American Accused : Trial Offers Rare Look at China Justice

Dressed in a gray uniform with the red seal of the People’s Republic of China behind him, Chief Judge Pei Xing stared down at American businessman Richard S. Ondrik and delivered a chilling courtroom rebuke.

“Don’t try to conceal anything,” he said, lecturing through an interpreter. “Everyone is equal before the law. You are an American, and you are now before a Chinese court in a fashion comparable to a Chinese citizen. So dispel your fears.”

The judge’s warning was issued in the middle of a criminal trial in which Ondrik is being charged with negligently causing a hotel fire that killed 10 people. Chinese prosecutors say the fire broke out when Ondrik fell asleep while smoking on his bed. Ondrik says he does not recall whether he was smoking, but that in any case, the blame should be placed on the lack of fire protection equipment.

His protestations that he could not remember smoking prompted Judge Pei’s lecture.

Faces Seven-Year Term

Under Chinese law, the U.S. businessman could be sentenced to as long as seven years in prison. Prosecutors have told the court that he deserves something less than the maximum sentence but are also seeking nearly $90,000 in compensation from him. The court’s judgment is expected to be announced in the next three weeks.

The Ondrik case is one of the very few in recent years in which a Westerner has been placed on trial in Chinese courts. It has provided a rare glimpse at the state of the Chinese judicial system, which foreigners are generally permitted to see only in routine or carefully selected “model” cases.

During the last several years, China has devoted considerable effort to strengthening its legal system. Thousands of young people are being sent to law schools. For the first time since the Communist takeover in 1949, Supreme Court decisions are being made public. Even the propaganda department of the Chinese Communist Party has been stressing “the rule of law.”

System Lacks Protections

Yet Ondrik’s trial shows that although China is drafting some Western-style laws, the emerging legal system under which more than a billion people live lacks many of the protections for individuals taken for granted in the United States, specifically:

--China places severe restrictions on the ability of defense lawyers to challenge the evidence presented by the state. A criminal trial in China is not usually an adversary proceeding, but one in which prosecutors and defense attorneys strive for agreement, avoid sparring with each other and politely debate the severity of punishment the defendant should be given.

--In China, criminal trials are still viewed less as an effort to determine the truth than as an opportunity for a dramatic show, or as Chinese call it, a “lesson.” Efforts are made to ensure that as many people as possible see the courtroom proceedings, and judges make little or no effort to restrain those in the audience from voicing their emotions.

--China has not yet embraced Western notions of liability or negligence for accidents or safety defects. When mishaps occur, the focus is on the responsibility of errant individuals, rather than on that of organizations or state agencies. American tort and negligence lawyers like Melvin Belli would have a difficult time in China.

Smoke Detectors in Storage

Evidence presented at the trial has shown that the hotel where the fire broke out had bought smoke detectors and exit lights, but had failed to install them. There were also no fire-rated doors or sprinkler systems. Because of problems with the phone lines, it took 30 minutes to notify the fire department and five minutes more for crews to reach the hotel.

Prosecutors have acknowledged that there were safety problems. However, the only people charged with responsibility besides Ondrik have been two low-level Chinese hotel employees accused of failing to take action to combat the blaze.

The fatal fire for which Ondrik is being tried occurred April 18 in this Manchurian city, on the 11th floor of the Swan Hotel.

One of the 10 victims, Alan Eng, a Chinese-American who was Ondrik’s business partner at a Hong Kong firm called Energy Projects, Southeast Asia Ltd., choked to death from inhaling the smoke. The nine others--four Chinese hotel employees and five North Korean guests--died trying to leap to safety.

Pyongyang Pressure Seen

According to a Chinese resident of Harbin, one of the North Koreans was an important hydraulic engineer decorated by North Korean President Kim Il Sung. Supporters of Ondrik have suggested that the Chinese are pressing the case against him because of pressure from North Korea. No officials of the Pyongyang regime were seen in the courtroom last week.

Ondrik, 34, who was staying in a room nearby Eng’s on the 11th floor, voluntarily answered investigators’ questions for five days after the fire. On April 28, he was officially barred from leaving Harbin and placed under round-the-clock police surveillance. On June 26, he was formally arrested and put in prison.

A native of Kokomo, Ind., Ondrik had graduated from Indiana University and attended a Chinese-language program at Middlebury College before beginning to work on business ventures in China. He is not married.

After his arrest, Ondrik hired attorney Robert C. Goodwin Jr. of Washington to assist him. Goodwin, an energy lawyer and businessman who is Ondrik’s former employer, is not permitted to appear in Chinese courts. Instead, he retained a Chinese defense lawyer to argue on Ondrik’s behalf.

In the United States, defense lawyers generally have at least several weeks--often several months--to get ready for a criminal trial. But Ondrik’s lawyers were forced to prepare a defense within a few days.

Ondrik was formally charged July 1. Goodwin and the Chinese attorney, Zhou Naxin, arrived here from Peking four days later. They were notified that the trial would begin July 9. When they protested that they did not have enough time to get ready, the start of the trial was postponed two days, until July 11.

Defense Pleas Thwarted

The defense lawyers asked for permission to have independent fire experts examine the evidence and testify in court. But the three-judge tribunal turned down the request, saying that the evidence presented by Chinese fire investigators was sufficient.

The Chinese courtroom itself is laid out differently from those in the United States, in a way that isolates the defendant from his lawyer.

Police officers regularly escort Ondrik from his prison cell to the trial and seat him alone, in the center of the courtroom facing the three judges. Defense lawyer Zhou is not at Ondrik’s side, and she is not able to converse with her client, as would have been the case in an American court. Both the defense lawyer and the prosecutors sit near the judges.

Prosecutors presented evidence that Ondrik’s hotel room was the only one where flame marks showed the fire moving out to the hallway. They also said his sport jacket and the bedspread were charred and had stuck together.

No Recollection of Smoking

The prosecutors argued that Ondrik had fallen asleep while smoking on his bed, causing a smoldering fire that eventually woke him up. The window was open, and they theorized that when Ondrik opened the door to flee from his room, convection caused the blaze to spread quickly. Ondrik testified that he does not recall smoking in bed but “may have” done so.

With no independent fire investigation, defense lawyer Zhou generally did not challenge the state’s evidence. Instead, in her closing argument she emphasized that Ondrik did not intend to commit a crime, that he had cooperated with Chinese fire investigators, and that because of safety defects, he should not bear full responsibility.

If Zhou was remarkably conciliatory by Western standards, so was the prosecution.

In an American court, prosecutors would have vigorously resisted efforts by Ondrik and his lawyer to pin responsibility for the fire on hotel safety defects. Here, though, prosecutor Zhang Weixiao amiably conceded that “objectively speaking, the Swan Hotel’s facilities against fire were incomplete.”

Tickets to the Trial

Ondrik’s trial was heard in a large auditorium that seats about 400 people. All were carrying printed admission tickets that most of them had obtained from work units or schools in the Harbin area.

During the proceedings, the courtroom often buzzed with audience reaction. Whenever spectators were angered, pleased or surprised, they would turn and talk with one another.

There was a ripple through the courtroom, for example, on the final day of trial when Ondrik said he was “very angry” at the hotel’s lack of safety precautions. The judges did not instruct the audience to remain quiet.

A video camera placed in the center of the courtroom filmed the entire trial, and it is assumed that the film will be shown elsewhere in China.

In the United States, efforts to assess blame for such a fire often focus on what created the conditions in which the blaze spread. Relatives of fire victims commonly file civil negligence or wrongful-death suits against a hotel and its insurance carriers, charging them with liability. Judges or juries are then required to assess whether adequate safety precautions had been taken.

Conduct and Remorse

But in investigating the Swan Hotel blaze, the emphasis has been on requiring individuals to explain their conduct the night of the fire and to examine how remorseful they are.

Prosecutors introduced evidence that Ondrik attended a banquet a few hours before the fire, where, according to the usual custom, he had drunk a round of toasts. Ondrik acknowledged that he had drunk eight small glasses of mao-tai (Chinese liquor), four glasses of wine and some beer at the dinner, but said he had not been intoxicated.

The two Chinese hotel employees charged with dereliction of duty in the case were also called to testify.

“Say something about your own responsibility for the Swan Hotel fire,” Judge Pei demanded of Zhang Guoyun, a night supervisor at the hotel. In a low, contrite tone, the worker murmured, “I failed to organize people to disperse.” He also admitted that he had been drinking on the job in violation of hotel rules.

Similarly, Gu Su, the hotel employee responsible for the 11th floor, admitted that he was partially responsible for the fire because he was away from his post getting some food and taking a bath when the blaze broke out.

Hotel Officials Absent

No representative of hotel management has been charged in connection with the fire, and none was called to explain at Ondrik’s trial why the hotel had failed to install smoke detectors, exit lights, fire alarms or other safety equipment. No hotel, fire department or telephone official was asked why efforts to call firefighters were unsuccessful for half an hour.

If he is convicted and imprisoned or fined, Ondrik would have the right to file an appeal within 10 days. The appeals court is entitled to review both the facts and the law governing the case and must hand down a decision in six weeks.