Rough Justice Awaits Gu Kailai
Jul 31st, 2012 | By USAsialawNYU | Category: Jerome A. Cohen's Blog, Publications
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This article was published in the South China Morning Post on August 1, 2012 under the title “Rough Justice Awaits Gu Kailai.” It was published in Chinese in Taiwan’s China Times on August 2nd, 2012. Illustration from SCMP.
By Jerome A. Cohen
In 1998, Gu Kailai, already a successful lawyer married to then rising political star Bo Xilai, published a book about the American legal system. She praised the mainland’s swift and certain death-penalty prosecutions of alleged murderers, in contrast to the lengthy, exhaustive scrutiny that capital prosecutions are subjected to in American courts.
Gu undoubtedly never thought that she might become a world symbol for the failings of the country’s criminal justice. Yet, her forthcoming trial in Hefei, for the murder of Briton Neil Heywood, is sure to focus international attention on the unfairness of prosecution on the mainland.
The crime occurred in Chongqing. Why is Hefei, the capital of remote Anhui province, the place of prosecution? One can understand why a Chongqing trial would raise many doubts about its fairness, with the case being handled by prosecutors and judges who may have been appointed, promoted or adversely affected during her husband’s reign of terror as Communist Party secretary there. But why Hefei rather than a dozen more legally sophisticated jurisdictions?
Why was Gu indicted only for murder and not for the secret and presumably illegal international financial transactions that authorities say caused a rift between her and her victim? Would the latter implicate her still influential husband, whose fate has yet to be determined by the disciplinary commission that has detained him incommunicado for more than four months? Will corruption charges be the subject of a separate or joint trial of the spouses?
What kind of trial can Gu and her present co-defendant, a former assistant, expect? Will it be open to the public and foreign and domestic media? Thus far, the indictment has not been released and we do not know whether the trial has been officially characterised as secret. It is likely to be closed if the authorities believe there might be a risk of disclosing, for example, either how the defendants allegedly obtained the cyanide that reportedly killed their victim or lurid details of personal and business relations among Bo, Gu, Heywood and others. An open trial might also risk a defendant’s revealing emotional outburst.
Will the accused have capable, independent defence counsel? They have been denied the right to select their own lawyers. Their families retained experienced Beijing attorneys many weeks ago, but neither lawyers nor family members have been allowed to contact defendants. Instead, Hefei authorities have reportedly appointed local lawyers, who are plainly under their control and can be relied on to follow orders. This is common practice in “sensitive” mainland cases, including that of Chen Guangcheng’s nephew, Chen Kegui, for attempted murder.
To be sure, even a courageous, competent counsel’s role would be severely limited. Prosecution witnesses rarely appear in mainland criminal courts. Instead, prosecutors simply read witnesses’ pre-trial statements into the trial record. This prevents defence lawyers from exercising their right of cross-examination. Moreover, if prosecution witnesses do not appear, judges often refuse to allow defence witnesses to do so, sometimes claiming, ludicrously, that it would be unfair to hear from one side’s live witnesses but not the other’s.
Moreover, it would be challenging for lawyers to prepare a defence in the brief period they have apparently been allotted before trial. Government investigators and prosecutors have been preparing their charges for months while defence lawyers in this complex capital case seem to have been appointed very recently. Even if given pre-trial access to the prosecution’s witnesses and evidence, which is unlikely, if, as expected, the trial opens soon, defenders cannot possibly confront the prosecution on a level playing field, especially since meetings with their clients will have been limited in time and closely monitored.
We do not know whether defenders will be allowed to argue in favour of not-guilty verdicts or merely restricted to pleading mitigating circumstances that might lead to reduced sentences. Widespread rumours that Gu has long suffered from depression suggest that her lawyers might seek a judgment of diminished responsibility based on mental illness. Although mainland courts seldom find murder defendants not guilty by reason of insanity, they sometimes sentence the mentally ill to life imprisonment or 15 years rather than death.
Gu is more likely to receive a death sentence subject to two-year reprieve of execution, a unique mainland punishment that is converted to a life sentence if the defendant does not intentionally commit an additional crime during the reprieve. Although the official announcement of her prosecution did not mention mental illness, it did hint at the existence of another possible mitigating circumstance by stating that Gu committed murder to protect her son, whose safety had allegedly been threatened by the victim. She might also “demonstrate merit” by becoming a prosecution witness against her husband and others.
Whatever her sentence, a defence appeal from the Hefei Intermediate People’s Court to Anhui Provincial High Court is unlikely to alter it. Indeed, the court may well secretly direct the lower court trial. In any event, since the sentence will be determined politically, amongst Beijing’s highest leaders, it will not be subject to change, even by the Supreme People’s Court.
One wonders if Gu still harbours doubts about the protections accorded US death-penalty defendants. Perhaps she now takes more seriously the admonition of Mao Zedong – no amateur when it came to killing – that “people’s heads are not like leeks. When you cut them off, they will not grow again”.
Jerome A. Cohen, a law professor at NYU and co-director of its US-Asia Law Institute, is also adjunct senior fellow for Asia at the Council on Foreign Relations. See www.usasialaw.org
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Ms. Gu is a lawyer herself. She once wrote a sold-out book on winning a case in America. It is doubtful whether she actually wrote it herself. In China, celebrities like Gu hardly had time to write any thing at all. Also bearing in mind, since this trial is 100% political in nature, those professionals engaged in prosecution, defense or judging are in the show business. What you did not mention may already be happening behind the scene: Ms. Gu and her cohorts are very busy at this moment lobbying, negotiating, bargaining or even threatening to have a verdict most favorable to her. Another matter not mentioned is how other high-ranking leaders may be incriminated in her exposure. If Ms Gu is in possession of any information which she may expose and cause great damage to those who are in power, something unexpected may happen. I would not think the out-come is as stone-cast as Prof. Cohen opines.
According to Gu’s family, she was suffering from severe form of depression. I am not sure whether the defense of mental illness or competence to stand trial is available to Gu? Under what circumstances can her defense lawyer raise such a defense? Why is Gu’s family saying to the public and the media that she was suffering from depression if she is not trying to establish an argument at the trial such a defense or even a mitigating circumstance.
Her trial starts on August 9th at Hefei. British Consular officers will be allowed to attend. However, it is reported that it will be open to the public but all seats will be taken.
Procedurally the trial will be highly irregular to serve a political agenda. Contrary to what you opine, there is a school of thought saying Ms Gu may have a soft landing, be sentenced to imprisonment for 15 years, but in fact being locked up for 7 to 8 years, in a special custodial institution. If Bo still retains some residuary power in the struggle, she may even be released sooner and the custodial conditions will not be harsh. The British diplomat will not see any real trial because there will not be any trial where evidence or testimony will be presented or contested. Justice is “perceived” to be served with Chinese characteristics. The only thing that matters is that the politicians are happy and China’s face is saved in front of foreign devils.
A criminal trial of this political nature is not to do justice or even seen to do justice. it serves a political agenda which in this particular case: placate the foreign devils, go through the motion so that the political power struggle will come to an end, save face for the country and last and the LEAST: let Gu see the result of her action as a punishment.
The significance of permitting British diplomat to attend the hearing is that the show factor is emphasized. Not losing face in front of foreigners is key. The Judges and legal representative have to behave with decorum. More symbolic than real. Since a guilty verdict is already a foregone conclusion, the other procedural niceties are for decorative purpose. I beg to differ that justice will not be rough by Chinese standard.
The two lawyers representing Gu have been approved by the Political-legal Committee of the Department of Justice which controls the bar association. They know what are politically sensitive questions not to ask in Court. Also in a trial, criminal procedure permits tendering of evidence by declaration. Witnesses need not appear to be cross-examined. Hence no court room drama for sure. Gu’s son is tender his declaration to court. He is reportedly living overseas.
This saga should be made into a Hollywood movie. May be Professor Cohen could be the director.
there is one allegation that the defendant who appeared in the Gu trial was not Gu. If this allegation is true, what can you really believe in China?
Gu reportedly has Singapore permanent residence and her son studied in the best schools overseas. Bo was trying to take his assets overseas. This case illustrates and exposes how the high-ups among the Chinese Communist Party on the one hand praising patriotism and on the other hand trying to get the hell out of the country. How do you expect them to convince the ordinary folks to listen to them. I disagree that Gu would receive rough justice at all. She is probably laughing her way to her comfortable prison cell and thinks what kind of treatise Prof. Cohen is writing and deluding himself.
The process may be rough by the NYU law school criminal procedure professor’s standard, but Gu may be highly satisfied with the result. Gu could get away with murder and live a comfortable life thereafter. How could she complain? If she lives in another form of society, she has to face the electric chair or the guillotine.
Prof. Cohen: You missed the mark. Mrs. Gu is laughing her way to custody. She will be out in no time. The statement about her mental condition is to pave her way for medical parole. At least one person disagrees with your using the word: rough. Mrs. Gu.
Have you seen in any court in any part of the court that a convicted person openly expressed satisfaction to the sentence of suspended death penalty. Only in China.