2006
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INTERNATIONAL REPORTING |
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November 12, 2005
Desperate Search for Justice:
By JIM YARDLEY
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| THE FATHER -- 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.'' (Photo by Du Bin for The New York Times) |
Mr. Xie, an emotional, combative man with a silver crew cut, said the police had demanded that he ''prove that he is innocent.'' He had been jobless since being laid off by a state-owned construction company nearly a decade before. He and his wife survived on the $80 a month she earned selling vegetables. They had sold the apartment to raise money.
At the police station, investigators took Mr. Xie's fingerprints and pushed him into a bare cell for a night. Then a few minutes later, he recalled, the cell door slid open and another man was shoved inside.
''It was my son,'' Mr. Xie said.
The son, Xie Shude, 32, lived in the same apartment complex as the victim. Family members say he is the opposite of his father. If Xie Yujun can be loud and argumentative, Xie Shude is quiet and meek. Father and son had drifted apart after the son had married a peasant girl and moved out. The son sold grilled kebabs on the street and had opened a small shop.
''He has never done anything bad,'' said Huang Zeyun, 36, the son's wife. ''He would rather get taken advantage of than be in a quarrel.''
In the cell, father and son slept together on a wooden board. Both men had been fingerprinted and threatened by investigators. In an interrogation room, a detective had slammed a pistol on a table and warned Xie Shude, ''If you don't confess, we will skin you alive.''
But the son, like the father, maintained his innocence and the two men were released the next morning. Xie Yujun believes the fingerprints must not have matched.
The Chaohu attack came as unease about crime was rippling across China. Even as more Chinese were demanding legal rights, the public was also demanding that the government halt the steady rise of crime. A murder spree by a university student in western China had recently set off a nationwide manhunt and stoked public fears.
In Chaohu, the television station and newspaper gave the local knife attack a nickname, the 3/21 case, after the date it occurred. Every major government and Communist Party official in Chaohu demanded an arrest, according to the local newspaper.
Investigators must ''devote all their energy to solving the case, ease people's worries and maintain social security and stability,'' said Chen Chunyu, head of the public security bureau, according to the Chaohu Daily.
In this atmosphere, on April 9, about two weeks after he was released from jail, Mr. Xie's son disappeared.
Mr. Xie heard from neighbors that men in dark clothes had pushed his son into a car. He went to police headquarters, but no one would discuss his son's whereabouts. Only when Mr. Xie filed a missing persons report did the police admit the son was in custody. They would hold him incommunicado for seven days.
The arrest of Xie Shude was later announced in the newspaper. The stated motive was revenge over the property dispute. The police had used those seven days to extract two pieces of evidence: a shoeprint and a confession.
A Taste of Chinese Justice
For Xie Yujun, the first obstacle to mounting his son's defense was money. He approached friends and relatives for loans, promising repayment after his son's exoneration. He was convinced of his son's innocence after their night together in jail.
''I thought telling the truth was the only way out,'' the father recalled. ''I told him if he really did it, he would have to confess.
''My son said, 'Really, I did not do it.' ''
Mr. Xie felt his obligation was not only to his son. In traditional Chinese society, where respect, or ''face,'' is a paramount virtue, the arrest had stained the reputation of his entire extended family. Some elderly family members had even ceased their outdoor exercises to avoid seeing neighbors. As the father, Mr. Xie was obligated by Chinese tradition to cleanse the stain.
''It has put shame on the whole family,'' he said of the case.
Mr. Xie knew little about the law. As a teenager, he had missed an education when Mao ordered millions of city dwellers to labor in the countryside. But he started buying books on criminal procedure law. He also visited law firms to ask questions.
He concluded that the case against his son was riddled with flaws. The indictment accused the son of acting out of ''revenge'' over his father's property dispute. But the indictment failed to mention that Mr. Xie had already won the lawsuit. At the time of the attack Mr. Xie was waiting for the family to pay him about $600 and, he said, the payment period had not expired.
The police produced jailhouse witnesses who claimed to have overheard the son confess to the attack. But Mr. Xie pretended to be a relative and slipped into the prison. He recorded one of the witnesses saying that the police had coerced his testimony. Later, Mr. Xie handed the tape to the judge.
The son's confessions also proved coerced. The son had made eight confessions and one recantation. But he later told lawyers and family members that police beat him with sticks and kept him awake for seven days. He said he had confessed to end the torment.
''I told him I didn't blame him for going along with the confession,'' Mr. Xie said. ''I understood.''
The victims' account of the attack also raised questions. At the crime scene, the husband told the police that his wife had seen three attackers. But, later, the wife told the police she had seen only one. Court papers show she did not initially identify her attacker. Later, she said, ''I suspect it must have been somebody in Xie Yujun's family,'' court documents show.
Ultimately, the prosecution's case depended on the shoeprint. Forensic evidence is often unreliable in China, partly because the country has no uniform forensic rules. In Chaohu, prosecutors would boast of ample forensic evidence, including fingerprints, but only the shoeprint was introduced in the trial. Court documents say the print was taken from the sole of a Yi'erkang brand leather shoe.
Investigators in Chaohu never found a shoe that matched the print. But the police bought an identical Yi'erkang shoe and ordered Xie Shude to make a fresh print to compare with the one they had. A police academy in northeast China then concluded that print matched the crime scene print because both were ''slightly turned inward'' and ''landing on the outside.''
Mr. Xie knew nothing about forensics but tried to hire a private firm in Shanghai for an independent analysis. The firm told him it worked only with the government. Eventually, Mr. Xie had to ask the Chaohu court to find him an expert. They found a retired government forensics specialist. He confirmed the prosecution's report.
Mr. Xie placed his hopes with Jiang Shengchao, a lawyer with political connections and a good reputation. But Mr. Jiang quickly met problems. The police blocked him from meeting his client. Desperate, Mr. Xie traveled to the provincial capital, Hefei, to petition higher officials to intervene. Two months after the arrest, the lawyer finally saw his client.
The trial was held in October 2004 in Chaohu Intermediate Court. It lasted a single day. Mr. Jiang was not allowed to review the evidence, nor did Mr. Xie's son have a chance to face his accuser. No witnesses were called. Their testimony was entered into the record, but Mr. Jiang was given no chance to question them. Chinese law requires that evidence be subjected to cross-examination, but legal analysts say this requirement is regularly overlooked.
In arguing the case, Mr. Jiang also faced restrictions. ''I remember how the judge intervened every time the lawyer was trying to say something important,'' said Ms. Huang, the defendant's wife. ''He would just say, 'Hurry up and make it simple.' ''
On Oct. 12, the court found Xie Shude guilty and awarded compensation of nearly $10,000 to the victims. Mr. Xie responded by hiring a new lawyer, Li Ping, for his appeal to the Anhui Province High Court.
In December, the High Court overruled the guilty verdict, citing ''insufficient evidence'' and ''certain unclear facts.''
''I thought that showed justice,'' the father said.
But the ruling did not mean the case was over. Appellate courts in China rarely release defendants, even if ruling in their favor. Instead, the case was returned to Chaohu Intermediate Court for a new trial. The High Court also sent a confidential letter to prosecutors, a customary practice, with instructions on how to bolster their case.
Even so, the defense had made an unexpected discovery: Ms. Li had been allowed to examine the evidence and noticed that the digital photograph of the shoeprint from the crime scene was dated in April, a month after the attack.
It raised obvious questions: Did the police simply manufacture the shoeprint? If not, was the print reliable, given the number of people who had trampled through the crime scene during the month after the attack?
Ms. Li raised these questions to no avail. The trial lasted only a few hours and resulted in another guilty verdict. Mr. Xie was disappointed, but he assumed that the High Court would again overturn the verdict since the prosecutors had not presented any new evidence.
He would be wrong.
Kafkaesque Appeals
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| Xie Shude's trial took place in Chaohu, in Anhui Province. |
This distinction would become apparent in Xie Shude's two appeals. The first, successful appeal had been reviewed by a panel of three judges. A provincial official familiar with the workings of the High Court said the three judges reviewed the case strictly on its legal merits.
But the second appeal, in April 2005, was different. Five judges were listed on the ruling. A second provincial official confirmed that those five judges were actually part of a much larger trial committee within the court that oversaw the review.
The two provincial officials, who asked not to be identified for fear of reprisals, said the judges were sharply divided over the case. Some thought it was without merit. Even so, their authority was limited: Chinese law does not allow judges to throw out evidence or overturn convictions on the basis of police misconduct.
More significant, the two officials said the High Court was reluctant to overturn any conviction because that might damage its relationships with prosecutors and police, as well as with Communist Party leaders eager to be seen as cracking down on crime.
Finally, the two officials said, judges sometimes simply ignore evidence and consider what they perceive to be the greater societal good -- in this case, a conviction to soothe public anxiety about a grisly crime.
''In China,'' said one of the provincial officials, ''the rules sometimes do not matter.'' The official added, ''If you go after legal justice, it might cause more harm to social stability.''
The High Court handed down its second ruling in the case of Mr. Xie's son in May. This time, the court upheld the conviction and even seemed to switch the burden of proof. If before it blamed the prosecution for lacking evidence, it now blamed the defense for not introducing new evidence.
It was as if Xie Shude had been presumed guilty unless proven innocent.
A Last Hope
In June, Xie Yujun traveled to the High Court, clutching a ticket to meet with officials. His was not a formal legal appeal but rather a petition in the feudal tradition of ancient China.
He could no longer afford a lawyer. But he had fallen to his knees before a young law student and begged for help. The law student, joined by another student, met Mr. Xie at the High Court and later provided written accounts of the meeting.
The three rode an elevator to a private upstairs room and sat at a long table opposite two judges and their aides. Attendants poured glasses of hot water. Mr. Xie described the case until the older of the two judges chuckled. He said they knew the case because they had been involved in upholding the conviction.
The younger judge conceded the case had problems. He agreed the confession was coerced. But he defended the shoeprint and changed the subject when the law students peppered him with questions.
The older judge did not bother with intricacies of law. He advised Mr. Xie that he could eventually petition to reopen the case. But first he recommended that Mr. Xie regularly visit his son in prison. ''Really get to know him,'' he said. ''Make sure you are convinced he is innocent.''
Mr. Xie boiled with anger as the judge offered his final advice.
''There's no hurry,'' the older judge added. ''After all, it's a life sentence.''
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Rule by Law
Articles in this series will periodically examine the struggle in China over the creation of a modern legal system. |
© 2005 The New York Times