Chen Shui-bian Must Look the Courts and the Public in the Eye

Chen Shui-bian Must Look the Courts and the Public in the Eye
United Daily News editorial (Taipei, Taiwan, ROC)
A Translation
July 15, 2009

Chen Shui-bian's detention has been extended three times. It has gotten to the point where Chen finds it necessary to change his legal defense strategy. His original legal defense strategy was to plead not guilty and see eventual acquittal. His future defense strategy will probably focus on the verdict. hoping to obtain a pardon.
Chen Shui-bian's detention has been extended to September 25. By that time the courts may have returned a verdict in the first instance. Even if they have not, they may continue detaining him. The Full Court has extended Chen's detention for the third time. Based on the court's rulings, Chen Shui-bian is almost certain to demand a hearing. Chen Shui-bian is no longer wasting his energy seeking acquittal. Instead he seems to be concentrating on the verdict, hoping to obtain a pardon. He hopes to receive a more favorable decision, perhaps to pave the way for a pardon. The key to his strategy is to admit guilt in court and apologize to society.

The Full Court has extended his detention three times. It pointed out that Chen Shui-bian faces at least seven years for the felonies he committed. The Full Court's actions revealed the judges' thinking. Actually a number of Chen Shui-bian's crimes could lead to 20 or 30 year sentences. He has yet to be charged with crimes calling for life imprisonment. Previously Chen Shui-bian made numerous attempts to interfere with the judicial process. The Full Court was compelled to take this evidence of Chen's motives into consideration when deciding whether to extend his detention. If during the final stages of his trial Chen Shui-bian still refuses to show repentance and admit guilt, the Full Court may be compelled to increase the penalties imposed. The only way Chen Shui-bian can influence the judges now is to admit guilt and show repentance. He must cease slandering, attacking, insulting, and intimidating the judges. Does Chen Shui-bian really want to play power games with the court? Does he really want to test the judges' patience?

Chen Shui-bian may be found guilty. He may be given a heavy sentence. Chen Shui-bian himself suspects as much. Suppose Chen Shui-bian is sentenced to life or 30 years. He will find himself in a predicament. Should he appeal or should he seek a pardon? If he appeals, he cannot seek a pardon. Conversely, if he seeks a pardon, then he may not make an appeal. A pardon is a political gesture that must accord with the feelings of the public. If Chen Shui-bian refuses to admit guilt after being convicted in the first instance, how can the public agree to a pardon? At the very least Chen Shui-bian must admit guilt and apologize. To have any chance of a pardon he must forgo any appeals and make a number of political promises. Conversely, if he maintains his unrepentant attitude, how can the public possibly agree to a pardon? How can Ma Ying-jeou possibly justify giving him a pardon?

The Full Court extended the length of Chen's detention. It had much to say about Chen Shui-bian's interference with the judicial process. The Full Court said "if he was released the harm he could do to the administration of justice and the degree to which he could interfere with the judicial process was unimaginable." Such views went beyond the original reasons for his detention. The Full Court's attention is now on the need to ensure due process during the trial as a whole. As matters stand, Chen Shui-bian's political sleight of hand has backfired. Playing with fire has gotten him burned. If Chen Shui-bian refuses to come clean with the court and admit guilt, the judges may be forced by law to impose a heavier sentence. If Chen Shui-bian refuses to apologize to the public and express remorse, he may rule out any possibility of a pardon. The judges are permitted to consider only whether Chen Shui-bian undermined the administration of justice and interfered with the trial process. Society, on the other hand, is more concerned about whether Chen Shui-bian might trample over justice and divide society.

Chen Shui-bian has painted himself into a corner. He may be able to mobilize people such as Chen Chung-mo, convincing them to beseige to the courthouse. He may be able to mobilize people such as Tsai Chi-fang, convincing them to demand his release. But the verdict is not in their hands. The verdict is in the hands of the Full Court. Chen Shui-bian must think clearly, and act rationally. The time when he could obstruct justice has passed. For all his efforts, he has nothing to show. All he can look forward to now is the court's verdict and a presidential pardon. Anyone who hopes for a favorable court ruling must convince a judge of his repentance. Anyone who hpoes for a presidential pardon must admit guilt and convince the public that his expressions of remorse are sincere.

Chen Shui-bian chose the wrong legal defense strategy. He made the same mistakes he made when he was in power and ruled the nation. He made the mistake of sacrificing means for ends, right for wrong, and substance for form. He sought only quick fixes. He refused to consider the consequences. He engaged in deceit. He trampled over justice. Yesterday he controlled the machinery of state. Today he manipulated the wheels of justice. That is why he directed his appeals at a tiny minority of Deep Green True Believers gathered outside the courthouse. That is why he demonstrated nothing but contempt for the courts and the general public. We now know Chen Shui-bian's antics outside the courthouse will not reverse his fortunes. He must now look the courts and the public in the eye.

Chen Shui-bian must wake up to the fact that Chen Chung-mo is not in charge of the courts, and Tsai Chi-fang cannot give him a pardon.

陳水扁必須回頭面對法庭及主流社會
【聯合報╱社論】
2009.07.15 04:49 am

陳水扁三度延押，已經到了必須考慮改變訴訟策略的時間點。此前，他的訴訟策略著眼在無罪抗辯及開釋；今後的訴訟策略則應以面對判決及爭取特赦為計議。

此次延押使陳水扁的羈押期延長至九月二十五日，屆時一審可能已經審結判決；即使尚未審結，亦有可能再延押下去；依合議庭三度延押裁定的理路來看，陳水扁將從看守所提庭聆判的機率已在十之八九。所以，陳水扁今後似乎不必再在設法爭取開釋上徒耗心力，而應以面對判決及爭取特赦為計議。為爭取較有利的判決或為特赦鋪墊輿論基礎，其關鍵皆在：向法庭認罪，向社會道歉。

合議庭三次裁定延押，皆指出陳水扁所涉為七年以上徒刑之重罪；倘若這是透露了法官的心證，則陳水扁其實就有數罪併處二、三十年徒刑的可能性，何況他尚有被訴以最高處無期徒刑之罪。陳水扁此前操弄諸多手段以「干擾司法訴訟進行」，而使合議庭增添了必須延押的心證；倘若陳水扁在此判決的最後階段，仍然不肯悔罪認罪，恐也將逼使合議庭依法以犯後態度惡劣而加重刑罰。而陳水扁現今唯一尚能影響法官的方法，就是認罪的誠意及良好的犯後態度；而不是汙衊、攻擊、羞辱、恐嚇法官，且毫無認罪悛悔之意。陳水扁難道還要繼續用那些戲弄法庭的手法，來探測法官們心證的底蘊？

陳水扁可能被判有罪，亦可能被判重刑；連陳水扁自己亦有此種預感。假設，陳水扁被判無期徒刑或二、三十年有期徒刑；他將立即面對是否要上訴及是否要爭取特赦的困局。若要上訴，即不可能爭取特赦；反之，若要爭取特赦，即須首先放棄上訴。特赦是一政治舉措，必須斟酌社會感情的反應。陳水扁若在一審宣判前仍不認罪，難道社會能同意對一個不認罪者給予特赦？在想像中，陳水扁至少須以認罪道歉，放棄上訴，並作出若干政治承諾後，始有可能爭取特赦；反之，倘若仍是現今這種怙惡不悛的態度，社會大眾豈能同意特赦，而馬英九又豈有給予特赦的空間？

合議庭第三度延押裁定書，特別對陳水扁「干擾司法訴訟進行」的種種事實有所著墨；並稱「誠難想像如將之釋放，不知將以何種方式戕害司法，干擾審判」。這類的觀點已然超越了所謂羈押要件的例舉，而是從維護整體審判進行的最高法益著眼。事既至此，陳水扁的一切政治操作已然產生了玩火自焚的反效果。同理，陳水扁若再不向法院坦誠認罪，是否會迫使法官依法判以重刑？陳水扁若再不向社會懺悔道歉，會不會自絕了特赦的可能性？因為，法官只能斟酌陳水扁之「戕害司法／干擾審判」；但主流社會更將顧慮陳水扁的「蹂躪正義／撕裂社會」！

陳水扁將自己逼入了死胡同。即使他能動員城仲模等人到法院「侵門踏戶」，及發動蔡啟芳等人為他爭取開釋；但畢竟審判權不在這些人手中，而是操在合議庭的法官之手。陳水扁現在必須理性地意識到，他以干擾訴訟來爭取開釋的階段已經過去，且全無成效；今後他所面對的將是判決與特赦的問題，而欲爭取有利的判決就必須以良好態度說服法官，欲爭取特赦則必須以認罪誠意感動主流社會。

陳水扁在訴訟策略上所犯的錯誤，與他過去主政治國時期所犯諸多重大錯誤的形態如出一轍。其錯皆在逐末捨本、用奇捨正、尚虛棄實，只求一時急效而不計後果，沉溺於權謀而踐踏義理；過去他是如此操弄國家，如今他也這樣操弄司法。因而，他才會以法院外的深綠小眾為其訴求對象，而完全罔顧法庭及主流社會始是決定一切的關鍵因素。現在已經證實，陳水扁在法庭外的戲法完全左右不了大局，他必須重新回頭面對法庭及主流社會。

陳水扁應當覺悟：法院不是城仲模開的，特赦也不是蔡啟芳等人說了就算！