Jan. 4
TAIWAN:
No end in sight
Faced with public intransigence and what they say is a flawed system,
activists support an unofficial moratorium on capital punishment
On Jan. 17 of last year, Wang Kuo-hua lost his 3rd and final trial,
sending him to death row on a charge of premeditated murder with rape.
The verdict, however, states that the survivor among Wang's 2 victims told
the court Wang had not raped her or her friend, and her testimony did not
indicate that he had planned the murder.
The case illustrates systemic problems with the nation's death penalty
system that the Taiwan Alliance to End the Death Penalty has long
campaigned to change.
It is not clear why Wang received the severest sentence, Taiwan Alliance
director Lin Hsin-yi said in a recent interview.
Furthermore, the judge said in the ruling that Wang was apparently
mentally ill.
Yet none of these points was taken into account for the sentencing, Lin
said.
A MATTER OF INTERPRETATION
Wang met 2 junior high students over the Internet and arranged a meeting.
The girls went with Wang to his apartment, where he offered them money for
sex, according to the survivor. When the pair turned down his offer, Wang
began groping them, she testified, and they tried to leave the apartment.
Wang assaulted the girls, tied them up and put a plastic bag over one's
head and taped the other's mouth up. He put them in the trunk of his car,
where the victim with the bag over her head died of suffocation, drove to
a river and threw both girls in.
Wang had thrown the 2 students into shallow water and when the survivor
managed to untie the rope, he attempted to help her out of the river,
which does not seem to indicate premeditation, Lin said.
According to Article 19 of the Criminal Code, if a defendant is found to
have had "psychological problems or other mental deficiencies" when the
crime was committed, which prevented the guilty from understanding the
full meaning of his or her actions, the court can choose not to impose a
punishment. If the defendants judgment was "impaired" by psychological
problems, the court "may impose a milder sentence."
The Article is sometimes ignored by prosecutors and judges, or interpreted
in different ways.
Lin consulted Legal Aid Foundation Secretary-General Kuo Chi-jen regarding
the case, who examined the verdict and identified several irregularities.
The foundation, a member of the Taiwan Alliance, is a nonprofit
organization independent of, but funded by, the Judicial Yuan. With
branches across the country, it provides pro bono legal aid to defendants
who cannot afford a private attorney, but who are unsatisfied with the
public defender supplied by the courts.
The Taiwan Alliance hopes to convince Wang to allow a foundation lawyer to
file one or more appeals on his behalf. Last week, Lin wrote to Wang, whom
she has visited in prison, sending him Kuo's point-by-point explanation on
the grounds to appeal the court's verdict.
Wang has previously said he does not wish to appeal his sentence, and
wants only to be executed swiftly to relieve his family of the financial
burden and shame of having a relative on death row. (Families pay for some
daily needs of prisoners.)
At his final trial, in front of the Supreme Court, Wang had no lawyer. In
addition, by his own account, the public defender assigned to Wang urged
him to confess to the charges, rather than mount a defense.
Wang's case is far from unique and is indicative of several flaws in the
judicial system, Lin said.
In another recent death penalty sentencing, that of Kuang De-chiang, the
presiding judge ruled that Kuang was mentally ill and should be treated
first, then executed.
On Dec. 1, 2006, the Ministry of Justice (MOJ) signed an execution order
for convicted murderer Chong De-shu. According to Article 461 of the Code
of Criminal Procedure an execution order must be carried out within 3
days.
Like Wang, Chong, who was found guilty of setting a fire that killed 3
people, was not represented at his Supreme Court trial.
"There is no right to a public defender at the Supreme Court," said Kao
Jung-Chih, the foundations staff attorney in charge of monitoring death
row cases for the Taiwan Alliance.
The Supreme Court comprises the final trial in all death penalty cases and
hears arguments about any potential violations of judicial and criminal
procedure. A defendants right to a public defender only applies to trials
in front of the district and high courts, meaning that defendants who
cannot afford a private attorney will not have a lawyer at the 3rd trial.
The foundation has filed for a judicial review by the Council of Grand
Justices on behalf of 14 death row inmates out of a current total of 31
who were not represented by lawyers at their Supreme Court trials, arguing
that a lack of legal representation is unconstitutional. The appeal is in
progress, Kao said.
Even if the Grand Justices rule in favor of the foundation's argument,
which would force legislators to amend the law and could result in the 14
cases being sent back to court with lawyers, this would only be one small
change, Kao said. "We cannot be very optimistic."
Chong, whose execution order was never carried out, is included in that
appeal. His is the 1st and only case in which an execution order was not
completed within the mandatory 3-day period.
Within 3 days of the Ministry of Justice signing Chong's execution order,
the foundation and the alliance learned through a leak to the media of the
impending execution a process that is usually kept secret until after the
sentence is carried out.
The news came as a shock to Lin, who had previously reached an agreement
with the Ministry of Justice that lawyers at the foundation would be
allowed to examine all death row cases for problems with the verdicts or
judicial procedures.
But the lawyers had been denied access to the relevant files. After 6
months of trying to review Chong's case came the news of his impending
execution.
"So we said [to the Ministry of Justice]: 'You said we could help him, but
didn't give us his files. And then you signed his death warrant, which is
wrong,'" Lin said.
Kao said the foundation believes the ministry did not carry out the order
because of the likelihood of negative publicity.
"We had talked to the Ministry of Justice and discussed the problem of
access to the files ... and were told that it wasn't a problem. Finally
... the lawyers got the files. But at the same time [then-minister of
justice Shih Mao-lin] signed Chong's death warrant," he said. "If we had
told the press our lawyers had nagged for 6 months to get these files but
Chong was executed ... I believe this [scenario] was why the sentence was
not carried out."
The ministry has not signed an execution order since Chong's case and
Taiwan has not executed any death row prisoners since 2005.
Kao said, however, that the unofficial moratorium offers little hope for
judicial reform, because the appeal that the foundation filed on addresses
only one of many perceived flaws with the death penalty system.
HELP AND HINDRANCE
Poor quality public defenders are a particularly grave deficiency, Lin and
Kao said.
"When most of the public defenders assigned by the court meet the
prisoner, they just tell them to confess. They are not there to help the
defendant, they are there to help the judge and prosecutor," Lin said.
Kao concurs. "Each public defender gets 25 new cases every month at
least," he said. That workload is unacceptable, especially when the stakes
are so high.
In addition, many public defenders believe that as public servants, their
job is to ensure a smooth trial at court, Kao said. "They are very
familiar with the judge and meet every day, and maybe have dinner
together. Their attitude is not that of a lawyer ready to help the
defendant; they just want to close the case as fast as possible."
The example most often cited by opponents of the death penalty is the
Hsichih Trio murder case, now in its 18th year.
Su Chien-ho, Liu Bing-lang and Chuang Lin-hsun have bounced repeatedly
from court to court. The forensic evidence from the scene of the double
stabbing of which they were convicted does not tie any of them to the
crime scene.
The crux of the prosecutor's case against them is their confessions, which
do not correspond on details of the crime and which were allegedly
extracted by torture.
After the 1991 murder in Sijhih, Taipei County, the police arrested Wang
Wen-hsiao based on a fingerprint found at the scene half a year after the
crime was committed. Wang was convicted and executed within months. He was
allegedly coerced into naming accomplices his brother and brother's
friends but later retracted his testimony. His brother, Wang Wen-chung,
also allegedly under torture, named Su, Liu and Chuang as the murderers
and received a lighter sentence. He, too, later retracted his statement.
According to Article 156 of the Criminal Procedure Law, allegations that
testimony has been extracted through torture must be investigated, Kao
said.
The resulting investigation found bruises on all 3 men, who sought to
press charges against the 6 police officers they said were responsible.
But, Kao said, the public prosecutor dropped the case, saying it would be
difficult to implicate the police, who claimed the three detainees had
fallen down.
In 2003, the 3 defendants were acquitted in their 10th trial. The
prosecution appealed and the men were resentenced to death last year. They
now await another retrial.
The system for retrials, however, is open to question, Kao said, as the
Supreme Court sends cases back to the High Court, which handed down the
ruling under review.
Su, Liu and Chuang, who were both aged 19 when arrested, have spent years
living under the specter of execution. Chuang is now mentally ill and Lin
is partially disabled after being shackled for 12 years a practice that
was standard on death row until 2006.
"Keeping prisoners shackled was illegal," Kao said. But the government
showed no interest in listening to the foundation's complaints about
shackled prisoners until the Paris-based International Federation for
Human Rights held a press conference on June 12, 2006, condemning the
Ministry of Justice for routinely shackling death row prisoners, a
practice which violates international law.
Kao said the shackles were removed within about a month of the press
conference.
The Taiwan Alliance and foundation hope their work prevents the Ministry
of Justice from signing execution warrants, even if more prisoners are
sentenced to death. A moratorium does not require legislation, Kao said.
The prospects for this strategy look promising: Minister of Justice Wang
Ching-feng has publicly voiced disapproval of capital punishment, and
reaffirmed that stance in an interview with the Taipei Times on Nov. 3.
"Everyone the legislature and the public, knows I am for abolishing the
death penalty," she said. Wang is the nation's 3rd justice minister to
take that position, following her 2 predecessors under the previous
administration, Shih Mao-lin and Chen Ding-nan. Under them, the number of
executions fell from 17 in 2000 to 3 in 2005.
But, Wang says, changing public opinion is the key to abolishing the death
penalty.
"The public believes that having the death penalty will keep society
safer," Wang said, adding that she believes there is no definite link
between the 2.
"You cannot avoid the fact that the death penalty concerns the whole
public," Wang said, but at the same time, "the matter of [abolishing] the
death penalty is one of respecting human rights."
(source: Taipei Times)
