Thursday, March 14, 2013

Targeting Evidence to End Wrongful Execution

NPC delegate and Zhejiang High People’s Court President Qi Qi. Photo credit:

Although frequently criticized for being relatively powerless “rubber-stamp” bodies, China’s national legislative body, the National People’s Congress, and its main consultative body, the Chinese People’s Political Consultative Conference, provide delegates from throughout the country a forum to make policy and legislative proposals targeting some of China’s most pressing problems. Most of these proposals are fruitless, but with hundreds of domestic and foreign journalists covering these important annual events, some of these proposals ultimately have the opportunity to gain a wider audience that might result in more broad-based pressure to put actions behind all the talk.

In the March 11 edition of the influential newspaper The Beijing News, NPC delegate and Zhejiang High People’s Court President Qi Qi speaks about his proposal to issue regulations that would govern a new system for the additional investigation of problematic evidence in death penalty trials. In this interview, Qi speaks frankly about the relationship between torture and wrongful conviction. Having spent much of his career as an administrator in the court and procuratorial systems, Qi has a broad perspective on the pressures faced by law enforcement and judicial authorities that make it difficult to eliminate torture completely. Qi has clearly given much thought to these questions recently, as his court is in the process of reviewing a case in which five men have spent nearly 18 years behind bars for homicides that fingerprint evidence now suggests was committed by someone else.

This case, like the Zhao Zuohai case in 2010, highlights the way in which pressure to solve homicide cases leads to an over-reliance on confessions with investigators framing innocent people and courts turning a blind eye to problematic evidence. Fortunately for the defendants in this case, initial death sentences were later suspended on appeal, for, as Qi notes, under the circumstances of the time it would have been easy and expected for these young men to be put to death in order to address the social harm caused by the murders.

Zhejiang High Court President: Basis of Wrongful Convictions Relates to Torture

NPC Delegate Qi Qi recommends public security, procuratorates, and courts jointly issue
regulations to improve procedures for additional investigation of evidence in death penalty cases

Song Shijing, The Beijing News
March 12, 2013

National People’s Congress (NPC) delegate and Zhejiang High People’s Court President Qi Qi presented a proposal at the First Plenary Session of the 12th NPC, recommending that the Supreme People’s Court, Supreme People’s Procuratorate, and Ministry of Public Security jointly enact regulations governing the procedure for additional investigation of evidence during the trial period for death penalty cases in order to resolve problems in the operational mechanisms of the criminal procedure; establish a “trial-centered” system for evidence collection, production, examination, certification and review; and establish corresponding provisions to pursue responsibility for violations of the law and prevent wrongful death penalty convictions.

Qi Qi says that problems with evidence are encountered from time to time in trying death penalty cases. In order to ensure conviction, some investigation authorities do not fully submit evidence that is beneficial to the defendant. Some investigators and prosecutors believe that their investigation work is over and are indifferent to or delay the work of additional investigation. This puts courts in a difficult position between “conviction and sentencing” and “acquittal and release” and directly affects the quality of death penalty trials.

Qi Qi also indicates that wrongful criminal convictions are basically all related to coercion of confessions through torture.

According to media reports, there were two robbery-homicides of two taxi drivers in Xiaoshan, Zhejiang, in 1995. Lacking murder weapons or fingerprint evidence and primarily relying on confessions, four people were sentenced to suspended death sentences and one person was sentenced to life imprisonment. Last December, it was proven that another person may have been the culprit. Currently, the Zhejiang high court has already launched a review of the case.

“Pursuing a 100-Percent Solution Rate is Unrealistic”

The Beijing News [hereafter, “BN”]: In your recommendation, you listed 11 circumstances in which the evidence in death penalty cases may be problematic.

Qi Qi [hereafter, “QQ”]: These circumstances can all lead to mistaken judgements, so it’s necessary for investigative authorities to strengthen their work in these areas.

BN: Sometimes coercion of confessions through torture is used in order to obtain evidence. How do you view [this problem]?

QQ: Objectively speaking, police and crime are antagonistic. Despite this opposition, even when a suspect disavows and denies [criminal activity], his human rights still need to be protected. But sometimes police will get emotional and use brute force or even torture. Even if this brute force leads to confessions that solve some cases, it still can lead to some major negative side effects and forced admissions that lead to wrongful convictions. So, the law in all countries takes a negative view toward the coercion of confession and prohibits it.

BN: Why has it still not been eliminated?

QQ: In the past, there was a one-sided saying that “confession is the king of evidence.” Once there’s a confession, finding some evidence to prove the crime based on that confession seems to have relatively few costs. Moreover, police are often under pressure to solve cases as quickly as possible, and it’s very difficult to go around searching for traces and remnants when time is relatively short. Now we ask police not to be over-reliant on confessions and place more emphasis on using detection and technical methods to gather objective evidence. Confessions are also important, but they must accord with the truth.

BN: Where does the pressure on public security to solve cases come from?

QQ: For example, if there has been a series of major cases involving serious threats to social order, there will be great pressure on public security. When there’s great pressure to solve cases, sometimes one may be misled and biased in the collection of evidence.

In the past, there was a saying that “murder cases must be solved.” This actually was a kind of idealistic target, but blindly pursuing a 100-percent solution rate is unrealistic. From their perspective, courts cannot approve this “murder cases must be solved” notion because it doesn’t accord with [the principle of] seeking truth from facts. The ability to maintain a relatively high solution rate is already pretty good.

BN: If there are problems with the evidence provided by the investigating authority, is it difficult for the court to discover them?

QQ: Besides sending along evidence of the defendant’s criminal charges, [investigators] also must send along any mitigating or exculpatory evidence. When evidence that doesn’t support conviction is not sent, it becomes a choice between subjective and objective evidence. If they don’t submit it, it becomes much harder for us to discover, because there’s no way for us to know about the evidence they haven’t submitted. If we haven’t even seen any evidence that benefits the defendant, this can lead to mistaken judgments.

Court Acquittals Pressure Police, Prosecutors”

BN: Who should be held responsible for wrongful convictions?

QQ: If one of our judges handled a case improperly, we first need to look at whether he intentionally concealed evidence or there was gross negligence. If [there was], then [the judge] bears major responsibility. If there wasn’t this sort of intent or gross negligence, then mainly we need to analyze the lessons learned, learn from this case, and work hard to raise the level of professionalism.

BN: Can’t lawyers put forward evidence that benefits the defendant?

QQ: If a lawyer discovers evidence that is beneficial to the defendant—including the belief that the defendant was tortured—he or she will provide it. But lawyers don’t have the means to conduct criminal investigations and are generally only able to provide assistance on the basis of the existing evidence.

BN: Can [defendants] afford to retain lawyers in all criminal cases?

QQ: In most instances, no. In recent years, Zhejiang courts have taken the lead in expanding the scope of legal aid. Defendants who face sentences of three years’ imprisonment or more but cannot afford a lawyer are all provided with legal aid. Last year alone, we added more than 10,000 people to the ranks of those getting criminal defense.

In the past, the proportion of indigent defendants who got legal aid was very low because they had to go through a tedious process of providing all sorts of documentation to prove their financial need. Then, we talked things over with the [provincial] justice department, [noting that] anyone whose family had the least bit of economic means would certainly do their best to hire a lawyer. If someone didn’t hire a lawyer, generally it was because their family was poor. Later, the justice department supported legal aid in criminal cases.

BN: Isn’t it more trouble for judges when there is greater participation from lawyers?

QQ: Yes, it’s somewhat troublesome for judges. When defense counsel is present, court hearings are a bit longer. But without defense counsel, there is an imbalance between prosecution and defense in the criminal court. Some say that more than 95 percent of criminal cases are merely a formality [because] the evidence is basically on file and clear and it doesn’t matter whether there’s a defense lawyer or not.

I tell judges that even if 99 out of 100 cases are merely a formality, if we can stop one case where there are real problems with the evidence that may even lead to wrongful conviction, then that would be terrific and protective of human rights.

BN: What is the impact of an acquittal?

QQ: Acquittals are a common occurrence in some developed countries with Anglo-American legal systems. For a long time, based on the inertia of our criminal process, if a court acquits then the public might put a lot of pressure on the prosecutors and the police because it seems really serious. Actually, when a court rules against the procuratorate it doesn’t mean that it is indulging criminals.

If this time the evidence at court wasn’t enough to trap you, we’ll continue to keep an eye on you and when we collect enough evidence we’ll eventually bring you to justice. If only the public thought this way! Now, [judges] are only allowed to be right; they can’t make mistakes. When faced with obstacles, we have very little leeway.

“Conclusions of Xiaoshan Case Review Can’t Be Put Off Indefinitely”

BN: In the Xiaoshan case, there were suspended death sentences instead of immediate death sentences. Why was there no “presumption of innocence”?

QQ: Looking at it from a professional standpoint, at the time it was unthinkable not to impose the death penalty for the murder of two taxi drivers, so it wasn’t easy to suspend those three death sentences. Under the conditions of the time, [death with reprieve] was the only available leeway. If those people had been executed, then now there would be even less ability to remedy the situation. In all fairness, the evidence at the time perhaps wouldn’t have [triggered] a “presumption of innocence.”

BN: How much longer will it take for conclusions in the review of this case?

QQ: I think this case won’t be put off indefinitely, and we won’t have to wait very long. I understand that the media wants things to move more quickly. But I want to explain to the media that conviction of crime needs to be done carefully. It shouldn’t be done in the campaign style of “shooting tigers.” Correcting errors also needs to be done carefully and mustn’t be done in the campaign style of following herd mentality. Give us a bit of time. We’re very serious [about this case].

BN: Do you feel that there are any patterns behind wrongful convictions?

QQ: Wrongful criminal convictions are basically all related to the coercion of confessions through torture. The majority likely involve eagerness to solve the case, following preconceived notions, subjective judgment, listening only to one side, relying on torture to obtain confessions, and confessions made under duress. Recently, an American prosecutor published a book called False Justice: Eight Myths that Convict the Innocent. We have already distributed copies to judges in the higher court and intermediate courts.

BN: What do you hope they’ll learn from this book?

QQ: This book’s author [The book is authored by Jim and Nancy Petro; Mr. Petro is the former attorney general of Ohio—Ed.] uses his experience as a prosecutor to educate legal professionals about how to prevent miscarriages of justice. There are many patterns, and he summarizes 17 common mistakes that are made. For example, don’t assume that only the guilty confess to crimes, don’t assume that miscarriages of justice occur because of rational human error, and don’t assume that all false convictions get corrected during the appellate process.