Thursday, February 19, 2015

Court Flaunting of Nian Bin Acquittal Raises Questions of Lessons Learned

Nian Bin reunites with his sister, who built his legal defense team, and uncle after being released from prison in 2014. Image credit: You Jingyou, Weibo

Last August, the Fujian High People’s Court acquitted Nian Bin, a former grocery-store owner sentenced to death in 2008 for allegedly poisoning his neighbors in 2006. The incident led to the deaths of two children. Nian claimed that he confessed to the crime only under the duress of police torture. After more than six years of trial and appeal, Nian’s lawyers were able to prove that police had fabricated evidence against him and withheld other evidence that showed his innocence.

Nian’s case, which has long been in the public spotlight and a focus of anti-death-penalty activists in China, has been hailed as a landmark victory after a long and hard-fought struggle by Nian’s family and lawyers. Some credit for this victory must also go to legal reforms that have changed the environment in which death penalty cases are handled in China. The careful review of the death penalty by the Supreme People’s Court is one factor, as is the increased emphasis that has been placed on the exclusion of confessions extracted through torture or other illegal evidence.

The outcome of Nian Bin’s case may also reflect the attention that Chinese leaders have paid in recent years to the serious problem of wrongful convictions and other miscarriages of justice. Because addressing individual cases of injustice is increasingly both a legal and political problem for Chinese courts, it is not surprising that the Fujian High People’s Court chose to make mention of the “positive” impact of the successful resolution of the Nian Bin case in its annual work report to provincial people’s congress deputies. After all, under China’s political system, approval of state institutions’ work by legislative bodies is supposed to serve as an important affirmation of the correctness and legitimacy of that work.

But to commentator Zhu Changjun, writing in the February 2 edition of The Beijing News, the Fujian court’s attempt to take credit for overturning Nian Bin’s conviction inadequately addresses either the factors that contributed to Nian’s wrongful conviction in the first place or the provincial court’s failure to acquit Nian earlier despite identifying serious problems with the prosecution’s case.

Zhu’s concern highlights a general problem faced in trying to evaluate achievement in reform of China’s legal system and human-rights protections. On the one hand, there is a tendency to exaggerate the progressive impact of new policies or legislation before there is concrete evidence that institutions and practices have truly changed for the better. On the other hand, it can often be difficult to say how indicative positive outcomes in individual cases are of systemic change.

This is perhaps a particular problem when the progress in question is so closely linked to the undoing of past mistakes, rather than simply improving upon existing policies and practices. In these cases, as Zhu Changjun suggests, Chinese authorities might earn more credit for their efforts if they were to show with greater transparency how the lessons learned from past miscarriages of justice are being put to use in the reform process.

How Should the Impact of the Nian Bin Case be Recorded?

Zhu Changjun
The Beijing News, February 2, 2015

Overturning the verdict in the Nian Bin case merely reflects the ordinary operation of the judicial system’s mechanisms to correct errors. Correcting these errors is a basic responsibility of a reasonable judicial system. It’s really inappropriate for local high courts to one-sidedly prettify this sort of action in a work report.

According to recent reports citing a number of deputies to the Fujian Provincial People’s Congress, the Nian Bin case, which received a lot of attention in 2014, was mentioned in the work report of the Fujian High People’s Court. In that report, court president Ma Xinlan commented that the court’s “resolution of a number of cases in accordance with the law, including the case against Pingtan resident Nian Bin on charges of poisoning with a hazardous substance, caused a positive impact both legally and socially.”

Nian Bin’s case was a classic example of a miscarriage of justice and received national attention. As such, reversal of the verdict against Nian Bin is of course worth including in the annual work report of the local judicial authorities. But what is the most appropriate way of discussing it? Should it be a full accounting of the lessons learned from how this miscarriage of justice came to pass or simply a comment on the significance of how mistake were ultimately rectified? The answer should be self-evident. The way that judicial authorities have, at least at the current stage, chosen to focus on the “positive impact both legally and socially” of their “resolution of the case in accordance with the law,” deserves further scrutiny and discussion.

One can of course understand the Fujian High People’s Court’s mention of the positive social value of overturning Nian’s wrongful conviction. After all, Nian Bin’s case was finally overturned after eight years of 10 verdicts—four of those carrying a sentence of immediate execution, but this is not simply about restoring justice to a single individual. It allows people to hope for the rectification of even more wrongful convictions, a kind of judicial multiplier effect. To be sure, this has a positive social and legal impact. But it’s rather biased for an annual work report to only reveal and magnify the positive side and fail to reflect the complexity and real external impact of the case.

On multiple occasions, the Fujian high court sent the case back to the intermediate court for retrial on the grounds of “unclear facts and insufficient evidence.” This does actually show the high court’s cautious attitude in trying the case. But it’s also worth noting that on June 8, 2009, the Fuzhou Intermediate People’s Court once again sentenced Nian Bin to death for poisoning with a hazardous substance. Once again, Nian appealed the verdict. Only this time, on April 7, 2010, the Fujian high court issued its final ruling, rejecting the appeal and upholding the lower court’s verdict. The case was then sent to the Supreme People’s Court for review of the death sentence in accordance with the law. In other words, the Fujian high court upheld the death sentence against Nian Bin despite its previous findings of “unclear facts and insufficient evidence.” If it weren’t for the SPC decision to reject the death sentence, Nian Bin’s fate and the outcome of the case would most likely have been completely different.

Moreover, since the Fujian high court found multiple times that the case had “unclear facts and insufficient evidence,” why did it continue to send the case back for retrial time and again instead of directly acquitting Nian Bin? In this respect, even though neglect of supervision over the police investigation stage has enormous relevance to the way the case against Nian Bin developed, the Fujian high court’s role in “correcting errors” clearly shouldn’t be overstated.

It’s even more important to see that by only paying attention to the “social and legal impact” of the case, the Fujian high court takes the position of a cool and detached observer without fully considering the fate of Nian Bin, the victim.

No matter how you approach it, the lessons of the Nian Bin case are all very serious. Overturning the verdict in the case merely reflects the ordinary operation of the judicial system’s mechanisms to correct errors. And correction of the errors in this case was never a foregone conclusion and came only after such great difficulty. If it weren’t for the persistence of Nian Bin’s relatives and lawyers and the decision of the SPC not to approve the death sentence, the outcome would be utterly unimaginable. In summing up the case as a participant, the Fujian high court ought to place its primary emphasis on the lessons and errors that led to this wrongful conviction in the first place. It should offer a deep reflection on and take appropriate responsibility for negligence and flaws in trying the case. To talk so single-mindedly about “impact” and “turning negatives into positives” is not only flippant; it makes it difficult for people to have any faith that the court has learned any lessons about miscarriages of justice.

A miscarriage of justice is a miscarriage of justice, and correcting these errors is a basic responsibility of a reasonable judicial system. It’s really inappropriate to one-sidedly prettify this sort of action in a work report.

Tuesday, February 10, 2015

Behind the Rarity of China's Acquittals

Image credit:

Acquittals are rare in China. The most recent China Law Yearbook, an official compendium, states that for every 10,000 people tried in criminal courts in 2013, just seven were acquitted. Although the number of people found not guilty rose incrementally in 2013, it plummeted from 6,617 to 727 per year between 2000 and 2012. Meanwhile the number of people whose cases were adjudicated trended upward, causing acquittals to account for just 0.07 percent of completed trials in 2013, falling from 1.02 percent in 2000. In comparison to China, Japan and Russia acquit less than 1 percent of defendants, while the Department of Justice reports that since 2001, the United States has convicted more than 90 percent of defendants each year.

Adjudications and acquittals for defendants in criminal trials, 2000-2013
Year Adjudications Acquittals % Acquitted
2000 648725* 6617 1.02
2001 740000* 6597 0.89
2002 706707 4935 0.70
2003 747096 4835 0.65
2004 767951 2292 0.30
2005 844717 2162 0.26
2006 890755 1713 0.19
2007 933156 1417 0.15
2008 1008677 1373 0.14
2009 997872 1206 0.12
2010 1007419 999 0.10
2011 1051638 891 0.08
2012 1174133 727 0.06
2013 1158609 825 0.07
* Dui Hua estimates
Sources: Dui Hua, China Law Yearbook

China Law Yearbook does not typically disaggregate acquittal data by crime, but in select years it has provided the number of people found not guilty in trials for endangering state security (ESS) and dereliction of military duty. (Dui Hua research indicates that ESS accounts for the vast majority of cases when these two crime categories are combined.) In 2002, only one of the 366 people tried in these types of cases was acquitted, while in 2004, there were five in 336. None of the 730 individuals tried for ESS with records in Dui Hua’s Political Prisoner Database was found not guilty.

Indirectly addressing the paucity of acquittals as part of judicial reform efforts, the Central Politico-Legal Committee (PLC) announced its decision on January 20, 2015, to remove indictment and conviction rates from the list of performance indicators applied to judicial officials. While this should reduce pressure to convict, the number of not-guilty verdicts will continue to be influenced by efforts to avoid the payment of state compensation, marginalize defense attorneys, restrict judicial independence, and maintain stability, among others.


Chinese prosecutors tend to explain low acquittal rates as an indicator of good work. In 2012, a Beijing prosecutor told Legal Daily that a high level of “judicial precision” allowed good prosecutors to “filter out” cases likely to result in acquittal so that the majority of people standing trial were “guilty.” A Guangdong High People’s Court judge reiterated this sentiment by telling the paper that, “The reduction in acquittals, to a very large extent, is a manifestation of increasing awareness about evidence and law in our investigative and prosecutorial units.”

For prosecutors, acquittals signify failure to demonstrate guilt, and at least prior to the implementation of the PLC decision, they have a direct negative impact on performance evaluations. In 2005, the Supreme People’s Procuratorate (SPP) issued evaluation measures stating that acquittal rates should not exceed 0.2 percent. Local procuratorates followed suit by putting forth “zero acquittals” as the ultimate goal in their annual work reports. Among various performance indicators, the acquittal rate was the most important, legal scholar Yuan Yicheng told Legal Daily in 2012.

Rather than risk acquittal, it is an unspoken rule that prosecutors decide to withdraw indictments. The procuratorate may formally drop the charges against a criminal suspect or remand a case for supplementary investigation, both with the approval of the court. If additional investigation is conducted, a suspect may be unable to fully regain their personal freedom during that time. By deciding not to pursue charges, prosecutors not only reduce acquittals but also dodge legal repercussions, since people without not-guilty verdicts face barriers to filing complaints against or winning compensation from government bureaus that wrongfully deprive them of their personal freedom.

Called a “black-box operation” by Xiaoxiang Morning Post, indictment withdrawals are not covered by the Criminal Procedure Law. Instead they are outlined in judicial interpretations and opinions issued by the SPP and Supreme People’s Court (SPC). After conducting a study on the use of the practice between 2003 and 2005, the SPP reported finding numerous problems, according to legal scholar Gao Tong. These problems included prosecutors opting to withdraw indictments in instances where they feared the defendant would be found not guilty and laxity in carrying out legal oversight. The SPP’s 2005 evaluation measures state that decisions not to pursue charges should occur in less than 0.8 percent of cases, four times the target for acquittals.

Indictment withdrawals are not uncommon in political cases. In Gansu, Chen Pingfu (陈平福) was placed under residential surveillance in June 2012 for writing dozens of blog posts about the social injustices he experienced as a laid-off teacher, petitioner, and street performer. Chen was formally arrested for inciting subversion in August, but following an outpouring of public support for his release, his indictment was withdrawn on December 14, 2012. Chen’s defense lawyer claimed that he never saw the prosecutors’ application for withdrawal and was not informed of the basis for withdrawing the indictment. In a separate case, the Beijing People’s Procuratorate decided not to pursue charges against Wang Gongquan (王功权) on January 21, 2015. The prominent businessman was a cofounder, along with Xu Zhiyong (许志永), of the New Citizens’ Movement, which advocates for education for migrant children and transparency in the assets of government officials. The withdrawal followed a televised confession Wang made in December 2013 and his release on bail in January 2014.


Prosecutors issue indictments, but it is the courts that hand down convictions. Because convictions are the primary basis upon which their promotions are decided, “prosecutors need to run daily to the courts to beg [judges] not to hand down acquittals,” according to a mid-ranking prosecutor cited in an article published in Contemporary Law Review by legal scholar Zhu Tonghui. Painting a picture of insufficient checks and balances within the judiciary, Zhu notes that judges tend to approve most indictment withdrawals in part because they are aware of the adverse impact acquittals have on prosecutors. Courts and procuratorates tend to work together to rule out the possibility of not-guilty verdicts, according to an article published in the Journal of Hubei Correspondence University in 2014.

Like prosecutors, judges see convictions as a means to career advancement, but they also see them as tools for maintaining stability. Judges worry that finding defendants not guilty causes an uptick in petitioning because victims’ family members may feel that the judiciary failed to deliver justice and punish the real culprits, the SPC Research Office wrote in 2014. Acquittals in appellate trials are equally undesirable because higher-level courts do not want the public to view lower-court verdicts as “wrongful,” said Yuan Yicheng. Gao Tong says that acquittals often spark fierce public sentiments, where judges are denounced as “corrupt” or “abusing power.”

Some legal experts believe that courts reconcile unfounded guilty verdicts by issuing light or suspended sentences or exempting defendants from criminal punishment. China Law Yearbook shows that the percentage of convicted persons who were exempt from criminal punishment remained relatively stable around 1.67 percent from 2003 through 2013, however, the number of people receiving suspended sentences increased annually, going from 18.47 percent in 2003 to 30.78 percent in 2013. Critics argue that a portion of these exemptions and suspensions represent people who should have been acquitted.

Defense lawyers

Within the Chinese criminal justice system, defendants have little support. In 2012, former All China Lawyers Association president Yu Ning publicly stated that defense lawyers participated in fewer than 30 percent of all criminal cases nationwide with participation as low as 12 percent in some provinces. Defense lawyers face political and professional retaliation for performing their duties, and are often barred from routine activities such as meeting with their clients and obtaining case documents from police, prosecutors, and judges. The challenges facing defense lawyers are widely documented.

Stability maintenance

The decision of guilt or innocence is beyond the courts when the PLC intervenes in cases deemed to have far-reaching consequences for social or political stability. In these “stability maintenance” interventions, the PLC encourages coordination between courts, procuratorates, and police. China Youth Daily reported on this type of intervention in January 2014. In this instance, the local PLC in Gushi County, Henan Province, issued a “red-head document” requesting that the county court convict Wu Yunqiang (吴运强) on the grounds that an acquittal would lead to “negative social consequences” and “render local land-administration regulations useless.” The county accused Wu of illegal land use in early 2009 after he sold his kindergarten in Zhongshan, Guangdong Province. Wu was convicted and given a suspended sentence in November 2011, but two years later the Xinyang Intermediate People’s Court overturned the verdict and ordered a retrial due to insufficient evidence. The procuratorate then formally withdrew the indictment in December 2013. However, due in large part to PLC intervention, Wu was re-indicted. In October 2014 he was sentenced to three years in prison for illegal transfer of land-use rights despite the fact that the procuratorate reportedly failed to present new evidence to substantiate his guilt.

Policies to manipulate verdicts based upon their social and political outcome undermine judicial independence and justice itself. During a speech at the National Prosecutors’ College in August 2014, SPP Procurator-General Cao Jianming acknowledged the prevention of wrongful convictions as the biggest challenge for prosecutors and urged judicial officials to hold on to the presumption of innocence. Coordinated or not, as wrongful convictions continue to be exposed by Chinese news media, it is increasingly difficult to view China’s acquittal rate as simply good work.