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at the trial of a major homicide case, the defendant and the defense counsel were collectively "silent", but the prosecution and judges insisted on moving forward with the trial.

recently, the retrial of the "yihe corpse case" in shandong was held again, but it was mired in controversy due to procedural issues such as jurisdiction, recusation, and exclusion. it is reported that in order to call for a trial in a different place, the defendant refused to cooperate with the trial process, and the defense lawyer also adopted a "silent defense", which aroused concern.

schematic diagram of the crime process of drowning a corpse (produced by li jianan of beijing youth daily)

this murder and body dumping case has not been settled for nearly seven years. on the evening of november 1, 2017, 50-year-old su qingchun was murdered in yulin village, yinan county, and his body was later dumped in the yi river. su jifeng and su xiaofeng, both in their 70s, were identified as suspects by the police because they were at the scene of the crime at the time. they were later transferred for investigation and prosecution for intentional homicide.

the public prosecutor alleged that su jifeng and su xiaofeng went to su qingchun's net cage to steal fish, and su qingchun discovered and insulted them. su jifeng then took advantage of su qingchun's unpreparedness and hit him on the head with a wooden stick, causing him to die of severe craniocerebral injury. afterwards, the two sank su qingchun's body into the yi river. in august 2019, the linyi intermediate people's court sentenced su jifeng and su xiaofeng to death and life imprisonment respectively. both appealed.

according to previous media reports, during the court trial, the two defendants changed their confessions in court, claiming that they were tortured. the case also triggered fierce confrontations between the prosecution and the defense due to issues such as the lack of tools used to commit the crime, whether the defendants had the time to commit the crime, and whether the case was solved by "prison detectives". in october 2022, the shandong provincial high court ruled to revoke the original criminal judgment on the grounds that the original judgment found the facts unclear and the evidence insufficient, and sent it back to the linyi intermediate court for retrial.

on september 3, the case was retried by the linyi intermediate court. at the beginning of the trial, it was revealed that the defendants were injured by violent dragging. according to people at the scene, the two defendants refused to cooperate in appearing in court and repeatedly requested that the presiding judge and prosecutor of the case recuse themselves and transfer the case to a judicial authority outside linyi. the four defense lawyers also raised objections to the jurisdiction in court, saying that "it is impossible for the linyi intermediate court to hear this case impartially, and continuing the trial is just a show."

the author learned that the defense counsel had submitted a "jurisdiction objection application" to the court, requesting the shandong provincial high court to upgrade the jurisdiction of the case, or to instruct an intermediate court outside linyi city to exercise jurisdiction. the defense counsel believed that the original first-instance judgment was discussed and decided by the linyi intermediate court review committee, so all judges of the linyi intermediate court should recuse themselves from the retrial process, and the linyi intermediate court should not continue to exercise jurisdiction.

the jurisdiction dispute over the "yihe corpse drowned case" has brought up a long-standing controversial topic in the criminal justice field: can a case decided by the review committee be sent back to the original court for retrial?

in this regard, zhang lei, a lawyer at beijing tongling zhenghan law firm, wrote that cases decided by the review committee should be transferred to other jurisdictions after being sent back for retrial.

zhang lei analyzed that the criminal procedure law stipulates that a new collegial panel should be formed for the trial organization of a case sent back for retrial, but does not stipulate that a new trial committee should be formed. he believes that the current legislation is negligent in the issue of the recusation of members of the trial committee after the case is sent back for retrial. "the text of the law only stipulates that 'a new collegial panel should be formed', but the spirit of the law is that the judge needs to be 'replaced'. when the judge is the trial committee, then replacing the trial committee is of course the true meaning of the law."

"if the original trial committee that made the decision still makes the decision again during the retrial, it will substantially undermine the principle of recusation of the trial organization that should be replaced when the case is remanded for retrial." zhang lei therefore proposed that during the fourth revision of the criminal procedure law, "when a case decided by the trial committee is remanded for retrial, the higher court should simultaneously designate other lower people's courts to have jurisdiction" should be added. "after such a provision, the recusation system of criminal trials will fill the loopholes and be further improved."

regarding the above issues, wang qiwen, a lawyer at shanghai allbright law firm, once wrote that after the original court's review committee discussed and decided on the case, the original court lost its jurisdiction over the case again, and the second instance should not be sent back to the original court for retrial.

wang qiwen believes that if the case is discussed and decided by the trial committee and sent back to the original court for retrial, the judges of the court may find it difficult to ensure a fair trial. according to the criminal procedure law, all judges who may affect the fair handling of the case should recuse themselves from the trial of the case. "if all the judges recuse themselves, how can the court still hear the case and what jurisdiction can it have?"

wang qiwen also said that if the case decided by the review committee is sent back to the original court for retrial, the case will be deprived of the right to be discussed and decided by the review committee again, and there is a possibility of judgment before trial, "making the case lose the possibility of innocence."

in this regard, similar calls have existed within the judicial system many years ago.

wang qiwen discovered that in 2013, relevant personnel from the dengzhou municipal court published an article on the official website of the henan provincial high court stating that "for cases discussed and decided by the first-instance court after review committee, the second-instance court can uphold the original verdict, change the verdict, or even instruct other courts of the same level as the original court to hear the case, but it cannot send the case back to the original court for retrial." however, the author found that the relevant website has now removed the article.

in addition, the xin county court of henan province published a statement on its official website in 2015, suggesting that when cases decided by the review committee are sent back for retrial, they can be sent to other courts of the same level for trial.

the author of the article, chen jiayong, analyzed that the cases decided by the court's review committee meeting can be said to be the opinions of the highest trial organization of the court, representing the crystallization of the collective will of the court. "if a case is discussed by the review committee, and the parties appeal to the intermediate court, but the intermediate court still sends it back to the original court for trial, it means that the judgment made by the highest trial organization of the court after collective discussion is problematic. at this time, the original court should recuse itself. otherwise, it cannot guarantee the fair trial of the case from a procedural perspective, nor can it guarantee that the case will not be interfered with by the original trial of this court. it is obviously unreasonable to send it back to the original court for retrial."

the author learned that on september 4, the defense's objection to jurisdiction and recusation application were rejected by the court. people who participated in the trial revealed that the reason for the court's rejection of the objection to jurisdiction was: "the crime took place in linyi city, and the shandong high court sent the case back to the linyi intermediate people's court for retrial."

in response, the defense told the court, "in view of the defendant's firm request for the linyi intermediate court to recuse itself as a whole and to transfer the case to other courts for trial, the linyi intermediate court turned a blind eye and a deaf ear to all procedural issues, and the defendant also refused to answer questions in this case. the defense has decided to respect the wishes of the parties and will no longer comment on the facts and evidence."

"refusing to express an opinion and having no objection are two completely different things." a defense lawyer publicly stated that the defendant and his family had agreed to the defense strategy. "it's not that we are unwilling to perform our duties, but they have violated the law every day along the way, and they didn't even give us a copy of the court transcript. we are desperate and so we defended like this. in death penalty cases, in the first instance, the judgment is made before the trial. you can do whatever you want. we won't accompany you (the court and the procuratorate) to go through the formalities seriously."