Jerome A. Cohen, Ma Ying-jeou's Mentor, Again Highlights the Erosion of Justice in Taiwan

Sunday April 26, by Jerome F. Keating Ph.D.

In a recent South China Morning Post article ("Lesson in Integrity for All", April 18, 2009) http://www.cfr.org/publication/19148/ , Jerome A. Cohen, Adjunct Senior Fellow for Asia Studies nailed it once again. In November 2008, Cohen, President Ma Ying-jeou's former mentor at Harvard, had questioned the neutrality of Taiwan's judiciary. Now he has come out stronger pointing to the continuing erosion of justice in Taiwan. In his article, Cohen used the corruption case of US Senator Ted Stevens as an example with "profound implications for efforts on both sides of the Taiwan Strait to stamp out corruption while fostering a rule of law based on the adversarial system of criminal justice." It is an example he feels Taiwan should heed.

The following paragraphs from Cohen's article are quoted at length.

In recent years, Taiwan has made great strides in adapting the Anglo-American adversarial trial, minus the jury, to local conditions, and the mainland has been slowly moving in that direction, at least in principle. The adversarial system is based on equal combat between prosecutors and defense counsel before a neutral court. Their combat is governed by rules designed to promote fairness and accuracy.

One rule required by the US Constitution since the Supreme Court's 1963 Brady decision is that the prosecution, which generally has more resources for gathering evidence than the defense, must turn over to the defense information in its possession that is likely to benefit the defense. Although the degree of transparency required by this rule is subject to debate, withholding significant evidence is a major ethical breach that can result in setting aside a conviction.

This is what just happened in United States vs. Stevens, a case that had been brought by the Public Integrity Section of the Department of Justice (DOJ) under President George W. Bush's administration, which handles official corruption prosecutions. It was tried, at Senator Stevens' request, shortly before last November's federal election, and his conviction may well have caused his defeat in a close contest.

Several times during the trial, Judge Emmet Sullivan, prompted by dynamic defense counsel, reprimanded prosecutors for withholding evidence, and sought to remedy any damage to the defense. However, in February, a new prosecution team selected to work on the case by President Barack Obama's new attorney general, Eric Holder, discovered yet another failure by its predecessors to reveal evidence - evidence that would have undermined the credibility of the government's key witness. At that point, Mr. Holder, who had served in the Public Integrity Section decades ago, asked the court to void the conviction and announced that all charges against Senator Stevens would be dropped.

Judge Sullivan, formerly a successful trial lawyer, not only complied with the government's request but, after excoriating the DOJ's handling of the case, took the extraordinary step of appointing an independent lawyer to serve as special prosecutor to investigate whether six of the prosecutors should be held in criminal contempt of court for their repeated, and admitted, mistakes. Although the DOJ had already asked its Office of Professional Responsibility to investigate the misconduct, the judge's loss of confidence in the integrity of the Public Integrity Section led him to insist on an independent investigation.

Why is this story relevant to the mainland and Taiwan? It illustrates one of the worst dangers of prosecution in every country. It also shows two of the safeguards that the adversarial system maintains against this danger. First, able defense lawyers had full access to their client, who was not detained pending trial, and they had the freedom and funds to conduct their own investigation and pursue aggressive courtroom challenges.

Second, an experienced judge had the independence and confidence to denounce the misconduct of a public integrity section that had failed to live up to its name.

The case also illustrates the importance of having a justice department chief courageous enough to repudiate his staff's misconduct, replace the offending prosecutors, initiate an investigation and drop the charges. (end quote)

This for Cohen is Taiwan's challenge as well as its source of problems as it evolves from the one-party state of the Chinese Nationalist Party (KMT). It is particularly evident in the corruption case of former opposition President Chen Shui-bian. My posting below of February 24, 2009 stressed how it would be impossible for Chen to get a fair trial in Taiwan. That still holds. Contrast Cohen's points on the proper processing of justice with what has happened in Taiwan.

Point 1. The prosecutors while taking on the role of state advocates should nevertheless conform to ethics and standards of fairness. In Taiwan, the prosecutors of Chen Shui-bian swore that they would resign if they did not find him guilty. Instead of swearing to find the truth of the situation, they had their minds made up before the trial.

Point 2. The Minister of Justice should also operate with the highest ethical and professional standards. In Taiwan, the prosecutors openly mocked the former President as guilty in an unprofessional skit at a party which was attended by members of the judiciary. Instead of reprimanding these prosecutors, the Minister of Justice tried to laugh it off and excuse it as "just in fun."

Point 3. The judiciary should keep over-zealous prosecutors in check. In Taiwan, the original judge on Chen Shui-bian's case had twice ruled that the prosecutors could not hold Chen Shui-bian in jail before the trial began. What happened? The prosecutors requested and got a new judge who would grant their request - a request that would later be ruled unconstitutional. Is the prosecutorial tail wagging the judicial dog in Taiwan?

Point 4. The judiciary should protect all elements of justice and fair trial. In Taiwan, after it was ruled that the holding of Chen Shui-bian in jail was unconstitutional, the newly appointed judge still allowed this jailing to proceed because the "unconstitutional ruling" would not go into effect months later on May 1st.

Point 5. Up until that ruling, the prosecutors had also insisted on being able to listen to and record all conversations between Chen and his lawyers; they basically wanted the right to eavesdrop on attorney/client privilege and know any and all strategies of the defendant before the trial.

Thus we see in Taiwan that instead of having the prosecutors and defense counsel arguing before a neutral court, which Cohen presents as the norm, we have

1. the defense being denied full access to their client; a judge not denouncing but more collaborating with the prosecutors and a Minister of Justice not repudiating staff for violations but condoning them.

Ma's mentor must be wondering what has happened to his former student once he got power.