大午案法律团队:大午案庭审第三日简报(中英文)

2021年7月17日上午九时,大午案庭审继续。

上午仍然是对涉嫌聚众冲击国家机关罪被告人的发问程序,辩护人就所获知的非法取证新线索,再次提出排非申请。同时,辩护人联名正式向法庭递交“要求追究大午案侦查人员利用职权非法拘禁的刑事责任和检察机关失察法律责任的律师意见书”,要求查实残酷指居的严重违法。下午进入该起指控的举证质证环节,被告人及辩护人对四份讯问笔录质证用时约四小时。

通过今天上午对被告人的详细发问,“生不如死”的指定居所监视居住,以及所谓聚众冲击国家机关罪的“犯罪事实”细节愈加清晰。

据被告人靳凤羽(大午集团副总经理)所述,被指定居所居住期间,曾在侦查人员的陪同下到高碑店市公安局办理委托公证:出卖自身合法所有的位于高碑店市住房。根据刑事诉讼法第75条的规定,监视居住应当在嫌疑人、被告人的住处执行。若靳凤羽在高碑店市有住所,则应当在该住所内对其采取监视居住措施,而非另行指定其他居所。靳凤羽当即表示:若当时知道此规定,一定不会出卖住房。因为在指定监视居住场所没有窗户,每天24小时常亮灯,无法区分白天黑夜;因摄像头无法遮挡、毫无隐私,在指居的五个月零10天里从没有洗过澡。

既然出卖住所的公证是在高碑店市公安局做出的,大午案侦查机关显然明知靳凤羽在高碑店市有住所,但却依然违法指定其他场所进行监视居住。对于其辩护人据此提出的排除非法证据申请,靳凤羽表示不认同,尽管张维玉律师一再表明:依法提出的排除非法证据申请、回避申请,不会导致法庭的报复。靳凤羽仍坚持:“指定监视居住期间我虽然受到了折磨,但我没有怨言,只是认为法律规定指居两天才能折抵一天刑期,太亏了、太不值得了”。

而面对聚众冲击国家机关罪的指控,靳凤羽表示:“我认罪但我害怕这个罪名,我接到起诉书看到这个罪名就吓死了。我不仅成为了国家的罪人,还成为了国家的敌人。我觉得这个罪跟叛国罪都差不多,我觉得我将来都没办法在这片土地上生活了,这个罪我担不起”。靳凤羽哽咽地说完,当庭崩溃大哭。

是的,除了客观事实与指控事实出入较大外,聚众冲击国家机关罪这一罪名本身,就足以让这些原只想请愿维权、诉说委屈的被告人崩溃绝望。发问环节使得更多细节被披露:2020年8月4日下午17时左右,大午集团员工及郎五庄村民共约数十人在徐水区公安局门口聚集喊话,此时人群呈扇形排列,距公安局门口仍有一段距离,现场其他人员均可正常出入,亦未阻碍车辆正常通行。约十分钟后,特警手持盾牌、警械从身后包抄喊话人群,将维权群众推攘向前至公安局门口,实施抓捕行为,人群迅速被冲击散开。

我国《刑法》第290条规定的聚众冲击国家机关罪需要产生国家机关工作无法进行、造成严重损失的后果,而多位单独接受发问的被告人当庭陈述能够相互印证,不仅未造成法定损害后果,甚至未产生秩序混乱,根本不构成犯罪。

向各涉案被告人发问环节结束后,在进入举证质证环节前,孙大午辩护人王誓华律师以在法庭发问时新发现孙大午在指居期间受到胁迫、靳凤羽被违法指居情形为由,再次提出排除非法证据申请,要求排除孙大午与靳凤羽在指居期间形成的所有讯问笔录,同时再次要求调取讯问同步录音录像。孙大午的另外一位辩护律师张鹏指出,对靳凤羽的指定居所监视居住是非常明显的非法拘禁,完全符合刑诉法司法解释第123条第(三)项规定的排除非法证据的情形。

在指居期间受到“折磨”的靳凤羽,显然担心留下“态度不好”的印象,当庭提出:“指居期间我说的都是真实的”。而这也成为合议庭在休庭40分钟后,直接驳回辩护人排非申请的理由:“靳凤羽前后供述一致,合议庭对证据合法性没有异议”。

这样的驳回显然不具备说服力,多名辩护人举手要求发言,王誓华律师也要求对驳回的决定进行复议。被告人供述的真实性与合法性是两个问题,即便靳凤羽供述是真实的,因为违法采取指定居所监视居住措施,也应当排除相关笔录。

王誓华律师提出:“不能用我申请排除的证据来证明讯问的合法,这种证明的方式方法就是错的。我们正在起草律师联名的法律意见书,要求追究侦查人员对于靳凤羽利用职权非法拘禁的刑事责任和检察机关失察的法律责任。侦查人员违法指居已经涉嫌非法拘禁,非法拘禁期间所产生的所有笔录,由于取证程序的违法,所以都是非法的”。

审判长对此答复:“下次休庭后再给你处理”。

随后,聚众冲击国家机关罪这一起指控进入了举证质证环节。

公诉人首先出示被告人的讯问笔录,摘要宣读了“有罪”供述部分,辩护人质证时则宣读了笔录中有利于被告人的部分。

如孙二午(孙德华)供述称“孙大午决定先去政府再去公安局,时间不超过半小时,给政府递递材料”“到政府要个说法”,这恰恰能够证明被告人根本不具有冲击国家机关的主观故意,公诉人宣读讯问笔录时却将此有意无意地遗漏了。

此外,多位辩护人对被告人供述的合法性发表了综合意见,同时对公诉人举证方式提出质疑与建议:第一,我国刑诉法明确规定证明被告人有罪的举证责任由人民检察院承担,而现在被告人的庭前供述变成了指控自己有罪的证据,这就变相地将证明责任转嫁给了被告人自身;第二,举示被告人庭前供述,而不采信其当庭陈述,这与以庭审为中心的刑事司法改革方向相悖;第三,公诉人提供的举证清单中包括2020年8月4日当天徐水区公安局门口的现场视听资料等,若该部分视听资料来源合法、未经剪辑,相较于主观、经加工的言词证据,更能直观、全面、真实反映当天现场情况,完全可以先行出示。

因已届晚18时,法庭短暂休庭三十分钟。

休庭后,王誓华律师代表大午案部分辩护律师,正式向法庭递交了《要求追究侦查人员对于靳凤羽利用职权非法拘禁的刑事责任和检察机关失察法律责任的律师意见书》。

18时35分继续开庭。合议庭宣布再次驳回辩护人的排非申请。

公诉人继续出示孙三午(孙志华)的讯问笔录,孙三午本人提出大部分内容都不是真实的,要以当庭供述为准。其他被告人也纷纷指出笔录记载与客观事实相悖之处,如参与人员姓名记录错误、聚集人数记录错误等等。孙三午举手发表补充意见,解释出现笔录记载失实的原因是他早已记不清8月4日当天发生的事情,但侦查人员告诉他:“别人都认罪了,你还不说,你就是罪加一等”。

对此,孙大午质证说:

“现在看来,想把我们弄成冤假错案也很困难的。这个罪名是不成立的,非常清晰,我们去区政府、区公安局的目的很清楚,而且我们特意避开高峰期,就怕造成不好的影响。你们现在拿出这种证据,就完全是为了把人弄一个罪所进行的构陷;你们拿出这种证据,就是卑鄙,就是构陷!”

此前也曾被指居、患有严重抑郁症的被告人纪玮莲表示,对指居期间形成虚假的讯问笔录能够理解,这是因为——“大午先生说监视居住期间是生不如死,而要我来说,我觉得用语言来形容都已经太苍白了。庭前会议时律师提出要去指定监视居住的场所进行现场勘探,我真的不愿意去,因为我想到那个环境,我就颤抖”。

孙福硕为孙大午次子,他向法庭表达了他的困惑:“大午集团在高碑店有房子,就算是我主管的大午酒业、大午食品,在高碑店就都有办事处,我就是不明白为什么不能指定这些地方给集团的员工监视居住呢?”

而“生不如死”的指定居所监视居住,残酷之处确实无法再用文字表述,或许只有孙大午本人当庭的赋诗,能够浅现当时“想自杀,但想死也死不了”的绝境:

“日月星辰全无存,昼夜刺眼长明灯;

六班甲士双人岗,辛苦煎熬蒸煮烤;

命运无常活死尸,禁止吭声瞪着眼;

苦不堪言信念在,默默思念大午城。”

庭审中,孙大午说:“我今天坐在被告审判席上,未来的被告审判席上会是谁?是你们!”

大午案庭审,明日九时继续。

大午案法律团队

2021717

Dawu-lawyers-after-third-day-of-trial

The Dawu Legal Team after the third day of trial.

At 9 a.m., on July 17, 2021, the Dawu trial continued.

In the morning, the defense lawyers continued to question the defendants who are suspected of “gathering a crowd to assault state organs”. The defense counsel once again filed an application to exclude illegal evidence based on new clues he learned about illegal evidence collection. At the same time, the defense lawyers jointly submitted to the court “Lawyers’ opinion requesting the court to investigate the criminal responsibility of the investigators of the Dawu case in using their authority to carry out illegal detention and the legal responsibility of the prosecutory organ for failure to conduct oversight”, requesting to check and verify the serious violations of law of inhuman Residential Surveillance at a Designated Location (RSDL). In the afternoon, the prosecutors presented evidence supporting this allegation, and the defendants and defense lawyers cross-examined the evidence, taking about four hours to cross-examine the content of four interrogation transcripts.

Through detailed questioning of the defendants this morning, the details of the “life is worse than death” RSDL and the “criminal facts” of the so-called “crime of gathering a crowd to assault state organs” became clearer.

According to the defendant Jin Fengyu (靳凤羽, Deputy General Manager of Dawu Group), during the RSDL period, investigators took her to the Gaobeidian City Public Security Bureau to carry out the procedure of selling her legally-owned residence in Gaobeidian via entrusted notarization. According to Article 75 of the Criminal Procedure Law, residential surveillance should be carried out at the residence of the suspect or defendant. If Jin Fengyu has a residence in Gaobeidian City, her residential surveillance measures should be carried out in that residence and not elsewhere. Jin Fengyu quickly pointed out that if she knew about this regulation at that time, she would definitely not have sold her house. At the RSDL location, there were no windows in the room and lights are on 24 hours a day, it is impossible to distinguish between day and night; because the cameras cannot be blocked and there is no privacy, in the five months and 10 days of RSDL she had not taken a single shower.

Since the notarization of the sale of the residence was made at the Gaobeidian City Public Security Bureau, the Dawu case investigation agency clearly knew that Jin Fengyu had a residence in Gaobeidian City, but still illegally used another location for residential surveillance. Jin Fengyu disagreed with the application for the exclusion of illegal evidence submitted by her defense counsel, even though lawyer Zhang Weiyu (张维玉) has repeatedly stated that the application for exclusion of illegal evidence and the application for recusal were made in accordance with the law and will not lead to court retaliation. Jin Fengyu still insisted: “Although I was tortured during the RSDL period, I have no complaints. But I think it is awful and not worth it that two days of RSDL can be used to offset only one day’s sentence according to the law.”

Faced with the charge of “gathering a crowd to assault state organs”, Jin Fengyu said: “I plead guilty but am afraid of this accusation. I was scared to death when I received the indictment and saw this charge. I have not only become an offender of the nation, but also an enemy of the state. It seems to me that this accusation is on par with treason. I feel that I will not be able to live in this country anymore — I cannot bear this accusation.” After choking up, Jin Fengyu broke down and cried in court.

Yes, in addition to the large discrepancy between the objective facts and the alleged facts, the charge of “gathering a crowd to assault state organs” is enough to make defendants who only wanted to petition to defend their rights and relay their grievances collapse in despair.

The questioning stage led to more details being disclosed: at about 17:00 on August 4th, 2020, dozens of employees of Dawu Group and villagers of Langwuzhuang gathered at the entrance of the Xushui District Public Security Bureau and shouted their grievances.  At this time, the crowd was arranged in a fan shape still some distance from the entrance of the Public Security Bureau. Other personnel on the scene could enter and exit normally, and the normal passage of vehicles was not hindered. About ten minutes later, special police officers armed with shields and riot gear emerged from behind and enveloped the shouting crowd, pushing the rights defenders forward to the door of the Public Security Bureau where they carried out arrests. The crowd quickly dispersed.

The crime of “gathering a crowd to assault state organs” stipulated in Article 290 of the Criminal Law requires that the state agency cannot carry out its work and suffers serious losses as a result of the assault. However, the statements of multiple defendants who were individually questioned in court corroborated each other: not only did they not cause statutory damage, they did not even cause chaos, hence their actions did not constitute a crime at all.

dawu-chicken-farm
One of Dawu Group’s chicken farms.

After questioning relevant defendants, and before entering the cross-examination session, lawyer Wang Shihua (王誓华), Sun Dawu’s defending counsel, once again filed an application for the exclusion of illegal evidence based on newly discovered facts during the questioning procedure that Sun Dawu (孙大午) had been coerced during the RSDL period and Jin Fengyu (靳凤羽) was illegally placed under RSDL. He requested to exclude all interrogation transcripts given by Sun Dawu and Jin Fengyu during the RSDL period. At the same time, lawyer Wang Shihua also  requested real-time audio and video recordings of the interrogations. Sun Dawu’s other defense lawyer Zhang Peng (张鹏) pointed out, applying RSDL to Jin Fengyu clearly constitutes illegal detention, a situation identified in Article 123 (3) of Judicial Interpretation of the Criminal Procedure Law for exclusion of illegal evidence.

Jin Fengyu, who was “tortured” during RSDL but visibly worried about leaving the impression of a “bad attitude,” stated in court: “What I said during my RSDL was true.” Yet this became the reason the collegial panel directly rejected the defenders’ application for evidence exclusion after a 40-minute adjournment: “Jin Fengyu’s confession was consistent before and now, and the collegial panel had no objection to the legality of the evidence.”

Such a refusal by the panel was obviously not persuasive. Several of the defending counsel raised objections and asked to speak. Attorney Wang Shihua also requested a review of the refusal decision. The authenticity and legality of the defendant’s confession are two separate issues. Thus, even if Jin Fengyu’s confession was true, the relevant transcripts should still be excluded because of the illegal nature of placing her under RSDL.

Lawyer Wang Shihua pointed out: “The evidence I applied for exclusion cannot be then used to prove the lawfulness of the interrogation. This method of proof is wrong. We are drafting a legal opinion jointly signed by lawyers, requesting that investigators be held accountable for abusing their powers in carrying out illegal detention of Jin Fengyu, and the prosecutorial organ be held accountable for failing its legal responsibility to enact oversight. To begin with, by carrying out illegal RSDL the investigators are already suspected of the illegal detention; all the transcripts produced during the illegal detention are illegal due to the illegal nature of these evidence collection procedures.”

The presiding judge replied: “I will deal with it after the next adjournment.”

Subsequently, the accusation of the “crime of gathering a crowd to assault state organs” entered a period of prosecutors presenting evidence, followed by cross-examination by the defending counsel of the prosecution’s evidence.

The prosecutors first showed the transcripts of the defendants’ interrogation. One of them read out excerpts of the confessions that established “guilt”, while the defenders read out the parts of the transcripts beneficial to the defendants when they cross-examined the evidence presented.

For example, Sun Erwu (孙二午) (孙德华, Sun Dehua) confessed that “Sun Dawu decided to go to the government building first and then to the Public Security Bureau. It took no more than half an hour to deliver the necessary materials to the government” and “to ask the government for an explanation.” This could prove that the defendant did not have any subjective intention to attack state organs, but the prosecutor omitted this intentionally or unintentionally when reading the interrogation transcripts.

In addition, members of the defending counsel issued comprehensive opinions on the legality of the defendants’ confessions. At the same time, they raised questions about the way the prosecutors presented evidence and proposed suggestions: First, China’s Criminal Procedure Law clearly stipulates that the burden of proof for the defendants’ guilt would be borne by the People’s Prosecutorate. But now the defendants’ pretrial confessions had become evidence of their guilt, which in a disguised form shifted the burden of proof to the defendants themselves. Second, to show the defendants’ pretrial confessions instead of accepting their in-court statements is contrary to the direction of criminal justice reform centered on court trials. Third, the list of evidence provided by the prosecutors includes on-site audio-visual materials at the entrance of the Xushui District Public Security Bureau on August 4, 2020. If the source of these audiovisual materials is legal and has not been edited, it can more straightforwardly, comprehensively and truly reflect the situation on the scene that day than subjective and processed verbal evidence. They should definitely be shown first.

As it was already 18:00 in the evening, the court was adjourned for 30 minutes.

After the adjournment, Wang Shihua, representing some of the defense lawyers in the Dawu case, formally submitted to the court the “Defense lawyers’ legal opinion to request that investigators be held accountable for abusing their powers in carrying out illegal detention of Jin Fengyu, and the prosecutory organ be held accountable for failing its legal responsibility to enact oversight”.

The hearing resumed at 18:35. The collegial panel announced that it would once again reject the defending counsel’s application for exclusion of illegal evidence.

The prosecutors continued to present Sun Sanwu (孙志华, Sun Zhihua)’s interrogation transcripts. Sun Sanwu himself stated that most of the content did not reflect reality and asked the court to rely on his in-court testimony as the dispositive evidence. Other defendants also pointed out the contradictions between the transcripts and objective facts, such as incorrect records of the names of participants and the number of people gathered, among other inconsistencies. Sun Sanwu raised his hand and issued a supplementary opinion, explaining that the reason for the inaccurate transcripts was that he had long been unable to remember what happened on August 4, but the investigators told him: “Others have pleaded guilty. If you don’t confess, your guilt will increase in severity.”

In this regard, Sun Dawu stated during cross examination: “Now it seems that the prosecution’s attempt to turn this into a unjust, wrongful case against us was very difficult as well. This charge is clearly unfounded. The purpose of our visit to the district government and district public security bureau was very clear, and we deliberately avoided peak periods for fear of adverse effects. When you present this kind of evidence now, it is entirely for the purpose of framing people with guilt; it is despicable and false to present this kind of evidence!”

The defendant Ji Weilian (纪玮莲), who previously was also placed under RSDL and suffers from severe depression, said that she could understand how false interrogation transcripts could be created during residential surveillance. This is because — “Mr. Dawu said that during the RSDL period, life was worse than death. But if you ask me, I say words pale in comparison to reality. During the pre-trial meetings, the lawyers proposed to go back to the RSDL site for on-site inspection. I really didn’t want to go, because I trembled even when I thought about that environment.”

Sun Fushuo (孙福硕) was Sun Dawu’s second son. He expressed his confusion to the court: “Dawu Group has properties in Gaobeidian. Even the Dawu Wine Company and Food Company I am in charge of have offices in Gaobeidian. I just don’t understand why these places can’t be assigned to the group’s employees when they are placed under residential surveillance?”

And indeed, the cruelty of Residential Surveillance in a Designated Location, which Sun Dawu described as “life was worse than death”, could hardly be expressed in words. Perhaps only Sun Dawu’s own poem, which he read in court, could show the desperate situation of “I want to commit suicide, but even if I wanted to die they will not let me” at that time:

“There is no sun, moon and stars but dazzling lights that blind me day and night,

With two armored soldiers guarding me, six shifts a day, through long and tormentous hours.

Fate is fickle, I am but a living corpse forbidden to speak with eyes wide open.

In unbearable suffering I hold on to faith, as I silently miss Dawu City.”

During the trial, Sun Dawu said: “I am sitting on the defendant’s bench today. But who will be on the defendant’s bench in the future? It will be you!”

The Dawu trial will continue tomorrow at 9 o’clock.

Dawu legal team

July 17, 2021

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