Letter from Beijing — Part Five



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


Doubtful Proof

On 10 October 1995, the Hubei Province High People’s Court handed
down its reconsideration in the case of She Xianglin’s intentional
homicide. It found that the facts were unclear, and the evidence
insufficient. It repealed the original decision and sent the case back
for re-investigation. [Note 18] The judge singled out some concrete
problems and dubious areas in the decision: for example, the
constant contradictions in the defendant’s statements as well as his
repeated confessions and subsequent retractions; his four different
statements about the course of events surrounding the murder of
his wife; the unfairness of using only one of these statements as a
basis for the decision; relying on the defendant’s confession to
maintain that the murder weapon was a stone without any other
basis for this belief; the question of Zhang Aiqing’s missing clothes;
and the reliance on pieces of indirect testimony that did not form a
coherent chain of evidence. For all these reasons, the court decided
that the possibility that the deceased had run away from home and
been murdered by someone else must be considered. Although the
relatives of the deceased had provided a petition with over 220
signatures demanding that the murderer be executed with all speed,
cases where the sentence might be death required ‘ironclad

Once the Jingzhou Intermediate People’s Court received the
reconsideration ruling, they returned the case to the procurator’s
office, which then sent it back to the police requesting further
evidence. The police, however, believed the case to be water under
the bridge and that there was no longer any means of gathering
evidence. Also, since the defendant had completely retracted his
confession, there was no means of verifying any of the oral
testimony. Hence, they produced an ‘explanation of the situation’,
which discussed the process of investigation of the case,
emphasising that ‘the entire process was lawful, and that the
confession had not been extracted under torture’. The document
was endorsed with the seal of Jingshan County Public Security
Bureau. When the procurator’s office received this and consulted
with the Intermediate Court, they believed the documents to be
insufficient to satisfy the demands of the High Court, and sent them
back to be modified. The police stuck to the belief that the evidence
was enough to convict She Xianglin and refused to investigate
further. The case, therefore, was shelved.

The problem was that the local government was facing pressure
from two different sources. Zhang Aiqing’s family continued to
petition and demand for the severe punishment of She Xianglin. At
the same time, She Xianglin’s family, with their ‘certificate of
sincerity’ were also petitioning and lobbying for the release of the
innocent She Xianglin. Suddenly, the case that the government had
lauded as a model of policing had turned into a hot potato that they
could not drop. Not only were they grappling with whether or not
the facts of the case were accurate, but also the reputation of the
police and their own future prospects. With their backs to the wall,
the Jingshan police had no choice but to go on the offensive.
Knowing that the ‘certificate of sincerity’ was their biggest threat,
they devised a plan of attack.

Mrs She was seized by the police on the grounds of constant
petitioning and taken to the police lockup where she was imprisoned
for nine months. Originally a sturdy village woman, when Mrs She
was released, she was half deaf and blind, and she died a few months
later. She Xianglin’s older brother was imprisoned on the same
grounds for more than forty days, and he was released with a
warning to never go above the police again. In addition, the police
tracked down some of the villagers from Yaoling Village who had
supported the ‘certificate of sincerity’ and forced them to change
their testimony to state that no such woman had been in their
village. The villagers resisted and, as a result, two of them were
imprisoned in Jingshan County Public Security Bureau for more
than three months. Other villagers felt compelled to flee the area.

At the same time, the existing Criminal Procedure Law that came
into force in 1976 was undergoing amendment. One particularly
controversial amendment related to the presumption of innocence.
For many years, the prevailing Chinese legal stance on the
presumption of innocence was that it was a principle of capitalist law
and there should, in fact, be no presumption of guilt or innocence.
The basic principle should be to examine the facts and seek the
truth. But prior to the amendment of the Criminal Procedure Law,
some legal academics believed the question of the presumption of
innocence could not simply be avoided. They argued that a country
whose legal system did not apply the presumption of innocence had,
in effect, a presumption of guilt. The presumption of innocence
places the burden of proof on the prosecution as the prosecution
would have to demonstrate in court that the defendant was actually
guilty. The presumption of guilt places the burden of proof on the
defendant, as the defendant would have to prove in court that they
were innocent. The presumption of innocence, it was argued, is a
distillation of the judicial experience of human society and a symbol
of a progressive and civilised legal system — in other words, China
should learn from the experience of other legal systems.

In March 1996, the Chinese National People’s Congress published its
‘Decision on the Amendments to the Criminal Procedure Law’.
Article 12 of the newly revised law set out the following rule: ‘Prior to
a judgment rendered by the People’s Court according to law, no one
may be found guilty.’ Although the Legal Committee of the National
People’s Congress claimed otherwise, this rule was not a
presumption of innocence; rather, it merely emphasised the
authority of the court to convict. Nonetheless, scholars tended to
believe that the new provision did possess the basic spirit of
‘innocent until proven guilty’.

The presumption of innocence involves three levels of implicit
meaning. First, before anyone can be found guilty in a criminal court,
they are assumed to be innocent. Second, in a legal trial, the
prosecution bears the burden of proof, and the defendant does not
have any such responsibility (since defendants have no burden to
prove their guilt, it follows that they have no burden to prove their
innocence). Third, if the evidence provided by the prosecution does
not meet the legal standards, the defendant is found not guilty; in
other words, legal judgments should respect the principle of ‘no
conviction without clear proof. Although the revised 1996 law did
not provide clear guidelines on who should assume the burden of
proof [Note 19], Article 162 stated: ‘If there is insufficient evidence and thus
the defendant cannot be found guilty, he shall be pronounced not
guilty on account of the fact that the evidence is insufficient and the
accusation unfounded.’ In advocating the principle of ‘no conviction
without clear proof’, this article embodied a certain spirit of the
presumption of innocence. However, in practice, it tended to clash
with traditional legal mindsets, and this was related to the standard
of proof in criminal cases.

Regardless of whether one looks at the 1979 or the 1996 version of
the Criminal Procedure Law, neither directly addresses the question
of standards of proof. Scholars have generally summarised the
standard of proof in criminal cases with the phrase: ‘The facts of the
case must be clear, and the evidence must be reliable and abundant’. [Note 20]
This principle is often referred to as the ‘two fundamentals’. The
first person to promote the ‘two fundamentals’ was the then head of
the Standing Committee of the National People’s Congress, Peng
Zhen. In May 1985, at conferences on law and order in five major
cities, he suggested: ‘At present, there are some cases where
judgments are not being handed down because the evidence is not
totally complete. In fact, a case can be decided if there is basic
evidence and if the basic circumstances are clear.’ Since then, the
‘two fundamentals’ have been used as the standard for the proof of
guilt in criminal cases. Additionally, a value system which
overemphasises the harsh treatment of criminals has contributed,
whether consciously or unconsciously, to a tendency to relax the
standards of proof. Fearing that they will be considered soft on
crime if they adopt the principle of ‘no conviction without clear
proof’, many judges apply the modified principle: ‘If the proof is
unclear, the sentence should be lighter’. This is particularly apparent
in death penalty cases: when there is insufficient evidence, or when
the facts are unclear, defendants are not sentenced to death but
rather given a commuted death sentence or sentenced to life
imprisonment. It was this tendency that paved the way for the
subsequent judgment in She Xianglin’s case.

At the beginning of the 1990s, China began a process of merging
cities and prefectures. One working paper [Note 21], published in 1993 by
the State Council, suggested: ‘Regional institutional reform should
be combined with the simultaneous adjustment of administrative
subdivisions. State agencies at all levels need to be dramatically
simplified. In principle, where prefecture-level cities and existing
prefectures co-exist, they should be administratively merged.’ On 2
December 1996, after the State Council approved the merger of
Jingzhou Prefecture with Jingzhou City, Jingshan County, which was
administered by Jingzhou City, was incorporated into the
administration of neighbouring Jingmen City.

In October 1997, the Politics and Law Committee [Note 22] of Jingmen City
convened a meeting attended by representatives from the Jingmen
City courts, procurator’s office and the police, as well as the
Jingshan County Politics and Law Committee. At the meeting the
police representatives emphasised their belief that She Xianglin had
murdered Zhang Aiqing, and the court representatives reiterated
the lack of sound evidence in the case. After some discussion, the
Jingmen City Politics and Law Committee decided to apply the
modified principle: ‘If the proof is unclear, the sentence should be
lighter’. They intended to downgrade the case from the Intermediate
Court to the Basic Court before proceeding with a three-step plan.
First, the Jingshan County People’s Procurator’s Office would raise
charges in the Jingshan County Basic People’s Court. Second, the
county court would attempt to ‘cap the case at first instance’ — that
is, they would sentence the defendant to the severest term available
in cases of doubtful guilt, in this instance, fifteen years’
imprisonment. The Intermediate Court would then affirm this
sentence, thereby ensuring that the legal process be kept local and
not return to the Provincial High Court, which might require further
police investigation.

On 15 June 1998, the Jingshan County Basic People’s Court
sentenced She Xianglin to fifteen years’ imprisonment and deprived
him of his political rights for five years. On 22 September 1998 the
Jingmen City Intermediate People’s Court rejected She Xianglin’s
application for appeal and affirmed the original decision, stating in
its ruling that the murder charges had been substantiated by the
forensic evidence, the autopsy, the reports of the murder locations,
the oral testimony of witnesses and the defendant’s ‘diagram of his
route’, which had been verified by the police. The ruling took
immediate effect, and She Xianglin was taken to Hubei Shayang
Prison to serve his sentence.

In prison, She Xianglin complained and appealed unceasingly. He
wrote thick volumes of appeal documents and kept several diaries.
They revealed some thought-provoking details about the
interrogations he had undergone:

(1) At one point I said that I had used a stone to murder her.
That was because the previous time I had said I used a
wooden stick, which the investigators pressured me to
produce. But I hadn’t killed anyone, so how could I do that?
I said it was a stone instead, so that if they asked again, I
could just hand over any old stone. That way I might not
have to suffer so much.

(2) The storage bag was something that the investigators
told me about. They had found a storage bag in the pond
that looked like it was made of snakeskin and they made me
mention it in my confession.

(3) The investigators made me draw a diagram of Guanqiao
Reservoir, but I had never been there, and since I had never
killed anyone, how could I draw what happened? On the
afternoon of 21 April 1994, when the investigators realised
that I was unable to tell them the location of the body, they
pulled me to a desk and drew a diagram for me and made
me copy it.

(4) On the way to the scene of the crime, we arrived at an
intersection on the side of a mountain. I began to turn down
one road, but then the investigators pulled me in another
direction, saying, ‘No, over this way.’

(5) When we got to the pond, they asked me where I had
killed her. I pointed to a random place. They took a photo
and demanded I show them the stone I was supposed to
have used as the murder weapon. As it happened, there
weren’t any stones nearby so they took me to another
location and asked me where I had dumped the body. There
was a lot of rubbish scattered nearby and so I said that I had
dumped the body there. They took a photo.

(6) After ten days of beatings, I was numb and tired. My
whole body was bruised, and I couldn’t walk or stand. I only
wanted one thing, which was to rest. I would comply
without hesitation to their demands so long as they would
let me rest.

She Xianglin had no idea whether his notes were being read by
anyone or not, but it seemed as if they were disappearing into the
void. When his family came to visit, he urged them to appeal to
higher authorities; they did, but their efforts yielded no results. She
Xianglin’s only hope was that the real murderer would be found but
as time went on, he began to lose hope.


18 The Criminal Procedure Law provides that, if courts of appeal believe the facts on
which a decision was based are unclear, or if the evidence is insufficient, a sentence
of death may be commuted or the case sent back for re-investigation. However, in
practice, very few courts of appeal commute the death sentence; generally the
method used is to re-investigate the case.

19 Article 49 of the 2012 Criminal Procedure Law states: ‘The onus of proof that a
defendant is guilty falls on the public procurator in a public prosecution case.’

20 Article 53 of the 2012 Criminal Procedure Law states: ‘Evidence should meet the
following requirements to be reliable and sufficient: (1) Evidence exists for each fact
serving as the basis for conviction and sentencing; (2) The authenticity of all
evidence needed to decide a case has been verified through legal procedure; and (3)
Based on a comprehensive evaluation of all evidence, facts have been proven beyond
a reasonable doubt.’

21 Zhongyangjigou bianzhi weiyuanhui guanyu dzfang geji dangzhengjigou shezhi
de yijian’ (‘Opinion of the State Committee for public sector reform on establishing
local Party and government organs’), Zhongbian, No. 4, 1993. This was later
published in China Local Government Organisation Reform Editorial Group (ed.),
Zhongguo dzfang zhen_qfujigou gaige (China Local Government Organisational
Reform), Xinhua Publishing House, Beijing, 1995, pp. 72-74.

22 Politics and Law Committees are responsible for the implementation of the legal
and police systems in their particular areas. Their responsibility is extremely broad,
and they have often been characterised by their loyalty to the Communist Party line.



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