Criminal defense is dead? 

--Chinese lawyers dilemma

   The morning of April 22, 2011, I left the court Li Zhuang case two quarter dropped after photos. Online search, the subject is unknown.
   

[Yang Xuelin: This is "nanfengchuang" magazine published manuscripts, published today. However, I wrote12000The word, they left only less than half. Although I write out the harmonious force, but the editing was carried out deep processing, lest I make mistakes. This does not, the title changed to "a criminal defense lawyer confused". So, when you read the magazine article that some words seem not finished, you can come to this blog. Ha-ha.]

2012Years7Month23DayThe court of Li Qinghong River, Guiyang56Defendants were sentenced verdict, underworld crime. Li Qinghong's lawyer, Zhou Ze after hearing after the verdict, tearful sent a moan: "criminal defense is dead!" After more than a month, Zhou Ze dozen the defense lawyer, appeal to the parties, do two things: one is the controversial report the case of a trial judge illegal crime to the relevant department name; two is to Guiyang City Public Security Bureau for the parade, in protest of the case the trial unfair.

In Guiyang Xiaohe case verdicts, a human rights lawyer in Beijing, in a severe tone, said to me: for those in a flagrant way illegal handling personnel, whether in the case of the link, the investigation stage, the prosecution stage, or phase of the trial, criminal defense lawyer should not hesitate to report. Because the behavior of these people are in the crime, but if we are to pay no heed, do not take action, then we are serious dereliction of duty!

One of the defense attorneys I also Guiyang River case, my client was also the court sentenced Meng Zujiu. I don't have a "criminal defense is dead" whining, I also have no to a trial judge to report. Of course, I will not attend the parade application, though I know this application will not be approved. I didn't do this, and my style of doing things and has nothing to do with my position. In fact, I agree and support for Zhou Ze and other lawyers action.

Report, parade, network broadcast, released video, and a lawyer to declare war against a certain officials in micro-blog. These are not the main task for lawyers, or simply not a lawyer's job to do. Has Zhou Ze lawyers debated what. In addition to those who be not worth refuting five hair party opinion, most people's point of view: criminal defense lawyer, in accordance with legal procedures in court to plead for the accused on the line, no need to also should not make these things outside the court, this will interfere with the independence of the judiciary. The industry also have senior lawyers think such speculation will self destruct image of lawyers, and warned: do technical criminal defense lawyer, do not hype. I think the criticism and the industry told a seemingly fair, but it's easy to say, difficult to do.

   2011Years, I participated in the "Beihai case" defense. I like the other co counsel, want the strict observance of the legal procedure, trial, prosecution, defense three party carry out their duties, the successful completion of the trial work. To start, we all want to do a technology lawyer. It can be just wishful thinking.

The case is one of the five defendants "mayhem" case,2010Years has been hearing, then by Guangxi's Yang Zaixin four lawyer to defend. But in the third after the hearing, Yang Zaixin four law by investigating authorities arrested, on charges of "defender prejudice to testify" (Xing Fadi306A), caught at several defense witness. In this way, the five defendants at no lawyer. Then, a dozen from around the criminal defense lawyer to law altar Knight led by Yang Jinzhu Yang Zaixin, in four the attorney rights at the same time, also served as counsel for the five defendants.

The hard process from the defense work, after the trial of the case summary of defence lawyer "five no spirit" can be seen. The so-called "five not" spirit, is to "frighten away, not afraid of tired, does not fall, cannot outlast, gas, in particular to die":

1, frighten away: defense attorneys have several received threatening messages, should we give up the defense, or "go out of Beihai"; and the unidentified person tracking and surveillance; in Beijing meeting, the venue was the spoiler.

2A: first, not beaten at the hotel, Chen Guangwu lawyer and lawyer Li Jinxing was claimed to be the families of the victims of maltreatment; second beaten in the detention house, still is these people ill, to meet the defendant lawyers fought; the third hospital in Beihai, the door, out of the lawyer was adjourned unidentified chased, lawyer Xu Tianming glasses is destroyed.

3During the day, tired not inverted: hearing, night. Often find some lawyers room three point also lighting, or haven't slept, or already up. Some lawyers colds, diarrhea, take some medicine to continue to adhere to the.

4, cannot outlast: continuous22Day the court (the middle three days off), many lawyers is two or three days in advance to. The individual lawyers met him the court case, the judge asks for leave, but also go fast.

5The undead, gas: hearing the victim's family several stand accused, the gallery also has reviled; prosecutor beyond duty repeatedly attacking defense lawyer; the network a lot of five hair spread rumours to injure others'reputation; these are. Even the real Ligang lawyers in the detention house is out of the waistband security, also.

The "five no" spirit, to the court to start the procedure of excluding illegal evidence, to the police to testify in court, to the investigation of both sides. Of course, also compete for a court debate, every lawyer defense ideas according to plan, complete posted their defense point of view.

Although the Beihai case there is no judgment, results also can not be expected. But if none of the above "five not" spirit, perhaps already convicted, sentenced the defendant guilty of the charges; and Yang Zaixin, four lawyers had been put in prison, not like today all bail out.

In today's environment of justice, criminal defense lawyers to engage in defense of undivided attention, all in the court to see, almost impossible. Every criminal case handling process, is a process of struggle, or is the depletion process. Guiyang Xiaohe case performance is especially outstanding. It can be said that, without a lawyer Sike, all the litigation rights of the defendants will be deprived of, especially the illegal evidence exclusion proceedings, witnesses to testify in court, in court, identification of the no Sike, don't even think about it. Of course, Sike there will be risks, will have to sacrifice. Because of death, four lawyers were disbarred lawyer in court, digital be warned, reprimand; because the River Court Sike, stress the lifting rack sth.27Entrust a lawyer. The most serious consequence, involved in the case and other cases of Sike appointed lawyer, is the Supreme Court a leadership denounced as "a family", "unscrupulous lawyer".

 

Criminal defense is difficult

The lawyers three difficulties, namely "meet the difficult, difficult, hard evidence of marking" is a long-standing problem. To my colleagues and I practice experience, can say for sure, not a criminal case did not encounter these difficult, even more difficult.

Meet the difficult.

Meet the difficult mainly occur in the stage of investigation. The investigation organ does not welcome the lawyer to meet, and even from inside the lawyers met with the conflict, the nature of their work, "decided to head butt, is understandable. "Criminal Procedure Law" provisions of article ninety-sixth:"The appointed lawyer shall have the right to the investigation organ about the crime suspected of, and may meet with the criminal suspect in custody, the suspect information related to the case. The lawyer meets with the criminal suspect in custody, the investigation organ may according to the circumstances of the case and the need to present."Here" the investigation organ may send personnel to the presence ", gave the investigation organ imagination wide. They disguised refused a reason lawyers is no personnel can be arranged to meet. So, whether it is the general situation48Hours to meet, five days or special case arranged meeting, as long as the words "no one to accompany", to break the. And some investigative organ investigators also self explained: "just say48Hours must be met, did not say48See hours. We arrange for you48Hours after the meeting is not illegal".

The investigation organ and the lawyer entanglement48Hours, and some simply do not dwell on this, do not accept the lawyer's client procedures and met with the letter. This trick is vast, let you48Hours don't date. So, the lawyer had to use the express mail to send. But others say more trick, express mail is received, what also not but inside. Beijing criminal defense lawyer Zhang Yansheng encountered this trick. Helpless, she had to chase after the Public Security Bureau sent procedures, but others followed her to send back, in the Public Security Bureau compound show a flower drum. It looks very funny, actually shows some investigative organs against lawyers, have been showing a shameless rogue features.

"Lawyers Law" thirty-third article: "lawyers met the suspect, the defendant, was not listening". But the provisions in practice. Many accompanied by investigators in the half on the road to exhort repeatedly, can not talk about the case. During the meeting, once found the lawyer and the suspect talk relates to the specific case, will be stopped. In fact, there is no legal provisions shall not talk about the case. Don't talk about what the meeting? "The public security organs shall handle criminal cases" program thirty-fifth (two) mentioned law "to meet with the criminal suspect, the suspect about the circumstances of the case", is to talk about the case. "A people's Procuratorate and guarantee the lawyers' practicing law in criminal proceedings" more detailed provisions, the provisions of article sixth: "lawyers met with the suspect in custody, can understand the following cases: (a) the basic situation of the suspect; (two) the suspect whether or participate in the suspected crime; (three) the suspect statements about the facts and circumstances of the case; (four) the suspect about the guilty, guilty plea; (five) the legal formalities by coercive measures is complete, the program is legal; (six) was forced to take measures of their personal rights, legal rights have been violated; (seven) other needs to understand the case related information." According to this provision, can talk about the case. Therefore, I in the investigation phase meeting, with these two provisions. Once the investigation personnel not to talk about the case, I'll take it to him. Sometimes good, sometimes is invalid.

Investigation phase meeting, the investigation organ staff at the scene and have legal basis. But to the trial stage in the field, there is no legal basis. But some investigative authority to openly do. I met with the care of my clients in Beihai, there are several police officers tried to enter the meeting room, I was out. Another guards tried to sit to the side, I challenged him to move to the door, but still sit there monitoring. I asked "what kind of person you are, why to sit here?" He said the staff, to sit here and rest. I feel awkward. And behind me, several police officers still walking back and forth, to intimidate the defendant. The defendant was too frightened to speak. In the case of other attorneys also have this experience, some dumb meet meeting, the defendant didn't say a word.

Watch all also in resisting the lawyers play a disgraceful role. As the Beihai case, the foreign defense lawyers create all sorts of obstacles. In addition to the registration certificate of lawyer, but also the registration ID card, are indispensable. "Lawyers Law" thirty-third stipulates: "the suspect first interrogation by the investigatory organ or coercive measures taken to date, the lawyer commissioned by a lawyer's practice certificate, certificate of his law firm and a power of attorney or legal aid official letter, have the right to meet the criminal suspect, defendant and understanding about the case." Thus, a lawyer with three can be met, and the detention center but insists on lawyers and court seal. What is more, the detention center also give us these foreign lawyers security. Of course I refused, I said that there is no legal basis, please according to law. After all the lawyers fighting, the detention center had to correct the error, we can meet.

A few years ago I went to Hunan a detention house and asked to meet, the case has been to the trial stage, occurrence what accident could not. But the guards said procuratorate greeting, the defendant cannot see the lawyer. I went to the theory and the director, director of Beijing lawyer said you will say, I say you, I go. He was on the run. This made me terrified.

Recently, also in Hunan, Chen Guangwu lawyers to meet with the defendants in a trial stage, the detention center told him he couldn't meet, due to project group "seal.". We puzzled to hear the word "letter of supervision", really can't imagine what this project group power, also really don't understand the why with it. Faced with this situation, we immediately decided to take three actions: one is the complaints to the relevant departments; two is to the court; three is the micro-blog live. After tossing, the detention center agreed to meet with.

Guiyang Xiaohe case verdicts, lawyer Wang Shihua as the defender in the first instance to meet the defendant, to solicit the views of the appeal. The detention center told not to meet. Asked what the? Reply to notify superiors. Asked why the other lawyers can meet? Said another lawyer not on the list, you are on the list. Wang Shihua lawyers see list, and a list of the defendants and their lawyers, lawyer and lawyer Yang Xuelin Wang Shihua on the list of names as a mark. Because of my client has been released on bail in, I don't need to go to the meeting. Otherwise, I will have this experience.

There is an easily neglected problem, is the appeal stage met with problems. The lawyer to meet the defendant held in the detention house, though not so smooth, but it is the law, are prescribed in the "criminal law" and "law". But when the final judgment defendants (ruling) convicted, he was sent to prison, if he still refuses to accept, to counsel his appeal, or his relatives and lawyers as agents for lawyers to appeal, to the prison to see him? No provisions of the "Criminal Procedure Law" and "law". While the "Prison Law" of the so-called "communication, meet", refers to the provisions of article forty-eighth "criminals in prison, according to the regulations, can be met with relatives, guardians." There are no can be said to meet with a lawyer. In addition,The Justice Department lawyers to criminals in custody "Interim Provisions" just missed lawyers filed a complaint with the problem.

Thus, the stage of lawyers, no legal guarantee.

The lawyer to meet, what is a person or two people, at present all over the country are not the same. Criminal procedure law.Article thirty-second stipulates: "the suspect, the defendant in addition to exercising the right to defend himself, also may entrust one or two persons as his defenders".According to the regulations, if the defendant please a defender, of course, a lawyer. Add a accompanied with lawyers, neither necessary, nor economic. In recent years, the majority of provinces and cities can be a meeting place, but there must be two people met dictate. This leads us to ask understand before going to meet you somewhere, that place is provided? To determine or two people go to, or where firms to please a accompanied by lawyers. If you see some places of detention on the edge of the firms shop hit "accompanied with" advertising, the place to meet two people. Odder still, a municipality directly under the central government, in addition to a detention of two people will see, other detention have can be met with. Don't know this one why still insist two people?

Marking difficult.

Since the2008Since the implementation of the new "lawyer law", better scoring problems, most places can be sued in the review stage marking. But in scoring and replication problems, different. Such as some local regulations can only copy can not take pictures, and some places instead, provisions can only take pictures can not copy. In some places can only read the file of evidence, can not read program volume.

I recently to the so-called marking reform in Guangzhou city procuratorate marking, discovery is not as convenient as propaganda. One is theirABRoll, the so-calledAVolume is the program volume,BVolume is the file of evidence. After the appointment will let you readAVolume, andBThe volume also notice. That is to say, you want to a fix is not possible. Two is the only take pictures, but is facing a computer camera, don't give your paper files. This makes the copy file definition at. I asked why not directly from the computer print? The clerk replied printing costs is not good, Price Bureau has not approved. I asked why not directly use the USB disk copy? No reply.

Now the files in addition to paper material, there are carved CD-ROM audio-visual materials. These materials, there are either see list of evidence, not really guy; or a CD, but not to copy. The case of Beihai after a hard struggle lawyer, finally the court agreed to copy. A case I and Yang Jinzhu, Chen Guangwu lawyers in Nanchang defense, the court does not allow copy cd.

The difficulty in collecting evidence

The legislation, lawyer investigation of evidence is limited. Criminal procedure law.The thirty-seventh said: "defense lawyer with the consent of the witnesses or other relevant units and individuals, can collect information pertaining to the current case to them".According to this stipulation, the lawyer to any unit to find anyone, investigation and evidence collection, they can refuse. In reality, the witnesses refuse to lawyer forensics is understandable, they fear. I have experienced more than one case, I find the witness, the investigation organ to witness, or will witness the past. Polite is understanding the witness to the lawyer said what, not polite will intimidate the witness the lawyer change.

Difficulties of witness appearing in court.

"Provisions on some problems in the implementation of" the people's Republic of China Criminal Procedure Law "interpretation of the Supreme People's court" article 141st: "the witness should appear in court as a witness. In accordance with the following situations, the people's court, the witness may not testify in court: (a) the minor; (two) during the trial suffering from serious illness or action extremely inconvenient; (three) the testimony of the trial of the case does not play a direct role in the decision; (four) other reasons". But the regulations are not implemented almost. The witness not appearing in court is the norm, regardless of Is it right? Comply with the above four kinds of circumstances. Although the authenticity of the defense lawyers often takes a prosecution witness did not appear in court and deny the testimony, but never seen the court accept this view. Now a prominent problem is that, even if the defense their own witnesses, and difficult to get a chance to appear in court. Guiyang Xiaohe case, the defendant to cry bitterly as the price, only for a few witnesses to appear in court.

2011I and Zhou Ze lawyers in the Beijing Fengtai court to defend an accused person, more than a dozen witnesses our outside the court stood for two days, the judge is not to appear in court. When I read the several list of witnesses, the judge said that several witnesses the public security organs have taken depositions, so do not appear in court; I read several, the judge said that several witnesses you lawyers have taken depositions, also need not to appear in court; I read the last list of witnesses, the judge said this a few witness security and lawyers are not take the card, that is not important, so there is no need to appear in court. When we raise objection, the judge gavel knock loudly. I sighed and said: when a criminal defense lawyer should also have a good heart!

After court, we have to reflect to the relevant departments of the hospital trial was illegal, the court again, all the witnesses to appear in court as a witness.

Trial of second instance difficult.

Second instance not hearing seems to have become routine. However, in accordance with the "law of criminal procedure", this should not become the convention. "Criminal Procedure Law" 187th stipulates: "the people's Court of second instance cases on appeal, shall form a collegial panel, trial. A collegial panel after scoring, interrogate the defendant, to listen to the other parties, the defenders and agents ad litem, opinions, the facts are clear, can not hearing". Visible, the court is not the court principle, is an exception, but must meet the "clear facts" conditions. Guiyang Xiaohe case, the obvious first facts unclear circumstances, in the indictment57Defendants and the judgment becomes56Man, did not make any explanation of the circumstances, the defense lawyer's repeated requests and appeal, the court still insist on not in guiyang.

I have handled a case in Shandong intermediate people's Court of second instance. When I arrived at the court in the entrustment to the presiding judge, judge the files to me, said you're here to look at, write it to me on the line immediately. I said I might suddenly not written. The judge said that you say your point, I remember, the formation of a record, is a collegial panel to listen to the opinions of the defender. I to the judge so lightly and so frankly surprised. I said I would not be so do case, I want to go back into the file to write it. In fact, they had decided not to court, and even how to judge have been set. Defense lawyers to spend even greater strength to write defense, in addition to a worthy of my own conscience effect, without him.

 

The criminal defense

Legal risk.

"Criminal law" the 306th stipulation: "in criminal proceedings, the defenders and agents ad litem, destroy or forge evidence, to help the parties destroy or forge evidence, threat, seducing witness to change or make false testimony, is less than three years imprisonment or criminal detention; if the circumstances are serious, three to seven years be sentenced to." This is the famous306Clause.

Of course I don't think that lawyers are so pure. Lawyers, whether civil and commercial law and criminal defense lawyer, because of the personal qualities, character and the pursuit of different, will also appear to achieve a certain purpose of rush into danger phenomenon. Forgery, fraud litigation, abetting the witness perjured himself, this is some of the lawyers. But because the lawyers are often in collusion with the judicial personnel, external performance more low-key, so true was found few. The criminal law article306For they have no practical significance.

On the contrary, from the point of view of several typical cases in recent years, been framed in this crime is to really argue, dare to struggle lawyer. The lawyers in the case of positive investigation, not blending, no compromise, they often become the power of the deep hatred, extremely easy to become the object of occupation. Li Zhuang is so, so is Yang Zaixin, Beihai four lawyers. Zhou Ze lawyers in the case of second instance in Guiyang Xiaohe season defense, determined in accordance with the law, safeguard the legitimate rights of the parties, never compromise, the result is the investigation organs as the investigation object. There is a file the case record, is the special investigation Zhou Ze lawyer. For a time, Zhou Ze's lawyer friend even from time to time to give him a call, have a look whether he was arrested.

Li Zhuang in order to give his client's defense, in accordance with the "law of criminal procedure" to the authorities handling the case put forward their views, especially the parties be torture to extract confessions problem. Because of Li Zhuang's idea, angered the investigation organ, the result was identified with "winking" way violated the criminal law306A sentence, a season. In order to prevent Li Zhuang due out of prison prison, Chongqing started the two season, and attempts to provide a Meng for Li Zhuang in Shanghai a few years ago a case, again for so-called "leaks the crime". I served in the Li Zhuang case season two defense lawyers in the process, through reading and investigation discovery, Li Zhuang not only a quarter of the two quarter is unwarranted charges, charges are framed. But this season two complaint, but evidence that Li Zhuang was a good lawyer put one's heart and soul into the service. The two season of one case. Li Zhuang appointed one defender, immediately in the2008Years5Month4Met with a Meng, and began consulting case materials. Then according to law and the facts, as the one made innocent defense scheme. To2008Years7Month30Trial, Li Zhuang dozens of times from Beijing to Shanghai, has met eight times with a meng. It is submitted to the court45A witness evidence, only amounted to23Name of more. Wearing a in2010Years8Month24On the testimony of Li Zhuang said: "good performance in the court, and before the lawyers than dare to speak." Zhu Moumou in2010Years9Month14Also on Li Zhuang's work on the testimony affirmed: "Li Zhuang's defense can be good, can I want to say that out."

Beihai in the case of Yang in the new law also is such.2009Years11Month19Day, near Guangxi Beihai fishing vessel factory area found a floating body, after the Huang Huanhai. The police then and Huang Huanhai dispute, Pei Rihong Pei Jinde, Pei Gui, Yang Bingqi, Huang Zifu and others arrested. The prosecution, Yang Zaixin and other four lawyers entrusted, as Pei Jinde and other four defenders. Yang Zaixin lawyer found, in addition to the defendant confession cases Its loopholes appeared one after another., without any objective evidence. The meeting four defendants told police torture to extract confessions. Yang Zaixin lawyer found the witness to the defendant to provide clues, and adopts synchronous video to witness testimony of witnesses seized, the defendant Pei Jinde no time of crime, not the day to second on the fact that the indictment alleged facts, deny.

The prosecution is angry. In view of the typical case has been included in the homicide cases must be broken, the case handling personnel meritorious meritorious service award, award, be overthrown? So we can only grasp the lawyer. I am in the process to replace Yang in the new lawyer to plead for the accused in, by marking, investigation, experiment and investigation22The two trial days, Yang found that are correct in the new lawyer original ideas, it is appropriate, without any wrongdoing, and criminal law306Basic does not take the edge. Will they catch up, completely is the investigation organ for the occupation of revenge up their mistakes and take.

A similar situation, I have had a close encounter. That's my handle in a western minority area two years ago of a duty crime cases. As I pointed out the investigation organ of torture to extract confessions in court, and asked the court to start the procedure of excluding illegal evidence, the prosecution was not acceptable. Less than half an hour after the adjournment, I received the local prosecutor's phone, asked me to go to the people's procuratorate. I know that come with evil intent, but agrees to go to. So I think I do not have what problem in the defense, if not to have been considered to be guilty; and here is very remote, they won't let me go, I go off. Go after, not seated, Hula came in seven or eight people, look scary. The prosecutor asked: "you said we torture to extract confessions in court, what evidence do you have?" I said that the defendant's confession and exculpation is my evidence, as to whether the court accepted, to see the illegal evidence exclusion results, identified by the court. And I put my attorney to defend in court again. I said this is not appropriate, that you didn't ask me to issue a summons procedures, I have no obligation to answer; and you did it in the investigation and trial, the court prosecutor is clear to you, ask him to go, or you may have access to court records. Finally, in my insistence, they did not take notes, but both sides do their records. More than two hours of conversation, the surface is friendly, but implied. I have been instructed to the relatives of the accused, in case I was detained, you ought to.

Personal risk.

2006Years5Month, several of my lawyer and Beijing to Shandong, an old revolutionary base areas. The party was a blind, because of its management rights transaction angered local government, the I and several relatives were in some charges of criminal detention. We submitted the requested formalities to the local public security departments, wait for48Hours to arrange. Did not think of is, since the start, our every act and every move is dominated by an unknown force. Our hotel, is24Hours monitoring; we call a taxi to go out, always be false license plate vehicle tracking; we negotiate to arrange matters, was summoned to survey, threat of detention; finally, a burly chap threat was beaten, false card car chases out of the ground. For the later, Beijing lawyer Li Fangping to the bus, was hit head broken and bleeding with iron bars, Beijing was hospitalized for a week.

The risk in practice.

A practicing lawyer, is by the judicial administrative organ practice where the license, the license every year to the annual inspection. Once a year the annual pass, then the lawyers in this year will not do. Once the license is revoked, it is equal to the broken bowl. "Lawyers Law" forty-ninth stipulates: "the lawyer for an intentional crime subject to criminal punishment, his lawyer's practice certificate shall be revoked by the judicial administrative department of the province, autonomous region, or municipality directly under the central government." In accordance with the above provisions, Li Zhuang is punished by criminal law, its license was revoked this standard is of course, a good grasp of the. Now the problem is, to control the revoked license standards, the lawyer was no bottom, don't know because of what, in what had been revoked license. Such as Beijing two human rights lawyer, just because a court cases due to protest injustice and retired judge, will be revoked license. There are lawyers because in some sensitive cases of defense, was revoked license. From the suspended several examples according to the point of view, the reason seems to not these lawyers in violation of the law occupation ethics, damage the interests of the parties. On the contrary, the lawyers were suspended after the exposure, their parties are puzzled even anger, some parties in turn around, for their lawyers rights.

In addition to suspension, the most common is not conduct or slow inspection. Hunan lawyer Yang Jinzhu was in license cover "examination incompetent" chapter, become the world big joke. See I work with the Yang Jinzhu lawyer for several cases, if Yang Jinzhu is incompetent, so China have no lawyers qualified. In fact, in the eyes of the public power, Yang Jinzhu also really incompetent. His incompetence is not with the public power act, not with the Justice Department blending, but often reveal the truth of the case. This law is the public power is very didn't like.

Political risk.

Some lawyers think you only do case, never participate in any political parties and activities, there can be no political risk. Now it seems not so. Recent evidence, China criminal defense lawyer lay also shot in the. "People's Daily" Overseas Edition2012Years7Month31Published an article, "the human rights lawyer" included in the new black head. As far as I know, it refers to "the human rights lawyer", mostly criminal defense lawyer. Among them are participated in Guiyang Xiaohe case and the case of Beihai lawyer.

 

The criminal defense and confused

I worked in a consecutive days received two calls. One of my clients in Guangzhou, said a local administrative departments of the people take the initiative to find him, advised him not to please Beijing lawyer, by their internal work, spend some money. There is a Beijing party, said he found a very high level of judicial personnel, the people told him it was your lawyer screwed up, I give you find leadership call the court, is solved. Spend some money. The two "spend money" amount, I listened to fear. The two parties are very trust me, asked me if I could do that, would you like to do. I can only answer, "if I don't do it".

I many neighboring active in the forefront of the criminal defense lawyer, often talk about this topic: the lawyers are not? Almost all the principal told me, from the public security bureau to procuratorate to the court, the case handling personnel told them: the lawyer did not use. The case we decide, lawyers can yet? Politely say: Please lawyers money; not polite will say: the lawyer is a scam. The defendant also and their families will hear the case handling personnel in this way: a lawyer if sentenced to heavy, don't ask a lawyer would be lenient sentence. Later, the results really so!

The key is, even criminal defense lawyer himself, also do not know their own defense works. Because the operating rules Chinese judicial organs, is not from the law of one. The judicial criterion, is probably not a criminal defense lawyer can say clearly. Even the judge will tell you, how to judge the case even he did not know. Because the president behind him, the dean of the back, behind the judicial committee. Of course, all the committee could veto the front. So, I and many lawyers are most afraid of the parties to such questions as: my case will be how to judge? We can only answer: according to what the law should be sentenced to. But not necessarily, because the situation is complex. Of course, my answer is not satisfactory. As a senior doctor, for a common cold patients ask can be cured, unexpectedly answer "who know.".

    And the position of lawyer embarrassing questions. That said, the lawyer is the national legal workers. As a result, countries give you wages, set the title, the house. Of course, you have to accept the leadership of the relevant departments, defense and agency comments after approval of the organization, is the request you said in court "fully agreed with the prosecutor opinions, suggestions to punish the defendant", you can say. Later, the lawyer also became the social legal workers, even firms into the social intermediary organizations. So, your salary, house, and all the necessities of life, can only ask the parties to the. Thus, out of trouble. Because the parties to give you money, is not willing to say "fully agree with the opinion in court, suggested to punish the defendant" such words, and superior leadership without forcing you to say so, but the heart is still hope you say so. So he asked a lawyer to "politics, the overall situation". If a lawyer is not obedient, ranging from business, revoke the business license, weight is just like Li Zhuang, caught and sentenced.

The criminal case fees low, it is generally accepted fact. Reasons: one is the most criminal defendant is at the bottom of the social vulnerable groups, the dear were lower income, unable to pay high fees; the two is to maintain the right of personal liberty is not good enough, not willing to pay a higher price for it, even if the dignitaries in jail, also reluctant to pay high fees; the three is that almost all of the accused in criminal prosecution, the relatives of the first choice is not the money to hire a lawyer, but to find the relationship between. When the lawyer, not what money basically. I met quite a few parties, I proposed to collect a certain amount of lawyers time-consuming, have said not over, but the front to find the relationship between the money spent.

Li Zhuang case season, in addition to remind the attention of criminal law criminal defense lawyer306The risk, because the parties to lawyer's report and deemed meritorious service, the national criminal defense lawyers a fright. Recently, something happened, not only shocked, but extremely sad. Doctor of law Li Gang was accused a Ganzhou land fraud defense, the trial of Li Gang made a plea of not guilty, has been sentenced to ten years in. The second defendant with local compromise not entrusted to Li Gang, but Li Gang continued to expose and criticize the case. The defendant pleaded guilty to probation. Did not think of is, just out of the jail was in police led to airport gate stopped Li Gang from leaving, because he cheated a trial lawyer fees. Although managed to return to Beijing, but Li Gang said: "my heart is bleeding".

The occurrence of such things we cannot blame the parties, or even simply can't blame the parties. Who can see the public power play what role in the. But this tells us, if the criminal defense lawyer about this, for the operation, and if possible, then beware of his own party, can not operate. The parties to report meritorious and lead the police detained lawyers lawyers experience if spread, "criminal defense is dead" is not just words, but really dead.

And the criminal defense lawyer be taken by surprise, is the case handling organ stirred up, stress at the critical moment of the remove entrust lawyers, a fundamental solution to a. The problems in Guiyang Xiaohe case is particularly prominent, and created a miracle. Before January this year after the end of the trial court to rehabilitation in June, there have been27Lawyers are the parties to lift the commission. According to the defendantConfirmed, the case of first instance the collegial panel and other staff of the court of first instance, multiple questioning the defendants and their relatives, the delegation request them to hire foreign lawyers, and to "if cooperate with the court's work will be dealt with leniently, otherwise it will be a heavy sentence" threat. The defendant in the case against their will, to lift the principal to the original defendants.I was there.

Yes, I am2011Years 11On 29DayAcceptDefendantCommissioned by Meng Zujiu's wife, as the Meng Zujiu defender. 2012Years 1On 9DayTo start, I participated in Guiyang 143Factory hall of the trial. The rest I and Meng Zujiu and exchanges, harmonious atmosphere. He did not reveal the slightest not satisfied with my work, not to remove entrust signs. But from the court again and the four day, I was relieved to entrust. Dramatic is, in the complex court20Days later, Meng Zujiu and court asked the court to get me back. So, I on7Month2To start the day, restored the counsel qualification.

Then I saw Meng Zujiu understands, the court of first instance to make Meng Zujiu with its illegal trial, the judge seven questioned Meng Zujiu, with threats and bribery, forced Meng Zujiu lifted the entrusted to me. In the court Meng Zujiu demanding the restoration of commissioned me to defend, the court of first instance to notify the family, also did not inform me. When I heard the news from him, in2012Years7Month2Came to the court to perform defense duties, Meng Zujiu and by the relevant personnel of the court of first instance threats, intimidation, trying to stay out of my way as counsel appearing for the defence.

    I was the termination of authorization, this is the second time. For the first time2011Years of Yueqing "Qian's death" case, I act as Qian Chengyu and Beijing lawyer Zhang Kai lawyer. We shall obtain the commissioned Qian Chengyu relatives, in accordance with the "law of criminal procedure" to perform the duties of lawyers, to the detention center, met with Qian Chengyu. Qian Chengyu in the family signed a power of attorney signed entrustment relationship, says. At the same time, Qian Chengyu said the first and second instance shall we defended, and to advance signed power of attorney.

Then the case to the stage of review and prosecution, we will be lifted commissioned. Family disputes, to the judicial authority to negotiate. But they show Qian Chengyu autographed by the record, with the lifting of the we commissioned content. According to relative says, after the first instance verdict, the court Qian Chengyu shouted to entrust us as he appeals. But the court of second instance to the relatives show Qian Chengyu notes, there are no our content. Finally, a power of attorney Siwei lawyer Jiang relatives to meet, was blocked on the outside.

 

Criminal defense light

2010Years7Month19Day, Guangzhou City Intermediate People's court after a day of aircraft around, my party Huang Liyi from Xinjiang Akesu to Guangzhou in prison. When they make a hurried journey without stop to the Guangzhou intermediate people's Court of the court, is already in the evening8O'clock. The judge acquitted Huang Liyi announced. Although I have no experience of sentencing procedure, but I'm from Huang Liyi's brother, sister, my phone line, feel their excitement. Huang Liyi's brother just said one sentence: "lawyer Yang, you succeed!"

  Eleven years ago, twenty-six year old Huang Liyi in prison, if not for today was acquitted of the crime, he will continue to serve in the Xinjiang desert prison, because of his11Be sentenced to years ago is life imprisonment. At this moment eleven years later, the thirty-seven year old Huang Liyi will never forget.

From the case of Huang Liyi correction, criminal defense lawyer work or play a great role. The case of Huang Liyi, after the three organs of the public prosecutor, the control method, is the court of first instance judgment to life imprisonment; is a chance to appeal, but by the second instance court dismissed the appeal, upheld; appeal is the last chance, then dismissed, but rejected the appeal notice only a piece of paper, no any legal analysis, without any reason. Therefore, Huang Liyi's case, if there is no lawyer help, help him continue unremitting complaint, Huang Liyi may be around to sit on. Therefore, we should never give up. If our defense lawyers have lost confidence, the case will never be corrected. Because China miscarriages of justice, if not the resurrection miracle, expect the judicial departments take the initiative to correct is almost impossible.

From what I handle criminal cases, criminal defense lawyer practicing risk mainly relates to investigate and expose the torture to extract confessions.

A lawyer to handle the case investigation and evidence collection, this is a lawyer's duty. But now the bad criminal defense environment, should make it into a problem. Many young lawyers are lawyers repeatedly told not to investigate and collect evidence, so as not to cause trouble and even in jail. Some famous lawyers not to investigation as experience to promote. However, if the Huang Liyi case not investigation and evidence collection of words, neither is the possibility of filing a case for retrial, nor were acquitted of the possibility of. Therefore, no investigation and collection of evidence, not the right choice for attorney.

Torture to extract confessions must be exposed, and only the defense lawyers have the conditions and ability. Expose torture to extract confessions is not an end in itself, the exclusion of illegal evidence is the objective. In a criminal case, if filled with a large number of illegal evidence, and the lawyer has to pay no heed, its laissez faire as a basis for a final decision, thus lead to the occurrence of miscarriage, defense lawyer is dereliction of duty. Therefore, when we complain about the public prosecutor, law department making the miscarriages of justice at the same time, we should also reflect on, as the defense lawyers did what? We should continue to do what?

    Zhou Ze lawyers issued a "criminal defense is dead" whining, and all the Guiyang case's lawyer, began the difficult appeal for his own party. Pu Zhiqiang lawyers in a court in Chongqing said: "the bad system, we could not take a long time".