Wednesday, August 29, 2018

“All Criminal Defendants to Have Lawyers”: Is Access to Defense Lawyers Enough in a System Designed Against Defendants? (Part 1 of 2)


Guangdong Department of Justice Notice given to defense lawyer Sui Muqing, claiming Sui was in violation of court rules; Sui's license to practice was revoked by Guangdong authorities. Image credit: HKFP.

In January 2018, the Supreme People’s Court (SPC) announced that “all criminal defendants are to have defense lawyers.” Pilot projects in various provinces across China have since launched with this goal in mind. Official media reports boast 100% defense counsels assigned to criminal cases in certain pilot project localities. At first glance, these results are impressive considering public defenders have historically been provided in only 30% of criminal cases in China. Increased access to defense lawyers should ensure the rights of defendants are upheld, however the relationship is not always automatic. Access to defense is effective so long as lawyers have the right tools at their disposal to represent their clients. Dui Hua analyzes shortcomings in the pilot projects including their failure to address the role of defense counsel in pre-trial contexts and the overemphasis on measuring success by coverage rather than quality of defense. Additionally, basic principles such as conflict of interest and identifying clear sources of funding and accountability mechanisms are obstacles that reformers have yet to address in their attempts to institutionalize a more robust defense counsel.

“All Criminal Defendants to Have Lawyers”

The eight provinces and municipalities selected to participate in the pilot projects are Beijing, Shanghai, Zhejiang, Anhui, Henan, Guangdong, Sichuan, and Shaanxi. Senior officials have praised the projects as “serving as a well of experience for further national expansion and as a vehicle to uphold human rights and to avoid miscarriages of justice.” The regulations on the pilot projects outline procedural guidelines for expanding access to defense counsel to all criminal cases, including setting three days as the maximum amount of time that courts can take to inform defendants that they have the right to retain a lawyer and the right to receive legal assistance. The regulations also call on courts to directly provide legal aid centers with information regarding the defendant’s case.

Defense lawyers are not new to China’s criminal justice system. China’s Criminal Procedure Law mandates compulsory defense counsel for mentally ill persons and juveniles and provides guidance on scenarios in which courts should request legal aid centers to appoint a defense lawyer. Legal aid centers were nationalized in 2003 under State Council regulations and in 2017 the “Regulations on Legal Aid” fine-tuned the provisions for criminal cases stipulating defense lawyers for those incompetent to stand trial and those facing the death penalty.

Pretrial Defense

In Shenzhen, the Bao'an District Court and the Bao'an Justice Bureau announced that they had achieved their goal of assigning defense lawyers to every criminal defendant in April 2018. Bao'an officials applauded the establishment of a “green channel” (lüse tongdao) to streamline “delivery to defendant of the indictment, the court’s issuing notice to the defense, and the legal aid center assigning counsel to defendant.” In Jiangsu Province, the Wujin District of Changzhou applauded the pilot projects installation of a legal help window and a legal aid center inside its Litigation Service Hall. While focusing heavily on increased courtroom defense representation, these pilot projects fail to address questions of pretrial legal assistance. It is common for defendants to encounter difficulty meeting their lawyers once coercive measures are placed on them. In cases involving endangering state security, lawyers face obstacles in accessing evidence and escaping pressure from authorities to drop cases.

One of the lawyers implicated in the “709” crackdown in 2015, Wang Quanzhang (王全璋), was barred from seeing his family and the lawyers hired by his family during his three years in custody. On the afternoon of July 12, 2018, Wang’s lawyer was finally able to meet with him at the Tianjin No.1 Detention Center. Wang’s trial date has yet to be announced. Activist Zhang Liumao (张六毛), was detained for picking quarrels and provoking troubles on August 15, 2015 and later arrested for subversion. He died in Guangzhou No.3 Detention Centre on November 4, 2015. Police restricted Zhang’s lawyer from meeting with him because the case was considered “anti-Party” and “anti-China.” Two weeks after Zhang’s death, his family and lawyer discovered bruises on his corpse, prompting suspicion that Zhang had been tortured to death. Wang and Zhang’s cases exemplify the injustice that can result when criminal suspects are restricted from meeting their lawyers before trial.

Following the “709” crackdown, administrative penalties such as suspension or revocation of legal licenses have become commonplace tactics to retaliate against lawyers and law firms that take on sensitive cases. For example, Wang Quanzhang has so far had seven different lawyers assigned to his case. One of Wang’s lawyers was disbarred in 2017 during an annual review overseen by the party-controlled local lawyers' associations and justice bureaus. In the spring of 2018, another lawyer, who had served as Wang's counsel for two years, was barred from renewing his practicing license. In the case of Huang Qi (黄琦), the webmaster of the legal rights website 64 Tianwang, authorities in Guangdong revoked his defense lawyer Sui Muqing’s license to practice. During an interview with Hong Kong Free Press, Sui claimed that “I'm afraid the reason is that I've represented clients in too many human rights cases – the things I've said about my cases cannot be tolerated by the party.”

In cases deemed to threaten “social stability,” defense lawyers are often handpicked by authorities seeking to control the outcome of the case. This practice raises questions about whether the rights of the accused can be fairly represented by lawyers who are not of their client’s choosing. In November 2016, after being detained for 16 months, Xie Yang (谢阳), another disappeared lawyer, was finally granted access to two lawyers he had appointed. However, after exposing the torture Xie endured while in detention, both lawyers were dismissed from the case in April 2017. Xie allegedly voluntarily appointed He Xiaodian to take over the case before it was heard in May 2017, however Xie’s family argues that he was coerced into appointing He. In the same month, Xie appeared on state television where he denied torture claims and confessed to being “brainwashed” by overseas groups. On December 26, 2017, Xie was convicted of inciting subversion but was exempted from criminal punishment.

Liu Zhengqing and Huang Qi’s mother outside the Mianyang Detention Center. Image credit: Radio Free Asia.

In a healthy criminal justice system, lawyers are given adequate time to examine evidence before a case is tried. Although Article 38 of the Criminal Procedure Law grants defense counsels the right to access evidence, in practice defense lawyers face a myriad of obstacles, particularly in cases involving “state secrets.” In February 2018, lawyer Liu Zhengqing, who took over Huang Qi's case from disbarred defense lawyer Sui Muiqing, said that his request to photocopy evidence was turned down by the Mianyang Intermediate People's Court because it contained “top secret” state secrets. The so-called state secrets reportedly concerned a document issued by a local neighborhood committee about the handling of a petitioner’s complaint. Li Jinglin, another one of Huang’s defense lawyers, also claimed that his appointment to examine evidence on October 12, 2017, was cancelled because the prosecutors were allegedly busy reporting the endangering state security case to authorities in Chengdu. In February 2018, Li's request to examine evidence was again rejected, this time because the judge claimed he “had no time” to deal with the matter.

Procedural Violations During Trial

Increased courtroom representation does not necessarily guarantee the right to a fair trial. In cases concerning social stability, the role of defense lawyers is often for show – as presiding judges routinely side with prosecutors and frequently interrupt the arguments of defense counsels. In his defense of prominent activist Yang Maodong (杨茂东), also known as Guo Feixiong (郭飞雄), Zhang Lei reported that he had been repeatedly interrupted after questioning the court’s jurisdiction over the case. Yang was charged with “gathering a crowd to disrupt order in a public place” in Guangzhou’s Yuexiu District after leading a demonstration in support of the newspaper The Southern Weekend. To no avail, Zhang argued that the case should not have been investigated and tried in Tianhe District. Defending Sun Desheng (孙德胜), who was tried in the same case as Yang, Chen Jinxue also claimed that the presiding judge lacked impartiality and repeatedly interrupted the defense’s statements.

Zhang Lei also spoke about the difficulty of summoning witnesses to Yang’s trial. The court refused to issue subpoenas to witnesses and the day before trial, three key witnesses were either coerced into “traveling” or kidnapped by authorities. In a case involving a Three-Self Church pastor sentenced to 12 years’ imprisonment for fraud and a public order offense, the Nan Le County People’s Court refused the defense lawyer’s request to summon witnesses to testify in defense of Pastor Zhang Shaojie (张少杰). One of the witnesses was taken to a “black jail,” an extra-judicial detention facility.

Rights lawyer Wang Yu outside the San He City Court. Image credit: Radio Free Asia.

Rights lawyers who criticize violations of procedural justice in court also face the risk of being expelled or disbarred. In July 2015, rights lawyer Wang Yu (王宇) was representing a Falun Gong practitioner in Hebei when he was expelled and forcibly removed from court after pointing out procedural violations. The court neglected to send Wang a notice of appearance as a defense attorney before the case was heard and the court turned down Wang’s request to adjourn the trial after her client suffered a heart attack in the courtroom. The presiding judge continued to hear the multi-defendant case involving other Falun Gong practitioners and decided to only reschedule the trial for Wang’s client. Wang objected to the judge’s decision, insisting that all the defendants should be heard together in an adjourned trial. The court subsequently issued an order to expel Wang from the courtroom; court guards violently removed Wang.

Not only has the offense of “disrupting courtroom order” been used as an excuse to expel lawyers from trial and to disbar them from practicing, but the offense also has the potential to imprison lawyers who challenge procedural violations during trial. Deriving from the ninth amendment to the Criminal Law in 2015, the offence has a maximum sentence of three years in prison. The offence conspicuously targets lawyers who complain about procedural violations in cases involving social stability. Xie Yang was one of the first ones indicted for this offence in December 2016. The indictment states that Xie “slapped the table, insulted the judge and instigated claimants” in the courtroom to protest the judge’s decision to expel two other lawyers entrusted in the same eviction compensation lawsuit against a local government. Although Xie was eventually not found guilty of “disrupting courtroom order,” the offence continues to discourage lawyers from speaking out against procedural violations in court.