Washington Post: Defense Lawyers In China Find State Is Judge and Jury

By John Pomfret

Washington Post Foreign Service

December 31, 2002

(Clearwisdom.net) HAICHENG, China -- With his rich baritone, classy ties and retro eyewear, Mo Shaoping cuts a dashing figure, a Chinese Perry Mason.

In a decade as a defense lawyer, Mo has courted trouble by taking sides in some of China's most sensitive cases. His clients have included the founder of the banned China Democracy Party, Xu Wenli, who was released from jail on Christmas Eve and flown to the United States. Another is the leader of worker protests this year in Liaoning province, Yao Fuxin, who remains in jail and has been denied his legal right to counsel. Mo has represented Internet essayists and capitalists-turned-dissidents.

The case that haunts him most is a murder investigation in a town in Hebei province called Renqiu, where police seeking confessions allegedly hung his clients from the wall by their wrists, shoved electric cattle prods into their mouths, squeezed their flesh with pliers and beat their legs as they squatted. "They have absolutely no proof. It was torture, pure and simple," Mo said of the case, which has been grinding on for six years. "They all know it down there."

Each case presents its unique challenges. On a recent weekday, for instance, Mo was in Haicheng, a grimy Manchurian town 500 miles northeast of Beijing, defending a police officer accused of dereliction of duty. In his last visit here, on Nov. 20, prosecutors had arrested all of Mo's witnesses to block his defense. Worried that he, too, could end up in jail, Mo brought a group of reporters, one American among them, to Courtroom No. 4, an old meeting hall in the back of the Haicheng court. True to form, the prosecutor accused Mo of illegally telling witnesses how to testify, but did not arrest him.

"I guess he didn't dare," Mo said. "They usually don't go after big-city lawyers like me. We can still fight another day."

The battle for justice, due process and media coverage being waged by defense lawyers like Mo Shaoping tells much about how legal power is wielded in China these days and how much the country has -- and has not -- changed during two decades of economic development. This story, the last of an occasional series on how power works here, looks at the conflict between the organs of state power -- the nearly all-powerful police and prosecutors -- and the emerging influence of lawyers, scholars, common folk and even some officials who are calling for wider rule of law.

Ever since the Communist Party seized control of China in 1949 behind Mao Zedong's slogan that "political power grows out of the barrel of a gun," the government has had a troubled relationship with law. Lawyers were effectively wiped out in the 1950s, arrested by the thousands and labeled "rightists." With economic reforms, the profession was rehabilitated in 1979. Then China had 212 lawyers. Today, it has more than 120,000, and President Jiang Zemin has vowed to make China a country "ruled by law [Editor's note: However it is Jiang who personally started his personal crusade against peaceful Falun Gong practitioners and ordered the police to 'kill without pardon'].

Still, lawyers have no place at the pinnacle of power. None of the nine Standing Committee members of China's all-powerful Politburo is a lawyer; they are all engineers. Only six of China's 3,000 national legislators have a background in law.

In a speech on Christmas Day, Zhou Yongkang [Editor's note: a lawsuit was brought against him in the US due to his involvement in persecuting Falun Gong practitioners], soon to be appointed minister of public security, ranked "loyalty" to the law and "consciousness" of the law last on a list of priorities for the police. Zhou is also expected to be placed in a more influential position on the party committee that sets judicial policies than the head of China's highest court.

Jiang Ping, former president of the University of Politics and Law, said the pending appointment heralds a worrying trend. "We had hoped that the courts would be given more power and be given a position above the police," he said. "Some things in China are moving forward and some things are moving back."

A Weakened Profession

Mo Shaoping was one of the first lawyers to join a private practice when partnerships were permitted in 1992. Three years later he opened his own firm, Beijing Mo Shaoping Law Firm, with offices in a courtyard near the Forbidden City. With a sprawling duplex and a daughter in the best high school in Beijing, he is, by many measures, a success.

But Mo's profession is under assault, and his work is a struggle. Over the last few years, authorities have manipulated the new criminal procedure law and the revised criminal code to weaken the ability of defense attorneys to defend their clients. Across China, prosecutors have hit upon a novel technique to deal with attorneys who put up a stiff defense: arrest them.

Since the criminal code was revised in 1997, more than 400 defense lawyers have been detained on perjury charges in cases that the state risked losing, sources at the All-China Lawyers Association said. Mo represents the most prominent of these: Zhang Jianzhong, head of the Beijing Lawyers Association's committee on lawyers' rights. In addition, following defeats in criminal cases, police routinely rearrest defendants and dispatch them -- without trial -- to labor camps.

This happened in October during a high-profile case against a Protestant sect called the South China Church that Mo was also involved in defending. The head of the church, Gong Shengliang, was sentenced to life in prison on charges of ordering his followers to beat police and opponents of his sect. But a court in Hubei province acquitted four nuns who had been accused of assault. When the nuns announced they would file civil lawsuits against police for alleged torture, police re-arrested them and sentenced them to three years' labor reeducation.

In Beijing, government statistics show that fewer lawyers are taking criminal cases. In 1990, lawyers in the capital argued an average of 2.64 criminal cases a year. In 2000, the average was less than one case a year. Nationwide, defendants in only one of every seven criminal cases get legal representation, according to internal government statistics. This does not count defendants sentenced to labor camps, because they do not have the right to an attorney.

Defense lawyers like Mo have trouble getting access to evidence, their clients, witnesses and the attention of the judge. Legal decisions in important cases are made more often by a small committee of government and Communist Party officials than by the judge. The concept of a judiciary independent of party control has been rejected by Chinese officials as high as President Jiang.

The 1996 criminal procedure law says that police and prosecutors are required to hand over all "important" evidence amassed during their investigation, but police and prosecutors determine what "important" means. As a result, defense lawyers say, police and prosecutors rarely hand over evidence detrimental to the state's case. And if defense lawyers suspect them of holding back, the only place they can go for redress is the prosecutor.

Cases often are initiated or decided on the basis of political directives. In the Haicheng case, prosecutors accused police officer Jiang An of dereliction of duty in connection with a robbery that occurred in 1996. A villager in Jiang's home town had lost $2,500, complained to Jiang and pointed out a man whom he suspected of stealing his money. Jiang approached the man, and the man's family returned the cash. Case closed.

In September, however, Haicheng's prosecutors decided to use the case as part of a campaign to demonstrate their zeal in cracking down on police abuses. When the trial opened Nov. 20, practically the whole security apparatus of the town turned out, along with a local television crew from a state-run station.

The only problem was that Mo mustered a spirited defense.

At the end of the morning session, the prosecutor requested a recess and arrested Mo's witnesses. Among those arrested was Ma Kai, the victim of the burglary, and his wife. "He's the victim, not the criminal!" said his son, Ma Jingwei. "What's he doing in jail?"

By the next session, on Dec. 11, after a week in custody during which, local sources confirmed, the witnesses were splashed repeatedly with cold water in the middle of a Manchurian winter, they had recanted their testimony.

Prosecutor Mei Xiaoming accused Mo of trying to forge evidence. "The witnesses had a good attitude while they were in custody and confessed that they had been told to lie by their lawyer," he said. Mei praised the articles in the criminal procedure law that allow prosecutors to arrest defense attorneys. "I believe we'll get even tougher regulations in the future," he said.

Coerced Confessions

Of all the cases Mo is working on, the double homicide in Renqiu disturbs him the most because, he said, it combines two of the most pernicious problems in China's system: torture and lack of judicial independence.

Sometime before dawn on Aug. 2, 1996, two female attendants of a state guesthouse in Renqiu, an oil town 80 miles south of Beijing, were savagely murdered. One was stabbed 30 times, the other 36. By May of the following year, the case had yet to be broken. Police Chief Li Yinchi, under pressure from city authorities, issued an order that it be solved -- no matter what -- by August, according to an official account of the case written by a Renqiu police officer, Gu Kaihe.

Such orders are common among the police in China and, legal experts say, often lead to judicial abuses.

By July, police had arrested five suspects and advanced a theory: One suspect, a local government official, had had an argument with one of the attendants and decided to kill her. He asked two other suspects, who both ran video arcades, to do the deed. Another suspect drove the getaway car. A fifth suspect was present when the plan was hatched but did not participate in the murder.

Police got confessions from all five suspects. But there was scant physical evidence. At the crime scene, police found no fingerprints to match those of the suspects and no blood on any of the suspects' clothes. They found only several footprints.

The case against the fifth suspect, Cui Xiaodong, was so weak that he was released on Dec. 30, 1997. But then he made a mistake: He submitted documentation signaling that he was preparing to sue the police for arresting him. Within weeks, he was rearrested.

In the following months, prosecutors in Cangzhou, a bigger city near Renqiu with administrative responsibility, sent the case back to the police twice for more evidence, according to Yao Guomin, a prosecutor there. But, they were told, no new evidence was available. Then the government got involved. After two high-level meetings between police and government officials in Cangzhou in late 1998, the government decided to order prosecution anyway, sources said.

"Two main issues were of concern," said a participant who spoke on condition of anonymity. "First, the government had already broadcast news of the arrests, so we couldn't backtrack, because that would look bad. Second, we believed that even if we didn't have any physical evidence, the confessions would stand up in court."

In early 1999, when proceedings opened, Mo recalled, the courtroom erupted as suspect after suspect stood up and pointed to police officers, directly accusing them of torture. Soon thereafter, the police officers stopped attending, he said.

Cui Bing, a 34-year veteran of the Renqiu police force, was on duty one evening shortly after the men were arrested. That night, he said, investigators beat one suspect, Xing Jinsong, at a police station. Xing's screams "were horrible," said the 58-year-old police officer.

"They were just beating the crap out of the suspect," he recalled. "He was howling like some kind of animal. It lasted for hours all night, until 11 p.m. They got him to confess, but all of us knew it was forced. I stopped pulling overtime after that. I couldn't stand it."

In testimony, Xing said a police officer "gripped my fingers, my chest and my inner thighs with pliers. He also cut the bottom of my feet with a knife, and put salt into the wounds."

At one point, Xing tried to kill himself, jumping out of a second-story window, Cui said.

Cui had another reason to be upset at what he heard. His son is Cui Xiaodong, the suspect who was rearrested after threatening to sue the police. While his son was in jail, Cui said, he frantically tried to stop investigators from torturing him.

"They went lighter on him than the others," Cui said. "But they broke him all the same."

In court, Cui Xiaodong said police "hung me from the wall, made me squat as if I was riding a horse. When I faltered they beat me. I wanted to die."

Chen Jianhua, Renqiu's deputy police chief, denied his men tortured the suspects. "They told you that?" he said. "Well, that makes sense. They usually claim they've been tortured in police custody. But I tell you, we didn't."

Police in Renqiu said Cui Bing's views on the case cannot be taken seriously because his son was involved.

Verdicts Without Evidence

On July 29, 1999, a court in Cangzhou convicted the five men of the murders. Three of them -- Cui Hongtao (no relation to Cui Bing and his son), Xing Jinsong and Xu Wei -- were sentenced to death. Hu Bin and Cui Xiaodong were given shorter sentences. Authorities in Renqiu organized a parade to cheer the police. Medals were handed out to six officers.

All five of those convicted lodged appeals. Mo and other lawyers from his firm represented Xu Wei, Hu Bin and Cui Hongtao. On June 9, 2000, Hebei province's highest court sent the case back to Cangzhou, demanding more evidence. For the next two years, the case ping-ponged between Cangzhou and the court in Hebei, with Cangzhou sentencing them to death and the Hebei court demanding more proof. On June 6 this year, the Cangzhou court upheld its verdict but included no new evidence. That verdict is being appealed.

Sources said the Hebei court ruling was accompanied by an internal letter raising questions about the case. Among them: Why did the police forensic report mention three footprints, one Cangzhou court judgment mention six and a later Cangzhou judgment remove any mention of footprints? How could it be that a shoe store that figured in the case opened for business only after the murders occurred?

Zhao Yuhe, a judge at the Cangzhou court, acknowledged problems with the case but said that because so much time had passed, it would be almost impossible to find someone else to take the blame.

"We adhere to our judgment, and one reason is that it would be very difficult to find more evidence," he said. "The case was broken by the police a long time after it happened. You can only gather important evidence at the beginning of a case. So it might be true that some shortcomings exist in our judgment."

Cui Xiaodong, meanwhile, was recently released from jail, having served his 3 1/2-year term.

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