Zhang Gaoping: a 10-year travesty of justice

The release of Zhang Gaoping and his nephew after a decade in prison coincided withcalls for changes to a system that assumes accused guilty

PUBLISHED : Thursday, 27 June, 2013, 12:00am
UPDATED : Thursday, 27 June, 2013, 5:05am

On the night of May 18, 2003, Zhang Gaoping's life took a fateful turn.

Zhang was driving a truck with his nephew when they stopped to give a ride to a 17-year-old girl in eastern Zhejiang province. Within days, they found themselves the prime suspects in the teenager's rape and murder and were detained by provincial police.

So began a decade-long, nightmare journey through the very worst of the mainland's judicial system. Their ordeal only ended when they were released on appeal earlier this year.

Zhang told mainland media in April that he only learned of the murder when the police told him that he and his nephew had raped the girl before choking her to death.

For his first few days in custody, he was allowed neither sleep nor food. The police kept him handcuffed and forced him to do the splits for hours. Once, they filled his mouth with cigarettes, lit them and beat him whenever one burned faster than the others.

Zhang, then 38, and his 27-year-old nephew were charged with raping and murdering the girl. They signed confessions, but they did not match, and were unable to say where or when the girl was killed. The police, meanwhile, became aware of DNA evidence that pointed to another suspect.

Still, the pair were convicted. Zhang was given a death sentence, suspended for two years, while his nephew was jailed for 15 years.

The woman police officer who handled the case became a heroine, sharing with the media her successful experiences and making much of how she caught the two and made them confess in a relatively short time.

Both the police department and the court in Zhejiang said they could not comment on Zhang's case.

In a country long fixated on the threat of social instability, Zhang's case is far from unique. Police, prosecutors and judges regularly resolve complicated cases by fingering the most obvious suspects they can find and sentencing them based on confessions made under torture. Suspects are often presumed guilty, rather than innocent.

More than 99 per cent of people charged with a crime in 2009 were convicted and sentenced, according to the Yearbook of China Law . Even that would not be enough to please perfectionist officials; many courts and prosecutors scramble to present 100 per cent conviction rates in their annual reviews. "The pursuing of a perfect conviction rate left little room for lawyers to appeal," said Zhang's lawyer Zhu Mingyong, who said his client had been one of the lucky ones.

Zhang declined interview requests from the Post, saying he believed that talking to media from outside the mainland would upset local authorities.

There is a twist to Zhang's case. His repeated petitions in prison attracted the attention of a now-retired prosecutor, who called for the case to be reinvestigated. A court eventually ruled that the evidence presented in the original case was not sufficient to warrant conviction, while the DNA findings pointed to another person.

Soon after Zhang walked out of prison in March, the nation's second-ranked judge Shen Deyong wrote an article in state media urging judges to end miscarriages of justice and to change the old notion that a suspect is presumed guilty.

"It is preferable to spare guilty people than to hand down wrongful punishment to the innocent," wrote Shen, executive vice-president of the country's highest court, the Supreme People's Court, in the court's official daily early last month.

He said the mindset under which law enforcers adopted a "presumption of guilt" instead of one of innocence had caused a string of miscarriages of justice and inflicted unprecedented challenges on the courts.

Professor Jerome Cohen, an expert in Chinese law at New York University, said the remark was a landmark statement uttered at a time when observers and participants were looking for clues as to the direction of the judiciary under President Xi Jinping's administration.

"Shen's essay comes at an important time in the Chinese Communist Party's ongoing internal struggle to deal with one of its major challenges - how to meet the increasingly sophisticated popular demands for justice and courts one can trust," Cohen said.

Xi said in a December speech marking the 30th anniversary of China's constitution that unless the constitution was applied, the charter would be lifeless and without authority.

Analysts say Shen's remarks hint at something unique in a country where the presumption of guilt has been practised from the early dynasties to the communist era.

Confessions under torture have historically been admissible, and officials in feudal times would flog suspects in court to make them admit their crimes. During the Cultural Revolution, those accused of plotting against the party or the state were commonly sentenced without trial, and anyone protesting their innocence was considered to be challenging the government.

There was a move towards the presumption of innocence as the country reformed in the early 1990s, and in May 1996 the notion was adopted into the law for the first time since the communists took power in 1949. The revised criminal code also increased suspects' access to counsel, and gave defence lawyers the chance to challenge prosecutors.

A study last year by the law school of Shanghai Jiao Tong University showed that the new criminal code did appear to be having an effect. While about 99.6 per cent of defendants were convicted in 1996, the figure fell to 98.2 per cent in 2002.

But conviction rates have risen sharply since 2003, the year Beijing stepped up its efforts to maintain social stability. The government poured billions of yuan into internal security under the slogan of "stability is paramount", and gave greater power to police and security officials.

One problem is that judges fall under the supervision of a party organ called a political-legal committee, which makes the final decision on cases in courts at all levels.

"The courts, like the police and procurators, are all subject to the co-ordination of the party's political-legal committees and other party and local officials who control them," Cohen said.

"Judges have close ties to prosecutors and police, and are reluctant to publicly reject their charges. In cases where courts believe proof is lacking, rather than embarrass their colleagues and the party by reaching a not-guilty verdict, they will send the case back for further investigation, adjustment and disposition."

In his carefully hedged remarks, Shen admitted that judges were under pressure and faced interference from "all sides". He said it was difficult to give justice based on the presumption of innocence to the prosecuted suspects.

"It's already very hard for the courts to make rulings that could give leeway for the suspects," he said, referring to Zhang's case.

The problem of presumed guilt intensified in 2010 after a speech by the then president of the Supreme People's Court.

Wang Shengjun , who retired in March, said at a national judicial meeting that the appraisal of judges should be based on a "scientific performance evaluation mechanism". Wang, who was not legally trained, also said a court's decision on punishment should take into account not only the rule of law but also public perception.

Since Wang's remarks, most judges have been assessed on their conviction rate, not on whether their rulings are correct.

"The only way that you could get promotion is to have a perfect score on the conviction rate," one local judge from Hebei province said.

He Weifang , a prominent law professor from Peking University, said presumption of innocence was a requirement for justice, and that the government had to realise that security and justice were linked.

"The government has been treating security as more important than justice to maintain social stability. And in that case, those who have the possibility to challenge the government are normally considered to be guilty," he said. "If ordinary Chinese can grow to trust the courts and the legal system, then it would be easier for the government to maintain stability."

He, like many other law experts on the mainland, also praised Shen for saying that if the presumption of innocence could apply in reality, the subtle change could offer a glimmer of hope for the country's legal reform.

One positive sign is that mainland media have recently exposed a handful of cases like Zhang's, in a break from normal practice. Judges are usually provided with at least some protection from scrutiny.

But for Zhang, life will never be the same again.

He and his nephew each received about 1.1 million yuan (HK$1.25 million) in compensation late last month. But the money will do little to erase his bitter memories.

His logistics business had made him one of the richest men in his village before his arrest, while his nephew had been due to marry. But Zhang ended up bankrupt and his nephew's relationship broke up.

In an interview after his release, Zhang said he was still filled with hatred for those responsible for his incarceration and would not forgive them.

On the day of his release, Zhang said in court: "Today you are judges and prosecutors, but your descendants won't necessarily be the same. If there is no change in institutions and laws, your descendants could be wrongfully accused like us."