Jerome Cohen
Even though it seems a little silly, given that the only thing likely at issue is the sentence, I have nonetheless followed both the deep analyses and utter plain speculation about Gu Kailai’s trial.
Within these are a few gems that frame the event so well that I am glad I resisted my impulse to wait until the trial is over and then think about the results.
One of these is ‘Rough Justice Awaits Gu Kailai’ by the dean of American scholarship on Chinese law and practice, Jerome Cohen. In the article, Mr. Cohen shows clearly that China has left nothing to chance in the ‘trial.’
- Venue not in Chongqing where the alleged crime was committed, but in Anhui Province, which is more pro-prosecution and more easily controlled
- Probably a secret trial, which, among other things, limits the risk of ‘a defendant’s revealing emotional outburst’
- Probably not including Ms. Gu’s economic crimes that might implicate her husband, Bo Xilai, whose fate still seems to be subject to factional horse-trading
- Defense counsel appointed by Anhui rather than the no doubt more competent and vigorous counsel selected by Ms. Gu
- A likely judgement of death with a two-year reprieve that will probably be converted to life imprisonment, and
- The back-door to such a sentence because of mitigating mitigating circumstances, such as Ms. Gu’s acting to protect her soon and possible mental incapacity.
Mr. Cohen begins with an irony:
In 1998, Gu Kailai, already a successful lawyer married to then rising political star Bo Xilai, published a book about the American legal system. She praised the mainland’s swift and certain death-penalty prosecutions of alleged murderers, in contrast to the lengthy, exhaustive scrutiny that capital prosecutions are subjected to in American courts.
A little like French lawyer Maximilien Robespierre arguing in 1793 for the execution of King Louis XXVI, then going to the guillotine himself in 1794. At least Ms. Gu is getting a trial, sort of.
Regarding the trial itself, he addresses several core issues, one of which have certainly been on my mind, why the change of venue to Anhui Province?:
Chongqing and Anhui Circled
‘The crime occurred in Chongqing. Why is Hefei, the capital of remote Anhui province, the place of prosecution? One can understand why a Chongqing trial would raise many doubts about its fairness, with the case being handled by prosecutors and judges who may have been appointed, promoted or adversely affected during her husband’s reign of terror as Communist Party secretary there. But why Hefei rather than a dozen more legally sophisticated jurisdictions?
‘Some observers believe that Anhui courts are even more unsympathetic to the rights of criminal defendants and their lawyers than most other mainland courts. Could it be that Wang Shengjun, the president of the Supreme People’s Court, who has deep roots in Anhui, seeks to maximise his influence in the case? For many years, despite his lack of legal education and judicial experience, Wang ran the party committee that controls Anhui’s police, prosecutors, lawyers and judges.’
Another interesting, and unsurprising, aspect, defense counsel:
Will the accused have capable, independent defence counsel? They have been denied the right to select their own lawyers. Their families retained experienced Beijing attorneys many weeks ago, but neither lawyers nor family members have been allowed to contact defendants. Instead, Hefei authorities have reportedly appointed local lawyers, who are plainly under their control and can be relied on to follow orders. This is common practice in “sensitive” mainland cases, including that of Chen Guangcheng’s nephew, Chen Kegui, for attempted murder.
He also opines about the likely sentence:
Gu is more likely to receive a death sentence subject to two-year reprieve of execution, a unique mainland punishment that is converted to a life sentence if the defendant does not intentionally commit an additional crime during the reprieve. Although the official announcement of her prosecution did not mention mental illness, it did hint at the existence of another possible mitigating circumstance by stating that Gu committed murder to protect her son, whose safety had allegedly been threatened by the victim. She might also “demonstrate merit” by becoming a prosecution witness against her husband and others.
Mr. Cohen closes with:
One wonders if Gu still harbours doubts about the protections accorded US death-penalty defendants. Perhaps she now takes more seriously the admonition of Mao Zedong – no amateur when it came to killing – that “people’s heads are not like leeks. When you cut them off, they will not grow again”.
One does indeed.
