Monday, December 22, 2014

Why Feng Zhiming’s Arrest Is Not Enough to Prevent Injustice

Feng Zhiming, lead investigator in the 1996 case against Huugjilt, is under investigation for dereliction of duty. Image credit: CCTV

The Chinese Communist Party’s Fourth Plenum that took place in October was notable for its emphasis on promoting “rule of law” and laying out guiding principles for further reform of the country’s legal system. Events in recent weeks have pushed one subject discussed at the Fourth Plenum into the spotlight: namely, the desire to implement more stringent systems of personal accountability for law-enforcement personnel to help stem the problem of wrongful convictions and other miscarriages of justice.

The face that has lately come to exemplify China’s resolve to address the problem is that of Huugjilt, who as an 18-year-old young man from Hohhot, Inner Mongolia, was executed back in 1996 for a rape and homicide he did not commit. Huugjilt became a suspect after he and a friend told police of their discovery of a woman’s dead body in a public toilet. He was brought to justice swiftly on the basis of an alleged confession, with just over two months elapsing between his arrest and eventual execution by gunshot.

In 2005, however, a serial murderer named Zhao Zhiheng confessed to a string of murders, including the one for which Huugjilt had been convicted. When Zhao’s case went to trial the following year, however, he was not charged for that particular murder and the conviction against Huugjilt was left to stand. Fearing that local authorities were trying to cover up evidence of a miscarriage of justice, a Xinhua News Service reporter named Tang Ji wrote up the first of several internal reports on the case intended for the eyes of central authorities.

The following year, the Inner Mongolia Autonomous Region Politico-Legal Committee conducted a review of the case that determined Huugjilt had been wrongly convicted. Over the years that followed, central and regional authorities issued instructions for the case to be reopened, but court officials repeatedly demurred and no one was held responsible for this tragic miscarriage of justice. In fact, as a recent graphic that circulated online makes clear, the main people responsible for seeing Huugjilt’s case through the system went on to receive promotions and commendations.

That nine-year process of legal limbo came to an end abruptly last month, as the Inner Mongolia Autonomous Region High People’s Court held a new trial in the case that posthumously exonerated Huugjilt of all charges on December 15. Even more dramatic was the announcement days later that Feng Zhiming, the police official who had led the original criminal investigation in 1996, had been placed under arrest by the local procuratorate and was being investigated for dereliction of duty, coercing confessions through torture, and taking bribes.

A spokesperson for the Inner Mongolia High People's Court announces investigation of Feng Zhiming at a December press conference. Image credit: CCTV

While many are hailing this as a victory (albeit belated) for justice, several commentators have greeted the news of Feng’s arrest with a more cautious eye. At issue is how far the accountability drive will go in holding all those responsible for miscarriages of justice like this and whether it will be carried out in ways that promote positive systemic change.

In a recent commentary in The Beijing Times, a frequent legal pundit who writes under the name “Binglin” argues the need for openness and transparency in the process of holding officials accountable for wrongful convictions. For one thing, transparency will facilitate both to ensure that the process is as comprehensive and thorough as possible. Keeping the process in the public eye will also strengthen its effectiveness at molding the behavior of others within law-enforcement.

Accountability for acts carried out in individual cases is perhaps the easy part; much more difficult is to assess responsibility for the deeper institutional causes underlying wrongful convictions—such as the role that inter-institutional “coordination” plays in weakening the procedural checks that are supposed to protect suspects and defendants from miscarriages of justice. The worst outcome would be for accountability in the Huugjilt case to be merely a propaganda effort aimed at convincing the public of authorities’ sincerity at tackling the problem of wrongful convictions. Punishing Feng Zhiming for wrongdoing is only the first step. What’s even more essential is to bring an end to the ways that campaign-style “strike hard” policing and stability-first policies have shaped practices within the Chinese criminal justice system for decades.

Openness Will Encourage Birth of “Wrongful Case Responsibility-Tracing Mechanism”

The Beijing Times, 19 December 2014

When neither information nor process is public, the mechanism for tracing past responsibility loses its most important role as a warning to others. Without strict assurance of open information and transparent procedures, it’s hard to ensure there will be no cover-ups.

The recent spate of actions taken to redress wrongful judicial decisions has caused a great deal of public excitement. Particularly after the Inner Mongolia [High People’s Court] re-tried the case against Huugjilt and pronounced him innocent, the public has been paying a great deal of attention to the pursuit of accountability in wrongful convictions. So far, the Inner Mongolia Public Security Department, High People’s Court, and Procuratorate have all publicly announced that they have launched investigations into personnel related to the Huugjilt case. The most recent news is that Hohhot Public Security Bureau Deputy Chief Feng Zhiming, who led the special investigative team in Huugjilt’s case, has now been taken into custody by the procuratorate and is under investigation for suspected criminal offenses committed while on the job.

Along the assembly line on which wrongful convictions are manufactured, those parts of the system that are intended to uphold justice frequently fail to do so. From investigative units that are eager to solve cases, to prosecutors who are supposed to screen and examine cases, and to adjudicating bodies responsible for conviction and sentencing—no matter what the reason for the failure might be, objectively speaking, none can easily evade responsibility when there is a wrongful conviction. After enduring a marathon process of petition, re-examination, and re-trial in the Huugjilt case, the swift launch of the legal accountability process is, to a certain degree, a response to the public’s demands and can mark a good beginning of the implementation of a system to trace accountability in wrongful convictions.

But there are also reasons not to be so optimistic. A special team to re-examine Huugjilt’s case was set up back in 2006, so why did it take nine years for this case to get resolved? Was there obstruction to the re-examination? Was it anything that people should be held accountable for? Was responsibility for the wrongful conviction limited to the police, prosecutors, and courts? It is crucial that any accountability system for wrongful convictions be comprehensive, open, and thorough. However, a recent media accounting of 10 wrongful convictions in recent years revealed that, apart from the Zhao Zuohai case (in which five police officers were convicted of coercing confessions through torture), in most of the other cases the decisions about accountability were not revealed to the public. In the case of the Zhejiang man and his nephew wrongly convicted of rape or the five young men from Xiaoshan wrongly convicted of fatal robberies, there were only “internal investigations into accountability,” “the details of which cannot be released.” It is worth questioning seriously just how heavy the sanctions are in such internal accountability investigations and how much they serve as warnings to others handling cases within the law-enforcement system. After all, it is not all that uncommon to see institutions respond perfunctorily to public opinion oversight through such actions as horizontal re-shuffling or even apparent demotions that are actually promotions.

More importantly, non-public and non-transparent accountability processes in response to wrongful convictions are less likely to become subject to public oversight and cause people to suspect that there may be something fishy going on. When neither information nor process is public, the mechanism for tracing past responsibility loses its most important role as a warning to others in the system, who can’t appreciate the severity of the accountability or use the result of the process to regulate their own specific case-handling behaviors. We must realize that when a system for tracing past accountability in wrongful convictions is limited to internal processes within enforcement agencies, sometimes those who ought to be held accountable are actually leading cadres within those agencies. Without strict assurance of public information and transparent procedures, it’s hard to ensure there will be no cover-ups.

At the end of the day, if you want to prevent the mechanism for tracing past accountability from becoming a sham, there needs to be open and transparent procedural mechanisms and the accountability process itself must be part of what officials are held accountable for. If the response to a wrongful conviction is limited only to payment of state compensation and those “law-enforcers” are never held accountable for causing innocent people to spend time in prison or go to their graves proclaiming their innocence, then this kind of remedy will ultimately fail to bring any improvement to the judicial environment. It will seem to people as if the state is left to foot the bill whenever law-enforcement officials make mistakes, and the gap between power and responsibility will mean that other law-enforcement personnel will learn no lessons from the process.

Accountability is a crucial part of legal justice. The decision of the Fourth Plenum of the 18th Party Congress clearly called for the implementation of a lifetime responsibility and punishment mechanism for individuals who handle cases within the law-enforcement system and a system to trace accountability in cases of wrongful conviction. These systems are intended to help ensure that cases are handled in a way that can stand up to the scrutiny of both law and history. It might be worth starting with the wrongful convictions and other miscarriages of justice that have been uncovered in recent years to launch a process of accountability that demonstrates the same resolve and severity shown in the anti-corruption campaign and lets the mechanism for tracing past accountability come into being.