Close

Donate today to keep Global Voices strong!

Watch the video: We Are Global Voices!

We report on 167 countries. We translate in 35 languages. We are Global Voices. Watch the video »

Over 800 of us from all over the world work together to bring you stories that are hard to find by yourself. But we can’t do it alone. Even though most of us are volunteers, we still need your help to support our editors, our technology, outreach and advocacy projects, and our community events.

Donate now »
GlobalVoices in Learn more »

China: Yang Jia given death penalty in problematic trial

After going to court last week, cop killer Yang Jia‘s (杨佳) first trial concluded today with the handing down of the death sentence. Yang has ten days to appeal for a second trial, which if he does will be followed by a review at the People's Supreme Court of his having been given the death penalty, to then be commuted or carried out.

Lawyer-blogger Liu Xiaoyuan (刘晓原) has written eleven [zh] (not including those that have already been harmonized) posts about this case over the past week, looking at all aspects of the case. His post today [zh], however, deals not so much with the social factors that would see a brutal cop-killer receive so much support and sympathy both online and off, but the logistics of Yang's case as it moves forward from here, as well as problems he perceives in the non-transparent way it has been handled so far:

一审判决后,杨佳日子已不多了

从7月1日袭警案发,到今日宣判,整整两个月时间。奥运会的召开,让杨佳多活了一些日子。

杨佳袭警案会如何判决,不要说是律师,就是普通民众也能预料到结果。

我们关注杨佳袭警案,并不是支持他“以暴制暴”,而是关注案件的作案动机、司法机关办案程序,以及发生案件的深层次原因。

Now with a first trial verdict, Yang Jia doesn't have many days left

Since the police attack incident on July 1, until the verdict today, two whole months have gone by. Because of the holding of the Olympic Games, Yang Jia was able to live a few days longer.

As for how Yang Jia will be judged in the cop-killing case, you don't need a lawyer to tell you, even average citizens can predict what the outcome will be.

As we pay attention to the Yang Jia cop-killing case, it's not because we support his ‘fighting violence with violence', but rather that we're interested in his motive for committing this crime, in judicial procedure in handling cases, as well as the deeper reasons which led to this crime taking place.

杨佳袭警案,仅从表面上来看,案情并不复杂,也不特殊,以前也有类似的案件发生,只不过没有杀死杀伤这么多警察。

杨佳袭警案,是一起全国有重大影响的案件,司法机关在办理案件中一些遮遮掩掩的做法,引起了社会的广泛质疑。

杨佳杀人了,本应受到社会的谴责。出乎预料的是,他竟然得到了很多人的同情。难道民众都好坏不分了吗?到底是什么原因,使民众的社会价值观如此颠倒了呢?

我想,除了社会深层次原因外,可能是司法机关办案中一些不透明做法。

The details of the Yang Jia cop-killing case, looking just at the surface of it, are not particularly complex, nor are they unique; cases similar to this have taken place in the past, only not so many police were killed or hurt.

The Yang Jia cop-killing case is one that has had huge impact across the country, and the behind-the-curtains way that the judiciary have handled this case has given rise to widespread suspicion throughout society.

Yang Jia killed people, and this should have been condemned by society. What comes unexpectedly, though, is that he actually earned many people's sympathy. Can't people tell right from wrong? What possible reason could there be, for public and social values to get as screwed up as this?

I think, deeply-rooted social reasons aside, that it's possible that the reason is due to certain practices of the judiciary that, in processing cases, just aren't transparent.

在这起袭警案中,令人不可思议的是,杨佳母亲竟然莫明其妙的“失踪”了。她“失踪”后,当杨佳父亲委托的北京律师,来上海要求会见杨佳时,检察院又拿出了杨佳的笔录,说其只接受母亲委托的律师。有了这份笔录后,上海谢有明律师就在北京找到了杨佳母亲,并办理了授权委托书。这事有点离奇吧?

如果谢有明律师的授权委托有问题,则要影响到审判程序和判决的合法性。因为按照《刑事诉讼法》及司法解释规定,对可能判处死刑的案件,被告人一定要有辩护人进行辩护,当然,这个辩护人必须是依法委托或法院指定的。谢律师不是法院指定的辩护人,而是由杨佳母亲委托的辩护人。假设这个委托不真实,一审判决是不是程序违法呢?

这个案件中,不可思议的还有,杨佳的精神病鉴定,是无司法鉴定主体资格的机构所做。我不知,检察院或法院有没有对杨佳重新做司法鉴定。如果没有重新做过,而是以司法部司法鉴定科学技术研究所的鉴定,作为认定杨佳具有刑事责任能力的证据,那么,上海市第二中级人民法院的一审判决就存在严重问题。

In this cop-killing case, the most unbelievable part is that Yang Jia's mother actually and inexplicably “disappeared.” After her “disappearance,” when the Beijing lawyer retained by Yang Jia's father went to Shanghai demanding to meet with Yang Jia, the Procuratorate brought out Yang Jia's statement, which said that he would only meet with a lawyer appointed by his mother. Once in possession of this statement, Xie Youming (谢有明), a Shanghai lawyer, then went to Beijng and was able to find Yang Jia's mother, and gain authorization to handle the case. Sounds a little strange, right?

If there were a problem in how lawyer Xie Youming came to be entrusted, this would affect both the proceedings of the trial, as well as the legality of the verdict. Because, according to the “Criminal Action Law” as well as rules for judicial interpretation, with regards to cases which bear a possible death sentence, the accused are guaranteed counsel as means to provide a defense, so of course, said counsel must be either entrusted legally or else be appointed by the court. Lawyer Xie is not court-appointed counsel, he is the counsel entrusted upon by Yang Jia's mother. Suppose this entrustment were invalid, wouldn't the initial sentence be in violation of procedure?

That's not all the unbelievable there is in this case, Yang Jia's mental illness evaluation was performed by a body which lacks judicial testimony qualifications. I don't know if the Procuratorate or the court have re-sought expert testimony on Yang Jia or not. If they haven't redone this, and instead have relied on the Ministry of Justice's Science and Technology Research Institute's own expert testimony as evidence in determining Yang Jia's criminal responsibility, then serious problems exist with the Shanghai #2 Intermediate People's Court's first trial verdict.

一审判决后,杨佳还有十天的上诉期限。如果上诉了,还有二审程序,由上海市高级人民法院审判。二审判决后,还有最高人民法院死刑复核程序。如杨佳不上诉,只直接进入死刑复核程序。

按照《刑事诉讼法》第196条规定,第二审人民法院受理上诉案件,应当在一个月以内审结。至迟不得超过一个半月。有本法126条之规定情形的,还可以再延长一个月。

杨佳袭警案,不符合《刑事诉讼法》第126条规定的情形。也就是说,这个案件的最长审限是一个半月。

Following the first trial, Yang Jia now has a maximum of ten days to appeal. If he appeals, the second trial gets heard by the Shanghai People's Higher Court. Following that, there still remains the death penalty review procedure at the People's Supreme Court. If Yang Jia does not appeal, the case goes straight to the mandatory death penalty review procedure.

According to article #196 of “Criminal Action Law”, second-trial appeal cases in the People's Court should be concluded within one month. At the latest they are not allowed to run longer than a month and a half. Under circumstances found in article #126 of this Law, the deadline can be extended by one month.

Yang Jia's cop-killing case does not fall under the circumstances stipulated in article #126 of “Criminal Action Law”. In other words, the longest this case will last is a month and a half.

7月1日案发,7月10日侦查完毕,上海警方将案件移送上海市人民检察院第二分院审查起诉。7月17日,检察院二分院向上海市第二中级人民法院提起公诉。如果不是因为奥运临近,7月28日就要开庭审理。从中可以看出,公检法对此案是速侦、速审、速判。

二审判决后,死刑复核期限没有明确时限规定,也就是说,可快可慢。

原山东省济南市人大常委会段义和炸死情妇一案,2007年8月23日二审当庭作出判决驳回上诉,案件进入死刑复核,仅用十天就复核完毕,9月4日执行了死刑。段义和一案,7月9日案发,到执行死刑,只用了五十八天时间。我担任律师的廖思齐死刑复核案,案件在六月初就到了最高人民法院复核,至今三个月了还没有复核完毕。

如果不是奥运会,杨佳一案也会象段义和案那么快。

如快的话,也许在九月底之前,杨佳一案会走完全部程序,最迟不会超过十月底。

The crime took place on July 1, the investigation concluded on July 10, at which point the Shanghai Police handed the case over to the Shanghai People's Procuratorate to prepare the charges. If it hadn't been for the coming of the Olympics, the trial would have begun proceedings on July 28. From this we can see that the public prosecutors expedited the investigation, the trial hearing, and the sentencing, in this case.

Following a second trial, there is no clearly-stipulated time limit for death penalty review; in other words, it could go fast, or it could go slow.

Former Shangdong Province Jinan City National People's Congress Standing Committee member Duan Yihe‘s (段义和) sentence for blowing up his mistress, when his appeal was rejected in second trial on August 23, 2007, the case went into death penalty review, with the review process concluding in just ten days, and the execution carried out on September 4. Duan Yihe's case, from the time the crime took place on July 9 to the carrying out of the death sentence, only 58 days had passed. As lawyer in the Liao Siqi (廖思齐) death penalty review case, the case reached the Supreme Court for review at the beginning of June, and today, three months later, has still yet to see the review conclude.

If it weren't for the Olympic Games, Yang Jia's case would have proceeded as quickly as Duan Yihe's.

If it had gone that quickly, it's possible Yang Jia's case would have run its complete course by the end of September, and early October at the latest.
  • http://www.solanasaurus.com/ Solana Larsen

    Very interesting to learn more about the court process. You’d wish a fair trial would proceed something as dreadfully inhumane as a death penalty.

  • Wei

    The events that led to the murders are more interesting and more telling than the trial and the expected death sentence.

  • so_damn_lame

    Hey Wei,

    Yeah, I totally agree with you on your assessment (#2), but you got to hand it to Kennedy though. How else would you start a road rage forum if you don’t “politely” point out all them “differences”.

    Dude, if Kennedy didn’t exercise his own “selectivity” here, Solana probably would be the only leaving comments here.

    But then again, I sometimes get the feels that she only leaves comments b/c she felt compelled to show other people that she’s interested in more than whatever minute spectrum she’s into.

  • wei

    杨佳is not wright ,but the cop have some problem

  • Wei

    Great, now we have two different Weis :P

  • Pingback: Global Voices Online » China: Handling of Yang Jia’s secret trial breeds widespread discontent

  • stranger

    The details of the Yang Jia cop-killing case, looking just at the surface of it, are not particularly complex, nor are they unique; But the suspecious point of this case is that the motive of yangjia killing cop,obviously the reason given by shanghai police is not satisfied for the public, people won’t believe that he would become cop-killing machine(police call it “revenge”) just because of the bike incident unless his mental got problem.However,there is one thing for sure is that the death penalty cann’t be changed even they start the second trial,he must take the reponsibilities for what he done.

  • Pingback: Kidney Stone Gate: Update & Photoshops Made By Netizens | chinaSMACK

  • Pingback: Global Voices Online » China: Student killed by police, but wins not much sympathy

  • Pingback: Global Voices Online » China: To be dead or not? Appeal of amnesty for cop-killer.

World regions

Countries

Languages