“Notes from the Wei Jingsheng Case”

Attorney with conscience at the court of the Communist Party

Zhang Sizhi. 08/01/1996

In communist China anyone who defends the dissident must have intellectual quality and courage. According one such lawyer in private, they do not fear the reprisal of the Mafia type but fear an international machine that disregard the spirit and procedure of the law.

A lawyer who defended the June 4, 1989 dissident expresses the opinion to reporters that older defense lawyer has weathered the political upheavals, so they have different outlook. In short, they emphasize more on the relationship of human dignity and the law.

Zhang Sizhi is an esteemed figure in Chinese law. He has defended the infamous “Gang of Four”. He also defended Wei Jingsheng and Bao Tan. After the fiercely independent lawyer defended Bao Tan, the Justice Department revoked his license that he needs to practice law – his livelihood. Then when a judiciary group plans to visit the USA, it was known that the American would ask about Zhang’s license. Zhang was asked if the American question about his license, could they reply that he has the license? Zhang insisted that they tell the truth. Otherwise he would issue a rebuttal. So Zhang’s license was reinstated.

There is another irony. After Zhang’s defense of Wei Jingsheng ended in conviction, the government wanted to honor Zhang with a commendation. Zhang refused.

Zhang is the Chair of the Beijing Law Consultancy, vice-chair and secretary general of the Beijing Bar Association, professor of the Chinese Politics and Law University, professor of Central Broadcasting University, Chief editor of “Chinese Lawyer” Journal, Researcher of Taiwan Legal Research Institute

Attorney Zhang Ping is a top law scholar. He is an expert on civil law, president of Chinese Politics and Law University and the vice-chair of the Legislative Affairs of National People’s Congress. The fist time Wang Dan released from prison, Zhang was one of the 100 professors he interviewed. Zhang stated three points: The students were patriotic; the government was wrong to open fire; the students were too strident on the later stage. A French media published this comment. The Justice Department took action immediately – restricting Attorney Zhang’s right to foreign visit.

Zhang Sizhi’s disclosure on why Jiang Qing did not have a defense lawyer:

http://www.gmdaily.com.cn/0_wzb/2001/20010419/GB/2001%5E1841%5E0%5EWZ3-1923.htm

http://china1966.vip.sina.com/jz/jz_whojiangqing.htm

Zhang Sizhi: “Notes from the Wei Jingsheng Case”

Rumor has it that Wei Jingsheng would again be indicted. There is no confirmation. Not sure if it involve politics.

Shortly after Wei’s release, Mr. S, an old friend from the law consultancy, called that Wei wanted to appeal the injustice. I replied that Wei was on parole, not release. The reason for parole is to give an opportunity to repent. Appeal is a right. It is not too late to appeal after serving the sentence.

I don’t know much about Wei – only know about him on the Democracy Wall. I don’t know why he did not take my advice. Unfortunately I anticipated what happened to Wei.

Foreign news reported that the former head of French Department of Justice and others forming a law group to come to China to defend Wei. It is pointless to assess the motive. As everyone knows there are matters that transcend international boundary. Some don’t. Even though these are expert in their field, it is questionable whether they are permitted to practice law in China. It is just a publicity gesture. Their hypocrisy has hurt the feeling of the 80,000 Chinese lawyers.

Professor P called, conveying the sincere wish of Wei’s family for me to defend him. At the same time, Wei’s family member came to my residence with a woman friend. There was no way out. I stressed two points: 1. if the case has not been filed, lawyer can’t get involved; 2. I need a younger lawyer, Mr. Li to work with me. His consent must be obtained immediately. The next day they found out that the case was filed. We formalized the representation on December 7.

I previously scheduled to fly to Northeast – another case. That provoked some anxiety. I explained that when the court received the representation authorization, it arranges to make the case files available and meeting of the defendant, then sets the date for the trial. There should not be any ‘action’ with 8 days. Yet something unexpected occurred.

The afternoon of the 9th, I heard while in Dalian, that Wei’s case was schedule in 3 days. After phoning Mr. Li, I got to Sheng Yang city airport as fast as I could, worrying about a case that we knew nothing as yet.

Called after I landed to found out the court date was the morning of the 13th. The court has instructed that before the court date we could not meet the defendant and the files would not be available.

Next day, in conference, the court demanded: 1. no innocent plea; 2. complete black out. Schedule can’t be changed. Wei family previously engaged attorney Q who had read the files and met with Wei. Now the change of lawyers made it hard for scheduling. The court can’t be blamed for that. I responded that it was hard for us to fulfill our duties and that I would persuade the family not to change lawyer. Or the trial can proceed with no lawyer.

The Justice Department official said: it might not look good if Wei has no lawyer. That according to Attorney Q, Wei admitted most charges. So it might not take too much time. We need to consider the appearance.

My reaction was: what does it mean by “appearance”? Does it mean that affect the image of the Chinese legal system? China is a sovereign state. No one can interfere with China’s internal affair.

I concluded that these decisions were set by higher up and could not be changed. So Mr. Li and I immediately went to the Intermediate Court in the western suburb and accepted the case. The time was December 11, 11:45 am.

After a hasty lunch we went to meet Wei, accompanied by a Justice Department woman as “recorder” I urgently wanted to know the details of what charges Wei had admitted.

At 2:20 pm we met Wei, who, with a slight smile said that he had waited for us for 2 days. After he signed the representation authorization, Wei calmly, clearly and thoroughly denied item by item the charges in the indictment. All through this process, he was calm, had great grasp of the issues in depth. He left no doubt of his innocence. All charges in the indictment have no factual credibility.

We had no opportunity to read his files. So we advise him to be very careful in court testimony. I did not explain that article 103 in his indictment was a trap to punish him severely, fearing that would put too much pressure, making him nervous and tense. In less than 40 hours I realized that I underestimate my client! I should not have to worry.

Our meeting lasted less than 2 hours. Wei told us that he wrote a defense outline for Attorney Q for his advise. Wei hoped that we could have that outline as reference with his revision. The woman who accompanied us immediately called and requested the return of that outline.

At 4:15 pm our meeting was over. When we said goodbye, Wei said: I love to smoke. Please bring some cigarette next time you come. There was a slight smile on his face. We were certain that we had built a strong bond between us.

I reached 3 conclusions at this meeting. Wei is an intellectual. He pursue the democratic ideal that every human long for. For that he suffered inordinate punishment and sacrifices. He accepted his fate with equanimity: This naturally gave me a good impression of him.

Leaving the prison we went to the courthouse. For “security” case like this one, we had to rent a room to read this files. There were only about half a year between Wei’s release and re-arrest. What we did not expect was that there were 12 files and 1900 plus pages – some in tiny characters. We had only about 24 hours to read them. We also had another appointment to meet the officials in the Justice Department tomorrow (the 12th) before dinner. Even speed-reading could not do. We could only selectively read the major points. In the cold, heatless room, we just had to do the best we can.

5 pm the next day we asked to copy some of the important material. It was approved with quite high a cost. However, we neglect to check the copies. Later we found that the important pages were not copies. Some of the less important pages were copies several times. It was already very late at night. We’ve learned another trick.

6 pm of the 12th we confer with officials of the Justice Department on next day’s court procedure, not having completed review of all the files. I was asked to present a summary of strategy. I replied that before complete review of the files, I couldn’t make such a presentation.

The conversation focused on one point. The official insisted that there was no doubt about the charges. Why then do we need a defense? We asked if Wei’s thoughts under detention could be considered Counter-Revolutionary? No response.

The president of the Bar Association opined: it is not permissible to used lawyers as the “second prosecutor”; and that “we must be responsible to history”. Those I whole-heartedly agree. During dinner, I publicly declared: In court first thing I must constantly remember I am a lawyer.

Our problem focused on the instruction: “do not plead innocent”.

We had been running without pause for several days. Finally my partner and I had a few hours before we had to go to court.

First we discussed the discovery process. Then we reviewed the evidence sections. Then we formulated the defense strategy. Regrettably, the omissions on the copy make it difficult to review the whole picture. That we could only remedy on appeal. At dawn we reported to the Justice Department and the court on our reparation and our difficulties. They also were under order and pressure from their superiors. Hopefully there would be improvement in the future.

On the morning of December 13 it was snowing. As we approached the court, we saw heavy presence of police. We must present our credential before let through. I’ll never understand so much security just for one Wei Jingsheng.

There were about 24 seats for audiences in a small courtroom. About 20 audiences present, including Wei’s brother and sister. The trial started at 9am; there were strict rules for media: no talking and watching here and there. I did not know how this affected Wei who still had a slight smile. He appeared to be clam and truthful, even under sharp questioning. What surprised me was that he fully understands the application of Article 103 was to sentence him to death penalty. At one point he asked the prosecutor: just because of these things, are you planning to sentence me to death? There was no response. The smile remained on his face.

The conviction was deemed “sufficient evidence, correct application of facts and correct application of law (charges)”. That Wei’s action stimulated sufficient seditious actions to overthrow the government”. Wei’s defense arguments were eloquent and to the point. The request for defendant’s witness was denied. The “clear and serious” 4 points were:

Since the sentence of 1979, Wei has not repent, insisting on his counter-revolutionary idea.

Using “struggle for human rights” as an excuse to further a hidden agenda.

Published articles overseas, deliberately defamed the government, creating bad image for China.

Wei repeatedly committed the same crimes.

Not only these points lacking common sense, they lacks legality.

Wei testified to his mental state during the parole period. He also testified to his promotion of democratic ideals, his hope of raising the cultural and social understandings. He thought that the error of the prosecution is to misinterpret the evidence and his actions. His 10 points of defense:

1. There was no “action plan”. Prosecution misinterprets the evidence.

Prosecution interpreted economic, social, … non-political activities as plans to overthrow the government.

To call labor organizing as plans to “overthrow the government” is laughable.

Compiling the victim list as a humanitarian act. It has nothing to with “overthrowing the government”.

The bank account was to deposit funds for the benefit of the victims – no political motive.

Must accurately understand my motive. I have no illegal motive to overthrow the government

Accused Wang Dan and I secretly “appealing to the US government to apply pressure” is not correct. To appeal for the withdrawal of the “Most Favored Nation” status was not my idea. That can be verified.

“Promoted Tibet as ‘a sovereign nation’ thus split the motherland” is not true. The purpose of my writing to Comrade Deng Xiaoping in 1992, on Tibet was to avoid the separation, exactly opposite to the charge.

Publish articles overseas was officially approved. It was emphasized that there would be no interference. How can that be a “crime”?

The main point is that the prosecutor confused “democracy” and “overthrow of the government”. The two terms were interchanged.

I presented the summation. Under this condition, the lawyer could not say what need to be said. The only points we can argue were the facts. And that some of Wei’s writings were quoted out of context to convict him.

Let’s quote the judgment:

China’s “culture (educated) class” numbers several millions. Adding to it their supporters would reach 100 millions. The defendant’s writings manifest a tendency to erode faith of government rule”. I just could not believe Wei’s writings was childish ideas that can erode the rule of the government.

Wei was convicted at 1:45pm that afternoon. There was no doubt that Wei was found guilty before the beginning of the trial. The verdict was set beforehand.

Wei did not show any emotion on learning of the verdict. His brother and sister were more emotional. When he past his siblings, he nodded his heard slightly. His sister was in tears.

To avoid the media and the suspicion of leaking “state secret” we hid in a nameless hotel continued to work for 50 some hours. This case was world renown one. We were not able to make any difference. The Wei siblings thanked us and asked us to consider appeal. We felt helpless and the futility of appeal.

We knew that the overseas media clamor to interview us, the lawyers. We ignored requests for interview. We did not do that to avoid “leaking State Secret”. Three later the prosecution call a press conference for the overseas media. So there was no “Secret” to leak. What I worried was the media bias due to their own concept, ignorant of our culture and social conditions.

I was in the capital of the Southern province that started the reform at the first; I read the headline of December 16 “Dai Kung Bao”. The title: “The Legal Basis of Wei Jingsheng’s Conviction” – in big, red characters. It was a Q and A report of the prosecutor and the judge. I seldom read this paper. So I don’t know their fairness in reporting. It was reported that the lawyers waited till the 10 to read files and meet Wei. The excuse was Wei family changed lawyers and the family had unexplained reasons for the delay that resulted in insufficient time for preparing defense. There was overseas reporter asking was there sufficient time for defense preparation. I would like to respond: what do you think? But I did not have the luxury of facing the reporter.

At the meantime, there had been many concern and support from friends, near and far fulfilled with the sincerity and deep feeling. Beside from friends in San Jose and Taiwan, a 92-year old, a teacher and the mother of a close friend called, saying “people will remember your work. I cried. Another respectable law expert also at his 90’s, held my hands and told me that I need to learn to protect myself. To receive such valuable trust and encouragement after 50 hours of hard work was so comforting. It gave to my life a new excitement, reinforced my professional integrity.

The day after the first trial, the already typed court verdict had send to Wei’s hands. While he expressed his willingness to “appeal”, he also demanded to meet with his attorney. On the next day, the clerk of the collegiate bench transmitted his request.

During our second meeting, he started to smoke from the beginning tile we said good bye.

During our conversation, according to the standard procedure, I asked him about his opinion on the attorney’s work. However, he didn’t want to touch this subject but said: “this is expected, if it does happened in this way, how it could end? In the worth case it is the___.” Then he changed the topic. “According to my observation, when I was speaking, the public prosecutor was shocked. He used what I wrote for attorney Q to deal with me, but he did not expect that I had made lots of changes.” He slyly winked his eyes and said “got nothing.”

He was a bit complacent, explained that he does not care how the final verdict is going to be.

About appealing, we reach some common understandings at first: event if it is just a standard procedure, we have to be serious, conscientiously exercise every right that the law entrusts to. Put out the evidences; make the truth clear. I have proposed two suggestions for him thereafter. One is to insist to call the witnesses to the court, especially those who have a direct importance with details of the case. Another one is, though the second trial will not take place, it can’t erase the defendant’s essential right to statement. In addition before to exercise this right, it is important to listen and understand prosecutor’s accusation. According to the material that was seen later, he adopted these suggestions.

Before we separate, I explained to him that in order to avoid the media, I will be leaving Beijing for a while, but will be back for the second trial.

I got back to Beijing at dusk on December 23rd, ahead of time according to legal appeal time limit. Soon, two the judges for the second trail came, asked me earnestly and repeatedly to see the court presiding judge as soon as possible. So I asked whether he would open the court for the trial, he answered that “I can not speak about it, it seems that it may not be fixed yet.” Now I understood it was just a show, the lawyer must be kept away from the decision. It was very clear in fact, there will be no second trial at all. Who will agree to give again one more chance for Wei to express his opinion?

Late at night, I met with all participants of the second trial. The presiding judge went straight forward; she said the timing is too tight, hope to receive my coordination. She frankly delivered the bottom line; there will be no court session for the second trial. Therefore hope to receive the lawyer's written defense text on the 27th. She used a very serious tongue to tell me that she considers earnestly a lawyer's opinion. I agreed to give to her a draft by the 27th, and the formal text right after.

I met with Wei on the afternoon of the 25th for the third time; explained to him what he should expect. I finished the defending text over night on the 26th according to the request, and delivered it on the 27th.

As I delivered the final text, I received at the same time the notice of verdict for next day at 9 am. “This is the real plan”. I should expect that. However, I understood that as I imagined, the trial will conclude before the end of the year. The case is under the second instance, all the texts are at the court, but the judgment will not be made by the second instance. Have no approval from the authority at the highest level, who can make the Wei case? Who dare to make the Wei case?

Afterward, I learned that Wei’s final statement was delivered to the court on the 27th too, it can only be there waiting quietly for history to inspect. A person who is taking the safeguarding of human rights as one’s own duty, could not even protect one’s own legal right. Is it an irony or tragedy?

The statement made during the second instance had only taken about ten minutes. The judge read out the already drawn up verdict. The judgment remains. Wei is still that calm. The only difference with the previous hearing is: he seemed eagerly to see his family members this time!

After the final verdict, at the office of attorney Li, I discussed with Wei’s brother and sister about the issue of “appeal”. We concluded that it is the right thing to do. As far as how to do it, Wei’s opinion shall be listened.

January 3rd, 1996, we met for the fourth time with Wei Jingsheng. Regarding to appeal, it appeared that he had planed it, he asked us to take full charge of it.

During the conversation, I also discussed with him about the future 14 prison years. I don’t doubt any more that this case contains densely political factors. He might be a kind of political trading chip. Because of this, I have asked him that if it is possible one day he will be forced to leave the country as Wang Juntao? He did not answer the question directly, but rather told a story. “After the 6-4 event, the government expressly abdicated a way to let a professor to find shelter in the American embassy, and then settled the condition and let him leave to the US. I do not praise the attitude and method that he took. Lose head at the worst; one that organizes pro-democratic movement needn't afraid of it. I appreciate the point of his story. I asked him further, “if your health condition worsens, and a possibility for out side treatment exists, would you consider it”? Wei answered “this kind of situation is a little complicate; I can only act according to circumstances. I know once I leave, it would be difficult to come back”!

At that time, we can not know that at the supreme level of the leadership, someone had said “some think Wei’s level is high, wants him to go out, but we just don’t” !

July 11th, 1996, the appeal from Wei’s brother and sister was rejected by the Beijing’s High Court. The fate of Wei’s own appeal can be expected.

This spring, relative of Wei send an article, with a very much striking topic, it is “I, Wei Jingsheng and exhibition of China, Japan and S. Korea fine arts”. It was authored by Huang, published in Hong Kong in 1996. This exhibition is one of Wei’s crimes, though it is totally irrelevant.

In Huang’s article, several sentences show the truth.

“The end of 93, a Tokyo based gallery organized the “Star 15 Years” exhibition. The organizer was a friend to me and other Chinese artists. At the end of 94, I went back to Beijing with the original plan. I contacted Wei because I know he wants to do something in the Art world. And I want him to be involved in the Art in order to escape from political risks. He liked it, and told me do not use his name until the opening of the exhibition.

In March, I have lost contact with him; one day however, he called me from a hotel to tell me to continue with the exhibition”.

This is the story about the exhibition, the alleged crime. After having read Huang’s article, everything is lucid. Where is the crime?

Due to our inability to investigate, we failed to bring the full and accurate materials in court, thus enable to make the case against persecutor’s false accusation. This is unpardonable.

To summarizing the lesson, during a trial, it is essential to give the defendant’s attorney abundant time. Now Wei’s trial is over, my job as the attorney ends too, and he is at a labor camp where the quiet patch of life appears different than his personal character. Although the affair has ended, yet more time to discuss it will come, so this is only the first part.