09 June 2014

Zhang Xuezhong Discusses Strategy in the Pu Zhiqiang Case

Pu Zhiqiang (lower right) was one of several
detained after participating in a seminar
commemorating June Fourth.

In early May, Beijing police detained a handful of people who had participated in a private meeting to discuss and commemorate the 25th anniversary of June Fourth. Among them was Pu Zhiqiang, a former student leader during the 1989 protests who has since become an outspoken defense lawyer and advocate of free speech in China. During his career, Pu has proven himself more than willing to butt heads with authority and mobilize the media and public opinion to exert pressure in hopes of influencing the outcome of the many controversial cases he has taken on.

In contrast to Pu’s outspokenness, however, veteran defense lawyer Zhang Sizhi has been far more circumspect in the way he has handled Pu’s case since being appointed as his lawyer following Pu’s detention. In spite of this low-key approach, however, Zhang has been routinely prevented from meeting with Pu, as police reportedly claim that Pu has been taken for questioning each time a meeting is requested. Another lawyer acting for Pu, Qu Zhenhong (Pu’s niece), has herself been placed under criminal detention, along with two reporters who worked closely with Pu in the past.

Many initially believed that Pu and the others would be released from detention after the sensitive June Fourth anniversary passed. In fact, most of the other detainees connected to the case have been released on guarantee pending further investigation. Pu, however, remains in custody, indicating that police in Beijing have sent a request for arrest approval to prosecutors and may, in fact, be seriously contemplating criminal prosecution. That decision is expected to be handed down later this week.

Zhang Xuezhong
It is in this uncertain context that Zhang Xuezhong, a legal scholar and lawyer based in Shanghai who has been critical of the Chinese political system and taken on a number of controversial criminal defense cases, has penned an essay expressing his views about the need to resist the sense of fear that many feel about exposing the injustices of the criminal system and adopt a new defense strategy in Pu’s case, one that will take a less deferential attitude toward what appears to be obvious retaliation against Pu’s past legal activism and a clear warning about what fate might befall others who engage in similar outspokenness and willingness to challenge authority.

My Personal View on the Defense Strategy in the Pu Zhiqiang Case

Zhang Xuezhong
Lawyer Pu Zhiqiang is my friend. When the court refused to permit me and five other original lawyers to continue representing Liu Ping, Wei Zhongping, and Li Sihua during their second trial hearing, I invited Pu Zhiqiang to participate in the defense. At the time, Lawyer Pu had many of his own cases and his health was not so good, but he still agreed without hesitation and even insisted on covering all of his own travel expenses. I have always felt grateful for his willingness to help out when the circumstances were dire.

As Pu’s friend and colleague, I should have made vigorous appeals and condemned the authorities for their political persecution after he was detained by Beijing police on cooked-up charges. But seeing as his family members and defense lawyer wished to do things more quietly, I of course ought to respect this. Therefore, after writing a short legal brief on the case I have since kept silent and waited.

Personally, I think that the present defense lawyer’s decision to handle the case in a circumspect manner, wait to see how things developed after the detention period came to an end, and how that the case would turn for the better after 4 June is all understandable and can be considered a rather sound defense strategy. (Of course, there are also those who consider this strategy to be overly conservative.)

Now, the detention period has already come to an end. The other suspects have all been released leaving only Lawyer Pu still in custody. (Presumably, a request for arrest approval has already been sent to the procuratorate.) Given the earlier focus of the police on Pu and their intensive investigation, one can see that the authorities have already decided to punish Lawyer Pu. This initial outcome ought to show that the original low-key, non-political strategy did not have a beneficial effect. Of course, we should not condemn the original defense strategy from a position of clear hindsight. But based on the new developments in the case, it is undoubtedly necessary to make adjustments to the original defense strategy.

Some worry that a determined and resolute defense will lead the authorities to retaliate against a suspect. I think that this depends on the circumstances of each case. When a suspect has misbehaved (or is even guilty) or has a poor public image, if the defense lawyer provokes the authorities or stirs up public opinion, it’s entirely possible that it might result in in a heavy sentence for his or her client. (The Li XX case is perhaps an example of this.) But if the suspect is innocent and has a good public image, then a determined and resolute defense can force the authorities to consider the negative consequences and pull back to a certain degree.

We must take note that the exercise of institutional power is rarely individual in nature. In this sort of political case, a low-key and restrained defense attorney is unlikely to move the system to act with kindness or mercy. After all, power is characterized by a tendency to expand and is only likely to stop expanding or pull back in the face of sufficient resistance.

As to the substantive issues in the case, Lawyer Pu merely attended a seminar in a private residence and Beijing police placed him under criminal detention for creating a serious disturbance. This kind of charge is clearly preposterous. With respect to procedure, the Beijing police have flagrantly deprived Pu’s defense lawyer of his right to meed with his client. Clearly, Pu’s detention and the charges against him are legal persecution from beginning to end. At this point, if we continue with a restrained defense strategy, the authorities will be happy to see this persecution through to the end. But if a defense lawyer were to expose the authorities’ persecution publicly and attract the broader attention of public opinion, the authorities might pull back a bit. We should realize that, based on human nature, the more that people can deceive the public, the more daring those people become in persecuting the innocent. When they are in the glare of the public eye, however, those persecutors will feel a certain amount of apprehension and cowardice.

For example, in Zhejiang Wu Ying was given the death sentence in the trial of first instance. After her father went around campaigning on her behalf and wider attention was paid by public opinion, she was rescued from danger and was able to escape with her life. But in Hunan, Zeng Chengjie was sentenced to death on the same charge and his defense attorney adopted a restrained defense strategy in hopes that he would be spared; in the end, though, Zeng was executed.

In reality, the case against Pu Zhiqiang has from the beginning been retaliation for all of Pu’s previous actions in the public interest. What his family and defense lawyers most need to consider now, therefore, is how to prevent the authorities from retaliating against Pu and not worrying whether a strong defense might lead the authorities to retaliate. This is because the authorities’ decision whether or not to punish Pu will be primarily based on what Pu has done prior to being detained, not on what Pu’s defense lawyer does after Pu was arrested.

These are all my personal opinions, and perhaps I am mistaken or my strategy is inappropriate. But I hope that everyone will believe that my intentions are good.

9 June 2014

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