Tuesday, May 19, 2015

Quest for Retrial: Court Holds Novel Hearing on Nie Shubin Case

Nie Shubin. Image credit: Internet photo

For a decade, the name Nie Shubin has been synonymous with the problem of wrongful conviction in China. A court in Hebei executed Nie in 1995 for the rape and murder of a woman in a suburban cornfield. Ten years later, Wang Shujin, a man arrested in connection with three other rape-murders during the same period, confessed to the crime, referencing a number of specific details about the crime scene that were not publicly known. His confession attracted national attention, leading many to assume that Wang was the “true culprit” in the case and, consequently, that Nie's conviction was an injustice that must be remedied.

With 2015 well underway, the Chinese criminal justice system has yet to confirm either of those assumptions. Nie's family has been trying for years to get his conviction overturned, but they were stymied in their efforts by, among other things, their inability to obtain a copy of the original court verdict (until it mysteriously arrived by courier after two years of petitioning). Meanwhile, after a protracted and closely watched trial, in September 2013 the Hebei High People's Court upheld a lower court’s decision to sentence Wang Shujin to death for all of his confessed crimes except the offense that led to Nie’s execution.

The court cited insufficient evidence to corroborate Wang's confession, and many legal scholars praised the court for upholding the presumption of innocence. But the court's failure to convict Wang left Nie's guilt in limbo and forced observers to consider what the outcome of Nie Shubin's trial might have been had he been granted a similar presumption of innocence.

Now, two decades after Nie Shubin's life was ended with a bullet to the head, that opportunity might finally come to pass. Last December, the Supreme People's Court announced that it was assigning the Shandong High People's Court to review whether Nie's case should be reopened and a new trial held.

Normally, this would have led to an internal review of case files and written submissions from all parties to the case.

Instead, judicial authorities in Shandong took the completely unexpected step of announcing late last month that it would hold a kind of preliminary hearing. The procedure would allow both sides to present their positions in front of a five-person judicial panel responsible for the case and a 15-person panel selected to give their opinions on whether to reopen it.

As there is presently no law or regulation providing for such hearings, the Shandong court was entering uncharted terrain. According to Judge Zhu Yunsan, who presided over the judicial panel, a hearing would help the court to accentuate openness, fairness, and impartiality, as well as give both the petitioners and the public a sense that the case was being handled in a just manner. A hearing would also enable the court to increase the level of transparency surrounding the case and involve a degree of public participation in a highly controlled manner. All of this was a way of acknowledging that the considerable public attention surrounding the case demanded more than a routine review process.

It was made clear, however, that the hearing would not be about reassessing Nie Shubin's guilt or innocence. Instead, the matter under consideration would be simply to determine whether there were sufficient grounds to initiate retrial proceedings. This would mean meeting the standards set out in Article 242 of the Criminal Procedure Law, which include the existence of new evidence disproving facts confirmed in the original judgment that could affect conviction or sentencing, or the presence of procedural violations that could have had implications for the fairness of the trial.

It is unlikely that the Shandong High People's Court would initiate this hearing process without approval from the Supreme People's Court. Given that there seems to be a trend towards the use of hearings and other forms of expanded participation in recent criminal procedure reform, it even seems possible that preliminary hearings of this type might become a normal part of the process of reopening decided cases. (A similar hearings procedure has also been used as part of the process of determining whether to reopen civil trial proceedings.) If such hearings are to become more routine, judicial authorities may be hoping that the high profile of Nie Shubin’s case can help justify this particular reform, even in the absence of any provisional normative guidelines.

The Hearing

Evidence is presented to a 15-person panel during the hearing.
Image Credit: Shandong People's High Court

The hearing commenced at 1:30 p.m. on April 28 and was finally brought to a close shortly before midnight. The proceedings differed from a regular trial in that evidence presented was not subject to cross-examination and there was no debate between contending sides. In fact, the two sides made completely separate appearances. The judges and panel heard first from lawyers Li Shuting and Chen Guangwu, representing Nie's family. That was followed by a presentation from personnel representing the Hebei Public Security Department, Hebei People's Procuratorate, and Hebei High People's Court—all three of which had been responsible for handling Nie's case.

The role of the 15-person panel was to listen to the presentations, at the end of which they were permitted to ask questions and seek clarifications. The panel was made up of five academic experts, four delegates to China's legislative bodies, four “grassroots” representatives (including two representing women's organizations), and two members of the court's group of appointed external “supervision personnel.” All participants were required to be at least 45 years old and demonstrate “good character.” In the interest of objectivity, panel members must not have expressed any opinions on Nie's case in the past.

At the end of the hearing, panelists were asked to convey their opinions on anonymous forms that they placed into a sealed box. These opinions, together with the case files and the presentations made by the other participants in the hearing, would then form the basis for the court to make a decision, on a later date, about whether to initiate a retrial.

Citing concerns for the victim's privacy, the Shandong High People's Court did not open the hearing to the public, but rather provided live updates on the hearing through its microblog.

During the hearing, Nie Shubin's lawyers presented evidence of a number of substantive and procedural problems with the original trial. Among the most sensational of their allegations was the suggestion that Hebei judicial authorities may have falsified the date of Nie's execution. Court documents all claim that Nie was among a group of people executed by gunshot on April 27, 1995. However, Nie's lawyers pointed to a petition in the case file bearing Nie's signature that was dated May 13, 1995. Lawyers also raised questiones about photos taken to document the execution that appeared to show Nie and others wearing heavy winter clothing and snow on the ground—despite a recorded temperature of nearly 26˚C (79˚F) on April 27. These allegations were rebutted by a representative from the Hebei provincial court, who claimed that Nie had written the wrong date in his petition. He also denied that the photos showed anyone wearing winter clothing and claimed that the “snow” in the photos was actually sand from the dry riverbed where the executions were carried out.

Questions about the exact date of Nie Shubin's execution may seem like they have little to do with whether he received a fair trial. But Nie's lawyers pointed to a pattern of sloppy record-keeping, including many instances in which court officials apparently forged Nie Shubin's signature on legal documents. Court officials acknowledged these procedural irregularities during the hearing, explaining the forgeries by noting that defendants had sometimes used pens to assault court officials, injure themselves, or destroy documents. To prevent this, court officials would sign the documents on behalf of the defendant, who would then confirm the process by applying his fingerprint. Though this practice did not follow the letter of the law, court officials insisted that these procedural irregularities did not rise to the level of error that would justify a retrial.

Another major point of controversy was whether Nie Shubin's confession of guilt had been extracted through torture. Lawyers noted that Nie's first documented statement to police was not given until the fifth day after he was taken into custody. Prior to that point, Nie had been held under dubiously lawful “residential surveillance” at the local police station. Lawyers raised questions about what may have transpired during this four-day period and presented a statement from a Hebei prison inmate surnamed Ji who had been held in the same detention center as Nie and claimed that Nie had told him he had been tortured.

The Hebei prosecutor attending the hearing reported that the authorities had already investigated the torture claim in 2005 and were able to find no evidence. Moreover, he noted that detention center records showed that Ji and Nie were not housed in the same cell and could not have had the close contact and opportunity for communication claimed by Ji. Furthermore, they questioned Ji's reliability by noting that he had been imprisoned several times for fraud.

Doubts about Nie's confession are extremely significant, because, aside from that confession, there is no other evidence linking Nie directly to the crime. All the other evidence in the case serves to corroborate statements made in the confession, so if that confession can be called into doubt, the prosecution's case would weaken substantially. Moreover, the presence of Wang Shujin's later confession puts the questionable circumstances surrounding Nie's confession in a new light and may be considered the “new evidence” necessary to secure a new trial.

Wang Shujin stands trial in 2013. Image Credit: CCTV

Even if the possibility of a coerced confession and Wang Shujin’s confession were both set aside, there would still remain at least one key argument for retrying Nie’s case. Because the police medical examiner did not even try to recover traces of sperm from the victim’s body, the only evidence used to convict Nie on the charge of rape was his confession—a clear violation of the Criminal Procedure Law. Several legal experts—including Professor Hong Daode of China University of Political Science and Law, who was one of the panel members in the Shandong hearing—have pointed to this fact as an irrefutable basis for re-opening the case.

Official media coverage of the hearing has been largely supportive of the Shandong high court's “innovative” efforts to increase transparency in this contentious and controversial case, and legal scholars have generally expressed praise. That said, the ad-hoc nature of the hearing procedure has concerned some observers. Some wonder whether it was fair to have the Hebei authorities present their case to the panel last, rather than allowing lawyers for Nie's family to have the final word. Professor He Jiahong of Renmin University was among those who called on the court to make the panelists opinions—though not their identities—public, so that the public might see how the court's later ruling made use of this new body's input.

Now that so much of the evidence in the case has been subjected to such intense and public scrutiny, it seems almost inevitable that the Shandong court will agree to a retrial. But what then? If a new trial proceeds based on the present evidence and a new presumption of Nie's innocence, then it is quite possible that the court will be unable to convict him for the crimes for which he has already been put to death. That wouldn't necessarily be the same thing as finding him innocent, however. Despite confessions by two separate “culprits,” it's possible that this case ends with neither Nie Shubin nor Wang Shujin being found guilty. Though that outcome may not satisfy those in China who have come to assume Nie's innocence and Wang's guilt, it may be the kind of result necessary if the Chinese criminal justice system is to make real progress toward preventing miscarriages of justice in the future.