Trial by media and the rule of law

License to adjudicate.

Xu Ting, who struck it rich when a faulty ATM spit out RMB by the thousands while deducting single-yuan denominations from his account, and who was then sentenced to life in prison for theft, found out last week that he will be getting a new trial.

From Xinhua:

A Chinese court in the southern city of Guangzhou will rehear a case where a man was sentenced to life imprisonment for taking large sums from a malfunctioning automatic teller machine (ATM), a local newspaper reported.

The verdict of the Guangdong provincial higher people's court ruled the intermediate court should rehear the case because "there was insufficient evidence for the previous ruling", according to the New Express Daily.

The high court's decision provided an opportunity for the Chinese media to revisit their earlier analyses of Xu's case in an attempt to identify which part of the evidence was insufficient.

Xu was found guilty of robbing a financial institution. Is taking money spit out by an ATM really "robbing a financial institution"? And is it theft if the money is handed over willingly? He was convicted under a law that classifies sums over 100,000 yuan as "especially large" and prescribes correspondingly large consequences for theft. But that standard was put in place ten years ago, when 100,000 yuan was worth far more than it is today. Should the law be changed?

There's no clear agreement among the experts about these questions. A commentator in the Modern Express suggested that the high court returned the case for reassessment to buy it more time to find the answers:

The appeals court was unwilling to decide the facts on its own but chose to use the more complicated procedure of sending the case back for a retrial. It did not want to be left holding the bag in this affair, but in addition, it also hoped to draw things out in order to decide the case after public opinion had shifted elsewhere.

Moreover, the appeals court may intend to use the time of the second hearing to seek guidance from above and wait for a decisive sound from the Supreme Court. Our current judicial environment lacks independence and is subject to a variety of external elements (for example, personnel and financial issues are typically under local control) that restrict its initiative and creativity. Therefore, when judges encounter difficult cases, they employ an unwritten rule of "internal referral." So we cannot rule out the possibility that the appeals court returned the case for a second hearing to provide time to seek instruction, so that when the defendant makes a second appeal, the court will have been granted an "imperial sword of justice" that it can wield in confidence.

"External elements" are frequently mentioned as reasons why rule of law has yet to flourish in China. Journalist Teng Yun brings up the media as another external element that interfered with Xu Ting's case.

Public opinion does not think highly of the banking industry, and the indignation that arose in response to Xu Ting's life sentence provided an opportunity for people to vent about unfair treatment they had received at the hands of bank tellers and ATMs—if a bank hands over an incorrect sum or a counterfeit note, the most it has to do is apologize, if it even acknowledges making a mistake. Their views were aired widely on line and in the pages of the country's newspapers.

Teng, like other observers, suggests that the high court acted partly in response to this outcry, and then goes on to make the case that the legal system should not be beholden to public opinion, regardless of the outcome.

Reporters are not to make irresponsible remarks about the verdict before the final judgment is in. This is an iron-clad rule for media professionals. However, the Xu Ting case has dealt a savage blow to this rule. When the case had just opened, the mass media, including some lawyers, began to play up the public's emotions, severely interfering with the judicial process and setting a poor precedent in which a joint decision by the general public took the place of a legal verdict. Now they're all happy: the Guangdong High Court has issued a ruling saying that because the "facts were inconclusive and the evidence insufficient" in the case, it is returning it for a retrial.

I also welcome this outcome, I too felt that Xu's guilt did not demand his life in exchange, but I persist in my objection to the process that led to this outcome. The Guangdong High Court's new ruling, in my opinion, is a result of the law being manipulated by public feeling rather than a reappraisal in the context of the law. This type of ruling is not the real ruling that I was waiting for; instead, the spirit of the law has flinched. Such an experience can only serve to provide a precedent for future cases, leading to a further loss of independence in the judicial process and making the law something that can be coerced.

Perhaps Xu Ting has been dealt a greater injustice than Dou E, perhaps the judge who decided Xu's case was a son of a bitch, and perhaps the verdict should have been not guilty. But each "perhaps" must be realized within a judicial scope; they cannot be realized in the court of the media or with the assistance of extra-judicial means. Under this reasoning, Xu's lawyer in particular broke a major taboo. He used his blog to continually influence what the public saw and heard, and he spoke in all kinds of media venues frequently. He forgot that as a counselor in the case, what he was able to do, and what he had to do, was to present his argument within the confines of the law. But he provoked the emotions of the media and the public—an objective interference in the administration of justice. To put it more seriously, he is guilty.

Why can't we have a trial by media? The logic is simple: justice must have absolute independence. Of course, someone might suggest that justice is frequently not independent, so why pick out this instance in particular? Indeed, cases where justice is not independent are not rare, but we cannot just cover over this particular case and continue to interfere with judicial independence. We cannot accept trial by media simply because of the existence of other cases of judicial interference. The press is the fourth estate, true, but the implications of this term mean that media is also an independent voice that cannot be revoked or interfered with. If we can understand why the media is accorded respect, then we also ought to understand that the judiciary deserves the same respect. Any power that over-expands and is taken to excess will end up influencing and disenfranchising the other powers. The media has its own power to be independent, but that power is necessarily limited, and it cannot become a reason to disenfranchise other powers. Returning to what "someone might suggest," if we permit trial by media, then other interventionist forces like "trial by power" and "trial by trade" will similarly find reasons and avenues to infiltrate justice. We must be clear: even if a trial by media is strongly in the public interest, it is nonetheless fundamentally an interference into the independence of justice, no different than interference from other powers.

From a technical perspective, trial by media is similarly dangerous. First, only the parties involved in the case have a full and detailed comprehension of the circumstances. Neither the media nor the public can come to a fully accurate and authoritative understanding of the case, much less presume to speak for the court. Second, trial by media can easily cause things to become overly emotionalized. In Xu Ting's case, we can see that public anger seldom expressed itself reasonably; for the most part it was just abuse directed at banks. Is it a reasonable, logical course of action to use the judgment of Xu Ting's case as a place to vent our anger at banks?

Or perhaps we are looking at a kangaroo court. It's sad, really—there's nothing more we can do, because overturning the case is not within our power. That must be accomplished within judicial proceedings; we on the outside are not qualified to change the law or the judges. We can only place our hope in the independence and impartiality of the judiciary, we must simply look forward to a mature, healthy society under the rule of law. If we are not yet at that point, then we do nothing but wait. If there really has been a trial by media, that is not a call to rebel against the course of judicial proceedings. Rather, we must wait outside the ground allotted to the judiciary, in the space given to the media and the public, to exercise our rights.