The Trial: The Final Warning of Procedural Justice

After 32 days of illegal evidence exclusion investigation ended, a highly controversial scene emerged in the case of Qingdao: the defense lawyer Wang Wan-Joon publicly announced that he lost confidence in the case in Qingdao Central Court to obtain a fair trial, made the protestary withdrawal of the trial choice, only retained outside the court professional legal support. A two-time re-trial sentence by the provincial High Court, why would go to the defense lawyer withdrawal of the protest this step?

Nine years, two original convictions were revoked by the Shandong High Court in full, and the third first trial in the case of Qingdao, which took several decades to conduct an investigation into the exclusion of illegal evidence.The final court may make a decision: the testimony, material evidence and witness testimony of the defense party requested to be excluded are not excluded, and there is no conclusion that the case exists for illegal evidence.

This paper resulted in an outbreak of the confidence of defence lawyers.

Why did the lawyer protest?

According to the disclosure, during the long trial, the defence team put forward a large number of procedural claims and illegal evidence to exclude a number of collisions.

The defense of the court submitted a large number of criminal information forcing clues, the defendant's statements suffered from tiger benches, hawks, death threats and other severe treatment, the defense lawyer applied for the court to demonstrate criminal information to restore the facts, and was rejected by the council with "violation of public order and custom."

Several laws grant the defendant's lawsuit rights are blank: application for examiners, expert witnesses to appear in court, not allowed; full suite of original material, key synchronous recording video calling applications, mostly with "no need" not supported; a large number of contradictions, lack of synchronous recording video interrogation notes, are not excluded as illegal evidence.

Furthermore, the defense lawyer feels helpless is the collective failure of multiple supervision mechanisms. the defendant complained to the resident prosecutor forced confession, the case investigators came with the prosecutor; the defendant met the lawyer to reflect the wrong situation, the relevant content of the conversation was quickly made known to the investigators; the connection of arrest even the actual identity of the prosecutor can not be verified.

The defense team said: many articles are clearly written, but falling into the trial of the case has become "consciousness", the judge has too much discretion, the illegal evidence exclusion system lacks rigid binding. Even though the defense lawyer is scarce of proof, application, protest and all the court means, many reasonable claims are not answered by the court, the space for defense is constantly compressed.

It is based on the judgment that “it is difficult to get a fair trial in the Central Court” that there was a protesting withdrawal option. The lawyer did not completely cut off the assistance of the parties, and subsequently did not appear in the court, but will continue to provide legal advice, questioning materials, and the defendants’ family will continue to express their claims.

What are the real consequences of leaving the lawyer?

The protestary withdrawal is not a dispute of intentions, it is a protest gesture under the despair of legal people, but also leaves a serious reality problem.

First, for the two rare defendants, losing a professional lawyer above the court, in a highly professional and fierce criminal trial, their own proof and debate ability is weak, the risk of litigation is sharply increased. Although lawyers retain outside the court support, but can not respond immediately in the court to the indictment of the defendant, the court issue the proof, the defense effect will be greatly reduced.

Second, it releases a sharp industry signal: when the right of defence continues to be restricted, when applications, objections, claims are all difficult to accept, and when legal aid lawyers exhaust all in court remedies, it remains only the procedural difficulty of passing cases outward in the way of withdrawal.

Third, the incident also pushed the trial procedure of the Qingdao Chinese Court to the public review. The case had been re-trialed by the provincial High Court twice with "unclear facts, insufficient evidence", indicating the existence of major defects in the original trial. The re-trial was replaced by the Chamber of Representatives, but there was no way to evade the Chamber of Representatives, the reality of "exchange of the Chamber, not exchange of the Chamber of Representatives" appeared, making it easy for the parties and defenders to generate reasonable suspicions in the first place.

3: Procedural justice cannot be written on paper

The problem exposed in this case is not only a conflict of prosecution and defense, but also deserves a profound reflection of the judicial system in Zhejiang and Shandong.

The reinstatement system should come into effect. In this case, the reinstatement of the trial three times, the legislation is intended to replace the judgment force, break the inherent prejudice, and re-neutralise the trial. The reality is that the Chamber of Representatives replaced, but the case is still to be submitted to the Chamber of Representatives for discussion. The members of the Chamber of Representatives have not evaded, it is difficult to truly realize the system's original intention of "reinstating the reinstatement", and it is not surprising that the defense party repeatedly applies for foreign jurisdiction. For the major sensitive cases that have been rejected by the higher court three times, whether it should be considered to designate foreign court jurisdiction, it should be reviewed.

The case took more than thirty days to conduct non-investigation, enough to see the case's criminal evidence clues, evidence doubts heavy. But a large number of non-synchronous recording videos, recordings and videos serious contradictions, the accused complained of violence evidence collection clues, did not get substantial review excluded. The law set illegal evidence exclude, the purpose is to prevent criminal confession, prevent false confession. If this system does not have rigid constraints, then the detailed court investigation will eventually flow into the form.

The right of defence should be fully respected. Defence is not to “disrupt” the trial, is an essential part of the criminal proceedings. The appearance of the examiner, the appearance of expert witnesses, the recruitment of key material evidence, the appearance of witnesses, are all the rights of the defence party expressly granted by the criminal proceedings law. It can not simply be rejected as “the court considers it not necessary.”

Investigation and supervision chains can not fail. Attorneys, arrest censorship, interrogation full-time recording video, was a brake to prevent illegal evidence collection. but in this case, these supervision links exposed a lot of gaps. If the supervision mechanism fails, relying only on the court after trial error correction, the cost of the error correction will be huge, and the way to the wrongdoers will be incomparably long.

A lawyer's protestary withdrawal from the court has never been a scene worthy of praise, and it is precisely the red alarm that judicial processes need to be alert.

Justice is not only about pursuing tangible outcomes, but also about achieving visible procedural justice.A case, three times revoked by a higher court, the defense lawyer is forced to protest only by withdrawal, which itself is worthy of all judges.

We expect that either the High Court or the higher judicial authority in Shandong will be able to face the entire procedural dispute exposed in this case.

The gateway of the procedure cannot be held, and entity fairness cannot be spoken of.