Chinese Law Prof Blog

Editor: Donald C. Clarke
George Washington University Law School

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Friday, August 17, 2012

Does it matter that Xinhua called the evidence against Gu Kailai “irrefutable”?

There have been some rumblings in the press about Xinhua having declared the evidence against Gu Kailai “irrefutable” before she even went to trial. The implication of these comments seems (at least to me) to be that Xinhua’s declaring the evidence irrefutable before the trial somehow indicates that the fix was in.

Now, just to be clear about this, I am not disputing the point that the verdict is a foregone conclusion. It will come out on Monday, and I don’t think I’m going out on a limb to predict that she will be found guilty. But it’s important to point out that the Chinese system is designed to prevent cases about which there is any uncertainty about the evidence from getting to the trial stage in the first place. Weak cases are supposed to be sent back for more investigation or else dismissed. That design is not necessarily inconsistent with producing a just result.

In other words, if everyone involved in the investigation and prosecution of the Gu case did their jobs in an utterly impartial, objective, and highly competent way, Xinhua—and indeed any observer—would be justified in concluding that the evidence must be pretty strong. Therefore, we can’t take Xinhua’s statement as prima facie evidence that the whole proceedings are biased. Sure, China’s conviction rate is incredibly high: from 1997 through 2005, only 0.66% of criminal defendants upon whom judgment was pronounced were found innocent. The acquittal rate in South Korea, however, is even lower: 0.5%. In Japan, it’s below 1%. (I’ve blogged on this here, with a note on US acquittal rates as well.) That might be because a lot of innocent people get convicted in South Korea and Japan, but it might also be because prosecutorial incentives are such that prosecutors don’t want to bring cases with the remotest chance of losing.

China is not, of course, South Korea or Japan, the biggest difference (relevant to this discussion) being that judges in South Korea and Japan have much more independence. Judges in China are subject to the same political leadership—the local Party Political-Legal Commission—as prosecutors and police. Still, the point remains that when the system functions as it is formally supposed to—a way that is by no means unique in the world, inherently unfair, or confined to single-party dictatorships—we would still expect to see a very high conviction rate.

August 17, 2012 in Commentary, News - Chinese Law | Permalink | Comments (2) | TrackBack (0)

Thursday, August 16, 2012

Gu Kailai verdict scheduled for August 20th; my op-ed

The Hefei Intermediate People's Court will announce the verdict in the Gu Kailai trial at 9 a.m. (local time) on August 20th.

In the meantime, here's an op-ed on the trial that I've published on CNN's site. Please note that it does not even attempt to deal with the problems in the official narrative, and I take no responsibility for the title. Contrary to what some of the commentators seem to think, it's not an argument that Gu has been railroaded.

August 16, 2012 in Commentary, News - Chinese Law | Permalink | Comments (1) | TrackBack (0)

Lawyers complain about re-education through labor

Here's a report (in Chinese) about an open letter submitted by ten lawyers to the Ministry of Justice and the Ministry of Public Security proposing changes in the system of Re-education Through Labor (劳动教养) (RETL). This follows on the heels of the Tang Hui incident, where a woman was sentenced to RETL for petitioning too persistently about the case of her daughter, who at age 11 had been kidnapped, raped, and forced into prostitution. (She felt the perpetrators, with police collusion, had been inadequately punished.) After her case was publicized, she was released following an online outcry. (Post hoc ergo propter hoc? You be the judge.)

In the Sun Zhigang case, after the death of a young man in a Custody and Repatriation center in 2003, three young legal scholars famously wrote to the National People's Congress urging that the long-controversial system of C&R be abolished for unconstitutionality. It was indeed abolished (although not necessarily as a direct result) shortly afterwards. Could Tang Hui be the Sun Zhigang of RETL? Or does someone need to actually die in this system first?

August 16, 2012 in Commentary, News - Chinese Law | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 15, 2012

Hu Shuli on the Gu Kailai case

Here's Hu Shuli on the Gu Kailai case. It's a pretty bold piece, proclaiming as it does that the system, functioning normally, would have let her get away with it: "If it weren't for Wang Lijun's stay in the U.S. consulate, there would not be any public information about it and no justice for the dead. The criminal would still be at large, holding an untarnished reputation as a high-powered lawyer and spouse of a senior official."

Hu also points out the irony of all this taking place amid a supposed "law and order" crackdown on organized crime: "All this happened in Chongqing, where a campaign against the local mafia was touted as a major achievement in governance. It also happened in China, a country in which the constitution upholds the rule of law. What Bogu and her associates have proved is that they were the strongest criminal gang."

Why Bo Xilai ever was, and remains, an idol of the new left is beyond me.

August 15, 2012 in Commentary | Permalink | Comments (0) | TrackBack (0)

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.

August 12, 2012 in Commentary, News - Chinese Law | Permalink | Comments (5) | TrackBack (0)

He Weifang on the Gu Kailai trial

Law professor He Weifang has posted the Xinhua report of the Gu Kailai trial on his blog and appended some, well, let's just say not entirely credulous comments.

Here's my translation, followed by the Chinese text of his comments. I think his title is a pun, but am not sure. I'll ask him. [AUG. 13 UPDATE: I asked, he answered. It's not a pun in the way I thought.]

An Impossible Situation [also perhaps a pun for “Protect Gu Kailai No Matter What”?]: Her hasty trial left more questions than it answered. Her motive for deciding to murder was to protect her son; is there any solid evidence that her son’s life was in danger? As she was a lawyer with rich international experience, the rational choice would have been for her to report the case to Scotland Yard. It’s absurd that she would kill someone herself. Could it be she was faced with some other threat that could not be spoken of? Who did the policemen who helped cover up the crime answer to? Moreover, Mr. Heywood apparently did not drink, and in addition was said to have already threatened Guagua. Now he was almost forced to Chongqing by Zhang and met with Guagua’s mother; it should have been as though facing with a mortal enemy. What wiles did she use to get him so thoroughly drunk? Witnesses who should have appeared in court – the most important of which were her husband and former police chief Wang Lijun – were utterly absent. None of the other relevant witnesses appeared in court, either. This kind of trial is just a show to cover up the truth. If this kind of case is not tried justly, then lies have to be used to cover up lies, leading to an impossible situation where the story doesn’t hold together and it becomes a satire of justice.

In any case, as far as the bit of the iceberg that was exposed is concerned, we can see who the real mafia in Chongqing are.

【进退维谷】对她匆忙的审判留下的疑点远多于揭露的事实。她决意杀人的起因是为保护儿子,儿子遭受生命威胁有确凿证据么?作为一个有丰富国际历练的律师,合理的选择是向苏格兰场报案,自己亲自杀人太匪夷所思。莫非是遭遇到的难以言说的其他威胁?帮助掩饰罪行的警官们听命于何人?另外,伍先生据说是不喝酒的,况且据称他已对阿瓜发出威胁,此时几乎被小张押解至红都,与瓜妈见面,本该如临大敌的。她用何等花招竟让他酩酊大醉?本来该出庭的证人——其中最重要的是其夫君和王立军前局长——压根儿不出现,其他相关证人也概不出庭,如此审判,更像是掩盖真相的把戏。这种案件,假如不是公正审理,则需要用谎言掩盖谎言,最终进退维谷,前后失据,成为对正义的讽刺。

无论如何,就揭露出来的冰山一角而言,我们也可以看到,重庆最大的黑社会究竟是什么人了。

 

August 12, 2012 in Commentary, News - Chinese Law | Permalink | Comments (4) | TrackBack (0)