Between Judicial Independence and Accountability in the Hsu Tzu-chiang Case

"The original judgment is vacated. Hsu Tzu-chiang is not guilty." As presiding judge Hsieh Ching-heng finished speaking those words, the courtroom erupted in cheers, just like a scene in a movie, accompanied by many tears, some of grievances released, others of joy and emotion.

Frankly, the pro bono legal team had been pessimistic. Little wonder: over the twenty years of the Hsu case, a trial may have been a one-time event for each panel, but for the lawyers who had accompanied Hsu for fifteen years, it was a continuous ordeal. In the sixth remand trial after Judicial Yuan Interpretation No. 582, everyone hoped that an interpretation of "constitutional stature" would bring a joyful reversal, yet the death sentence was imposed again. The High Court seemed to be saying the Constitution had nothing to do with it, and even seemed to be using Hsu's life to vent the Supreme Court's anger and defy the Grand Justices. Treating human life as worthless out of a clash of egos; the judiciary showed no vision at all.

By the seventh remand trial, the presiding judge had a good reputation and sound learning, and the proceedings were serious and thorough. The pro bono legal team had high hopes, yet it still ended in life imprisonment. Although the change was an escape from death, a conviction for a grave crime remained unacceptable. The lawyers' hearts were truly wounded. Everyone began to think: rarely had the investigation been so thorough; could it be any more thorough? Painfully, they had already met a very conscientious judge, yet could only get "death penalty plus acquittal divided by two equals life imprisonment." Could there be a judge more worth hoping for? After dragging through the unremarkable eighth remand trial, whose proceedings were riddled with flaws, the pro bono team no longer dared to be overly optimistic.

Between Independence and Accountability

In the ninth remand trial, the judges' emotions and leanings were not obvious. Yet after two months of intensive hearings and investigation, everyone seemed once again to feel the contradictory mix of "hoping but afraid of being hurt." Rather than having no hope at all for the ninth remand trial, it was more that we temporarily adopted the attitude of "expect nothing, and nothing can hurt": hope for the best; prepare for the worst.

After two months of technology-assisted hearings, intensively reviewing, comparing, and arguing over the key statements of the co-defendants, I kept wondering: "After such detailed comparison and impeachment, if they still convict, how on earth will they write the guilty verdict?" I vaguely felt there was hope for an acquittal, but recalling the legal team's continuous painful experience left me so conflicted my chest felt tight. All I could do was keep urging the court to investigate thoroughly, especially the evidence favorable to Hsu.

After the acquittal, a judge privately complained to me that our insinuation that the presiding judge was about to be promoted to the Supreme Court, and our plea not to close the case hastily, had been too strong. The High Court's press release after the verdict specifically expressed the hope that the public would give the court "a pure space for adjudication." I readily take that to heart, believing it was the panel's tactful advice to us.

If our excessive insinuation about the presiding judge's promotion caused displeasure, I sincerely apologize. However, a few points must be stressed. First, we know well the importance of judicial independence, and we are confident we are a group that will defend it to the death. But independence and accountability are in inherent tension, and in Taiwan today the judiciary's lack of accountability is a more serious problem than its lack of independence. Defending judicial independence does not mean the judiciary is beyond all criticism; I believe everyone can agree on that.

Second, because Taiwan still relies mainly on ex officio investigation by judges, and the presumption of guilt is the norm in practice, defendants often have to do everything they can to prove they were not involved. When no one can predict whether the judges will convict or acquit, and the panel repeatedly failed to investigate favorable evidence, coupled with the "continuous" painful experience of earlier trials, of course we felt frantic with worry.

Finally, we can say with great confidence that had this case involved citizen participation in trials or a jury system, under the legal requirements of the presumption of innocence, the principle that judgments must rest on evidence, and a properly enforced burden of proof, it would long ago have ended in a final acquittal. The pressure on the judges at every instance came less from outside criticism than from not knowing how to properly correct judicial errors.

Correcting Judicial Errors Requires Ability

Correcting past judicial errors first requires awareness: awareness that a great judiciary is not one that "never errs"; its greatness comes from "having the courage to correct its errors." A judiciary that represents justice and yet, upon discovering misjudgments and injustice, has no intention of correcting them commits a double injustice.

It also requires ideas, the ability to think independently rather than unconsciously following the crowd. Even more, it requires ability: to tease out the relevant threads from complex case facts. It requires learning: to use legal knowledge to make reasonable judgments and changes. It requires creativity: to strike a beautiful balance between legal reasoning and social facts and push the law forward. And finally it requires courage, the key to whether the judiciary can stand with the people against the executive and legislative branches.

Reading the 92-page judgment by Judges Hsieh Ching-heng, Lin I-hsiu, and Wu Tso-cheng, I was moved by its affirmation of the presumption of innocence and hope it will henceforth be applied in every case. I also applaud the panel's brilliant exposition of the principle of cross-examination and its exceptions bearing on the admissibility of evidence, and I salute and admire its point-by-point rebuttal of the contradictions and implausibilities in the testimonial evidence.

* This article was published by PNN, Public Television Service News Issue Center, on September 20, 2015.