Jerome Cohen on the upcoming trial of Xu Zhiyong

Here are some thoughts by Jerome Cohen on the upcoming trial of Xu Zhiyong:

This Wednesday's trial of Xu Zhiyong (and Wang Gongchuan) may make a public mockery of the recent efforts of China's Supreme People's Court to prevent further wrongful convictions by requiring investigation and verification of criminal evidence in an open court hearing.

 

The SPC and the country's leader, Xi Jinping, have been emphasizing greater transparency and openness in judicial conduct. Yet it is very difficult to learn what transpired at last Friday's pre-trial conference since official court sources have published nothing, and there seems to be a domestic news blackout on the case. Foreign and Hong Kong press reports based on contacts with Xu's counsel suggest that, while the trial will be "public" in principle, its openness will be highly restricted in practice, as is customary in sensitive criminal cases. despite the new verbal emphasis on openness of trials. For example, a very small courtroom has apparently been selected, and arrangements have reportedly been made for the admission of only two members of Xu's family, and no other supporters, to the courtroom. I assume foreign media have been excluded.

 

As my January 14 essay in World Politics Review pointed out, the SPC's November 21, 2013, major instructions newly emphasized the importance of the courts conducting "open trials" that "make courtroom hearings the center of the trial" so that "evidence is investigated in the courtroom, conviction and sentencing debated in the courtroom and the court's judgment shaped in the courtroom." I noted that "The forthcoming trials of Xu Zhiyong and other recently-persecuted human rights advocates, now the topic of fierce intra-Party debate, will provide an early test of how the new emphasis on open trials will be applied in practice."

 

Press reports of the pre-trial conference indicate that the court will not require prosecution witnesses to testify in the court hearing and that it will not permit defense witnesses to testify in the hearing. Nor will it permit those defendants who are to be separately tried for their involvement in the incidents for which Xu and Wang are being tried to appear and take part in the hearing of the Xu/Wang case. Xu's lawyers made a long argument about why, since these were allegedly joint offenses, the law requires all accused to be tried together, which would have allowed the defendants in the other cases to testify about Xu's participation, but the court apparently rejected the argument.

 

Thus Xu and his lawyers are being denied the right to cross-examine prosecution witnesses that has long been authorized by Chinese legislation but seldom permitted to be exercised, and the court also denies him the opportunity to demonstrate through the live, in-person demeanor evidence of his own witnesses and the defendants in the other cases the correctness of his version of the disputed facts.

 

This is not a case where the facts are not in dispute and the only issues will be the application and interpretation of the relevant legal standards for conviction. In this case there is a serious conflict in the evidence that calls for resolution through the open court hearing that is supposedly to be held. Even Bo Xilai and his lawyer had the opportunity to cross examine some of the witnesses against him. Yet Xu will not have that legally-required opportunity. The court apparently will "investigate and verify" the evidence against Xu in open court by simply having it read into the record, leaving the defense with no meaningful chance to demonstrate its falsity or inaccuracy. One can't cross examine a piece of paper. If this indeed proves to be the case, it will demonstrate how hollow the SPC's new emphasis on testing the evidence in open court hearings is in practice. In other words, no change from the previous practice, so that the SPC's new strictures would clearly be seen, as Shakespeare put it, to "keep the promise to the ear but break it to the hope."

 

Non-PRC newspaper reports indicate that, to protest this denial of a fair trial, Xu will remain silent during the court hearing. At least one report suggests that his lawyer may also remain silent. The precise extent of this silent protest is unclear. Will Xu refuse to answer relevant court questions put to him? Will he invoke a privilege against self-incrimination? While the new Criminal Procedure Law forbids the court to force the accused to answer, will the court take the refusal as an implicit admission of guilt? Will the defense lawyer and Xu challenge the prosecution evidence as best they can or remain silent on that score as well? Will they silently introduce written defense evidence? Will the accused and/or his lawyer refuse to make a closing statement? 

 

The stage appears to be set for another wrongful conviction.