Wednesday, May 6, 2015

How Chinese Institutions Manufacture Conviction and Quash Acquittal

Vindication comes slowly, if at all, for innocent individuals courts fail to acquit. Image credit: Sina

One of the prominent features of Xi Jinping’s administration has been the attention paid to the problem of wrongful convictions. Since 2012, Chinese legal authorities have overturned a series of high-profile convictions, and taken steps to strengthen measures to exclude confessions extracted through torture and other illegal evidence and establish a system to hold judges and law-enforcement officials responsible for wrongdoing or negligence. But the obvious question is whether these measures will be effective in reducing the number of wrongful convictions.

Chen Ruihua has his doubts. Professor Chen, a leading expert on criminal procedure at Peking University Law School, sat down for a remarkably frank and detailed interview on the topic with Phoenix Weekly (translated below). In his analysis, the problem of wrongful convictions cannot be fixed without addressing the imbalance of power among China’s legal institutions—particularly, by placing more limits on the power of police and procuratorates, and clearing the way for courts to play their role as a “last defense” against miscarriages of justice. Hinted at in the interview is something that Professor Chen certainly understands only too well: that any institutional restructuring of the kind he describes would entail political reform that has, to date, been a non-starter in China.

Chen and other legal scholars have been looking at these problems for many years, and one can sense a certain frustration at how little their input has mattered thus far. Nonetheless, Chen ends on an optimistic note. He suggests that the Chinese public is not only beginning to embrace ideas about procedural protections and the need for institutional checks on state power, but might also be less swayed by competing appeals to stability and fighting crime. Even if he is right about this, however, given China’s very limited democracy, it remains to be seen how any shift in public views about criminal justice might translate into the kind of institutional change for which Chen and other legal scholars advocate.

Why Don’t Courts Dare to Acquit?

Duan Wen, Phoenix Weekly
April 1, 2015

Phoenix Weekly (hereafter, “PW”): In recent years, the Supreme People’s Court (SPC) and other relevant organs have issued a series of many judicial interpretations and other regulations aimed at preventing injustices caused by wrongful convictions. Why have these had so little effect in practice?

Chen Ruihua (hereafter, “CRH”): First, let me ask you a question. Have you ever noticed how, after some wrongful convictions have been overturned, officials from the courts involved will mention the court’s “positive contributions” while summing up the case? The idea is that, though the court may have been “following orders” in its original handling of the case, it ultimately “spared” the defendant’s life and made it possible for him to live long enough to see his name cleared. Don’t you feel this is ridiculous?

If they are to prevent wrongful convictions, courts must be able to say “No!” and dare to announce acquittals. But are courts in mainland China able to do this? Look at the number of people acquitted by mainland courts in recent years, what is the acquittal rate? About a decade ago, courts at all levels throughout the country handled hundreds of thousands of criminal cases each year and acquitted a few thousand people. In the past few years, there have been more than a million criminal cases a year, but do you know how many people were acquitted? Fewer than 900! At this rate, will mainland China still have acquittals 20 years from now? I call this a “soul-stirring number.”

What do these cold numbers show? From basic-level courts all the way up to the SPC, mainland courts have grown increasingly timid about acquitting people. But the question is: has the quality of criminal cases increased? Are criminal suspects really are all guilty? On the contrary, what so many miscarriages of justice demonstrate is that outcomes are basically pre-determined once cases are prosecuted.

From this point of view, we can say that mainland courts have lost the basic ability to remedy mistakes made by institutions of state power. This is simply unforgiveable. Every country in the world has police who extract confessions through torture or prosecutors who abuse their power, but so long as the courts can stick to principles and maintain a bottom line, it’s still possible for them to prevent miscarriages of justice. Courts should be the last line of defense in preserving justice in society, but in China they’ve already basically completely abandoned that role.

PW: In 1996, China’s Criminal Procedure Law was amended to include a presumption of innocence and emphasize a prohibition on the use of torture. And after the occurrence of so many miscarriages of justice, such as the Zhao Zuohai case in Henan, the SPC, Supreme People’s Procuratorate (SPP), and Ministry of Public Security jointly issued regulations under the guidance of the Central Politico-Legal Commission to exclude “illegal evidence.” Wouldn’t the courts now have more grounds to “dare to say no” over these past few years?

CRH: In practice, excluding “illegal evidence” is not such an effective way to deal with the problem of wrongful convictions. Let me give you an example. In 2012, the SPC and SPP had organized an inspection study of a criminal trial at a Beijing court. During the trial, the prosecution presented eight separate confessions, two of which were excluded at trial. This won the court a lot of praise from all who attended. But what about the other six confessions? In practice, you only need one confession to convict. So how far can excluding illegal evidence get you toward the goal of preventing wrongful convictions?

I’ve always felt that there’s something quixotic about the hope that excluding illegal evidence will prevent torture and, thereby, solve the problem of wrongful convictions. The legal history of other countries demonstrates that no country can solve the problem of torture through exclusion of illegal evidence because the rate of successful exclusion is so low. In a country like the United States, fewer than 10 percent of requests to exclude illegal evidence are granted.

PW: Then what do you think is necessary to resolve the problem?

CRH: You need to attack the problem at its source. When Yu the Great tamed the floods in ancient times, he didn’t wait until there was a problem and respond reactively with targeted quick-fixes. Issuing a few regulations in the moment has no real impact other than as a means of soothing popular anger and responding to public opinion.

In actual cases, there are three central reasons why courts don’t dare to acquit defendants on the basis of the law and the facts. First, they lack independence. Second, they lack authority. And third, they stand wholly on the side of the prosecution and the police and are biased in favor of punishing crime, thereby abandoning their basic ability to conduct a fair trial.

Let’s look at the issue of independence first. We know that fixing the problem of independent adjudication is something that’s on the legal reform agenda in China. One main focus of legal reform is guaranteeing that courts are able to exercise their judicial powers independently in accordance with the law. There is consensus on this at both the central and local levels, as well as throughout society. But can it truly be achieved in practice? In many major cases, especially homicide cases, the local party committee and government take an interest from the very beginning and there is also a great deal of public attention. It’s easy for courts to make accommodations to local party or government officials, to members of the local public or public opinion, or to the feelings of the victim’s family members. So, even if the court discovers a miscarriage of justice, it doesn’t dare acquit because it can’t withstand the consequences of all that pressure.

Then there’s the problem of authority. Mainland courts have absolutely no authority relative to public security or the procuratorates. The powerful public security organs have a much higher political status. Even though these days many local police chiefs might not necessarily head the politico-legal committee, they definitely continue to hold high positions as deputies of that committee. The procuratorates also enjoy a high status. The constitution gives them supervisory powers over the legal system and the courts, and procuratorates can even investigate and bring cases against courts at the same administrative level. In isolated cases, the procuratorate has even hauled in a judge when a court has issued an acquittal. In this system, courts that issue acquittals risk offending both public security and the procuratorate—do they really dare? So, no one has the courage to remedy a miscarriage of justice when they encounter one.

Finally, courts totally stand on the side of fighting crime. In practice, many judges in Chinese criminal tribunals are more inclined to fight crime than prosecutors are, lacking even basic fairness. This is a consequence of practice and tradition over many years, during which time the courts turned into a third stage on the crime-fighting assembly line. Judges have become the third person in the crime-fighting relay race, receiving the baton handed off to them from police and then the prosecutors.

PW: All of these problems have already been discussed a lot in the past. Why is it so hard to change?

CRH: First, fixing these problems requires institutional change. For example, in the Chinese criminal process judges read the entire case file before the trial even begins. That’s a huge problem, because once judges read all the files that investigators and prosecutors have submitted they’re bound to be influenced by their first impressions and believe “the defendant is guilty.” The result is that the subsequent trial becomes totally formalistic, and the investigation and debate phases of the trial become useless.

Moreover, Chinese judges are required to conclude trials within a short amount of time. Unless the case is especially important or complex, the majority of trials are concluded in half a day. Can defense lawyers present an adequate defense if you only have half a day to finish the trial? When it’s all a matter of pre-judgments derived from reading the case file and witnesses and experts who don’t appear in court, then of course the trial will be one-sided. No one can match the power of the prosecution, which is immune from effective challenge. And the defense is extremely weak, unable to get any attention from the judges. The whole trial becomes a matter of going through the motions.

Even given prejudicial case files and formalistic trials, the examples of previous miscarriages of justice show us that it’s still possible to discover problems like insufficient evidence that could mean the defendant should be found not guilty. But the system used to evaluate performance within the courts makes it nearly impossible for judges to issue acquittals. Any judge who wants to acquit must first report to the head of the criminal tribunal and the court’s vice president responsible for criminal cases. The case will be brought before the court’s adjudication committee, and all eyes in the court will look skeptically at the judge, wondering whether any money has changed hands. When the police and prosecution disagree with the decision to acquit, the judge has to go to try to explain things to them and make a report to the politico-legal committee. Isn’t it much, much simpler to convict? The presiding judge can make his or her own decision and no one will question it. Put it this way: Judges who convict have smooth sailing in front of them, without any obstacles or professional risk. But judges who acquit will face multiple difficulties within the system. When you look at the problem in terms of human nature, is a judge more likely to convict or acquit?

Then there’s the utilitarian problem of risk transfer. We can see from many wrongful convictions that higher-level courts are unwilling to take responsibility and transfer most of the risk to lower courts. They may clearly recognize that a case has problems, but instead of directly issuing an acquittal they return the case to the lower court for retrial. But many times the lower court can’t bear the risk, either. Faced with pressure from the politico-legal committee, the police, the procuratorate, and the potential for the victim to petition, the court will ultimately produce this distinctly Chinese phenomenon—the “verdict with room to maneuver.”

Here, the basic pattern is that the higher court doesn’t dare commit to independent adjudication and transfers the risk to the lower court. On the one hand, it hopes that the lower court won’t convict too easily and hand down heavy sentences. On the other hand, it also doesn’t want the lower court to issue acquittals. The result is this very strange legal phenomenon, where, even though the lack of evidence makes it possible to acquit, the defendant is convicted but given a more lenient sentence that leaves a bit of room to maneuver. I once wrote an article pointing out that this was the root of many wrongful convictions in China. The central problem is that Chinese courts don’t dare to remain true to the spirit of independent adjudication.

All of these problems require solutions at the institutional level.

But on the other hand, judges need to find their own reasons to change. I teach part-time at the National Judges College. I often give this example when I lecture to judges. One year, after a wrongful conviction was discovered, there was a great deal of pressure from public opinion and everyone who handled the case back in the day was investigated, with some even being placed under “shuanggui” [i.e., a form of investigative custody used against Communist Party members accused of serious disciplinary violations such as corruption or dereliction of duty—Trans.]. One of the people who originally handled the case went to a cemetery, where he bit the tip of his finger and wrote in blood: “I’ve been wronged.” Then, he killed himself. As I tell this story, I tell the judges that upholding judicial fairness and correcting miscarriages of justice are both closely related to every judge’s interests. I say, “If you can’t manage it, you won’t be able to protect yourselves.” At that point, the room is absolutely silent. No one is whispering to each other; everyone is listening very attentively. The Fourth Plenum document mentions a system for pursuing retroactive responsibility and a system of lifetime responsibility. This will have a huge impact on judicial officials and their future destinies.

Need for Checks on Power of Public Security, Procuratorate

PW: A moment ago you said that China’s criminal process is like an assembly line. If you want to go back to the beginning, you probably can’t simply put your hope on courts as the last line of defense in preventing miscarriages of justice. Shouldn’t we look at earlier stages in the process?

CRH: Personally, I feel we haven’t done enough research or given enough serious thought to the procuratorate’s role in causing miscarriages of justice. According to China’s constitution, procuratorates are not just the organs of prosecution. They are also responsible for preventing unlawful case-handling through oversight of the legal system, including oversight of public security, courts, prisons, and so on.

It’s precisely the procuratorate’s powerful role in China’s legal system that causes courts not to dare to acquit in many instances. This, in other words, is a fundamental reason for miscarriages of justice. Procuratorates can investigate and pursue criminal responsibility against judges from courts at the same administrative level. Doesn’t this force all judges to live in fear and tread carefully, as if on thin ice?

At this point, perhaps some might say, “Well, they have nothing to fear if they keep their noses clean.” My response would be that, under China’s current system, doesn’t everyone have reason to fear being investigated? It’s not necessarily judges who issue acquittals that get detained. Pick a judge at random, and all of the court’s work will be affected negatively. Because of the pressure on the court president, it will prevent others from issuing acquittals.

Once, at a meeting at the SPP, I said without any reservation that the procuratorate’s strong oversight power to investigate courts at the same administrative level is a major reason why it’s so difficult to prevent wrongful convictions in China. I believe we ought to prohibit procuratorates from investigating courts at the same level and that any cases against judges should be brought by procuratorates at the provincial or even central level.

Besides the procuratorate’s legal status, Chinese law gives prosecutors too much power, which creates a serious imbalance between prosecution and defense.

For example, the law clearly states that after a first-instance verdict is issued, as long as the procuratorate appeals then there must be a court hearing during the trial of second instance. But if an appeal is filed only by the defendant, there’s no requirement of any trial hearing. If you won’t even hold a trial hearing, how can you correct a wrongful conviction? If a procuratorate believes there is an error in a verdict that has already taken effect and appeals, this meets the statutory conditions for retrying the case and the court is required to hold a retrial. But if a defendant or his attorney wants to petition to have a case retried, it’s extremely difficult. Petitioning and a prosecutorial appeal shouldn’t even be mentioned in the same breath, they’re so different.

Also, Chinese procuratorates have the power to approve arrests and prosecute. In cases where the procuratorate serves as investigator, these two powers get merged into one so that approving arrest becomes a mere prelude to conviction, a rehearsal for sentencing. In Western countries, the power to approve arrest almost always belongs to the courts. This is because this is a very serious power; once a person is arrested, people begin to think he’s guilty. This is a power that shouldn’t be in the hands of the police or the procuratorate. A system in which arrest and indictment are combined concentrates too much power. If the arrest was in error, the indictment will also be in error. And so on from there. In some wrongful convictions, the original responsibility rests with the procuratorate. The original arrest was a mistake, but in order to demonstrate that the arrest was correct, they must prosecute and put a great deal of pressure on the court. For so many years, legal scholars have been calling for the power to approve arrests to be transferred to the courts, but it’s never become reality.

With these examples, I’m trying to show that mainland Chinese procuratorates possess a very strong prosecutorial power. The law grants them limitless resources to prosecute crime, including almost monopolistic control over many procedural powers. But the law gives defendants and defense lawyers very weak rights. When there is a wrongful conviction, it’s extraordinarily difficult to initiate the remedial process.

PW: After the procuratorate, I guess the next topic should be public security, no?

CRH: Public security organs are responsible for more than 90 percent of criminal investigations, thus serving as the first gate through which the vast majority of criminal cases need to pass. But the system ensures that its investigative powers can be exercised with almost no restrictions. You could even say that, under some circumstances, they can exercise that power without any scruple whatsoever. There are few places in the world where public security organs have as much power as they do in China. Even though there have been some reforms in the past few years, the change is too slow.

Now, what sorts of problems exist in the investigations carried out by public security organs?

First of all, it has almost gotten to the point where suspects can be interrogated without any effective constraint. Often, wrongful convictions are connected to confessions extracted through torture, and torture usually is related to the way that suspects are interrogated. But under the current system:

  • There are no specific regulations governing when a suspect can be questioned. In practice, you often see questioning of suspects starting in the middle of the night or in the early morning hours. There are also no restrictions on the length of time suspects can be questioned. In practice, you often see non-stop questioning over a period of days, beyond a person’s physical limits. Currently, the Criminal Procedure Law only says that a person cannot be summoned for initial questioning for longer than 24 hours, but once a person has been placed under detention or arrested, there are no time restrictions on interrogation.
  • Interrogations take place without a lawyer present and the police control the recording of interrogations so that, in practice, interrogations aren’t controlled.
  • As soon as criminal suspects confess to a crime, they lose any opportunity to recant. In practice, as long as a suspect makes a single confession, it doesn’t matter how many times they might recant or refuse to acknowledge the confession subsequently, that confession will be considered to be admissible. Many wrongful convictions are like this. A confession is made during the investigation phase, but the defendant tries to recant at trial. The Du Peiwu case in Yunnan is the most classic example. He went so far as to present a bloody shirt in the courtroom to prove that he had given the confession under torture, but the court paid him no attention.

All of this shows the central importance of confessions in the Chinese criminal justice system. As long as a police investigator has a record of a confession, it can always be used as evidence for conviction.

Then there are problems associated with identification. The cases of Du Peiwu, She Xianglin, and Zhao Zuohai all followed a common pattern. Besides the extraction of confessions through torture, they had another startling similarity: serious problems with the identification procedure. Whether it was identification of the crime scene or identification of the victim’s body, the way the public security organs carried out the identification process seriously violated legal procedure. For example, the process was undertaken without the presence of a lawyer or an independent third party, so it was easy to make mistakes and an excellent opportunity for the public security organ to falsify evidence. In many countries with rule of law, the rules require that a lawyer be present for the identification process, otherwise the identification will be considered invalid. But the identification process in China is extremely closed and totally controlled by investigators.

Third, there are problems with the procedures surrounding expert assessments. In ancient China, in homicide cases it was required to conduct an autopsy right there in court in front of all concerned. Today, the expert assessment process in criminal cases is completely closed, with investigation and assessment both conducted inside the public security agencies. Even if an expert is hired from outside, he or she will still be connected to investigators in some way and subject to very little supervision. The assessment takes place outside the presence of other interested parties or lawyers to supervise and bear witness.

In this kind of system, unless you assume that all public security officers are angels, there is no way to prevent problems from occurring in the way cases are handled. The closed nature of the investigation system gives irresponsible individuals or those with ulterior motives viable opportunities to create miscarriages of justice.

Tragedies occur one after another, but no one has learned a single lesson from them. When the Criminal Procedure Law was being revised, academics proposed that lawyers should be present for interrogation, assessment, and identification. But the legislative body vetoed it immediately because the public security organs and procuratorate both opposed it.

Besides the problems associated with case investigation I’ve just mentioned, public security organs have another extremely serious tradition. Before a case has even had a chance to be decided at trial, first impressions become established facts, putting pressure on the subsequent prosecutorial review and trial phases of the process. The specific manifestations of this are as follows:

  • After the case has been investigated, when it has just been transferred to prosecutors, even before the court has rendered its final verdict the investigating unit can hold an award ceremony and bestow honors on those who “contributed meritorious service to solving the case.” This both demonizes the criminal suspect and broadcasts the first impressions of the so-called facts of the crime to the general public. The media reports on the ceremony, which is attended by leading party and government officials. This has an impact and puts pressure on later phases of the criminal process. It’s something very difficult to fix through law, as it has become a standard part of criminal justice practice.
  • Then there’s the problem of how to dispose of assets alleged to be connected to the case. The Wu Ying case in Zhejiang was a classic example. Even while the case was still at the investigative stage and well before the court’s verdict had been finalized, the assets alleged to be involved in the case had already been auctioned off. If the court were later to find the defendant not guilty, how would the asset problem have been dealt with? Isn’t this something that runs counter to the entire legal system? There’s a problem of vested interests at hand.
  • Then there’s another situation in certain homicide cases involving civil servants or officials where the deceased is named a “revolutionary martyr” during the investigation stage. This carries very serious implications, because if the defendant has killed a “revolutionary martyr,” shouldn’t he be expected to be punished most severely?
  • Another way that first impressions gathered during the investigation stage become established facts is through the press releases circulated when a case is considered solved, which creates an impression on public opinion. These days, many places prohibit lawyers involved in a criminal case from casually revealing their defense arguments to the media, otherwise they risk criticism for violating professional ethics or might even face formal punishment. But there’s absolutely no restriction on public security organs and procuratorates issuing press releases when they finish investigating a case. For example, Nian Bin was eventually acquitted in Fujian, but when you look back at the publicity the public security organ gave the case back in the day you see how thoroughly the press reports demonized Nian Bin. Not only does this put pressure on the courts, but it also incites victims’ [relatives], causing them to become firm believers that the defendant is a vicious murderer. This, in turn, can create huge obstacles to redressing a wrongful conviction.

So, I often say that if checks are not placed on China’s investigative organs and their exercise of that power does not start to comply with rule of law, in practice it will become a great scourge, as difficult to tame as a runaway wild horse, uncontrolled by rule of law.

Now is Best Time to Control Miscarriages of Justice

PW: A moment ago, you said that the defense occupies a very weak position in criminal cases. How can the defense be made stronger? How can lawyers have more of an impact on the process?

CRH: Fundamentally, the failure of lawyers to make their impact felt is a reflection of the lower status accorded to defendants. After all, a lawyer’s power comes from the assignment granted to them by the defendant. So the central issue is how to raise the status of criminal suspects and defendants.

Of course, lawyers are not simply the same as their clients and have their own professional qualities. In the current system that’s been set up to redress wrongful convictions, the role of lawyers has truly not been given enough emphasis. We can see that in all of the official documents, which only make passing mention of the role of lawyers.

In a country with true rule of law, lawyers are the most active of all legal professionals. Whether they’ve been hired by a defendant or assigned to provide legal aid, they play the role of correcting errors within a case. In Western countries, they say: “A good defense lawyer is the best help a judge can have.” Lawyers are very good at helping to expose questions, holes, or conflicts in a case, and the exercise of their power acts as a check to ensure that the power of criminal investigators isn’t too great.

In the current mainland legal system, we still have the idea of “law enforcement cadres” where police, procuratorate, and courts are all part of a single system from which lawyers are excluded. As a result, it’s hard to have a sense of a common community of legal professionals. There have been a few changes recently, such as the emphasis on listening to lawyers’ opinions in death penalty review cases at the SPC. This is a welcome change, but things are changing too slowly.

PW: It’s sometimes difficult to give equal consideration to preventing wrongful convictions and fighting crime. This is particularly true given ordinary Chinese people’s traditional desire for stability and security. If we over-emphasize the rights of criminal suspects, won’t it be difficult for the public to accept?

CRH: This problem you just mentioned exists to some degree, especially when mainstream public opinion in China is so focused on anti-corruption and punishing corrupt officials. Ordinary people have a desire to see crime punished and swift resolution of cases by public security can earn popular support. Under these circumstances, if courts hand down acquittals for insufficient or flawed evidence, it will certainly anger the public, not to mention bringing protest from victims’ families. Under these circumstances, pressure from public opinion will be difficult for legal institutions to bear.

So we must weigh these two interests and determine which is greater, the risk of being unable to fight crime or the social damage caused by wrongful convictions?

Fighting crime is something that is in the interest of the entire society. But in recent years there has been growing suspicion toward state power. It’s a sign of social progress that the public no longer blindly submits to state power. Rights consciousness is rising within the public, and these days people are more worried about abuse of state power than they are about the risk of being unable to fight crime. People have increasingly come to understand that “fighting crime,” “maintaining public safety,” and “punishing corruption” are all, fundamentally, political discourse. Abuse of state power is the more frightening thing and something that ought to be seen as the people’s common enemy. This kind of public opinion is already beginning to form. I believe that this opinion environment presents China with a historic opportunity to bring the problem of wrongful convictions under control.

That is to say, public awareness and rights consciousness is a source of my optimism for the future.

Of course, in specific individual cases there need to be some technical changes. It’s not easy being a judge in mainland China. Under the current system, putting ourselves in their shoes, it’s very difficult to issue acquittals in cases where there is insufficient evidence. This is a reason why legal scholars have recommended that China introduce a jury system so that judges don’t have to bear the entire burden themselves in individual cases.

However, the time has to be right for introducing a jury system. Based on the history of how juries were introduced in other countries, it’s a reform that has been closely associated with political reform.