Double jeopardy: a matter of "face"

Editor's note: Double jeopardy is a five-part series focusing on the case of the Hsichih Three in Taiwan, which helped put the death penalty back up for debate in Asia.

TAIPEI, Taiwan — One Friday in late April last year, Wang Wen-chong, the brother of the marine convicted and executed for the murders, took the witness stand. He had named the Hsichih Three as accomplices in the murder in 1991, identifying them to police by their nicknames.

As such he was partly responsible for putting them on death row.

He described being hit in the head by police at the station, how they threatened to haul in his mother if he didn't confess, how he saw Su Chien-ho tied up, heard him scream in pain from another room.

He said he denied involvement in the murders, but police didn't write that down. "I told them I didn't do this, but they didn't believe me," he told the court. He remembered how cops told him the murders couldn't have been the work of just one man, "there must have been more people involved."

He described being beaten bloody, until he “couldn’t tell who were prosecutors and who were police.” At one point they stopped recording his testimony “because I said I didn’t do it.” Every time he denied involvement, they hit him again.

He finally confessed to acting as a “lookout,” as his brother and the Hsichih Three committed the crime.

He said he'd seen his brother doing drugs, smoking something off aluminum foil (probably amphetamines), but not on the night of the murders. “I didn't know it was serious,” he said.

The photos of six policemen from the Hsichih station were projected on the courtroom wall. Wang Wen-chong said he couldn’t identify the ones who had hit him. “I can’t speak carelessly,” he told the court, after glancing quickly at the wall.

Marshaling evidence

In most criminal trials in the United States, juries are instructed that the burden is on prosecutors to prove “beyond a reasonable doubt” the guilt of the accused.

In the Hsichih Three's retrial, before a panel of three judges, the burden of proof often seemed to lie with the defense. “From the start, there’s been no evidence in this case" to prove guilt, said Shau E-ming, a member of the defense team. “But they still sent them to death row. So we had to prove that these three men were innocent.”

Wang’s recollections added weight to the accusations of police torture. The most crucial testimony, though, was that of the foreign expert — Taiwanese-American forensic scientist Henry Lee, famous from the O.J. Simpson trial. Lee was brought to Taiwan by the defense to do a crime scene reconstruction and appear in court.

His forensic report concluded that the bedroom was so cramped as to make it unlikely that four assailants could have struggled violently against the two victims, in the poor visibility at the hour of the crime, without leaving more physical evidence.

Forensic expert Henry Lee and a Taiwanese cop at a 2008 reconstruction at the actual scene of the crime in Hsichih, Taiwan. (Courtesy of the Humanistic Education Foundation)

Lee wrote that one strike with a meat cleaver could leave several different wounds on a body, making it possible for one attacker to have left 79 wounds on the couple in an explosion of violence.

"There is a high likelihood that Wang Wen-hsiao acted alone in committing this crime," Lee's report read. "It is highly improbable that four (4) suspects attacked two (2) victims simultaneously with the types of weapons [described by police] in such a confined space."

In their closing arguments in September, defense lawyers leaned heavily on Lee’s testimony to sway the judges. They focused, too, on the testimony of police torture and the lack of physical evidence tying the Hsichih Three to the murders.

"How is it possible that only Wang Wen-hsiao's physical evidence was left at the scene — but none from the other three?" one defense lawyer said. "Why didn't they find any hair, or blood beside Wang Wen-hsiao's? The prosecutors haven't met their responsibility for proof."

Another defense lawyer railed against the very fact that the three were still defending themselves in court, two decades after the crime.

"The case has already dragged on 19 years and they're still on trial — is this the way the legal system should work?" he said with clear disgust. "This is blackening our country's reputation."

Catalyst for change

Why did the case drag on so long?

"Face," one defense lawyer said simply, putting his hand to his cheek, in a conversation in the lawyers' lounge after one hearing. He and others said it boiled down to the judicial system's embarrassment over making a mistake. (The lead prosecutor declined GlobalPost’s request for an interview.)

"One of the hardest things for the state to do is to admit that they screwed up," said Katz, the historian. The Taiwan Alliance to End the Death Penalty’s Lin agreed. When a second trial found the Hsichih Three innocent in 2003, "There was a lot of pressure from the victims' relatives, and the prosecutors lost face," said Lin.

Still, things have improved since the days when the Hsichih Three were first hauled in. This and other cases have spurred calls for reform. "The legal process is more open, police don't rough you up anymore," said Katz. "You can't get away with it anymore, like you could in the 1990s."

Taiwan has adopted a law putting a time limit on cases like the Hsichih Three’s. No longer can prosecutors drag out a case indefinitely. Legal reform advocates are also pushing for changes to how judges are chosen and promoted, to shake up a hidebound hierarchy where junior judges are afraid to go against their elders.

Taiwan now requires all police interrogations to be video-taped; that's still not the case in Japan, according to Shau, the member of the defense team, who also works for a human rights foundation. He said that neither Japan nor China had a historical idea of human rights, but that "Taiwan is different."

Unlike China and more so than Japan, Taiwan has an independent media, independent businesses and a thriving civil society with active non-governmental organizations. "All these can influence the government to support human rights," he said.

Taiwan is taking human rights concepts from the West and adapting them to what is "suitable" for Taiwan, he said.

"Some people say, 'You are Asian,' or 'You are Chinese.' Why do they say that? I am myself. There's no such thing as 'Asian people' — we are only individuals," said Shau. "A lot of people in Taiwan have a new belief in individual rights."

He called this a marked contrast to China, where the Communist Party government controls the justice system, sharply limits civil society and scorns human rights as a foreign annoyance. "In mainland China, if the government doesn't help you, no one can help you," he said. "In Taiwan, if the government can't help you, we are there to help. That's democracy."

As flawed as the Hsichih Three case had been, it could be worse, he said. "Because they are in Taiwan, they are still alive," he said. "In China they would have been killed already."

Mixed emotions

None of the prosecutors showed up on Nov. 12, when the verdict was read. Only Wu, the older brother of one of the victims, sat quietly on their side of the courtroom, a lone figure facing a phalanx of black-and-white robed defense lawyers, and, to his left, the Hsichih Three.

The spectators’ galley was packed, mostly with students and Hsichih Three supporters. The three judges took their places behind the raised desk, a tower of documents piled unsteadily in front of them among the tea cups.

The court police ordered everyone to rise and then the head judge read out the verdict — not guilty. Gasps and murmurs came up from the crowd.

Su Chien-ho, surrounded by reporters, after he was declared innocent on Nov. 12, 2010. (Jonathan Adams/GlobalPost)

Wu left the courtroom quickly with a blank expression. Outside he told reporters that he would try to get prosecutors to appeal again. "The injustice against my younger brother and his wife ..." he said, his voice breaking. "I don't know when it can be made right."

In the courtroom, Su Chien-ho hugged his lawyer for a long time, holding on until the lawyer’s eyes turned puffy. Outside, the three defendants and their lawyers gave a press conference, surrounded by a mob of TV cameras, microphones and well-wishers.

Their supporters started chanting "Justice, jiayou [an expression of encouragement]!,” "Taiwan, jiayou!"

Su, stopped by a reporter on the sidewalk outside the court, made a few comments. Then he turned and quickly loped away down the street, leaving the chants, lawyers, students and cops behind. He was free again.

Huang Guo-rong and Yang Chia-nin assisted with this report.

Read more from Double jeopardy:

Part I: a look at the death penalty in Asia

Part II: victims' families seek justice

Part III: trend toward abolition

Part IV: presumed guilty