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Tuesday, Sep 9, 2014

Asia

Wrongful convictions overturned as Chinese laws progress

China Daily/ANN | Tuesday, Sep 9, 2014

Nian Bin, who was acquitted and released on Aug 22 after being wrongly convicted four times, receives treatment at a Beijing hospital earlier this month.

When lawyer Gongsun Xue heard that Nian Bin, a man on death row, was acquitted and released on Aug 22, she felt a huge sense of relief.

"I was preparing materials for another trial at that time but couldn't concentrate until I got the good news," said Gongsun, who was one of the lawyers who represented Nian.

The Fujian provincial high court acquitted Nian eight years after he was jailed for poisoning four people, two of whom died.

The court overturned the grocery shop owner's 2008 murder conviction, citing insufficient evidence. It was the final ruling after four guilty verdicts and subsequent appeals.

Nian is undergoing physical checks in a Beijing hospital and said he is preparing to ask the State for compensation after consulting his lawyers.

Lawyers like Gongsun said the case marks the progress of Chinese laws and trials.

Sun Jungong, spokesman for China's top court, cited Nian's case as a good example for building the country's judicial credibility. Zhang Yansheng, another lawyer handling the case, said that it took a long time to be resolved but the acquittal was very significant.

Nian's case would help to reduce wrong judgments but other legal problems like torture in interrogation and the use of credible evidence still need to be urgently addressed, Zhang said.

ACCUMULATED PRESSURE

Nian Jianlan burst into tears in the court's public gallery when she heard that her younger brother was declared innocent.

She called lawyers Gongsun and Zhang. All three women cried, saying it was a release of pressure that had accumulated in the past eight years.

On July 27, 2006, four people in Pingtan county in Fujian province, three of them children, fell ill while eating dinner. Two of the children later died.

Their neighbour Nian Bin, then 30, became a suspect in the case because he was not on good terms with the victims' family.

In February 2008, Nian was sentenced to death by the city's intermediate court. Nian appealed to the provincial high court but was unsuccessful.

His death sentence was not approved after it was sent to the Supreme People's Court for review in 2010. The top court ruled that the facts were not clear and the evidence not sufficient.

But Nian still got the death sentence when the intermediate people's court reheard his case on Nov 24, 2011.

"I came near to a breakdown at that time but my lawyers encouraged me, helping me get through the tough days before the acquittal," Nian Jianlan said, recalling the first time she met Zhang.

After Nian Bin was sentenced to death in 2008, his sister heard that Zhang had a good reputation in handling criminal defence, so she headed to Beijing and asked the lawyer for help.

Zhang raised a question within 15 minutes of reading the case: Why had the courts mentioned "poisoned water", while clearly identifying a "kettle" as the source of the poison? They did not seem to state explicitly that the poisoned water came from the kettle.

"The verdict couldn't prove it was the water in the kettle that was poisoned and that stirred my curiosity," Zhang said. "But I did not expect the case to present so many other difficulties."

When Zhang met Nian Bin in a Fuzhou detention house, she found that the man might have been tortured during local police interrogation.

Zhang also questioned the police inquiry video, as the policemen seemed to know many details in the case before her client mentioned them.

The police later confirmed that they deleted some parts of the video as the provincial high court heard the case. But to her surprise, the death sentence was upheld.

The verdict was sent to the top court for review, while Zhang and Gongsun became increasingly frustrated.

They also faced criticism from many netizens, who accused the lawyers of defending a "murderer".

"I was sad but when I saw how desperate Nian Jianlan was getting, I told myself not to give up. The case was not over, I had to go on," Zhang said.

Gongsun also struggled in the 10-month wait for the review and she could not count how many calls she received from Nian Jianlan.

"Every day seemed like a year at that time," Gongsun said. "But I still believed in justice and the law, so I encouraged the sister to persevere." On Oct 28, 2010, the top court disapproved of Nian's death sentence because of insufficient evidence.

But the intermediate court still sentenced the man to death, after the high people's court returned the case to it for the rehearing in 2011.

"It was unbelievable and I was extremely upset," Zhang said, adding that it was rare to see a court give the death sentence again after the highest-level judicial department disapproved its verdict.

"I was confused and organised more lawyers to discuss the case," Zhang said.

A team of more than 30 lawyers later participated in the case, providing their judicial opinions and pro bono legal aid for Nian's family.

"Non-legal elements may have interfered with the case because a court won't keep a problematic verdict if the prosecutors' evidence had flaws," Zhang said.

She said she was also deeply moved by the sister, who quit her accounting job and did not miss any opportunity to prove her brother's innocence.

"Pursuing justice is not the privilege of the minority. I wanted to accompany the sister to witness the rule of law," Zhang said.

Meanwhile, Nian Jianlan treated the lawyers as family.

The lawyers took the sister to Hong Kong, searching for professionals specialising in identification of poisons.

They also helped provide mental and emotional support.

"They didn't miss any call of mine, night and day, even during Spring Festival. Aside from legal aid, they provided me with the biggest comfort, especially after my parents died during my brother's case," she said.

"Thanks to the lawyers' persistence, I was not alone."

She is now accompanying her brother for physical checks on his stomach, hands and feet in the capital's hospital. Nian Bin has suffered from muscular atrophy and serious headaches after he returned home.

"But what we need most is to find the real murderer. Otherwise, my brother can't really free himself from the shame, the hatred from the victims' family can't be eliminated and our life won't be peaceful," she said.

The intermediate people's court and local police have not replied to the queries.

LARGER SIGNIFICANCE

Zhang Lei, a member of the legal team, is busy with two other similar cases.

A man in Guizhou province got a life sentence and has served almost 20 years in prison for murder, but he has been crying for redress.

"Evidence in the case is insufficient and the man has also been tortured," Zhang said.

A woman in Jilin province also called Zhang after hearing about the lawyer's role in Nian Bin's case. She said her classmate was sentenced to death with probation for homicide and jailed 19 years.

"She told me she was encouraged by Nian's case, hoping to help the classmate whose parents had died," Zhang said.

The Jilin provincial high court had confirmed further investigation of the case but Zhang said cracking down on torture, often meted out behind similar cases, had more significance.

"The torture can be said to be the root cause of wrongful verdicts," she said.

Sun Jungong, the top court's spokesman, agreed and said Nian's case asks each court to reach an agreement - that a man cannot be jailed easily when evidence is insufficient and the facts are unclear.

"The agreement will help judicial bodies strictly provide judgments independently, effectively reducing false, unjust and wrongful cases," Sun said.

Gongsun Xue, who graduated from China University of Political Science and Law, suggested that legal departments highlight the importance of scientific evidence.

"Evidence appraisal also requires every judicial officers' attention," she said. The greater the exploration and study of evidence, the more effectively the truth will be uncovered, she said.

She also agreed that specialists should be tapped to hear and provide opinions in trials because their knowledge can help correct a verdict heading in the wrong direction.

But Si Weijiang, who has been involved in the criminal defence for Nian Bin since 2013, was not optimistic. He does not think Nian's acquittal is the end of the case.

"Only when police find the real murderer in accordance with the law can we mark a full stop for the case," Si said.

The protection of those on death row should also be taken into consideration, he said.

"The rule of law also lies in the respect we give to people sentenced to death."

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