Drunk & Disorderly

On the Docket of a Colorado Criminal Defense Attorney

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Boundless Hope

 

 

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

Susan Sarandon is one of the five or six women in the world who might persuade me to relocate my family to Utah.

So when she sent me a letter this morning, I paid attention. It wasn’t what I expected.

She’s trying to save someone’s life — not make mine more interesting.

With Sister Helen Prejean, whom Sarandon portrayed in the movie “Dead Man Walking,” she’s hoping to convince the governor of Oklahoma that sixty days is a fair price to pay to make sure a convicted killer truly warrants the death penalty state law handed him.

Sarandon thinks it a downright bargain and, as it turns out, so does the daughter of the man whose testimony put Richard Glossip on death row. She says her father, who made his own bargain to avoid the needle by claiming Glossip hired him to kill a man, has talked to her about admitting it isn’t true. Her father, she believes, said it to save his own life.

Right now, they’re not even asking to halt the execution, scheduled for 16 September. They just want to delay it by sixty days so Glossip’s pro bono lawyers can present the new evidence. They hope a petition to the governor can buy that time.

It isn’t about the death penalty. It’s about whether the state of Oklahoma can afford the time to see if the four men on its death row over the past thirty-five years, convicted based on false testimony of men who traded reduced sentences for lies later exposed, should be joined by a fifth, or instead be subjected to this.

The petition is here.

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Bastard Out of Pennsylvania

Oh my, he kinda looks like you!

Oh my, he kinda looks like you!

 

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

First startling revelation from the B-side Republican candidates at the Fox News debates:

I just heard former Senator Rick Santorum declare he is “a child of Ronald Reagan.”

I had no idea.

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Unnatural Balance

 

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

The world public was outraged last week when it learned Zimbabwe’s best-known lion was lured from a wildlife sanctuary and shot by arrow and killed by gun by a great white hunter from Minnesota. Worse, the guy’s a dentist.

There aren’t that many free-range lions in Minnesota, so I suppose Cecil was an irresistible target for Doc Palmer, even though not much hunting was involved. The animal was brought to him like a pizza delivery.

My brother claims I shot two birds out of the sky with a BB gun when we were kids, just as he was celebrating the wonders of nature, twittering along with them like he was in the middle of a Disney movie. He claims I laughed, evilly, as the birds fell at his feet. I don’t remember that, but I remember the easy cruelty of childhood.

My favorite uncle hunted coons and taught me to hunt them. We didn’t drag meat behind a car to sucker our prey, like Palmer did, but we used dogs to track and find it. We treed a raccoon and I shot it with a proper rifle through one perfect bandit eye and watched the light in the other eye go out. I never hunted again.

Minnesota’s Governor Mark Dayton said he was “just appalled” at what his fellow north star stater did. I was appalled, too, for a different reason.

My local newspaper bannered the world news section with the story about Cecil the Lion, saying Zimbabwe was demanding Palmer be turned over to its government. It read, “Killer’s extradition being sought.” Although Zimbabwe is an ideal retirement destination (The New Yorker reports that barely a month ago you could trade a single American dollar for thirty-five quadrillion Zimbabwe dollars), I’m not sure I would turn over anybody to the government of Robert Mugabe. People disappear there. But that wasn’t what was so upsetting.

What was so upsetting was that it wasn’t until the back page of the world news section that we learned that someone in the West Bank had burned a Palestinian toddler to death as he slept.

Still lots of news today on the celebrated lion; not so much on the boy who will never celebrate his second birthday.

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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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