Insight
Treading a fine line
By Cao Li (China Daily)
Updated: 2010-01-08 07:53
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Local residents wait outside a court during the trial of a gangster in Chongqing last year. The verdict of a lawyer who is accused of telling his client, an alleged crime lord, to lie was scheduled to be announced today. Yang Lei |
Lawyers await verdict over claims defense attorney 'told client to lie' in Chongqing crime sweep. Cao Li reports
Lawyers across China are today eagerly awaiting a landmark verdict they say could either signal progress in the country's judicial process, or prove a major setback to the rights of defendants and lawyers.
Li Zhuang, a Beijing attorney, was scheduled to hear his fate at a district court in Chongqing municipality at 9:30 am today. He is charged with "fabricating evidence" in order to defend a client and faces up to seven years in prison.
The accusations against Li, which also include attempted bribery, have pitted some outraged legal professionals against a judicial system they say needs urgent reforms.
The 48-year-old from Beijing Kangda Law Firm was arrested on Dec 12 after an alleged tip-off from his client, Gong Gangmo.
Gong, a suspected crime lord, claimed Li instructed him to lie and say police tortured him. He also said Li demanded a payment of 30 million yuan ($4 million) if Gong is acquitted.
At his trial on Dec 30, Li denied all charges and said he was simply acting out his duty as a defense lawyer. He told the court he is a victim of a deteriorating judicial environment, one in which attorneys face difficulties accessing clients and evidence, and branded clause 306 in the Criminal Procedure Law "unfair".
Clause 306 was implemented in 1997 and stipulates lawyers can be jailed for fabricating evidence. So far, more than 500 have faced the charge, representing 80 percent of all criminal cases brought against attorneys, Legal Daily reported without crediting a source.
Hundreds of Chinese lawyers responded to Li's claims in court, with 20 from across China signing a petition sent to the Standing Committee of the National People's Congress, the country's top legislative body, and the Ministry of Public Security on Dec 16. They called for Li's case to be heard in another city to ensure a fair trial.
Legal experts warned that a guilty verdict could stop attorneys from defending alleged gangsters and corrupt officials arrested in the Chongqing crime sweep.
Public security and prosecution officers told China Daily they always conform to the law and said rules fixed in 2008 ensure lawyers' rights.
The NPC endorsed the Lawyers' Law in 1996, updating it in 2001 and 2007. The latest amendment assures lawyers private and immediate access to clients and evidence, and states they are not criminally liable for things they say in defending clients unless it is defamatory, disturbs a trial or poses a risk to State security.
But the law has not been well observed during the widespread crackdown on organized crime or most other prosecutions, said legal experts, who warned Li's case highlights flaws in the system.
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Attorney Li Zhuang during his trial in Chongqing on Dec 30 last year. Courtesy of Chongqing court |
Chen Youxi, Li's attorney, on Thursday said they would appeal to a high court if Li is convicted, regardless of whether he is punished.
"We are not afraid to take this to the Supreme People's Court," he told China Daily, adding only a not-guilty verdict for Li would dispel the doubts now surrounding the handling of Chongqing crime crackdown.
A guilty verdict will deal a heavy blow to the judicial system, he said. "Even fewer lawyers will want to represent alleged criminals. If they do, they won't work too hard."
Only 30 percent of criminal suspects go to court with a lawyer in China. In the capital alone, each attorney defends on average just one criminal case every year, said Mo Shaoping, a defense lawyer and founder of one of the first and most successful law firms in China.
Bo Xilai, Party secretary for Chongqing, launched the anti-gang sweep in June 2009, shortly after a shootout in Jiangbei district allegedly involving gangsters employed by Gong Gangmo. By the end of last year, 1,500 suspects had been seized, while dozens of senior public security officers, prosecutors and judges had been sacked.
Gong was detained on June 20 on suspicion of running a gang involved in murder, illegal firearms, racketeering and drug trafficking. If convicted, he faces the death penalty.
Li Zhuang signed a contract to be his attorney five months later, 17 days before Gong's scheduled court hearing, and met with his client in detention three times: on Nov 24 and 26, and Dec 4.
At his own trial, Li said security officers sat in every meeting, which is against the law, and that on Nov 24 Gong claimed to have been tortured for eight consecutive days and nights until he made a confession. However, the suspected gang boss told police on Dec 10 Li had told him to say his confession was forced.
"Li asked whether I had been tortured or beaten into confessing. He talked to me in a way that was full of intriguing words, winking to give me signals," said Gong during an interview with CCTV, the State broadcaster.
Li was detained and on Dec 30 appeared at Jiangbei District People's Court, where he was accused of telling a client to "fabricate evidence" and hampering witnesses' testimony. The trial lasted 16 hours.
According to the indictment, Li invented a story in which Gong was extorted by his fellow defendants and asked Gong's wife, Cheng Qi, to tell the story in court. He also requested employees at Gong's entertainment venue where some of the alleged crimes took place to lie and say Gong did not own the venue.
Li is also alleged to have asked Wu Jiayou on Dec 3 to bribe police officers and make them testify that Gong had been tortured into confessing.
Wu, who was arrested but is yet to be tried, is believed to have confessed to attempted bribery, China Youth Daily reported.
The national code of conduct for lawyers, enacted by the China Bar Association in 2004, forbids attorneys from "fabricating or distorting evidence", and also states they are not allowed to instruct clients to present false evidence or testimony.
In 2007, six lawyers in Anhui province were disbarred for having bribed judges at Fuyang Intermediate People's Court and at Taihe County People's Court.
Wang Yongjie, deputy dean of the law school at East China University of Political Science and Law in Shanghai, said unethical or illegal practices exist in every industry. The legal sector is no exception.
However, he said some lawyers conduct unethical behavior, breach the national code of conduct, or commit crime due to the pressure to survive in an unfair environment.
Regardless of the verdict today, many are calling for major reforms to a judicial process fraught with blurred lines between criminal activity and ethical standards.
The systems for defense lawyers, which was established in 1979, is a particularly thorny issue as it is "far less matured than the country's prosecution and court processes", said Zhou Guangquan, deputy dean of the law school at Tsinghua University in Beijing.
"We need more laws detailing lawyers' rights of access to clients and evidence," he said.
Several lawyers also said they come under extra pressure during major crackdowns, like the one going on in Chongqing, where public security officers, prosecutors and courts are working together to wipe out organized crime.
Zhu Mingyong, an attorney for Fan Qihang, another alleged gangster, said he has been allowed five meetings with his client, all in the presence of police officers.
Chief of police Wang Lijun said his officers were merely following the guidelines set out for organized crime cases by the Ministry of Public Security.
However, Tao Wuping, a well-known Shanghai defense lawyer, claimed police and prosecutors used such tactics to allow them more time to build their case against suspects.
Lawyer Mo Shaoping said he is also often restricted when trying to access evidence. According to law, prosecutors must present defense attorneys with the evidence collected by police that is related to the alleged crime upon application.
"But the law fails to define what evidence is related to the facts of a crime. Prosecutors normally only present us with evidence against our clients," he said.
Chen Youxi, Li's lawyer, said the Jiangbei district prosecutors only allowed him access to 15 of the 99 pieces of evidence collected. However, he added he has experienced no difficulty in meeting with Li.
Witnesses were a problem, though, said Chen. None of the eight he requested for Li's trial attended.
Mo explained this is common and said more than 90 percent of criminal cases are heard without the help of witnesses. Most will only agree to make written statements to be read in court.
"Witnesses normally hesitate in giving testimony to lawyers because they fear they may offend prosecutors and get themselves in trouble. They will only give affidavits to police and prosecutors," said Mo.
An official surnamed Chen with the Chongqing Municipal Procuratorate told China Daily the office always gives lawyers every right in dealing with cases related to the crackdown.
The city's public security bureau, meanwhile, declined to comment while the case was proceeding.
(China Daily 01/08/2010 page7)
