Compulsory defense of death penalty review

The death penalty review procedure is a special relief procedure for death penalty cases, a special trial procedure and an important link in the control of death penalty procedures. Its purpose is to add the last barrier to the application of the death penalty, so as to implement the criminal policy of "killing less and killing carefully" and strictly control the number of death sentences. However, since the death penalty review procedure came into being, there are many problems because of its strong administrative color, especially the lack of lawyer's defense in the death penalty review procedure. The vain lawyer's defense puts the defendant in a more vulnerable position and cannot guarantee his basic rights. It can be said that lawyer's defense is related to whether the death penalty review procedure can realize its due function. 20 12 Criminal Procedure Law has also made some amendments to the death penalty review procedure, showing a tendency of litigation, but the protection of lawyers' defense is only mentioned, without too much explanation. Therefore, the protection of lawyers' defense in the death penalty review procedure is the key issue that we should pay attention to in the future, especially the establishment of compulsory defense system in the death penalty review procedure. Existing provisions and problems of lawyer's defense in the procedure of death penalty review —— Comment on Article 240 of Criminal Procedure Law 20 12. In practice, the defense situation of lawyers in the death penalty review procedure is worrying, not only because of the professional level of lawyers, but also because the death penalty review procedure is too closed and biased towards administration, which keeps lawyers out. In fact, before, whether lawyers can participate in the death penalty review procedure was a controversial issue, and the criminal procedure law did not clearly stipulate it. But in fact, at this time, lawyers could not participate in the death penalty review procedure. After the Supreme People's Court withdrew the right of death penalty review, lawyers were gradually allowed to participate in the death penalty review procedure. 20 12 article 240th of the criminal procedure law stipulates: "when reviewing a death penalty case, the Supreme People's Court shall interrogate the defendant, and the defense lawyer shall listen to the opinions of the defense lawyer as necessary. In the process of death penalty review, the Supreme People's Procuratorate can put forward opinions to the Supreme People's Court, and the Supreme People's Court should inform the Supreme People's Procuratorate of the results of death penalty review. This article is a new provision, which strengthens the defendant's participation and inspection and supervision in the death penalty review procedure, and embodies the trend of litigation reform in the death penalty review procedure. This is undoubtedly a great progress, but it is undeniable that this article is obviously too principled and vague, and it can't actually play a big role. After careful analysis, we will find that there are several problems in this provision: (1) only stipulates that defense lawyers should listen to their opinions when making requests. However, there is no provision on how defense lawyers should present their defense opinions, that is, defense lawyers are not required to be mentioned in the death penalty review procedure. Whether to appoint a defense lawyer for the sentenced person is an urgent problem. Before this revision, defense lawyers basically had no institutional space to participate in the death penalty review procedure. For a long time, in China's judicial practice, the death penalty review procedure is a written review procedure within the Supreme People's Court, or a written administrative review procedure. In the process of reviewing the death penalty, the judges of the Supreme Court will personally interrogate the sentenced person and listen to his own opinions on the death penalty. In individual cases, if the defendant of the sentenced person has the means, the judges of the Supreme Court will generally accept the written opinions of the defense lawyers. But generally speaking, defense lawyers' participation in the death penalty review procedure lacks the necessary institutional guarantee and procedural mechanism. Therefore, according to the current law, although the Criminal Procedure Law stipulates that defenders must be appointed for cases that may be sentenced to death, in judicial practice, the appointed defenders for death penalty cases are limited to the first and second trials. With regard to the review procedure of death penalty, the provision of defendant's designated defense is not applicable. However, according to the provisions of Article 240th of the revised Criminal Procedure Law, the Supreme People's Court should interrogate the defendant when reviewing the death penalty case; If a defense lawyer makes a request, he shall listen to the opinions of the defense lawyer. According to this provision, it will become an institutionalized practice for defense lawyers to participate in the death penalty review procedure. Therefore, under the framework of this system, we must re-examine the customary practice of not specifying (defending) in death penalty review cases in China. In other words, since the participation of defense lawyers in the death penalty review procedure is about to become an institutionalized practice, what is the reason for refusing to apply the provision of Article 34 that "a sentenced person who cannot afford to hire a defense lawyer due to poverty shall appoint a defense for him"? Our attitude is very clear. If the defendant fails to entrust a defender when handling a death penalty review case in the Supreme People's Court, he shall appoint a defender according to the third paragraph of Article 34. There are two reasons: first, the provision that "the defendant may be sentenced to death" in Article 34 is a mandatory provision that the defense should be specified by law. As a general rule, there is no reason to exclude the death penalty review procedure directly related to the defendant's life and death. Second, it is also an objective need to appoint a defense lawyer for the defendant who has not entrusted a defender to ensure the fairness of the death penalty review procedure. According to the provisions of Article 240th of the revised Criminal Procedure Law, the Supreme People's Court should ask the defendant when reviewing the death penalty case; If a defense lawyer makes a request, he shall listen to the opinions of the defense lawyer. In the process of reviewing death penalty cases, the Supreme People's Procuratorate can put forward opinions to the Supreme People's Court. According to this article, there has been a certain "qualitative" change in the procedure of death penalty review in China: that is, from the purely internal review and review procedure in the Supreme People's Court, the litigation transformation has been initially realized by introducing the strength and opinions of both the prosecution and the defense. Of course, in judicial practice, although this transformation of litigation is not necessarily manifested in the form of court hearing, nor is it necessarily manifested in the way that both the prosecution and the defense listen to opinions on the spot, as far as system design is concerned, Article 240 has provided the institutional basis and opportunity for both the prosecution and the defense to intervene. Therefore, since all the requirements put forward by defense lawyers should listen to their opinions, a basic problem of institutional justice arises: what if the defendant does not hire a defense lawyer? Should we let it go, or should we defend the death penalty on the grounds that it belongs to the scope of compulsory defense? Obviously, if we insist that the death penalty review procedure does not apply to the old habit of formulating defense, then the provisions of Article 240th will become the "rich man clause". That is, whoever has the money to afford a defense lawyer will have the opportunity to put forward more legal opinions to the Supreme People's Court through the participation of defense lawyers. However, the most basic purpose of criminal legal aid is to establish a basic guarantee for the defense activities of criminal cases: no matter you are poor or rich, you can enjoy a basic treatment. In the review procedure of death penalty involving personal life and death, we should stick to and maintain this most basic fairness. Therefore, I personally think that with the intervention of defense lawyers in the death penalty review procedure becoming an institutionalized practice, the Supreme People's Court must keep pace with the times, completely abandon the erroneous concept that the death penalty review procedure is not suitable for designated defense, and provide the defendants in death penalty review cases with the most basic legal aid services. The death penalty review procedure must involve defense lawyers. The following points are particularly worth emphasizing: First, the death penalty review case is not only a special case type directly related to personal life and death. In today's China, the death penalty review procedure actually plays a role in the formation of a public policy. This is very obvious in the case of Wu Ying. Public policy is not only legal policy and death penalty policy, but also involves some macroeconomic decisions and trends in the national economic field. In the case of Wu Ying, there is a macroeconomic policy and legal policy issue about how a country treats the phenomenon of private lending. A case like this can't be done without the participation of lawyers. Before this, I specially communicated with Brother Zetao, hoping that he could focus on introducing the amicus curiae system in the United States. When it comes to the formation of public policies, cases are not only related to personal interests, but also to the interests of more people. Let's recall the Wu Ying case. How many seminars on Wu Ying case were organized back and forth? Moreover, the participants were not only experts in the legal field, but also elites in the economic field and businessmen from Jiangsu and Zhejiang provinces. Because Wu Ying's case is not only related to Wu Ying's personal life and death, but also related to social issues such as the direction of the national economic policy. In fact, even if Wu Ying's case is not mentioned, other death penalty cases also involve the formation and choice of death penalty policy. For example, the Xia Junfeng case, Yao Jiaxin case and Li Changkui case happened last year. These cases are no longer just about personal life and death, but represent what kind of criminal policy the country will adopt to deal with such death penalty cases. In these cases, it may be directly related to the formation of public policies. The formation of public policy can not be solved only by finding out the facts and applying the law correctly. Therefore, in this kind of case, it is impossible to objectively and fairly examine the written materials and interrogate the defendant in the traditional way, and then say, "You killed someone, no problem" and "I interrogated you, and you confessed yourself". Because this is not only a case problem, but also involves the formation of public policies. This is the first reason, because the death penalty review procedure may involve public policy issues, and it is necessary to form a benign procedural participation mechanism. Second, as far as individual cases are concerned, even if we only talk about the life and death of the sentenced person, legal issues and evidence issues are very complicated. In recent years, I have learned more about the case of Nianbin poisoning handled by lawyer Zhang Yansheng. This is a poisoning case that happened somewhere in Fujian. As far as personal feelings are concerned, there are many doubts about the evidence in this case, and it may even be a false and wrong case. However, even in such a flawed case, there is no way to reveal these doubts from evidence and logic without the participation of defense lawyers. Now because of the participation of professional lawyers, Nian Bin finally saved his life. However, among the death penalty cases reviewed in the Supreme People's Court, how many cases, like the Nian Bin case, will become self-evident and seamless "ironclad cases" under the strong prosecution logic unless professional defense lawyers are involved? Therefore, even if the issue of public policy is put aside, the real doubt of the case may not be found only by interrogating the sentenced person. In this sense, in order to ensure the quality of handling death penalty cases, it is necessary to strengthen the participation of professional defense lawyers. Third, the issue of legal interpretation. In death penalty cases, we will also encounter reasonable explanations of criminal law provisions, which are absolutely beyond the ability of the sentenced person. In a word, my basic view is that the traditional concept of death penalty review procedure holds that as long as the facts can be ascertained and the law can be applied accurately, the correct death penalty sentence can be guaranteed. However, if we focus on the formation of public policies, the specialization of laws and the analysis of evidence, such an internal audit method may be far from enough. The review procedure of death penalty needs to introduce the power of lawyers, and the introduction of lawyers must have a system to ensure that the poor can also get the most basic legal services. Personally, I think that the litigious development of death penalty review procedure will inevitably involve such a problem: legal aid for death penalty review cases. In many cases, the client will entrust a lawyer. In the trial, the lawyer is the client, helping the parties to state the case and debate, so that the final result can be beneficial to the parties to the greatest extent. The judge will also give a certain judgment according to the lawyer's statement, but the judge will generally listen to the client's complaint when reviewing the death penalty.