蘇建和案的「最後一場」聽審(The Last-ever Court Hearing of The Hsichih Trio Case)

金暘

It was the first day of the closing arguments and the courtroom was relatively empty. After lengthy speeches by the victims' family member and his attorneys, it was the prosecution's turn to present their closing arguments. They proceeded by trying to impeach Dr. Henry Lee's report, focusing on his conclusion that it would have been impossible for four perpetrators to simultaneously attack and kill the two victims in the tiny bedroom that was the scene of the crime. All this was delivered mostly in a flat accusatory monotone, spoken to computer screens rather than to the panel of judges or the audience. Not once did the prosecution look up at the men they were seeking to condemn to death.
結辯第一天（編按：2012年7月16日），法庭稍嫌冷清。在被害者家屬以及委任律師發表冗長演說後，輪到檢察官結辯。檢察官質疑李昌鈺博士的報告結論，否認「4名兇嫌不可能同時於狹小臥室犯案現場攻擊並殺害2名受害者」這個說法。檢察官質問的語調平板，而且是對著電腦螢幕－－不是對著庭上的法官或旁聽民眾。他一次也沒有抬頭看看被求處死刑的人。

Unspeakable Pain
難以言喻的苦痛
As I sat there listening, my attention shifted to the three men sitting silently at the defendant's bench, all of whom had been living with this case for the past twenty - one years. Even from the back, they seemed weary, shoulders slumped, exhausted by the trial that had gnawed away more than half their lives. In conversations outside the courtroom, these three men told me that they had heard all of the evidence and arguments before -- more times than they probably cared to remember or count. They recalled unspeakable pain from their stay at the Hsichih police station, where they were tortured into false confessions, to the stigma they must still carry with them as convicted death row felons. From the day they were detained for a brutal double murder they did not commit to this present hearing, in a different courtroom
with different prosecutors and different judges, these three men have cycled through the Taiwanese criminal justice system in what seemed to be an infinite loop of flawed evidence, questionable prosecutorial conduct, and endless retrials.
我坐在那聽著，注意力轉到沉默坐在被告席上的三人身上－－他們三人和這個案子糾纏了21年。從背影看來，他們因為這個消耗人生大半的案子而看來疲乏、消沉。在法庭外聊天時，他們三人告訴我，他們已經聽過所有的證據和論告，次數多到都記不起來。他們回憶起在汐止分局難以言喻的苦痛，被折磨到講出不實自白，也想起如影隨形的「死刑犯」污名。他們三人從因為汐止雙人命案被留置警局開始，一直到這次的開庭為止，在不同的法庭面對不同的法官及檢察官，歷經了台灣刑事司法體系中的無限迴圈：有瑕疵的證據、令人質疑的檢察作為，以及永無止境的再審循環。
Detained and on death row for almost twelve years since their initial guilty verdict and death sentence by the Shilin District Court, the three men were granted
a moment of hope and reprieve in 2003 when a not guilty verdict was issued by the High Court...only to have it later remanded by the Supreme Court. In 2007, a different panel of judges at the High Court reinstated their guilty verdicts and death penalties but, in a move
that could only be explained by extrajudicial political considerations, declined to detain them, instead allowing three ostensibly guilty murderers to walk out of the courtroom and back into society. The questions about that decision have already been asked, so I will refrain from going through them once more. In 2010, on remand again from the Supreme Court, the High Court delivered a second not-guilty verdict, which was once again remanded by the Supreme Court. I trust the history of the Hsichih Trio case is familiar to most Taiwanese at this point and so I will not dwell on it. Throughout these court hearings that I have attended and observed, it was never far from my mind the fact that, should this panel also deliver a not-guilty verdict,
the prosecution would be barred by the Speedy Criminal Trials Act from appealing to the Supreme Court, thereby effectively finalizing the decision. No doubt that thought weighed even heavier and with more hope on the minds of the defendants and their defense attorneys who walked this road with them for so long and with such ironclad dedication.
士林地方法院（譯註一）一審有罪死刑判決後，他們三人遭到羈押待決將近12年。2003年，高等法院無罪判決為他們帶來一線希望，最後卻被最高法院發回。2007年，另一庭的法官重新判決三人有罪死刑，但卻可能因為考量非司法因素，駁回檢方羈押三人的聲請，讓三名名義上的殺人罪犯走出法庭、回歸社會。由於有相當多針對這個決定的討論，我就暫且不論。2010年，最高法院再度發回後，高等法院第二次判決無罪，卻再度被最高法院發回。我想絕大多數的台灣人熟悉蘇建和案，在此不贅述細節。參與旁聽開庭經驗時，我不斷想到，如果這庭法官判決無罪的話，檢方因《刑事妥速審判法》的限制，無法上訴最高法院，案件就會定讞。毫無疑問的，這樣的想法重壓在堅定走過漫漫長路的被告及辯護律師心頭上，而這念頭當然也帶來更多希望。
With these thoughts in mind, I turned my attention back to the prosecutors. Dr. Lee had failed to answer the court's question, they were saying, which had been whether he could conclusively dismiss the possibility of four perpetrators. In fact, Dr. Lee's report contained
two conclusions: 1) given the available space and blood splatter patterns at the crime scene, it would have been impossible for four perpetrators to simultaneously attack the two victims; 2) given the evidence, it was highly likely that a single person (Wang Wen-hsiao, instead of any of the three aforementioned men) committed the crime alone. The prosecution declined to address the second conclusion at all.
想著這樣的可能性，我將注意力轉回檢方身上。檢方表示，李昌鈺博士沒有回答法官的問題，確實排除四人犯案的可能性。事實上，李昌鈺博士的報告中有兩點結論：第一、依照犯罪現場的空間配置以及血跡噴濺痕跡，不可能四人同時攻擊兩名被害者；第二、依照證據來看，極有可能一人（王文孝，而不是以上三人）獨自犯罪。檢方完全不回應第二點結論。

Responsibility of the Prosecution
檢方的舉證責任
The fact that they took issue with Dr. Lee's formulation of his conclusion highlights, to me, a mindset that retains a presumption of guilt rather than the presumption of innocence that is officially enshrined in Taiwan's Code of Criminal Procedure Article 154. It is the responsibility of the prosecution, who bears the burden of proof, to prove beyond a reasonable doubt that the three men participated in the killing. Both of Dr. Lee's conclusions introduced a strong element of doubt into the prosecution's case and the defense is not required to provide anything more conclusive, such as whether Dr. Lee could definitively rule out the possibility of four perpetrators. If the prosecution cannot persuasively refute the conclusions Dr. Lee actually provided and the more than reasonable doubt they introduced, under the presumption of innocence, they have failed to meet their burden of proof. From what I observed, however, the prosecution did not seem to fully grasp this concept.
就我看來，檢方質疑李昌鈺博士結論，透露出有罪推定的心態，而不是台灣《刑事訴訟法第154條明文規定的「無罪推定」。檢方負有責任舉證，應超越合理懷疑地證明這三人參與殺人。李昌鈺博士的兩點結論讓檢方的論罪出現極大的疑點，辯方也毋須提供更多任何的決定性證據，例如李昌鈺博士是否能夠完全排除四人犯案的可能性。若檢方無法確實反駁李昌鈺博士的結論以及該結論所引發的檢方舉證疑點，依照無罪推定原則，檢方未能盡到舉證的責任。就我的觀察看來，檢方似乎沒有完全掌握這樣的概念。
On the topic of a lack of familiarity with the rigors of the presumption of innocence, the prosecution also did not seem overly concerned with the internal consistency of their version of events. Attorney Yeh touched on this point very effectively during his closing arguments when he went through each element of the prosecution's original indictment and asked a fundamental question: can the evidence satisfy each element of the indictment? Strangely, however, the prosecution seemed to be explaining away exculpatory evidence with contradictory events. For example, returning to Dr. Lee's crime scene reconstruction, the prosecution's rebuttal of the completeness of the bloodstains contained an argument stating that, due to the violent struggle between the victims and the killers during the crime, there was enough movement in the room to splatter the room with blood despite multiple perpetrators blocking the spray. Shortly thereafter, they theorized that the victims must have been held down or otherwise controlled by the killers because neither the neighbours nor the victims' children heard any sounds of struggle that night. Simply on the point of whether
there was a struggle, much less a violent struggle with excessive movement, the prosecution advanced two inconsistent versions of events. For me, that in and of itself was cause for more than reasonable doubt as to whether the prosecution can prove their case – and even whether they had a concrete case they were trying to prove in the first place.
缺乏精確的無罪推定原則方面，檢方似乎不顧事實認定的發展一致性。結辯時，葉律師（編按：葉建廷律師）針對檢方原先的論告要素提出有力而基本的問題：證據是否支持論告的要素？奇怪的是，檢方提出不一致的事件發展陳述來排除對被告有利的證據。例如，針對李昌鈺博士的犯罪現場重建，檢方認為即使多人行兇會阻擋血跡噴濺，但卻以兇手與被害者的激烈打鬥足以使被害者血跡噴濺房間來反駁報告指出的血跡完整性。隨後，卻又因為鄰居和被害人的子女該晚沒有聽到任何打鬥聲，檢方認為被害人一定是遭到制伏或者被行兇者控制。是否有打鬥、甚至是激烈打鬥這一點問題上，檢方提出了不一致的事件發展陳述。就我看來，陳述不一致導致比合理懷疑更多的質疑：檢方是否能夠證明本案；甚至，檢方是否在起訴前就有足夠清楚的事證能讓這個案件成立。
The burden of proof entails proving one set of facts beyond a reasonable doubt; offering alternative versions is not an option for the party with the burden of proof, which in this case and in all criminal cases is the prosecution. Moreover, the prosecution is charged not only with proving the mere possibility of their scenario but are also responsible for eliminating all other probable or possible scenarios in which the defendants may not be guilty, both of which they emphatically failed to do in my observations. For example, the prosecution repeatedly asserting that it is not possible for a single perpetrator to leave seventynine knife wounds without actually proving that it is indeed impossible does not fulfill either of the two aforementioned responsibilities they are charged with. As such, the prosecution's assertions are merely speculative and cannot form the basis of their case. If anything, it is the defense team's prerogative to advance alternative theories because all they have to do is show that there is at least one plausible scenario where their clients are innocent. In the Hsichih Trio case, these roles were entirely reversed: the defense team seemed to be burdened with proving that their clients were innocent and the prosecution simply tried to explain away each piece of exculpatory evidence in a piecemeal fashion. What resulted was a very confused and contradictory jumble of facts that the prosecution was ostensibly attempting to prove beyond a reasonable doubt.
舉證責任意味超越合理懷疑地去證明「一套」事實；也就是負舉證責任的一方，不管是在本案還是其他任何的刑事案件，檢方並不能提出「不同套」的事實版本。此外，檢方除了肩負證明他們事件唯一版本的可能性，也要肩負排除所有其他被告可能無罪的事件版本。根據我的觀察，檢方這兩點都顯然沒有做到。例如，檢方不斷指出，一人不可能造成79道刀傷，卻沒有提出證明，僅提出「一人不可能」的說法，並沒有做到上述兩點舉證責任的任何一點。如此一來，檢方的認定僅是假設，無法成為論告的基礎。提出不同事實版本是辯護律師的權利，因為他們只需要指出，至少有一種可能的事實版本情形下，他們的當事人沒有涉入即可。蘇建和案中，這樣的角色扮演完全相反：辯方似乎肩負證明當事人無罪的舉證責任，檢方僅僅慢慢排除有利被告的證據。如此角色錯亂導致檢方提出令人混亂、自相矛盾的一連串事實，企圖超越合理懷疑地證明。

Justice Delayed Is Justice Denied
遲來的正義，不是正義
As I left the courtroom that day, I thought again about how unfathomable it was that these three men, all in their early forties, had been going through this trial since they had been nineteen. Constant retrials and remands are perhaps better than a swift execution, but I hardly think that is any consolation at all for the tribulations the three men have gone through. Though the justice system should certainly be given time to work, my concern lies in the lack of any limit on the retrial, resulting in the unfortunate scenario wherein
all facts are seemingly reopened for debate despite years -- or even decades -- of previous litigation. The Supreme Court, when it remands for a retrial at the High Court, should strongly consider narrowing the issues at dispute and thus the scope of fact-finding that has to be done at retrial. Such a move by the Supreme Court would have the dual effect of focusing the arguments upon retrial and streamlining the process of retrial to improve efficiency and conserve judicial resources.
那天離開法庭時，我再次想到，這三人自從19歲開始，經過如此的審判，都已經40歲了，令人難以想像。不斷再審及發回或許比立即被槍決好，但是這些審判卻不足以安慰三人歷經如此苦難。即使司法體系需要時間來運作，我擔心再審次數完全沒有限制，造成數年－－甚至數十年－－的訴訟後，所有事實又再重新被爭執。將案件發回高等法院時，最高法院應該指明爭議事項、限縮再審時的事實認定範圍。如此一來，再審時爭辯能夠聚焦並使再審程序簡化，提昇效率以及節省司法資源。
Moreover, the Supreme Court likely had a reason in mind that they believed prevented them from finalizing the verdict, such as the qualifications of the expert witnesses or the credibility of the original forensic medical report. It is highly unlikely that the Court simply thought that all the facts of the case were still debatable. If it was truly the case after two decades that the Supreme Court cannot make a determination on any of the material facts, that inability in itself speaks volumes about the weakness of the evidence and the existence of lingering doubt across all aspects of the case. A more reasonable expectation, perhaps, is that there was a specific legal or factual question the Court believed to require clarification. Thus, a more focused argument surrounding those specific concerns at retrial would be of considerable assistance to the Supreme Court should the case be appealed again. Since another appeal that is unlikely to be applicable anymore to the Hsichih Trio case (at least, one fervently hopes), this is merely an observation for ongoing and future trials in order to better align justice with efficiency. After all, justice delayed is justice denied -- for all parties to a trial.
另外，最高法院可能因為一個原因而無法讓案件定讞：專家證人的資格或是最初的刑事醫學報告。最高法院不可能認為案件的全部事實都值得爭辯。若在20年後，最高法院還無法認定任何事實，這樣的無能也凸顯了證據的缺失以及全案揮之不去的疑點。或許，更為合理的期待為，最高法院應該指出特定的法律或事實的問題讓高等法院釐清。若再審時爭辯能更聚焦於這些明確的疑點上，高等法院判決被上訴時，將有助於最高法院決定。因為蘇建和案檢方無法再上訴（至少希望是這樣），這樣的觀察僅是讓現在以及未來的審判能讓司法結合效率。畢竟，對一場審判的各方來說，遲來的正義不是正義。
To bring this article to a close, I will return to the system that I am most familiar with: the U.S. In the United States this past summer, the most highly
anticipated legal decision since Gore v. Bush – the upholding of the Affordable Care Act -- was delivered on June 28th by Chief Justice Roberts. The decision was largely seen as a test for whether the current Court could move past political partisanship and rule according to previous precedent and sound legal reasoning. In other words, it was a test of the Court's legitimacy. In my opinion, the Hsichih Trio case is a similar watershed for the Taiwanese judicial system; if anything, it is even more momentous as three lives hang in the immediate balance and many more will be indirectly affected by the decision. If the Taiwanese justice system proves itself ready to move past this controversy and renounce a criminal justice system that prizes confessions without regard to voluntariness above material and scientific
evidence, I would be happy and privileged to say that I attended the last-ever court hearings of this gruelling, frustrating, heartbreaking case of three men who have had their youth and innocence needlessly drained away for these past two decades.
結束本文前，讓我回到我最熟悉的司法體系：美國。今年夏天，美國自Gore v. Bush判決以來最受矚目的法律判決於6月28日由首席大法官Roberts宣讀，《患者保護與平價醫療法案》獲聯邦最高法院支持。本案被視為聯邦最高法院是否能夠超越黨派並依循前例就法理完整論述的試金石；換句話說，本案測試聯邦最高法院的正當性。我認為，蘇建和案也是台灣司法體系的分水嶺；由於關係到三人性命以及間接影響到日後其他案件，該案更為重大。若台灣司法體系能夠證明自身已經準備好要跨過這場爭議，且也拒絕重視不具任意性的自白更甚於事實及科學上的證據，我將會很高興地說：我參與了20年來如此嚴峻、令人挫折、令人心碎、剝奪三人青春及清白的案件的最後一場開庭。