The following article was originally published in the December 2008 issue of the Montana Lawyer magazine:
In January of this year I had the good fortune to travel to Geneva, Switzerland on behalf of the Mansfield Center at The University of Montana to meet with Karen Tse, the CEO and founder of International Bridges to Justice (IBJ). Karen is a graduate of UCLA Law School and Harvard Divinity School, a former public defender, and the 2008 recipient of the ABA’s International Human Rights Award. We reached an agreement with IBJ to assist in developing criminal defense clinics in law schools in China. Clinical legal education is still new to China, and criminal defense clinics are even newer. Our current project has 8 participating Chinese law schools, and we will expand the project to 16 schools by the middle of next year. The project is being conducted in conjunction with the Chinese Committee on Clinical Legal Education, the umbrella organization for clinical education in China. Over the next few months, I will describe some of the problems and challenges to legal reform in China, and to the best of my ability give you my perspective on what it’s like for a practitioner from Montana to be participating in that reform.
Attorney Mu Hongying gave up a successful private practice in 2002 to dedicate herself fully to helping those who need her most: the poor and rural residents of her county. One of the few brave lawyers pioneering a model indigent defense practice for indigent defense, Attorney Mu is undaunted by the challenge of reforming a criminal justice system that — despite having a solid legal framework on paper — in practice grants defendants few rights.
During one of the interactive sessions, Attorney Mu inspired the assembled training participants with her recent zealous defense of a 15 year old boy. Impoverished, the boy’s family was unable send him to school. To pass the time, the boy began aimlessly playing games at internet cafés. One day, the boy had no money to play and impulsively took a cell phone belonging to another teenager in the café. Subsequently, he was caught running out of the café and detained for many months until trial. During his entire incarceration, his parents never once visited him, leaving the boy feeling depressed and hopeless.
Deeply committed, Attorney Mu visited the boy at the detention center many times. Through this, she learned much about the boy’s life, including how remorseful he was for his conduct. Thereafter, Attorney Mu met with the boy’s parents and persuaded them to talk with their son and provide better support. Because of Attorney Mu’s efforts, the parents began visiting the boy. Ultima-tely, Attorney Mu convinced the court that a non-jail sentence was a just outcome, since the boy now had proper parental support. Attorney Mu’s perse-verance is a prime example of why zealous defense work is so critical. Without her help, the boy likely would have received a long jail sentence.
This September, I took a leave from my job as an assistant state public defender in the Office of the Minnesota State Public Defender to volunteer with IBJ in China. A juvenile defense lawyer with over 24 years practice experience in the US, I was particularly interested in assisting IBJ’s Juvenile Justice Project, a program that aims to improve the quality of indigent defense for children in criminal proceedings, while also promot-ing improved implementation of laws designed to protect the rights of accused juveniles. Through a partnership with the International Senior Lawyers Project (ISLP) in the United States, I learned about this exciting opportunity at IBJ. ISLP began as a small group of retired lawyers from private firms who wanted to find opportunities to use their legal skills as volunteers. The organization continues to grow and now has volunteers in various countries around the world. ISLP agreed to sponsor my trip and helped make the arrangements for me to live in Beijing and volunteer with IBJ over the next three months.
Over the past month, I have learned a great deal about the needs of China’s juvenile justice system. Although by law juveniles are entitled to legal aid, many go through the criminal process without ever seeing a lawyer. Those who do receive appointment of counsel frequently receive substandard legal representation. Often, defense lawyers are appointed to juvenile cases just a few days before trial, preventing them from visiting their clients, asserting their legal rights or presenting any meaningful defense at trial. As a result, the vast majority of juvenile suspects are detained for many months before trial; almost all are convicted and frequently receive jail sentences, even for petty crimes.
Many of the Chinese lawyers I have met are dedicated passionately to the reform of the juvenile justice system, yet lack the skills necessary to bring about meaningful change. I have learned of the need for China’s lawyers to gain practical trial skills and how great a need there is for the international community to help provide that training. China’s juvenile defenders are interested in working on skills such as how to interview juvenile clients, learning about adolescent development and achieving alternatives to incarceration for their juvenile clients. Over the next three months, I am working with IBJ and their Chinese partners to develop a comprehensive juvenile defense manual, a practical guide that will instruct lawyers on best practices for defending accused juveniles.
The Committee of 100 is a national non-partisan organization composed of American citizens of Chinese descent. Each member has achieved positions of leadership in the United States in a broad range of professions. With these diverse backgrounds, members collectively pool their strengths and experience to address important issues concerning the Chinese-American community, as well as issues affecting U.S.-China relations.
I have just returned from a week in China in my capacity as Deputy Director for International Bridges to Justice. IBJ has been working in China for the past five years training defenders and working with criminal justice policy makers to strengthen procedures for improved implementation of the criminal laws and procedures in China. I spent most of my time in Beijing with a side trip to Xian.
While in Beijing I observed a criminal law clinical class at Remnin University, discussing proposed new alternative dispute resolution regulations in The People’s Republic of China. The class was analyzing a case that their law professor was working on involving a stabbing between two men. The alternative dispute resolution option is available for misdemeanors - defined as cases involving potential incarceration for three years or less. A case would qualify as a misdemeanor based on the extent of the injury. Injuries of three centimeters or less qualify for misdemeanor status.
The students were role playing the perspective of the defense, the prosecution, and the court. The defense argued that the injury was on the left side of the face - and the defendant was right handed - not terribly persuasive. They wondered if the scar could be longer or shorter than the actual injury.
I formed the opinion that they were more concerned with form than substance. When I was invited to comment I wondered why they weren’t considering self-defense or defense of others instead of the seemingly implausible right hand left cheek defense. But rather more astonishing was the fact that this class was even taking place.
Alternative dispute resolution was being taught in a country that didn’t recognize the right to an attorney funded by the government until 12 years ago. In 1996 China revised its criminal procedure code to advance the western concepts of presumption of innocence, the right to an attorney for certain prescribed categories of cases and the prohibition against coerced confessions. China set up legal aid clinics across the country to begin to meet the demands of the new law. But these legal aid clinics didn’t have qualified lawyers in place to handle the job.
Establishing a legal framework modeled on western notions of jurisprudence and opening up legal aid offices across the country were significant accommodations. But the real challenge remains - incorporating this new legal framework into a working system. (See Jean speaking to the class by clicking the Youtube clip below.)
I am quite a few years removed from my law student days. As I observed this class I felt the students were missing the point as they mechanically attempted to adhere to technicalities in the law. On the other hand, having practiced for several decades, maybe I just developed the knack of actually practicing law. Perhaps most students attend to their legal education as literally as these Chinese students did, missing the forest for the trees.
When I graduated from law school my real education began. As a public defender I learned how to practice law in the courthouse surrounded by able advocates. But unlike me, when these Chinese students graduate from law school, they will enter into the practice of law with few role models to help them advance in their development. The tradition of an adversarial system in which the defense confronts the state on behalf of a client is unprecedented.
There is much work to be done only about 10% of the criminally accused receive appointed counsel. In the few cases where a lawyer is appointed the law does not permit the appointment of a defense counsel until 10 days before the trial. With no preparation time, appointed counsel can do little more than rubber stamp the prosecutor’s case. Interviewing a client and then investigating the case are luxuries most Chinese lawyers rarely indulge in. Even assuming that an attorney actually did endeavor to present a defense, she lacks rudimentary skills such as conducting an examination of a witness, or developing a theory of a case.
Building a viable defender community will take time. Establishing clinical programs where students can learn practical skills is a start. IBJ will begin with three law schools developing a framework for clinical education that will include 15 universities by the end of the third year.
The enthusiasm for clinical programs within the law schools is palpable. The students are bright, hard working, and extremely disciplined. This generation of young people inhabit a different China than their parents. They have had much more latitude to express themselves, worship freely, and travel outside of the country. They are extremely idealistic and want to improve their country. They recognize, if only abstractly, that the legal system can protect the rights of the impoverished, criminally accused.
Despite the fact that none of these students planned to practice criminal law they were eloquent ambassadors for their country and developing legal system. Several students made speeches - in surprisingly good English - that sounded like they might actually change their mind and switch to criminal law. After the class I received several emails from the students articulating a desire to work with IBJ to strengthen the criminal justice environment in the country.
The idealism of the IBJ Chinese staff was also inspiring. These young professionals have given up more lucrative career opportunities to join with IBJ in its daunting ambition to train the first generation of legal defenders within China.
One young lawyer lives in a boarding house in a singe room with no kitchen and a common bath. Her parents live far away and she can only travel home during the New Year’s celebration. Another young woman shares an apartment with five other women and sends all her discretionary income home to support her parents. Their only professional disappointment is they can’t do enough, fast enough.
They are correct.
The situation might seem hopeless. But somehow, observing this class and the enthusiasm of these young law students gave me a distinct sense of optimism. If the patriotic zeal of these young students is successfully harnessed into a robust adversarial legal system there is no stopping them. China is a “can-do” country. The people are hard-working and proud of their countries’ recent accomplishments and ancient historic civilization.
I saw evidence of this great civilization on my few tourist outings, first to the Great Wall of China, and then in viewing the magnificent Terracotta Warriors of Xian. The foundation of a legal system that provides significant legal protections from abuse has been staked out. With the help of IBJ and others, China’s lawyers have the potential to realize a legal system that respects the fundamental human rights of all its citizens.
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