Fri, Sep 22, 2000 page12

• Lessons from the Lee Wen-ho

  • By Brian Kennedy 甘迺迪
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  The recent resolution of the Lee Wen-ho (李文和) case in the US provides a number of valuable lessons for prosecutors in Taiwan.

  The case was closely followed by the local media due to the fact that the defendant, Lee, was a Taiwanese American who had achieved success in America. Much of the local coverage focused on the alleged racist motives underlying his prosecution.

  But that, whether it is true or not, is not the most important lesson the Taiwanese public should draw from the case. The case has several lessons that are more directly relevant to local prosecutors and by extension the local public.

  Taiwanese prosecutors have been subject to criticism lately due to their prosecution of various cases in the campaign against "black gold" politics.

  On several occasions Taiwanese prosecutors have been accused of being overly zealous in their pursuit of "black gold" cases. A major example of this being the search of the legislative offices.

  Although the Lee case was a very different type of prosecution from the "black gold" prosecutions, the case still reveals valuable insights.

  The bottom line on the Lee case was that under plea bargain, Lee pleaded guilty to a single felony count. The prosecution dismissed the other 58 counts in the indictment.

  Just one day earlier to agreeing to this plea bargain the Federal prosecutors had still maintained that Lee was a grave risk to US security and that bail should be denied.

  There is another event that should be kept in mind. On Aug. 17 FBI agent Robert Messier admitted during the bail hearing that he gave false testimony in December when Lee was ordered to be held without bail.

  The first lesson for Taiwanese prosecutors is that you never want to hear something like this from a High Court Judge. These comments were made at the final hearing, where defendant Lee entered his plea and was released. The Federal judge said: "The Executive Branch has enormous power, the abuse of which can be devastating to our citizens. Dr Lee, I tell you with great sadness that I feel I was led astray last December by the Department of Justice, by its Federal Bureau of Investigation and by its United States Attorney. They did not embarrass me alone. They have embarrassed our entire nation and each of us who is a citizen of it. As a member of the Judiciary, the United States Courts, I sincerely apologize to you, Dr Lee, for the unfair manner you were held in custody."

  Those are words that no prosecutor wants to hear, no prosecutor should hear, be they American or Taiwanese.

  Which brings forth the first lesson for prosecutors. It is a very simple one -- don't lie and don't stand by while your agents lie. To put it in technical terms, don't commit perjury nor suborn perjury.

  On the face of it that would seem like not much of a lesson. The public perhaps assumes that Taiwanese prosecutors would never lie in court or knowingly allow police to lie in court. Such public confidence is perhaps misplaced.

  Unlike American prosecutors, Taiwanese prosecutors are not bound by a Canon of Ethics and legal ethics gets very "short shrift" in Taiwan's law schools. Police perjury and prosecutor subornation of perjury is a long standing problem both here and in America.

  The lesson of the Lee case is that such practices cause the public to loose what little faith they may have in the criminal justice system as well as destroying the lives of defendants wrongly accused through such prosecutor-police perjury.

  A related lesson is that the ends do not justify the means. The American prosecutors in the Lee case perhaps assumed that since national security was at stake, a little "bending" of the truth was somehow justified.

  Likewise, local prosecutors might start to assume that, given the high priority of "black gold" prosecutions, a little "bending" of the truth in those cases was somehow justified. It is not.

  Simply put, the ends, however noble, do not justify the means of lying. This first lesson is fairly straightforward.

  The second major lesson is less straightforward.

  It involves the balance between zealousness versus laziness in prosecutions.

  Prosecutors, be they American or Taiwanese, face a kind of Scylla and Charybdis.

  On the one hand if they are too cautious or too careful in their investigations and the investigations drag out, the public accuses them of being lazy, "do-nothing" civil servants. On the other hand, if they move quickly and decisively the public often accuses them of being heavy-handed storm troopers.

  The balance between zealousness and caution is one of the biggest challenges facing any prosecutor.

  This problem came out in the Lee case in that if the American prosecutors had failed to prosecute the case they would have been accused of laziness or incompetence or both. For their over-zealousness, however, they are now publicly accused of being a racist goon squad, to put it in American police slang.

  This prosecutorial balance is not subject to a "rule" or a "formula." Rather it is a matter of judgement based on experience. Given the bureaucratic nature of the prosecutor's offices here in Taiwan, it is difficult, if not impossible, to develop the mature, independent judgement that allows prosecutors to find this "golden mean" between over-zealousness and excessive caution.

  There is no simple solution to this problem.

  But the public does need to be aware of it and realize that, until this broad issue is addressed, local prosecutors will tend, as they have in the "black gold" prosecutions to bounce back and forth between doing nothing and doing too much, too quick.

  These are the lessons of the Lee case.

  Brian Kennedy is a member of the board of Amnesty International Taiwan and the Taiwan Association for Human Rights.
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