If We Continue to Condone Prosecutors and Police Leaking Information to the Media

According to media reports, the main suspect in the throat-slashing case, who had taunted police that "killing one or two people won't get you the death penalty," has been sentenced to life imprisonment at second instance, as at first instance. The verdict has angered many members of the public, and phrases like "the judiciary is dead" and "dinosaur judgments" have once again filled many public forums.

If you were a judge or juror and saw a defendant randomly slash a child's throat with a knife, would you give him a heavy sentence? Of course! Would you sentence him to death? If you are rational, you should decide only after weighing, as the relevant rules require, the defendant's motive, purpose, character, living circumstances, conduct after the crime, and all other circumstances.

Suppose you knew that the defendant's parents divorced when he was small; that after finishing elementary school he began working as a child laborer to support himself; that long years of welding damaged his eyes and left him with a habitually dislocated shoulder; that he suffered from latent schizophrenia and severe depression; that he had attempted suicide four times; that before the crime his condition worsened after a breakup; that he wanted to die but was afraid to, and upon hearing that someone who killed two or three people had been sentenced to death, he decided to kill a young child who could offer little resistance in order to be put to death. Would you sentence him to death? If you have any compassion, I believe this would be an agonizing question you could not decide for a long time.

Why go through such inner torment? When prosecutors or police privately tell reporters that the defendant said "killing one or two people won't get you the death penalty" or that he "killed to get free prison meals," and the media report it, public outrage is surely inevitable, and everyone cries for his death. Trial by public opinion driven by leaks from prosecutors, police, and investigators has played out again and again in Taiwan. The question is: is it really that simple? Shouldn't you, capable of rational thought and judgment, first clarify the context? In what circumstances did the defendant say those words? What did he really mean?

Fortunately, the judges did not dance to public opinion. The second-instance judges carefully examined the recording of the defendant's exchange with the prosecutor during questioning and found the truth: the defendant feared that "killing only one person, the plan would fail"—what if he were not sentenced to death? So, in a rather contemptuous tone, he said his motive was "wanting to eat prison food," hoping to provoke the prosecutor. When the prosecutor replied, "You want prison food! If you get the death penalty, won't you miss out on it?" the defendant's "eyes lit up." In other words, based on the in-court examination, several highly qualified forensic psychiatrists unanimously concluded that the defendant's account of killing in order to die was credible, and the account of killing for prison meals was not.

Now that the defendant's motive has been clarified, do you still think he should be sentenced to death? Everyone weighs values differently, but clearly it would no longer be the public outrage generated by the leaks from prosecutors and police. That such leaks violate investigation confidentiality is obvious. Did this case fall under any exception to investigation confidentiality, such as asking the public for help, correcting misinformation, communicating with a fugitive suspect, demonstrating the government's resolve to fight crime, or protecting the public interest? Clearly not. Instead, the leaks conveyed false information and created a biased environment for trial by public opinion.

Had this case occurred in the United States and the leaker been a prosecutor, he would have been disciplined for violating ethical rules, because his "extrajudicial statement" created "substantial prejudice" and infringed the defendant's right to a fair trial. If it were the police, because prosecutors supervise the police and stand in a quasi-"guarantor" position, prosecutors must not only refrain from making "an extrajudicial statement that the prosecutor knows or reasonably should know will be publicly disseminated and will have a substantial likelihood of materially prejudicing the proceedings," but must also exercise reasonable care (such as issuing appropriate warnings) to prevent judicial police from making similar extrajudicial statements.

The pursuit of justice is a shared aspiration of human society. But Taiwanese society has an excessive thirst for substantive justice, and so it repeatedly tolerates prosecutors and police disregarding procedural justice. If we continue to condone this, not only will criminal defendants' rights be harmed and society thrown into chaos by rampant rumors, but blue and green politicians will keep using prosecutors as tools, and Taiwan's drama of "rule by prosecutors" will play on.

* This article was published in Apple Daily on October 11, 2014; this is the original full text.