Jerome A. Cohen. A Teacher’s Response. Apple Daily

October 9, 2009

As Thomas Huang’s interesting October 3 article about the detention of Chen Shui-Bian recognizes, in the United States criticizing the view of one’s teacher is a perfectly appropriate way to celebrate Teachers’ Day. This is especially true in American legal education, which, at its best, features the Socratic method of debate and discussion between teacher and students. Of course, this does not mean that the criticism of a former student is always “correct”.

Dr. Huang claims that it is a “mistake” for me to claim that it would have been preferable for the courts to have released the former president under strict conditions pending trial so that he would have had a fairer opportunity to defend himself. To be sure, one can debate how to weigh the serious risk of flight in this case in relation to other factors that courts must consider when deciding about pre-trial detention.

Yet certainly Dr. Huang, who is not known as an expert in criminal justice, goes too far in asserting that the circumstances of Chen’s confinement — circumstances that were only gradually relaxed in response to public pressures — did not inhibit his capacity to mount a defense. I wonder how many Taiwan criminal defense lawyers and scholars would agree that incommunicado detention, and even lesser restraints on contacts with counsel, witnesses and evidence — do not interfere with the accused’s ability to defend himself.

I am also troubled by Dr. Huang’s assertion that Chen, if released, would have mischievously “mobilized the masses” to interfere with the administration of justice. To use Huang’s mode of argument: Where is the evidence for that? And, if that had occurred, Chen’s release could have been canceled. Moreover, even if the courts were authorized to consider such a factor, their resort to it would raise substantial constitutional issues in a democratic society.

Two other factors, which courts are obligated by statute to consider in deciding about detention, also raise significant constitutional doubts, according to some Taiwan legal experts. One is the possibility that a released defendant might collude with witnesses or forge evidence. There is always such a possibility. But, if it should occur, all those implicated can be charged with further crimes.

The issue is whether the possibility that this might occur is sufficient justification for keeping some one locked in detention, severely punishing him long before final conviction. The other constitutionally dubious factor that legislation requires the courts to consider is whether the defendant has been charged with a crime that carries a punishment of five years or more. This allows a prosecutor to punish someone for months or years before final conviction simply by indicting him for a major crime, a very dangerous weapon in a free society.

Whatever the factors that courts might constitutionally weigh, my own view is that, in a case that has understandably aroused enormous public controversy, the prosecution should be carried out in a way that leaves no important segment of the populace in rational doubt about its fairness. If Chen had been released pending trial, no one could reasonably argue that his conviction and life sentence were unjust because he had been denied a full opportunity to defend himself. That would have maximized the legitimacy of what may be the most important trial in modern Taiwan’s history.

The following response to Thomas Huang’s (黃維幸) article of October 3, “我的老師孔傑榮,” was published online at Apple Daily on Friday, Oct. 9, 2009, under the title, “我的學生黃維幸錯了.”

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