Teng Biao: Defense in the Second Trial of Xia Junfeng Case

Xia Junfeng (夏俊峰) was street vendor from Tieling county, Liaoning province (沈阳铁岭县). On May 16, 2009, while selling chicken strips, roasted sausages and other snacks with his wife Zhang Jing near a crossroads in Chenhe District, in the city of Shenyang (沈阳沉河区), Xia Junfeng was seized by urban enforcers known as Chengguan (城管) and taken to their office where he was beaten. During the course of the beating, Xia Junfeng fought back with a small knife he carried in his pocket, stabbing two Chengguans to death and injuring one. He was convicted of intentional homicide and sentenced to death during the first trial, and the second trial upheld the verdict of the first trial. The case has garnered wide online attention in China since its onset. It is now being reviewed by the Supreme Court in Beijing. Several volunteer translators have collaborated on a complete translation of Dr. Teng’s defense to shed light on, and call for attention to, the case and the ill system at its root. The Chinese original is here.

Chief judge and judges,

As Xia Junfeng’s defense lawyer, let me first of all offer my condolences to families of the dead. Whether Xia Junfeng is guilty or not, the death of two citizens is regrettable. I will also indicate to the court that, just like Xia, the two members of the City Urban Administrative and Law Enforcement (Chengguan) were also victims of the Chengguan system, and that today’s trial is bound to be a war without a winner. What we want to do today, with all we can, is to avoid creating a new tragedy from what’s already a tragedy, making a new mistake from what’s already a mistake.

The law is the law, and we cannot superimpose upon the law personal feelings or political pressure external to the law. According to litigation jurisprudence as well as Article 186 of Criminal Procedure Law, the goal of the second trial is to review and determine whether the verdict of the first trial is correct. What I will prove to the court is the followings: the first trial convicted Xia Junfeng of intentional homicide is a qualitative mistake, the court applied the wrong law, and the persecutors’ accusations cannot in any way be established; the first trial handed down the wrong sentence of death penalty, which was a departure from relevant laws and statutes.

         

I. The first trial convicted Xia Junfeng of voluntary manslaughter, and it is a qualitative mistake.

1. Prior to the incident, Xia Junfeng did not know the two victims, and had no enmity towards them. It was the brutal enforcement by Shen Kai, Zhang Xudong and a dozen or so others from the Shenhe District Chengguan team on May 16, 2009, that caused the incicent.

According to witnesses Shi Chunmei, Zhang Jie, Jia Ziqiang, Shang Haitao, and Zhang Zhongwen: “the Chengguan team seized them and went for the Gas cylinder next, things (such as sausages and bamboo sticks) were thrown everywhere on the ground. Xia’s wife tried to prevent them from throwing things, a dozen Chengguan members surrounded Xia and started beating him. Xia begged to no avail. As they beat him, Xia kept falling down and couldn’t keep his footing.” The sole of one of Xia Junfeng’s shoe was torn off by the Chengguans and was presented as evidence in the first trial (the public prosecutors acknowledged the evidence in the court, but the verdict of the first trial makes no mention of such an important evidence). Xia Junfeng stated: “Chengguans threw my cooking ware onto the ground like a gang of brigands. We begged for mercy saying it’s Saturday today, they said, ‘Nonsense!’ One of them hit me on the back of my head......” Xia Junfeng’s wife Zhang Jing also witnessed that he was pushed and beaten by a dozen Chengguan members, who did not stop even when Zhang Jing kneeled down to beg for mercy. Chengguan member Zu Minghui also admitted in his written testimony that Xia Junfeng’s gas cylinder “was pulled away by us and put in the truck.” (p. 34, vol. 3)

2. After brutal law enforcement, Chengguans pulled Xia Junfeng into a vehicle by force, took him to their office where they beat him. Such action by victims Shen Kai and Zhang Xudong constitutes unlawful detention.  

According to witnesses Shi Chunmei, Zhang Jie, Jia Ziqiang, Shang Haitao and Zhang Zhongwen: “Chengguan forced Xia Junfeng into their vehicle; Xia didn’t do so voluntarily. Xia Junfeng’s own statement and his wife’s testimony also confirmed this. (According to the written record of the interrogation of Xia Junfeng on February 25, 2010, “Three or four Chengguans pulled me into their vehicle. I struggled and resisted, not wanting to go with them.”) On the other hand, Zhang Wei’s testified that “Xia Junfeng got into the vehicle willingly,” contradicting the testimonies of Zhang Jing, Shang Haitao and three others. The verdict of the first trial doesn’t provide any explanation for such contradiction. The defense lawyers have noticed the inconsistency of Zhang Wei’s testimonies and believe it is not credible. For instance, according to the written record of interrogation on May 16, Zhang Wei mentioned that Xia Junfeng pursued him after stabbing him by didn’t catch him. The problem is, if he had been injuried in the thighs, how could Xia Junfeng have failed to catch up to him? For another instance, in the written record of interrogations conducted on May 16, the day the incident occurred, he stated clearly that he “didn’t see clearly who stabbed Shen Kai and Zhang Xudong (p. 17, volume 3); but a month later on June 22, he said “I was behind Xia Junfeng, and he was in the midst of stabbing Zhang Xudong with a knife.” (p. 20, volume 3). Such inconsistency obviously defies the law of memories, and he was lying. The fact is, when Chengguans enforcd regulations in a brutal manner, vendors were running away to avoid them, and the gang of Chengguans didn’t want to go away empty-handed. Xia Junfeng still got beaten in broad daylight and in front of the eyes of many witnesses, you can just imagine how much worse it would be for him to go to the Chengguan office with them. No one else but Chengguans themselves who testified that Xia Junfeng “got into Chengguan’s vehicle voluntarily”; it can only be a lie that the Chengguans made up to evade liabilities.

Illegal detention refers to the act of illegally denying others of their freedom through detention, confinement or other methods of coercion. Article 19 of the Administrative Punishment Law stipulates only the public security organ can execute such administrative penalty. Chengguan and others in charge of administrative law enforcement at the Shenhe Bureau have no legal authority to restrict citizens' personal freedom, not to mention forcibly dragging Xia Junfeng into a vehicle or confining him to their office. These actions meet all the elements of illegal detention. According to several statements given by Xia Junfeng, the bald Chengguan first insulted him by saying, "How can you be so fucking good at pretending to be innocent." He then punched him on his head with his fists. He and another man punched and kicked Xia Junfeng, the bald man evening throwing a metal mug at Xia that he had picked up from a desk. It is obvious that Shen Kai and Zhang Xudong had committed more than just the offence of illegal detention; their behaviour at that time fell into the category of statutory aggravation,  as it involved physical and verbal abuses. According to Article 238 of the Criminal Law: "A person who unlawfully detains another person or deprives another person of his personal freedom by any other means shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, public surveillance or deprivation of political rights. If circumstances of hitting or insulting another person exist, a heavier sentence shall be imposed.." The Criminal Law also stipulates that public servants who commit the offence of illegal detention by abusing power shall be punished more severely.

3. While Xia Junfeng was detained by the police, he requested police officers to take pictures of injuries on his arm. This strongly supported the fact that he was beaten by Chengguans.

Xia Junfeng did not suffer from injuries prior to his arrival at the (Chengguan) office, and then he was promptly arrested a few hours after the incident. So his injury could only be sustained as a result of beating at the Chengguan office. According to Xia Junfeng's statement, he "had bruises on both arms and a large bruise on one thigh. No photograph (of these injuries) was taken at the time. There were bruises on his neck and the back, and a lump on his head. However, no photographs were taken of those injuries either. Drumming noises in the left ear had lasted for two months after the incident. Only two photographs of the arms were taken at the time. They were the ones produced in court." Given that Xia Junfeng was beaten so badly in just a matter of a few minutes, it is clear that he was forced into self-defense in the face of Chengguans’ beating. However, the verdict of the first trial makes no mention of the two photographs that are in the case file and were presented as evidence in the court. That the court deliberately ignored such crucial evidence indicates that the judicial body that presided over the first trial had lost basic impartiality.

4.The state of the wounds on the deceased indicated that at the time Zhang and Shen were leaning over Xia Junfeng and assaulting him  continuously.

Shen Kai had stabbing wounds on his left chest and his back. Zhang Xudong had stabbing wounds on the upper part of his left chest. Both had wounds running from upper left to lower right or from upper right to lower left.

First of all, the stabbing of non-vital parts of (a victim’s) body does not comply with the characteristics of intentional homicide. If an intentional homicide is to be committed within a very short period of time, the perpetrator is unlikely to be aiming at where the knife will not deliver a fatal blow.

Secondly, Shen Kai is 1.82 meters tall and Zhang Xudong 1.80 (around 6 feet), while Xia Junfeng is only 1.65 meters tall (5’5”). If they were all standing, it would not have been possible for Xia Junfeng to stab them and leave wounds that ran downward from left to right or from right to left in areas above the chest. At the time, Xia Junfeng was half kneeling with knife in his right hand, only when he stabbed fiercely toward above him or behind his left shoulder, such wounds on the victims were possible. This also indicates that, even after Xia Junfeng had been kicked and fallen on his knees, Shen Kai and Zhang Xudong still didn’t  stop assaulting and beating him.

Finally, given that Xia Junfeng is physically small in comparison to Zhang and Shen, also in stark disadvantage in terms of power and social and economic status, and that his freedom of movement was constrained in the Chengguan office, it didn’t make any sense for him to beat two law enforcers of his own initiative. The only way to explain the positions, directions and the number of stabs Zhang and Shen had sustained is they had not been able to dodge Xia Junfeng’s sudden act of defense.

 

5. The small knife Xia Junfeng used for self-defense was not prepared for the purpose; and under the circumstances, it was completely out of instinct that he used the knife to defend himself.

The knife Xia Junfeng used was for cutting sausages, not premeditatively prepared. He didn’t pull the knife out at the beginning of the assault, nor did he remember he had the knife with him all of a sudden. He touched on the knife in his pocket when the Chengguans kicked him hard in his lower body and he covered a painful spot with hand.

6. Xia Junfeng’s actions meet the definition of justifiable defense.

Article 20 of The Criminal Law of the People's Republic of China states that “If a person employs an act to stop an unlawful infringement for the purposes of avoiding the said infringement for the State's or the public interest or for his own or another person's right of the person, property right or any other right, thus causing harm to the unlawful infringer, the said act shall be regarded as a justifiable defense and the said person shall not bear criminal responsibility.” If a person employs an act of defense to an immediate violent crime of committing intentional injury, homicide, robbery, rape, kidnapping or any other crime seriously endangering the safety of another person, thus causing bodily injury or death to the unlawful infringer, the said act shall not be regarded as a defense that exceeds the limits of necessity, and the said person shall not bear criminal responsibility.

According to Xia Junfeng’s statement, “As we arrived at the law enforcement station, Tao Yan got off the vehicle first and opened the door. Zhang Xudong asked me, “Where are you from, the city or the countryside?” I said, “What difference does it make? Look, I’m just a street vendor living a hard life.” As soon as we entered the room, another vehicle pulled up, and a man got out of it (I learned later that his name is Shen Kai). He raged at me and began to beat me as soon as he entered the room, his fists pounding my head and ears. As I tried to run outside, I came face to face with Shen Kai. Right away Zhang Xudong grabbed my collar to stop me. He also struck me with fists. So I was sandwiched by Zhang Xudong and Shen Kai. Zhang Xudong kicked me at my thighs, and it hurt so badly that I fell on my right knee. As my hand covered the painful spot, I came in touch with the knife.”

At the time,  Xia Junfeng was still being illegally detained and furthermore savagely beaten. In the midst of such illegal assault, Xia Junfeng was forced to defend himself, and his actions meet all conditions of justifiable defense.

7. Even though Xia Junfeng’s act of defense resulted in two deaths and one injury, it was not excessive defense.

Excessive defense refers to the fact that justifiable defense obviously exceeds necessity, resulting in doing significant harm to the unlawful offender(s). Generally speaking, when faced with unlawful offence, if it can be halted through more moderate means, then fierce means of defense should be avoided; when offence has already been halted, the offended should not continue to harm the offender(s). On the other hand, “the necessary extent” must be considered under the actual circumstances, the physical and mental conditions, possible resistant measures, and even the relevant social background. At the moment, Xia Junfeng was under illegal detention, the two Chengguans were both big and physical who, apart from thumping fists and kicking, also used iron mug and other objects to abuse Xia Junfeng, posing enough threat to Xia’s life. Later on, it was very likely that other Chengguans also joined the two. Under the circumstances, Xia Junfeng had no other means to stop the ongoing, unlawful offence except for using the small knife he had carried with him. Xia Junfeng said, under the circumstances, “anyone would have done the same.” This is the most typical psychological state in justifiable defense.  

According to Xia Lingjun’s answers to my questions in this court, he had no way of being sure when they would cease beating him and what the outcome would be. Everyone is aware of how ruthlessly Chengguans go about enforcing the law, and there are incidents every day in which they beat people; there are even many cases of Chengguans beating citizens to death. If you google “Chengguan brutally enforce the law” there are 261,000 results. If you google “Chengguan beats street vendors to death,” you get 602,000 results. If you google “Chengguan beats someone to death,” you get 782,000 results.

On September 6, 2000, Zheng Yongguang, Wu Shunqian, of the Urban Management Enforcement in Meishan County, Sichuan province, and their driver Zhang Weidong fist punched a vendor by the name Du while policing vendors and their stands on street. Another vendor by the name Tang Deming died when he was swung off the Chengguan’s truck.  

On May 29, 2001, as Chengguan enforcers in Lingwu, Ningxia, impounded vendors’ pans and stoves, they beat Yang Wenzhi to death and injuried Yang Jianrong and wife.

On November 12, 2001, sole proprietor Zhang Fucai died after being pushed and beaten by enforcers of urban appearance regulations in Suzhou, Anhui province.

On January 18, 2002, in Sha District, Chongqing, Chengguans got into a quarrel with sole proprietor Yu Bo while inspecting city appearance and sanitation, drove their enforcement truck over Yu Bo, and killed him.

On November 18, 2002, in Lianhu District, Xi’an, 26-year-old Guo Zhanwei was beaten to death by several Chengguans, and a young man who accompanied him was injured badly.

On January 2, 2003, in Anfu Township, Chaozhou city, Guangdong province, a pedicab driver was killed during a quarrel with Chengguans.

In February, 2003, in Yanta District, Xi’an, a Chengguan pushed pregnant vendor Jin Changyan on the ground in a street clear-up, and stepped on her abdomen. Later in hospital the fetus was found.

On July 20, 2004, in Yuan village, Tianhe District, Guangzhou, Chengguans beat migrant vendor Li Yueming to death.

On July 20, 2005, in Jiangsu province, 56-year-old vegetable vendor Lin Hongying was beaten to death by Chengguans.  

On November 19, 2005, in Wuxi, Jiangsu province, Chengguans beat vendor Wu Shouqing to death.

On February 16, 2006, in Putuo District, Shanghai, Chengguan beat Shanghai resident Li Binghao to death.

On October 9, 2006, in Xiangzhou county, Laibing city, Guangxi Autonomy Zone, a homeless man was beaten to death by drunk Chengguan Squad leader Tan Zongquan.  

On January 8, 2007, in Yiyang county, Shangdong province, manager of Hongwei liquor store Li Guangchun was beaten to death by 11 Chengguans.

On January 7, 2008, in Tianmen, Hubei province, Wei Wenhua witnessed Chengguan enforcers in a clash with villagers. As he videoed the scene, he was beaten to death on spot by Chengguans.

On July 30, 2008, in Yuzhong district, Chongqing, four Chengguans beat vendor Liu Jianping to death near Datian Bay Sports Facility.

On March 30, 2009, in Pingxiang city, Jiangxi province, villager Chen was beaten to death by more than a dozen of Chengguans, and his family blocked G320 highway with his body to protest Chengguan brutality, causing nearly ten thousand people to gather and watch.  

On October 27, 2009, in Fufa Community, Kunming, Yunnan province, Chengguans had a quarrel with pedicab driver Pan Huai and beat him to death.

On June 1, 2010, in Shenzhen, Chengguans argued with an old lady, ran their vehicle over her, and killed her.

Not unrelated to this case, victim Shen Kai was known for beating vendors on a regular basis, and Binghe police station should have records of police filing. For example, in July, 2008, he broke the arm of a female umbrella vendor. We had asked the court to investigate the incident and obtain evidence of it. But the court only allowed a smaller investigation than the defense had asked. Meanwhile, even if the court didn’t find record of the case report, it doesn’t mean such record doesn’t exist; even if the record doesn’t exist, it doesn’t mean the fact of him harming the vendor didn’t exist. Moreover, that Shenhe Chuangguans have regularly engaged in brutal enforcement is a known fact to many local residents even without the testimony of the vendor in this case.

Don’t think for a minute that these facts are unrelated to the case because they have no direct connection. These facts (whether or not Xia Junfeng had a full and clear understanding of Chengguans’ violent actions) have become the common sense of participants in this specific case, or a social recognition or subconsciousness. The actors had already deeply internalized these facts; these facts became the basis for their reactions, the basis for their snap judgements. To come at it from a different angle, Chengguans’ violent beatings and murders have not been punished with appropriate sentences and, in some cases, have gone completely unregulated; these are also “facts of life” known to both Chengguans and street peddlers. The price that Chengguans pay for attacking people is extremely low, and they have motive to beat people, while Xia Junfeng had no way of determining what would be the end result of his being beaten: it was entirely possible that he could have been beaten to death.

At that time, Xia Junfeng had been so badly beaten that he was unable to think clearly, to the point where he had lost the index finger on his right hand in self-defense, to the point where he was completely unable to remember whether he had stabbed Zhang Wei with a knife, and to the point where something happened that he had not predicted at all, something he did not hope for in the least -- the death of two and wounding of one. It would be totally unreasonable to demand that Xia Junfeng clearly estimate how badly he would be beaten, determine the consequences of his self-defense, and precisely control the amount of his self-defense, given his extremely anxious state and the very short amount of time that all of this took place. The new Criminal Law of China changed the wording of the 1979 version of the Criminal Law from “appropriate measures of self-defense exceeding necessary limits” to “appropriate measures of self-defense obviously exceeding necessary limits,” while the phrase “leading to unacceptable harm” was changed to “leading to great loss or harm.” It adds provisions for the right to unlimited self-defense, therefore lowering the criteria for excessive self-defense and expanding the scope of justifiable self-defense. These changes were made to encourage citizens to be brave enough to fight back against those harming them illegally, and to make them more active in combating violent crimes.

8. There is a lack of evidentiary support for the conclusion that Xia Lingjun had motive and committed homicide intentionally; it is not in line with the facts.

As previously stated, Xia Junfeng’s was prompted by the need to self defense. He sought to end the violence and disengaged himself as soon as he could while he was being illegally detained and harmed. The fact that Zhang and Shen could stand and talk after being stabbed several times shows that Xia Junfeng did not intend to kill them, and delayed treatment is one possible reason for their deaths. Evidence provided in the first trial shows that it took 19 minutes for them to reach the hospital and get emergency treatment, but the time it takes to reach No. 463 Hospital from the site of the incident is only 5 minutes, including stopping at a red light. According to Chengguan Zu Minghui’s testimony on May 16, 120 [aka 911 in the US] never came, wasting the most precious opportunity to save their lives. According to expert evaluation, the victims died from hemorrhage shock, which is different from death by acute hemorrhage shock. The latter is when the main artery bleeds, blood is lost rapidly, shock occurs rapidly, and so does death. In the case of hemorrhage shock,  it is the auxiliary or the vein that is losing blood, and timely treatment could have saved lives. This also goes to show that Xia Junfeng did not intend to kill.

Chengguan Cao Yang, a witness in this case, said: “When I came out, I saw Shen Kai walking towards the back gate where the service area was. When he came close he fell into my arms and said, ‘I’ve been stabbed by that kebab guy,’ then he fell down. Then I saw Zhang Xudong standing in the office, holding his abdomen, and falling down in about 2 seconds without saying a word.” From this testimony, you can see that, after being stabbed by Xia Junfeng, Zhang and Shen could walk or stand, albeit with difficulty. That means that after Xia Junfeng defended himself by stabbing the two, the two Chengguans could still stand and talk, that Xia didn’t continue to harm them to ensure their death. Therefore, Cao Yang’s testimony could also prove that Xia Junfeng did not commit intentional homicide. 

Chengguans at Shenhe Chengguan station beat Xia Junfeng without flinching, in front of the public, wrestling away objects Xia used for basic survival, and didn’t show even a hint of pity when Xia Junfeng’s wife knelt down to beg their mercy. They forcibly dragged Xia Junfeng back to their Chengguan office, and, under such circumstances, who on earth could believe that they would then patiently and kindly educate and persuade Xia? Xia Junfeng wouldn’t return blows in the market when he was beaten, he wouldn’t raise a hand when his property was stolen, he wouldn’t raise a hand when his wife begged them for mercy, he wouldn’t raise a hand when he was thrown into a car, he wouldn’t raise a hand when he was being taken into the office, but he would proactively attack Shen Kai and Zhang Xudong with a knife once he was inside the office and had lost his chance to escape? What sense does that make? The first verdict determined that Xia Junfeng deliberately committed murder; this is completely illogical and unreasonable. From the entire sequence of events in which Xia Junfeng was seized, beaten, and forced to commit acts of self-defense, he did not in any way wish, nor did he pursue, the deaths of the victims. His actions are completely inconsistent with the actions of one committing intentional homicide.

9. During both the first and second trials, no witnesses appeared in court, and their testimonies were not cross-examined in front of the court.

According to Article 47 of the Criminal Procedure Law, “The testimony of a witness may be used as a basis in deciding a case only after the witness has been questioned and cross-examined in the courtroom by both sides, that is, the public prosecutor and victim as well as the defendant and defenders, and after the testimonies of the witnesses on all sides have been heard and verified. Then, Article 58 of “The Interpretation of the Criminal Procedure Law” states that, “Evidence must be verified to be true in front of the court through court investigation procedures such as displaying in the court, identification, and cross-examination, or it may not be used as basis in deciding a case.”  “A witness appearing in front of the court must be questioned and cross-examined in the courtroom by the public prosecutor, victim as well as defendant, and defense lawyer. Only when the witness’ testimony is verified to be true, can it be used as a basis in deciding the case. Testimony by witness who does not appear in front of the court must be read, and verified in similar fashion, in the courtroom before it can be used as a basis for deciding the case.” Then, Article 141 of the “Interpretation”: “A witness must appear in front of the court, except in the following circumstances approved by the People’s Court: 1) witness is a juvenile; 2) witness is seriously ill or immobile on the court day; 3) witness’ testimony is not directly relevant to the case; and 4) other reasons.” And in Xia Junfeng’s case, Tao Ye, Cao Yang and other key witnesses do not fall into any of the above categories.

Article 4 of The Regulations on Reviewing and Deciding Evidence in Death Penalty Cases, effective since July 1, 2010, stipulates that “Only evidence that have been subjected to court investigative procedures, such as display, identification and cross-examination in the courtroom and are verified to be true can be admitted as basis for conviction and sentence.” Again, article 15 of the same Regulations stipulates that “When the written testimonies by witnesses who have not appeared in front of the court to testify are contradictory, and the contradiction cannot be explained nor can be evidenced, such testimonies can not be admitted as basis for conviction.”  In this case, the written testimonies of Zhang Wei, Yao Yan and Cao Yan all have major contradictions.  

Xia Junfeng case is a high-impact case that involves in the life and death of a citizen, yet there have been no witnesses and expert witnesses to appear in front of the court to be cross-examined. This not only shows how reckless the public prosecutors and the collegial panel are, it also has a direct impact on the appropriateness of the verdict. Zhang Wei’s testimony is contradictory in itself, testimonies by Tao Yan and Cao Yang are contradictory with that of Zhang Jing, Shi Chunmei, Zhang Jie, Jia Ziqiang, Shang Haitao, and Zhang Zhongwen. Cross examination would have easily found out who was telling the truth and who was lying. Without subjecting witnesses to challenging questions and reasonable questioning, without letting the court to observe them and hear what they say and how they say, how can you dispel whatever doubts people have about the case? How can you convince them of the fairness of the verdict? 

II. Death penalty reached by the first trial is a sentencing mistake.

1. The victims committed grave offenses, [and the defendant]should

not be sentenced to death.  

According to Article 10 of the Law of the People's Republic of China on Administrative Penalty, when an administrative decree elaborates on administrative penalties that are already stipulated by the law, it must do so within the scope of what the law has stipulated with regard to behaviors, their types and degrees. Article 8 of the same law stipulates that the only types of administrative penalty are warning, fining, impounding illegal income, confiscating illegal properties; ordering to suspend production or business operation, suspending or canceling permit or business license, and administrative detention. It does not provide for distraining, permanently or temporarily, tools. Shenhe Chengguan had no legal basis to seize Xia Junfeng’s business tools.  

Chengguan enforcers handed administrative penalty to Xia Junfeng for operating business without license, but Chengguans had not identified who he was beforehand, so they could not have obtained evidence of Xia’s business registration status before handing out the administrative penalty. Nor did the Chengguans inquired Xia Junfeng about whether he had registered with the industrial and commercial agency. According to the Law of Administrative Penalty, enforcers must first of all display their IDs to the defendant, inform him of the facts, reasons and bases for administrative penalty,and  listen to his or her description and defense, and finally fill out the form for administrative penalty decision that is numbered. Therefore, Chengguangs’ enforcement on that day has serious procedural flaws.  

The victims engaged first in brutal enforcement, then in barbaric crime; they illegally detained Xia Junfeng first and then did violent harm to him; they abuses their power and then violated the law. The biggest cause in this case is the unlawful, criminal behaviors of Chengguans in Shenhe District, Zhan and Shen in particular. The victims not only misconducted themselves in the events leading to their deaths, but did so significantly and ostensibly. The victims’ misconducts and crimes directly contributed to escalating the confrontation and to Xia Junfeng’s self-defensive reactions. The Minutes of Nation-wide Court Meeting about Trials of Criminal Cases and the Maintenance of Rural Stability stipulates that “Whereas the victims committed obvious errors or is directly responsible for escalating confrontation, or the defendant(s) have done things that merit statutory consideration for lenient punishment, the defendant(s) should not be sentenced to immediate execution.”   

2. Xia Junfeng surrendered himself and confessed to all facts.

3、Xia Junfeng has been a well-behaved man without any criminal record.We have submitted the affidavit attesting his character by his friends and neighbors. Article 36 of The Regulations on Reviewing and Deciding Evidence in Death Penalty Cases, now effective, stipulates that “For the People’s Court to decide facts for sentencing, it has to not only review the statutory acts, it also has to review the following acts: (1) The cause of the case; (2) whether the victim(s) committed wrongs and, if so, to what extent, whether they were responsible, and how much they were, for escalating the confrontation; (4) How did the defendant(s) behaved in routine life and whether they are repentant; ….use death penalty cautiously when it cannot be excluded that the defendant(s) have done things that merit leniency.

4. Xia Junfeng has sincerely repented, apologized to the families of the victims, and is willing to assume civil liability for damage.

5. Even though Xia Junfeng’s justifiable self-defense resulted in two deaths and one injury, his action imposed little social menace. On the contrary, justifiable self-defense should be affirmed by the law and encouraged by the society.  

6. Such self-defense, even when it is carried out excessively, it should be exempted from punishment or given mitigated punishment, or be given reprieve or short sentence according to the Criminal Law.      

        Number 2 clause of Article 20 of the Criminal Law of the People’s Republic of China stipulates that “If a person's act of justifiable defense obviously exceeds the limits of necessity and causes serious damage, he shall bear criminal responsibility; however, he shall be given a mitigated punishment or be exempted from punishment.” In the case of excessive self-defense, very little ill-intention on the part of the defender is involved, and therefore it has little social hazard. Instead, excessive self-defense is an extension of the original, justifiable self-defense, and justifiable defense is by nature good for the society while committing a crime is to become a social hazard. Even when self-defense is so excessive as to constitute a crime, it is a very slight crime. When the Criminal Law stipulates that he or she “shall be given a mitigated punishment or be exempted from punishment,” “shall” means “must”, not “may”. Furthermore, the first consideration should be given to “exemption from punishment”; and when that’s impossible, then the court should consider to “mitigate  punishment.”     

Even if Xia Junfeng committed a crime as a result of excessive self-defense, it cannot be voluntary manslaughter. As for what crime his excessive self-defense might have constituted,that is not the business of the defense lawyers, for the defense lawyers cannot make allegations against their client. As Xia Junfeng’s defense lawyer, my job today is to prove that the prosecutors’ charges against my client are invalid.  

 

   III. Closing argument: protect the dignity of the judicial system; prevent judicial tyranny; take caution in handing down death sentences; and avoid indiscriminate and improper killing.

The verdict of the first trial is crude and unreasonable. Evidence presented by the prosecutors was admitted in their entirety, while evidence presented by the defense counsels was ignored. No explanation was given about discrepancies in the evidence; no mention was made at all of the evidence that was impossible to explain. Not only can we not rule out serious doubts, the prosecutors have introduced more of such doubts. In words, and between lines, of this verdict of death sentence, we can see that the judges were even more eager than the prosecutors,and wanted to be the executioners who can hardly wait. It’s not difficult to see how the verdict works backwards from predetermined conclusions, with far-fetching argument to try to hoodwink and convince the world. In order to reach the conclusion that Xia Lingjun had committed intentional homicide, the verdict actually spills beyond the prosecution’s allegations: While the prosecution claimed that “Xia Junfeng stabbed the victims forcefully as he was quarrelling with Shen Kai, Zhang Xudong and others......”, the verdict believes that “the defendant stabbed the victims after the quarrel had been settled.”Obviously, “quarrelling” is not the same as “quarrel had been settled,” and Xia Junfeng stabbed the victims because of the “quarrel.” Nor could the court explain why this discrepancy exists between the prosecution’s allegation and the court’s verdict.  

    Of this 6500-character verdict, only 400 characters can be considered “argument” and they are in these two paragraphs:

“The nature of the case. According to the investigation, defendant Xia Junfeng stabbed the key parts of the victims multiple times; and the type of knife, positions of the stabbing, degree of force, and times of stabbing all indicate that the defendant intended to kill, and did kill, the victims. His action constituted intentional manslaughter and should be punished as such. Therefore we concur with the opinion of the prosecutors and reject that of the defense lawyers.”

How does “The type of knife” indicate that the defendant had intended to kill? With a short knife meant for cutting sausages? How do the “positions of the stabbing, degree of force, and times of stabbing” indicate that the defendant had intended to kill? How do you explain the directions of the stabbing wounds? How do you explain the wounds on the backs? How do you explain that the two Chengguans didn’t die on the scene when Xia Junfeng left there? At the moment when the stabbing occurred, what positions were the three of them in respectively? Why were they in those positions? What were the victims’ reactions when the first stab occurred? Why did they react so? Since the men who were stabbed were superior in number, height, psychology, and social status, how could Xia Junfeng have succeeded in killing them? Were there other factors at play that had contributed to the death of the victims, such as untimely treatment?    

Secondly, the verdict says that “with regard to the defense lawyers’ claim that the defendant self-defended himself when he was beaten, the investigation finds that witness Tao Yan had been only a few meters away from the scene throughout the event, and he testified that there had been no beating. With only the defendant’s claim without the support of other evidence, the court rules against this claim for lack of evidence. Therefore in this case, there was no self-defense involved, and the victims did not commit significant wrongs in causing the event. With regard to this dispute, the court supports the prosecutors’ opinion and rejects that of the defense.”

The absurdity of this statement by the court can be easily analyzed as follows:  

1. The verdict made almost no mention of evidence that support Xia Junfeng being beaten by Chengguans, nor did it cite the argument between him and the Chengguans.

2. Even though Yao Yan was only a few meters aways from the scene, but since Yao Yan “closed the door and heard little noises”(p.24, vol. 3), it would be normal for him not to see Xia Junfeng stabbing or the victims beating Xia, and his seeing neither cannot be used to incur that the victims did not beat Xia Junfeng. According to the logic of the verdict, since Yao Yan didn’t see Xia Junfeng’s act of stabbing, does that mean Xia didn’t stab anyone?

3. Xia Jufeng being beaten by Chengguangs is not “a claim made by the defendant only.” Xia Junfeng’s own complete, coherent statement is evidenced by photos of his injured arms, the positions and directions of the victims’ stabbing wounds, a sole that was trampled off the shoe, and testimonies of Zhang Jing, Shi Chunmei, Zhang Jie, Jia Ziqiang, Shang Haitao, and Zhang Zhongwen. These evidence do not exist separately; together they provide complimentary proof that Xia Junfeng was beaten.    

4. The verdict states that “there was no self-defense involved” in this case. If so, it neglects to explain the motive to kill, nor does it explain how Xia Junfeng, smaller in stature, could have managed to face three tall, ferocious Chengguans and kill two and injure one with a small knife over a very short time span.  

5. When the verdict states that “the victims did not commit significant wrongs in causing the event,” it essentially recognizes that they did commit some wrongs. What are these “wrongs” then? Why? How were these wrongs related to Xia Junfeng’s act of stabbing? Why had these wrongs not been taken into consideration when the court handed out sentence? Why did the court insisted on issuing death penalty to Xia Junfeng? Such is the tyranny and harshness of the verdict of the first trial.  

Chief judge and judges,

Since the Chengguan system was established in 1997, its drawbacks have been clear. The crimes it has committed have been many and have bred bitter resentment among the population. To date, there is no national “Urban Administration Law” or administrative statutes to govern it, and Chengguan “enforcement” has never had any legal basis. Nor has there been any consistency or standards in its enforcement approach as well as its leadership structure. It has had no legal oversight but still acts as law enforcement. Its members have no clear legal definition. Their personal qualities are as varied as to have thugs and hooligans in their midst. In many cases, they rob, and work for personal gain by harassing and harming citizens at will under the name of enforcement. 

In this system of vague legal status and inadequate oversight, Chengguan’s violent habit becomes a necessity, and a part of the system. Extralegal violence, thus employed to compensate for inadequate regulation and an absence of authority and legal deterrence, is no longer individual behavior. Such violence exists everywhere with the permission of the authorities. It is needed because of an overriding concern for “city image” and “urban management.” Finally, when extralegal violence is not monitored by the people and the media, and not punished by the law, it is only natural for Chengguan members to feel justified. Using violence with impunity enables the Chengguans to see violence psychologically as their “privilege,” a sign of status and pride. Since the legal and political status of Chengguan is unclear, it is only natural for its members to seek personal gain, vent their anger, and prey on the citizens they were intended to protect. Once violence starts, it has its own momentum, and, with a specific system enabling it and Groupthink encouraging it, it eventually becomes a habit and an addiction.

I believe Zhang Xudong and Shen Kan would have never displayed their cruelty and gratuitous violence toward their wives and children, because in a family environment they adhered to the principles of love and decency. But in the milieu of the Chengguan’s collective enforcement, they were overtaken by the desire and passion to inflict violence. Although, for Xia Junfeng’s interest and for the sake of the case reaching a just decision, I as the defense lawyer must point out that Shen Kai and Zhang Xudong’s actions at the time broke the law. Still, I don’t just blame them. They were my countrymen, living in the same imperfect world as the rest of us. They were no doubt victims of the Chenguan system as well. I hold deep empathy toward them, and can feel their family’s loss and pain, which are also the misfortune of all society.

In this case, the Chenguan system has already destroyed two families; do we have to destroy a third one? We have lost Shen Kai and Zhang Xudong. Several dozen citizens have been beaten to death by Chengguans. We have already paid a heavy price for the brutal Chengguan system, and now, do we have to sacrifice justice in order to endorse an ill-conceived system and the brutality committed by its members? Must we make the judiciary an avenging hand that puts Xia Junfeng, a husband and father of a nine-year-old, to death?

        Chief judge and judges,

In the worldwide trend against the death penalty, most countries have abolished it by law or in practice, and in the countries where it is still in use, it is reserved for the most egregiously violent crimes. It’s bad enough that we have been applying the death penalty in economic or non-violent criminal cases, are we now going to apply it in cases of excessive self-defense or justifiable self-defense as well? Cao Haixin was executed for self-defense, and the tragedy is a shame in the judicial history in Henan. Today, in the 21st century, are we going to repeat the same tragedy in Liaoning?

The death of two citizens is a tragedy for our society, but if Xia Junfeng were to be sentenced to death, it would be an obvious and gargantuan mistake, a tragedy unbearable and unacceptable to society that will cast a shadow on the Chinese judiciary for a long time to come. If Xia Junfeng were to be sentenced to death, many more innocent, helpless vendors will die at the hands of Chengguans. If one were to be sentenced to death for self-defense, he or she would be inclined to kill excessively and kill many more without qualms, because one can only die once. If one were to be sentenced to death for self-defense, there would be no boundaries between guilt and innocence, good and bad, life and death; and the power of the rule of law, already pathetically weak in our society, would be destroyed altogether by evil, chaos and brutality.

Without exaggeration, sentencing to death a citizen who was only defending himself will have disastrous repercussions for the whole society since it would embolden the attackers and intimidate those who resist unlawful violence. While evil-doers are encouraged, victims will be harmed the second time by the court after sustaining harm first from violent crimes. The act of self-defense in the face of unlawful harm is not only a virtue but an instinct. But instead of being protected and praised, if such an act is condemned with a sentence of death, then today’s verdict will hurt not only Xia Junfeng’s legal rights, but also the dignity of the law itself, social ethics, and the citizens’ sense of right and wrong.

         It is my hope that the court’s decision today will indicate that our judiciary system is still able to uphold the basic sense of right and wrong and some degree of independence. It is our hope that the judiciary process of Xia Junfeng’s case will show the world that the long-suffering Chinese people can draw lessons from their miseries and stand firm on the side of the rule of law and humanitarianism.

   

To: The Superior People’s Court of Liaoning Province

Liaoning Province Superior People’s Court

Defense counsel: Teng Biao, China University of Politics and Law

July, 2010