The Confusion of a Criminal Defense Lawyer:
As a professional criminal defense lawyer, one is often confronted with a number of queries in practice, ranging from strategy to technique. Roughly speaking, except for individual corrupt lawyers, good defense is increasingly showing two gradually clear factions in reality, that is, the technical and artistic factions.
The concepts of artistic and technical schools were first proposed by media personality Mr. Shen Yachuan in 2008. At the time, he felt that some lawyers' defense methods were quite similar to performance art, with every step of the operation spread through various ways, and the media following closely or even following suit. They tried to put pressure on the authorities, thus helping to win the final case or get other better results. This type of style is categorized as Artistic.
Other well-known lawyers focus their defense more on questioning technicalities and details, viewing defense primarily as a masculine profession. They will discuss the evidence and facts endlessly in court, skillfully use obscure terminology to explain simple issues, and are not good at, or even disdainful of, explaining to the media, unwilling to become the center of public attention. This type of style is then typically technical.
With more and more cases being handled, it is becoming more and more obvious to me that the impact of the judicial environment has caused both styles of defense to be in a difficult situation, especially in the so-called major cases and some sensitive cases. First of all, from the two cases recently undertaken.
Somewhere a deputy mayor suspected of bribery case, to accept the commission, has been almost in court. I went to see the client, who showed me the conditions in which he had been severely tortured to extract a confession, including bruises on his body and descriptions of details that could not be made up. When he finished, he said to me, "Counselor Zhang, I am just telling you about it now, and don't mention it when the trial is in session." I asked him, why don't you mention it? Because according to the rule of exclusion of illegal evidence, as soon as the trial begins the judge will ask the question of whether or not he has ever been coerced into making a confession. He said, "I'm also an old political law, I know it's useless to talk about this, and they have told me that as long as I don't mention this in court, my sentence will be very light and probation is possible."
This is a very tangled thing for me. Frankly, I don't believe in similar promises. But because of his insistence, and out of respect for my client, I focused the trial on the amount and circumstances, and defended him against the misdemeanor. In the end, he was sentenced to 11 years in prison. That is to say, the other side got the information that you pleaded guilty in court, and you helped the other side to solve such a big concern as illegal handling of the case, it simply made a sentence without fear. This is clearly an example of the failure of the technocratic defense.
Different from this is another appeal case, which was just a minor case, but I took over the second trial because I thought the first trial verdict was ridiculous. The case is like this: two people did business when a dispute arose, one of them with a watermelon knife to cut the other's car, the other hit him with his car (cut and hit the sequence is disputed, no clear evidence), the person who was hit slightly injured. The investigation had been in the vein of intentional injury, but the prosecution and sentence was changed to intentional homicide, which resulted in a five-year sentence.
Willful injury or intentional homicide was the focus of the second trial defense. In about half an hour of debate, almost all of which I was in the impassioned speech, from the facts, evidence to the logic of the different perspectives to analyze, why intentional homicide verdict from the legal theory is not right, from the composition of the crime is not right, and from the jurisprudence of the case is also not right. Prosecutors appearing in court to fulfill their duties simply could not refute, the court debate became a stage for me alone. However, I still said to the family of the person concerned after the court hearing that the case would probably be upheld. Why? Because criminal defense has been marginalized, whatever you say, anyway, useless.
In such a situation, the family had to call the judge and say: If you uphold the original verdict, I will commit suicide in front of your court. Originally, similar threats to the judge heard a lot, he will not be afraid. But perhaps the judge went to ask the court of first instance, and learned that this person had indeed cut his veins in the first trial sentencing. Just like that, not more than half an hour later, the judge called and asked, "Lawyer Zhang, what is the bottom line of what you can accept in this case?"
The more cases I handle, the less I know how to defend and how to be a good lawyer. Is it the artsy-fartsy kind? -- Let's say, once you take the case on Twitter, in the first time to interact with the media and public opinion, because this is the easiest time to form an aura, the police can not debate with you one-on-one, the degree of falsehoods are all you grasp, it is easy to create a news event, to the authorities to create a very big pressure. Once the public's emotions are aroused, it constitutes a force. When your opponent compromises, your client may get a relatively good and low-cost result.
Of course, that's not quite true, and if the authorities are determined to settle your case from the start, an aggressive approach may even lead to worse consequences, with your client receiving a heavier sentence. In the end, the Internet remembers the lawyer, not the client.
What exactly should be done? Is it a case where you can have an artsy-fartsy style lawyer first, and then switch to a techie-style lawyer when that doesn't work? The advantage of technical lawyers is to help the parties with the relevant departments to bargain, first for the sake of the other side, and then seek a lighter sentencing opportunities. However, as we all know, lawyers are individuals with independent personalities, and a case can only be summarized after the conclusion of the case, in the course of the case, in which direction things will develop and evolve, it is very difficult to predict. So the above scenario is just an idealized state.
The real confusion lies in the fact that neither the artistic nor the technical defense is directly related to the facts and evidence, and is even less helpful in promoting the rule of law. In an era where the decision to convict or not to convict, and the weight of the sentence depends mainly on the leader's instructions rather than on the evidence and the law, both the technical and artistic schools are nothing more than strange tricks in a distorted environment. Where are the basic rules of the profession of lawyer? What are the professional ethics? Is there any regularity in criminal defense? The questions are very confusing.
My conclusion is that it is a very, very difficult time to be a criminal defense lawyer in China. Due to the lack of basic rules and regulations, we can only fight to protect the rights and interests of our clients on the one hand and the remaining face of the law on the other in individual cases.