Case of the Week | Three not guilty pleas finally result in a decision not to prosecute

Lou Yuguang, Lawyer: Senior Partner, Deputy Director of the Management Committee, Director of the Criminal Business Department, Deputy Director of the Criminal Procedure Law Professional Committee of the Municipal Lawyers Association, Deputy Director of Hangzhou Hangtianxin Public Legal Service Center

During his practice, Lawyer Lou Yuguang has always adhered to the concept of professional development, been loyal to the facts and the law, enthusiastic about public welfare undertakings, served the people with his profession, pursued fairness and justice, and with his solid foundation in legal theory, enterprising spirit, and positive and responsible work attitude, he has successfully handled a series of influential criminal defense cases and public welfare cases, winning praise from clients and social recognition.

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Telephone: 13958151166 Email: louyuguang@htxls.com

Three times of not pleading guilty finally resulted in a decision of no prosecution

【Case Details】

During the investigation stage, he insisted on not pleading guilty with the condition of bail; during the review and prosecution stage, he insisted on not pleading guilty with the condition of probation; during the review and prosecution stage, he insisted on not pleading guilty with the condition of exemption from punishment; finally resulting in a decision of no prosecution by the public prosecution organs— W A case of no prosecution for suspected abuse of power

【 Case Summary 】

The suspect W was a grassroots police officer in a certain city. On 2020 year 4 month 21 day, he was criminally detained by the municipal procuratorate. On 5 month 8 day of the same year, he was legally arrested with the approval of the provincial procuratorate. On 7 month 7 day of the same year, he was transferred for prosecution. On 8 month 28 day of the same year, the public prosecution organ made a decision of no prosecution.

The facts alleged by the investigating organ were that on 2017 year 10 month 27 evening of KTV unreasonably damaged 3 items in a private room, including a television, marble coffee table top, microphone, and ashtray. KTV The owner, Zheng Moumou, called the police at 23 time 49 minutes on the same evening. Police officer Pan Moumou from a certain city’s police station arrived at the scene at 110 minutes, understood the situation from the relevant personnel, took photos of the scene, and then took Lin Mou and 23 time 51 manager Fu Mou back to the police station, and handed over the crime scene photos and police video to the investigating police officer, who is the defendant in this case, KTV Mou. W After accepting the police report, Mou violated the law and exceeded his authority. He did not investigate the case or register the case, and without clarifying the facts of the case, he directly organized the parties to mediate and close the case. W In 2018 year 6 month, the Public Security Bureau of a certain city discovered that the fact was suspected of criminal offences during the investigation of police reports on the crackdown on evil, and launched an investigation on 2018 year 8 month 16 day, but because some of the damaged items lacked physical objects and could not be identified by model, only the 6 marble coffee table top was appraised at a price of 2000 yuan. After trial, the People’s Court of a certain city determined that the actions of Chen Moumou, Lin Mou, Chen Mou, and He Mou constituted the crime of provoking trouble and sentenced them to fixed-term imprisonment of eight months to one year, respectively. It was also determined that Chen Moumou was the principal offender of an evil crime group. After this crime of provoking trouble, the evil crime group successively gathered others to commit 6 incidents of provoking trouble and 2 incidents of group fighting crimes. The members of the criminal group were sentenced to fixed-term imprisonment ranging from one year to eight years and six months. Chen Mou committed another crime of gambling after the crime of provoking trouble and was sentenced to one year of fixed-term imprisonment. The investigating organ believed that W Mou, as a judicial worker, violated laws and regulations and exceeded his authority after receiving the police report; he did not conduct any investigation; without ascertaining the facts of the case, he handled the case that should not have been mediated through mediation, causing serious social impact. Therefore, he was transferred for prosecution on the charge of abuse of power.

In addition, 2019 year 7 month, W the Supervisory Committee of a certain city issued a decision of demotion for Mou for suspected violation of duty.

【Criminal Defense Strategy】

The defense lawyer formally accepted the commission from Mou’s family after W Mou’s arrest, and W to defend W Mou. W At this time, Mou had already made many transcripts. Even for a grassroots police officer, the mental pressure after arrest is enormous.

The defense lawyer immediately went to a certain city to submit the documents and met with W Mou. They understood the basic situation in this case and Mou’s expectations for the defense effect: to be acquitted and to continue to engage in his beloved work. Because the client expressed the hope of acquittal, the defense lawyer repeatedly confirmed the client’s determination to be acquitted during the meeting and confirmed W the scope of Mou’s involvement in the case and W fully exchanged views on Mou’s wish for acquittal.

In the period nearing the transfer of prosecution, the investigating organ interrogated Mou many times and asked W Mou to make a confession during the investigation stage. They also explicitly told W Mou that if he confessed, he could be released on bail immediately. At this time, W Mou’s determination began to waver, and for some well-known reasons, he felt that if he confessed during the investigation stage, it would be more advantageous. W Mou’s determination began to waver, and for some well-known reasons, he felt that if he confessed during the investigation stage, it would be more advantageous.

During several meetings before the transfer for prosecution, the defense lawyer told W that while pleading guilty at the investigation stage might lead to a change of coercive measures to bail pending trial and lay a foundation for a lighter sentence, once pleading guilty at this stage, the possibility of acquittal would be almost zero, and the investigating agency could not provide a precise sentencing suggestion on the matter of pleading guilty.

The defense lawyer, from a legal perspective, gave W the following analysis:

（ 1 ）The prosecutor's attitude was neutral when applying for a review of the necessity of detention;

（ 2 ）The police officer in this case has been investigated and dealt with by the Discipline Inspection Commission and Supervisory Commission;

（ 3 ） W 's family was firm in their attitude, fully agreeing with and supporting the defense lawyer's suggestion of 'not pleading guilty'.

W After listening to the defense lawyer's analysis and opinions, finally decided not to plead guilty at the investigation stage.

After the case was transferred from the investigation stage to the prosecution stage, the defense lawyer had multiple communications with the prosecutor and submitted a written defense opinion, thoroughly explaining the defense lawyer's opinion that W was innocent. The prosecutor in charge initially suggested a plea bargain for probation, but the defense lawyer disagreed. After several rounds of communication, the prosecutor's office agreed to make a plea bargain for a guilty verdict without punishment, but the defense lawyer continued to insist that the case should be acquitted. After several more rounds of communication, the prosecution finally accepted the defense lawyer's suggestion and did not file a public prosecution with the court.

[Case Result]

1.W 's coercive measures were changed to bail pending trial three days after the transfer for review and prosecution.

2. The procuratorial organ made a decision not to prosecute.

[Analysis]

This case stemmed from a police incident. The police officer's handling of the case has been investigated and dealt with by the Discipline Inspection Commission and Supervisory Commission, and was later investigated by the municipal procuratorate for suspected abuse of power.

The defense lawyer insisted on putting the client's interests first and maintained close communication with the client. Starting from respecting the client's wishes, the defense lawyer analyzed the whole case and provided accurate and feasible suggestions to the client. In this case, by thoroughly understanding the case, the defense lawyer insisted on implementing the principle of not guilty defense at the investigation stage, which led to the prosecution's decision not to prosecute at the prosecution stage, achieving W 's goal of 'not guilty' and preserving W 's job opportunity, achieving a good defense effect.

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