responsible. (Zhao Report)

Gu herself is said to have objected to the introduction of written testimony from Wang Lijun (Wang did not show up at trial), saying it was concocted. (Zhao Report)

Questionable aspects.

(1) When did Heywood meet the Bo family? According to the trial reports, Heywood first met Bo Guagua in England in 2003 (Zhao Report). His first contact with Gu was in 2005 (Zhao Report, Xinhua Report). This doesn’t fit with what we thought we knew before this. The general understanding was that Heywood met the Bo family when he was in Dalian, and that he subsequently helped Guagua get into Harrow. I have no way of knowing which account is true, and just want to note the contradiction here.

(2) When did Heywood threaten Guagua? According to the reports, Gu said she killed Heywood because she feared he was an active, ongoing threat to her son’s life. This doesn’t make sense to me. If her testimony is accurate, Heywood exercised some sort of coercive detention over her son Guagua at some point in an attempt to get Gu to cough up some money he felt he was owed. If this indeed occurred, it must have been when Guagua was in the UK. I haven’t been able to find any news report that specifically says when Guagua started his Master in Public Policy degree at Harvard’s Kennedy School of Government, but we know he graduated in May 2012, so it was probably in the fall of 2010. In other words, we are supposed to believe that as a result of something that happened perhaps years earlier, Gu in November of 2011 felt that a Briton living in China posed an ongoing mortal threat to her son, who had been out of England and living in Cambridge, Massachusetts for more than a year already. According to the Xinhua Report, Gu said, “During those days last November, I suffered a mental breakdown after learning that my son was in jeopardy”. Last November? The Zhao Report says this whole event took place in England. Are we now being told that this “soft detention” took place while Guagua was attending the Kennedy School in Cambridge, Massachusetts? And wasn’t Heywood in Beijing at the time? Something is missing here.

Role of the Adjudication Committee. The Court Statement, somewhat unusually, openly acknowledges the role the Adjudication Committee will play in deciding the case. The Adjudication Committee is a group of senior court officials with the power under the law to make the final decision in any case in which they may interest themselves. Its role is controversial in the Chinese legal community because, among other things, it means that cases can be decided by people who weren’t at the trial. Here, I don’t think it will make a big difference. In any case, however, we have a statement that the judges who presided will not make the final decision. (I don’t want to call it an “admission”, because a role for the AC is not inconsistent with how the system is formally supposed to function.) There’s a terrific paper by law professor HE Xin on the role of the Adjudication Committee that has just been posted on the Social Science Research Network; the author had access to a year’s worth of meeting minutes of a court’s Adjudication Committee. OK, it’s a single data point, but He does a wonderful job in using it to the fullest. Highly recommended, indeed indispensable, for understanding how China’s courts operate.

Heywood relatives and friends. The Court Statement and the Xinhua Report state that relatives and friends of Heywood attended the trial. Who were they? The Court Statement says that an attorney representing Heywood’s family spoke in relation to the criminal part of the trial, saying he would “respect the court’s just verdict.” We don’t know what else, if anything, he said.

Claim for civil compensation? As noted above, the Court Statement refers to “the criminal part” of the trial, implying that maybe there was a non-criminal part. This is quite possible: Chinese law (Criminal Procedure Law, Articles 77, 78) allows crime victims (or in this case, their next of kin) to have a civil claim for compensation heard in the same proceedings as the criminal case. Did Heywood’s family make such a claim? We have this oblique hint, plus the fact that they had an attorney there, but that’s all.

The self-confidence of someone who’s pretty sure she’s going to get away with it. I can’t help but be struck by the large crowd of people Gu assembled outside Heywood’s room on the night she poisoned him. According to the Zhao Report, after leaving Heywood dead or dying in his room, four of them – Gu, Zhang, their driver, and another personal servant of the Bo family – then left the scene, after hanging the “do not disturb” sign on the door and telling the hotel staff not to bother the guest inside, who was drunk. They don’t seem to have been too worried about the fact that Heywood would be discovered dead, and they would be the last people to have been seen with him.

Foreign citizenship? There has been speculation for some time that Gu Kailai might have foreign citizenship, and that that might explain the curious official references to her as Bogu Kailai (adding her husband’s surname to her own) – this kind of name-taking is quite rare in the PRC. But the Xinhua Report officially denies that, at least indirectly: it says she has a Beijing domicile (hukou) and is a registered lawyer. Foreigners can neither have a hukou nor be registered lawyers in China.

Overall Thoughts

Many people are asking what this trial shows about the Chinese legal system. I don’t think it shows us very much. To put it another way, we know very little of what went on behind the scenes, and what we do know does nothing to disconfirm things we thought we knew about the Chinese legal system. In short, most of us are drawing conclusions about the trial based on what we think we know about the Chinese legal system. If we want to go in the other direction – to draw conclusions about the Chinese legal system based on what we think we know about the trial – all we can say is that the trial doesn’t give us any reason to reconsider the conventional wisdom.

I predict, for example (as does everyone else) that Gu Kailai will be found guilty. Moreover, I believe that this verdict was settled beforehand at the highest level – the Standing Committee of the Politburo – and that it was impossible that anything could come out at the trial that would upset that conclusion. However, it is important to note that there is nothing in Gu’s trial or the lead-up to it that would constitute evidence for that belief. It’s other things we know about China and the way courts and the political system operate in sensitive, high-profile cases like this that constitute the evidence for my belief. I’m just applying some knowledge that I already have (or at least think I have) to make inferences about a new situation.

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Random additional thoughts / questions:

1. Assuming, ad arguendo, that Heywood detained Guagua as asserted by the defense, would that constitute a sufficient justification for murder or otherwise mitigate Gu's culpability under Chinese criminal law?

2. It's odd that Zhao neglected to mention in his overview either that "relatives and friends of Heywood attended the trial" or that "an attorney representing Heywood’s family spoke in relation to the criminal part of the trial."

3. To date, I haven't seen anyone express surprise that Wang Lijun's purported audio recording of Gu's description of the murder was not shared with the court either by playing all or a portion of the recording or by reading a transcript thereof.

All very odd, even by kangaroo court standards.

Posted by: slowboat | Aug 13, 2012 5:46:40 AM

All very good points, Don, but let's look at this from a politics perspective. Despite the lack of due process, I think it is unlikely that the Chinese courts, backed by the political leadership, would go through all of this without her having been directly involved in Heywood's death. Using the same kind of intuition you used to analyze the case, it seems very unlikely this was all made up by Bo Xilai's political opponents or Wang Lijun. There would have been far easier ways to attack Bo, and in fact, he never came up at the trial. So I don't see a clear motive on the part of China's leadership or the courts to go through all of this unless she was involved in a crime. Instead, I think the weaknesses in process do not reflect a concerted cover-up in this case (which I know you're not implying), but instead reflect the standard practice of poor due process throughout the system.

That said, I don't necessarily buy the official story of how all of this occurred. The strangest element to me: If Heywood was blackmailing or extorting the Bo family, whether in 2010 or in 2011, why on earth would he be getting drunk with the people he's blackmailing? If he were blackmailing them, he'd be more likely to keep his distance. Knowing the Bo family's power, he'd very likely not travel to Chongqing, he'd not get in a private room with the potential victim's powerful mother, and he'd not happily drink with her. Conversely, Gu Kailai would probably welcome meeting Heywood on her home turf, but she wouldn't want to get drunk with him. (If any of my son's were threatened or kidnapped, I wouldn't get together with the kidnapper for a drink.) We may never get the full or real story, but I'll need a better explanation for why he'd be willing to be in Chongqing getting drunk with Gu.

Posted by: Scott Kennedy | Aug 13, 2012 3:38:09 PM

Hi, Scott. I'm by no means trying to imply that any of this was just made up. I was trying to do two things in this post. (1) A lot of people have been asking, What does this case tell us about the Chinese legal system. I don't think it tells us anything we didn't already think we knew - it doesn't disconfirm conventional wisdom. (2) As the title suggests, I was just writing down some random thoughts and questions that occurred to me and pointing out some things that might not have been obvious to non-law specialists - e.g., the possibility of civil proceedings for compensation. To point out problems in the story we've been given is not to say that *all* parts of it are made up.

Posted by: Don Clarke | Aug 14, 2012 12:31:23 AM

Dear Don, thank you very much for your interesting blog. Please allow me to add some wild speculation to the facts that you have so carefully laid out.

The prosecution's account of Neil Heywood's death only makes sense if if is read as what it is: a scripted narrative that allows Gu Kailai to shoulder all the blame whilst simultaneously providing her with some mitigating circumstances that will probably allow her to escape the death penalty.

Regarding the possible facts of the matter: (1) It seems much more plausible to me that the "teetotaller" or at most light drinker Neil Heywood was vomiting and fell down in the bathroom, not because he was drunk, but because he had already ingested a poisonous substance at that point. (2) It seems quite unlikely that this poison was cyanide, because the strong, acrid taste of cyanide is hard to mask and its toxic effect is near-instantaneous. I would rather assume that he had been given a dose of the "capsulated drugs" that Gu Kailai intended to leave at the scene of the crime in order to suggest that he had died from an accidental overdose (Xinhua report). Also, why would Gu Kailai need mafia contacts in order to get hold of dog poison? Presumably, the "capsulated drugs" that she intended to leave in his hotel room were illegal recreational drugs obtained through her mob contacts, for example crystal meths tablets. (3) When and where was he slipped those drugs, presumably in ground-up form? Most likely during the dinner that he shared with Gu Kailai on that evening (Zhao Xiangcha report). (4) Why did Gu Kailai visit his hotel room after their dinner? To plant the drug capsules in his hotel room and to check up on him, to see whether or not the earlier poisoning had had its desired effect. When she found that it hadn't, that he was still alive – merely being violently sick – she went for her backup weapon, the bottle containing the cyanide compound. This, the idea that he was only administered the cyanide solution as a coup-de-grace while he was already dying from some other noxious substance, some illegal recreational drug, would explain why only small amounts of cyanide were found in his system and why the typical symptoms of cyanide poisoning were not found during the autopsy. (5) Why would the prosecution concoct such an implausible account of the poisoning? Perhaps to protect the identity of another person who was present at the dinner during which Neil Heywood was poisoned. – Where was Bo Xilai on 13 November 2011? Does he have an alibi?

Posted by: Peter Backé | Aug 16, 2012 4:33:45 AM

Has everyone forgot about the Frenchman? The French connection didn't turn up in the trial. This is the biggest mystery to me. The Chinese government has gone out its way to grab the Frenchman from Cambodia, what for?

Posted by: komarusan | Aug 18, 2012 1:50:34 PM

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