绝望的寻找正义：他的对手是一个国家
作者： JIM YARDLEY
原载2005年11月12日《纽约时报》
巢湖，中国 ---- 他绝望了，再也借不到钱把儿子的官司打下去了。谢裕君走进一家医院。他知道中国有买卖器官的黑市。他想把眼睛卖掉。他没有成功。
60岁的谢裕君早就身陷绝境了。这里是中国的安徽省，他的儿子被指控持刀行凶，致使一对母女重伤。警察怀疑行凶动机是双方之间的一起房屋纠纷。但是，谢裕君相信这是一起冤案：受害人根本认不出袭击者。唯一的证据是一个可疑的鞋印。警察的执法不公显而易见。
但是，法庭不这样看。他儿子的律师根本不能质询目击证人，而且从一开始就无法接触到证据。为此，谢裕君本人曾经溜进监狱，会见目击证人了解情况。甚至上诉成功都被证明是无用的。重新开庭审理后，他的儿子被判处无期徒刑。
插图一：谢书德的案件发生在安徽省巢湖。
"共产党里总要有人是公平讲理的吧，"谢裕君说："如果我一个都找不到，那么天下也不会长久了。"
中国的统治当局一度依靠意识形态和残酷手段来管理国家。现在，它要求像谢裕君那样的公民对司法系统保持信心，相信问题会解决，正义会得到声张。
但是，谢裕君悲惨的遭遇对中国政府"依法治国"的承诺提出了一个根本的问题：犯罪嫌疑人有可能得到公平的审判吗？
（以下翻译略）
插图二：谢裕君儿子的判决是去年中国770947件审判的案件中的一件。
插图三：他的儿子被指控持刀伤人。
插图四：案件于2004年10月在巢湖市中级人民法院开庭审理。
插图五：谢裕君说："共产党里总有人是公平讲理的吧。"
插图六：一年多以来，谢书德的案件宣判两次，谢裕君上诉两次。
插图七：被害人在巢湖开一家杂货店。
插图八：谢裕君的妻子卖菜每月收入600多元，这是他们夫妻俩唯一的经济来源。
插图九：谢书德，32岁，与被害人生活在同一幢楼里。
插图十：谢裕君与他的儿媳和孙女。
插图十一：谢书德的妻子黄书云拿出全家的合影。谢书德的女儿谢晴拿出她的图画。
插图十二：谢裕君的儿媳认为谢裕君在法律上的努力是"有用"的，但是应该试着"走后门"或者去找"关系"。
插图十三：安徽省高等法院维持原判。
插图十四：当一个法官建议谢裕君："不用着急，反正是无期徒刑，你有足够的时间想办法"，他不由怒火中烧。
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Desperate Search for Justice: One Man vs. China
By JIM YARDLEY
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.
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.
The problems are so flagrant that calls for reforms are coming from inside and outside the government. The National People's Congress is considering proposals for another major revamping of criminal procedure laws. In a handful of cities, experiments in reform are under way, like allowing defense lawyers to be present at interrogations. But it remains uncertain whether any changes will be approved, and, if so, what they will be.
In Chaohu, the police, prosecutors and court officials refused requests for interviews about the case of Mr. Xie's son, Xie Shude. The Chaohu Public Security Bureau described the case as "routine." The two victims of the attack declined to be interviewed.
But Mr. Xie's plight illustrates all the tensions and problems in the criminal justice system. He repeatedly demanded his son's rights, only to learn how circumscribed those rights were. He learned that if Chinese law does not explicitly treat a suspect as guilty until proven innocent, it does so in practice.
For more than a year, Mr. Xie navigated two trials and two appeals. Ultimately, he found his only recourse was outside the usual channels of modern jurisprudence and held a rare private meeting in June with two powerful judges.
It would be the modern equivalent of an audience with the emperor.
Father-and-Son Arrests
On the night of March 21, 2004, neighbors in the massive Xiyuan New Housing Village heard screams from a sixth-floor apartment. An intruder had repeatedly slashed a mother and daughter with a vegetable knife and escaped down the public stairwell. The case scandalized this city in the fertile, green fields of central China's breadbasket.
Two days after the attack, the police approached Xie Yujun, the father, and told him he was a suspect. He had had a property dispute with the husband of the woman who was attacked. The husband had bought an apartment from Mr. Xie but was delinquent in his payment. Mr. Xie had sued.
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
The High Court is the most powerful judicial body in Anhui Province, yet it should not be confused with appellate courts operating in the United States. The High Court is a political body as much as an arbiter of law.
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."
（完）
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