Drunk & Disorderly

On the Docket of a Colorado Criminal Defense Attorney

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Letter from Beijing — Part Seven

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[Editor’s Note: Chapters One through Six of this book, Back From the Dead: A Landmark Ruling of Wrongful Conviction in China, can be found by clicking Chapter One, Chapter Two, Chapter Three, Chapter FourChapter Five, and Chapter Six. Generously shared in these pages by the author, He Jiahong, it is the true story of China’s parallel to the O.J. Simpson murder case, which occurred around the same time. Here is the concluding Chapter Six.]

 

A Second Chance

Ultimately She Xianglin was both fortunate and unfortunate:
although he had been unjustly imprisoned, he was released and
exonerated. Had Zhang Aiqing died, or become so ill as to never
return, Xianglin’s verdict might never have been overturned. Zhang
Aiqing, too, had mixed luck. Although her reunion with her family
and friends was a happy one, she had suffered during her time away.
Gradually, she began to recount the things she had experienced in
those missing years, though there were moments lost to her
memory.

By the end of 1993, Zhang Aiqing had fallen ill though she could not
explain the cause. She just felt the pressure on her to be ever
increasing, and that there were many things locked inside which she
could not express to anyone. She experienced fluctuations in mood
— there were moments when she would feel intensely depressed and
then there were times when she would feel completely normal. She
just wanted to leave and go as far away as she could. She roamed
from place to place, ‘eating the wind and sleeping in dew’, begging
for her food and drink. She couldn’t remember exactly where she
had gone, but it seemed she had been abducted and sold into slavery
somewhere in Anhui Province before she escaped. Her time away
from home seemed to empower her, making her feel as if she were a
strong and vital person for having survived her ordeal. She
eventually found her way to the city of Zaozhuang in Shandong
Province, where she happened upon the Fans, a kind family that
took her into their care.

At the time, the Fan family worked as caretakers at a forestry station
run by the mining bureau. One day, the youngest son noticed a
dishevelled woman lying on a patch of grass in the woods, barely
alive. The woman had a strange, unfamiliar accent, and the young
man couldn’t understand everything she was saying but he worked
out that she was asking for food. She seemed to be looking for her
home, but she didn’t know where it was. Seeing how pitiful the
woman was, he brought her home. The young man’s parents were
kind enough to take her in and give her food and clothes. She told
them her name was Zhang Aiqing.

The Fan family had four sons: the eldest was mentally disabled, the
second and third had left home to start their own families, and the
youngest had not yet married. Mr and Mrs Fan had no daughters,
but they immediately treated Aiqing like one of their own. Once they
realised that Aiqing’s mental state was fragile, they spent thousands
of yuan on a local doctor to help her recover. Aiqing was sincerely
grateful to the Fan family, and once she began to recover, she helped
out with the household chores, including the hardest and most tiring
jobs.

Once Aiqing had lived with the Fans for some months and had come
to understand how kind they were, she and the youngest son
decided to get married. The next year, they had a son. Aiqing had
told them that she had been married before, but that her original
husband was no good. The family looked after her carefully and
knew to keep her calm, because the moment she got angry she
would get sick and stop eating, drinking or working. She would just
lie on her bed and cry out for a home she could never identify. When
she was healthy, Aiqing was smart and able. She raised pigs and
chickens, and the family became more and more prosperous. She
was very good to her husband and his parents, often saying: ‘As a
woman, treating your in-laws well is the same as treating your
husband well.’

After a few years had passed, Aiqing’s body had fully recovered and
her mental state improved. Her memory had gradually returned and
she could recall her hometown in Hubei and memories of her first
husband and her daughter. She even remembered her exact address.
She started to write to her elder brother, though she never received
a reply. Sometimes she would sit on her own, looking at a map, and
daydream. Increasingly, she wanted to see her family and, most of
all, her daughter, who was only six when she had left. When it came
to She Xianglin, her feelings were complicated. Although there had
been happy moments in their marriage, they were overshadowed by
the painful experiences she had endured and she felt a lingering
sense of resentment toward him.

Aiqing was very happy with her new life, and the person she cared
for most was her son. She thought he was particularly intelligent,
and reminded her of someone from her home province of Hubei. She
thought that people from Shandong were very rigid and obsessed
with rules. They weren’t flexible and resourceful like people from her
home province. Her son admired her, too. He said that in their
home, mum was the boss, he was second in command and dad was
number three, because dad was the stupidest. Aiqing’s new husband
was a man of few words, but he wasn’t stupid. Whenever there
would be a group discussion, he would stand to one side and not
participate. When he heard his son’s description of the family, he
simply burst out laughing. And when Aiqing suggested they go back
to her hometown in Hubei for a visit, he had no objection.

In early 2005, after the Chinese New Year, Aiqing sold ten of the
pigs she had raised, which brought in more than 7000 yuan, enough
for her to start planning their trip. On 27 March, she and her
husband set off on the train for Hubei.

Zhang Aiqing became famous overnight. Reporters from all over the
country came to the remote mountain village to interview her. She
enjoyed being interviewed and spoke fluently and with ease. She
spoke about her relationship with She Xianglin, her sickness, her
time drifting around and her life with the Fan family. Aiqing had no
qualms talking about Xianglin, even with her new husband by her
side. She said that Xianglin was smart but that he had no sense of
responsibility. She believed that human life was the sum of morality,
ethics and responsibility, and that he, (unlike she), did not meet
those standards. If he had reflected on his actions for even a
moment, she said, things would not have happened the way they
did. She also thought that Xianglin had no sense of culture, and in
reference to him said: ‘People who don’t read, can’t get anywhere.’

She did, however, want to see him face-to-face, so that she could end
things properly. While Aiqing was sympathetic to everything that
Xianglin had suffered, she did not believe that any of it was her fault.
Her mental condition had left her with no idea of what she was doing
in those days, and she never imagined that running away would have
changed Xianglin’s life so irreversibly. She wanted to explain to him
why their relationship had failed — the prelude to the tragedy that
befell them. But Xianglin was unwilling to meet, and she could not
understand why. She decided to wait for the formal judgment on his
case to be handed down before trying again.

When Aiqing saw her daughter for the first time in eleven years, she
was relieved by how stable and calm she was — quite unlike her
father. Aiqing asked her daughter whether she remembered how her
mother had treated her when she was young. When she replied that
she couldn’t remember, Aiqing’s heart turned cold. She knew that
her daughter resented. She understood that her daughter had had a
difficult time, and that she had not fulfilled her responsibilities as a
mother, but she didn’t believe she was to blame. It was all just a
matter of fate. Perhaps it was better this way: if her daughter did not
remember her, then she might not think of her daughter any longer.
She could concentrate on taking care of her son, and be the best
mother for him that she could be.

On the day of the trial, Zhang Aiqing did not go to the courthouse to
hear the final verdict: she knew it was not the right occasion to show
her face. She waited with her family, hoping that She Xianglin might
appear. Later she heard a journalist say that Xianglin was heading to
his mother’s tomb to pay his respects, which she thought was very
honourable of him. But when she found out that he was still
unwilling to speak to her, she was stunned into silence. Eventually
she let out a long sigh and muttered to herself: ‘It’s time to go home.’
She knew that too much had happened for her to be able to explain
everything.

She spoke once more to a reporter, saying how grateful she was for
the support of the Fan family over the years. The reporter asked her
husband to speak, but he just smiled and replied: ‘My wife has said
everything already. There’s nothing I can say.’ Aiqing began to talk
about her son, and become more and more excited, and spoke faster
and faster. Seeing that his wife was rambling, her husband rushed
over and poured her a glass of water to distract her. When Aiqing
had finished her drink, she seemed to assume an air of
determination. She said that she couldn’t stay in Hubei; her home
was in Shandong. She was already speaking with something of a
Shandong accent.

On 15 April, Zhang Aiqing and her husband returned to Shandong.
Before she left, she wrote a poem and asked a reporter to pass it to
She Xianglin.

The wind howls and the rain pours,
Sheltering in rubble, dreaming of past springs.
You glimpse a sign showing a bouquet of roses,
and you struggle towards it.
When you are confused, please pick a maple leaf
and decorate it with roses. This will be its radiant day.
Pages turned over are like ruins. Please cherish the world.
We are not lucky, but we are proud;
in our short years, we have tasted bittersweet life.

 

Afterword

She Xianglin’s case has been one of the most influential wrongful
conviction cases in Chinese legal history, and it was listed as number
one among the country’s ten most influential legal cases in 2005. [Note 25]
After the case entered the public consciousness, the Institute of
Evidence Law at Renmin University of China, where I serve as
director, established a research task force for misjudged criminal
cases. Through the use of conference papers, discussion forums,
questionnaires and analyses of key cases, we found misjudged cases
to be united by a set of similar factors: judicial prejudice, biased
testimony, illegal collection of evidence, confessions extorted under
torture, insufficient evidence and lighter sentences when the facts
were in doubt. Out of fifty misjudged murder cases from the 1980s
onwards, forty-seven convictions (94 per cent) were based on false
confessions, supposedly from the defendant, while in forty-eight of
these cases (96 per cent) torture had been used to force confession. [Note 26]
Our research has appeared in a variety of formats through which
we hope to instigate change. For further information, refer to A
Discussion and Analysis of Misjudged Cases by Dr Guo Xinyang [Note 27],
who was a member of the research team.

Over the past few years, I have given over one hundred lectures and
presentations on misjudged criminal cases to judges, procurators,
police and scientists from across China. I have also been invited to
speak on the subject around the world: in America by New York
University and the University of Cincinnati; in Australia by the
Australian National University and La Trobe University; in Germany
at the Max Planck Institute for Foreign and International Criminal
Law; and in Japan at Nagoya University. In April 2011, I was invited
to Cincinnati to participate in the ‘2011 Innocence Network
Conference: An International Exploration of Wrongful Conviction’,
where I discussed misjudged criminal cases in different regions of
China and in August 2012, the Institute of Evidence Law held a
‘Forum on the Prevention of Misjudged Cases’ in Changchun, the
capital of Jilin Province.

The awareness of misjudged cases has stimulated the improvement
of the legal process and the evidence collection system in China. On
13 June 2010, the Supreme People’s Court, the Supreme People’s
Procuratorate, the Ministry of Public Security, the Ministry of State
Security and the Ministry of Justice issued two collective sets of
regulations: the ‘Provisions on Several Issues Concerning the
Examination and Judgment of Evidence in Death Sentence Cases’
and the ‘Provisions on Several Issues Concerning the Exclusion of
Illegal Evidence in Criminal Cases’, both of which came into force on
1 July 2010. Furthermore, in March 2013, the National People’s
Congress published its ‘Decision Regarding the Amendment of the
Criminal Procedure Law’. This revised law includes certain
requirements, including to ‘value and protect human rights’, that ‘no
one must compel any witness to prove his or her own guilt’, and that
‘using torture to extort a confession or any other illegal means to
obtain confessions from suspects, or the use of violence, threats or
any other illegal means to gather testimony from witnesses or
statements from victims, should be eliminated’. The newly revised
Criminal Procedure Law took effect on 1 January 2013.

NOTES

25 The list was co1npiled by a selection committee of industry and academic experts
brought together by Legal Daily, a newspaper published by the Ministry of Justice
and the All China Lawyers Association. It was published by Legal Daily in
September, 2006.

26 See also: He Jiahong and He Ran, ‘Xingshi cuo’an zhong de zhengju wenti:
shizheng yanjiu yitjirigjiferixi’ (‘The Problem of Evidence in Misjudged Cases:
Empirical Research and Economic Analysis’), Zhengfa Luntan, Issue 2, 2008, and
He Jiahong and He Ran: Empirical Studies of Wrongful Convictions in Mainland
China, Volume 80, No. 4, University of Cincinnati Law Review, Summer 2012, pp.
1277-92.

27 Guo, Xinyang, Xingshi cuo’an pingxi (A Discussion and Analysis of Misjudged
Cases), China People’s Public Security University Press, Beijing, 2004, pp. 200-12.

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Protect and Serve

 

I’m just a plainspoken Colorado criminal defense lawyer, but the way I see it…

Hardly a day goes by when somebody isn’t shot to death by a cop in the United States. Three somebodies, actually.

Because the government hasn’t kept particularly accurate tabs on suspects killed by police, because it’s really embarrassing, nongovernment sources have taken up the slack. One is The Guardian, a British newspaper of some note.

Last month it began its own count of people killed by police in the U.S., pointedly called “The Counted.” Its count includes people shot, tasered, or run over by cop cars, and suspects who died in police custody.

It counted, for example, the Colorado University student felled by police bullets in my hometown a few days ago who may or may not have been threatening them with a hammer while under the influence of LSD. Inexplicably (to me, anyway) it did not count the apparent (to police, anyway) suicide of a black woman arrested by a Texas state trooper earlier this month who threatened to light her up with a taser gun for the crime of failure to signal.

July was a really rotten month for suspects all over America: one hundred fifteen died by police force, more than any other month this year. Twenty of those folks were unarmed, eclipsed by March, when thirty-one unarmed men and one woman were killed by police or died in police custody. Only twenty-one of them were people of color.

Six hundred sixty-nine people killed by police in the United States since New Year’s Eve. I read somewhere that 52 people were killed by United Kingdom police over the course of the entire twentieth century. I’m pretty sure the United Kingdom comprises four countries. No single month of 2015 is anywhere near that low a casualty rate in my country.

Six hundred sixty-nine people. One hundred forty-five unarmed. Twenty-nine women. Twelve under eighteen. Twenty-six percent black, in a population thirteen percent black. Forty-eight percent white, in a population sixty-two percent white.

If you don’t want to be killed by a cop, be sure to avoid any place where the wind comes sweepin’ down the plain. Safest states to be are Rhode Island and South Dakota. My own state is the seventh likeliest one to run into somebody who thinks he’s Pat Garrett and you’re Billy the Kid.

So far today, this day, the day I’m writing this, the last day of July, hardly anybody has been killed by police in the United States.

But hell, the day is young.

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Letter from London

 

[Editor’s Note: As near as I can tell, the first woman murdered by a man was bludgeoned four hundred thirty thousand years ago. Men (and a few women) have committed femicide — hate killings of women and girls — with some regularity since. For example, the State of Mexico, which includes Mexico City, lately has been reporting six such killings a dayAdrian Howe is an adjunct research fellow at Griffith Law School in Australia, and visiting research fellow at Queen Mary University of London School of Law, who would love to see an end to this kind of violence. She’s organizing a conference to be held in the fall at Queen Mary, and this is her call for papers from others interested in the field. There will also be a live stage play during the conference, based on the jealousy murder of Desdemona by Shakespeare’s Othello, which some men still prefer to call an honor killing. Dr. Howe’s research is in the field of sexed violence, recently focusing on intimate partner homicide and reforms to the law of murder in England and Wales. She is the author of Sex, Violence and Crime: Foucault and the ‘Man’ Question.]

Queen Mary Public Engagement Conference

Fighting Femicide: Cultural and Legal Interventions

Queen Mary University of London
5-6 November 2015

CALL FOR PAPERS Deadline 1 September 2015

The School of Law, Queen Mary University of London, is pleased to announce the call for papers for
the upcoming conference, Fighting Femicide: Cultural and Legal Interventions.

The conference will launch a Femicide Research Network committed to elevating femicide into a
first-order political problem.

While papers on any aspect of femicide will be considered, the focus is on the most prevalent form
in western countries, so-called ‘intimate femicides’ where the victim had a relationship with her
killer. These cases are critically important sites for locating and contesting victim-blaming fictions
that inform all culturally-based excuses for femicide.

The network and conference aims are

  • to stimulate public and policy debate about how best to prevent men’s murderous violence
    against women
  • to provide a comparative study of annual death tolls, court dispositions in femicide cases
    and innovative prevention strategies
  • to track ideologically-constructed narratives that blame women for provoking their own
    deaths

What distinguishes this femicide research network from other femicide research organisations and
agendas is its focus on the need for cultural transformation and, more specifically, its interrogations
of the incidence and reception of femicide within dominant cultural communities.

Crucially, this entails a departure from the conventional focus on femicides committed by minority
ethnic men. While all excuses for killing wives, women partners and former partners are culturally
inscribed, we concentrate on cases involving members of dominant social groups. For as 21st-
century English law reformers recognised in their bid to reign in the provocation defence — the most
widely used partial defence to murder in intimate partner femicide cases in the UK and other
Anglophone jurisdictions — so-called ‘honour killings’ are not confined to minority communities.
Provocation has operated as a cultural defence for white Englishmen for centuries. It is, as one
English law reformer put it, ‘our own version of honour killing’.

The statistics are shocking enough. In the UK 2 women are killed each week on average by men
known to them. Relative to population, the statistics are worse in Finland and Turkey and
dramatically worse across Latin America where in Brazil, for example, a woman is killed every 2
hours. Nevertheless, studies indicate that all western countries in the Global North and Global South
have high levels of violence against women, including countries such as Sweden and Denmark often
praised for their gender equity.

The Femicide Research Network is committed to forging links between researchers developing new
methodologies and conceptual frameworks; researchers documenting the legal outcomes of
femicide cases and feminist activists deploying social media sites to keep lethal violence against
women on the political agenda.

Accordingly, we invite requests to join the network and submissions to present a conference paper
from the feminist anti-violence sector, including researchers, NGOs and activists worldwide.

With a focus on dominant cultures, the event intends to address the following areas of interest and
investigation:

  • new conceptual frameworks and research methodologies
  • best practice preventative measures
  • law reforms and other government anti-violence initiatives
  • anti-violence campaigning strategies

Keynote speakers include Karen Ingala Smith, Chief Executive of NIA Charity, London and ’Counting
Dead Women’ Campaigner.

There will also be a performance of Othello on Trial, the first play in a new youth theatre project,
Seeing Red – Murderous Rage against Women.

The conference, co-hosted by the London Centre for Social Studies, will take place at the Octagon,
Queens Building, Queen Mary University of London on 5-6 November 2015.

Proposals for papers (150 words) or full panels (approx. 500 words) followed by a short biographical
note should be submitted to Dr Adrian Howe by 1 September 2015.

Proposals to join the Femicide Research Network should also be sent to her. We accept requests
from individuals and organisations which have a focus on femicides committed by members of

dominant cultural communities. Membership is free of charge. For further information see the
network’s website.

The cost of the conference is:

  • Academics, lawyers, policy-makers £50
  • Femicide Research Network members, NGO/Third sector workers £25
  • Students and unwaged £15

Conference fee includes lunch, coffee and snacks, conference drinks reception and conference
materials.

For further queries, please contact Daniela Alaattinoglu or Dr Adrian Howe or follow the conference website.

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Death, Again

 

I’m just a plainspoken Colorado criminal defense lawyer, but the way I see it…

I know I probably write too much about the death penalty here. But we keep killing people with cool deliberation anyway. Hundreds of them every year. And not just in the United States, but in other enlightened nations just like us: Iran, Saudi Arabia, Iraq, North Korea — you know, kindred states.

There’s no telling how many people fellow traveler big China executes, because the Chinese government won’t tell.

Yet, the countries busy killing the people who go wrong within their borders are fewer and fewer. Last year only twenty-one countries did that. Still, too many when you’re trying to cut down on the number of deaths you feel personally responsible for. We are personally responsible, every time an ax falls, a trap door opens, or poison is pushed into somebody’s veins, and we change the channel to Married at First Sight.

Every year, Amnesty International puts out a report, Death Sentences and Executions, detailing how we’re all doing. You can get the latest one here.

There is good news there, at least for those of us who cringe at killing people in cold blood. For example, in sub-Saharan Africa there were 46 executions compared to 64 the year before; the statistic may be due to dyslexia. And there’s a steady decline in the United States, with thirty-five souls sent to God to sort in 2014, though three thousand two are on deck, with one more bound to join them in my state any minute now.

We kill them in a variety of entertaining ways. We cut their heads off, hang ‘em high, poison them like rats, and use others for target practice. For some reason, stoning seems to have gone out of style, although the United Arab Emirates keeps a promising southpaw in the bullpen.

Iran, Egypt, and Sri Lanka still sentence children to death. A fair number execute folks who haven’t the mental capacity to understand why they’re being led to their deaths, including, God bless us, America.

In the majority of countries who do this sort of thing, executions are carried out without the pomp and circumstance of anything resembling a fair trial. For these countries, torture seems as good a method as any to extract a confession.

Executions aren’t limited to people who kill people. Drug dealers often qualify. China, North Korea, and Vietnam like to reserve corruption for only the highest levels of government. States execute for armed robbery, adultery (usually just the women adulterers), rape (not to be confused with private executions of women sullied by rape), kidnaping, torture (again a practice reserved for only the highest officials), insulting dead prophets, witchcraft, and sorcery. There are countries who exterminate gay men; just not this year.

Of course, treason against any government that executes its citizens is punishable by…execution.

On the last day of 2014, one hundred forty countries had abolished the death penalty by law or in practice. Fifty-eight — about a third of all the nations of the world — were still putting their people to death.

I reckon I’ll keep writing about the death penalty, time to time, till two hundred countries have abolished it; I’d allow in two more countries to the world if they promised not to kill anyone, just to reach that sweet round number.

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Letter from Toronto

 

[Editor’s Note: E. Simmons is a licensed and experienced private investigator for Crime Scenes2 Investigations. Her agency does various types of investigations as they relate to family law, civil law and criminal law such as fraud, infidelity, cold cases, theft (internal and external), missing persons, asset location, witness location, and so on. They also do presentations and workshops on how to utilize private investigators for cases, understanding and working with clients from a cultural perspective, safety, security and so on. They never sleep, and abide by all laws — so watch it.]

5 Reasons Why Every Lawyer MUST have a Private Investigator

  1. Saves Time: Hiring a Private Investigator frees up precious time for the Lawyer to focus on the most important thing – the case.
  2. Saves Money: The Private Investigator saves the Client money by locating witnesses, providing necessary surveillance, researching… in less time than it would take if the Lawyer was researching on her/his own. Imagine what the costs would be without an Investigator. *If the case budget is minimal to non-existent, then it is better to work with a Private Investigator who will either work Pro Bono or at a reduced fee.
  3. Objective Perspective: The Private Investigator brings a separate objective perspective into the case, separate from the Lawyer who is involved in the case day-to-day.
  4. Independence: The Private Investigator brings an independent perspective to the case. This is because the Private Investigator does not work in the office day-to-day, does not have the close relationship with the Client and does not have vested interest in the guilt or innocence of the Client. The Private Investigator is detached from the case. The Private Investigator’s work is to gather the facts.
  5. Tireless: The Private Investigator does all the leg work and time consuming work such as tracking down what needs to be tracked down, following leads and unpursued trails, surveillance… Whatever the case requires.

Well-trained, licenced and experienced Private Investigators have the experience to research even the most mundane and minute material. This allows the Lawyer to fully focus on their Client’s case and defence.

Every Lawyer must have a Private Investigator as part of their toolkit. Private Investigators are a key resource for any Lawyer especially, Lawyers involved in Wrongful Conviction and Cold Cases. Such cases are long, complicated and laden with years (and sometimes decades) of documents.

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