March 14, 2007 TRIAL: First Hearing

The following details the first proceedings of Dr. Shieh's trial.  This first meeting functions like a pretrial, where the judge calls all the defendants, lawyers and prosecutors together to discuss the charges, witnesses, evidence and all issues relating to the trial.

In this case, the 25-member group constituting the defendants and their lawyers gathered in the Tainan court to address the charges that had been brought against them--clearly expressing their puzzlement and indignation.  The result of the meeting is almost humorous--the new prosecutor himself had to struggle to make head and tail of the indictment document!

March 14, 2007: TRIAL BEGINS
Preliminary Hearing
Tainan, Taiwan

At exactly 10 am, the 10 defendants, their 15 attorneys and several family members packed into a small courtroom.  Judge Ho, a friendly man in his forties, tried to make everybody in the courtroom comfortable, speaking in a soft tone.  The trial was then formally called into session.  Sitting at the table to the left of Judge Ho were a prosecutor and two investigators.  Although the three chairs at the table are reserved only for prosecutors, the investigators, who were merely assistants to the prosecutor, decided to take their seats at these chairs.  At the table to the right were two chairs for the attorneys representing the defendants. Because of the limited space, the rest of the attorneys had to sit behind the defendants with the family members of the accused.
Before the proceedings began, the prosecutor requested to distribute an “addendum” to the original indictment document that was issued on December 25, 2006. Every attorney was handed a copy of the so-called addendum.  The lawyers quickly realized that the addendum was actually a new version of the indictment paper.  The lawyers then motioned to the court that a revised indictment may contain new evidence and that the document would require time for study.  They asked that the hearing be rescheduled.  The prosecutor then argued that the changes involved only minor corrections to typographical errors and did not contain any new charges or evidence.  The judge, reluctant to reschedule the hearing, asked the prosecutor to explain the changes.  During the explanation, it became clear that the prosecutor discovered some inconsistencies and even changed parts of the original story so that their facts and dateswould match up.
The prosecutor was then asked to present the facts and evidence of crimes committed by accused.  The prosecutor started to read the text of the new indictment paper, mumbling under his breath.  After five minutes, he had only finished the first page of the 24-page document.  The judge then asked him to stop and simply state the crimes committed.  The prosecutor then stated that the nine evaluators, all defendants in addition to the contractor, were charged with favoritism.  In addition, Dr. Ching Shieh of National Science Council was charged with the additional crime of revealing non-defense secrets to the contractor.  The contractor was charged with taking unlawful profits from a government project and violating corporate law.

The purpose of this first hearing was to define the trial procedure.  The criminal facts needed to be clarified, the evidence validated, a witness list for cross-examination compiled, and the court procedure must outlined. The judge, however, also wanted to listen to the defendants and their attorneys briefly describe their case.  The lawyers saw this as a golden opportunity to impress judge with their side of the story and hopefully neutralize any possible bias against the defendants.  The major points of this discussion are summarized as follows:

1. The 9 accused evaluators only participated in the first phase of the bidding where they identified a feasible concept and methodology that could reduce the vibrations caused by the high-speed rail. The award for the first phase was 35 million NT for the winner and 25 million NT for the runner-up.  In the indictment, however, the prosecutor focused on a 3.4 billion NT unlawful profit collected by the contractor. This profit, however, related to a price that was determined in the second phase of the acquisition process, in which the 9 nine evaluators had no role. 
2. The evaluators are professors and professionals that are experts in various areas related to engineering and law.  They were asked to assist the National Science Council in picking the best methodology based on their specialized expertise.  They made their decision independently and without bias, based solely on their professional experience.  Ironically, the true decision makers, including the Minister of the National Science Council as well as the Prime Minister of Taiwan, who signed all the papers and approved the project, were not indicted.
3. The law requires that the prosecutor provide an indictment document that clearly states which pieces of evidence support the charges against each defendant.  The 24-page indictment document, however, contained more than 10,000 words that ramble in a stream-of-consciousness, blending conjecture with evidence, accusations, and legal citations.  The defendants could not decipher what evidence and facts were the bases for which charges. 
4. The prosecutor cited Acquisition Regulation No. 34 out of context. Specifically, they quoted only the first half of the law, which stated that the documents generated during the project-bidding phase were all secret and that the release of these documents therefore constitutes a crime.  What they omitted, however, was the second section of Regulation 34 which indicated that this rule does not apply in the cases where the government is soliciting suggestions from the bidder. One of the lawyers stated that the prosecutor omitted this section deliberately and accused the prosecutor of “cheating” by intentionally misleading the legal system.  Although the judge acknowledged the issue, he asked the lawyer to tone down his language and refrain from using the word “cheat.”
5. Chung-Hwa Engineering Consulting Firm was contracted to negotiate pricing and contracting, and ensure that acquisition regulations were properly followed.  Mr. Chou and Mr. Lin of Chung-Hwa Engineering were not indicted because the prosecutor decided that there was insufficient evidence of misconduct in application of law and regulations for acquisition.  The nine evaluators, however, were indicted for not conforming to acquisition laws, a job that was explicitly assigned to Chung-Hwa Engineering. Furthermore, the basis of the indictment is a 3.4 billion NT “unlawful profit,” which is related the price of the project.  Pricing, however, was negotiated by Chung-Hwa Engineering Consulting Firm during the second phase of the acquisition process; the defendants had nothing at all to do with pricing.
6. The prosecutors have applied anti-corruption laws to the referees, most of whom are professors, consultants, and other professionals.  Since anti-corruption laws are designed and meant explicitly for public officials, their application to the referees is inappropriate.
7. In the text of the indictment document, “Deputy Minister Shieh decided not to take lawyer X’s or Mr. Y’s advice” appeared many times, which according to the prosecutor, was “inappropriate.” The indictment document the uses the terms “inappropriate” and “illegal” interchangeably to suggest that Deputy Minister Shieh’s actions and decisions were illegal.  In the world of management and politics, everyone has advice that is based on their own biases; not taking someone’s advice, in and of itself, is not illegal because public officials must exercise “administrative discretion” when they hear so many suggestions.
8. The indictment document tried to suggest that Dr. Shieh and Mr. Sheu were “acquaintances,” and therefore they must be “co-conspirators.”  Obviously, one relationship should not automatically imply the other.
9. The attorneys requested that, for the sake of legally protecting the rights of the accused, the prosecutor revise the indictment document in a way that the defendants’ charges could be clearly linked to the evidence provided. 
After the two and a half hour discussion, the judge accepted the lawyers’ request.  He ruled that the prosecutor’s office should re-organize the indictment document and provide adequate, visible facts for the crimes charged; he went on to state that mixing facts with evidence and laws was “not a traditional way of writing and indictment document,” euphemistically suggesting that the prosecutors’ indictment document was substandard.
At this point, one of the two assistants was still sitting at the prosecutor’s table.  One of the lawyers then pointed out that the prosecutor’s bench is reserved for prosecutors (who are in full legal uniform).  The lawyer requested that the assistant remove himself from the prosecutor’s bench to conform to legal regulations.  The judge agreed and politely asked the investigator to leave the prosecutor’s bench.  Somewhat embarrassed, the assistant reluctantly left his seat.
After three hours, the trial was adjourned.  The judge stated that he would schedule another trial once he finished reading the responses from the ten defendants. This would also give the prosecutor time to revise the indictment document.