Friday, May 31, 2019

Hurry Up and Wait: The Robert Schellenberg Case

Robert Schellenberg, Dalian Intermediate Court, Jan 14, 2019. Image Credit:
As US-China relations sink ever lower, the list of urgent criminal cases involving Western citizens in China has increased. In just the last few weeks Canadians Michael Kovrig and Michael Spavor were formally arrested on espionage charges and American Mark Swidan was given a suspended death sentence for drug trafficking.

Amid so many arrests and sentences, a May 9 appeal hearing in the case of Robert Schellenberg, a Canadian sentenced to death for drug trafficking, went largely unnoticed. Although Schellenberg’s appeal hearing concluded without pronouncement of a sentence, the timing of the hearing—the day after a hearing in Vancouver for Huawei CFO Meng Wanzhou—points to the continuing role of international politics in the outcome of his case.

Schellenberg’s case is part of a larger emerging dynamic of tit-for-tat detention diplomacy, but it is also unique because it is both overtly political and carries a death sentence. No other case is so inextricably bound up with that of a Chinese national being held in the West. Schellenberg’s fate has unfolded in parallel to that of Meng, a Chinese citizen who is currently detained in Canada pending extradition to the United States. After her detention Chinese state media representatives ominously warned there would be retaliation. Schellenberg’s sudden, unusual retrial and capital sentence followed shortly thereafter, leading many to conclude that it is Canada, as well as Schellenberg, that is being punished in this case. The fact that Schellenberg’s most recent hearing in Dalian took place the day after Meng appeared in court in Vancouver suggests that the two cases remain linked. As Huawei has moved to the center of a global struggle over China’s role in technology markets in the last few weeks, the political stakes in the two cases have increased as well.

Mark Swidan with his mother, Katherine Swidan, in 1991.
Image Credit: Katherine Swidan
Schellenberg’s case stands out not just because it is one of a prominent set of political cases involving foreigners, but also because it is the only overtly political verdict carrying a sentence likely to result in death. (Swidan, an American detained on drug charges in 2012, received a suspended death sentence on April 30, which, in accordance with Article 50 of the Criminal Law, will be reduced to a prison sentence so long as he does not commit a new crime in the next two years). Western citizens have been executed in China before, but such cases typically become international causes of concern because of China’s use of capital punishment in general, rather than doubts about the intention behind the ruling. For example, another Canadian citizen, Fan Wei, was also recently sentenced to death for drug trafficking, but so far there have been no accusations that his sentence was intended to punish Canada; in Schellenberg’s case, by contrast, it seems that the death sentence is politically motivated. While Chinese authorities insist that the punishment conforms to the rule of law, state spokespeople have also provided not-so-subtle indications that the death sentence should be understood as retaliation for Meng’s detention. Canadian Prime Minister Justin Trudeau has accused China of “arbitrarily” applying the death penalty in the case. For better or worse, Schellenberg stands out as the capital test case in a new dynamic that one legal commentator has dubbed “death-threat diplomacy.”

What has happened in the case to date, and what might we expect in the future? So far, the case has unfolded in two phases. In the first phase, which stretched from arrest in 2014 to an initial sentence of 15 years in November 2018, the case was not overtly political, and the judicial process was slow and low-profile, perhaps because the evidence against Schellenberg was weak and central authorities were called in to deliberate. In the second phase of the case, which began with an appeal court remand for retrial immediately following Meng’s detention in December 2018, the case took on a new political valence. The judicial process was fast and well-publicized. The court operated with perverse procedural formalism, meeting legal deadlines and adhering to the letter, if not the spirit, of the Criminal Procedure Law.

Following the hearing this month it is likely that the pace of proceedings will again slow to a crawl. Formal deadlines for the next legal phases of the case are minimal. The Liaoning High People’s Court may draw out announcement of the sentence. If the appeals court does come down with a death sentence, the case will be sent to the Supreme People’s Court (SPC) for final review. There are no procedural deadlines in that process; the judiciary can hold up the case indefinitely, or wait until an opportune political moment in the Meng case to announce a decision.

The Background of the Schellenberg Case

Robert Schellenberg, a Canadian citizen, was arrested in the city of Dalian in 2014. (According to Canadian officials, nearly 200 Canadians are currently detained or imprisoned in China.) He stood accused of participating in a scheme to smuggle about 500 pounds of methamphetamine from China to Australia inside car tires. He was tried in 2016. In November 2018, two years after his trial, Schellenberg and his co-defendants were sentenced by the Dalian Intermediate People’s Court. He was found guilty of drug smuggling and sentenced to 15 years in prison, along with a hefty fine and expulsion from China following completion of the prison term. No one involved in the case was initially sentenced to execution, though two of Schellenberg’s co-defendants—both Chinese nationals—were given stiffer sentences: a suspended death sentence and an indeterminate life sentence (wuqi tuxing ζ— ζœŸεΎ’εˆ‘). (In contrast to the U.S. parole system, China’s sentence reduction policy entails the reduction of sentences based on a system of points for good behavior, and generally means that prisoners with indeterminate life sentences are not usually imprisoned until death). The harsher punishments for the co-defendants reflect the court’s initial judgment that Schellenberg did not carry principal culpability in the case.

Dalian Intermediate People's Court. Image Credit:

Following the initial verdict Schellenberg appealed his sentence, indicating he considered the punishment too severe. If a defendant appeals a verdict, a second-instance court may not increase the sentence on review. The prosecution may also choose to appeal a sentence in order to increase the punishment, but they did not do so, suggesting they considered the penalty appropriate at the time.

Typically defendants face no risk in filing an appeal, but the Liaoning High People’s Court took an unusual approach to the case: rather than rule on it, the high court returned the case to the lower court for retrial. The retrial gave prosecutors the power to amend the charges and seek a harsher sentence, something the appeal court could not do. Prosecutors quickly amended the charges, ostensibly introducing new evidence that increased Schellenberg’s culpability. (Schellenberg’s lawyer claims no new evidence was introduced.) The lower court retried the case in January 2019 and sentenced Schellenberg to death, a significant increase in punishment from the previous trial verdict. Schellenberg appealed his verdict to the Liaoning People’s High Court a second time. On May 9, 2019—days before the four month procedural deadline for a hearing—the appeal court heard the case. However, the court declined to issue a judgment, indicating it would do so at an unspecified later date.

Liaoning Province High People’s Court. Image Credit: Zhonglan Xinwen

A Tale of Two Cases

What sentence should Schellenberg receive? A defendant’s criminal culpability and punishment ought to be determined in light of his or her own crimes. But whatever chance Robert Schellenberg may have once had of having his case interpreted in isolation ended last year. Today his case is indelibly wedded to another defendant: Meng Wanzhou, the CFO of Huawei, the world’s second largest cellphone manufacturer and one of China’s flagship companies.

Meng Wanzhou, Huawei CFO. Image Credit: Mingbao
In December 2018 Meng was arrested in Vancouver during a layover flight between Hong Kong and Mexico. Canadian officials arrested Meng based on a warrant issued by the United States Eastern District of New York, which named Meng as part of an alleged conspiracy violating sanctions with Iran. Meng is currently free on bail in Vancouver. The United States has requested that Meng be extradited to the U.S.

Meng’s arrest precipitated a diplomatic crisis in China-Canada relations. China has demanded Meng’s immediate release, alleging that the arrest is part of a Western effort to obstruct Huawei’s entry into Western markets. A representative of China’s Ministry of Foreign Affairs stated that Canada would face “grave consequences” over Meng’s continued detention. Immediately after Meng’s arrest in December, China detained two Canadians, Michael Spavor and Michael Kovrig, on accusations of endangering state security. Shortly thereafter the editor in chief of state media outlet the Global Times made a statement in English that “if Canada extradites Meng to the U.S., China's revenge will be far worse than detaining a Canadian.”

It is in this context that Chinese and Western commentators interpret Schellenberg’s situation. When Schellenberg appealed his 15-year sentence in November 2018—just before Meng’s arrest—he had every reason to think that the re-consideration of his case at a trial of the second instance could only work in his favor. A defendant who appeals a verdict is not supposed to face a more severe sentence on retrial. And the prosecution did not file an appeal raising concerns about the severity of the sentence.

But circumstances changed between Schellenberg’s appeal in November 2018 and the Liaoning High People’s Court review in December. Meng’s case became an international flashpoint and China vowed to respond. The Liaoning High People’s Court took the unusual step of inviting foreign media to the second-instance trial. Western journalists who were present noted the ways in which the event appeared staged to send signals to the audience. Rather than reach a verdict on the case, the court took the unorthodox step of sending the case back to the lower court.

The remand to the lower court allowed the prosecution to amend the charges against Schellenberg, claiming new evidence in the case. This procedural move provided the trial court with a legal justification for resentencing Schellenberg to death. Numerous Chinese legal experts have noted irregularities in these proceedings. It is striking, for example, that although it took four years to initially sentence Schellenberg to a 15-year sentence, the justice system managed to re-sentence him to death in less than a month. His lawyers also contend the amended indictment in fact does not provide any new evidence of Schellenberg’s culpability.

What Are We Waiting For?

What comes next? Schellenberg’s case has so far proceeded in two phases with very different timelines. In the first phase, which ran from arrest in 2014 through Schellenberg’s initial sentence of 15 years in November 2018, there were no public announcements indicating the case carried political significance. The court moved extremely slowly, taking four years to deliver the initial sentence. Four years is an unusually long stretch for a criminal case in China. In waiting so long to produce a verdict, the Dalian trial court surely consulted higher authorities on the appropriate course of action. Why did this process take so long? The protracted wait might be the result of weak evidence in the case. Since China’s trials virtually never produce acquittals (as Dui Hua has recently noted), cases with shaky facts are likely to be sent to an adjudication committee for deliberation on appropriate sentencing. When a case involves a foreigner, the considerations may take even longer.

The second phase of the began after Schellenberg appealed his 15-year sentence in November 2018. In contrast to the first phase of the case, the second phase was fast, high-profile, and politically fraught. Following Meng’s arrest on December 1, 2018, Schellenberg’s case went through second instance trial and retrial of the first instance in six weeks. The second instance trial court announced its decision the day of the trial, rather than deliberating on the evidence, as usually takes place. And after the high court remanded the case for retrial, prosecutors amended the complaint with new evidence in a mere four days. The lightning speed of proceedings and state media comments about retaliation for Meng send signals about how Schellenberg’s death sentence should be interpreted. And yet Chinese authorities and media figures also strenuously insist that the court’s judgment was “beyond reproach” and rooted in the rule of law. China’s insistence on adherence to criminal procedure in the case fits with a general trend towards legal formalism in China, despite a larger turn away from rule of law. (China’s recent Supervision Law, for example, introduces a formal legal basis for the longstanding unaccountable, extrajudicial detention powers of the National Supervisory Committee, the Chinese Communist Party watchdog.).

We are now entering a third phase in the Schellenberg case, one in which Schellenberg’s fate hangs like a sword of Damocles over Canada. A cynical reading of the situation suggests that Schellenberg must continue to dangle there until Meng has either been extradited to the U.S. or returned to China. Meng’s most recent hearing took place on May 8. Schellenberg’s appeal hearing notably took place the following day. The timing of Schellenberg’s hearing carried a two-fold significance. The court heard the case within four months of accepting it, as required by law. But in doing so the day after Meng’s hearing, the court also pointed to the ongoing connection between the two defendants (a signal that did not, however, get much Western media coverage).

When will the Liaoning High People’s Court issue a sentence for Schellenberg? The Criminal Procedure Law indicates that the court may announce the sentence at a set time after the hearing, but does not stipulate any procedural constraints on that announcement (Articles 202 and 242). Indeed, Mark Swidan waited more than half a decade for announcement of a verdict following conclusion of his trial.

Although the court may delay indefinitely, Schellenberg’s procedural experience suggests that a verdict may be announced as a response to a development in Meng’s case. She is scheduled to next appear in court for an extradition hearing on September 23, so a sentence may be forthcoming at that time. If the high court upholds Schellenberg’s death sentence, the case will be sent to the Supreme People’s Court (SPC) for final review. There is no fixed statutory period for completion of this review. Although limited data suggests that many death penalty reviews are completed in a matter of months, anecdotal evidence also indicates that some cases are under review for years. Overall, however, the outcome is extremely consistent: the SPC eventually affirms the overwhelming majority of death sentences, although precise data on this is lacking. In 2007, around 15% of death sentences were not approved, but the percentage is believed to be lower now.

Once the SPC affirms the verdict, an execution order is issued and the execution usually takes place as soon as within a week, although there are exceptions: Li Yan, a woman from Sichuan, was sentenced to death for killing her husband in 2010 in self-defense, after enduring years of horrific domestic abuse at his hands, by each court that heard the case (local city/intermediate, provincial Sichuan High People’s Court, and finally, in January 2013, the SPC.) The case provoked broad condemnation and expressions of concern both inside and outside China, including by the Dui Hua Foundation. China’s 2016 anti-domestic violence law was invoked in wide-spread calls to take seriously the situation of domestically abused Chinese women who receive harsh sentences ranging from ten years to death sentences when they act in self-defense. On April 24, 2015, Li Yan’s death sentence was commuted to death with two years reprieve, and on September 8, 2017, the intermediate court commuted the 2015 sentence and sentenced Li Yan to life in prison.

Post settings Labels Criminal Justice, Law Enforcement Published on 5/30/19, 12:13 PM Pacific Daylight Time Permalink Location Options