Eutrusca
12-11-2005, 13:33
COMMENTARY: Given the human tendency to often believe that "everyone else is just like us," it's sometimes easy to forget that things like a just judicial system many times just doesn't exist. One Chinese father's desperate struggle to get justice for his son.
Desperate Search for Justice: One Man vs. China (http://www.nytimes.com/2005/11/12/international/asia/12china.html?th&emc=th)
By JIM YARDLEY
Published: November 12, 2005
CHAOHU, China - At his most desperate, when he had no more borrowed money for his son's legal defense, Xie Yujun went to a hospital. He knew of China's black market in body parts. He wanted to sell his eyes. He was refused.
Xie Yujun said he is obligated to defend his son to protect the reputation of the entire family. "I will appeal for my son until the day I die."
Mr. Xie, 60, is no stranger to desperate acts, if by necessity. His son was charged with a savage knife attack here in rural Anhui Province that left a mother and daughter badly wounded. The police suspected the son because of a property dispute between the families. But Mr. Xie believed the case was deeply flawed: the victims never identified the attacker. The only evidence was a questionable shoeprint. Police misconduct was blatant.
Mr. Xie's problem was convincing a court. His son's lawyers had no chance to question witnesses or, initially, to examine evidence. At one point, Mr. Xie himself sneaked into a prison to interview a witness. Even a tantalizing appeals court victory proved hollow. The son was tried again and sentenced to life in prison.
"There must be one person in the Communist Party who is honest and who believes in justice," Mr. Xie said. "If I can't even find one, then the party is not going to last long."
China's authoritarian government once relied on ideology and brute force to bind and regulate society. Now, it is asking citizens like Mr. Xie to have faith in the country's legal system to resolve disputes and mete out justice.
But Mr. Xie's plaintive cry poses a fundamental question about China's promise of rule of law: Is it possible for a criminal defendant to get a fair trial?
For most of the 56-year history of the People's Republic of China, the answer, by any standard, has been no. But in 1996, facing international and domestic pressure, China introduced reforms that expanded a criminal defendant's right to counsel and sought to create a more impartial judiciary.
Yet today the inadequacy of those reforms, and the reluctance of the ruling Communist Party to make meaningful change, is abundantly evident. The criminal trial of Mr. Xie's son was one of 770,947 adjudicated last year. Of that total, 99.7 percent ended in convictions.
Conviction rates are also high in the United States, especially in federal criminal cases. But legal experts say that American prosecutors more often decline to indict in weak cases, and that judges and juries retain the autonomy to deliver innocent verdicts in even the most high-profile cases.
The stark imbalance in China reflects a fundamental contradiction for China's top leaders. They want people like Mr. Xie to trust the legal system because public support is essential in ensuring social stability. But they believe the law should enhance, not erode, government power, and have shown little inclination to replace a system that guarantees convictions with one that guarantees the rights of the accused.
A quarter century ago, after the chaos of Mao's Cultural Revolution, China essentially had no legal system. In that context, it has made significant strides. The 1996 reforms were intended to shift toward an adversarial trial process, modeled in part after the American system. Instead, the reforms have become most notable for what was left out.
"They didn't put in rules of evidence," said Jonathan Hecht, deputy director of the China Law Center at Yale University. "They didn't put in requirements that witnesses appear at trial. Lawyers weren't given the ability to really prepare a case. They kind of created the shell of an adversarial process, but they didn't create the guts of it."
At the same time, the police, prosecutors and judges now often disregard the protections that Chinese law does offer. A defendant, for instance, has the right to see a lawyer after the initial interrogation, or usually within 24 hours. Yet a police survey in Beijing found that over the past two years, only 14.5 percent of defendants in the city had seen a lawyer in the first 48 hours.
Other obstacles facing defendants are abundant: defense lawyers deemed too aggressive can be indicted by the prosecutors opposing them in court; appellate courts rarely overturn convictions; rulings often are decided by unseen committees for whom political considerations can be as important as the law.
[ This article is 5 pages long. To read the entire article, go here (http://www.nytimes.com/2005/11/12/international/asia/12china.html?pagewanted=2&th&emc=th). ]
Desperate Search for Justice: One Man vs. China (http://www.nytimes.com/2005/11/12/international/asia/12china.html?th&emc=th)
By JIM YARDLEY
Published: November 12, 2005
CHAOHU, China - At his most desperate, when he had no more borrowed money for his son's legal defense, Xie Yujun went to a hospital. He knew of China's black market in body parts. He wanted to sell his eyes. He was refused.
Xie Yujun said he is obligated to defend his son to protect the reputation of the entire family. "I will appeal for my son until the day I die."
Mr. Xie, 60, is no stranger to desperate acts, if by necessity. His son was charged with a savage knife attack here in rural Anhui Province that left a mother and daughter badly wounded. The police suspected the son because of a property dispute between the families. But Mr. Xie believed the case was deeply flawed: the victims never identified the attacker. The only evidence was a questionable shoeprint. Police misconduct was blatant.
Mr. Xie's problem was convincing a court. His son's lawyers had no chance to question witnesses or, initially, to examine evidence. At one point, Mr. Xie himself sneaked into a prison to interview a witness. Even a tantalizing appeals court victory proved hollow. The son was tried again and sentenced to life in prison.
"There must be one person in the Communist Party who is honest and who believes in justice," Mr. Xie said. "If I can't even find one, then the party is not going to last long."
China's authoritarian government once relied on ideology and brute force to bind and regulate society. Now, it is asking citizens like Mr. Xie to have faith in the country's legal system to resolve disputes and mete out justice.
But Mr. Xie's plaintive cry poses a fundamental question about China's promise of rule of law: Is it possible for a criminal defendant to get a fair trial?
For most of the 56-year history of the People's Republic of China, the answer, by any standard, has been no. But in 1996, facing international and domestic pressure, China introduced reforms that expanded a criminal defendant's right to counsel and sought to create a more impartial judiciary.
Yet today the inadequacy of those reforms, and the reluctance of the ruling Communist Party to make meaningful change, is abundantly evident. The criminal trial of Mr. Xie's son was one of 770,947 adjudicated last year. Of that total, 99.7 percent ended in convictions.
Conviction rates are also high in the United States, especially in federal criminal cases. But legal experts say that American prosecutors more often decline to indict in weak cases, and that judges and juries retain the autonomy to deliver innocent verdicts in even the most high-profile cases.
The stark imbalance in China reflects a fundamental contradiction for China's top leaders. They want people like Mr. Xie to trust the legal system because public support is essential in ensuring social stability. But they believe the law should enhance, not erode, government power, and have shown little inclination to replace a system that guarantees convictions with one that guarantees the rights of the accused.
A quarter century ago, after the chaos of Mao's Cultural Revolution, China essentially had no legal system. In that context, it has made significant strides. The 1996 reforms were intended to shift toward an adversarial trial process, modeled in part after the American system. Instead, the reforms have become most notable for what was left out.
"They didn't put in rules of evidence," said Jonathan Hecht, deputy director of the China Law Center at Yale University. "They didn't put in requirements that witnesses appear at trial. Lawyers weren't given the ability to really prepare a case. They kind of created the shell of an adversarial process, but they didn't create the guts of it."
At the same time, the police, prosecutors and judges now often disregard the protections that Chinese law does offer. A defendant, for instance, has the right to see a lawyer after the initial interrogation, or usually within 24 hours. Yet a police survey in Beijing found that over the past two years, only 14.5 percent of defendants in the city had seen a lawyer in the first 48 hours.
Other obstacles facing defendants are abundant: defense lawyers deemed too aggressive can be indicted by the prosecutors opposing them in court; appellate courts rarely overturn convictions; rulings often are decided by unseen committees for whom political considerations can be as important as the law.
[ This article is 5 pages long. To read the entire article, go here (http://www.nytimes.com/2005/11/12/international/asia/12china.html?pagewanted=2&th&emc=th). ]