A Beijing Lawyer’s Defense Letter for the Wife of Persecuted Musician
Xu Na's was sentenced on Nov. 25, in Beijing, coincidentally on the International Day for the Elimination of Violence Against Women. She was detained earlier for five years due to practicing Falun Gong and she was repeatedly beaten, tortured and force-fed.
Ms. Xu, an award-winning artist, was charged with “using a heretical organization to undermine implementation of the law,” a vague provision in the penal code commonly used to sentence Falun Gong adherents to prison terms of up to 12 years.
Ms. Xu and her husband Yu Zhou, a popular folk-band member, were arrested in January as part of a “pre-Olympics sweep” by Chinese authorities, in which thousands of Falun Gong practitioners and others were arrested in the months leading up to the 2008 Olympic Games in August. Yu Zhou died 11 days after his arrest.
Ms. Xu’s defense lawyer Mr. Cheng Hai had pled not guilty on behalf of Xu Na.
Below is an excerpt of Mr. Cheng’s defense statement to help the public understand the facts and the relevant legal rules regarding Ms. Xu’s case and to offer help to Ms. Xu:
“Chief Judge, judge, and jurors,
My name is Cheng Hai and I am a lawyer from Yitong Law Firm in Beijing City. I’m appointed by defendant Xu Na and her relatives as the defense lawyer for Ms. Xu’s first trial. After researching documents of the case and court investigation, I’m challenging the prosecution with the following defense statements and I would like to ask the panel to please review them when conducting a deliberation.
The accusation from the Chongwen District Procuratorate—“using a heretical organization to undermine implementation of the law,” e.g., spreading cult promotional materials, against the defendant is not based on facts.
The fact presented by the prosecutor in support of the criminal charge against Xu Na is, “At 22:00 p.m. on January 25, 2008, the defendant Xu Na carried with her 53 copies of Falun Gong promotional flyers and 11 copies of Falun Gong promotional CDs and was caught by police while distributing these materials in Chongwen City’s Guoyuanxi Little District, Tongzhou District.” Yet, based on documents presented to the court by the prosecutor, Xu Na’ statements, and cross-examination conducted by the court:
1. The so-called 53 copies of “Falun Gong promotional flyers” are letters which Xu Na was supposed to deliver to Xiang Guilan’s family upon a request by someone. However, Xu Na had no knowledge of the specific contents of the letters or the number of copies.
2. For the so-called 11 copies of “Falun Gong promotional CD’s” carried by Xu Na, the Beijing City Public Security Bureau’s Beijing City Criminal Science and Technology Institute conducted an electronic evidence investigation and concluded that “alleged Falun Gong related data and documents” had been detected, which was mere “allegation” and did not confirm that the contents of the 11 copies of CD’s were indeed Falun Gong promotional materials.
3. Defense lawyer and chief judge Ma together reviewed the 11 copies of CD’s, and also briefly browsed through the 53 copies of letters, and the contents were mostly video recording of a spectacular show, the persecution against Falun Gong followers, number of people who had withdrawn from the Chinese Communist Party (CCP), and suggestions for people to quit the CCP, all of which are within the boundary of freedom of speech granted by our country’s Constitution.
4. The result of the examination of the CD’s and the 53 copies of letters is totally the subjective observation of the examiners and the investigators, which lacks the specific criteria based on the law or examination standard, and therefore should not be established as evidence.
5. For the accusation of Xu Na’s spreading Falun Gong promotional materials, Xu Na delivered the letters to a family member of Xiang Guilan, and therefore accusing her for “distribution” or “spreading” [of Falun Gong promotional materials] is not based on the facts. Accordingly, Xu Na’s action did not include the fact of “spreading” [Falun Gong promotional materials].
The accusation does not have legal basis.
The accusation stated that Xu Na was sentenced previously for making and spreading “Falun Gong” promotional materials. This time she again spread Falun Gong promotional materials. According to Article 300 of Criminal Law, “using a heretical organization to undermine implementation of the law” invokes criminal charges. And as a repeated offender within 5 years, harsh punishment should be implemented. The defense lawyer considered that the accusation did not specify which law enforcement was disturbed by Xu Na. Therefore it is not based on facts, nor does it have legal basis.
The first trial of this case involved over-extended detention, which should be corrected immediately and enforced with strong measures.
According to Article 168 of Criminal Law, “People’s Court should announce a verdict after one month, and no later than one and half month, after accepting a public case. However, since the Chongwen District Procuratorate transferred the case to the esteemed Procuratorate on June 30, 2008, to the court’s hearing on October 17, Xu Na’s detention had been over-extended for one and half month.
The defense lawyer believes, our country should protect freedom of religion. Falun Gong advocates Truthfulness-Compassion-Forbearance and does not pose any danger to society. Falun Gong should be a new, legal religious form, and its followers’ religious activities should be protected by the law.
In summary, the accusation against Xu Na is not based on facts and does not have legal basis.
Beijing City Chongwen District Court
First trial defense lawyer: Cheng Hai
October 17, 2008”