Authored by Michael R. Smith and Russell Stetler –
This article in The Champion reports on an IBJ training seminar held in 2003, and draws a portrait of China’s courageous public defenders.

China’s history of legal justice is perhaps the oldest of any civilization. Long before there was U.S. Constitution, China was struggling with the best way to identify and punish the guilty. It is only recently, however, that China has made a conscious effort to establish a right to representation and a Legal Aid system to safeguard that right. In recent years, China has created a nationwide public defender system under its Ministry of Justice. In cosponsorship with National Legal Aid of China, the Geneva-based International Bridges to Justice (IBJ), a human rights organization dedicated to ensuring the basic legal rights of citizens through the training and support of public defenders, held a weeklong workshop in October 2003 to help public defenders implement the right to counsel. This is a cornerstone of the new Legal Aid Regulations that took effect in September. One highlight of the conference was release of the first advisement of rights wall poster in Mandarin, Mongolian, Tibetan and Uyghur. Some ten thousand posters had been printed for distribution through the Legal Aid offices.

At the invitation of IBJ, American criminal defense specialists traveled to the People’s Republic of China to share their experiences and perspectives with China’s Legal Aid criminal defenders. The focus was on presenting criminal defense techniques to the participants so that they could return to their offices as teachers. Over a hundred Chinese defenders from all corners of China participated, some traveling for as long as three days from areas as remote as Xinjiang province bordering Afghanistan. The public defenders reflected China’s ethnic diversity. Some defenders wore Western-style clothes, some dressed in conservative styles recently favored by China and one wore a Ministry of Justice Legal Aid military-style uniform, whose buttons bore a relief of the scales of justice. Women attorneys constituted about a third of the attendees, playing a leading role in the hands-on, highly interactive training program.

The conference took place in Nanchang, Jiangxi Province, in southeast China. Once the capital of China, Nanchang is now a city of half-built, large buildings topped by cranes that loom like ships along the Gan Jiang River. It is know as “The Hero City,” as the People’s Liberation Army traces its origin to a mutiny in Nanchang and the launching of the Long March from the nearby Jiangxi Mountains. Occupying some of the new buildings were stores filled with designer European goods, Kentucky Fried Chicken, Wal-mart and, coming soon, Ikea. Still, despite the fast-paced development of recent times, just outside the city you can find farmers behind plows pulled by water buffalo, working just as their great-grandparents did.

With one foot resting on the past legacy of Chinese justice, the IBJ-Legal Aid conference stepped towards the future – both in terms of the sweeping new legal changes embodied in the Legal Aid Regulations and the latest computer-based technology. The conference hotel, the Civil Aviation Hotel owned by the Ministry of Civil Aviation, boasted that it is Nanchang’s first cyber hotel. There were computers and free Internet access in every room. There was PowerPoint in the conference room, cell phones on the hip of every participant, and video to capture both the presentations and the interactions.

The conference opened with welcoming remarks from Deng Jia Ming, the Beijing-based director of the National Legal Aid Center of the Ministry of Justice of the People’s Republic of China. Deng’s broad education included study at Harvard’s Kennedy School. He hailed the IBJ-cosponsored program as a “new kind of training” for China’s Legal Aid lawyers. Karen Tse, the founder and executive director of IBJ, also made a keynote address which celebrated the remarkable growth of Legal Aid in China, which now has more than two thousand offices across the country, five thousand lawyers and a staff of ten thousand. A former public defender in San Francisco who has extensive experience training defenders in Asia, Tse was a constant presence at the conference, introducing daily innovations to ensure hands-on participation and collaborative effort.

The substantive training began with a presentation by Liu Si Xin, a Chinese expert who had studied at American University Law School in Washington, D.C. He provided an overview of the U.S. criminal justice system, highlighting some of the differences between the Chinese and American systems: the overlap of federal and state jurisdictions, the separation of powers, trial by jury, rather than judges. Over the next five days, Liu was followed by the U.S. trainers, covering defense investigation, theories of defense, motion practice and trial skills, to name a few topics.

Daily, Karen Tse challenged the participants to focus on their role as attorneys, their vision for the future and the importance of their work as protectors of basic rights of justice. She truly built a cross-cultural bridge between the Western emphasis on individual empowerment and the Chinese belief that the government works for the good of everyone. The bridge worked well, with the diverse participants energetically exchanging ideas to make their defender offices stronger bastions of justice.

Closing the presentations was an experienced Beijing-based criminal defense practitioner, Professor Dr. Gu Yong Zhong, who has recently returned to teaching law. His remarks highlighted both the excitement and unique problems of the Chinese criminal defense attorney. He empowered the participants by telling them that their role is traditional and yet new, that they are working to protect the legal rights of the accused, and that their role in the justice system is one of the most difficult and thus the most rewarding.

Professor Gu’s remarks were often blunt. He told of representing several lawyers who were imprisoned and charged with crimes connected to their criminal defense practice. He called for the repeal of two obstruction of justice statutes that specifically target defense attorneys, describing both statutes as “a sword hanging over our heads.” Both articles place the defense attorney at risk of obstruction charges if any defense witness weakens the prosecutor’s arguments.

Sandwiched in between lectures, the lawyers in attendance demonstrated their experience and expertise in small break-out groups. The daily small group work ranged from immediate application of new techniques like writing motions to a visioning exercise led by Karen Tse that asked the participants to imagine Legal Aid of China in the year 2020. One group of Chinese public defenders improvised a skit where a reporter was interviewing them in the year 2020. They described a practice which built on much of the substantive material covered in the training program, along with dramatic changes in the rights of the accused. The reporter then asked what they would do if, in the year 2020, they were retiring tomorrow. The response was immediate: they imagined going to other developing countries in their retirement to train new public defenders in other parts of the world!
Another exercise asked the participants to brainstorm about the values that have them fighting for justice. The groups produced wall posters summarizing their values. Here are three examples: “spiritual satisfaction is more important than money;” “having a career that is beneficial to others;” “something for the weaker people in our society.”

After the workshop exercises, each group chose a representative to report back to the plenary session. The reports were lively, and the war stories focused more on the clients than the lawyers themselves. In the course of the week, not a single Chinese lawyer portrayed a criminal defendant in negative stereotypes. On the contrary, they were remarkably sensitive to human frailty and the need for the law’s protection in their client population.

These ideas were often repeated in the visioning exercise and discussions with the attorneys themselves. Other than the concerns addressed by Professor Gu, the attorneys who practice in the courtroom were seeking an even playing field. Some important changes favored by these attorneys included protecting the accused from being forced to testify, ending the use of written statements as acceptable hearsay, and effective remedies for prosecutorial violations of law. When presenting their ideas to the conference, many of the attorneys were animated, showing that they are the theatrical equal to American trial attorneys.

After the conference ended, some of the U.S. members attended one-day trainings at two other cities. The idea was to have a participant from the conference make a presentation to be followed by a presentation by the U.S. member. One training took place in Hefei, Anhui Province. This is the site of IBJ’s pilot project.

Hefei is a modern city that has not completely forgotten its past. One preserved park, built around a lake, tall willows and arched bridges, is the tomb of Bao Gong Ci, a Song-dynasty judge revered in China as a mix between Solomon and Sherlock Holmes. Among the exhibits of his life and work is a wax museum that shows famous court scenes where Lord Bao either uncovered the guilty or passed judgment. Bao, like other respected jurists, is celebrated for uncovering corruption in government and providing justice to those who previously were denied access to the courts. His fairness was also on display in the odd exhibit of three uniquely shaped head choppers: a dragon for royalty, tiger for the upper class and dog for all the rest; separate, but equal.

The attorneys that attended the Anhui conference came from both Legal Aid and private practice. In the morning session, a participant from Nanchang presented what he had recently learned. The American attorney, Michael R. Smith, followed with his presentation. Afterwards there were many questions from the thirty participants. The majority of the questions focused on two areas of criminal practice that are familiar to American attorneys, but not frequently found in China.

As in Nanchang, there were many questions concerning the ability to exclude evidence or criminal charges when the government acts unlawfully. The sense of frustration in the attorneys was familiar to defense attorneys all over the world. These defenders were trying to find a way that they could help their client in cases when government agents violate law. At present the Chinese appellate system rarely addresses these situations.

Questions concerning the U.S. practice of plea negotiations were another area of focus. The Chinese attorneys are generally not able to negotiate their cases. This is especially true in the most serious cases, including death penalty cases. There was an air of disbelief as a plea negotiation with meritorious motions was described. Negotiations are a staple in China’s marketplace, but in the courtroom the defense attorney must often defend the most severe charges without the ability to use China’s laws to obtain a reduction of the charge or sentence.

The IBJ-sponsored conferences gave the Chinese and American attorneys an opportunity to discuss their practices and problems. Not surprisingly, the defenders of the East and West found a common ground of successes and frustrations. Both criminal practices relied on the past while currently providing legal rights for ordinary citizens. Forty years after Gideon, when U.S. indigent defense practitioners are still struggling to make equal justice a reality, it is refreshing to see China taking bold steps toward the same goal.