Friday, July 9, 2010

A Day in the Life of a Chinese Defense Lawyer

Criminal defense lawyers face many challenges in China, especially when the clients they defend are charged with endangering state security or other politically sensitive acivity. Among the many difficulties defense lawyers must overcome is trying to meet with a suspect whose case is still in the “criminal investigation stage”—that is, being handled by police prior to making a recommendation to the procuratorate for prosecution.

Just how difficult arranging such a meeting can be was recently described in great detail in a blog post (translated below) by Liu Xiaoyuan, a prominent criminal defense lawyer at the Qijian Law Firm in Beijing. Liu, who often writes about the cases he handles on one of his many blogs, has been involved with a number of difficult and sensitive cases in recent years. He was involved in Yang Jia's murder trial and, most recently, defended You Jingyou, one of three people in Fujian convicted of defamation in connection with Internet postings aimed at helping an illiterate woman pressure local authorities to investigate the suspicious circumstances surrounding her daughter’s death.

In May and June of this year, Liu spent three weeks in the United States as part of the State Department’s “International Visitors Program.” While overseas, he learned that he had been requested to defend Zuo Xiaohuan, an activist from Sichuan formally arrested on May 28 on charges of inciting subversion. Liu’s account of his attempts to meet with his client in the local county detention center illustrates the importance he and other rights attorneys in China place on procedural rights, as well as the repeated battles that must be fought with law enforcement officers who have their own sense of how things should be done.

A Meeting with Zuo Xiaohuan
July 8, 2010

    Who is Zuo Xiaohuan? Before I met him, I had no idea. But he probably knew of me, because when the Mianyang Public Security Bureau [formally] arrested him on charges of inciting subversion on May 28, Zuo Xiaohuan told them he wanted to engage me as his attorney. At the time, I was in the United States visiting Washington and was given the news by someone else over the Internet. I immediately replied that I would accept.
    I returned to China from the United States on the afternoon of June 13. Because I had to take care of some old cases, I didn’t have time to go to Mianyang right away. Later, Zuo Xiaohuan’s older sister telephoned and asked me to go to the Santai County Detention Center to meet [with Zuo] as soon as possible. She said that the officer in charge had been threatening her for having passed along the arrest notice to another person.
    Zuo’s sister is a rural woman with very little education, so the officer’s threats made her feel extremely scared. I told her over the phone that she hadn’t committed any criminal act, so there was no need to worry or be afraid. I said that the arrest notice was given to her and isn’t any state secret, so she’s within her rights to pass it on to anyone. The public security organ has no right to interfere, and if they dare step out of line, she can report them.
    On July 6, I took the earliest flight from Beijing International Airport to Mianyang. I didn’t arrive in Santai County until around noon.
    Zuo’s sister never told me clearly which public security bureau was investigating the case. Only after I got to Santai County and she showed me the two notices did I learn that Zuo Xiaohuan had been placed under criminal detention by the Santai County Public Security Bureau and that the Mianyang Public Security Bureau had executed the arrest. In other words, at the time of arrest the case had been transferred to the Mianyang Public Security Bureau for investigation. The Santai County Public Security Bureau had detained Zuo Xiaohuan on suspicion of the crime of subversion, while the Mianyang Public Security Bureau [formally] arrested him on suspicion of the crime of inciting subversion. These are two different crimes.
    When an attorney asks to meet with  a criminal suspect during the investigative stage of a criminal case, it must be arranged by the unit handling the case. Zuo’s sister gave me the telephone number of Team Leader Feng, who as head of the Mobile Investigation Team of the Mianyang Public Security Bureau’s Domestic Security Unit was responsible for the case. I called Team Leader Feng, and he told me to go to the Mianyang Public Security Bureau the next day, saying that the bureau would have someone accompany me to the meeting. I pointed out that Zuo Xiaohuan’s case didn’t involve state secrets and that there was no need to “trouble” the police to accompany me to the meeting. Team Leader Feng said that Zuo’s case was no ordinary case and that according to their rules a police officer had to accompany me. I said that if they wanted to come escort me, I’d wait for them there in Santai County but wouldn’t go to Mianyang.
    At about 6 p.m., I got a call from Team Leader Feng, who said that I had to go to the Mianyang Public Security Bureau to hand in the paperwork for the meeting and that his superiors needed to give approval before I could meet [with Zuo].
    According to the provisions of the law, as long as the case doesn’t involve state secrets a lawyer doesn’t need approval from the public security bureau to meet [with a suspect]. The public security bureau should [simply] arrange for a meeting within 48 hours. But in practice, the arrangement process often turns into an approval process—all so the public security organ can put its authority on display. In order to ensure the meeting would take place, I had to check out of my hotel room in Santai County and hire a car to take me to Mianyang.
    On July 7, I arrived at the office of Team Leader Feng at 9 a.m., as we had arranged. Team Leader Feng was very polite, asking me to take a seat in the conference room and warmly bringing me a cup of tea.
    Team Leader Feng took the official letter from my law firm and the authorization letter from Zuo Xiaohuan’s sister, and then he turned to seek his superior’s approval. About a half-hour later, Team Leader Feng returned to the conference room. He told me that there were problems with the power of attorney [POA] authorization letter from Zuo’s sister. I asked him what the problem was. He said that, first of all, there was a problem with the way the POA letter had been completed; second, the letter did not clearly set out the limits of the authorization; and third, the letter had merely been signed, without affixing a fingerprint.
    I explained to him that a POA authorization letter could be completed either by a lawyer or by the person making the authorization. Zuo’s sister didn’t have much education, so I had completed the letter and she indicated her approval with a signature. The format of a POA authorization is uniform and set by the lawyers’ association, so it’s the same throughout the whole country. Since this is a criminal case, not a civil case, it’s only necessary for the letter to specify the engagement of a certain lawyer from a certain law firm to act as attorney for a [particular] criminal suspect. There is no need to state specific limits of the authorization, because specific limits to a lawyer’s authorization are set out in the Criminal Procedure Law and Lawyers Law. Moreover, the Ministry of Public Security’s Procedural Regulations on the Handling of Criminal Cases by Public Security Organs also has similar provisions. The POA authorization was personally signed by Zuo Xiaohuan’s sister, and the law doesn’t have any provisions requiring her to affix her fingerprint as well before it can be binding.
    Having heard my explanations, Team Leader Feng still believed that the POA authorization needed to set out the limits of authorization. I countered that if he felt there was a problem with the letter’s format, we could go make an inquiry at the Mianyang Justice Bureau or the lawyers’ association. Or we could go ask the criminal investigation unit, which arranges attorney visits frequently, whether other lawyers have submitted POA authorization letters in the same format. I even asked, rhetorically, whether Zuo Xiaohuan’s case was the only one the domestic security unit had ever handled. If they’d handled cases in the past, they could compare those POA authorization letters with this one.
    Team Leader Feng no longer contested the format of the POA authorization letter, but he continued to insist that it needed to be affixed with a fingerprint. I asked him to show me the legal basis—which law, regulation, or rule required both a signature and a fingerprint before a POA authorization  could be binding?
    I said that even if he could show me provisions in a document [issued by] the Sichuan Public Security Department or even the Mianyang Public Security Bureau, I would accept them.
    Team Leader Feng still had doubts about the authenticity of Zuo’s sister’s signature, so I said: “You delivered the arrest notice to Zuo’s sister. Can’t you just compare it to the signature she made when accepting the arrest notice?”
    Zuo Xiaohuan’s note indicating he wanted to engage me as his attorney was delivered by the public security bureau to his sister from the detention center. At this point, I also took out that note and said: “If Zuo Xiaohuan didn’t want to hire me, would I have come all this way to Sichuan?” Team Leader Feng was silent.
    I have a habit of carrying a collection of laws whenever I’m working on a case. Team Leader Feng saw me pull out the book and said that he wasn’t used to looking at my book, so he turned around and went back to his office to get his own book.
    Flipping through the Procedural Regulations on the Handling of Criminal Cases by Public Security Organs, he was unable to find any provision that required a family member to affix a fingerprint in addition to a signature on a POA authorization letter before it could be binding. Neither the Criminal Procedure Law nor the Lawyers’ Law had provisions, either.
    Even though he couldn’t find an appropriate basis, Team Leader Feng still insisted on the need for affixing a fingerprint. He said he was not intentionally trying to make things difficult for me but only wanted to do things according the public security bureau’s procedures.
    Actually, this wasn’t making things difficult for me; it was Zuo’s sister who would have to be called to personally make a trip. Left with no alternative, I called Zuo’s sister and asked her to come to the Mianyang Public Security Bureau. Her house is some distance from Santai County and is thus even farther away from Mianyang.
    I thought to myself: “Even if Zuo’s sister had affixed her fingerprint on the POA authorization, [Feng] probably would have still found fault, saying that he couldn’t verify that the fingerprint was hers.”
    Team Leader Feng said I was too agitated and had a bias against the police. But I think that when it comes to an attorney’s involvement in the investigation stage of a criminal case, it’s usually the police, not the lawyer, who has the bias.
    When the public security bureau turns “arranging a visit” into “approving a visit” or when a family member’s signature isn’t enough and a fingerprint necessary—even when no concrete [legal] basis can be found—is it the lawyer who’s biased against the public security organ or the public security organ who’s biased against the attorney’s involvement?
    After three hours of discussion from 9 a.m. to 12 noon, there was still no result. Zuo’s sister couldn’t get there right away, so I left the Mianyang Public Security Bureau to have lunch. Team Leader Feng told me to come back at 1 p.m.
    Around 1 p.m., Zuo’s sister arrived. Without time to eat lunch, she went with me to the public security bureau and, in the presence of Team Leader Feng, affixed her fingerprint on the POA authorization letter.
    But Team Leader Feng again said that the POA authorization needed to set out limits of the authorization. Zuo’s sister told him she only had a second-grade education and couldn’t write. Team Leader Feng wanted me to help her with the writing. I said there was no basis for writing limits of the authorization.
    In order to avoid any further complications, I wrote on a blank piece of paper: “The limits of the power of attorney are in accordance with Article 35 of the Procedural Regulations on the Handling of Criminal Cases by Public Security Organs.” Team Leader Feng wanted Zuo’s sister to copy that on the POA authorization letter, but she said she honestly couldn’t write, so Team Leader Feng finally gave up.
    After completing the formalities for arranging the visit—which actually were “approval procedures”—Team Leader Feng said they were just following procedures and regulations and were really not trying to make things difficult for me.
    At 2:30 p.m., Zuo’s sister and I hired a car to take us to the Santai County Detention Center. Team Leader Feng notified a police officer who was in Santai County handling a case to accompany me to the meeting.
    When I arrived at the Santai County Detention Center just before 4 p.m., the police officer was there waiting to accompany me to the meeting.
    The public security organ hadn’t classified Zuo Xiaohuan’s case as one involving state secrets, so according to the Criminal Procedure Law, the Lawyers’ Law, and the Procedural Regulations on the Handling of Criminal Cases by Public Security Organs, police officers may not accompany lawyers during their meetings [with suspects]. But public security organs are very powerful, and even a lawyer who loves to argue as much as I do has no choice.
    What surprised me is that after Zuo Xiaohuan was brought into the meeting room, the police officer took out a recording device in the shape of a pen and placed it on the table. I immediately argued that to accompany me to the meeting was already a violation of the law but recording a lawyer is an even bigger violation.
    They had me call Team Leader Feng, but when I dialed his number no one answered. I could only take out my own pen-recorder, at which point the police officer informed me that the detention center didn’t allow lawyers to make recordings. I asked them to show me the legal basis.
    I told them that according the the rules for handling criminal cases established by the All-China Lawyers’ Association, a lawyer meeting with a criminal suspect (or defendant) may make a recording or a photograph as long as the suspect (or defendant) agrees. There is no need for the detention center to agree.
    I said that I’d heard that in the case of Li Zhuang [a defense lawyer accused of coaching his client in an organized crime trial to recant his testimony] the police had a recording but that they didn’t dare reveal it as evidence for the prosecution because it was a serious violation of the law for police to make recordings. Zuo Xiaohuan’s is no mafia-type case of organized crime; he’s been charged with inciting subversion of state power for helping people to defend their rights, writing articles that exposed the darker side, and discussing his political views during interviews with overseas media. His confession isn’t important for convicting him of a crime; the key is the articles he wrote. Is there any need to worry about a lawyer coaching him to recant his confession?
    In Zuo Xiaohuan’s case, to take these kinds of precautions against his lawyer is actually a sign of a guilty conscience.
    I told Team Leader Feng numerous times that during the criminal investigation stage I’m not too interested in discussing the facts of the case, because I haven’t yet seen the prosecution’s evidence or the case file and can only hear Zuo Xiaohuan’s side of the story. During the criminal investigation stage, I’m much more focused on the legal procedure followed in handling the case.
    It’s not up to the public security organ or the procuratorate to decide whether Zuo Xiaohuan is guilty of a crime. That should be decided by a court, based on the facts and the law. Of course, in light of problems with the legal system, it’s possible that it will be up to the politics and law committee [to determine guilt]—the Zhao Zuohai case in Henan is a classic example. But in some places the head of the public security bureau is also secretary of the politics and law committee, so there are also cases where it’s up to the public security bureau [to determine guilt].
    Seeing that I was going to keep arguing, the police officer accompanying me for the meeting suggested that neither side make recordings, but I suspected that he might have some hidden way to record secretly. If the police want to eavesdrop, what power does a lawyer have to prevent it?
    Zuo Xiaohuan says that the police decided to take him into custody because he was helping private-school teachers in Santai County protect their rights. The local private-school teachers are of the same opinion.
    In helping others to protect their rights, Zuo Xiaohuan had in the past also been interviewed by overseas media and given political opinions about social problems. He’d even been sent to re-education through labor when he was working at Leshan Teachers’ College. After being fired from his job, he began seeking to protect his own rights. Having encountered numerous injustices in the course of helping to protect the rights of others and himself, he said some things out of dissatisfaction with present circumstances, but he maintains they didn’t have anything to do with state political power.
    When he mentioned state political power, I suddenly asked him: “What is [meant by] state political power?” He couldn’t explain it. I think that Zuo Xiaohuan isn’t the only person who doesn’t know what state political power means; probably the officer handling the case doesn’t understand it either. Otherwise he wouldn’t suspect the act of criticizing the government as the crime of inciting subversion of state power.
    Zuo Xiaohuan’s mind is clear and he has mentally prepared himself to be sentenced. He thinks someone always has to sacrifice and says that since they’ve taken him in on suspicion of inciting subversion there’s almost no chance that he’ll be acquitted. Otherwise, the police would lose face.
    In recent years, basically all those who have been taken in for helping the vulnerable groups to protect their rights have been found guilty of crimes like defamation, false accusation, or extortion. For local [officials] to charge Zuo Xiaohuan with inciting subversion shows that they’re treating him as a “political figure.”
    In my view, Zuo Xiaohuan is only a rights defender, not a “political figure.” Maybe it’s because he participated in [the events of] 1989 or discussed political opinions with overseas media that led to [the case] being upgraded to a political level and linked to a threat to state political power.

    Zuo Xiaohuan was born in 1969 and is yet unmarried. After being fired from his job, he went looking for work but, thanks to interference by others, wound up an unemployed person. Zuo Xiaohuan has four brothers and sisters, his father has passed away, and his mother is in her seventies. Zuo’s sister told me their mother hopes that Zuo can be released soon and return to the countryside to become a farmer.
    When you come right down to it, the tragedy of Zuo Xiaohuan, this individual, is actually the tragedy of the [entire] society.