Dawu Legal Team, July 17, 2021
At 9 a.m., on July 17, 2021, the Dawu trial continued.
In the morning, the defense lawyers continued to question the defendants who are suspected of “gathering a crowd to assault state organs”. The defense counsel once again filed an application to exclude illegal evidence based on new clues he learned about illegal evidence collection. At the same time, the defense lawyers jointly submitted to the court “Lawyers’ opinion requesting the court to investigate the criminal responsibility of the investigators of the Dawu case in using their authority to carry out illegal detention and the legal responsibility of the prosecutory organ for failure to conduct oversight”, requesting to check and verify the serious violations of law of inhuman Residential Surveillance at a Designated Location (RSDL). In the afternoon, the prosecutors presented evidence supporting this allegation, and the defendants and defense lawyers cross-examined the evidence, taking about four hours to cross-examine the content of four interrogation transcripts.
Through detailed questioning of the defendants this morning, the details of the “life is worse than death” RSDL and the “criminal facts” of the so-called “crime of gathering a crowd to assault state organs” became clearer.
According to the defendant Jin Fengyu (靳凤羽, Deputy General Manager of Dawu Group), during the RSDL period, investigators took her to the Gaobeidian City Public Security Bureau to carry out the procedure of selling her legally-owned residence in Gaobeidian via entrusted notarization. According to Article 75 of the Criminal Procedure Law, residential surveillance should be carried out at the residence of the suspect or defendant. If Jin Fengyu has a residence in Gaobeidian City, her residential surveillance measures should be carried out in that residence and not elsewhere. Jin Fengyu quickly pointed out that if she knew about this regulation at that time, she would definitely not have sold her house. At the RSDL location, there were no windows in the room and lights are on 24 hours a day, it is impossible to distinguish between day and night; because the cameras cannot be blocked and there is no privacy, in the five months and 10 days of RSDL she had not taken a single shower.
Since the notarization of the sale of the residence was made at the Gaobeidian City Public Security Bureau, the Dawu case investigation agency clearly knew that Jin Fengyu had a residence in Gaobeidian City, but still illegally used another location for residential surveillance. Jin Fengyu disagreed with the application for the exclusion of illegal evidence submitted by her defense counsel, even though lawyer Zhang Weiyu (张维玉) has repeatedly stated that the application for exclusion of illegal evidence and the application for recusal were made in accordance with the law and will not lead to court retaliation. Jin Fengyu still insisted: “Although I was tortured during the RSDL period, I have no complaints. But I think it is awful and not worth it that two days of RSDL can be used to offset only one day’s sentence according to the law.”
Faced with the charge of “gathering a crowd to assault state organs”, Jin Fengyu said: “I plead guilty but am afraid of this accusation. I was scared to death when I received the indictment and saw this charge. I have not only become an offender of the nation, but also an enemy of the state. It seems to me that this accusation is on par with treason. I feel that I will not be able to live in this country anymore — I cannot bear this accusation.” After choking up, Jin Fengyu broke down and cried in court.
Yes, in addition to the large discrepancy between the objective facts and the alleged facts, the charge of “gathering a crowd to assault state organs” is enough to make defendants who only wanted to petition to defend their rights and relay their grievances collapse in despair.
The questioning stage led to more details being disclosed: at about 17:00 on August 4th, 2020, dozens of employees of Dawu Group and villagers of Langwuzhuang gathered at the entrance of the Xushui District Public Security Bureau and shouted their grievances. At this time, the crowd was arranged in a fan shape still some distance from the entrance of the Public Security Bureau. Other personnel on the scene could enter and exit normally, and the normal passage of vehicles was not hindered. About ten minutes later, special police officers armed with shields and riot gear emerged from behind and enveloped the shouting crowd, pushing the rights defenders forward to the door of the Public Security Bureau where they carried out arrests. The crowd quickly dispersed.
The crime of “gathering a crowd to assault state organs” stipulated in Article 290 of the Criminal Law requires that the state agency cannot carry out its work and suffers serious losses as a result of the assault. However, the statements of multiple defendants who were individually questioned in court corroborated each other: not only did they not cause statutory damage, they did not even cause chaos, hence their actions did not constitute a crime at all.
After questioning relevant defendants, and before entering the cross-examination session, lawyer Wang Shihua (王誓华), Sun Dawu’s defending counsel, once again filed an application for the exclusion of illegal evidence based on newly discovered facts during the questioning procedure that Sun Dawu (孙大午) had been coerced during the RSDL period and Jin Fengyu (靳凤羽) was illegally placed under RSDL. He requested to exclude all interrogation transcripts given by Sun Dawu and Jin Fengyu during the RSDL period. At the same time, lawyer Wang Shihua also requested real-time audio and video recordings of the interrogations. Sun Dawu’s other defense lawyer Zhang Peng (张鹏) pointed out, applying RSDL to Jin Fengyu clearly constitutes illegal detention, a situation identified in Article 123 (3) of Judicial Interpretation of the Criminal Procedure Law for exclusion of illegal evidence.
Jin Fengyu, who was “tortured” during RSDL but visibly worried about leaving the impression of a “bad attitude,” stated in court: “What I said during my RSDL was true.” Yet this became the reason the collegial panel directly rejected the defenders’ application for evidence exclusion after a 40-minute adjournment: “Jin Fengyu’s confession was consistent before and now, and the collegial panel had no objection to the legality of the evidence.”
Such a refusal by the panel was obviously not persuasive. Several of the defending counsel raised objections and asked to speak. Attorney Wang Shihua also requested a review of the refusal decision. The authenticity and legality of the defendant’s confession are two separate issues. Thus, even if Jin Fengyu’s confession was true, the relevant transcripts should still be excluded because of the illegal nature of placing her under RSDL.
Lawyer Wang Shihua pointed out: “The evidence I applied for exclusion cannot be then used to prove the lawfulness of the interrogation. This method of proof is wrong. We are drafting a legal opinion jointly signed by lawyers, requesting that investigators be held accountable for abusing their powers in carrying out illegal detention of Jin Fengyu, and the prosecutorial organ be held accountable for failing its legal responsibility to enact oversight. To begin with, by carrying out illegal RSDL the investigators are already suspected of the illegal detention; all the transcripts produced during the illegal detention are illegal due to the illegal nature of these evidence collection procedures.”
The presiding judge replied: “I will deal with it after the next adjournment.”
Subsequently, the accusation of the “crime of gathering a crowd to assault state organs” entered a period of prosecutors presenting evidence, followed by cross-examination by the defending counsel of the prosecution’s evidence.
The prosecutors first showed the transcripts of the defendants’ interrogation. One of them read out excerpts of the confessions that established “guilt”, while the defenders read out the parts of the transcripts beneficial to the defendants when they cross-examined the evidence presented.
For example, Sun Erwu (孙二午) (孙德华, Sun Dehua) confessed that “Sun Dawu decided to go to the government building first and then to the Public Security Bureau. It took no more than half an hour to deliver the necessary materials to the government” and “to ask the government for an explanation.” This could prove that the defendant did not have any subjective intention to attack state organs, but the prosecutor omitted this intentionally or unintentionally when reading the interrogation transcripts.
In addition, members of the defending counsel issued comprehensive opinions on the legality of the defendants’ confessions. At the same time, they raised questions about the way the prosecutors presented evidence and proposed suggestions: First, China’s Criminal Procedure Law clearly stipulates that the burden of proof for the defendants’ guilt would be borne by the People’s Prosecutorate. But now the defendants’ pretrial confessions had become evidence of their guilt, which in a disguised form shifted the burden of proof to the defendants themselves. Second, to show the defendants’ pretrial confessions instead of accepting their in-court statements is contrary to the direction of criminal justice reform centered on court trials. Third, the list of evidence provided by the prosecutors includes on-site audio-visual materials at the entrance of the Xushui District Public Security Bureau on August 4, 2020. If the source of these audiovisual materials is legal and has not been edited, it can more straightforwardly, comprehensively and truly reflect the situation on the scene that day than subjective and processed verbal evidence. They should definitely be shown first.
As it was already 18:00 in the evening, the court was adjourned for 30 minutes.
After the adjournment, Wang Shihua, representing some of the defense lawyers in the Dawu case, formally submitted to the court the “Defense lawyers’ legal opinion to request that investigators be held accountable for abusing their powers in carrying out illegal detention of Jin Fengyu, and the prosecutory organ be held accountable for failing its legal responsibility to enact oversight”.
The hearing resumed at 18:35. The collegial panel announced that it would once again reject the defending counsel’s application for exclusion of illegal evidence.
The prosecutors continued to present Sun Sanwu (孙志华, Sun Zhihua)’s interrogation transcripts. Sun Sanwu himself stated that most of the content did not reflect reality and asked the court to rely on his in-court testimony as the dispositive evidence. Other defendants also pointed out the contradictions between the transcripts and objective facts, such as incorrect records of the names of participants and the number of people gathered, among other inconsistencies. Sun Sanwu raised his hand and issued a supplementary opinion, explaining that the reason for the inaccurate transcripts was that he had long been unable to remember what happened on August 4, but the investigators told him: “Others have pleaded guilty. If you don’t confess, your guilt will increase in severity.”
In this regard, Sun Dawu stated during cross examination: “Now it seems that the prosecution’s attempt to turn this into a unjust, wrongful case against us was very difficult as well. This charge is clearly unfounded. The purpose of our visit to the district government and district public security bureau was very clear, and we deliberately avoided peak periods for fear of adverse effects. When you present this kind of evidence now, it is entirely for the purpose of framing people with guilt; it is despicable and false to present this kind of evidence!”
The defendant Ji Weilian (纪玮莲), who previously was also placed under RSDL and suffers from severe depression, said that she could understand how false interrogation transcripts could be created during residential surveillance. This is because — “Mr. Dawu said that during the RSDL period, life was worse than death. But if you ask me, I say words pale in comparison to reality. During the pre-trial meetings, the lawyers proposed to go back to the RSDL site for on-site inspection. I really didn’t want to go, because I trembled even when I thought about that environment.”
Sun Fushuo (孙福硕) was Sun Dawu’s second son. He expressed his confusion to the court: “Dawu Group has properties in Gaobeidian. Even the Dawu Wine Company and Food Company I am in charge of have offices in Gaobeidian. I just don’t understand why these places can’t be assigned to the group’s employees when they are placed under residential surveillance?”
And indeed, the cruelty of Residential Surveillance in a Designated Location, which Sun Dawu described as “life was worse than death”, could hardly be expressed in words. Perhaps only Sun Dawu’s own poem, which he read in court, could show the desperate situation of “I want to commit suicide, but even if I wanted to die they will not let me” at that time:
There is no sun, moon and stars but dazzling lights that blind me day and night, With two armed soldiers guarding me, six shifts a day, through long and tormentous hours. Fate is fickle, I am but a living corpse, eyes wide open, forbidden to speak. In unbearable suffering I hold on to faith, as I silently miss Dawu City.
During the trial, Sun Dawu said: “I am sitting on the defendant’s bench today. But who will be on the defendant’s bench in the future? It will be you!”
The Dawu trial will continue tomorrow at 9 o’clock.
Dawu legal team
July 17, 2021
Translated by China Change from 大午案第三日庭审简报
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