Jerome A. Cohen. For China’s Leaders, the Bo Xilai Problem has not Gone away. SCMP (South China Morning Post)

October 1, 2013

Jerome A. Cohen mulls the dilemma for China’s leaders on Bo Xilai’s appeal – while they are loath to allow an appellate process as ‘open’ as his trial, they must appear to be doing so

Will Bo Xilai’s appeal against his recent criminal conviction and life sentence make another contribution to the legal education of the Chinese people? Bo’s trial offered hundreds of millions of his countrymen their first vivid glimpse of how an accused criminal might actively defend himself in court, instead of meekly complying with the usual ritual of confession and apology in an effort to obtain a lenient sentence.

Although the legal systems of all countries often treat compliant defendants more favourably than others, the People’s Republic, from its establishment, made “leniency for those who confess, severity for those who resist” the cornerstone of its criminal justice practice. Yet, at his trial, Bo defiantly insisted on his statutory right to challenge the prosecution’s charges and confront the witnesses against him.

Surprisingly, his former colleagues in the Communist Party leadership, contrary to China’s custom, actually permitted several prosecution witnesses not only to appear in court, but also to be subjected to defence cross-examination.

In famous political cases, appeal is especially embarrassing to the Communist Party

By exercising his statutory right to appeal against his conviction, Bo will be exposing another major stage in China’s newly revised criminal procedure to public scrutiny. According to traditional Chinese communist thinking, appealing only further demonstrates the failure of an accused to atone for his guilt. This constitutes a brazen challenge to the state, an unnecessary drain on its resources and a condemnation of the police, prosecutors and judges who handled the case.

In ordinary prosecutions as well as political cases, Chinese law enforcement personnel often apply great pressure on a defendant not to appeal, even before the trial concludes. They sometimes urge the defendant, before he is sentenced, to promise the trial court that he will not appeal, increasing his chances of leniency. The authorities tell him that an appeal is likely to be worthless. After all, the trial court frequently consults the appellate court before imposing sentence, and in sensitive cases political leaders instruct the courts about the outcome. Moreover, a defendant’s jailers can truthfully cite statistics confirming that few defendants appeal and few appellants succeed.

If persuasion proves ineffective, jailers may resort to intimidation, torture and threats of future mistreatment in prison as well as abuse of the defendant’s family. In famous political cases, appeal is especially embarrassing to the Communist Party, so Bo must have experienced tremendous pressure.

In 2008, former Politburo member and Shanghai party secretary Chen Liangyu did not appeal against his 18-year sentence. Bo’s wife, Gu Kailai , did not appeal against her murder conviction and suspended death sentence. Nor did Bo’s infamous police chief, Wang Lijun , seek review of his 15-year sentence.

The last Politburo member to appeal was the feisty Beijing party secretary, the late Chen Xitong . In 1998, the Supreme People’s Court quietly affirmed his 16-year sentence without questioning the written statements of his proposed witnesses or granting him a formal hearing. The court merely examined the case record, interrogated Chen and reviewed the claims made by him and his lawyers.

Bo, of course, is even more unconventional than Chen Xitong, and, having received a life sentence that he denounced as unfair and that cannot be legally increased on appeal, he may well believe that he has more to gain than lose by forcing the prosecution to restate its charges before the High Court of Shandong province.

But will appeal give him any more substantial chance to rebut the trial court’s judgment than Chen Xitong received? What procedures can he expect? And will Bo’s appeal give the public an opportunity to learn more about criminal justice the way his trial did?

Bo’s appeal presents party leaders with a delicate dilemma. They undoubtedly would like to put this very controversial case behind them as quickly and invisibly as they did Chen Xitong’s appeal. Yet it won’t be as easy to do so. Having given Bo a relatively “open” trial, they will be hard pressed to deny him an equally “open” appeal, especially under the newly revised Criminal Procedure Law, which improves a defendant’s prospects for obtaining a formal appellate court hearing.

Yet the new law does not require an open hearing if the issues involved in the appeal only concern the application of law. Then the court, in addition to studying the trial record and written arguments submitted by the parties, need only interrogate the defendant privately and informally consider his opinions and those of his lawyers.

Bo’s appeal, however, will undoubtedly also reject the trial court’s determination of the facts and the sufficiency of the evidence and claim that the court mistakenly failed to exclude from the evidence statements taken from him in the coercive circumstances of pre-trial detention. Such claims will entitle Bo to an open court hearing with procedures similar to those that prevailed in his trial. Chinese criminal procedure, under continental European influence and unlike its Anglo-American counterpart, permits an “appeal” in these circumstances to become a full, second trial not limited to argument about legal issues.

Yet the last thing party leaders want is another widely publicised five-day free-for-all that will allow a more experienced, better prepared Bo again to hold forth before the masses and even introduce new evidence and arguments. The party is likely to exert much tighter control over the appellate process in this case than it did at the trial. After all, legal education is not its highest priority!

This article appeared in the South China Morning Post print edition on October 1, 2013 under the title, “The Bo headache.” (简体字)

Jerome A. Cohen is professor and co-director of the US-Asia Law Institute at New York University School of Law and adjunct senior fellow for Asia at the Council on Foreign Relations.