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    Giving China’s Death Row Inmates a Second Chance

    The Legal Aid Law passed by China’s legislature in August 2021 requires justice departments at the county-level or higher to establish legal aid agencies.
    Apr 16, 2023#law & justice

    Death row convict Wang Xiangxiang was given a second chance to plead his innocence at the highest court in China after finding a lawyer who would defend him pro bono. The Supreme People’s Court disapproved his sentence after reviewing the case and sent it back to the provincial high court for a retrial due to “unclear facts and insufficient evidence.”

    After taking the case in January 2019, Wang’s lawyer Xie Tongxiang received the top court’s decision four years later in February and learned that Wang’s anklets had been removed — a sign that he has returned to being a suspect in the case of a double murder.

    Xie’s law firm Beijing Junshu Law Firm is known for providing free legal services to defendants in death penalty review cases — a process that requires death sentences given without reprieve be reported to the Supreme Court for approval before execution.

    Pro bono services are vital in China, where many people cannot afford to pay lawyers. Firms like Beijing Junshu have been offering public interest services to clients in recent years, but their reach is limited.

    A search on the official online portal of court documents, China Judgments Online, shows just seven out of 741 publicly available death penalty review cases between 2013 and 2022 were disapproved by the Supreme Court. The verdicts shown online are not a comprehensive list of all death sentences given out.

    To try and address the lack of access to legal services, China enacted the Legal Aid Law in January 2022, establishing a national system to provide pro bono services for citizens in need. The rules include a clause for death penalty review cases, requiring justice departments to notify legal aid agencies to assign lawyers to the defendants when requested.

    A compulsory legal aid defense system has the potential to prevent procedural injustice in capital punishment cases, said Wu Hongyao, director of the National Institute of Legal Aid at China University of Political Science and Law, as it guarantees all defendants the right to defense, regardless of their financial situation and crime.

    With the full implementation of the system for death penalty review, the participation of lawyers in these cases will gradually become a regular litigation activity, Wu said, urging the Supreme Court to provide full protection of lawyers’ rights, “from the point of accepting case material to the final delivery of litigation documents.”

    But after more than a year since the law was introduced, what effect has it had?

    Achievements and Challenges

    Following the law’s implementation on Jan. 1, 2022, the Ministry of Justice established a legal aid center for death penalty review cases, which is responsible for pooling eligible defense lawyers and assigning them upon requests.

    Ten lawyers from Beijing Yingke Law Firm have joined the pool and handled 21 death penalty review cases in 2022, the firm’s legal professional committee director Zhao Chunyu said during a forum in February.

    The quality of legal aid for death penalty review cases is “significantly higher” than that of other cases, she said, as the new system has “relatively complete standards and smooth procedures.”

    Another attorney in the pool, who wished to stay anonymous, told Caixin that the justice ministry set clear guidelines on lawyers’ workflow to ensure case handling quality. He added that the state legal aid system is an important manifestation for actively safeguarding defendants’ right to defense — if the lawyer can find any circumstance that could mitigate the sentence, they could save a person’s life.

    Despite the efforts, the process is plagued by a lack of access and transparency, according to defense lawyers.
    For them, the defense of death penalty review cases is similar to the preliminary litigation process, which requires reading files, meeting with clients and submitting defense opinions. But many attorneys say they are stuck at the outset when trying to access pertinent information, such as procedural details about which court division will handle the case, as well as reading and copying case files.

    During the pandemic, it sometimes took the Supreme Court several months to arrange for the reading of case files, said Zhang Yu, a partner at Beijing Shangquan Law Firm, when presenting a report in February on the firm’s pro bono project for death penalty review cases.

    The report also found the time given to lawyers for submitting their commission requests and defense opinions to be unrealistic given that it often takes a long time for a case to be transferred between the Supreme Court and the high courts.

    In addition, defense lawyers’ opinions are not always reflected in Supreme Court decision documents, despite the Legal Aid Law requiring the judgment document of a death penalty review case to state the name of the defense lawyer, their law firm and their opinion.

    Several lawyers told Caixin that a simple statement that “the defense lawyer’s opinion was heard” is included in the judgment document without further elaboration, making it difficult for lawyers to assess the impact of the defense on the outcome of the review.

    Legal aid system evolution

    China first began to explore the legal aid system in the 1990s, with amendments in the Criminal Procedure Law stating courts may appoint lawyers to people with financial difficulties, disabilities, or who are likely to be sentenced to death — the first time that the term of “legal aid” appeared in Chinese legislation.

    A 2012 revision of the law made it compulsory, while expanding the scope of legal aid service to the investigation, review, and prosecution stages in addition to trial stage. It also added that the Supreme Court shall consult with defense lawyers for death sentence review cases if the defendant requests it.

    Since then, firms including Beijing Junshu and Beijing Shangquan have been providing pro bono services. In March 2021, Beijing Shangquan launched a project with the Legal Aid Research Institute of China University of Political Science and Law, where it provides defendants pro bono legal services while the institute subsidizes the lawyers.
    In August 2021, the Legal Aid Law was passed by China’s legislature, requiring justice departments at the county-level or higher to establish legal aid agencies, which will be in charge of assigning lawyers to defendants in need.

    The number of people on death row in China is considered a state secret, but Chinese academics estimate that the number of death sentences handed out has dropped sharply since the Supreme Court took charge of all reviews in 2007, down from tens of thousands to several thousand in 2016.

    The rate of approval of the death penalty at the review stage is greater than disapproval, at less than 1%, according to the China Judgements Online search data.

    However, there are multiple factors to the approval rate, say lawyers, including that the cases have gone through two trials already, therefore there is less chance for mistakes, and because typically a long time has passed since the beginning of the case it’s less likely for the Supreme Court to overturn facts.

    In the past two years, of the 31 cases that Beijing Shangquan took on, 17 of which were assigned by the justice ministry in 2022, one death penalty was disapproved by the Supreme Court. Three have been approved, while the rest are still in the review process.

    Getting off death row

    Wang Xiangxiang, a native of Suzhou in East China’s Anhui province, was accused of killing two people who were his creditors by speeding a car into a deep pond in 2015, drowning the two while he escaped. The high court in Anhui found Wang guilty of intentional homicide in 2018 and sentenced him to death.

    The family of the now 33-year-old Wang reached out to Xie for help, knowing Beijing Junshu has a reputation for handling death penalty review cases. Xie took the case because it matched his two criteria: the defendant’s family had financial difficulties, and some facts of the case claimed by the prosecution were doubtful.

    Xie found the claim that Wang drove a car at 120 kilometers per hour on a mud road where the incident happened implausible, while the state of the car windows and of the victims didn’t match what the prosecution alleged had happened before the drowning.

    “A person only lives once. To sentence a person to death must meet the standards required by the Criminal Law to prevent wrongful death,” Xie told Caixin, adding that the public prosecutor is responsible for checking the facts of the case, while the defense lawyer is responsible for finding out the doubts and guaranteeing the defendant’s right to a fair trial.

    The case is currently pending retrial at the Anhui Provincial High Court.

    Reporters: Qin Jianhang, Tan Haiyan, and Kelly Wang; editor: Jonathan Breen.

    This article was first published in Caixin Global. It is republished here with permission.

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