"A fair game"? Of law and politics in China, and the "sensitive" case of democracy activist Yang Jianli.

INTRODUCTION

In April 2002, democracy activist Yang Jianli, a Chinese citizen and U.S. permanent resident, returned to China using a friend's passport. (1) The Chinese government had "blacklisted" Yang after his involvement in the 1989 Tiananmen pro-democracy protests so when Yang's passport expired in 1991, Chinese consular officials in the United States refused to renew it. (2) After Yang was detained for nearly fifteen months incommunicado, he was indicted for illegal entry and espionage for Taiwan. (3) Yang was convicted of both charges in May 2004 and sentenced to five years' imprisonment (with credit for time served) and the denial of political rights for one year upon release. (4) Yang was released from prison in April 2007 and returned to the United States a few months later, in August of 2007. (5)

"Politically sensitive" cases, such as Yang's that are deemed to present a threat to the legitimacy of the Chinese Communist Party (CCP or Party), and criminal cases are the two areas in which law is least autonomous and the policies of the CCP most likely to prevail over law. (6) The rights of criminal suspects and defendants, as well as their lawyers, are routinely ignored in criminal cases in favor of the Party's ongoing policy of preserving social order and stability at all costs. (7) When a political dissident is charged with a crime, the superior position of policy over law is most stark. (8)

This article examines the detention, prosecution and defense of Yang Jianli, and the campaign for his release. It demonstrates how Yang's procedural rights were repeatedly violated; explains the obstacles Yang's lawyer, the well-known criminal defense attorney Mo Shaoping, encountered in attempting to present an effective defense; and ultimately shows how, in this "sensitive case," politics trumped law. The article also argues that it was precisely because Yang's case was handled as a political matter within China that external influence and pressure--such as international media attention, advocacy by the United States and other national governments, the United Nations, and human rights organizations--mattered. Perhaps the most significant outcome of this pressure was the relatively light sentence Yang received for the espionage charge, which carries a maximum punishment of life imprisonment or death. (9) The article also shows that despite the politicization of Yang's case, law and Mo Shaoping's lawyering skills nonetheless played an important role. Finally, the article concludes with some observations regarding the challenges facing China's criminal justice system that Yang's case highlights.

This article proceeds chronologically through Yang's detention, indictment, trial and return to the United States. Part I provides an introduction to Yang Jianli and his lawyer Mo Shaoping. Part II examines specific provisions of the 1996 Criminal Procedure Law that are relevant to Yang's case, and the obstacles to their implementation. Part III describes and analyzes Yang's we-trial detention, Mo Shaoping's entry into the case, and the indictment. Part IV addresses the pre-trial advocacy for Yang Jianli's release. The trial and Yang's post-trial extended detention are covered in Parts V and Part VI, respectively. Part VII examines the judgment, and Part VIII addresses Yang's incarceration and release. The article concludes with observations in Part IX.

I. BACKGROUND: YANGJIANLI AND MO SHAOPING

A. Yang Jianli