Briefing on the Ninth Day of Dawu Trial

By admin On Jul 26, 2021

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Dawu Legal Team, July 23, 2021

Part of the Dawu Legal Team (from left to right): Zhou Haiyang (周海洋), Yang Xuelin (杨学林), Wang Shihua (王誓华), Hao Yachao (郝亚超), Tong Zongjin (仝宗锦), and Yin Zhihao (殷志浩).

July 23, 2021, the ninth day of the Dawu trial.

As today’s session started, lawyer Hao Yachao (郝亚超) lodged a formal statement with the court: we do not accept the court’s overtime schedule, and the Gaobeidian Court should comply with the Labor Law and protect the right to rest of the defense lawyers and the defendants.

It’s becoming an acute problem that the court has been forcing the court sessions overtime, often into late at night. Out of the nine days, there were four days when the court sessions lasted more than 14 hours and were not adjourned until after 11 p.m. It is no doubt a huge challenge to all parties on their stamina and energy; it is also a grave challenge whether the court is sacrificing fairness for speed.

In the morning [of July 23], the prosecutors presented evidence for the alleged “crime of fraud” (诈骗罪) of Sun Meng (孙萌, Chairman of Dawu Group and Sun Dawu’s eldest son) and other defendants. And the defense lawyers cross-examined the evidence. The procuratorate accused Dawu Construction Co. of falsifying medical records by using the identities of employees who had bought insurance policy for workplace injury to make insurance claims for employees who didn’t have such insurance, falsely claiming about 300,000RMB in compensation.

Today the prosecutors bundled together an assortment of evidence consisting of witnesses’ testimonies, defendants’ confessions, and other evidentiary documents, and read them out selectively and hurriedly. Several times Sun Meng asked to look up related interrogation transcripts before his cross-examination, but was repeatedly rejected by the collegial bench. The defense lawyers pointed out: if the prosecutors present a pile of evidence but the defendant is unable to review the details of the evidence, then the court is not ensuring the defendant’s right to meaningfully cross-examine evidence. In addition, by law the defendant has the right to review the case files, the right to be notified of case information, and the right to know the related evidence on which the allegation of criminal conduct is based.

In the end, the collegial bench only relented so far as to ask the prosecutors to read out partial testimonies of two important witnesses.

Even just from the prosecutors’ “favorably selected” witnesses’ testimonies, one can see important inconsistencies in the testimonies: at the beginning of the police investigation, he [or she, the gender of this witness is unclear] made scanty mentions of Sun Meng who oversaw Dawu Construction Co., merely saying that he “only occasionally needed to go to Sun Meng for approval and signature.” But as the investigation progressed, this important witness’ interrogation transcripts mentioned Sun Meng more and more frequently, and his testimonies grew more and more unfavorable to Sun Meng, from “only asked Sun Meng once for approval” at the beginning to “Sun Meng’s approval signature was required on each and every occasion, and Sun Meng knew everything completely” over the course of the investigation.

Considering the significant inconsistencies in this important witness’ testimonies, the defense lawyers have reason to legitimately suspect that this witness was coaxed and misled, or even given certain promises, by the investigators, because this important witness was the very person whose job was to pay insurance for construction workers, who made insurance claims using false identities, and who dealt with the workplace injury fund directly. If Sun Meng–– as the overseer of the Dawu Construction Co.–– was criminally charged [for insurance fraud], this important witness as the direct handler of the matter should also be criminally charged and should appear in this case as a “criminal suspect,” and his [or her] statements should be “a suspect’s statements,” not “a witness’ testimonies” as they are now in the trial.

Sun Meng’s defense lawyer [Tong Zongjin, 仝宗锦] pointed out that, with the aforementioned opinion, the defense lawyer was not trying to act like the second prosecutor, nor did he wish an innocent man to be charged with a crime; the defense lawyer was simply stating that “the case-handling agencies have not applied the law equally, fairly and justly.” As such, it is entirely possible that this important witness was given certain promises or instructions to make inconsistent statements in order to turn himself [or herself] from a suspect to the prosecutors’ witness. The prosecutors’ evidence presentation did not exclude such reasonable doubt of the defense lawyer.

[Sun Meng’s] defense lawyer’s voice became hoarse after days of high-intensity, high-pressure trial sessions. Even one of the judges couldn’t help showing sympathy: “Why don’t you drink some water before speaking again?”

The defense lawyer continued to object to the way the prosecutors presented evidence in bundles. The way the prosecutors quickly presented all the evidence, selectively reading out interrogation transcripts or making only brief references to the titles of the evidentiary documents, made it impossible for the defendant to keep notes of and think about the evidence and impossible for the defense lawyers to verify the evidence item by item in the case files to determine which evidence was presented and which omitted. As a result, the defense lawyer could not effectively and sufficiently cross examine the evidence. That’s why Article 268 of the Judicial Interpretation of the Criminal Procedure Law (《刑诉法司法解释》stipulates that “key evidence and evidence disputed between the prosecution and the defense that could potentially affect the verdict and sentence should, in general, be individually presented and cross-examined.”

But the prosecutors persisted in bundling evidence together. Helplessly, the defense lawyer suggested to a prosecutor who had presented a whole category of evidence: “Are you done yet?” The prosecutor replied, “Please don’t interrupt the prosecutor.” After the prosecutors presented all the evidence for this charge, Sun Meng stated his cross-examination opinion: “I don’t have an opinion. There was so much that was said I couldn’t process it.”

The defense lawyer paused several times when stating his cross-examination opinion, his voice showing clear signs of fatigue. With regard to this particular charge, the evidentiary documents are very important, and Sun Meng’s signature on the insurance claims became the evidence of guilt that he knew and approved them and that he was an intentional co-offender. But the procuratorate did not provide the original copies of these important evidentiary documents. And furthermore, one of the photocopies erroneously placed on Page 85 part of the content belonging to Page 84. The defense lawyer hence argued that, since the investigative agency has already conducted a blanket and thorough search of Dawu Group, it has had the unhindered ability to, and should, obtain the original copies of the evidentiary documents, and let the defendant, defense lawyer, as well as the collegial bench see clearly how the evidentiary documents, supposedly approved and signed by Sun Meng, have been produced. It concerns not only the amount of funds involved in the criminal charge, but also whether he is guilty or not.

In the afternoon, the court session mainly focused on Sun Dawu (孙大午) and Sun Dehua (孙德华)’s alleged “crime of coercive business transactions” (强迫交易罪). The procuratorate alleged that, in order to beat off competition from another restaurant, located on the east side of Dawu Hot Springs, the Dawu Group,and Sun Dawu instructed the other defendants to pile up dirt in front of this restaurant, resulting in the sale of the restaurant business to Dawu due to its inability to operate.

It must be pointed out that the logic behind this accusation is completely absurd. Through questioning in court, the following facts were established: After being approved as a government project, Dawu Group started building Dawu Road using its own advance funding [supposedly to be paid back by the government later]. The owner of this restaurant claimed that the restaurant had been built with “gold bricks” — the owner had spent a lot of money on currying favor with government officials through connections in order to have this location, and asked Dawu to pay a million yuan for relocation. The compensation demand was so unrealistically high, far exceeding its market value, Dawu and the restaurant owner had failed to reach a relocation settlement. As a result, the construction of Dawu Road was delayed for three or four months. Eventually the parties settled on Dawu purchasing the restaurant for 400,000 yuan in addition to providing a street-front location for the restaurant to continue operating. With the settlement, Dawu Road was able to resume construction.

Lawyer Wang Shihua (王誓华) immediately pointed out: during the court session the day before yesterday, when the court investigated the alleged crime of “disrupting production operations” (破坏生产经营罪), the procuratorate charged Dawu Group with the crime of “disrupting production operations” because Dawu Group dug a ditch next to the highway resulting in a two-day traffic disruption. In the current charge, the construction of Dawu Road was delayed for a few months due to the actions of the restaurant owner, why isn’t the restaurant owner charged with a crime? The procuratorate cannot apply two different standards in the same indictment.

With regard to all the evidence in this charge, including audio and video evidence, Sun Dawu provided the following cross-examination opinion: “The Public Security Bureau has used many despicable means to willfully create a wrongful case. The video recording of the scene is the only meaningful evidence, and the rest is not worth refuting. But if they again place me under Residential Surveillance at a Designated Location (RSDL), they will get the same confessions from me, or even worse — they will get whatever they want to get. If it’s possible to have the case handlers visit the [restaurant] site….of course it’s impossible. The investigators told me that others had confessed, many had made accusations against me, many witnesses had provided testimonies, and all of them said that I directed the whole thing regarding the sale of that restaurant. But how was that plausible? Dawu Group spent tens of millions constructing the road and I didn’t even oversee that myself; now, why did I need to be hands on with a deal that involved only several hundreds of thousands of yuan? The evidence is all perjury. I ask the collegial bench to go to the site and assess the value of the restaurant. Dawu made a huge concession by purchasing it for 400,000 yuan.”

Sun Erwu (孙二午, or 孙德华 Sun Dehua) also expressed disbelief at the charge: “So we were spending money to buy a crime! We bought a crime with 400,000 yuan! I just want to ask: isn’t it true that we gave the restaurant owner a street-front location? If Dawu were to eliminate competition, why would we help relocate the restaurant to a street-front location?”

The defense lawyers submitted to the court an issue of “Dawu Newsletter” (《大午简报》) as evidence for the defense. “Dawu Newsletter” is a record of all things happening at Dawu Group, and lawyer Wang Shihua read out the detailed account of Dawu Group’s deal with the restaurant in that issue. But he was repeatedly interrupted by the collegial bench, and a judge asked him to simplify his reading, the reason being all the defendants had experienced the whole thing and were very clear about its content.

Lawyer Wang Shihua replied with sincerity and helplessness: “I understand the court process and its wish to push ahead, but I also ask you to understand the difficulties of lawyers mounting a defense.” [He said,] the account in this issue of Dawu Newsletter is important evidence that can prove the innocence of the defendants, and when presenting evidence, it’s not just for the defendants to see, it’s also to prove the defendants’ innocence in front of the collegial bench, the prosecutors, and the people in the audience.

It was 6:30 p.m. The presiding judge announced that the court would adjourn for 30 minutes and resume. Lawyer Wang Shihua could no longer hold back, saying: “My heart isn’t well. The court has been pushing sessions to 11 p.m., or midnight. You won’t let up until someone collapses?” Several defense lawyers concurred about the unbearable intensity of the court sessions. To ensure the quality of the trial and the health of all participants, they said, the court sessions should stay within normal working hours, and not do overtime to “complete the assignment.”

In addition, the defense lawyers also have sufficient and legitimate reasons to ask that the trial be rescheduled to a later date. Over the course of the trial, the defense lawyers have discovered new leads of evidence that are favorable to the defendants and requested the court to obtain this exculpatory evidence. Several defense lawyers also repeatedly applied for important witnesses to be summoned to appear in court to give their testimonies. In order to ascertain the facts and the truth surrounding this case and ensure that the trial is substantive, the trial should be delayed to a later date. The defense lawyers have already formally submitted a written “Application for Evidence Collection” and a written “Application for Trial Postponement.”

On the 9th day, the court session ended at 9 p.m., and will resume at 9 a.m. tomorrow.

Dawu Legal Team

July 23, 2021

Translated by China Change from 大午案第九日庭审简报

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