Tuesday, May 3, 2011

Translation: Appointment with an SPC Death Penalty Judge

What role do criminal defense lawyers play in the final review over death penalties in China? This is a question many, including lawyers themselves, have been asking ever since authority over death-penalty review was restored to the Supreme People’s Court (SPC) on January 1, 2007. There is much that remains hazy about how the process works, in fact, even though measures have been adopted in an attempt to give it some structure.

Liu Xiaoyuan (above left) and Li Fangping (above right)
are representing convicted murderer
He Shengkai (bottom) during his
death-penalty review proceeding.
In an April 27 blog post, Beijing-based criminal defense lawyer Liu Xiaoyuan offers a glimpse at his experience representing death-row prisoners. As in previous accounts of his experiences with China’s criminal justice system, Liu describes that system’s bureaucracy in considerable detail, in this case recounting his visit to the SPC’s office for handling complaints by petitioners—known as the “Visitor Reception Center”—in order to make an appointment to meet with the judge handling the review in the case of He Shengkai, a 29-year-old Guizhou man convicted of killing a court police officer in a knife attack at the Zunyi Intermediate People’s Court.

Liu and another defense lawyer, Li Fangping, sought the meeting with the court—as allowed under SPC regulations—in order to convey their opinion that evidence of He’s possible mental illness had never been properly investigated and that the results of such an investigation might limit criminal liability in the case. Liu describes the atmosphere as cordial, but cool and distant. Throughout the day’s events, Liu senses that he is being treated as a nuisance, rather than an integral part of a formal legal process, a sense that is constantly reinforced by being forced to submit to procedures intended to manage those other “visitors” to the court—ordinary petitioners, whose precarious rights are symbolized by the dozens of provincial police vehicles that wait for them outside the reception center every day.

Liu Xiaoyuan and Li Fangping have been in the news lately, part of the continuing offensive being waged against activist defense lawyers in China over recent months. In mid-April, Liu was detained for five days under circumstances that remain unclear. Last Friday, Li similarly disappeared after phoning his wife to say he was in the custody of security agents. And, as it happens, Wen Tao, a journalist who wrote an early account of the travails of petitioners to the SPC, has been missing for a month, as of this writing, apparently in police custody in connection with the ongoing disappearance/criminal investigation of artist Ai Weiwei.


Appointment with a SPC Death Penalty Judge
April 27, 2011

At 7:30 a.m. on April 26, I went to the Supreme People’s Court (SPC) “Visitor Reception Center” in  Hongsicun, Chaoyang District (where one goes to petition the court to accept a case) in order to make an appointment with the SPC judge responsible for reviewing He Shengkai’s death sentence.

According to SPC regulations, defendants in death penalty cases and their relatives have a right to engage a defense lawyer when the case reaches the death penalty review stage. Once the lawyer receives the authorization [letter], he or she may submit a defense opinion or legal opinion to the SPC and also may schedule a meeting with the judge [responsible for] the case in order to convey his or her views and opinions on the case in person. However, in order for the lawyer to schedule a meeting with the judge, he or she must follow the “petitioner” route and queue up and register at the “Visitor Reception Center” like [any other] petitioner. The “Visitor Reception Center” will then make the arrangements. It’s really strange to treat a meeting between a lawyer and a judge as you treat a petitioning relative!

At 8 a.m., I entered the main entrance of the “Visitor Reception Center,” its steel entry gate guarded by a dozen or so court police officers who inspected the documents and identification of everyone who entered. If you don’t have a copy of the provincial high court decision, they won’t let you enter.

I walked through the courtyard and entered the office building, which has separate doors for entry and exit. I went in through the exit and [thus] didn’t have to go through the security screening, though a police officer checked my license to practice as a lawyer. There were many petitioners filling out registration forms in the hall, as well as a number of people queued up to obtain registration forms. There were 12 service windows in the hall, but two of them were not open. I asked the police officer whether there was a window for lawyers handling case-related matters, and he explained that lawyers had to queue up like the petitioners because there was no special window for lawyers. I queued up at Window #12, and when it came time for me to get a registration form I explained that I was there not to petition but to handle a case. The person behind the counter didn’t appear to understand me and asked me how many times I had been there before. I said I had never been there before and had only mailed my authorization documents and defense opinions to the judge handling the case. I was given a “First-Time Visitor Registration Form” to fill out. I was there to meet a judge as He Shengkai’s defense lawyer, but still the SPC was treating me like a petitioner.

I completed the registration form, and the police officer had me hand it in at Window #1. The person behind the counter looked over the first-instance trial verdict, the second-instance decision, and my license to practice as a lawyer. As he was entering the information from my registration form into his computer, he said that He Shengkai’s sister had previously come to petition, so my meeting to discuss the case with the judge was a “repeat visit,” not a “first-time visit.” “Repeat visitors” were only [allowed to] register once every two months.

After the decision was announced in the second-instance proceeding against He Shengkai, his sister He Shengxian had come to the SPC to petition, but I wasn’t sure about the specific date. I explained to the person behind the counter that this was the first time I had personally come to meet with the judge and that, though He Shengkai’s sister had come earlier to raise issues [regarding the case], the family’s issues were not the same as the lawyer’s. The person behind the counter said it was all the same and had me go back to Window #12. While waiting in the queue, I said to the police officer, “If you can only register once every two months, it’s quite possible that when you come again after the two months are up that the execution will have taken place!”

I returned the “First-Time Visitor Registration Form” to Window #12, which the person behind the counter took from me and shredded. But he wouldn’t give me a “Repeat Visitor Registration Form.” I left the counter and tried to call the SPC’s 4th Criminal Division [in charge of death penalty review], but the line was constantly busy. The police officer I’d spoken to earlier came over and pointed to a female officer who was on the telephone and told me to explain the situation to her.

After the female officer finished with her call, I explained things to her. She said that rules were rules but indicated that she’d help me sort things out. She led me to Window #1, where the person behind the counter continued to insist that I was a “repeat visitor.” He said that He Shengkai’s sister, He Shengxian, had come to petition on February 21 and that since two months had already passed I could register as a “repeat visitor” this time. The female officer asked him to give me a “Repeat Visitor Registration Form,” but he said he didn’t have any. With the female officer’s help, I was able to get a registration form from one of the other windows. After again completing the form, I submitted it at Window #1, and the person behind the counter told me to wait outside. At 9:30 a.m., I inquired at Window #1 and the person behind the counter said that they had contacted the 4th Criminal Division and that I should go to that office for a meeting later that afternoon.

I left the SPC “Visitor Reception Center” and was met by Lawyer Li Fangping. We rode a bus and took the roundabout way to the Number 9 Building at Beihuashi, in Dongcheng District, which is where the offices of the SPC Criminal Courts are located.

That morning when I went to the SPC “Visitor Reception Center,” I noticed many police vehicles parked on the side of the road. When I left, those police vehicles were still parked there. I did a rough tally and counted more than 20 vehicles, all with provincial license plates. In recent years, when the SPC “Visitor Reception Center” was located near the Beijing South Railway Station, you could see this same scene every day.

At 1 p.m., we arrived to wait outside the offices of the SPC Criminal Court. At 2 p.m., I asked the police officer posted outside the office building courtyard how we could enter, and he said we first needed to contact the person handling the case. I dialed the number, but no one answered at the 4th Criminal Division. At 2:15, I finally reached an employee, who told me that the “Reception Center” had told them the meeting was scheduled for 2:30 p.m. and told me to wait a while longer. When the time came, the judge and a court clerk came out to meet us. Because there was an armed police guard on duty at the gate, we had to register. The guard asked the judge what we were there for, and the judge replied that we were there to petition. I forced a smile and explained that we were lawyers who had come to discuss a case, not petitioners with a petition. The judge said that they had read all of the documents I had sent and that there was actually no need to meet in person. I said that even though our documents were complete, there was still a need to discuss the case in person. [I reminded him that] SPC regulations say that the defendant may hire a lawyer during the death-penalty review process and that the lawyer may schedule a meeting with the judge [responsible for] the case in order to convey his or her views and opinions on the case. The judge acknowledged that this was true.

The judge brought us to the first floor of the office building, and we went through a basic security check upon entry. In a meeting room, the judge and court clerk listened as we discussed our opinions on the He Shengkai case. Even though the court clerk was there, she did not make any notes. Perhaps they thought we had [fully] expressed our opinions in detail in the written documents? The judge said that they had visited He Shengkai in the Zunyi Number Two Detention Center.

The main issue we conveyed to the judge was that He Shengkai might suffer from mental illness and that a judicial evaluation of mental illness should be carried out in order to make an accurate determination of his criminal responsibility. We did not launch into a detailed discussion, because we had written about this in great detail in our defense opinion. The judge listened to us speak for half an hour, during which he never once rejected our opinions. In the end, I noted that [the murder in] this case had taken place inside the court system and urged the SPC to be objective and rational in its review of the death penalty and review the case according to the facts and the law without any external interference.

I’ve handled four death penalty review cases, and this is the second time I’ve met with the judge in the criminal court [building]. The other times, we met in the “Visitor Reception Center.” The first meeting in the criminal court concerned the case of Yang Jia. That time, I was received by the presiding judge and two judicial officers handling the death penalty review in Yang’s case. However, they refused to allow me to act as [Yang’s] lawyer because Yang objected to his father’s choice of [me as] lawyer. What’s interesting is that even though they rejected me as lawyer, the three judges still listened to my opinions and allowed me to submit a legal opinion as an ordinary citizen.

Ever since the SPC reclaimed the authority over death penalty review, lawyers have been allowed to participate in the death penalty review process and provide defendants with legal service. Given that lawyers are able to play a role in defense during the death-penalty review process, I believe that their meetings with judges shouldn’t be treated like “petitions” from relatives. Even though relatives who petition to express opinions about a case and lawyers meeting with judges to discuss a case are both concerned with the same case, the opinions being discussed differ because the two roles are different. I therefore hope that the SPC can issue clearer regulations regarding the participation of lawyers in the death-penalty review process and establish a dedicated service window for lawyers participating in judicial petitions or the death-penalty review process so that lawyers will no longer have to be treated as petitioners.