Qian Yunhui Case in Appeal Court

Qin Yunhui murder case is under examination at an appeal court.

费良玉交通肇事案二审代理词（代理钱云会之父钱顺南）
作者：斯律师

尊敬的法官任国权，以及另外两位未谋面的将在判决书上署名的法官：

我之所以用尊敬两字，是因为法官两个字，本身是很尊贵的。即便是我们法律人说来，法律也是很神圣的，更何况一般的百姓。毕竟一个国家大多数情况下，依赖法律来维系。谁破坏了法律，实际上是自毁长城，离祸乱不远，历史上的例子比比皆是。而具体法官自身是否值得尊敬，端赖法官个体的行为，或被人鄙夷，或受人尊敬。每个人都有自由意志，路都自己选择，没什么可以做挡箭牌。

大家也不必兜圈子，贵院也没有把这个案子（费良玉交通肇事案）当作普通的交通肇事案处理，正如一审时的，如临大敌，未按法律规定的方式完全公开开庭，仓促开庭，草草下判。一审我未提交书面的意见，因为该说的，都已经在庭上说了，虽然法庭记录中忽略了我的几次抗议。这些抗议，主要是针对法庭开快车，踩油门，就如机器一样，就想在既定时间完成既定事项。这样做，既不尊重法律，也不尊重当事人。对费良玉不公平，对我的当事人死者钱云会的家属，更不公平。

犹如现在很多体制内的官员说，费良玉案是否是交通事故，信者恒信，不信者恒不信。这话，说得很对。然而，可以说，信者大部分是体制内的，不信者大多是普通网民，人数多寡，你们也清楚。如果法院本身做到公开、公正，即使天下人都不信，我作为受害人的律师，也会大声说法院没做错，他们行使的是法律赋予给他们的权力，他们公正的行使了这个权柄，法庭外的人不信，是他们的错。这三个法官对得起，我们称呼他们尊敬的法官。

然而，一审开庭硬伤太多，正如我向任法官面谈时提出几点大概，

一，书证中，当天缺少费良玉打电话的记录，公安110记录中报案时间是9点30分。我们有理由怀疑当天案发时间不是9点45分，而是传闻中的9点30分04秒。因为根据费良玉的笔录，（2010年12月28日第4页）“我下车看到那个行人被压在车轮下不动了，我马上用自己的手机打110报警”。一审认定这个时间9：45，和一审检方提供的录像时间是不相符的。即使，录像时间也和一审认定时间不符。

二，物证中，录像没有经过是否修改、剪辑的鉴定。因为该录像经过多人之手，且录像和书证、人证有不符合之处。民间纵有无数技术人员说该录像有修改、剪辑之处，然而，法律只能相信有权机关的鉴定，如果少了有权机关的鉴定，一审判决中把这种存疑的录像做证据，显然违反刑事诉讼法规定的证据确凿的原则。代理人自己寻找的数家有资质的鉴定机构，他们都表示需要公检法出具委托手续，否则无法接受鉴定。因此，二审有必要对此进行鉴定。

三，证人中，检方对关键的证人证言，只让对交通事故有利的黄标出庭作证，未让王力权，钱成宇出庭作证。在选择证人上有明显的偏向，这些证人都掌握在检方手里，根据最高人民法院关于执行刑事诉讼法的解释，第141条的规定，证人应当出庭，一审法院不让其他证人出庭，并无合法理由。虽然，实践上， 证人不出庭的违法现象已经司空见惯，然而，既然，贵院让黄标出庭，似乎已经打破了这个惯例，那么，黄标对费良玉、检方有利，是否应该对钱云会家属公平一点，让钱成宇、王立权等也出庭呢？检方手里都是好牌，发给受害人家属的都是差牌，有这样玩弄法律的吗？

现在贵院决定二审不公开开庭了，代理人只能对此表示愤怒。按照目前的法律，二审确实可以书面审理，但是，是有条件的。最高院关于刑事诉讼法的若干问题解释第253规定，对上诉案件，应当组成合议庭，开庭审理。经过阅卷，询问被告人、听取其他当事人、辩护人、诉讼代理人的意见后，合议庭认定的事实与第一审认定的没有变化，证据充分的，可以不开庭。因此，司法解释明确规定，开庭是惯例，不开庭是例外。这里，你们又打破了惯例。

任法官和贵院的发言人只是听了代理人十几分钟时间，也未做任何笔录，就算听取了代理人意见？难道就能认定事实和第一审认定的没有变化？一审录像没有做鉴定，二审也准备葫芦僧判葫芦案？一审疑点没解释，二审准备外甥打灯笼？

回到案件本身，正如代理人向任法官反映的，录像出得非常蹊跷，钱云会出事也非常蹊跷，据传，乐清政法委在钱云会出事前一天，已经开会决定，寨桥村选举期间不能让钱云会在村里。这或许是为什么出事当天有那么多保安在现场，这也可以解释为什么钱云会不敢住在自己家里！事实上，从录像看，当天并未施工！要这么多保安干什么？是否存在抓捕过程中的交通事故？一审笔录中，黄标的第一次、费良玉的第一次，都说道钱云会举手拦车，细节很清楚，钱为什么要拦车？后来说是两人预谋为减轻罪责，从来没有听说拦车减轻罪责的说法。面对如此巨大的钢铁怪物，钱云会一个人拦车？这种解释牵强附会，难以置信。

代理人并不预设立场，只愿程序公正，对结果，不苛求。毕竟人不是神，我们只能凭证据说话。一审中的证据无法排除诸多疑点，一审判决书虽长达28页，可有一字解释过代理人在庭上的质疑？法院可以掩耳盗铃，装聋作哑，可是，法律不该如此！受过多年法律训练的法律人，也不该如此。纵然有很大的压力，然而，做人总得有点基本的骨气！何况，你们是顶着国徽的法官。

警察对证人黄雪芬的审问是在凌晨，有这样询问证人的吗？这样的证言还被采信。换成你法官是证人，你认为深更半夜把你抓走去作证，正常吗？这样的证言可以采信吗？

钱云会手机中的电话记录为什么不调查出来？如果要排除其他疑点，这个是最有价值的线索，为什么不进行调查？

看过录像的四个人王立权、黄雪芬和王旭乐、王旭旭对录像内容描述大相径庭，一审都作为证人，采信的是王旭乐和王旭旭的证言，为什么？只要是对交通事故有利，就采信，只要是不利，就回避？一审判决可曾置一词解释为什么同样看过录像内容的人描述会完全不一样？

人会说谎，机器不会说谎，这就可以解释，为什么寨桥村的摄像头会失灵？也或许也可以解释，为什么录像不敢拿出去做鉴定？或许也可以解释，为什么费良玉的报警电话在记录中找不到？或许也可以解释，为什么费良玉不肯解释赔偿的巨款哪里来？或许都可以解释钱云会之死案为什么疑点重重？都是因为人可能会说谎，不管这个人是证人、犯罪嫌疑人、警察、检察官、律师。

这就是为什么法律要设置具体繁复的程序，让所有的会说谎的人和不会说谎的机器，呈堂证供，互相攻错，不同利益方也互相辩驳，展示每一个破绽、漏洞，最终，中立的旁观者作决定，有罪的定罪，疑罪的从无，无罪的，还其清白。这样的制度设置，才能保障犯罪嫌疑人的权利，同时也给受害人一个公平。也让旁听的人觉得，有人罪有应得，有人受冤蒙屈。

现在，贵院继一审的变相不公开开庭之后，变本加厉，认为书面审理就可以了。除了相信你们是神，我还能有什么解释呢？代理人猜测，或许等你们走下神坛时，相信案子会有反复，历史总归会有些反复的。不用说，诛奸谀于既死，发潜德之幽光的古代史了，就算建国以来，多少冤案被平反？而且，都是在共产党领导下的平反。代理人相信国人的自我平衡能力。

如前面所说，贵院既然不把这个案子当作一个普通的刑事案件来审，也请原谅代理人不用传统的方法来写代理词。根据我对司法的了解，也知道，你们或许也会受牵制，我们即使写数万字或许顶不了有的人一个字。我多写，只能是不智。你不让我开庭讲，我也不想白白写。

因此，最后，我对任法官和其他两位说一句话，这个案子不开庭，不鉴定，不解释，在法律之下，你们自己如果觉得心安了，你们可以把这个代理词撕了。因为，它已经不会起任何作用了。我记得有一本古书上写了“伸冤在我，我必报应”。如果法律都失灵了，民间能信的或许只有这个了！

多谢包涵！后会有期！

此致

钱顺南的代理人： 斯伟江

2011年3月8日

Send a Postcard to Elder Qian

【24】给乐清拜年

@围客中国：[给乐清拜年]公民微行动之一
寄一张明信片给钱云会81岁的老父亲 转发就是关注，
寄出就是力量！快过年了，抽一点时间，寄一张明信片到乐清吧！
这是一个微小的善举，却能温暖老人冰凉的心窝！

地址：浙江省乐清市蒲歧镇寨桥村；收信人：钱顺南；邮编：325609

As it is approaching the lunar calendar of the traditional Chinese New Year, consider sending a post card to the old father of late Qian Yunhui, who was brutally executed by the police one month ago in Yueqing, Zhejiang Province. Qian was the elected head of village Zhaiqiao. Because Qian led protest against taking villagers land without proper compensation, the local government chopped his head off with a heavy duty engineering truck at the entrance of the village in bright daylight, with villagers and travelers on the watch. Four police beat Qian, then hold his head down on the path a slow rolling wheel of the truck. When the accident caught national media attention, the government insisted it was an accident.

Qian's old father told reporters, at the moment Qian took the job six years ago, he knew Qian would be killed.

The postal address:

Mr. Qian Shunnan
Zhaiqiao Village
Puqi Town,
Yueqing City,
Zhejiang Province
China, 325609

Qian Yunhui Murdered, An Investigative Report

Liu Jianfeng, a reporter of the China Economic Timespublished his investigative report of the Qian Yunhui murder case. Liu interviewed key witnesses and collected solid evidence to dispute the official conclusion of 'traffic accident'. Liu's report pointed Qian was killed by uniformed police, and Liu had solicited witnesses to come forward. The report revealed:

1- The time of the case published by the police was wrong. The homicide happened at 9:30-9:33, instead of 9:45 as claimed by police;

2- The engineering truck was not traveling en route to a construction site as claimed by the police. Instead, it was identified parked at 5 meters away from the place Qian was crushed at 9:25;

3- The Deputy mayor of the town was at the scene issuing orders;

4- Qian's cell phone record was fixed by the police, the last call records were manually deleted after Qian's death;

More Evidence Surface for the Yueqing Slain Village Chief

While governments of Yueqing County and Wenzhou City (upper authority) stand by the 'traffic accident' decision, more evidence surfaced to point the case to a murder/execution by government officials.

1) The surveillance camera. There is a surveillance camera which belongs to the China Telecommunication Company, a state wireless communication carrier, oversees the scene of the accident. The police initially stated the camera was not capable of video recording, but only browsing in real-time. However, people found a video clip published by the police of the scene was taken from that particular camera. Then the police said that camera was calibrated less than 24 hours ago, and was set to be in browsing-only mode until 10:00 am on Dec 25, 2010, which was minutes after the accident.

2) Police still refused to release pictures and videos showing the truck traveling from the engineering site to the accident scene to counter witnesses' claim that the truck had been idling at the scene before Mr. Qian was inserted under the wheel by four uniformed policemen. Police had since arrested anyone who claimed to have seen the accident, along with their family members, sons, daughters, son-laws, etc. Journalists were denied access to these people and their families.

3) Qian told his family that the government was going to hurt him. As a matter of fact, he had been in hiding for the 2 nights prior to 12/25/2010. In both nights of 12/23 and 12/24, he left home to hide in undisclosed friends' places and returned to home after daybreak. In the morning of 12/25/2010, he took a phone call, then told his family he had to go out immediately. His family believed the call was from a deputy town mayor, who was seen by many witnesses to have instructed the public execution at the scene. Police said the call was from his friend, Mr. Wang, instead of the deputy mayor. Police had arrested Mr. Wang along with his family members, and denied journalists access.

Almost as if a calculated move, another villager was crushed to death by an engineering vehicle in Henan yesterday. This time the heavy duty machine went ahead to crush a 40 years woman who stood on its path, in the watching of more than 100 government officials, police, and almost as many villagers. The news anchor of the Henan provincial TV Station did not try to cover his anger when he blamed the officials as standing by and cheering after the woman was crushed. The video also showed a local official as quoting him, 'it's not enough to crush only a couple of villagers. The people will be educated after a dozen'. This video, aired in a miracle in China, and had been spreading like wild fire on the Internet was promptly silenced. However, copies still living on foreign video hosts such as youtube.

Road Accident: Premeditated Murder or Public Execution?

With a new video, the dusts have settled down and what left for debate is: whether the 'traffic accident', as described by the police, is a premeditated murder as suspected by the victim's fellow villagers, or a public execution as demonstrated by the evidence?

Mr. Qian Yunhui is the head of a small village of 2,500 people in Yueqing, Zhejiang Province. About 20 acres land of the village was taken to build a power plant. Villagers learned that the land compensation grant was intercepted by local government. Qian vowed to get villager's money back by legal process and petitions to higher government. In the past 6 years, Qing was thrown to jail three times, and served a two years sentence for speaking for his villagers.

Tuesday morning, Qian received a call from the deputy mayor of town government, and left home in a hurry. Moments later, he was found dead under the wheel of an engineering truck. The official edition of the story is: Qian crossed the highway without watching carefully. The truck driver saw him too late, and compounded by the weather condition, failed to stop the truck.

A role in the CIS said, every body has a story to tell. Qian's body laid in an odd posture. The only wound on Qian was his neck, which was severed with the detached head still looks as if connected to the torso by the wheel. His body looks like knee-ed down to insert the head beneath the wheel.

According to witnesses, there were more than 10 security guards on the scene when 'the accident' happened. Four uniformed men inserted Qian under the waiting truck. The deputy mayor observed the process from a white government sedan. The uniformed men and the sedan left the scene shortly after. Within minutes, hundreds of riot police descended to the scene and started beating all witnesses.

The incident got media attention because Qian posted a detailed description of the dispute between the villagers and local government on Tianya, the most popular Internet site, six months ago. The post attracted little attention until some made the connection between the post and Qian's death. Despite mounting suspicious evidence and questioning from the media and Netizens, the Yueqing (county-level) government insisted the finding of 'traffic accident', and the higher up Wenzhou government confirmed the conclusion.

While the incident continued fomenting online, police detained all witnesses and had them retracted their testimonies. Police also confiscated any video recording equipment held by villagers. All villagers found at home were 'invited' to the police station for collaboration in the investigation. They would not be sent back home until signing a statement acknowledging the government's official story. The old generation vowed to resist, while most younger generations fled to friends and relatives.

A high qualify cell phone video was uploaded to the Internet on Thursday. Although the original clip was promptly removed, numerous copies survived on foreign video hosting sites such as youtube and videobeam. The video was taken only minutes after the accidents happened, before the arrival of riot police force. The video clearly showed the truck was in an unreasonable location relative to the road: off-road on the left side. It also showed the land beneath the truck was dry while it was raining. There was no 20 feet braking line as the police claimed, but a 5 feet print of path with clear tire patterns. It proved the truck was waiting at the scene to strike Qian. Also, the photo produced by the police in the government news press was proved to be faked because the official photo showed braking lines and scratches on the front bumper. None was present in the video.

As of the time of writing, police detained Qian's brother, sister in law, son, daughter in law, as well as all witnesses who had talked to media.

The new video did not contain the moment of the incident. However, it proved police faked evidence to make up the official story, and it is compatible to description portraited by witnesses.

The scene is covered by a surveillance video camera. The latest examination of that particular camera was only two days ago when it showed working normally. The government initially claimed the video camera was nonfunctional at the time, then claimed the camera was not capable of recording. A telecommunication engineer, also a Netizen, revealed that model of video system by default stream all video to a centralized file server to be stored for later discovery. Furthermore, the police presented a footage of the scene recorded from that camera about 2 hours after the accident took place in the news press. Also, according to the government's edition, the truck was on route from an adjacent village to a working site. Netizens challenged the government to release footage from the traffic cameras, altogether 24 in the described path, to show the truck had been moving instead of waiting at the scene in the 30 minutes prior to the accident. The government refused the request, citing security reasons.

It is perceived the police and the government was not interested in seriously covering up the incident. Instead, the regime is setting up an example for anyone dare to challenge the communists authority.

Xi Jinping, the next 'core' to succeed Hu Jintao in 2012, was the governor of Zhejiang Province. It is suspected that Xi had a role in the accident.