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July 26, 2012

Indicted Chinese Co-Defendants Face Tightly Controlled Legal System

The indictment on murder charges of Gu Kailai, wife of Bo Xilai, and Zhang Xiaojun, a family employee, has set China's unique legal system in motion.

Chinese prosecutors have accused Gu and Zhang Thursday of poisoning British businessman Neil Heywood, once a close associate of Bo Xilai's family, who was found dead in a Chinese hotel last November. 

The indictment specifically charges the co-defendants with "intentional homicide." 

What comes next in the case is pretty easy to predict, according to Chinese attorney Jim Li, who studied law at Beijing University and in the United States. We contacted him at his firm in New York, Jim Li & Associates.

Jim Li: "Gu and [her] associate will face the death penalty, according to the Chinese penalty law. In China, acts...might be divided into two [categories]: one is intentionally, one is not - unintentionally.  Intentional murderer will face the death penalty."

VOA: What happens now? She is in police custody, and we can assume her co-defendant is as well. Where does the legal system go?

Jim Li: "The next step, they are going to appear before a judge.  They’re going to have an attorney, a lawyer to defend them. That should be done within a month."

VOA: Will they face a court with a jury of their peers?

Jim Lee: "In Chinese system, there [is a] forum with normally three judges.  So there’s no such jury like in the [United] States. And, also, there’s no arraignment hearing. No such hearing in China.  [She] was indicted, the next hearing will normally be individual merits hearing."

VOA:  Is it your experience that the lawyers who represent the defendants have a fair opportunity to defend their clients?  

Jim Li: "No. They have no fair opportunity to have their own lawyer to defend them freely.  [The] lawyers under the Chinese system, particularly related to political issues, will be controlled by the authorities. The lawyers cannot freely defend them."

VOA:  So by definition the lawyers who are assigned to the two co-defendants are biased? They’re chosen by the government?

Jim Li: "No. They have the freedom to choose their own lawyers. The family...could find a lawyer for their relatives freely. But the lawyers are not free. The lawyer who would be hired will be controlled by the Chinese authorities. For example, they could not defend 'not guilty.' "

VOA:  But can the co-defendants plead not guilty?

Jim Li: "The lawyer cannot say 'not guilty' before the judge for some important cases, not every case, not by law. Under the Chinese political and legal situations,  lawyers are controlled by the authorities. They are not free to defend a 'not guilty' plea."

VOA:  In what way are they controlled?

Jim Lee:  "They are threatened. Some lawyers are chased out of the court."

VOA: This proceeding that is going to take place, is it something that is going to be televised for the Chinese public?

Jim Li: "No. Definitely not.  It is impossible. The media in China also are now afraid to report this case.  All the news released about this case will be…issued by Xinhua agency. No other media could freely report this case."

VOA: You’re painting a picture where there’s really not much maneuvering room for the defendants.

Jim Li: "There is only one thing [where] there is room for the defendants: whether or not they are going to face the death penalty, because I read the indictment charges and they [contend the defendants] murdered Mr. Heywood because Gu felt that...her son was facing some danger [from] Mr. Heywood. This is an indication that Gu has one reason for not [facing] death penalty."

VOA: Does her motivation itself give Gu the opportunity to avoid the death penalty?

Jim Li:  "That’s right. Because the indictment provided a motivation. That’s very odd to me.  It’s not so usual for the motivation for such important a case. Most likely, they are going to give a leeway to Gu for no death penalty.  There’s another penalty of punishment for the death penalty, it says probation of the death penalty for two years... Before the [end of] probation the court will change the sentence to a life sentence."

VOA: Is there any process in the Chinese legal system that allows them to appeal?

Jim Li: "Yes, definitely. Under the procedure criminal procedure law, they have the right to appeal,  but you know that most important cases all procedures are controlled by the Chinese Communist Party.  So the appeal will fail."

VOA's Catherine Maddux contributed to this story from Washington.