August 13, 2012, by China Policy Institute
Swift justice and rough justice in China: criminal responsibility, the death penalty, and the Gu Kailai trial
By Jackie Sheehan.
For those familiar with the China’s criminal courts, the first response to Thursday’s seven-hour trial of Gu Kailai and Zhang Xiaojun for Neil Heywood’s murder was probably “What took them so long?” A Chinese murder trial with multiple defendants can be over in under an hour, as witnesses almost never attend court, police evidence of guilt is always accepted, and defence counsel, only present at all in a minority of cases, are usually limited to offering mitigating evidence and pleas for leniency.
This is what Gu’s locally-appointed lawyers (imposed in place of her original Beijing counsel) have been doing. We learned on Friday that her defence is that she was suffering from depression and had a mental breakdown last autumn in the days leading up to her poisoning of Mr Heywood. If the details of her mental state are true, she has my sincere sympathies, and if that is what it takes for the Chinese authorities to justify not executing her when she has confessed to deliberate murder, then I’m relieved (I’m opposed to the death penalty in all circumstances).
But I can’t help being reminded of the last Chinese trial involving a UK citizen which British consular staff were permitted to attend, that of Mr Akmal Shaikh, convicted of bringing four kilos of heroin into China and executed in December 2009. Mr Shaikh impressed virtually everyone who had contact with him after his arrest as being severely mentally ill and delusional, with the judge and prosecutors openly laughing at the bizarre statements he made at trial. Yet the Chinese authorities refused to have him assessed by a psychiatrist unless he first presented evidence of his mental illness; in order to get permission see a psychiatrist, he first had to have a psychiatrist’s opinion that he needed to see a psychiatrist.
In executing Mr Shaikh, the PRC disregarded the provision in Article 18 of the 1997 Criminal Law for “mental patients” either to be deemed not criminally responsible for their actions, or to receive a lighter punishment. Mr Shaikh was a very vulnerable man cruelly taken advantage of by the people who gave him drugs to carry into China. Representations from British diplomats that his mental illness should be taken into account were brushed aside by Chinese authorities determined to make him the last victim of the Opium Wars – to convince the world, as if anyone needed convincing, that the days were gone when British people could bring drugs into China with impunity.
Gu Kailai’s trial has been compared to that of the Gang of Four in December 1980. Since that show trial took place, many things have changed in the Chinese legal system, but some things have not. The conviction rate in the criminal courts remains at 99.1%, with a guilty verdict nearly inevitable once a suspect is charged and the police, not prosecutors, dominating charging decisions. Defence lawyers can be convicted of perjury if they challenge police evidence, e.g. if their client attempts to withdraw a confession obtained through torture, under the notorious Article 306, known as “Big Stick (dabang) 306”, of the Criminal Law.
If the acceptance of Gu Kailai’s defence meant that Article 18 was going to be respected more widely in China’s courts, that would be a cheering development. But all it really shows is that pre-determined verdicts in criminal cases in the PRC are still too often decided based on who the accused is and what outcome the political system needs, and not on the evidence.
Jackie Sheehan is Senior Fellow of the China Policy Institute and Associate Professor of the School of Contemporary Chinese Studies at the University of Nottingham.
Opinions expressed in the CPI blog do not represent the views of the China Policy Institute or the School of Contemporary Chinese Studies at the University of Nottingham. They are the personal views of the bloggers/authors.
I have submitted an entry on this outcome as well. I really appreciate your views on these matters and the passion in expressing them, Dr Sheehan. And I’m not in disagreement with them. The diminished responsibility mitigation seems like a weak aspect of the plea bargain – the lesser of two evils here – death or life imprisonment. A smart woman like her would know what is best to do for her in the situation. I can’t help but feel, as my entry stipulates, that she has had to resign herself to a pre-determined fate rather than a legitimate trial, in spite of rigorous following of proper court proceedings as reported in state media.
This trial is a sham, not for the reasons Jackie gives, but because Neil Heywood has been set up as a fall guy, to blame for his own murder, undertaken by the supposedly deranged Mrs Bo fearful that her 24 year old spoilt boy now living in the USA was at risk. Though what risk we are not told. Heywood may have been an opportunist go-between, facilitating the likes of Mrs Bo and many others to spirit money out of China, but he is hardly in a position to defend himself thanks to Mrs Bo and her lackey. No evidence was presented that Heywood threatened the younger Bo. And since when has an unspecified threat to another been a sufficient justification for murder in any legal system, let alone China’s? The whole purpose of this fanciful story is to justify leniency for Mrs Bo. As Jackie makes so clear, such leniency was not shown to Mr Shaikh, a person unable to defend himself as indeed is the deceased Mr Heywood. The trial is proof – as if any was needed – that the criminal justice system in China is a sham political tool at the best of times, with decisions made without reference to any consistent evidence or rules that might purport to balance ‘facts’ of the case as the word justice would require.