Zhang Lei | Several Common Issues in Duty-Related Crime Cases as Seen from the Former Political and Legal Affairs Committee Secretary’s Refusal to be Judged

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The former Political and Legal Affairs Committee Secretary Refuses Trial in Court

Recently, from the WeChat Moments of lawyer Zhou Ze, I learned some information about the case of bribery against Mr. Xiao, the former Secretary of the Political and Legal Affairs Committee of Qiannan Prefecture, Guizhou Province. One of the more concerning points is that Mr. Xiao firmly demanded the exclusion of illegal evidence in court, requested witnesses to appear, and requested the retrieval of evidence that had been collected but not yet transferred to the court. When the court did not meet these requests, he made quite intense protests in court several times, which were quite tragic and lamentable: How did the judiciary of XXX become like this, and how can it fabricate wrongful convictions?

A few days ago, I happened to go to Chengdu to submit defense procedures for a friend’s case. The heat in Chengdu made me extremely eager to find a cool place to stay for a few days. I just learned that Mr. Xiao’s case would continue to be heard on the weekend, and there were flights from Chengdu directly to Xingyi, so I went to the Qianxinan Prefecture Intermediate People’s Court in Xingyi City to observe the trial of Xiao’s case for a day and a half.

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Controversial Cases of Duty-Related Crimes

By observing the trial and talking with Mr. Xiao’s defense lawyers Zhou Ze and Shen Chen, as well as my own observations of some duty-related cases I have defended, I found that several issues that attracted attention due to Mr. Xiao’s intense protests in court are common in today’s controversial duty-related crime cases, which is very typical and worthy of discussion in terms of legal practice and defense mentality.

First of all, I need to explain why I use the concept of “controversial duty-related crime cases” because, in my observation, the attitudes of many defendants and their families in previous duty-related crime cases were basically “pleading guilty and accepting the law without appealing.” Their defense lawyers would not speak out about the cases either. Such cases would naturally not enter the public eye. As for whether there were any problems and how big the problems were, outsiders would not know. Those types of cases are not within the scope of this article.

On the first day I observed, Mr. Xiao changed his protesting attitude from the previous few days and fully cooperated with the court’s trial. The trial was relatively smooth, with the prosecution and defense each stating their own views. For details, you can see the two on-site reporting videos I made outside the Qiannan Prefecture Intermediate People’s Court. However, on the second morning of my observation, Mr. Xiao began to express to the court that his case was someone intentionally fabricating a wrongful conviction. If this continued, he could only treat the trial with protest. In the afternoon, I left because of something. I heard that Mr. Xiao was forcibly dragged into the court by the judicial police and was dragged out of the court again amidst protests, and the trial could not proceed for a while.

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Several Common Problems in Duty-Related Crime Cases Presented by Mr. Xiao’s Case

By observing the various situations that appeared in the trial of Mr. Xiao’s case, I found that there were several relatively important problems, which are relatively common in controversial duty-related crime cases. These problems are often the reasons why the parties feel wronged and protest to varying degrees.

1. The Issue of Excluding Illegal Evidence

The first problem is the issue of excluding illegal evidence. In controversial duty-related crime cases, the parties often have the experience of being placed under residential surveillance, and almost all those who are placed under residential surveillance have formed confessions during the period of residential surveillance. However, after the residential surveillance is lifted, the parties often overturn the guilty records made during the period of residential surveillance and begin to defend themselves as innocent. They claim that the reason for making guilty records was that they were subjected to illegal evidence collection during the period of residential surveillance, in various ways, but basically it was psychological warfare, requiring them to obey the organization and explain the problem (this alone does not constitute illegal evidence collection), physical abuse, threats with the legitimate rights and interests of their relatives, etc. For example, Mr. Xiao claimed that he was threatened with his wife, who had just undergone surgery for cancer, and Chen Hua of Anhui claimed that he was threatened with the early lifting of the residential surveillance of his wife who had undergone brain tumor surgery.

When this problem reaches the court trial process, it is often the application, review, investigation, and decision of excluding illegal evidence. However, so far, I have rarely seen the rule of excluding illegal evidence being fully applied in duty-related crime cases. In these cases, the parties are under complete residential surveillance control, and they have almost no way to provide evidence of illegal evidence collection. Of course, fortunately, the rule of excluding illegal evidence in our country only requires the defendant to provide clues or materials to initiate a preliminary review procedure.

However, after entering the review procedure, how to promote the investigation procedure of illegal evidence has become a major problem. The court often listens to the opinions of the prosecution and defense during the pre-trial meeting, and then often uses the court’s review that there is no doubt about the legality of the evidence as a reason not to initiate the investigation procedure of excluding illegal evidence during the court trial process, so that it becomes difficult for the parties to even describe the details of being illegally collected evidence in court.

In the exclusion of illegal evidence procedures of other cases, the procuratorate often provides synchronous audio and video recordings of the interrogation to prove the legality of the evidence collection. However, this point is often impossible in controversial duty-related crime cases. Although many parties or defense lawyers of the cases have filed applications for exclusion and at the same time applied to retrieve the audio and video recordings during the period of supervision and residential surveillance, in many cases of other types, the synchronous audio and video recordings of the interrogation can be retrieved to the court. However, in controversial duty-related crime cases, they are basically impossible to be retrieved to the court. The handling of this problem in some cases I have seen is as follows: If the prosecutors of the procuratorate and the judges of the court really want to see the synchronous recordings of the interrogation, you can go to the supervisory organ and watch them in the supervisory organ, but if you want to retrieve the synchronous recordings of the supervisory organ to the court and the procuratorate, I’m sorry, there’s no way; and if the defense lawyer wants to see them, I’m sorry, we the Supervisory Committee do not receive lawyers. (It’s so similar to the situation where defense lawyers now have to go to the procuratorate and the court to see the synchronous recordings, it’s really “big fish eating small fish, small fish eating shrimp”)

And the clues of excluding illegal evidence proposed by the parties in controversial duty-related crime cases often include not only the synchronous audio and video recordings during the interrogation, but also all 24-hour uninterrupted audio and video recordings when they are placed in the place of residential surveillance, because a large number of conversations or illegal evidence collection behaviors do not occur during the formal interrogation, but occur in their residence where they are placed under residential surveillance. Many defendants in controversial duty-related crime cases will swear to heaven and earth, saying that as long as the surveillance video during the period of residential surveillance is retrieved, their grievances and how they were illegally forced to obtain evidence will be immediately revealed. But they are too naive. As mentioned above, the synchronous audio and video recordings during the formal interrogation can only be viewed by prosecutors and judges at the Supervisory Committee. As for other audio and video recordings of the place of residential surveillance, you can forget about it: Liu Lang has already hated the distant Pengshan, and is separated by ten thousand layers of Pengshan.

Therefore, the system of excluding illegal evidence stipulated in the Criminal Procedure Law is at risk of being practically abolished in controversial duty-related crime cases.

2. The Issue of Witness Appearance in Court

The second problem is the issue of witness appearance in court. In controversial duty-related crime cases, because it is necessary to fight, according to the actual situation of the case, if the witness is willing to contact the defense lawyer, the defense lawyer will often find the witness to investigate and collect evidence (as in Mr. Xiao’s case), and in such cases, many witnesses’ statements to the lawyer or family members are often different from the content of the records made to the Supervisory Committee. Regardless of whether an investigation record is formed, the defense lawyer has the obligation and the right to submit this to the court and apply to the court to notify these witnesses to appear in court to testify.

However, what happens in practice is often not that the possibility of the court notifying the witnesses to appear in court increases, but that the court will hand over this material to the procuratorate, and then let the procuratorate handle it, and the procuratorate often notifies the Supervisory Committee again, and then the Supervisory Committee (sometimes the procuratorate itself) finds the witness again to make a record, and then the statement returns to the previous record made at the Supervisory Committee, and often also interspersed with dangerous and vicious content about the defense lawyer, and then such a record is presented to the court, and then the court seems to have a reason not to notify the witnesses to appear in court. In controversial duty-related crime cases, unless the protest is “explosive”, the appearance of witnesses in court is still an extremely rare phenomenon.

Why do the prosecuting authorities and the court not want the witnesses to appear in court? Although this problem also exists as the ultimate problem in the trial of other cases, it is even more of a cosmic ultimate problem in the trial of controversial duty-related crime cases. Why not let the witnesses appear in court? This problem may not be clear even with a million words, but it can actually be expressed very simply: that is, the prosecuting authorities (and the court) are too confident on the one hand and not confident enough on the other. Not confident is that they are afraid that the witnesses will overturn their testimony in court, and then the progress of the case will not be so smooth, and the results will not be so controllable; confident is that: I just don’t let the witnesses appear in court, what can you do?

3. The Issue of Evidence of Innocence and Lighter Sentence Appearing in Court

The third problem is how the evidence that has been collected and may prove the defendant’s innocence and lighter sentence appears in court. This situation has occurred in Mr. Xiao’s case, and it also often occurs in other controversial duty-related crime cases. For example, the records of the bribe giver in Mr. Xiao’s case during the period of residential surveillance, such as the important mobile phone specified in the detention list of a certain department in Chen Hua’s case in Anhui. It is clearly already collected in the case, but the lawyer applies to the court to retrieve it, and the court throws the application to the procuratorate, and then, the procuratorate either comes up with some explanations, or pretends to be deaf and dumb, in short, it does not retrieve it or cannot retrieve it.

The above are the main procedural problems that occurred in Mr. Xiao’s case, and they are also the reasons why Mr. Xiao did not hesitate to resist the trial with his body and voice in court. These three problems almost all exist in other controversial duty-related crime cases, but different defendants protest to different degrees and in different ways because of differences in personal character, determination to fight, and the choice of means of resistance. And Mr. Xiao, because of his identity as the former secretary of the Political and Legal Affairs Committee at the prefecture-level city, his resistance in the resolute way of refusing to accept the trial, is particularly noteworthy.

I don’t know what help this former secretary of the Political and Legal Affairs Committee’s resistance will have for the outcome of his own case, and I don’t know whether his resistance will cause reflection on the trial practice of duty-related crime cases at a certain level and within a certain scope: how to truly implement the specific system of protecting human rights and preventing wrongful convictions in duty-related crime cases that are not “pleading guilty and accepting the law without appealing”?

August 25, 2024, Panzhou Station

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Zhang Lei, a Qingstone lawyer, adheres to the idealism of criminal defense, focusing on criminal defense, death penalty defense, wrongful conviction assistance and correction, and human rights protection. Phone: 13910707905

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