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Yueran Zhang senior contributor

[Bilingual Brew] China’s All-Star Legal Team Pleads for Defendants’ Rights On Social Media

[Please enjoy this Tea Leaf Nation bilingual brew. The article is first shown in English, and then in the original Chinese. 亲爱的读者,欢迎享受我们的 “双语茗茶”。英文翻译在上,中文原文在下。]

Li Qinghong: Silenced, for now

Li Qinghong was a real estate businessman who had his start in the mining industry. On March 25, 2010, he was sentenced by the City Court in Guiyang, the capital of southwestern province of Guizhou, to 19 years of prison for alleged involvement in organized crime. Four months later, the Guizhou Provincial Court remanded the case due to “lack of factual clarity” (原审事实不清), and the Guiyang City prosecution withdrew its case. Yet, even before the Guizhou Provincial Court remanded the case, the Guiyang City Police somehow set up a team to re-investigate the case. On August 26, the case was re-prosecuted in the Guiyang City Xiaohe District Court. The number of defendants had also increasing from 17 to 57, and among them were seven of the witnesses from the first trial.

The Li case is a typical example of the “crackdown on organized crime” (打黑运动) spreading from the western metropolis of Chongqing to the whole nation. The crackdowns usually target private entrepreneurs, with tight collaboration between the police, the prosecution and the court, all led by the local Political and Legislative Committee. Often confessions are extorted by torture. If the Li case had gone as planned, it would have been a landmark achievement by authorities in Guizhou.

Yet, the defense lawyers’ response complicated the situation. Zhou Ze (@周泽律师), one of Li’s defense attorneys, started revealing the details of the case on Sina Weibo, China’s Twitter. Netizen attention to the case has grown ever since. On September 3, 2011, he published a letter online asking help from other lawyers, resulting in more than 30 to-flight lawyers from all over China joining the defense team Zhou described as an “All-Star Team” (史上最强大辩护律师团).

“The Last Defense”

The mass attention dedicated to the case was not due to the details of the case, which were neither unique nor complicated. All of the defense attorneys who are active on Weibo claim that the documents and evidence provided by the prosecution were enough to show that the case was fabricated. As defense attorney Wu Lei (@伍雷) said: “The facts are clear enough. None of the charges can be supported by the evidence. The case is artificially made up based on false confessions.” Instead, what was significant about this case was the frequent breaches of procedural law during the proceedings. “The case is the sum of all breaches of procedural law,” said defense attorney Si Weijiang (@斯伟江) comments. Thus, for the defense, the hearings from January 9 to 14 and from June 8 to July 18 of 2012 were not only investigations of the facts but a fight for procedural justice. Within the first few days, four lawyers were expelled by the court because of their sharp arguments about procedural concerns.

During the process to exclude illegally obtained evidence, more than ten defendants described in detail how they were tortured. In response, the prosecutors provided a written explanation by the Guiyang City Police claiming that officers obtained the evidence lawfully. However the officers were not allowed to testify in court because of “security concerns” (安全的考虑). Despite the defense’s strong protest, the court dismissed all their requests to exclude allegedly unlawful evidence.

During cross-examination , the prosecutors provided only written testimony but refused to let witnesses testify. Thanks to the defense’s requests and the defendants kneeling down begging the judge, eight witnesses were allowed to testify, or 2.5% of all the witnesses. Several alleged in court that their confessions were made up, with one claiming that he was tortured.

The battle between the bar and law enforcement extended off the court. Before the re-opening of the hearings in June, 22 defense attorneys from outside Guizhou Province were dismissed by their clients and replaced by local attorneys who were more susceptible to control by local law-enforcing officials. On July 10, despite huge risks, several defendants revealed that the officers of the District Court made a deal with them: Defendants who fired their non-Guizhou counselors would receive lenient sentences. Others even disclosed that the police had covertly investigated some lawyers. The shock of those testimonies to the bar was immense. As defense attorney Yang Xuelin (@杨学林律师) described: “Today is the darkest since I began defending the case…The criminal defense system in China is near its doomsday.” 

The defense launched a war on all fronts, from requesting the court to remove Li’s irons before his self-defense, to publicly unveiling details of law enforcement’s opaque operations. Halfway during the hearing, some defendants petitioned to re-hire the non-Guizhou lawyers they had been forced to fire. In addition, impressed by the courage of the non-Guizhou attorneys, local counselors became more active and incisive in their defense, making the previous deal with the court meaningless. Unable to withstand the challenges brought by the defense, the prosecutors gave up introducing evidence, and stopped responding to the defense’s cross-examination. However, few read the prosecution’s retreat to necessarily mean a ruling of innocence.

Li Qinghong at trial

From the defense attorneys’ perspective, the defense protected not only the defendants’ rights, but the future of the bar as an independent, functioning part of the justice system. “The reason why I devoted myself wholeheartedly, facing such huge pressure, to the defense is that the case would be either a milestone or a tombstone for the Chinese justice system. We are not only doing this for Li and ourselves, but for the future of everyone,” defense attorney Zhu Mingyong(@朱明勇律师) wrote. The case was an indicator of whether the laws excluding illegally obtained evidence, witness testimonies and the criminal defense system as a whole would be effectively practiced thereafter. Lawyer Zhang Qingsong(@张青松律师) exclaimed, “This is the last defense, a life-or-death moment for the rule of law and for criminal defense!”  

However, the results of the ruling, released on July 23, was depressing to observers. Although some of the defendants were judged innocent, Li Qinghong was sentenced to 15 years in prison for leading organized crime. Defense attorney Zhang Lei (@青石律师) expressed his desperation after the ruling. “The justice system has lost ability to adjust any mistake. It has become a tool for the personal interests of some officials. If people had not seen that clearly, the ruling declared to everyone the bankruptcy of the justice system. Trust in the government is eroded by those abusing the system.” 

Nevertheless, despite the ruling, some still recognize the significance of the defense. @斯伟江 wrote, “As the ruling suggests, the defense didn’t make a practical difference because of the hostility of law enforcement toward the lawyers. Yet, the public nature of the defense showed people the reality of the justice system. From this perspective, the struggle isn’t in vain.”

Social media: let’s take it outside

On Weibo, the lawyers acted like professional journalists, covering all sorts of relevant information from details like “the prosecutors’ microphones are louder than the defense’s,” to typos in the indictment, to overall analyses of the case. Throughout the 47-day trial, the defense posted more than 1,000 tweets in total, some even giving real-time updates during the sessions.  Zhang Lei (@青石律师) documented the hearings by daily online journal entries, which exceeded a total of 300,000 Chinese characters (about 250,000 words in English). During the court debate, many even published their speeches of defense on Weibo.

For many netizens, following the case every day became a habit. As @上海快乐宅男 writes, “Zhang’s daily journal is a must-read for me before I sleep, no matter how late it is or how tired I am.” Because of the influence of social media, scholars, lawyers and netizens went to Guiyang to observe the trial one after another, and also tweeted their observations on Weibo.

Because of the massive number of defendants, trial had to be held in a rented hall

One of the major reasons why attorneys are so active on social media is the absence of traditional media coverage. In the court, some seats were reserved for the People’s Daily, China Central Television (CCTV), Xinhua News Agency and other state-owned media. But their reporters rarely showed up and they hardly covered the case. Other media outlets were mostly silent as well, since the court made it difficult to get into the court and interview the judiciary officers.

Some netizens were concerned that the domination of defense’s voice online made it impossible to know the truth objectively. But in lawyer Wang Xing (@律师王兴)’s opinion, attorneys are not the ones to blame. “Lawyers aren’t responsible for reporting the truth objectively; it’s the job of traditional media to hear both sides. However, censorship of the news disabled the media from hearing the voices of the judiciary. It’s not the lawyers’ fault.” 

As a recent phenomenon, lawyers’ online activities can be traced back to the influential case of Li Zhuang, a lawyer falsely prosecuted with perjury in Chongqing, in 2010. While the voices of the official media framing and blaming Li were dominating public opinion, the defense had no choice but to tell the other side of the story via social media. A year and a half later, when the defense in a murder case in the coastal city of Beihai, Guangxi, were accused of fabricating evidence, the defense also used social media as part of their defense strategy. The influence they gained online not only balanced the voice of the official media, but also helped with their personal safety. But in the Li Qinghong case, the social media served beyond those two purposes. The bar hoped that, by raising netizens’ awareness, this single case could leave a positive impact on the Chinese justice system as a whole.

No one knows whether that goal will be reached. Just as the result of the first instance showed, Chinese lawyers still have a long way to go to improve the Chinese justice system. Still, to everyone’s comfort, the situation lawyers face has improved in the two years since the Li Zhuang case. As lawyer Chen Guangwu (@陈光武律师) observes: “During the Li Zhuang case, local attorneys were too intimidated to even greet lawyers from elsewhere; in Beihai, local lawyers could only make eye-contact with us in public and secretly express their regards. But this time, lawyers from Guizhou fought bravely with non-local lawyers in court, and they were extremely helpful off the court as well. Many thanks to the local lawyers.”

 

最强律师团微博捍卫被告权利 

黎庆洪是以采矿发家的房地产商人。2010年3月25日,他被贵阳市中级人民法院以组织、领导黑社会罪等五项罪名一审判处有期徒刑19年。7月12日,贵州省高院以原审事实不清为由,裁定发回重审,贵阳市检察院撤诉。但在裁定做出之前,贵州省公安厅如未卜先知一般牵头成立了 “七一专案组”,对该案重新侦查。8月26日,该案被重新起诉至贵阳市小河区法院,被告从原来的17人变成了57人,其中包括原来的七名证人。

黎庆洪案的办案方式,与近年轰动全国的重庆打黑运动十分相似:以民营企业家为打击对象,政法委牵头,公安机关、检察院、法院联合办案,审讯中大量使用刑讯逼供手段。如果一切按计划进行,黎庆洪案将被办成“铁案”,成为贵州公安机关引以为傲的经典案例。

发起"最强辩护团"的周泽律师

但辩护律师的行动使案件走势变得复杂起来。黎庆洪的辩护律师周泽(@周泽律师)开始在自己的微博上披露案情,使黎庆洪案进入网民的视野。2011年9月3日,周泽律师在微博上发表《寻求律师同行支援书》;最终,30余位国内顶尖的刑辩律师从全国各地赶来参加辩护,被周泽律师称为 “史上最强大辩护律师团”。

“最后的辩护”

如果单看案情,黎庆洪案不足以产生如此强大的轰动效应。案情事实并不特别疑难或特别复杂。所有在微博上发表意见的辩护律师都一致认为案卷与证据清楚地表明这是一起构陷案件,如伍雷律师所说(@伍雷),“案件的实体问题已经非常清楚。就目前庭审看,检方指控的证据不能成立。该案,是完全建立在虚假口供基础上人为制造的一起冤假错案。” 真正引起律师和网民们关注的,是案件侦查、审理中出现的大量程序违法现象。斯伟江律师(@斯伟江)评论道,“小河法院审理的黎庆洪涉黑案真的是各种程序违法的集大成者。”因此,在1月9日至14日和6月8日至7月18日进行的一审,远不止是关于案情本身的探查,更是律师与公权力就“如何实现司法正义”进行的较量。开庭伊始,律师们就对庭审程序问题意见强烈,最终导致四名律师被驱逐出庭。 

非法证据排除阶段,有十多名被告人详细描述了被刑讯逼供的过程,而公诉方出具了贵阳市公安局的书面说明证明不存在刑讯逼供。该声明称,“出于安全的考虑”,不安排办案警察出庭作证。虽然律师们进行了激烈的抗争,法庭依然驳回了所有排除非法证据的请求。

举证质证阶段,公诉方只出具书面证言而不安排证人出庭作证。经过律师们的努力争取和被告人的下跪请求,最终有八名证人出庭,占全部证人总数的2.5%。多名证人当庭表示,他们的证言是办案人员编造的,有证人称自己遭到刑讯逼供。

律师与公权力的较量既在庭内也在庭外。6月开庭前,22名外地律师陆续被当事人解除了委托,更换为贵州本地律师。7月10日,有被告人冒着巨大风险当庭揭露,小河法院的法官与被告人做交易,更换律师者可以获得轻判。也有被告人揭露公安机关对律师进行秘密调查。这让律师们感到震惊。杨学林律师(@杨学林律师)如此评论:“今天是自从我恢复辩护人地位后,感到最痛心的一天。…因为这样一来,我国的刑事辩护制度就离毁灭不远了。”

从申请为黎庆洪在自我辩护时解除械具,到对某些官员幕后操纵司法的揭露,从程序到实体,律师们的抗争是全方位的。一些被告人纷纷要求恢复委托之前被解除不用的外地律师,而贵州律师在外地律师的感染下,也逐渐变得犀利、大胆起来,庭审后期的火力已经不亚于外地律师。这让司法机关之前所作的庭外交易失去了意义。在律师们的强势下,公权力感受到了巨大的压力。公诉方最终放弃了对涉黑犯罪四个构成要件中的第四个要件的举证,也放弃了对律师们的质证意见和辩护意见的回应。

律师们认为,这次的辩护不仅关系到被告人的权利,更关系到律师界今后的生存。朱明勇律师(@朱明勇律师)说,“之所以我投入全部的精力,顶着巨大的压力,不惜一切代价坚守这场最后的辩护,是因为小河黎案的终局将昭示:中国法治在小河如果不是一块里程碑,那则必然是一座墓碑!我们都不是为自己,也不仅仅是为了黎庆洪,是为了我们所有人的未来。”在他们眼中,黎庆洪案的辩护,决定了非法证据排除制度、证人出庭作证制度乃至刑事辩护制度在今后的司法实践中能否获得有效保障。张青松律师(@张青松律师)叹到,“这是最后的辩护,关乎法治存亡、刑辩存废!”

然而,7月23日宣布的一审判决结果使律师们失望了。虽然部分被告人被判无罪,黎庆洪仍被认定涉黑犯罪,获刑15年。律师们的绝望之情,正如辩护律师张磊(@青石律师)在微博中所描述:“中国的刑事司法已经丧失了任何的纠错功能,一切已经沦为官员个人利益的工具,如果说以前人们还没有看清楚这一点的话,贵阳小河法院今天已经向世人正式宣告:中国的刑事司法已经全面破产了。国家信用,就是被你们这帮狗日的一点点、一片片消耗殆尽的。”在悲愤之余,也有人看到了这次辩护的积极意义,如@斯伟江律师:“今天,虽然判决结果表明律师辩护作用不大,因为庙堂本身已仇视律师,你说什么只会起反作用。但辩护的过程公开,是给民众一个真相,看清我国现在的司法是怎样的。这个角度看,仍功不唐捐。”

网络自媒体:律师们的第二战场

在微博上,律师们担任起了记者的角色,对庭审进行全方位报道。在庭审期间,活跃在网络上的辩护律师发表的有关言论总计在千条以上,有些律师甚至在微博上对庭审进行实时直播。从“辩护人的麦克风音量比公诉人的小”、起诉书中出现错别字这样的细节,到对案件走势的整体预测,律师们的言论覆盖了有关案件的所有信息。张磊律师(@青石律师)以每天一篇长日记的形式记录庭审进展,这些长日记累计已超过三十万字。在法庭辩论期间,律师们纷纷把自己的辩护词发表在网络上。

对许多网民来说,每天在网络上关注黎庆洪案的进展已经成为了他们生活中的一项固定内容。@上海快乐宅男说,“青石律师贵阳记每天必读,无论再晚,再累。”在网络平台的强大号召下,一些法学教授、不参与辩护的律师、普通网民纷纷赶到贵阳旁听庭审,并且将自己的观察发布在微博上。

律师们在网络媒体上如此活跃,一个重要的原因是传统媒体和公权力一方的沉默。在庭审现场,一些座位被挂上了“人民日报”、“新华社”、“中央电视台”的牌子,但这些媒体的记者从来没有出现在庭审现场,在媒体上也没有出现任何关于案件庭审的报导。而其他媒体在进入法庭现场、采访公安机关、检察院、法院工作人员的过程中受到了重重阻挠。

有人质疑,网络上辩护方的声音远远盖过公诉方的声音,使人无法客观公正地了解真相。但王兴律师(@律师王兴)认为,这种情况并非律师造成。“律师没有完全公平公正的责任和义务,媒体报道时应当持平中正,客观报道,听取不同声音。只是由于禁令不断,媒体往往得不到司法机关的声音,这错不在律师,在舆论管制。”

律师们在微博上积极披露案情的做法,始于2010年的李庄伪证案。当时,官方媒体对李庄的构陷和谴责统治了舆论,在网络媒体上披露事实的另一面,便成了律师们唯一的选择。而在2011年10月的广西北海,四名唯一桩故意杀人案辩护的律师被控伪证罪,辩护律师们开始将网络自媒体舆论当成辩护策略的一部分。网络舆论的关注,不仅制衡了公权力控制下的官方媒体言论,也减小了辩护律师们遭遇不测的可能性。而在黎庆洪案中,网络平台已经超出抗衡官方话语和确保自身安全的目的。律师们希望,通过舆论的关注,个案可以给中国的司法制度带来积极影响。

当然,没有人可以断定这样的目的能否实现。就像判决结果所显示的那样,对于改变中国的司法制度,律师们还有很长的路要走。但令人欣慰的是,从李庄案到现在一年多来,律师们所处的环境已经有了很大改善。陈光武律师(@陈光武律师)感叹,“李庄案时本地律师万马齐喑,见了外地律师招呼也不敢打。北海案时北海律师只能私下里偷偷地表示问候,在公开场合也是以目光交流。而贵阳律师则一改“常态”。不仅在法庭上和外地律师携手作战,同仇敌忾。法庭外也竭尽全力为律师团提供帮助。真诚谢谢贵州律师。”

 

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Yueran Zhang

Yueran Zhang is a student at Duke University, class of 2015, currently majoring in sociology and math. He spent all of his life before college in Beijing.