Western socio-legal scholars have increasingly focused their attention on cause lawyering.Footnote 1 While diverging in scope and nature, cause lawyering typically refers to lawyers who use their legal skills to pursue goals and ideals that transcend client services.Footnote 2 Cause lawyers are variously labelled as political, radical/critical, public interest, poverty, socially conscious and visionary lawyers,Footnote 3 and they face various political and institutional challenges.Footnote 4 Of most relevance to this study are the proceduralists, identified as one of Thomas Hilbink's typologies for cause lawyering.Footnote 5
Criminal defence lawyers have recently emerged as cause lawyers in China. They have been labelled as rights-protection,Footnote 6 rights defence/advocacy,Footnote 7 human rights/activist,Footnote 8 public interest,Footnote 9 and dissent/social justice lawyers.Footnote 10 Besides political and institutional challenges, Chinese defence cause lawyers run the risk of incurring criminal sanctions, yet many “tend to have the political savvy, connections and willingness to compromise” in order to remain effective and stay out of trouble.Footnote 11 Progressive elites represent such cause lawyers in China.Footnote 12 They possess highly liberal political values and motivations. Owing to their embeddedness in political and legal institutions, they are the ultimate insiders of the existing legal system, and thus are more effective as legal practitioners and reformers.
Following Hilbink's classification of cause lawyers, and Sida Liu and Terence Halliday's concepts of political embeddedness and liberalism, this study attempts to examine proceduralist and progressive elite lawyers in China. Collectively, we label these lawyers as progressive proceduralists. Using a high profile death penalty case – the Nian Bin 念斌 case – as an example, this study examines the motivation and strategies of the lead defence lawyer, Zhang Yansheng 张燕生, and analyses the effectiveness of her defence as well as the conflicts and dilemmas faced by the defence team.
Owing to the ever-changing nature of China's criminal justice system, many of the roles and functions of Chinese legal professionals are uncertain and underexplored. This inquiry is thus necessarily exploratory. Nevertheless, the case study approach offers a unique perspective through which to gain insights into the structural, institutional and individual factors that shape lawyers’ decisions and actions in capital cases. Besides the benefit of providing much needed context-dependent knowledge (particularly at the preliminary stage of an inquiry), the case study approach also serves as a useful tool for generating and testing hypotheses and generalizing through “falsification.”Footnote 13 The findings from this case study will thus help to clarify, if not dispell, several long-standing beliefs about the Chinese death penalty system and its professional actors.
Proceduralist Cause Lawyers
Hilbink proposed three typologies of cause lawyers: proceduralists, elites/vanguards and grassroots lawyers.Footnote 14 Grassroots lawyers view the legal system as ineffective or corrupt and so seek extra-legal means to advance a more fair and just system. Elite/vanguard lawyers view lawyering as a form of politics. They care deeply about substantive justice and question whether the distributive rules themselves are just (for example, is the torture law fair? Is the imposition of the death penalty just?). The elite/vanguards employ legal and non-legal means (for instance, political and administrative means or the media) to achieve their ends.
In contrast, the proceduralists view law and politics as being separate, with law assumed to be neutral, objective, rational and predictable, and therefore superior to politics. They generally believe in the fundamental effectiveness of the legal system to provide justice, more so than any other institution. Even if it is not the case at present, they still have faith in the system's future promise. Proceduralists also view the legal system as a source of social and political stability. They work on behalf of legality and primarily use litigation in courts, rather than non-legal means, to achieve their goals. Unlike the vanguards, proceduralists focus more on procedural justice, which here refers to the idea that all like cases be treated alike and all legal decisions be reached by following existing legal rules.Footnote 15 Proceduralists have a strong set of professional ethics. They turn to their fellow attorneys rather than the state or the grassroots for guidance. Their primary cause is not to challenge the system but to help individuals get the best outcome within the system. Despite this, proceduralists can still be cause lawyers because they “challenge the status quo,” fulfil “unmet legal needs,” balance “the scales of justice” and “hold the state to its promises” by recognizing and honouring rights.Footnote 16 In Indonesia and Malaysia, for example, proceduralist lawyers work to promote the procedural fairness of those countries’ institutions, whereas in Israel they routinely handle the conflict between the need to maintain national security and the defence of constitutional rights when dealing with terrorists.Footnote 17 These examples are useful when examining the Chinese case, as lawyers in these countries routinely challenge the autocratic state's power as they deal with inherently competing goals in the courtroom to ensure legal practice moves closer to its ideal of procedural justice. Moreover, by working within the system, proceduralist lawyers manage to minimize their own personal risk. In China, weak enforcement of legal rules in practice (such as in the continued, routine use of torture by the police despite it being banned in the Criminal Procedure Law, CPL hereafter) and flaws in laws and law-making (for example, only in 2012 was the evidentiary exclusionary rule stipulated in the CPL) provide ample opportunities for proceduralist lawyers to challenge the state's use of arbitrary power and hold it to its promises.
The Cuban experience perhaps is more instructive for China as both countries share similar political and legal characteristics. Owing to Cuba's code-based civil legal system, its channelling of social movements into officially endorsed mass organizations, and lawyers’ obligation to observe and strengthen socialist legality, there is little room for Cuban lawyers to use litigation to pressure the state into granting substantive rights.Footnote 18 Nevertheless, Cuban proceduralist lawyers can be successful in practice (as shown in part by Cuba's relatively high acquittal ratesFootnote 19) and instrumental in promoting legal and institutional changes, not through an outside strategy but by working in proximity to the state (for example, through professional legal organizations that help to shape the laws and ethics that govern legal practices).Footnote 20 Thus, Cuban proceduralist lawyers may serve as advocates for the development of socialist legality. To what extent Cuba's socialist legality resembles that of China is beyond the scope of this study. Nevertheless, the ideals of procedural justice and political embeddedness are relevant to the Chinese case as they both manifest in contemporary China.
Progressive Elite Lawyers
Two concepts in political-legal studies were borrowed by this study in order to construct typologies for Chinese defence lawyers, political liberalism and political embeddedness.Footnote 21
Political liberalism has its roots in the era of Enlightenment. John Locke's conception of the social contract summarized the basic contentions of liberalist ideals that each man has a natural right to life, liberty and property, and that the government must not violate these rights.Footnote 22 Political liberalists generally support the rule of law and representative democracy, and are against monarchy and dictatorship.Footnote 23 Liberalist thought emerged in China in the latter half of the 1990s, sparking the public's rights consciousness and awareness of the rule of law, and later laying the foundations for the rights defence movement.Footnote 24 The rule of law is still subject to debate; at a minimum it refers to rule by law, rather than by force, under which agents of the state must act according to law.Footnote 25 It is also a set of procedural constraints that call for the separation of various aspects of governance so as to limit arbitrary state power and political interference in legal affairs. China has made tremendous strides in building the socialist legal system since the 1980s. Equality before law is stipulated in the Chinese Constitution and more due process safeguards have been added to the CPL. Although under the current socialist political scheme it is unlikely that law will ever be placed above the state, building a legal system that conforms more with international standards seems a reasonable choice given China's globalizing economy and its political leadership's ambition to play a key role in international affairs.Footnote 26 Under these conditions, a definition of rule of law that fits this study would be a system of laws that aims “to protect both individuals and groups from being deprived of their rights without the opportunity to defend themselves.”Footnote 27
Politically liberal lawyers challenge arbitrary state power, call for judicial independence and follow legal procedures in their daily work. Here, proceduralism refers to the principle of legality, a set of procedural standards aimed at protecting citizens who are subject to the law from arbitrary or unpredictable treatment by the state.Footnote 28 Politically liberalist lawyers who pursue proceduralism hold the state to a set of procedural constraints to protect their clients' interests in the courtroom. In so doing, they engage in ongoing bargaining between the institutions of the party-state and law over reforms of the CPL and its interpretations.Footnote 29
In contrast, political embeddedness in this study refers to a spatially bounded relational concept that emphasizes lawyers’ proximity to the state as the way to recruit clients, to facilitate their practice and to overcome obstacles in their everyday work.Footnote 30 Politically embedded lawyers often have previous work experience in the state justice system. This experience becomes a valuable asset in their subsequent careers in criminal defence, enabling them to maintain strong institutional, structural or personal ties with the state agencies and actors that hold power in the legal system.Footnote 31 In the Chinese context, many politically embedded lawyers have previously served as Party cadres in the judicial and administrative bureaucracies. Liu and Halliday label Chinese criminal defence lawyers who possess high political liberalism and political embeddedness as “progressive elites,” as opposed to other types such as pragmatic brokers and grassroots activists who lack either the liberal values or political embeddedness.Footnote 32
China currently operates under a “one-party rule” political system, with a market economy subject to heavy governmental intervention and a weak judiciary fused to the state and embedded in and subordinated to other government bureaucracies. Lawyers face enduring institutional discrimination that “relegates them to a marginal status of outside interlopers.”Footnote 33 Criminal defence lawyers encounter even worse treatment; they are often regarded as an outside annoyance, a thorn in the side of the gong-jian-fa 公检法 (the police, procuratorate and court). Faced with such occupational obstacles and even personal risk, Chinese criminal defence lawyers have to tailor their defence strategies according to their political capital, habitus and structural positions. Progressive elite lawyers, who possess strong political capital and are deeply embedded in the state apparatus and the legal profession, are more likely to employ an inside strategy to solve their problems.Footnote 34 They often go directly to the gong-jian-fa and find it relatively easy to meet clients, gather evidence, access case files and persuade judges. As beneficiaries of the system, they are less likely to press the state coercive apparatus to exercise restraint.Footnote 35 In addition, progressive elites are more likely to be pragmatic reformers and seek to promote the rule of law from within the party-state. For instance, they advocated for stipulations regarding procedural safeguards to be included in the CPL. At the time of writing, ten amendments have been made to the original 1979 CPL, one of which was the 2012 amendment that significantly impacted the Nian case. At the micro level, progressive elites tend to focus on whether their clients are afforded fair procedural rights guaranteed by law so as to hold the state to its promises; at the macro level, they tend to focus more on improving procedural safeguards than on initiating fundamental changes to the legal structure. They are, in essence and in the Chinese context, very similar to the proceduralist lawyers described by Hilbink.Footnote 36 In this study, we collectively term these lawyers “progressive proceduralists.”
Given that political embeddedness is a spatial and relational concept, it only works well in the local context.Footnote 37 In death penalty cases in China, for example, defence lawyers operate within several contexts, including the local court where the case is initially tried, the capital city of a province where the decision is appealed, and the nation's capital, Beijing, where the death sentence decision is reviewed and approved by the Supreme People's Court (SPC hereafter). Each of these contexts could exhibit different characteristics that could impact judicial decisions. For instance, Chinese progressive elite lawyers, who are primarily concentrated in Beijing, may not have the same political influence outside Beijing, especially given the widespread problem of local protectionism in China. Even if they work in a location where they are highly embedded, they may at times have to redesign and adjust their strategies to work through, with, or against the system, depending on the issues.Footnote 38 Thus, although in theory the progressive proceduralists are expected to use inside strategies to seek institutional reforms and serve their clients, we should not rule out the possibility that they may be forced to employ an outside strategy (such as mobilizing the media or even international communities) to balance the power of the state. To what extent outside strategies are used and what purpose they serve may highlight differences between the progressive proceduralists and other types of cause lawyers (for example, the notable activist or grassroots activist lawyers) in China.Footnote 39
The Current Study
In light of the above review of cause lawyers, this study examines the motives and strategies of a specific group of case lawyers – death penalty defence lawyers – as progressive proceduralists in China. Specifically, we adopt a case study approach to describe the political embeddedness and liberalism of a specific defence lawyer in China and to analyse how both interact with the defence lawyer's motivation and strategies in a high profile capital case. This study aims to show how the strategies employed by a progressive proceduralist death penalty lawyer can work towards achieving three diverse ends: 1) advancing the client's interests; 2) protecting the lawyer's own professional reputation and personal safety; and 3) upholding the integrity of law and facilitating legal change. One of the advantages of a case study is that it generates context-specific knowledge. This analysis provides the specific contexts, conditions and dynamics of the defence lawyer’s coping strategies, and examines how these strategies interact with judicial decisions and the changing political and legal contexts in China.
Death penalty cases are unique owing to the severity of the sentencing, their rarity and their finality. Moreover, given the international abolitionist movement, the erroneous handling of such cases is much more likely to be scrutinized. Furthermore, any review of a particular death penalty case is likely to have an effect on other death and non-death penalty cases and potentially serve as a catalyst for legal reform.Footnote 40
The Nian Bin case spanned from 2006 to 2015. We used both Chinese and English keywords, including “Nian Bin” “Nian Bin case” and “Zhang Yansheng,” in online searches for relevant documents at baidu.com and google.com. We then screened the search results and sorted the data according to the following five themes: the Nian Bin case itself; the political embeddedness of lawyer Zhang Yansheng; Zhang's political liberalism; her motivation; and finally, her defence strategies. The results and analysis are presented below.
The Nian Bin Case
On 27 July 2006, two children from the same family, the Ding 丁 family, were found dead in Pingtan 平潭 county in Fujian province. The county police arrived on 28 July and identified the cause of death as poisoning.Footnote 41 The police investigated about ten people, examined the kitchen and took away items such as a metal cooking pot, water pot, rice-cooker, and leftover food. On 7 August, the police took away Nian's door handle for forensic testing, although no other door handles were removed from the crime scene. Laboratory results revealed a trace of trifluoroacetate, the same rodenticide that was found in samples taken from the victims’ stomachs, on Nian's door handle. Nian was taken into custody and questioned. It was reported that Nian confessed to poisoning the victims the following day and was detained on 9 August. According to the defence, Nian was tortured and forced to confess.Footnote 42 The police report stated that the motive for the poisoning was vengeance: Ding had taken customers away from Nian's business.
Nian's taped confession had to be authenticated by the Ministry of Public Security. However, the recording passed to the ministry by the Fuzhou Police Bureau had been tampered with. This “certified” confession tape was then used in court as a crucial piece of evidence to convict Nian. It was only at the final trial in 2014, when Nian was acquitted, that the Fuzhou police finally admitted that there was a gap of over two hours in the original confession tape. The gap, according to the defence, occurred when Nian bit his tongue in a suicide attempt and was further threatened.
In February 2007, the Fuzhou Procuracy formally charged Nian with poisoning. In March, the Fuzhou Intermediate Court (the lower court hereafter) held the first trial in this case, during which Nian recanted his confession, citing police torture. Nevertheless, he was convicted and sentenced to death in February 2008.
Nian's sister hired lawyer Zhang Yansheng, from the Dayu Law Firm in Beijing, to work on the appeal. The defence team's investigation revealed several inconsistencies in the state's case, such as an inconsistent timeline and mismatched, contradictory and forged evidence.Footnote 43 More importantly, traces of trifluoroacetate, the poison that the state had argued was the cause of death of the victims, were not found in key pieces of evidence such as the victims’ stomach contents.
In December 2008, the Superior Court of Fujian Province (the high court hereafter) rejected the lower court's ruling and ordered a retrial. In June 2009, the lower court resentenced Nian to death. In April 2010, the high court approved Nian's death sentence, and transferred the case to the SPC for the mandatory final review and approval. In August 2010, the SPC sent a judge to Fujian province to interview Nian and his lawyers. In April 2011, the SPC rejected Nian's death sentence on the grounds that “facts are unclear and evidence is not sufficient,” and sent the case back to Fujian for a retrial. In May 2011, citing the same reasons, the high court rejected Nian's death sentence and remanded the case to the lower court for another retrial. In September 2011, the lower court held a third trial and resentenced Nian to death on 24 November 2011. Again, Nian appealed.
In July 2013, the high court reviewed Nian's case again after a lengthy delay. Between 2011 and 2013, there were major changes to the CPL that would alter Nian's fate. Among the most important amendments to the CPL were the inclusion of the rights of defence lawyers to request evidence withheld by the police or the procuracy (Article 39) and to lodge a complaint against obstructive behaviour by the gong-jian-fa (Article 47); the evidentiary exclusionary rule (Article 54), which states that confession obtained through torture shall be excluded; the defendant's right not to self-incriminate (Article 50); the “beyond reasonable doubt” burden of proof (Article 53); the requirement for witnesses (including police officers) to appear in court to testify when evidence is disputed (Articles 56–57, 187–88); and the right of defence lawyers to present their own expert witnesses in court (Article 192).
These new rules dramatically changed the dynamics of the Nian trial and ultimately led to his acquittal. For example, during the July 2013 retrial, six experts for the defence submitted an expert opinion stating that the majority of the evidence was collected in violation of standard Ministry of Public Security procedures and that the police had fabricated some crucial pieces of evidence. This would not have been possible but for the new CPL stipulations. In early 2014, the police were ordered by the high court to turn in more “original” photos and data, which exposed contradictions in the testimonies given by members of the victims’ family, Nian and the police. Zhang's experts also testified that the police had tampered with laboratory samples and results.Footnote 44 Again, the new CPL amendments that stipulated that police officers had to testify in court and be forced to turn over all documents allowed this turn of events.
On 22 August 2014, the high court acquitted Nian of all charges and absolved him from any civil liabilities in this case. The court stated that there was not enough evidence to suggest that the victims had died as a result of poisoning by trifluoroacetate as there remained uncertainty over the source of the poison and how it was placed. In sum, there was not sufficient evidence to convict Nian and he was fully exonerated.Footnote 45 This set a benchmark in criminal sentencing and was hailed as “a miracle and a victory of the rule of law” in China.Footnote 46
Political Embeddedness of Lawyer Zhang
There are two elements to Zhang Yansheng's political embeddedness. The first is her previous work as a judge in the criminal court at the Beijing Intermediate Court. Consistent with the literature, Zhang's prior judgeship helped her with easier access to the gong-jian-fa when meeting clients and viewing case documents. It also enabled her to form a professional alliance in Nian's defence.Footnote 47 Her strategies of calling for judicial oversight when courts failed to take action and commending judges when they acquitted Nian were the manifestation of her years of experience on the judicial bench. Her previous work had given her a deep understanding of the difficulties and dilemmas faced by trial judges and courts in contemporary China. The defence tactics and skill employed by Zhang were certainly informed by her political embeddedness.
The second element springs from her membership of and key leadership positions in professional, governmental and community organizations. Her expertise and reputation are also widely recognized. She has been actively involved in the Beijing Lawyers Association and the All-China Lawyers Association. She was the inaugural legal advisor for the Beijing Haidian People's Government, and an honorary professor of the elite School of Law, Renmin University. Zhang has frequently featured in the media and has been honoured for her work – for example, she was named the “National lawyer newsmaker of the year” by Legal Daily (Fazhi ribao 法制日报) in 2003; one of the “Ten outstanding defence lawyers” by China Lawyers Magazine (Zhongguo falü ren zazhi 中国法律人杂志) in 2004; and the “Iron lady in criminal defence” (xing bian tieniangzi 刑辩铁娘子) by Law and Life Magazine (Falü yu shenghuo 法律与生活) in 2006.Footnote 48
Political Liberalism of Lawyer Zhang
Besides being deeply embedded legally and politically, Zhang possesses strong liberal values. There are different connotations of liberalism. Within China's socialist system, a radical liberal ideology opposes dictatorship and advocates representative democracy. In contrast, a more pragmatic approach of liberalism lies in the belief in the rule of law or, at a minimum, rule by law and equality before law. Zhang's liberalism appears to suit the latter, as indicated by the homepage title of her blog: “Let equality and justice shine on everyone.”Footnote 49 Zhang has visited Great Britain and the United States several times. She has participated in training workshops at the National Institute of Trial Advocacy in Colorado, attended a workshop on criminal defence sponsored by the American Family Trial Study Research Center at Harvard University, and has worked on a project regarding lawyer–client meetings and bail programmes. Given her higher education credentials and her interactions with Western counterparts, it is not surprising that Zhang identifies with the liberal values of equality and justice for all.
In practice, Zhang has actively worked to promote liberal ideals in the criminal justice system. First, she worked as a progressive reformer. Taking advantage of her institutional and professional networks, she pushed for progressive legal reforms. For instance, she was involved in the drafting of the revisions to the SPC's evidentiary exclusionary rules regarding illegal testimonies;Footnote 50 she gave a talk at a meeting between a special representative of the UN's Human Rights Committee Against Torture and lawyers from the All-China Lawyers Association; and she was commissioned by the Ministry of Justice to provide an expert opinion on lawyers’ involvement in death penalty cases.
Second, Zhang is an educator. Zhang has frequently given talks at universities and professional meetings and has taught at various workshops on legal defence skills sponsored by organizations such as the All-China Lawyers Association, the Ford Foundation, the Legal Aid Center of the Ministry of Justice, and the Canadian Bar Association. She is also the co-editor of a book on developing defence research skills. For Zhang, the education and training of future generations of lawyers is critical to building a legal system where values of legal integrity and justice for all are shared by all in the profession. The analysis below of two of the defence documents presented by Zhang in the Nian case demonstrate her skill and passion for professional integrity and justice.
Third, Zhang serves as a rights advocate. She has written blogs about the cases she handles (including the Nian case), has frequently discussed police torture, evidence fabrication and local protectionism, has taken part in media interviews and has called for legal reforms. She has also written open letters calling for political and professional oversight. All these efforts laid foundations for the Nian case.
Motivation
Zhang's biographical sketch indicates that she has handled various types of cases including criminal, civil and business cases. She does not seem to actively seek out particular types of cases that would serve her personal or political agenda.
Zhang's motivation and commitment to the Nian case evolved over time. Initially, the Nian case appeared to be just a normal case. Based on her professional judgement, Zhang believed that there was a good chance of getting Nian's death sentence overturned given the numerous inconsistencies in the police reports. The failed appeal to the high court was a major blow to Zhang, especially when she saw the emotional and financial tolls on Nian's family. Zhang grew closer to Nian's family and was encouraged by Nian's sister's determination to see her brother exonerated. In her own words, Zhang was “enticed by this case,” developing an emotional attachment and empathy for the family as they suffered hardship after hardship – Nian's two brothers had died of cancer several years before, his parents passed away during Nian's eight-year ordeal, and his sister became ill and had to quit her job to focus on the case and support Nian's children. Zhang felt a sense of responsibility towards the family and gradually reduced her legal fees. After 2010, she stopped charging fees and covered the costs of the case herself.
The longer she worked on this case, the more Zhang realized that the battle she was fighting was political rather than a battle for the truth. She formed an alliance with other lawyers, many of whom were considered to be “sticklers” (sike 死磕), that is, they were known for fighting for a cause. These lawyers worked for free and endured harassment, physical threats and sometimes even violence. During the final hearing of the case in August 2014, there were heated exchanges between the defence lawyers and the prosecutors. Afterwards, the defence lawyers were surrounded by victims’ family and prevented from leaving the courtroom.Footnote 51 Nonetheless, Zhang believed that Nian was framed to cover up judicial corruption and local protectionism. In the end, the fight turned into a “cause” in search of justice.
When asked what she had gained from the six-year ordeal, Zhang replied that she had learned to “keep her hopes up, believe in the cause, and be persistent.” She knew that fighting the system would be an uphill battle but had underestimated the difficulty and length of that battle. “Justice may come late, but it will come.” She hoped that this case would become a landmark case in China, and she called for courage, professional ethics and morality in the Chinese legal profession, rather than greed and submission to institutional corruption.Footnote 52
Existing literature on lawyers’ motivations suggest that Chinese lawyers are typically committed to the rule of law and professional responsibility, have a sense of justice and sympathy for ordinary people.Footnote 53 There are no clear, significant differences between cause lawyers and conventional lawyers regarding political values.Footnote 54 Zhang's motivation in representing Nian showed the basic qualities of professionalism, respect for the rule of law and sympathy for her client. Nevertheless, contrary to rights activist lawyers, Zhang did not choose the case because it fitted with her personal and political agenda. She developed extremely close, emotional ties with Nian's family, and exhibited tremendous tenacity and skill in fighting judicial corruption and pursuing justice throughout the case. Such behaviour perhaps deviates from that of “routine practitioners” in China, as illustrated by the strategic choices Zhang made, which were informed by her political embeddedness and procedural knowledge.Footnote 55
Defence Strategies
Before discussing Zhang's defence strategies, it is important to review the changing political and legal climate during the span of the Nian case (2006–2014). Two broad forces were at work, the first being political. The Nian case took place during the “strike hard” (yanda 严打) campaign of the 2000s, which, under the leadership of the-then secretary of the Political and Legal Commission (PLC), Zhou Yongkang 周永康, declared that all “murder cases must be cracked” (ming'an bi po 命案必破).Footnote 56 The PLC oversees all levels of the gong-jian-fa to ensure that Party directives are properly implemented. For example, in Fuzhou municipality, where the Nian case occurred, the government established “eight mechanisms” for investigating murder cases in 2005. At each government level, an official was responsible for clearing cases. The official’s job performance was quantified and the assessment was used for promotion or demotion purposes. All murder case interviews had to be recorded in order to prevent the suspect from recanting confessions and to ensure 100 per cent arrest and prosecution rates.
In this political climate, the Nian case was deemed a “must-solve” case, which explains why the Pingtan Police Bureau chief paid a visit to the crime scene. A special task force, led by the deputy chief and forensic science personnel and detectives, was quickly formed. The chief of the Fuzhou Public Security Bureau personally inquired about the case.Footnote 57 Within 12 days of the poisonings, the case was closed. This news was repeatedly broadcast by local television stations to boost public morale and instil confidence in the police.Footnote 58 It was hailed as an exemplary joint effort by the city, county and provincial police forces, and the case was viewed as one of the ten major criminal cases in 2006. Within a month of the crime, Pingtan county was allocated 56,000 yuan with which to reward personnel involved in cracking three major criminal cases within its jurisdiction, including the Nian case. The chief detective, Officer Weng, was promoted to lead the Criminal Investigation Unit. Fujian media stated that the appraisal and reward of police personnel involved in a criminal investigation on this “large scale and high level” was unprecedented.Footnote 59 The media did, however, warn that the race to close a case rather than find the truth, with political and financial rewards so closely tied to the case clearance rate, could lead to wrongful convictions.Footnote 60 This “strike hard” campaign, with its target of a “100 per cent clearance rate for murders,” was replaced by President Xi Jinping's 习近平 policy to prevent and correct wrongful convictions. Xi's policy eased the pressure on Chinese courts and allowed them to overturn prior decisions without suffering any political repercussions.
The second force came from the judiciary. Historically, presiding judges do not have the authority to rule in a case, particularly high profile cases. In death penalty cases, for example, it is the adjudication committee (shenpan weiyuanhui 审判委员会), which is made up of the court's leading personnel, that makes the final decision. This explains why the rulings in Nian's court cases were identical, although he was tried by three different judicial panels in the lower court. Moreover, there is a lack of checks and balances both within the judiciary (for example, the high court rarely rejects the lower court's decisions), and the gong-jian-fa system. Consequently, errors made by the police in the Nian case were often either ignored or covered up by the procuracy and the court.Footnote 61 Furthermore, the current system does not provide incentives for individuals/institutions to correct errors; in fact, they may suffer political or institutional consequences for doing so.Footnote 62 To be sure, the 2012 CPL amendments did not provide solutions for all of these political and institutional dilemmas. Nevertheless, by introducing the exclusionary rule, requiring police officers to testify in court, allowing the defence to hire its own expert witnesses and adopting the “beyond a reasonable doubt” standard, the amendments proved to be a game changer in the Nian case.
It was under these political and legal circumstances that Zhang had to operate to save Nian's life. The defence strategies are summarized below.
Sticking to the rules and legal procedures
We obtained two defence opinions. One was submitted to the lower court during its third trial on 7 September 2011, after the SPC rejected Nian's death sentence and ordered a retrial.Footnote 63 The other was presented to the high court on 10 July 2014 during the final retrial that acquitted Nian.Footnote 64 Both defence opinions contain approximately 10,000 words. They document flaws in the prosecution and contradictions in the evidence, and state the reasons why Nian was wrongfully accused.
In the first opinion, the defence cast doubt on the facts about the poisoning (for example, the source of the poison, the method and timing of the poisoning, the lack of corroborating evidence); raised questions about police torture and the fabrication of evidence (for example, the tampering with the confession tape, concealment of exculpatory evidence, and the changing of witness testimonies to frame Nian); challenged the authenticity and authority of certified laboratory results; and questioned other key evidence in the state's case (for example, the water used to cook the dish, the cookware used, and the contradictory testimonies of neighbours and the man who allegedly sold Nian the poison).Footnote 65
In the second opinion, the defence documented the oral testimonies of over a dozen witnesses in court, including those of police officers and expert witnesses. It also cited the “beyond a reasonable doubt” standard for the first time since it was introduced in the 2012 CPL to urge the court to acquit Nian. Once again, the defence team pleaded with the court to focus on a number of weaknesses in the evidence, including the doctored confession tape, inconsistent testimonies of police officers who attended the interrogation, and contradictions between the details of the commission of the crime as described in Nian's “confession” and evidence obtained from the scene and other witness testimonies.
Moreover, the final defence focused more on forensic evidence, which took up nearly 70 per cent of Zhang's defence arguments. For example, the defence raised questions about the integrity of the laboratory results relating to such issues as how samples were gathered, messy labelling and bookkeeping, and the authenticity and accuracy of the laboratory results provided by the Fuzhou Police Bureau. Defence experts from Beijing and Hong Kong questioned the laboratory results and argued that the spectrometer graphs showing analyses of the blood taken from the victims’ hearts and vomit were derived from the same sample, and that some of the spectrometer findings were dated before the tests were performed. Meanwhile, the defence experts’ own tests on the substance retrieved from the victims’ stomachs did not find any trace of trifluoroacetate. Further, the forensic experts for the defence disagreed with the state's experts about standard testing procedures and the reliability of the laboratory results. They also provided an alternative explanation for the cause of death and urged the state to pursue the real criminal.Footnote 66 Throughout the proceedings, Zhang assiduously followed the evidentiary and procedural rules in relentless pursuit of the facts, thereby gaining herself the nickname “stickler.”Footnote 67
Building a professional alliance
After Nian was given a second death sentence in 2012, Zhang issued a public and open plea to her lawyer colleagues for help. More than 40 lawyers from all over the country answered her call. Zhang assembled a defence team of 29 core members from 11 municipalities and provinces. They split the responsibilities for the defence among themselves, used their expertise to consolidate support and called for institutional oversight over gross judicial corruption in Fujian province. Later, forensic experts from Beijing and Hong Kong were brought on board, and their expert opinions helped to exonerate Nian.Footnote 68
Challenging wrongful actions but not institutional legitimacy
In both defence opinions, Zhang and her team urged the court to do the right thing. In the first opinion, the defence pointed out that Officer Weng had violated both the police professional code of conduct and the law by fabricating key evidence in order to frame Nian. The defence put pressure on the court to make the right decision, and appealed to the judges’ sense of justice using slogans such as “Sacrificing an innocent life does not compensate for the loss of two children's lives” (shajijinghou 杀鸡儆猴), and “This is not a complicated case. Any individual with a sound mind can reach a correct verdict. It just takes a little courage.”Footnote 69 The defence also put the entire court leadership on notice and pointed out that “the core members of the court leadership” would ultimately be held accountable for the decisions in all three trials.
In the second opinion, when the stakes were higher, the defence was more critical of the courts and accused both the lower and high courts of ignoring overwhelming evidence of fabrication and contradictions out of self-interest and to protect the existing bureaucratic power structure. It was understood that “if the case were overturned, all related personnel would be questioned for their dereliction of responsibilities.” The defence, however, never questioned the fundamental legitimacy of the political/legal system. Instead, the defence cited a recent SPC directive that focused on correcting erroneous cases, as well as Xi Jinping's campaign to ensure that every citizen benefits from the fairness and justice of the legal system, to urge the court to follow the law and not yield to political pressure or self-interest. At the end of its closing statement, the defence commended the presiding judges by name for overturning death sentence decisions in previous rulings, and then appealed to the court one final time: “in this country, law needs to be upheld by each and every individual person … Justice is already overdue in this case, but it won't be absent.”Footnote 70
Mobilizing the media and public opinion
In China, defence lawyers have a low status and their resources remain scarce. Zhang's team turned to the internet to gain public support in the Nian case, posting blogs that pointed to suspicious evidence, fraudulent police behaviour and local protectionism.Footnote 71 Zhang also raised the profile of the case in several media interviews. During the lengthy court delays in 2014, Zhang publicized an open letter to the National People's Congress (NPC), cited President Xi's slogan of “justice for all” (gongpingzhengyi 公平正义), and called on the NPC to reprimand the SPC and force it to correct the errors made by the Fujian courts. Zhang accused the Fujian police of professional misconduct and the high court of derelictions of duty, and urged the NPC to stage an external intervention. On 2 July 2014, one month before the final verdict that would exonerate Nian, Zhang posted a blog demanding an investigation into Officer Weng for his involvement in the fabrication of evidence and a disciplinary investigation into Fujian's corrupt judicial system.Footnote 72
In sum, Zhang's strategies primarily focused on holding the state accountable for the law through authenticating evidence within the bounds of the existing procedural laws. She was critical of the police and the courts for their mishandling of the evidence but was affirmative of the political and legal institutional legitimacy.
Conclusion
This study analyses the Nian case from the cause lawyering perspective. The term “progressive proceduralist” is used to capture Zhang's motivation and defence strategies. Zhang had two primary causes: 1) to obtain the best outcome for her client by meticulously following the procedural rules of the law; and 2) to promote legal reform by advocating progressive liberal ideas and through her involvement with universities and the bar association, both in China and abroad. Each aspect of her work helped facilitate the other. For example, the amended CPL, for which Zhang campaigned, helped to exonerate Nian; and in turn, Nian's final acquittal, for which Zhang fought so relentlessly, set a benchmark for interpreting and implementing new rules such as “beyond a reasonable doubt” and the exclusionary rule.
Zhang resorted to both inside (for example, creating a professional alliance of lawyers and forensic experts) and outside (for example, publishing an open letter to call for the NPC's oversight of the judiciary, and media interviews) strategies. These defence strategies set her apart from grassroots and rights activist lawyers, who primarily have to use outside strategies owing to their lack of political embeddedness.Footnote 73
Our analysis offers several lessons for the handling of death and non-death penalty cases and for reform of the criminal justice system in China. First, there is a “winning” path to exoneration in China. In the past, exoneration, particularly in death penalty cases, primarily relied on unexpected and often fortuitous discoveries of the truth (for example, a “dead” victim was found alive, or the real criminal was caught and confessed). In cases where evidence is insufficient and the facts are unclear, courts typically meted out a lighter sentence to save face, appease public indignation, or as a precaution.Footnote 74 The Nian case showed instead that if scientific/forensic methods are employed and evidence is rigorously scrutinized in court, a not-guilty verdict may be obtained, even if the truth is not known. In a way, this case falsifies the belief that the presumption of innocence is not suitable for a crime control model (such as China's), and it sets a precedent for interpreting and applying the newly adopted “beyond a reasonable doubt” standard in China's CPL.
Second, this case falsifies a notion that Chinese criminal defence lawyers always play a subordinate role in the criminal justice system owing to the country's inquisitorial system, their low social status and their weak political power. In the Nian case, Zhang played an indispensible role in Nian's final acquittal. Without her dogged determination, it is unlikely that Nian's four death sentences would have been reversed. It seems that the uniqueness and strength of Zhang's representation stem from her political liberalism and embeddedness and her carefully crafted strategies. It takes experience, skill, connections, professionalism, compassion for the victim and a belief in justice to survive the ups and downs throughout the rollercoaster ride.
Third, the analysis of the Nian case suggests the importance of procedural safeguards in criminal cases. For example, the SPC's final review and approval of death sentence cases was crucial in preventing Nian from becoming a victim of local protectionism and corruption. The long history of local protectionism and corruption in China is partly owing to unreasonable top-down directives such as “all murders must be solved,”Footnote 75 and also to a lack of training and resources for more effective police investigative work.Footnote 76 Nian was framed and forced under torture to confess to a crime he did not commit; using torture to extract confessions appears to have been tolerated at all levels of the gong-jian-fa in Fujian province. To curb future wrongful convictions and reduce local political interference, the SPC passed a regulation in 2016 to establish circuit courts to review appeal cases.Footnote 77 The Nian case provides additional empirical support for this initiative.
Fourth, the success of the Nian case also lies in the pro bono work of Zhang and her legal team who volunteered their time and donated money to support the case. While capital offenders are guaranteed access to state legal aid services under the current law, the quality of these services remains largely unknown. In this vein, NGOs such as China Against the Death Penalty (Zhongguo sixing guanzhu 中国死刑关注), established in 2010 in Beijing, could fill the void by providing free legal aid to capital offenders.Footnote 78 While it is not expected that all defence lawyers pay for their clients’ services, a lesson from the Nian case is that a trusting rapport between the lawyer and the client's family is crucial in a long fight when the defendant's life is at stake. In China, family members provide indispensable moral and financial support for the defendant. Their efforts, both online and through petitions (including legal and extra-legal petitions), exert significant political pressure on local officials.Footnote 79
Finally, this study provides a lesson for cause lawyering in China. Lawyer Zhang stayed in proximity to, and was in allegiance with, the state. She affirmed the legitimacy of the current political and legal institutions by citing President Xi's policy and praising the judges’ courageous decision, and was lauded as a “stickler” who fought for “the rule of law.”Footnote 80 However, the state news agency, Xinhua, quickly reminded the “sticklers” to conform to the socialist principles of the rule of law and not to fight on the opposite side of the government.Footnote 81 Zhang perhaps recognized her vulnerability as a private criminal defence lawyer within a totalitarian political system. This partly explains why she stayed away from the final hearing when the ruling was announced and told the media to give credit to the judges.Footnote 82 Zhang, understanding that “the nail that sticks up mostly gets hammered down” (qiang da chutouniao 抢打出头鸟), recognizes that achieving small wins, such as winning the case for her clients, challenging local protectionism and corruption and holding the state to its promises by delivering legally prescribed rights to individuals, may be more effective than going for one big win – overturning the institution and political system – under the existing Chinese system.
Biographical notes
Hong LU is a professor at the University of Nevada, Las Vegas. She is the co-author of Punishment: A Comparative Historical Perspective (Cambridge University Press, 2005), China's Death Penalty: History, Law and Contemporary Practices (Routledge, 2007) and China's Drug Practices and Policies: Regulating Controlled Substances in a Global Context (Ashgate, 2009). She is also the co-editor of Jurisprudence (Renmin daxue chubanshe, 2012, in Chinese) and The Death Penalty in China: Policy, Practice and Reform (Columbia University Press, 2016).
Tereza TREJBALOVA is a PhD student of criminology and criminal justice at the University of Nevada, Las Vegas. Her research interests include the death penalty in the US, Africa and Asia, male victimization and trauma, women in corrections, and human rights.
Bin LIANG is a professor at Oklahoma State University-Tulsa. He is the author of The Changing Chinese Legal System, 1978 – Present: Centralization of Power and Rationalization of the Legal System (Routledge, 2008), and co-author of China's Drug Practices and Policies: Regulating Controlled Substances in a Global Context (Ashgate, 2009). He is co-editor of Jurisprudence (Renmin daxue chubanshe, 2012, in Chinese) and the Death Penalty in China: Policy, Practice and Reform (Columbia University Press, 2016).
