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Effective Defense | After "seven trials", the prosecution was finally withdrawn, and Zhongcheng, Qingtai, Jinan, provided an "effective" defense for a job-related crime case.

Published:

2022-01-21

On January 18, 2022, a duty crime case in which lawyer Wang Junjie of Zhongcheng Qingtai Jinan Institute served as a defender was withdrawn. The procuratorial organ decided to withdraw the prosecution against the defendant Wang on the grounds of insufficient evidence. The court discussed and made a decision by the trial committee, allowing the procuratorial organ to withdraw the prosecution against the defendant Wang. According to the relevant provisions of the Criminal Procedure Law and the Criminal Procedure Rules of the People's Procuratorate, for cases where the prosecution is withdrawn, the People's Procuratorate shall make a decision not to prosecute within 30 days after the prosecution is withdrawn; no further prosecution shall be carried out without new facts or new evidence. The litigation process of this case can be described as twists and turns. After seven trials by the court, all the litigation procedures set by the Criminal Procedure Law have been basically completed. This case occurred in 2018. After the investigation by a municipal supervisory committee was concluded, the procuratorial organ filed a public prosecution for the defendant Wang's crime of embezzlement; on June 29, 2018, the court of first instance ruled that Wang constituted the crime of embezzlement. After the sentence was pronounced, Wang refused to accept the appeal, and the procuratorial organ also protested. On December 7, 2018, the Intermediate Court of Second Instance ruled to reject the protest and appeal and uphold the original judgment. After the above judgment became legally effective, the defendant Wang filed a complaint, and the intermediate court that accepted the complaint rejected the complaint on March 27, 2019. On November 25, 2019, after the president of the intermediate people's court found that there was a mistake, the intermediate court decided to retry the case and ruled to send it back for retrial. The court of first instance retried the case and rendered a criminal judgment on November 12, 2020, after which the defendant, Wang, appealed against the judgment. On June 23, 2021, the Intermediate Court ruled to rescind the original sentence and send it back for retrial. The court of first instance retried the case in July of the same year. During the retrial, the procuratorial organ made a decision to change the prosecution on September 3 of the same year, reducing the criminal facts and amount of the defendant Wang's occupation, and finally withdrew the prosecution of all the criminal facts and amount of the defendant Wang on January 18, 2022 on the grounds of insufficient evidence. Zhongcheng Qingtai Jinan Institute was entrusted in November 2020 and July 2021 respectively to appoint lawyer Wang Junjie as the defender of the defendant Wang Mou in the second and retrial stages of the first instance. After intervening in this case, the defense lawyer carefully studied the file materials, carefully designed the defense plan, and actively performed the defense duties, and realized the effective defense of the case. The following defense experience can be shared or used for reference: full communication, in-depth reading, active investigation and evidence collection. -- Full communication There is no smooth road and shortcut to achieve effective defense, but full communication, in-depth marking and active investigation and evidence collection are called the "troika" leading to effective defense by the industry ". Effective communication includes communication with the parties, co-counsel and judicial officers. In this case, it was through many meetings with the defendant and his relatives that the defense lawyer had an in-depth understanding of the background and suspicious places of the case, thus obtaining evidence clues for applying for judicial organs to obtain evidence in the second instance stage. The active communication with the original defense lawyer in this case will help to make full use of and learn from the work results of the original defense lawyer, avoid duplication and avoid detours. The defense ideas and defense views of this case are formed on the basis of the defense opinions of the original trial lawyer.. Communication with judicial investigators helps them understand and agree with the defense point of view. After all, the lawyer's defense statement will only work if it is recognized and accepted by the court. Otherwise, it will only be a waste of text and a sigh. It is the active communication with the judge that enables them to initially understand and agree with the lawyer's defense point of view. -- In-depth marking Marking is the basic skill of criminal defense lawyers, and it is also the only way for lawyers to understand the case, find loopholes in the prosecution's evidence, and form defense ideas. In-depth marking is the premise and foundation of effective defense. Marking papers is a hard job, especially in the face of dozens of files in this case, the only hard work is self-knowledge. Marking is not a simple process of reading papers. It embodies professional knowledge, experience and wisdom and inspiration. It can be said that only to a certain extent and depth can we find its wonderful opportunity. After many rounds of marking the case, from rough to detailed to various kinds of evidence one by one, we finally found a key evidence affecting conviction and sentencing-a copy of the IOU. This evidence was in the file from the beginning of the case, but all the personnel ignored it and believed that it was not meaningful as an IOU consistent with other evidence and was auxiliary evidence, however, it is precisely this IOU that shows that the identity of the defendant Wang is the "handler" rather than the borrower (in the guilty verdict, the defendant Wang was found to be the borrower, and Wang also believed that he was responsible for repayment). The "appearance" of this evidence affected the evidence system of the whole case, which was an important reason for the procuratorial organ to think that the evidence in this case was insufficient to withdraw the prosecution. -- Active investigation and evidence collection Generally speaking, procedural defense is the best defense, and evidence defense is the most effective defense in practice. If there is new evidence that affects conviction and sentencing in a case, it means that it is only a matter of time and procedure to change the sentence. In this case, in addition to the "IOU" found in the original file, an evidence clue was also found, that is, the defendant claimed that the money collected from the villagers' shops along the street had been handed over to the land management department through bank transfer (several years have passed), but no record of bank transfer was found, and the land management department also denied receiving the relevant money. The defense lawyer repeatedly asked and even sternly questioned the defendant, hoping that the defendant could truthfully "explain" the whereabouts of the money, but the defendant tried his best to confirm that he had handed it over to the land management department through bank transfer. Where did the money go? The supervisory department retrieved the transfer records of all bank accounts under the defendant's name, but did not find the whereabouts of the money. Finally, based on the defendant's age (more than 50 years old), education (Senior high school), living environment (rural), etc., the defense lawyer inferred that if the defendant's statement is true, then the financial institution to which the transfer is based on the principle of convenience should be in a nearby village and town, and the financial institution should be a common financial institution in the village and town. Based on this criterion, the defense counsel then inferred that the institution to which it transferred the money was likely to be a rural credit union or a postal savings bank. However, the supervisory committees of these two financial institutions have investigated and there is no transfer record. Under what circumstances does the defendant think he has transferred the account but has no record of the transfer? One major possibility is the post office certificate of deposit!!! According to this inference and evidence clues, the defense lawyer submitted an application to the court for new evidence. Under the strong promotion of the presiding judge, the supervisory committee obtained the record of the defendant's handling of large deposit certificates during this period of time, and then obtained the record of a staff member of the land management department taking out the money on the deposit certificates several times. The truth was about to come out. The defendant handled the cash into a certificate of deposit and handed it to a staff member of the land management department. After a long time, he mistakenly believed that he had transferred it to a staff member. The money was finally taken by a staff member. What is even more surprising is that according to the relevant internal policies, the land management department does not charge any other fees except for the cost of the property certificate for the shops along the street in rural areas! At present, the staff member is under investigation for suspected duty crimes and perjury. Of course, the lawyer's defense point of view will only play a role if it is adopted and accepted by the court. The people's court and the people's procuratorate adhere to the principle of "taking facts as the basis and law as the criterion" and fairness and justice, which is the fundamental guarantee for the fair handling of the case.

The litigation process of this case can be described as twists and turns. After seven trials by the court, all the litigation procedures set by the Criminal Procedure Law have been basically completed. This case occurred in 2018. After the investigation by a municipal supervisory committee was concluded, the procuratorial organ filed a public prosecution for the defendant Wang's crime of embezzlement; on June 29, 2018, the court of first instance ruled that Wang constituted the crime of embezzlement. After the sentence was pronounced, Wang refused to accept the appeal, and the procuratorial organ also protested. On December 7, 2018, the Intermediate Court of Second Instance ruled to reject the protest and appeal and uphold the original judgment. After the above judgment became legally effective, the defendant Wang filed a complaint, and the intermediate court that accepted the complaint rejected the complaint on March 27, 2019. On November 25, 2019, after the president of the intermediate people's court found that there was a mistake, the intermediate court decided to retry the case and ruled to send it back for retrial. The court of first instance retried the case and rendered a criminal judgment on November 12, 2020, after which the defendant, Wang, appealed against the judgment. On June 23, 2021, the Intermediate Court ruled to rescind the original sentence and send it back for retrial. The court of first instance retried the case in July of the same year. During the retrial, the procuratorial organ made a decision to change the prosecution on September 3 of the same year, reducing the criminal facts and amount of the defendant Wang's occupation, and finally withdrew the prosecution of all the criminal facts and amount of the defendant Wang on January 18, 2022 on the grounds of insufficient evidence.

Zhongcheng Qingtai Jinan Institute was entrusted in November 2020 and July 2021 respectively to appoint lawyer Wang Junjie as the defender of the defendant Wang Mou in the second and retrial stages of the first instance. After intervening in this case, the defense lawyer carefully studied the file materials, carefully designed the defense plan, and actively performed the defense duties, and realized the effective defense of the case. The following defense experience can be shared or used for reference: full communication, in-depth reading, active investigation and evidence collection.

-- Full communication

There is no smooth road and shortcut to achieve effective defense, but full communication, in-depth marking and active investigation and evidence collection are called the "troika" leading to effective defense by the industry ". Effective communication includes communication with the parties, co-counsel and judicial officers. In this case, it was through many meetings with the defendant and his relatives that the defense lawyer had an in-depth understanding of the background and suspicious places of the case, thus obtaining evidence clues for applying for judicial organs to obtain evidence in the second instance stage. The active communication with the original defense lawyer in this case will help to make full use of and learn from the work results of the original defense lawyer, avoid duplication and avoid detours. The defense ideas and defense views of this case are formed on the basis of the defense opinions of the original trial lawyer.. Communication with judicial investigators helps them understand and agree with the defense point of view. After all, the lawyer's defense statement will only work if it is recognized and accepted by the court. Otherwise, it will only be a waste of text and a sigh. It is the active communication with the judge that enables them to initially understand and agree with the lawyer's defense point of view.

-- In-depth marking

Marking is the basic skill of criminal defense lawyers, and it is also the only way for lawyers to understand the case, find loopholes in the prosecution's evidence, and form defense ideas. In-depth marking is the premise and foundation of effective defense. Marking papers is a hard job, especially in the face of dozens of files in this case, the only hard work is self-knowledge. Marking is not a simple process of reading papers. It embodies professional knowledge, experience and wisdom and inspiration. It can be said that only to a certain extent and depth can we find its wonderful opportunity. After many rounds of marking the case, from rough to detailed to various kinds of evidence one by one, we finally found a key evidence affecting conviction and sentencing-a copy of the IOU. This evidence was in the file from the beginning of the case, but all the personnel ignored it and believed that it was not meaningful as an IOU consistent with other evidence and was auxiliary evidence, however, it is precisely this IOU that shows that the identity of the defendant Wang is the "handler" rather than the borrower (in the guilty verdict, the defendant Wang was found to be the borrower, and Wang also believed that he was responsible for repayment). The "appearance" of this evidence affected the evidence system of the whole case, which was an important reason for the procuratorial organ to think that the evidence in this case was insufficient to withdraw the prosecution.

-- Active investigation and evidence collection

Generally speaking, procedural defense is the best defense, and evidence defense is the most effective defense in practice. If there is new evidence that affects conviction and sentencing in a case, it means that it is only a matter of time and procedure to change the sentence. In this case, in addition to the "IOU" found in the original file, an evidence clue was also found, that is, the defendant claimed that the money collected from the villagers' shops along the street had been handed over to the land management department through bank transfer (several years have passed), but no record of bank transfer was found, and the land management department also denied receiving the relevant money. The defense lawyer repeatedly asked and even sternly questioned the defendant, hoping that the defendant could truthfully "explain" the whereabouts of the money, but the defendant tried his best to confirm that he had handed it over to the land management department through bank transfer. Where did the money go? The supervisory department retrieved the transfer records of all bank accounts under the defendant's name, but did not find the whereabouts of the money. Finally, based on the defendant's age (more than 50 years old), education (Senior high school), living environment (rural), etc., the defense lawyer inferred that if the defendant's statement is true, then the financial institution to which the transfer is based on the principle of convenience should be in a nearby village and town, and the financial institution should be a common financial institution in the village and town. Based on this criterion, the defense counsel then inferred that the institution to which it transferred the money was likely to be a rural credit union or a postal savings bank. However, the supervisory committees of these two financial institutions have investigated and there is no transfer record. Under what circumstances does the defendant think he has transferred the account but has no record of the transfer? One major possibility is the post office certificate of deposit!!! According to this inference and evidence clues, the defense lawyer submitted an application to the court for new evidence. Under the strong promotion of the presiding judge, the supervisory committee obtained the record of the defendant's handling of large deposit certificates during this period of time, and then obtained the record of a staff member of the land management department taking out the money on the deposit certificates several times. The truth was about to come out. The defendant handled the cash into a certificate of deposit and handed it to a staff member of the land management department. After a long time, he mistakenly believed that he had transferred it to a staff member. The money was finally taken by a staff member. What is even more surprising is that according to the relevant internal policies, the land management department does not charge any other fees except for the cost of the property certificate for the shops along the street in rural areas! At present, the staff member is under investigation for suspected duty crimes and perjury.

Of course, the lawyer's defense point of view will only play a role if it is adopted and accepted by the court. The people's court and the people's procuratorate adhere to the principle of "taking facts as the basis and law as the criterion" and fairness and justice, which is the fundamental guarantee for the fair handling of the case.

Key words:

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