Teng Biao: Defense in the Second Trial of Xia Junfeng Case
Xia Junfeng (夏俊峰) was street vendor from Tieling county, Liaoning province (沈阳铁岭县). On May 16, 2009, while selling chicken strips, roasted sausages and other snacks with his wife Zhang Jing near a crossroads in Chenhe District, in the city of Shenyang (沈阳沉河区), Xia Junfeng was seized by urban enforcers known as Chengguan (城管) and taken to their office where he was beaten. During the course of the beating, Xia Junfeng fought back with a small knife he carried in his pocket, stabbing two Chengguans to death and injuring one. He was convicted of intentional homicide and sentenced to death during the first trial, and the second trial upheld the verdict of the first trial. The case has garnered wide online attention in China since its onset. It is now being reviewed by the Supreme Court in Beijing. Several volunteer translators have collaborated on a complete translation of Dr. Teng’s defense to shed light on, and call for attention to, the case and the ill system at its root.
Chief judge and judges,
As Xia Junfeng’s defense lawyer, let me first of all offer my condolences to families of the dead. Whether Xia Junfeng is guilty or not, the death of two citizens is regrettable. I will also indicate to the court that, just like Xia, the two members of the City Urban Administrative and Law Enforcement (Chengguan) were also victims of the Chengguan system, and that today’s trial is bound to be a war without a winner. What we want to do today, with all we can, is to avoid creating a new tragedy from what’s already a tragedy, making a new mistake from what’s already a mistake.
The law is the law, and we cannot superimpose upon the law personal feelings or political pressure external to the law. According to litigation jurisprudence as well as Article 186 of Criminal Procedure Law, the goal of the second trial is to review and determine whether the verdict of the first trial is correct. What I will prove to the court is the followings: the first trial convicted Xia Junfeng of intentional homicide is a qualitative mistake, the court applied the wrong law, and the persecutors’ accusations cannot in any way be established; the first trial handed down the wrong sentence of death penalty, which was a departure from relevant laws and statutes.
I. The first trial convicted Xia Junfeng of voluntary manslaughter, and it is a qualitative mistake.
1. Prior to the incident, Xia Junfeng did not know the two victims, and had no enmity towards them. It was the brutal enforcement by Shen Kai, Zhang Xudong and a dozen or so others from the Shenhe District Chengguan team on May 16, 2009, that caused the incicent.
According to witnesses Shi Chunmei, Zhang Jie, Jia Ziqiang, Shang Haitao, and Zhang Zhongwen: “the Chengguan team seized them and went for the Gas cylinder next, things (such as sausages and bamboo sticks) were thrown everywhere on the ground. Xia’s wife tried to prevent them from throwing things, a dozen Chengguan members surrounded Xia and started beating him. Xia begged to no avail. As they beat him, Xia kept falling down and couldn’t keep his footing.” The sole of one of Xia Junfeng’s shoe was torn off by the Chengguans and was presented as evidence in the first trial (the public prosecutors acknowledged the evidence in the court, but the verdict of the first trial makes no mention of such an important evidence). Xia Junfeng stated: “Chengguans threw my cooking ware onto the ground like a gang of brigands. We begged for mercy saying it’s Saturday today, they said, ‘Nonsense!’ One of them hit me on the back of my head......” Xia Junfeng’s wife Zhang Jing also witnessed that he was pushed and beaten by a dozen Chengguan members, who did not stop even when Zhang Jing kneeled down to beg for mercy. Chengguan member Zu Minghui also admitted in his written testimony that Xia Junfeng’s gas cylinder “was pulled away by us and put in the truck.” (p. 34, vol. 3)
2. After brutal law enforcement, Chengguans pulled Xia Junfeng into a vehicle by force, took him to their office where they beat him. Such action by victims Shen Kai and Zhang Xudong constitutes unlawful detention.
According to witnesses Shi Chunmei, Zhang Jie, Jia Ziqiang, Shang Haitao and Zhang Zhongwen: “Chengguan forced Xia Junfeng into their vehicle; Xia didn’t do so voluntarily. Xia Junfeng’s own statement and his wife’s testimony also confirmed this. (According to the written record of the interrogation of Xia Junfeng on February 25, 2010, “Three or four Chengguans pulled me into their vehicle. I struggled and resisted, not wanting to go with them.”) On the other hand, Zhang Wei’s testified that “Xia Junfeng got into the vehicle willingly,” contradicting the testimonies of Zhang Jing, Shang Haitao and three others. The verdict of the first trial doesn’t provide any explanation for such contradiction. The defense lawyers have noticed the inconsistency of Zhang Wei’s testimonies and believe it is not credible. For instance, according to the written record of interrogation on May 16, Zhang Wei mentioned that Xia Junfeng pursued him after stabbing him by didn’t catch him. The problem is, if he had been injuried in the thighs, how could Xia Junfeng have failed to catch up to him? For another instance, in the written record of interrogations conducted on May 16, the day the incident occurred, he stated clearly that he “didn’t see clearly who stabbed Shen Kai and Zhang Xudong (p. 17, volume 3); but a month later on June 22, he said “I was behind Xia Junfeng, and he was in the midst of stabbing Zhang Xudong with a knife.” (p. 20, volume 3). Such inconsistency obviously defies the law of memories, and he was lying. The fact is, when Chengguans enforcd regulations in a brutal manner, vendors were running away to avoid them, and the gang of Chengguans didn’t want to go away empty-handed. Xia Junfeng still got beaten in broad daylight and in front of the eyes of many witnesses, you can just imagine how much worse it would be for him to go to the Chengguan office with them. No one else but Chengguans themselves who testified that Xia Junfeng “got into Chengguan’s vehicle voluntarily”; it can only be a lie that the Chengguans made up to evade liabilities.
Illegal detention refers to the act of illegally denying others of their freedom through detention, confinement or other methods of coercion. Article 19 of the Administrative Punishment Law stipulates only the public security organ can execute such administrative penalty. Chengguan and others in charge of administrative law enforcement at the Shenhe Bureau have no legal authority to restrict citizens' personal freedom, not to mention forcibly dragging Xia Junfeng into a vehicle or confining him to their office. These actions meet all the elements of illegal detention. According to several statements given by Xia Junfeng, the bald Chengguan first insulted him by saying, "How can you be so fucking good at pretending to be innocent." He then punched him on his head with his fists. He and another man punched and kicked Xia Junfeng, the bald man evening throwing a metal mug at Xia that he had picked up from a desk. It is obvious that Shen Kai and Zhang Xudong had committed more than just the offence of illegal detention; their behaviour at that time fell into the category of statutory aggravation, as it involved physical and verbal abuses. According to Article 238 of the Criminal Law: "A person who unlawfully detains another person or deprives another person of his personal freedom by any other means shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, public surveillance or deprivation of political rights. If circumstances of hitting or insulting another person exist, a heavier sentence shall be imposed.." The Criminal Law also stipulates that public servants who commit the offence of illegal detention by abusing power shall be punished more severely.