“Truth, Justice and History” Joined By Public Opinion

NieShubin

In the black and white picture, we can see Nie Shubin, the 21-year-old young man, kneeling on the ground, which is mysteriously white. Dressed in a dark colored overcoat, he does not look at the camera but casts his gaze downward in an obedient, resigned way. Both his hands are tied to his back. In front of his chest displays a rectangular card board that hangs on his neck, with hand written characters that says “rapist and murderer” and his name crossed out in a somewhat forceful way. A man squats on the right hand of Nie, facing the kneeling young man. At the moment of picture taking, he turns his face back toward the camera, as if checking whether the camera man takes the picture right. There are three uniformed persons standing behind Nie. One of them, wearing extremely clean white gloves, seems to be adjusting the cardboard on Nie. Their faces are not captured by the camera.

The picture was supposedly taken on April 27, 1995. It would become the last picture of Nie’s brief life. A few minutes later an executor would shoot him dead. None of those in the picture would have expected that exactly twenty years later the picture would be made public and become a sting of the nation’s conscience.

Rape and murder. Those were what the police charged the young Nie when they arrested him back in September 1994. A few weeks before, a 38-year-old female factory worker was found dead in a corn field on the way from the factory to her home in Kongzhai village, Shijiazhuang, Hebei province. Her family members and colleagues first found her one-piece dress and underwear five days after she went missing on August 5. It took them another day to track down her body, at that point severely decayed, in the corn field on the other side of the dust road.

According to the police, they quickly set up a special task force to investigate the murder. Workers and residents near the crime scene told them that from 1993, a suspicious young man was often seen lingering around the dormitory area of a nearby factory, sometimes peeping into lavatories for ladies. The man disappeared for a few weeks after the murder case but re-emerged in September. Based on descriptions of the man’s look, police intercepted Nie Shubin when he passed the dormitory area on September 23. “I did not kill anybody!” He reportedly told the police upon his interception. But after he was brought back to the police station, he very quickly admitted to have followed, raped and strangled the victim to death.

If it was not for a dramatic turn of events ten years later, Nie’s would have become one of the non-controversial regular criminal cases. His trial and appeal trial went very smoothly. In neither of the two trials did Nie deny the charges against him. He only pleaded for reduced sentences on the basis of his young age (barely 20 at the time of arrest) and good attitude. The court turned him down. He was sentenced to death, for immediate execution. On April 28, 1995, when Nie’s father tried to visit him at the detention center, he was told to not come by any more. His son was dead.

The whole family bought into the story that their beloved son was a rapist and murderer, until in 2005, a serial killer named Wang Shujin got caught in another province. When in custody, Wang claimed responsibility for six rape and murder cases, and he specifically mentioned one case: the August 1994 murder of the woman that sent Nie Shubin to his guillotine.

Southern Weekly, in its 2005 report that kick-started a decade long pursuit of truth, noted down the scene that touched the hundreds of thousands of Chinese who read the newspaper on that day: Nie’s father, an old man who suffered paralysis following an unsuccessful suicide attempt after his son’s execution, desperately waved his stick to drive away journalists while screaming, ” Don’t ever mention this again! Ever!”

But the newspaper had opened the locked cabinet in the basement. In retrospect, its original 2005 report was sympathetic to Nie but not biased:  it described how this introverted, timid kid was arrested and interrogated in an expedited, secretive manner, while it also highlighted the noteworthy fact that Nie never once denied the allegation throughout the whole process from arrest to trial, quite unusual for someone facing the risk of death penalty. Yet the newspaper’s restraint was tested by the stubborn opaqueness of the provincial authority’s review process, which lasted for another decade. By 2009, the newspaper’s tone had become visibly pessimistic with a touch of bitterness. “The truth could be buried forever,” says one of its subtitles. From this point onward, the dominant narrative of the Nie story started to take shape: a major cover-up led by a corrupt judicial machine devoured innocent people’s lives. For the next five years Southern Weekly continued to run reports, editorials and opinion pieces on this case. It is a monumental role for a Chinese newspaper to play: a ten year marathon on a single case which in the end almost blurred the line between reporting and advocacy.  It was done with an urgency that became the trademark of this liberal newspaper often associated with the marginalized and the suppressed. What at first was just an obscure murder case in a small village morphed into a flagship case that represents everything that is wrong with China’s criminal justice system. Its iconic significance begins to approximate (if not surpass) that of the Sun Zhigang case. In 2003, the death of the young man under police custody led to the end of the half-a-century old custody and repatriation policy, again a result of great coverage from Southern Metropolitan Daily, Southern Weekly’s sibling publication.

Southern Weekly’s persistent inquiry finally bore fruit last week when, following an order from China’s Supreme Court, the Shandong Provincial High Court held a hearing to review the Nie Shubin case. Both sides, the Nie family and the Hebei provincial authority (the original prosecutor), were given an equal footing at the hearing to present their arguments. And based on the hearing, the High Court will decide if the case warrants a retrial. With this unprecedented gesture (the format of a balanced hearing in a third party province), the administration seems to be conveying a message of openness and fairness, a decisive departure from the decade of secretive procrastination. However, it turns out that the impact of the event is much more complex.

It is the second time that an entire nation watches a judicial process through social media, where the Shandong Provincial High Court’s Weibo account posted proceedings of the hearing on a real time basis. Last time was 2013, when the live broadcast of the historic trial of former Politburo member Bo Xilai through Weibo redefined the public image of the Chinese judicial system. By presenting the trial directly to millions of web users in its own preferred fashion (and wording), the court bypassed the entire national press corp in the process, depriving the latter the opportunity to “set the tone” for the case.

The same happened with the Nie case. People flocked to the court’s official Weibo account to follow the hearing, which lasted for a full nine hours from 2pm till almost mid-night. In the process, the court produced a few dozens of condensed Weibo posts with verbal summaries (almost verbatim), photos and screen shots. Even if legally speaking, it was not a trial (there was no cross examination of evidence and no adversarial arguments), but both sides acted as if it was. The Hebei provincial authority prepared all kinds of visual aids to demonstrate the solidness of the original evidence against Nie in 1994, while the two lawyers representing Nie’s family offered pointed evidence showing the shakiness of the prosecutor’s case. One of the more dramatic points of argument was the above mentioned picture. Was the ground covered by snow? The lawyers asked. But it was supposed to be April 27, and meteorological data showed the temperature to be over 27 degrees celsius. And that place only snowed twice later that winter, both in January 1996. Was Nie’s execution postponed? If so, does this mean his execution record was falsified?

Revelation of such details created conditions for a pageant of amateur detectives. Netizens dug up old meteorological information, analyzed the shadows in the picture and researched on the optical nature of snow to come to their own conclusions. One influential opinion leader Google-Earthed the location of the crime scene and came up with a multi-page analysis asserting that Nie could not have been the killer.

In this atmosphere, the Hebei provincial authority’s highly sophisticated presentations become appealing to some netizens. Part of this is due to the lawyers overplaying their hand. For instance, they claimed that Nie’s confessions had been falsified because the road names in the 1994 records were only adopted in 2001. But the prosecutors presented evidence from interviewing the locals showing that such road names were indeed used by villagers at that time if not officially adopted. These rebuttals project an image of evidence-based confidence that impressed many, even though the prosecutors’ case was completely based on the confessions of Nie (which they claimed matched the crime scene in most details). Almost no forensic evidence exists on this case: no finger prints and no DNA are available. There was not even a proper autopsy of the body, which was aborted as it’s “highly decayed”.

Long-time advocates of a retrial, such as prominent Peking University law professor He Weifang, immediately cried foul after seeing materials from the hearing. For them, everything presented at that occasion only confirms their suspicion for the past ten years. “We finally know why they procrastinated for so long!” They treat the hearing an an exclamation mark following Southern Weekly’s decade-long inquiry. But the ground is shifting under them. The nation’s psychological makeup is very different from ten years ago. For one thing, liberal law professors and lawyers (who are dubbed “the lawyer party“) are now hated in conservative circles. And the Hebei authority’s performance gives the latter perfect ammunition to aim at the core of the pro-retrial narrative. Online personalities who are good at writing provocative pamphlet-style articles take advantage of the lawyers’ weak points to depict a picture of a total vindication for the Hebei authority. Others are less clear-cut in their opinions, but an influential law scholar who claims to be previously sympathetic back-tracks by saying that after seeing more materials he has become more conservative and “rational”. He highlights Nie’s unusual behavior of never once denying the allegations, and questions the lawyers’ certainty about the ground being covered by snow in the picture. However, he also criticizes the prosecutor’s inadequate defense for the integrity and admissibility of Nie’s confession (there is a suspicious absence of records of Nie’s first four days of interrogation under police custody).

If online opinion was only slightly leaning towards the Hebei authority, CCTV’s prime time coverage of the hearing on the next evening angered observers as completely biased. In the 14-minute report, CCTV arranged the footage in a way as if most of the lawyers’ arguments had been squarely rebutted by the Hebei side. More damagingly, CCTV interviewed a third party participant of the hearing, law professor Hong Daode (15 such participants were present to give their advice to the court whether they thought the case merited a retrial), who on record praised the Hebei side for its “unwavering confidence”. For the hundreds of millions of viewers of the program, they could have easily turned off the TV with the impression that the case had largely rested. That’s why online fury quickly built up. One source of the fury is Nie’s lawyers themselves. One of them published an open letter accusing Prof. Hong of being unethical, as participants of the hearing were not supposed to reveal their views, let alone swaying public opinion through TV. Some see the CCTV move as a signal of the administration’s position on the case: the hearing was less about judicial openness than a highly coordinated public overturn of the Nie story, a slap on the face of the “lawyer party”.

Nevertheless, the outcry against CCTV seems to have worked, to some extent. On May 4, Prof. Hong issued a statement through sina.com to formally clarify his view on the case. He claims that the CCTV interview only captured part of his opinion and when presented in full, he is actually strongly in favor of a retrial. He even deems the prosecutor’s evidence on the rape charge so flimsy that “not allowing a retrial is unacceptable”.

To this point, the fate of the Nie Shubin case still hangs in balance. The Shandong Provincial High Court has not handed down its decision on whether one of the country’s most watched and debated cases deserves a retrial. But retrial or not, observers are positive that through this whole process, the concept of “procedural justice” has been further disseminated and accepted. In the May 3 Southern Metropolitan Daily editorial titled “Truth, Justice and History“, the author elegantly underlines key procedural shortcomings of the Nie case, including the design of the hearing itself, which is another sign of sophisticated procedural discussions entering into public discourse.

But speaking of procedural justice, maybe a new challenge facing the Chinese judicial system after it lifts the dirty carpet of secrecy and cover-up is how to insulate its procedures from the noisy world of public opinion and propagandist manipulation.

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