Defendant Guoqing Liang was charged with intentional injury.
The presiding judge and jurors:
? According to the law, Beijing Ziguangda Law Firm and Sichuan Youtong Law Firm respectively accepted the entrustment of the defendant Guoqing Liang and appointed us as their defenders. Appear in court today in accordance with the law and perform defense duties.
After accepting the case, the defender carefully consulted all the case files and met the defendant many times. 14 participated in court investigation twice in February and today, and just listened to the public prosecution opinion of the prosecutor. At this point, the defender accused the defendant Guoqing Liang of intentional injury in the indictment No.990 of the People's Procuratorate of Chengdu High-tech Zone (20 16), and had great objections to the factual evidence and the core issues of crime and non-crime. To this end, we decided not to plead guilty.
? The defense will be launched from the following three aspects:
The first question: Is the substance released by the defendant Guoqing Liang a substance containing methyltestosterone or vitamin B 1? (Keywords: methyltestosterone)
The second question: Is the victim's elevated transaminase caused by taking methyltestosterone or other complicated factors that cannot be ruled out? (Keywords: transaminase)
The third question: Does the physical examination index of the victim Zhao constitute minor liver injury or within the normal range? (Keywords: liver injury)
? Now I would like to put forward the following defense opinions:
? The first question: Is the substance released by the defendant Guoqing Liang a substance containing methyltestosterone or vitamin B 1?
? The legal significance of the defender's claim lies in that, as a case of intentional injury, its criminal tools for hurting others are very important. However, as of today's debate stage, neither the prosecution nor the trial have seen the criminal tools in this case, just as the murder case has not seen the murder weapon. As for the shape of the substance containing methyltestosterone in this case? What color? What operator? Where did it come from? How it became a criminal tool in this case is unknown. Although the investigation agency tried to find the source of methyltestosterone by various means, it failed in the end.
? To this end, the defender raised the following questions about the criminal tools in this case:
? First, the physical evidence submitted for inspection in this case has been contacted, decomposed, kept and transported by dozens of people, and the reasonable suspicion of being maliciously added or replaced is not ruled out.
The court investigation confirmed that the "material evidence" as a criminal tool in this case, although collected in an organized and leading way, still belongs to the citizens themselves and has no criminal evidence effect. According to the law, these collected articles cannot be used as material evidence or criminal evidence, unless the investigators examine and register the owner or custodian of the articles and the articles involved in the case according to law, and finally give them the legal elements of criminal evidence.
? However, to the defender's surprise, the material evidence in this case has been collected, extracted, repackaged, kept, transported and circulated by more than ten people in the defendant company. During the eight days from September 2 1 to September 28, the number of people who handled it was as high as 12, the number of people who kept it was as high as six, and there were as many as five storage places (including the police station for half a month). The five original "evidences" collected at the beginning (one needle and five bottles) were decomposed by the above personnel many times, and finally became 10 "evidences". It is in this countless tossing and turning process that this vitamin B 1, initially proved by witness Liu Bin and always confessed by Guoqing Liang, and proved by a small white bottle of physical evidence and words, appeared in the appraisal invitation the next day when the physical evidence was retrieved, which is the appraisal direction with "whether it contains methyltestosterone". Subsequently, this 10 project became the charge that the procuratorate accused the defendant Guoqing Liang of intentional injury today.
2. As an interested party in Guoqing Liang, Xu Feng personally participated in the whole process of collection, storage, decomposition and transportation of criminal material evidence, belonging to the person who gave the most testimony and had the most contact with material evidence in this case.
According to the investigation of the court, the defendant Guoqing Liang was in charge of the overall work without any administrative duties of Xu Fengyun, the deputy director, which made Xu Fengyun very dissatisfied. This is undoubtedly a conflict of interest formed by post promotion. However, it is this Xu Fengyun, not only the organization and leader of the material evidence collection in this case, but also the handlers, subcontractors, custodians, providers, seal holders of all material evidence, and even the "witnesses" who lied to witness the unpacking process of material evidence? . ?
? In addition, according to three female colleagues, Xu Fengyun not only arranged for them to collect mineral water bottles filled with liquid, but also asked them to keep them. However, Ling proved that only Xu Fengyun had the key to the mineral water bottle. Two days later, Xu Fengyun took the bottle and sealed it himself. In fact, the seal printed by our hospital has neither a signature nor a code. Even if it is torn a hundred times, no one knows it, and it has no legal significance.
There is another point that is even more puzzling. The video of the office has been working, but there is no video of the process of collecting mineral water bottles at work that day, and there is no way to consider the liquid in the bottles. Where did the water in this bottle come from? The case file proves that neither the defendant nor the victim knows. In the supplementary investigation stage of this case, the defender asked for the video in writing, but the People's Procuratorate of High-tech Zone did not ask for it, let alone explain it. Why? Has the video been edited and deleted? If so, has there been any professional appraisal on whether the relevant videos have been edited or deleted?
? In addition, the defender also noticed that the investigation organ seems to have doubts about the authenticity of these evidences and collected evidence of Xu Fengyun's personality and morality. Regrettably, Xu Fengyun has just been given a negative comment by a male colleague: that is, "this person is very selfish, cares about personal interests and is unwilling to suffer hardships" (witness Liu Bo). This assessment of personality further confirmed the truth of Guoqing Liang's statement that they were interested.
? Three, the public security organs have serious procedural violations in the process of obtaining material evidence and identifying employment.
In view of the confusion and illegality in the collection, storage, decomposition and circulation of material evidence in this case, the public security organs should strictly follow the provisions of the Criminal Procedure Law and perform legal procedures when collecting material evidence, so that these ordinary items can finally meet the relevance, legitimacy and authenticity of criminal evidence. However, the investigating authorities did not do so:
? 1. The Information Statement issued by the public security organ is seriously inconsistent with the facts and evidence reflected in the case file, which violates the procedural law and is suspected of authority fraud.
? According to Article 45 and Article 140 of the Criminal Procedure Law, the seized material evidence shall be checked with the witnesses and the material evidence holders present, and a list shall be made in duplicate on the spot, which shall be signed or sealed by the investigators, witnesses and holders, one for the holder and one for the file. This is a compulsory procedure for investigation organs to obtain evidence as stipulated in the Criminal Procedure Law.
? According to the description of Xiaojiahe police station on June 8, 2006+2006+65438+2006, Dong Zhang and Wang Liang were police officers who collected physical evidence, and Yu Zhou and Cao Shu were police officers who checked the registered physical evidence out of the box. The location of unpacking and checking was the police station. Xu Fengyun witnessed the unpacking and counting of physical evidence. This explanation is obviously wrong.
? The evidence in the case file proves that Dong Zhang and Wang Liang extracted four physical evidence packages from Longquanyi Headquarters on September 28th, 20 15, and the contents were not checked on the spot. At the same time, the two policemen left no trace in the case file. According to the literature, the four packages recovered were kept in the police station until 20 15, 10 and 16, and Cao Shuhe opened the box and counted them. Documentary evidence shows that there are no physical evidence holders and witnesses present when unpacking and counting, and there is no evidence list signed by witnesses. There are also photos and evidence collection lists of 10 without Xu Fengyun's signature and corresponding records. It can be concluded that the process of unpacking, counting and registering is carried out by one policeman, and Xu Fengyun did not witness the whole process of unpacking and registering the physical evidence by two policemen.
? Regarding Xu Fengyun's supplementary signature mentioned in the explanation, it was found that he signed the supplementary signature on four unopened photos of the physical evidence package on May 6, 201June one year later, that is, he only signed the unopened package, not the on-site signature after unpacking the physical evidence. If you don't witness it on the spot and sign it a year later, isn't it equivalent to fulfilling the obligation of witnessing?
? Please pay attention to the court, the witness is a legal act to personally prove the authenticity of an act or event, and the witness in this case is an indispensable litigation procedure!
? More sadly, fraud is unprofessional. Please see: the material evidence was collected on September 28th, 20 15, but the photos of the fixed material evidence package actually showed three different times in different years: September 28th, June 10, May 16. Which is true and which is false? There is another thing that cannot be justified. If the registration is not open until 20 15, 10 and 16, but the appraisal center receives the appraisal invitation on 10, how did you issue the appraisal before the registration was opened? Which is true and which is false? At the same time, if Dong Zhang and Wang Liang were the people who obtained the material evidence, why did they become Yu Zhou and Cao Shu when they signed the supplementary certificate one year later? In Chengdu, can the names of investigators on the legal documents that have completed investigation activities be changed at will?
? It should also be pointed out that many legal documents are not signed by the holders and custodians of material evidence in accordance with Article 84 of the Interpretation of Criminal Procedure Law. For example, it is obviously illegal to only stamp the official seal of the quality inspection institute on the "list of evidence seized" of the video, without the signatures of the evidence holders and custodians. In addition, the defender also found that all the witnesses on the notice of goods collected by quality inspection were Li Xianxue. Who is Li Xianxue? After investigation, it was the people's police. How do people's police impersonate witnesses in criminal proceedings?
? In short, there are many kinds of supplementary papers, false explanations and illegal procedures. Defenders don't want to suspect that the investigator's authority is fraudulent, but they will never tolerate the investigation power being acted arbitrarily. Should these illegal evidences be used as criminal evidence to identify the criminal tools in this case? Don't!
? 2. There are procedural violations such as investigation and inducement, designation of authority and presumption of guilt in the entrusted matters in the appraisal invitation letter.
? According to the filing decision, the case was initially filed for poisoning. The biggest unknown is what the defendant Guoqing Liang put in the victim's drinking water and food. Then, according to the procedure and logic of handling a case, we must first identify the drugs in the obtained material evidence, that is, professionally identify what ingredients it contains. However, the defender was surprised to find that, in the case that all the case files and investigation activities were not recorded and paved, the investigation organ suddenly put forward in the invitation letter for identification on September 29, the day after collecting physical evidence: "Please identify whether the extract and tablets involved contain methyltestosterone." Why define the scope of identification and pursue the identification results of methyltestosterone? With what? Who is the first insider of methyltestosterone information in this case?
The sudden testosterone also smashed the justice. In the court hearing on February 14, the court issued a description of Xiaojiahe police station, indicating that the direct identification of methyltestosterone was formed after contact and analysis with the personnel of the identification agency, which was obviously fraudulent. On the 28th, physical evidence was collected, and on the 29th, methyltestosterone suddenly appeared in the appraisal invitation. However, according to documentary records, the registered physical evidence was opened in June+10/October 65438+June. Which means we knew there was methyltestosterone in it before we opened it. Please find out: When was the physical evidence opened? When, who and where did you find the appraisal agency to analyze and determine the appraisal direction? The appraiser who accepts the consultation must produce the witness testimony of the contact analysis process between the two parties.
It should be noted that the court just didn't inform the toxicologist to appear in court today. Why? Although the injury expert appeared in court today, he didn't appear in court today until the prosecutor and the judge met the expert privately. Therefore, the defender has a major objection to the above five explanations issued by the investigation organ, and the explanation made by the presiding judge in court on the internal reasons for the sudden appearance of testosterone in the appraisal invitation letter has no legal effect.
? According to the law, any explanation of handling a case can only be a reasonable explanation of the original facts? You can't suddenly bring up a fact that doesn't exist, and you can't make up a lie to explain another false fact.
? Please pay attention to the court that the judicial instructions for handling cases are not criminal evidence in themselves, but they have been regarded as the most magical criminal evidence by our judicial organs for decades!
? There is sufficient evidence to prove that the substance put by the defendant Guoqing Liang is vitamin B 1.
? As for what medicine was taken, the defendant Guoqing Liang confessed from beginning to end that it was vitamin B 1, and it is the same today. At the same time, in the only testimony, the victim Zhao repeatedly stressed that drinking water and food are bitter, and also took 10 vitamin B 1 for testing; Witness Liu Bin not only proved that the substance that defendant Guoqing Liang confessed to him was vitamin B 1, but also witnessed the words of vitamin B 1 on the drug; Finally, three samples containing methyltestosterone were not detected in the appraisal conclusion, which were obviously vitamin B 1 confessed by the defendant Guoqing Liang.
? The public prosecutor does not need to accuse the defendant of "switching the bag" in court, nor should he move the investigation reasoning to the court for explanation, but should submit the evidence to the court. Is there any evidence? Can you confirm it?
? According to China Pharmacopoeia, methyltestosterone is white or white-like crystalline powder, odorless and tasteless, and insoluble in water. Vitamin B 1 is white crystal or crystalline powder, bitter in taste and easily soluble in water (16 1 page, 1 version, 20 10/0,896). It can be seen that according to the defendant's confession, the victim's statement, the witness's testimony and three physical evidences containing vitamin B 1 but not methyl testosterone, especially according to the sensory characteristics of bitterness and the physical characteristics of water solubility, the substance put in this case is vitamin B 1.
? The investigation organ should not deliberately avoid the fact that vitamin B 1 exists in this case, let alone refuse to identify it.
? The second question: Is the victim's elevated transaminase caused by taking methyltestosterone or other complicated factors that cannot be ruled out?
? Although the defender questioned the existence of "methyltestosterone", we still need to study the case from the perspective of pharmacology, pathology, forensic medicine and other medical sciences, and carry it through to the end.
? Defender in forensic expert opinion and explanation of expert opinion. Fallin 20 15-4 156 In this case, the indexes of transaminase of the victim Zhao have changed obviously in many physical examination reports, especially in the physical examination on September 29th (alanine transaminase 728 iu/L, aspartate transaminase 156). At the same time, according to the explanation that "the changes of Zhao's liver function indexes reflected in the above case data are consistent with the drug history of taking methyltestosterone reflected in the test materials", the identification conclusion is that the victim's elevated transaminase is caused by taking methyltestosterone.
? In fact, the factors leading to the increase of Zhao transaminase have not been ruled out in the identification.
? First, the elevation of transaminase has very complicated non-pathological factors and pathological factors.
? There is no doubt that transaminase is one of the important indexes to measure liver function, and its normal value is between 0 and 40. Elevated transaminase is a common phenomenon, both in and out of the liver, with both disease and non-disease factors.
? Defenders learned from relevant medical books that the non-pathological factors leading to the increase of transaminase are: strenuous exercise, overwork, eating greasy food and drinking alcohol, unreasonable nutritional diet structure, pregnant women, taking erythromycin, sleeping pills, antipyretic and analgesic drugs, contraceptives, Pinellia ternata, betel nut and other traditional Chinese medicines; Pathological factors leading to the increase of transaminase include viral hepatitis, drugs and chemicals, liver cirrhosis and liver cancer, gallstones and intrahepatic bile duct stones, cholecystitis, pancreatitis, nephritis, heart disease and some infectious diseases, especially female autoimmune hepatitis.
? Therefore, the judicial expertise center only relies on the information provided by the public security organs that the victim may take methyltestosterone, that is, methyltestosterone pushes up the increase of the transaminase index of the victim. It is against medical science and common sense to infer substantive medical expert conclusions from unconfirmed facts. Is there a causal relationship between the two in medicine? After investigation, the investigation organ provided the appraisal institution with the medication history of the appraised person taking methyltestosterone, but did not provide any other information and explanation that might affect the increase of transaminase. ?
? Second, the "explanation" of the judicial expertise certificate has returned to objective rationality and respected scientific integrity.
After checking the physical examination report, I found that the physical indicators of the victim are constantly changing, especially the liver function indicators. So, what is the physical condition of the victim? What is its autoimmune state? Did the victim have frequent medical experience before and after the incident? Do you have any medical records to consult? Do you have the name and quantity of the medicine? Has the victim's hepatic hemangioma been diagnosed and rechecked? All this was neither collected by the investigation organ nor truthfully submitted by the defender. According to the medical records, the victim Zhao was diagnosed as an ovarian cyst as early as 20 14. According to the medical records, she took ethinyl estradiol cyclophosphamide tablets, and there were also words such as "abnormal liver function and hepatic hemangioma" in the discharge diagnosis. In other words, the victim not only had a history of liver disease, but also took drugs to treat cysts, which damaged liver function.
In other words, the employment appraisal of public security organs is submitted under the condition of concealing the above indexes of liver function! No wonder the "explanation" issued by the appraisal agency clearly says:? "The pathological data submitted for examination showed no abnormal liver function caused by viral hepatitis and autoimmune factors. If the judicial organs further verify and find other factors that may lead to abnormal liver function and meet the above characteristics, it may affect their appraisal opinions. " ?
? Please note that this is not so much an explanation as a review and accusation. There are two core meanings: one is: "You didn't provide it objectively, so I can't guarantee the uniqueness of the appraisal opinion", and the other is: "To take a step back, if other abnormal factors are further discovered, it will definitely affect the appraisal conclusion". In other words, the appraisal opinion has been shaken by a statement, or it has been conditionally denied by the appraisal institution and is no longer unique. Therefore, the expert conclusion violates the legal provisions of Article 85 of the Interpretation of Criminal Procedure Law that "the expert conclusion must be clear".
? The third question: Does the physical examination index of the victim Zhao constitute minor liver injury or within the normal range?
? Defenders studied the opinions of forensic experts and found that, despite the large number of pages, 98% of the words were extracted and quoted from the medical examination data, and finally the expert conclusion suddenly appeared, which was neither medical analysis nor professional argumentation.
? According to the appraisal opinion, the main reason for the secondary appraisal conclusion of minor injuries is the data reported by Zhao on September 29, that is, transaminase, total protein, albumin and serum total bilirubin.
? According to the provisions of Articles 5, 7, 4 and F of the Identification Standard of Human Injury Degree, mild liver injury requires two indicators: "serum total bilirubin 1.5-2.0mg/dl, serum albumin 3. 1-3.5g/dl".
? The physical examination report of the victim Zhao shows: "The total bilirubin is11kloc-0/umo1/L (the normal value is 5.0-28.1umo1/L); Albumin (serum albumin) is 49.9g/L (normal value is 35-55g/L). The above indexes of total bilirubin and albumin used to evaluate liver function damage are within the normal range, and the unexpected increase of transaminase is not a definitive index to evaluate liver function damage. So there is no fact or result of liver injury. This appraisal conclusion violates the Appraisal Standard of Human Injury Degree and the Classification of Liver Function Damage, and its appraisal conclusion is obviously wrong!
? Defenders still don't understand why Huaxi Forensic Medicine Identification Center identified the normal range stipulated by the state as liver function damage. Why do you insist on taking transaminase as an indicator of mild liver injury, instead of making an appraisal conclusion according to the standard of mild liver injury stipulated by judicial interpretation?
It should be pointed out that, in view of the strong professionalism of this case and the multiple doubts in the expert opinions, the defender hired Hu Zhiqiang, a senior expert of Huaxia Jingwu Material Evidence Appraisal Center, to consult two expert opinions in this case, and issued the "Forensic Medicine Documentary Inspection Opinions" and submitted it to the court. At the same time, the defender has applied for two expert witnesses and experts to testify in court before the trial, but? The court did not notify the poison appraiser and expert witness to appear in court.
The presiding judge and jurors:
Only by adhering to procedural justice can judicial justice be realized. The core evidence in this case has lost the authenticity, legitimacy and relevance of criminal evidence because of the problems of fraudulent authority and illegal procedures in the collection, extraction and inspection. At the same time, the investigation organ concealed the relevant information and evidence that the victim himself might cause abnormal liver function, which led to the loss of uniqueness, objectivity and scientificity of the judicial expertise conclusion. The trial showed that the existing evidence was not enough to determine that the defendant constituted the crime of intentional injury.
? I implore the court to uphold the objective and neutral professional character, follow the principle of criminal procedure in which there is no doubt, and declare the defendant Guoqing Liang innocent according to the third item of Article 195 of the Criminal Procedure Law of People's Republic of China (PRC).
? Thank you
? Beijing Ziguangda Law Firm? Ni zeren
Sichuan Youtong Lawyer Office Xin Xiaoyun Jiang Yi
20 17 may 16