Wednesday, August 29, 2018

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


Dr. Tan Qindong, detained for three months in Guangdong, found himself at the center of a major conflict of interest story in Chinese media. Image source: Caixin.

In “‘All Criminal Defendants to Have Lawyers:’ Is Access to Defense Lawyers Enough in a System Designed Against Defendants? (Part 1 of 2),” Dui Hua analyzed 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. In Part 2, Dui Hua looks at a how a failure to embrace principles such as conflict of interest and clear commitment to public resources and accountability mechanisms are barriers that reformers must also consider.

Conflict of Interest

The presence of lawyers who are free from conflict of interest is key to a well-functioning criminal justice system. Recent cases illustrate that this principle has yet to be fully embraced in China’s criminal justice system. In January 2018, Guangzhou doctor Tan Qindong was arrested for writing online that in “his scientific opinion” the popular Chinese tonic liquor made by the Hongmao Liquor Company “appeared to be quack medicine, and a potential ‘poison’ for many retirees who drink it every day.” Hongmao is considered the backbone of the economy in Liangcheng County in Inner Mongolia, where the liquor is produced. Inner Mongolia police officers traveled more than 1,700 miles to arrest Tan in Guangzhou for his statements made online. The police later recommended that Tan’s wife, hire an attorney. Unbeknownst to her, the lawyer had previously served as Hongmao’s in-house legal counsel (falü guwen). The attorney advised Tan to admit guilt and to refrain from speaking to the media. Following heavy media attention and public outcry, Tan was released in April 2018. Professor Wang Yong of China University of Political Science and Law described the case as an overreach of power reflecting the influence of the Hongmao Liquor Company on the Inner Mongolia legal authorities.

Yin Chuji was investigated in 2016 for handling cases as a defense attorney while also serving as a Hunan Taojiang Party official. Source: ifeng.

In Hunan, Yin Chuji, was investigated in 2016 for simultaneously serving as a defense attorney at a Changsha law firm as well as a deputy party secretary of the Hunan Taojiang Political-Legal Commission. Yin reportedly handled more than eighty cases over a six-year period while holding both positions. In Beijing, Wang Hongguang, a former presiding Supreme People’s Court judge of the second civil division, was imprisoned in a case suggesting serious conflict of interest. The case was reported on WeChat. Wang allegedly accepted payments to influence the outcome of cases. In 2017, Beijing Dongcheng People’s Court found Wang guilty of accepting bribes. Wang’s appeal was rejected in 2018. As reformers seek to create a more robust system of defense counsels in China, efforts must also be made to address corruption and bias in the court room.

Funding for Defense Counsels

Another shortcoming of the pilot projects is adequate funding - critical for defense counsels who are expected to perform an array of functions. As a Congressional Executive Commission on China report points out, legal aid centers have “insufficient funding and eligibility restrictions continue to seriously limit accessibility to legal aid.” Local officials in Bao’an and Henan have acknowledged the varying duties defense counsels must perform, from obtaining case files and drafting briefs to applying for bail and other changes to coercive measures. However, the national regulations on the criminal defense pilot projects do not specify which government actors or units are responsible for ensuring the project’s funding.

Media outlets have stated that in some cases subsidies are provided for defendants who cannot afford to hire their own attorneys. The pilot project regulations on funding are complex, leaving a series of bureaucratic loopholes for local officials looking to cut funding for criminal defense counsel. For example, Article 9 states that defendants should bear the costs of a publicly funded defense lawyer and that any cost sharing can be determined by provincial level judicial-administrative branches based on the regions local economic development, average residents’ income, and case-handling subsidy allowance standards. Article 7 and 8 states that the responsibility for providing funding for defense attorneys in criminal cases is shared among local jurisdictions, with unspecified “areas with means” (you tiaojian de difang) relied upon to voluntarily shoulder the cost burden in different ways, including establishing a criminal defense lawyer pool to develop the criminal defense counsel pilot projects and launching government procurement of legal aid services. A clear commitment to public resources would bolster the capacity of defense counsels to perform these specialized tasks.

Sources of Accountability

Another troubling pattern has emerged in the implementation of the pilot projects – it is unclear which bodies of government are responsible for the projects. Different municipalities and provinces seem to have their own opinion on which bodies are responsible for project implementation. In some projects, party units are entrusted with carrying out the projects, even though the national regulations on the pilot projects were launched by the Ministry of Justice. In some projects, the implementation is carried out by government offices or by provincial justice bureaus and courts. In Hebei province, which was not among the pilot project jurisdictions initially selected, neither the courts nor justice bureau has been involved in the project implementation. Instead it is the party or the government office that is overseeing the implementation. In Henan province, among the first to launch its pilot project in 2016, the provincial justice ministry is the project implementer “throughout the province and in selected areas,” with plans to expand the project to 91 county-level localities.

The presence of a justice ministry bureau as the project implementer does not automatically mean the projects are better informed. For example, in the E’zhou prefecture of Hubei province, the pilot project was subsumed under a larger project of combating organized crime, with only a cursory mention of the criminal defense counsel pilot project.

Meetings on “Full Coverage” of Defense Counsel for All Criminal Defendants in China

Jurisdiction Body Managing Pilot Projects Reported Date Official Pilot Project location Under Article 26 Regulations? Status of Defense Counsel Pilot Projects
Bao’an District, Shenzhen, Guangdong Bao’an courts and Bao’an Justice Bureau June 2018 Yes Achievement of “complete criminal defense coverage” in Bao’an District
Guangzhou, Guangdong Guangzhou courts and Guangzhou Justice Bureau May 2018 Yes Implementation of local regulations
Henan province Henan Justice Bureau June 2018 Yes Implementation of local regulations
Wujin District, Changzhou Jiangsu Wujin Court and Wujin Justice Bureau May 2018 No Complete criminal defense coverage underway
Hebei province Henan Party General Office and Henan Government General Office June 2018 No Criminal defense reform is part of a broader anti-crime agenda
E'zhou, Hubei province E'zhou Justice Bureau May 2018 No City Ministry of Justice unit advances criminal defense reform as part of a broader anti-crime agenda

As these defense counsel pilot projects take shape across the country, precise guidelines on funding and identifying responsible actors are crucial. To understand the future implications of not doing so, the Chinese government’s needs to look no further than what has happened in the last fifty years in the U.S. In the 1963 U.S. Supreme Court decision Gideon v. Wainwright, the court unanimously announced that the Sixth Amendment of the Constitution “guarantees to every criminal defendant in a felony trial the right to a lawyer.” As Justice Hugo Black wrote, “any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided to him.”

Fifty years later, much of Gideon’s promise remains a myth. The resources necessary to maintain high standards for the pro bono defense bar have been largely gutted; states are incentivized to cut funding and have many tools at their disposal to do so. Remuneration for public defenders has been capped in some states; in others, defendants must jump through various bureaucratic hoops to see a lawyer. In many jurisdictions, unqualified defense attorneys are the norm. To avoid the pitfalls of Gideon’s promise, Chinese authorities would benefit from making a long-term investment in their defense counsels.

The defense counsel pilot projects are a step towards enhancing the protection of human rights in China. It is encouraging to see that provinces beyond the eight localities originally selected are also carrying out their own versions of the pilot projects, including in Jiangsu, Hubei, and Hebei provinces. However, there are obstacles that still need to be addressed, including providing better pre-trial defense, ensuring defense lawyers are free from conflicts of interest, and clarifying the funding sources and accountability mechanisms for defense counsels. As localities move ahead with expanding defense counsel appointments in criminal cases, courts and local units of the Justice Ministry should take the lead in implementing these reforms as the state institutions responsible for processing criminal cases. Limiting the role of party officials in the pilot project would safeguard defendants and minimize bias in court.