With a homecoming years in the making, Zhao Zhenshang was surely expecting to give his fellow villagers a surprise when he turned up after 12 years in the ether. Instead, the greatest shock was his: Zhao had long been thought dead. Indeed, a former neighbor was already a full decade into a 29-year sentence for Zhao’s murder.
This dramatic return from the grave – and the subsequent release of Zhao’s alleged “killer,” the unrelated Zhao Zuoha – made international headlines back in 2010. As the story went, the two had come to blows in 1997 over a woman, after which Zhao Zhenshang had fled the village. When a headless male body was found in the locale two years later, suspicion would fall on the other Zhao. After all, nothing had been heard from his fugitive neighbor following their punch-up.
“All the evidence the police got was fake,” Zhao Qizhong, deputy director of the Shangqiu public security bureau, would later tell China Daily. Despite judicial reluctance – the case was returned three times by prosecutors, citing lack of evidence – local police were determined to press the case. While bureaucrats wrangled, Zhao spent almost three years behind bars awaiting reckoning. In the end, his fate would be decided not by lawyers but politicians: in August 2002, the Shangqiu Political and Legislative Affairs Committee decreed he should be prosecuted for murder.Enjoying this article? Click here to subscribe for full access. Just $5 a month.
The subsequent investigation into the miscarriage of justice unleashed against Zhao would come to absorb practically every department responsible, from the arresting officers to the presiding judges. But although most focused on the unique nature of Zhao’s vindication – his victim was suddenly, and most demonstrably, alive – to legal experts, the case was less singular.
Just three years before the Zhaos’ fateful fight in Henan, another apparent love triangle had led to a wife and mother vanishing from her home in Jingshan, Hubei. Zhang Aiqing’s (a pseudonym) 1994 then-disappearance did not sit well with her relatives, who suspected Zhang’s restless husband She Xianglin, a young man with ambitions and a mistress, of having taken one of their domestic disputes too far. And when a bloated female corpse floated to the surface of a local pond some weeks later, the mystery of Aiqing’s vanishing appeared to have been tragically resolved. The family’s identification of the body led straight to She, who would go on to serve 11 years for the crime.
From the very start, the case against She was hopelessly flawed. Aiqing’s brother voiced doubts from the start: the body, he felt, bore only vague comparison to his sister. Of course, the police explained, the family could apply for DNA testing, then in its infancy. But that would take weeks, they warned. It may not even be conclusive – moreover, this new technology would have to be paid for by Aiqing’s family (even today, the RMB20,000 ($3,211) fee mentioned would be prohibitive to many rural households. In 1990, the average income was about RMB139 per month). Caught on the horns of this ghastly dilemma, with their worst fears seemingly realized and a ready-made scapegoat in the wings, Aiqing’s family allowed themselves to be persuaded that the authorities had their daughter – and the police had their man. At a special meeting a few weeks later, the Jingshan investigative team would be showered with praise for providing a smooth and speedy resolution to the case.
The courts were less disposed to agree – even though, some 18 years after the Cultural Revolution, rural China still had “no law [and] no lawyers,” in the words of law professor He Jiahong. The Hubei Province High People’s Court first sent the case back for reinvestigation, citing insufficient evidence. In response, the families of both victim and accused began lobbying hard for justice. “Suddenly,” writes He in Back from the Dead: A Landmark Ruling of Wrongful Conviction in China, “the case that the government had lauded as a model of policing had turned into a hot potato that they could not drop.”
Back from the Dead provides a detailed, 60-page account of the entire She Xiangling case, narrating a sorry catalogue of bungled detective work, torture and confession, mixed with political maneuvering that resulted in one of China’s most notorious miscarriages of justice.
The politicking began almost as soon as the case began to waver under the Hubei People’s Court’s decision. In the 1990s, well before Weibo, 3G and wireless Internet, the antiquated system of shangfang – petitioning – was, to all intents, the sole resort of redressing injustice in China. And indeed, She’s mother had tracked down an actual Party Secretary in a distant village, who verified that a woman matching Aiqing’s description had appeared, lost and confused, two months previously. The chopped affidavit She’s mother received was enough to make trouble for the Jingshan police in the midst of railroading her son. (Though it has a miniscule success rate, petitioning remains highly subscribed: in a 2004 Southern Weekend survey, of 10 million pleas registered annually by the China Petition Office, only one in every 500 were “resolved.”)
But Aiqing’s relatives were also working public opinion, gathering over 200 signatories to bear witness against She’s poor character as a husband and demanding due punishment. It’s the kind of pressure Chinese provincial courts respond to: the nebulous but ever-present threat of “social instability” and any unwanted scrutiny or oversight that might entail. (In an irony that He alludes to in the preface of Back From the Dead, 1994 was the year of the infamous O. J. Simpson murder case in Los Angeles. The likelihood of an O. J.-style acquittal, with its attendant racial tensions, would not only be impossible in China, but might be regarded as a complete breakdown of the rule of law.)
Their reputation challenged, Jingshan police duly responded: She’s mother and brother were detained and intimidated, for months and weeks respectively, for presenting “repeated” petitions. She’s mother, once “a sturdy village woman… was half deaf and blind” when she died shortly after her release, He explained at a recent book talk in Beijing.
Still, with no physical evidence, a disputed corpse, and even shakier motive (a dispute over the shared affections of another female villager was mooted by police), the court still wasn’t prepared to condemn She to death. After prolonged negotiating, the local Politics and Law Committee agreed on a legalistic compromise – “If the proof is unclear, the sentence should be lighter” – and came up with a complicated plan to contain the toxicity of their flawed investigation, while still ensuring She Xianglin received the “appropriate” punishment. In 1998, the Basic People’s Court sentenced She to 15 years; three months later, the Intermediate People’s Court rejected his appeal and upheld the Basic Court’s verdict. Without a death sentence to contemplate, the higher Hubei People’s Court was adroitly prevented from further complicating matters.
Backroom dealings over ramshackle cases like those of She Xianglin and Zhao Zuoha sometimes result in long prison sentences, rather than the standard execution – in which China now leads the world. Although their lives were irrevocably damaged, both She and Zhoa were relatively fortunate compared to the fate of a luckless Hunan butcher, Teng Xingshan, executed in 1989 for the murder of a maid called Shi Xiaorong.
When Shi embarrassingly showed up, alive and kicking in Guizhou, four years later – having been abducted, sold and trafficked to Shandong in 1987 – Teng’s wife did not dare petition the court to clear her husband’s name for another 13 years – she was, she said, “so poor and… afraid” of the local government’s possible retribution. When her daughter, Teng Yan, was finally delivered the news, she sought legal aid, and authorities were appointed to investigate. After six months, and 16 years after his death, Teng was formally exonerated by the local government.
Zhao and She’s existences went on, of course, but their lives were more or less shattered by the time of their release. Believing her husband a convicted killer, Zhao’s wife remarried, taking two of their children and leaving two others for adoption; Zhao’s house, on his return, was reportedly a ruined husk. He wanted “at least RMB1 million ($146,400),” Zhao told reporters, for the suffering: “but I know they won’t just give me what I want.”
When She was acquitted, meanwhile, he immediately visited the graveyard of his mother, who died trying to clear his name, before later meeting – under intense media scrutiny – with the adult daughter he had not seen since she was six. Representatives from the police, courts and local government offered a combined compensation of RMB902,000.
If being falsely imprisoned for more than a decade was not enough, She he had undergone severe torture in the years leading up to his trial. “After ten days of beatings… my whole body was bruised, and I couldn’t walk or stand,” he wrote in his prison diaries. “I would comply without hesitation to their demands so long as they would let me rest.” Zhao underwent the same, telling relatives he was forced to consume “chili-infused water” (a technique used by the Japanese against the prisoners during their wartime Occupation) and police set off fireworks above his head.
Torture is – or at least, until very recently, was – regrettably systemic in Chinese investigative practice. All police forces prefer confessions, and Leninist-style systems particularly embrace their propaganda value. Likewise forces everywhere are under pressure to solve cases – in Chicago, for example, the phenomenon has become rampant – but perhaps especially so in China. Officers are judged according to various performance indices, including a “solving rate.” In Henan, the Public Security Department issued a statement in October 2013 “strictly banning unscientific assessments like ‘number of criminal detentions,’ ‘case numbers,’ and ‘clear-up rate’” used to rank performance, news portal Dahe reported. According to the report, the decision was made to address the issue of “wrong, false and unjust sentencing.” The Henan Business Daily quoted a detective who explained the indices created huge pressure: “if they fail the assessment, not only the officer himself, but his department will be affected too… unusual measures, like ‘interrogation,’ have been taken to solve crimes.” Cases brought by prosecutors often use confessions as a major plank in the case, sometimes the sole one – even if they are retracted in court by the defendant (as was the case with She).
Of course, confessions are also more cost-efficient than forensic or shoe-leather policing; they require less paperwork and ensure a successful prosecution. “Confessions were usually required in traditional Chinese law, and torture was used if the accused refused to admit guilt,” Stanley Lubman, a specialist in Chinese law at the University of California, Berkeley, School of Law and author of Bird in a Cage: Legal Reform in China After Mao, explains via e-mail, adding that China is by no means historically unique in this.
In fact, according to Chinese law, the suspect has a “statutory duty… to answer [‘relevant’] questions,” explains Professor Hualing Fu, an expert in criminal justice at the University of Hong Kong. “This gives the police the corresponding legal right to demand answers… There is no right to silence” and, moreover, “little procedural protection during interrogation.”
Currently, “what a suspect needs the most is to have a lawyer during the interrogation,” says Hualing. But “that particular right is unlikely to be available in China in the near future.”
“Yan,” a lawyer based in the mainland and speaking on condition of anonymity, adds the caveat that “confessions can’t become evidence to convict, unless corroborated in detail by other evidence.” The infamous She and Zhao cases alone suggest this to be wishful thinking, at best. Either way, as Lubman states: “The practice of relying on confessions is deeply established.”
The practice of overturning such convictions is decidedly less established. China has long boasted a conviction rate that never drops below 99 percent (last year, it was 99.93; jury trials in the U.K. and U.S., by contrast, usually hover around the 84-85 percent mark). Observers disagree about the meaning of these figures, though Yan argues it is because there is “a high standard of proof in pre-trial procedures.”
If so, a reliance on confession obtained under torture undermines that standard. And the absence of well-organized NGOs – such as the Criminal Cases Review Committee in the U.K., Canada’s Royal Commissions, or the Innocent Projects in the U.S., New Zealand, Canada and U.K. – means the wrongfully convicted must rely on apparatus that falls under the purview of the state: media, prosecutors/procuratorates, courts and (least effectively) people’s congresses. Even without professional and financial NGO support, few prisoners have the know-how to assemble the evidence needed for a strong case.
Getting heard is no easy matter. In the tortuous case of former Gansu official Pei Shutang, whose 1986 rape conviction was eventually overturned after literally thousands of petitions, it took Pei’s alleged victim to personally accompany Pei to the Supreme People’s Court to admit that she had fabricated the rape charges as part of a local political plot to oust him from his post.
Old-fashioned petitioning methods are fraught with danger, and usually take years – though there are occasional successes. Traditional media has sometimes played a critical role as a mouthpiece for the wronged, such as in 2005, when the New Culture Daily looked into the case of Wang Haijun, released in 1998 after serving 11 years of a 15-year sentence for homicide. The newspaper successfully petitioned Jilin officials to clear his name after presenting the results of a three-month investigation. In more recent years, though, the rise of social media has provided an unofficial – though potentially more effective – method of voicing grievances. The success of such campaigns, however, depend on factors unrelated to strict judicial procedure. They can have unfortunate consequences for those who dare to speak out. In the most celebrated cases, they can also have a considerable impact. Deng Yujiao, the Hubei pedicurist who famously killed her would-be rapist, a government official, in all likelihood would have been jailed had the case “not attracted so much national attention and generated so much pressure.”
The government’s awareness of the issues is not in question: Shen Deyong, vice-president of the Supreme People’s Court, called the blight of wrongful convictions an “unprecedented challenge to the People’s Courts.” In their annual work report, the Court pointed out it had overturned 7,415 verdicts in 2013. Even China’s President Xi Jinping has apparently taken notice, publishing a document in February outlining rare, though cautiously vague, support for Zhou Qiang, president of the Supreme People’s Court, who has also publicly backed judicial reform (albeit with boilerplate rejections of supposedly “Western” ideas, such as trial by jury).
The remarks have a token quality, but the issue is critical – even within the Party’s definition of what really matters: social order. “A criminal readiness to send people to the hangman and let the real criminal slip away […] encourages serious criminals to step up their efforts, secure in the knowledge that crime pays,” writer Genyuan observes. “Law-abiding citizens also realize, that no matter how much they try to keep to the straight and narrow, a wrongful conviction charge can drop on them out of the clear blue…they might as well break the law and line their own pockets.”
One significant recent breakthrough has been the National People’s Congress’s “Decision Regarding the Amendment of the Criminal Procedure Law,” which most specifically outlaws “using torture… threats or any other illegal means to gather testimony” and went into effect on January 1, 2013. To protect suspects from police brutality, “the new rule is to require the police to transfer [them] to a detention center within 24 after his or her detention… thus limiting the opportunity for torture,” explains Professor Hualing. Crucially, “There is a general requirement of videotaping interrogation in serious criminal offences.”
While the law now technically protects regular citizens, it apparently doesn’t extend to cover officials caught up in the shadowy shuanggui detention system, making some doubt the sincerity of the bold reform talk. As Michael Davis, a professor of law at Hong Kong University, explained to Voice of America, “To live up to international standards under the [UN’s International Covenant on Civil and Political Rights] would require… very serious political reform.”
Then again, “Not everyone seems to agree on law reform,” observes Stanley Lubman, adding that legal progressives face opposition from an array of factions. “Hardline CCP members don’t [want it], the police don’t want to lose power and neither do local governments that select lower-court judges and fund the courts,” Lubman says. But the problem goes deeper than that: “‘Legal reform’ could have political implications, such as defining the kind of ‘rule of law’ that is to be established.”
One ineluctable progression is scientific. Early on, there were question marks over the efficacy of Chinese labs in DNA testing: Zhao Zhenshang’s headless “body” was originally misidentified from a faulty DNA test that had been conducted four times. (The prosecution would later explain that the technology was new; indeed, uncertainty about identification was just one of many acknowledged weaknesses in the case.) Now DNA technology is now more widely deployed, though testing is resisted or even considered wasteful by some local authorities. According to a 2013 study of 26 cases of wrongful conviction by Huang Shiyuan, an associate professor at Shandong University Law School, “no effective conviction was overturned as a result of new DNA testing in China.” The Innocence Project meanwhile claims that 314 convictions have been overturned through DNA exoneration in the U.S. In China, there has yet to be a single one.
Oddly enough, when Aiqing walked through the door of her mother’s house and into the annals of criminal law in 2005, local police requested (and received) DNA confirmation of her identity within 24 hours. This ensured her husband was released within four days of Aiqing’s miraculous reappearance, on April 1. So it was via a simple test, performed 12 years too late, that, with thinning hair and nothing to his name but his innocence – and on April Fool’s, of all days – the benighted She Xianglin felt the sun on his pale complexion, for the first time in four years, finally a free man. Legal reformers won’t be basking in the sun anytime soon, though, Hualing suggests: “I would not be surprised if it happens again.”
Robert Foyle Hunwick is the former Editor in Chief of That’s Beijing, and current Editor at Large for BeijingCream.com. He is a China-based journalist, with a focus on lifestyle and society and has written for, among others, the Asia Sentinel, The Atlantic, Danwei, The Times and Sunday Times of London and VICE magazine. Follow him on Twitter @MrRFH