Bail and Custody: Prosecutors and Judges have a Responsibility
United Daily News editorial (Taipei, Taiwan, ROC)
July 19, 2011
The White Rose Movement has been reborn. This time the impetus came from Banqiao District Court Judge Judge Lu Chun-chieh. Lu allowed a taxi driver named Hsieh to go free on 50,000 NT bail. Hsieh is suspected of sexually assaulting a female university student from Japan. Netizens are demanding that Lu step down. Controversy over incompetent "dinosaur judges," out of touch with the expectations of society, is once again shaking up the judicial system.
People are angry. They pity the Japanese woman who came to Taiwan, only to be sexually assaulted. They are outraged by cavalier oversights within the judicial process. The result has been a rapidly accelerating, unstoppable snowball. Public anger is intense and warranted. But detention procedures, the conditions of detention, judgments about their purpose, must be subjected to rational review. Public sentiments must be directed at the problem. Only then can we prevent their recurrence.
The driver, whose surname is Hsieh, was arrested for sexual assault then released on bail. First of all, the prosecutor failed to provide sufficient proof of his guilt. Before prosecutors can detain a suspect, they must present sufficient evidence. When required, this evidence must appear on their reports. They must convince a judge that the defendant must be detained. This is necessary to ensure both the public welfare and the victim's rights.
Detaining a suspect does not imply that he is either guilty or not guilty. Its purpose is to enable an investigation or trial to proceed. It temporarily restricts a defendant's personal freedom. When a crime takes place, one must begin with the presumption of innocence. Judges must be cautious about detaining a defendant. The seriousness of the crime cannot be the sole justification for detaining a defendant. Other considerations, such as flight risk, the possibility that perpetrators might coordinate their testimony, or that perpetrators might repeat their offenses, must all be taken into consideration, to protect the rights of the defendant.
In the Hsieh case, the only reason the prosecutor cited for detaining Hsieh was the seriousness of the crime. No one from the prosecutor's office appeared in court. No one suggested that Hsieh might be a flight risk. No one suggested that the police adopt "preventive detention" measures. Still less did anyone suggest that Hsieh was a repeat offender, with a record for sexual assault. Should such a sexual assault suspect be detained?
Prosecutors failed to provide evidence of guilt. The judge rejected demands that he be detained. Even if prosecutors refile motions to have the defendant detained, they are unlikely to escape blame. Still less can they argue that judges have the authority and obligation to investigate, and use that as a defense. Otherwise, what is the point of having prosecutors? One may as well turn all cases over to the judges, and have them investigate. This last line of defense was incorporated into the Code of Criminal Procedures to ensure justice and fairness. It was never intended as a pretext for prosecutorial indolence. Prosecutors who have not laid the proper groundwork to detain a suspect have only themselves to blame. Meanwhile, the decision whether to detain a suspect, remains the responsibility of the gatekeepers -- the judges. Public safety and human rights are in a constant tug of war. We must not rush to judgment. We must defend to the death the provisions of the law. We must approach every case based on the facts.
In the Hsieh case, the prosecutor cited only the seriousness of the crime as a reason to detain the suspect. This was in violation of the requirements of justice. The prosecutors were negligent. But Hsieh is a taxi driver. He has many opportunities to come in contact with women. If he repeats his offense, that is no trivial matter. Given these questions, the judge failed to ask the prosecutor to provide additional information. He too was negligent. The victims of sexual assault may or may not be Japanese women. Regardless, judges should show greater empathy.
This process reveals how prosecutors and judges routinely handle such cases. The word "detain" on the whiteboard in the bailiffs' room means that someone has lost his freedom and his reputation. If prosecutors want to take someone into custody and hold him at a detention center, they need to do more than check a few boxes on an indictment form. But prosecutors rarely argue their case in court. They are often slapdash in their case preparation. They desperately need oversight. The judge has little time in which to decide whether a defendant should be detained. He must understand the requirements for detention. He must be experienced in his interactions with prosecutors. He must be seasoned and tough. But unless the case is a major case or a media case, in practice judges invariably "allow the cattle to graze." They allow the first instance judges to take on cases alone. Are these judges sufficiently well trained? That remains to be seen.
Another issue warrants concern. That is the impact of public indignation on court cases. Justice requires avoiding human influences. human biases. It requires listening to statements by different parties, and arriving at a judgment based on the evidence. But in the Hsieh case, the media has spoken on behalf of the victim alone. It has painted Hsieh as a demon. It has already convicted him. Netizens meanwhile, immediately painted the judges as "dinosaur judges," without bothering to first understand the problems with custody. The White Rose Movement has used this opportunity to rise again. It is unhappy about the sexual assault bill proposed by the administration. It is also exterting enormous pressure on the judges to detain Hsieh.
Therefore if Hsieh is eventually detained, it will be impossible to tell whether it was due to "public opinion," or to judges exercising their judicial autonomy. Public outrage may result in pressure. But it may not lead to the truth. If the judicial system is negligent in its handling of cases, it will lead to a public backlash. It will invite public contempt.
The public is disappointed with the justice system. Prosecutors and the courts must not blindly succumb to public pressure. They must not pass the buck in order to relieve the pressure on themselves. They must work together to improve the system as a whole. Only by this can they address public concerns. They must take advantage of public discontent to improve the system. The public may vent its anger because it is dissatisfied with the justice system. But it should return to the issue of how to change the system. Only this will prevent populist sentiment from influencing the administration of justice. Only this will allow the public to feel secure in the administration of justice.