Thursday, September 26, 2013

Problems with Chinese courts and laws

There are a number of high profile judicial cases in China in recent years that have garnered a great deal of attention and stirred strong emotions and reactions.   It is interesting to speculate what would have happened if the same things had happened in the US.  China and the US have very different systems.  The Chinese system is similar to that of many countries in the world, while the US to others.  So if China and the US would give different verdicts, speculative for sure, it should be interesting to know why.  Or, if both would likely give the same verdicts, it will also say something. 

The first verdict is in Bo Xilai’s case, as the judge sentenced BXL to life in prison earlier this week.  My take and comparisons to the US system are already discussed in the blog “Mature vs immature societies: on the trial of Bo Xilai”.  In sentencing, the judge in Jinan completely took the prosecution’s words and ignored the defense, making one wonder if defense, in any case, not just in this one, is ever useful.  The judge did not have a mindset of “reasonable doubt”, so in case of conflicts and valid issues raised by the defense, he just believed the prosecution.  This happened when BXL confessed but recanted in court, when BXL never confessed, and when (most of the times) all prosecution had was “he says she says he says” with a long line of irrelevant physical evidence and no cross examinations in court.  People understand it is a political trial, so the result is not surprising.  But it begs the question: why bothered, when you can’t promise fairness?  If in the US, BXL, if he indeed did some of the things, like his wife being involved in murder and his police chief in a cover up, would be forced to resign long ago.  If he accepted bribery in the accused, rudimentary form, he would be charged in the US.  But with that kind of evidence shown in China, it will be a stretch of imagination that any DA will ever take it to a court, and the judge and likely the jury will laugh at a guilty request.    

The second case is about 夏俊峰(XJF).  XJF was a street vendor accused of stabbing death of two street inspectors (SIs) and seriously wounding another in 2009.  He was convicted of murders and sentenced to death in 2009, which, after appeals, was finally upheld by the Highest Court in China on 9/25/13.  It is not a complicated criminal case, but received a lot of attention for two reasons.  One is that SIs have a bad name in China, justified or not.  What they do is maintaining order and cleanness in the streets, which pit them against unlicensed vendors and vendors setting up shops in unauthorized areas.  Dirty work, getting all the blames with no flower, and the SIs are not rich by any means.  Unfortunately, those vendors are usually also poor people themselves who often can’t make a living without breaking certain rules in China.  So this kind of conflict is not going away any time soon.  People don’t like the SIs, but imagine what will happen without? 

The other reason is XJF’s own situation.  He was a poor guy working very hard to support his parents, wife, and a son who has a talent of drawing.  This relates to a lot of people in China.  He and his wife had had numerous fights with the SIs because of setting up shop at the wrong places.  On the fateful day in 2009, he and his wife were ordered off the street by the SIs again but refused as before.  A scuffle broke out, and XJF was taken to the SI office.  What happened there had no other witnesses, but XJF used his vendor knife to stab three SIs numerous times before fleeing.  It is a truly tragic event, with losses for at least three poor families.  XJF cited self defense in the SI office, but there was no evidence (video, eyewitness, testimony) supporting him.  While most of XJF’s supporters did not dispute the evidence, they nevertheless wished to spare his life, to no avail.  In fact, even what happened on the street is in dispute.  A few other people said that the SIs beat XJF, but XJF maintained they did not, only did so in the office.  XJF might have intended to show that his injuries was sustained later, but there is again no evidence of his injuries, certainly not the kind serious enough that justified killing two and injuring one.

What would have happened in the US, in a state with a death penalty?  It must say that the verdict is not an outrage in China; it largely leads to a sad, what-a-waste feeling.  But in the US, XJF would likely have been charged with three first-degree murders, and the chance is high he would be given death as well.  His only hope was to convince the jury that he killed those people as they were beating him in the office, for which there was no evidence.  It wouldn’t help if retaliating against the street beating.  There might be a chance of a plead bargain that could save him, but very slim.  I suspect XJF should have pushed harder for his injury report, but am not sure if it ever exists or is possible, because the injury could have resulted from his capture later that day.  In the US, if a similar fight breaks out in the street, a trigger-happy cop, who does or backs up SI work, could have shot and killed him right there and then got off easily.  Some Chinese claim this is a false analogy because regular Chinese can’t have guns.  But many do have knifes, so is it OK for a cop to just knife somebody then?

The third case is another simple criminal case.  (HL) was accused of hurling an almost 3-year-old baby to the ground, killing her, in a rage, and was convicted and sentenced to death in Beijing on 9/25/13.  On the night of 7/23/13, HL (not driving) and a friend tried to park their car close to a bus stop, and a woman named Li didn’t move and used her stroller to block their way.  HL and Li had a quarrel, then a scuffle.  HL was so mad that he took something out of the stroller and smashed to the ground. 

Much of what happened is clear, and there is video camera evidence for the entire episode.  HL’s defense was that he is near-sighted, had a number of drinks before, and mistook the stroller for a shopping cart, so didn’t think it was a girl.  However, the best defense is (was) perhaps that HL was in a state of madness at the moment that he didn’t realized what he did, as it took place in just 2-3 seconds.  In a recurring theme by now, the judge completely sided with the prosecution.  The judge may have also been influenced by the fact that HL had served a prison term for theft.

Most Chinese probably agree with the verdict.  But what would have happened in an American court?  If a lawyer can show that HL was temporally out of his mind, for just a few seconds, due to darkness, alcohol, and heated arguments, then he might be guilty of man slaughter only. 

The last one is the most complicated, of a gang rape charge.  It involves Li Tianyi, the son of a famous Chinese couple (singers of the military), and his 4 friends, and a woman, in one night in Jan 2013.  Li and three of the friends are underaged (<18).  Li had a previous, minor run-in with the law so has a bad reputation, although his family background leads to hatred in a few people’s online clones as well.  What happened is again she says he says, and we don’t even know right at this time what the woman does or did for a living.  According to her lawyer, she was a student, a white collar worker, who was a friend of some people in a bar or worked part time in the bar, and she was kidnapped by the gang of five and raped.  But what we know now is that she likely has a complex background.  Perhaps even a prostitute or a bar girl who enticed people to drink at the bar and whatever later.  The gang of five claimed that it was all a sex trade.  There is zero video evidence that she was kidnapped, but a lot of video evidence that she actively followed Li and others in multiple locations despite that they wanted to drop her.  She further had many chances to get away or ask for help but did not.  A bar manager who introduced her to the gang, a star witness for the prosecution, also lied about what happened the night.  And while some people’s DNA was found on her, Li’s DNA was not; Li claimed that he didn’t have sex with her.  After the night, some people from the bar called Li’s family for hush money.  And there are inconsistencies in her recounts of the events and her injury report. 

On 9/26/13 Li was convicted and sentenced to 10 years in Beijing, the longest among the four under-aged, because he maintains his innocence all along.  But this case is full of holes.   

To start off, all the evidence implicating Li is she says, her friend from the bar says, and Li’s co-defendants say during interrogation.  There is little physical evidence, with the only being her injury report, made 1-3 days after the night.  Even that is suspicious: how do you know it was not by someone else later?  The most problematic against Li is co-defendants’ words, but by themselves not necessarily damning, obtained during intense police interrogation, and there are suggestions for coercion at the time.  In fact, witnesses had recanted, and other, objective witnesses were favorable for Li and company, yet the judge simply chose to believe what they said under police interrogation but not in court or under cross-examination.  

Chinese laws are tilted towards women if they claim rape.  If she agreed to sex but changed her mind after the fact, the prosecution would take the case.  It is hard to contest it otherwise for a man because nobody else was there.  Even if the woman lied about herself and what happened, as long as she said she was forced.  Is this really justice when the other side basically has no chance?

There is another issue of underage drinking and sex here.  The bar actually invited those people, most <18, to drink and then hinted at sex, which was not disputed in this case.  How come this issue, potentially bigger than the whole rape case, is never taken up or even addressed by the police? 

I suspect Li would have fared much better in an American court.  Because undeniably the woman lied a lot, there is a fat chance that the DA would drop the case.  Because of the conflicting accounts but little, indisputable evidence, a jury might have just set Li free.  See the Dominique Strauss-Kahn scandal in NYC in 2010, also the Duke lacrosse case in 2006.  I think Li has a good chance in appeals, but still, the Chinese legal system being so biased for the prosecution does not encourage confidence.  Not to say that the American system is perfect, because in the end they all revere power, see “Justice is selective and blind: Manning's 35 years”.  But the Chinese system sorely lacks the appreciation of an adversarial defense and the concept of reasonable doubt.  And I have yet to see any Chinese judges or lawyers as the legal experts as some Americans are. 

Lastly, Chinese criminal laws leave a lot to be desired.  At the high end, penalties are too severe.  Death and life in prison are too common.  At the low end, too light.  Street fights leading to minor injuries often get a clap in the wrist (a small fine and a few days in detention).  Even when the intentions or actions could have led to serious injuries or death, avoided only when the victims ran away or other people intervened.   For some cases the US would have filed an attempted murder charge, but in China it is only a public disturbance.  The consequence is that many trouble makers are free on the streets, undeterred to do it again.  This may keep the prison population low in China, but not crimes.

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.