Brief introduction of the case Dong Moumou, male, born in August, 1968, from a county in Zhejiang Province. Suspected of smuggling and selling drugs, he was criminally detained by a county public security bureau 1994 on February 27th, and transferred for review on February 27th. 1996 was arrested by a county people's procuratorate on September 27th. 1997 March 10, the people's procuratorate of Wenzhou city, Zhejiang province filed a public prosecution with the Wenzhou intermediate people's court for the crime of smuggling and selling drugs. 1On May 7, 1997, Wenzhou Intermediate People's Court of Zhejiang Province issued (1997) No.40 criminal judgment, sentenced the defendant Dong Moumou to death and deprived him of political rights for life for the crime of smuggling and selling drugs. Dong Moumou refused to accept the appeal. During the second trial, lawyer Tang Guohua, the defender, submitted a reply to the Zhejiang Higher People's Court, arguing that the facts of the first-instance judgment were unclear and the evidence was insufficient, which might lead to serious injustice. 1998 10.5, Zhejiang Higher People's Court made a criminal ruling (1998)No. 1997-402, ruling that criminal judgment No.40 of Wenzhou Intermediate People's Court (1997) was revoked and sent back to Wenzhou. On April 30, 2000, Wenzhou Intermediate People's Court made criminal judgments (2000) No.85 and No.86. Criminal judgment once again found Dong guilty of smuggling and drug trafficking, sentenced him to life imprisonment, deprived of his political rights for life, and confiscated all his personal property. Dong Moumou still refused to accept and appealed again. During the second trial of Zhejiang Higher People's Court, lawyer Tang Guohua, the defender, submitted a defense, saying that the retrial judgment was still unclear and the evidence was insufficient, and asked Zhejiang Higher People's Court to directly acquit Dong Moumou. On February 9, 20001year, Zhejiang Higher People's Court made a criminal ruling of (2000) No.339, and again ruled that the criminal judgments of Wenzhou Intermediate People's Court (2000) No.85 and No.86 were revoked and sent back to Wenzhou Intermediate People's Court for retrial. On June 5438+1October 2003 10, the People's Procuratorate of Wenzhou City, Zhejiang Province continued to file a public prosecution with the Wenzhou Intermediate People's Court for the crime of smuggling and selling drugs. Finally, on June 25th, 2003, Wenzhou Intermediate People's Court made a criminal judgment of (2003) Wen Penalty No.29, and decided that Dong was not guilty. Dong Moumou applied for state compensation after being acquitted. On June 2, 2003, Wenzhou Intermediate People's Court and Wenzhou People's Procuratorate made a decision (2003)No. 1 to compensate Dong for his violation of personal freedom * * 146559.76 yuan.
Focus of controversy
The court of first instance and the court of first instance for retrial found the defendants guilty of smuggling and drug trafficking only on the basis of the inconsistent confessions of the defendants Dong Moumou, Chen Moumou, Ye Moumou and Li Moumou and the testimony of the only witness.
The court of first instance found that the defendants Dong Moumou, Chen Moumou, Ye Moumou, Su Moumou and Li Moumou (all sentenced) met in Lincang County, Yunnan Province in June 5438+0992 and plotted to smuggle heroin out of the country. Defendants Dong Moumou contributed 5 1000 yuan, Chen Moumou contributed 33,500 yuan, Ye Moumou, Su Moumou and Li Moumou respectively contributed more than 200,000 yuan to smuggle 54 heroin from Myanmar at a price of more than 220,000 yuan, with a total weight of 18900 grams. Then put it on the roller of the bronzing machine and transport it to Lufeng City, Guangzhou. Dong Moumou sold it at a price of 68,000 yuan per 1 kg, and * * * shared the stolen money 1.2 million yuan. The evidences to prove the above facts are as follows: (1) The defendants Dong Moumou and Chen Moumou confessed to the public security organs the fact of participating in heroin trafficking; (2) Liu, Ye and Li confessed to smuggling heroin with Dong respectively; (3) Confirmed that Chen was involved in the trafficking of heroin. The court of first instance held that the defendants Dong Moumou and Chen Moumou, in order to gain illegal benefits, collaborated with others to smuggle and sell heroin, and their actions constituted the crime of smuggling and selling drugs. Wenzhou Municipal People's Procuratorate found the crime guilty. The defendant and his defender's excuses are not sufficient and will not be adopted.
The court of first instance found that the defendants Dong Moumou, Chen Moumou, Ye Moumou, Su Moumou and Li Moumou (all sentenced) fled to Lincang County, Yunnan Province in June 5438+0992, and conspired with * * * to buy heroin abroad. Then, the defendants Dong Moumou, Ye Moumou left the country to buy 54 heroin from drug dealers in Kokang County, Myanmar. After cross-examination by the court, the evidences confirming the above facts are as follows: (1) accomplices Ye Moumou, Li Moumou and Su Moumou jointly confessed the facts of drug trafficking with Dong Moumou, Chen Moumou at the investigation stage of 1992 10; (2) The testimony of the witness confirmed the fact that the defendants Chen Moumou, Su Moumou and Li Moumou were involved in drug trafficking; (3) Defendants Liu and Chen confessed their involvement in drug trafficking during the investigation stage.
Defendants Dong Moumou, Chen Moumou and their defenders all believe that the facts of this case are unclear and the evidence is insufficient. After investigation, this case is the first time that Ye Moumou, an accomplice, confessed to drug trafficking with Dong Moumou, Li Moumou and Su Moumou in Yongde County, Yunnan Province on June 3, 1992+00. Then, a public security bureau arrested the defendant Dong Moumou in southern Tibet on 1994 12 14, and Dong denied his involvement in drug trafficking. Therefore, the Public Security Bureau of Nanzang County went to Kunming Detention Center of Yunnan Province for questioning on September 25th 1995, and Li confessed the drug trafficking with Dong Moumou, Su Moumou, Ye Moumou and others in Yunnan on September 25th 1992. 199510 June 14, the defendant Liu was taken into custody for examination, and Liu confessed to the fact that he was involved in drug trafficking; In June 65438+1October 65438+July of the same year, the defendant Chen was also taken into custody for examination and confessed the fact of participating in drug trafficking; 199565438+On February 7th, Li was arraigned again in Kunming Detention Center, and Li once again explained the process of participating in drug trafficking. Although the confessions of three drug-trafficking defendants and accomplices are not consistent in some details, judging from the confession process and content of the above defendants and accomplices, it does not affect the determination of the basic facts of this case. Therefore, the basic facts of the three defendants involved in drug trafficking in this case are clear, and the three defendants and their defenders argue that the facts of this case are unclear and the evidence is insufficient, so they will not be adopted. Defendants Dong Moumou, Chen Moumou colluded with others to smuggle and sell heroin for illegal profit, all of which constituted the crime of smuggling and selling drugs. Wenzhou People's Procuratorate was accused of a crime.
Counsel's opinion:
(1) Judging from the relationship between the defendant's testimonies, they are contradictory and cannot be mutually confirmed. Even the testimony of every two people can't confirm each other. 1. About the time of committing crimes, some said1September 992,1October, and some said 1 1 month.
2. Regarding the number of participants, Ye Moumou called 5 people, Chen Moumou called 8 people and some called 6 people. Liu said that he just sent money to Kunming, and he didn't participate. Su Moumou said that Dong Moumou was not in the drug trafficking stage at all, which was far from the facts of the accusation.
3. Regarding the location of alliance, some said Kunming, some said Lincang, some said Gengma, some said Mengding, some said Zhenkang, and some confessed that there was no location of alliance at all.
4. About how to invest in partnership. There are different opinions about how to organize a group; As for the contribution, everyone claimed that he didn't know about the contribution of others except himself. Ye claimed 5000 yuan, Chen claimed 33500 yuan, Li claimed 7000 yuan, Dong borrowed 10000 yuan, Su claimed 5000 yuan, etc. The sum of the capital contributions advocated by the defendants is only 65,438+10,000 yuan, and the so-called individual capital contribution judgment is only based on each other. I don't know where the figure of 255,000 yuan identified in the indictment came from, but the retrial judgment of this case did not identify the amount of funds raised at all.
5. Regarding the quantity and quantity of smuggled drugs, each defendant claimed that he did not leave the country, but two or three others left the country to smuggle drugs in Myanmar. Ye said that Liu left Myanmar to buy from Peng Rongji, and Liu said that he would only send money to Yunnan, while Dong, Ye and Su left the country. Li Wei mentioned leaving the country. In addition, the defendant confessed that there were no specific facts about how to smuggle drugs.
I don't know how 54 pieces of 18900 grams of smuggled drugs were determined in the original judgment. Was it named or identified by the defendant? 6. Regarding transportation, the defendants have different opinions on how to transport drugs after smuggling out of the country, and the routes, personnel and methods are different.
7. As for the tools for committing crimes, most of them are called stamping machine rollers, and some are called iron pipes. Different quantities have different sources. Some were brought from Dong's hometown, some were picked up on the road, and some were brought back from Myanmar.
Su Moumou said that he specially ordered a big suitcase in Fujian for drug trafficking.
* * * Similarly, no one has seen the drum of the so-called bronzing machine, nor have the public, procuratorial and legal departments seen it, let alone show physical evidence, and even have no samples.
8. Regarding the drug trafficking process, some said that it was sold to Dong, while others said that it was sold directly to Lufeng. Who wants to go to Lufeng, how to sell it to the next home, how to know the selling price, how to settle the account, and on what basis? Dong also claimed to have sold it to Lufeng Zhang Moumou (living atNo. 1 18, Zhanqian Street, Lufeng City), and traded it in Lufeng Xinxin Hotel, where he shared the spoils. Ye claimed to have sold it to the boss surnamed Lin.
The indictment also confirmed that it was sold to Lufeng Zhang Moumou.
However, according to the field investigation conducted by our defender in Lufeng, with the cooperation of Lufeng Public Security Bureau, it is verified that there is no "Zhang Moumou", with the cooperation of the Planning Department of the Municipal Construction Committee, there is no "Zhanqian Street", and there is no 1 18, and with the cooperation of the Industrial and Commercial Bureau, there is no "Xinxin Hostel".
So it's all bullshit. Unfortunately, the original judgment was based on the confession of the defendant, and it was sold to Lufeng.
9. About the location of the stolen goods, some said it was in Dong's house, some said it was in Lufeng Xinxin Hotel, and some said it was in Li's house.
10. About the amount of stolen goods, some people say that each person is several thousand yuan, while others say that each person is several hundred thousand yuan, with different sizes.
According to the logic of the original trial, as long as you admit that you have been to Myanmar to buy drugs, you can decide to smuggle; As long as you admit to selling, you can decide to sell drugs. As for the specific criminal facts and evidence, it is not important. Time, place, people, process, price and amount can be ignored. But without the above specific circumstances, what are the facts? (2) Judging from the authenticity of each defendant's confession, the form and content are not true.
1. Confession about Ye Moumou
(1) is incorrect.
Ye Moumou confessed that he was involved in drug trafficking with "Dong Moumou of Xiabao Village and Li Moumou of Village", but Ye Moumou himself, as a member of Xiabao Village, should be very clear that Dong is not a member of Xiabao Village, and it should be clear that there is no Dong family in Xiabao Village, and Li Moumou is not a member of the village.
Therefore, it should not be that Ye himself said that "Dong XX of Xiabao Village" was so unreasonable.
There is no gang process, and it cannot be confirmed by other confessions.
Ye invested 5,000 yuan, but got 270,000 yuan, with a profit of 54 times. What is the basis? According to this logic, if Dong contributed 50,000 yuan, shouldn't he get 2.7 million yuan? (2) The source is suspicious
According to the investigation report of a county public security bureau on this case,1June 1994, the anti-drug brigade of a county public security bureau was assisting the Yongde County Public Security Bureau in Yunnan Province to investigate a drug addict, and learned that Dong had drug trafficking behavior, and then solved the case, and so on.
The report's statement is pure fabrication, because Ye was sentenced to death by the Intermediate People's Court of Lincang District, Yunnan Province at that time, and there was no statement that Yongde County Public Security Bureau investigated, let alone invited a county public security bureau to assist in the investigation. The written testimony of Duan Moumou, the anti-drug brigade of Yongde County Public Security Bureau, has denied this untrue statement.
Interrogator Lin Moumou did not go to Kunming to investigate at that time, but took some leaders or cadres of a county public security bureau and county to Yunnan for investigation. When leaving Kunming, Lin was entrusted by someone in the delegation and went to Yongde County alone with a letter of introduction.
At that time, a county public security bureau did not file a case, Lin's behavior did not belong to the investigation, and his testimony did not belong to the investigation.
After obtaining the confession 1994 on June 3, such a big case was not immediately handed over to the local public security department in Yunnan, nor was it filed for investigation. It is very unreasonable that one Dong Moumou was admitted after half a year, and the rest of the people involved were not arrested.
(3) the form is illegal
The whole confession was only written by the arranger Lin Moumou. There is no signature of Duan Moumou, an escort of Yongde County Public Security Bureau. The signature in the middle of the confession is not Ye's signature (Ye is a junior high school student). Article 95 of the Criminal Procedure Law stipulates that the criminal suspect shall sign or seal, and the investigator shall also sign the record.
The whole transcript lacks standardized recording procedures, and there is no introduction to the interrogator's self-identity and interrogation nature. There is no interrogation of Ye's crimes in Yunnan, but the spearhead is directed at Dong Moumou.
(4) In all the interrogation transcripts and judgments of the Yunnan case, Ye did not have any confessions and clues about this case. Therefore, this confession is suspected of serious forgery.
2. Confessions about Li Moumou and Su Moumou
(1) The confessions of Li and Su were induced, and the guilty confessions were overturned when they were brought before a county procuratorate; (2) Li's two confessions are also obviously contradictory; (3) Su Moumou's confession is completely another "story"; (4) There is no content or clue about this case in all interrogation transcripts and judgments of the two criminals in Yunnan.
3. About Dong Moumou's confession
(1) extorting a confession by torture is the only reason for this confession; (2) The contents of drug trafficking are found to be false; (3) The retrial judgment in this case has also denied the guilty confession.
4. Confessions of Liu and Chen
For unknown reasons, both of them denied the charges in court. Written evidence and other evidence can't confirm each other.
(3) Judging from the sufficiency of the evidence in the whole case, there is no other evidence in this case except the defendant's confession.
1. Lack of witness testimony.
Except for the testimony of Chen's sister, there is no witness's testimony, which is still the confession of an accomplice.
However, Chen Mou's testimony did not involve Dong Moumou. Although Chen was mentioned to have been involved in drug trafficking twice, it was in 1 September 1992 and 1 1 June, not1June, and the specific process could not be mutually confirmed with Chen or other testimonies.
2. There is no physical evidence.
There is no evidence of heroin, no evidence of criminal tools such as stamping machine rollers (even samples), and no evidence of stolen money.
3. There is no appraisal conclusion.
According to the Supreme People's Court's judicial interpretation on punishing drug-related crimes, it is believed that drug-related crimes can only be recognized as drugs if they have the drug appraisal conclusion of judicial organs.
There is no material evidence and no expert conclusion in this case.
4. There is no relevant documentary evidence.
Such as bills that can prove the defendant's drug trafficking, accommodation invoice and so on.
5. The relevant effective legal documents denied the case.
As stated in the original judgment, Ye Moumou, Li Moumou and Su Moumou have all been sentenced for other cases. The relevant criminal ruling of Yunnan Higher People's Court proves that these three convicted charges are not the charges that were accused and determined and sentenced in the original trial of this case, but only irrelevant to this case; Ye was sentenced in Lincang, and Li and Su were sentenced in Kunming. The judgments of the two cases did not identify the case, and all the confessions of the two cases had no clues about the case.
(4) Judging from the cross-examination in court, all defendants denied the charges.
(5) From the retrial procedure, there is no new evidence.
(6) The investigation organ illegally obtains evidence.
1. There is a serious torture against Dong Moumou.
Dong insisted that he was not guilty, and the only confession was that on July 3 1, 1996, Dong was hanged by investigators for two days, and suffered serious physical and mental injuries, that is, the confession that included drug trafficking to Lufeng "Zhang Moumou".
At the original trial, the public prosecutor said that there was no evidence for extorting a confession by torture and it was not recognized. The defender immediately pointed out that the fact that the defense could not obtain evidence did not mean that there was no fact of extorting a confession by torture. As a procuratorial organ, it is very wrong to grant asylum instead of stopping investigating this serious illegal act.
Moreover, many prisoners in the detention center saw Dong's injury and Dong's complaint. After being tortured for seven days, entrusted by a county political and legal committee, a county court forensic doctor made a medical appraisal.
2. There is illegal induction to Li Moumou and Su Moumou.
In this case, Li and Su admitted the so-called drug trafficking process, but they clarified it when they were arraigned by a county procuratorate. The testimony was the result of the confession of the relevant personnel of a county public security bureau. Actually, there is no such thing!
3. Other defendants were extorted by torture to varying degrees.
Chen and Liu claimed that their confession was the result of torture.
According to the Supreme People's Court's judicial interpretation on the handling of criminal cases by the people's courts, evidence obtained through illegal acts such as extorting confessions by torture or inducing confessions shall not be regarded as conclusive evidence.
Such a case is not clear how the drug came from and how it was sold. Full of contradictions, there is no evidence except a small amount of confession. In such a case, from 1994 to 12, the defendant has been locked up for five years and eight months. Dong was sentenced to death first and then to life imprisonment. If such an unwarranted case can be finalized, there will be no case that cannot cure people.
(7) The case should be acquitted.
The procurator of Zhejiang People's Procuratorate, who attended the trial of the second instance of this case and performed the function of legal supervision, has the same basic understanding of this case as the defender and the relevant criminal ruling of Zhejiang Higher People's Court, that is, the facts of this case are unclear and the evidence is insufficient.
Item (3) of Article 162 of the Criminal Procedure Law of People's Republic of China (PRC) stipulates: "If the defendant cannot be found guilty due to insufficient evidence, the accused crime cannot be established due to insufficient evidence, and a verdict of acquittal shall be made."
The case has been sent back for retrial, but the defendant was still sentenced to life imprisonment without any new evidence. Defenders believe that it is meaningless to send the case back for retrial again, which is not conducive to the correct solution of the case, and will cause the case to be extended or abandoned indefinitely, causing serious damage to the legitimate rights and interests of citizens. The three appellants in this case have been detained for nearly six years. How many years will they have to be imprisoned before they can get the justice they deserve? The evidence in this case is seriously insufficient, and the defendant cannot be found guilty, which is a major unjust, false and wrong case. In the retrial of this case, without new evidence, the defendant was sentenced to life imprisonment again, which violated the law and the relevant criminal ruling of Zhejiang Higher People's Court, and the defendant should be acquitted according to law.
Trial judgment
The court of first instance found that five people, including Dong Moumou, "raised more than 200,000 yuan" in June 1992+00, and "smuggled 54 pieces of heroin abroad in partnership" * * * "18900g" was sold by Dong Moumou, and "* * got120,000 yuan". Wenzhou Municipal People's Procuratorate found the crime guilty. The defender argued that there was insufficient evidence to determine Dong's crime. The confessions of the defendants can't be mutually verified, and the defense reason that the method of obtaining evidence is illegal is not sufficient and will not be adopted. On May 7th, criminal judgment 1997 was made (1997) No.40, and Dong was found guilty of smuggling and drug trafficking according to law, sentenced to death and deprived of political rights for life. Dong Moumou refused to accept the appeal and appealed to the Higher People's Court of Zhejiang Province. 1998 10.5, Zhejiang Higher People's Court made a criminal ruling (1998)No. 102. 1997-402, considering that the facts of the original judgment were unclear and the evidence was insufficient, ruled to cancel Wenzhou Intermediate People's Court (1997). After trial, Wenzhou Intermediate People's Court found that Dong Moumou was guilty of smuggling and drug trafficking, and the number of drugs sold was still "18900g", and the defender's defense opinions with unclear facts and insufficient evidence were still not adopted. On April 30, 2000, Wenzhou Intermediate People's Court made criminal judgments (2000) No.85 and No.86. Criminal judgment once again found Dong guilty of smuggling and drug trafficking, sentenced him to life imprisonment, deprived of his political rights for life, and confiscated all his personal property. Dong Moumou once again expressed dissatisfaction. After trial, the Higher People's Court of Zhejiang Province held that the facts of the defendants Dong Moumou, Chen Moumou and others smuggling and selling drugs were unclear and the evidence was insufficient. Defendants Dong Moumou, Chen Moumou and co-defendants Ye Moumou and Li Moumou confessed to different criminal circumstances and could not confirm each other. Later, the co-defendants Ye Moumou and Li Moumou overturned the previous confession, and the defendant Dong Moumou once admitted that the confession of smuggling and selling drugs was caused by extorting confessions by torture; The testimony of the only witness in this case cannot be mutually confirmed with the statements made by the defendants Dong Moumou, Chen Moumou and his co-defendants Ye Moumou and Li Moumou. There is no material evidence in this case. Both the public prosecutor and the defender who appeared in court thought that the facts of the case were unclear and the evidence was insufficient, and they put forward opinions that could not be finalized and adopted them. On February 9, 2006, at 5438+0, the Higher People's Court of Zhejiang Province made a criminal ruling (ZZZZZZZZ (2000) No.339), and again ruled that the criminal judgments of Wenzhou Intermediate People's Court (2000) No.85 and No.86 were revoked and sent back to Wenzhou Intermediate People's Court for retrial. After trial, Wenzhou Intermediate People's Court held that the confessions listed by defendants Dong Moumou, Chen Moumou, co-defendants Ye Moumou and Li Moumou in court and the testimony of witnesses were not enough to confirm the criminal facts alleged in the indictment. The confessions of defendants Dong Moumou, Chen Moumou and co-defendants Ye Moumou and Li Moumou are inconsistent in many aspects, such as drug users leaving the country, personal investment, and the amount of stolen goods, and cannot be mutually confirmed. The charges accused by the public prosecution agency could not be established, and the defense of the defendant Dong Moumou and his defender was adopted. On June 25, 2003, Wenzhou Intermediate People's Court made a criminal judgment of (2003) Wen Punishment No.29, and sentenced Dong Moumou not guilty.
Classical analysis
1. Ask lengthy questions in litigation
Dong was detained on suspicion of drug trafficking in February of 1994 14, released on bail on February 27th of the same year, arrested on October 4th of 1996/kloc-0, and acquitted in June of 2003 for eight years.
2. The case is difficult and complicated.
Dong was sentenced to death by Wenzhou Intermediate People's Court in the first instance, and was sentenced to life imprisonment again after being sent back for retrial by Zhejiang High Court. The Higher People's Court of Zhejiang Province sent it back for retrial for the second time, and Dong was finally acquitted. It is rare for a criminal case to be sent back for retrial twice.
3. The judgment results are quite different.
After the Wenzhou Municipal People's Procuratorate filed a public prosecution, it was sentenced to death in the first instance, and finally all the evidence was denied. Dong Moumou was acquitted.
4. Great social impact
The case of Dong Moumou aroused strong repercussions among the local people and attracted great attention from the news media. On April 15, 2002, Outlook News Weekly took the lead in publishing issue 16, entitled "Why the unjust prison death penalty case has not been corrected for a long time". The article is fiercely worded and sharply criticizes the question: "Why is such an unwarranted case difficult to correct for a long time? What is the deep-seated reason behind it? " Since then, Youth Times and Hangzhou Daily have also disclosed this rare misjudged case.
The lawyer insisted on defending for eight years and finally succeeded.
Entrusted by Dong Moumou's family, Tang Guohua has been Dong Moumou's defender since the end of 1996, and went to Yunnan, Guangxi, Wenzhou and other places at his own expense to investigate and collect evidence, and got a lot of first-hand information. After Dong was sentenced to death in the first instance, lawyers actively fought for Dong's appeal. The Higher People's Court of Zhejiang Province adopted lawyer Tang Guohua's defense opinion, arguing that the evidence in this case was seriously insufficient, the existing evidence was contradictory, and there were serious problems such as extorting confessions by torture and forging confessions, and sent the case back for retrial twice. 2003125 October, 65438, was finally acquitted in the fifth trial of this case. Dong Moumou regained his freedom from death row.