Special statement: This article is an original article by lawyer Shao Shiwei and only represents the personal views of the author and does not constitute legal advice or legal opinion on specific matters.
In criminal cases, many parties and their families think that a lawyer's job is to "argue with reason and be eloquent." But in fact, in some cases with clear characterization and limited sentencing space, truly effective defense work is often not about simply confronting the judicial authorities, but rather testing the lawyer's communication skills.
Especially in the context of the current confession and confession system, the sentencing recommendations of the procuratorate often play a key role in the final outcome of the case. At this stage, whether the lawyer can understand the psychology of the case handlers and the issues they really care about in the specific case, and thus conduct professional communication on the basis of seeking common ground while reserving differences, often determines the direction of the case.
In other words, the professionalism of a lawyer is not only reflected in his mastery of legal theory, but also in his ability to win the trust of case handlers. When a lawyer's opinion is recognized by the case handler, it often means that there is room for the client to seek lenient treatment.
So, how can we better understand the psychology of case handlers? There is no standard answer, and it depends more on the long-term accumulation of case handling experience, but there is no way out. This article will explain how to achieve the ideal result of effective defense through specific strategies in a case handled by Lawyer Shao involving virtual currency settlement and the crime of opening a casino.
lAuthor: Lawyer Shao Shiwei
1
A programmer was suspected of opening a casino in the "virtual currency payment and settlement" category
A few months ago, I took over a case of opening a casino: the client was a programmer who was accused of providing virtual currency payment and settlement services for multiple overseas gambling websites, suspected of committing the crime of opening a casino.
According to the charges of the public security authorities, in the past two years, the programmer helped multiple gambling platforms complete a total of more than 400 million USDT gambling fund settlements, equivalent to about 2.7 billion yuan; he personally made an illegal profit of more than 900,000 USDT, about 6 million yuan.
According to Article 303 of the Criminal Law on the crime of opening a casino, if the total amount of gambling funds reaches 300,000 yuan, or the illegal income exceeds 30,000 yuan, it is considered "serious circumstances" and is usually punishable by a fixed-term imprisonment of not less than five years but not more than ten years.
Faced with such a case with clear characterization, clear data and huge amount of money, what else can lawyers do? Where is the room for defense?
2
An evidence dilemma of "no evidence after death"
When I took over the case, the public security investigation stage had come to an end, the evidence had been collected, and the case had been transferred to the procuratorate for review and prosecution.
This article focuses on the communication work of lawyers at the procuratorate stage, because since the implementation of the confession and admission of guilt system, the sentencing recommendations given by prosecutors play a crucial role in the final sentence imposed by the court on the parties involved.
After initial communication with the family, I learned that the client actually had two other partners in this case. The three of them contacted the gambling platform in the form of a studio and independently undertook the business. However, one partner has passed away, and the other partner disappeared after the incident. The client was arrested on the spot by the police who had been waiting for a long time at the airport when he returned to China.
From the perspective of the lawyer's defense, what is the division of labor among the three people? How was the profit distribution agreed upon for the more than 900,000 USDT? This fact is crucial. The reason is that the client was caught on the spot at the airport without any warning, so it cannot constitute a self-surrender. In addition to the conventional defense points such as gambling funds and profit amount, only by striving for the identification of accomplices can it be possible to reduce his sentence to less than 5 years.
But this is another case of "no evidence". To quote the original words of the person in charge of this case when questioning the client, "Who knows if what you said is true? We only know that you built the contract logic, and it was you who communicated with the gambling platform in the TG group. You said you had two partners, A was not seen at all, and B died a long time ago. So do you think you did it yourself? No matter how we investigate, it's only you!"
To be honest, I still don’t know whether there are two other partners. But for lawyers, it is not important to know the truth. What is important is how to get a lighter sentence for the client based on the existing evidence.
3
Can studying and analyzing previous similar cases in the local area be helpful to this case?
In addition to the law itself, local past judgment practices are also an important reference for building a defense strategy. As I mentioned in my previous article " Different Verdicts for the Same Case? A Study on the "Geographical Jurisdiction" Issue in Criminal Cases " (see figure below) - even if it is the same crime, it is not uncommon for "different verdicts for the same case" to occur in different regions in judicial practice.
I conducted an in-depth search of the cases of "opening a casino" + "virtual currency settlement" in the region in recent years, but the results were not optimistic. For example:
In the case of Chen et al., the defendants provided financial settlement for the gambling platform, with the gambling funds totaling more than RMB 90 million. All of them were sentenced to actual imprisonment;
In the case where Fang et al. used an online gambling platform to open a casino, the defendant was sentenced to more than five years in prison, even though he had withdrawn 10 million yuan in illegal proceeds;
In addition, based on the relevant cases handled by our team, some case handlers believe that the use of virtual currency transactions is a circumstance that the court will refer to and should be determined to impose heavier penalties.
After an in-depth study of local cases, I realized that in the judicial practice of the region, cases involving opening casinos are basically "unable to escape real punishment". What is even more pessimistic is that, based on the existing evidence, this case cannot be defended from the perspective of "assisting the trust" - because the parties involved are not employees, their subjective knowledge and cooperation intentions are obvious, and they do not have the "auxiliary and subordinate" status.
Time is tight and the task is heavy. When I got the case file, more than half of the prosecution period had passed. There was no time to think too much. I started from the first step of reading the case file and got to work!
4
Two core difficulties of the case
It took me five full days to sort through nearly a thousand pages of files and dozens of GB of electronic data.
I think there are two tricky aspects of this case:
One is that, as mentioned above, the co-conspirators involved in the case are "dead without evidence", so how to determine the position and role of the party in his gang in this case? Moreover, according to the case description of the public security organs in the case file, there is no mention of the principal and accomplices, and the team members point to him alone for all the actions involved in the case: connecting to the gambling platform, building the contract logic, using TG communication, and controlling the wallet address were all done by the party. Even the gambling website did not have any staff to report. This further exacerbated the party's sense of "committing the crime alone".
The other is the transaction data on the chain. This type of data is naturally open and objective. Even if the public security organs have some omissions in the statistical process, how much can be deducted from the total gambling amount of 2.7 billion and the profit of more than 6 million yuan?
Can we suggest arresting other partners or platform personnel? Of course we can. But these people have strong anti-detection capabilities and are most likely not in China. Judging from the current criminal case investigation mechanism, such arrest suggestions involving cross-border evidence collection and landing are almost unfeasible. Public security organs generally do not go through complicated international cooperation procedures for this purpose.
So I need to think carefully about my communication ideas. When communicating with the prosecutor, what should I say and how should I say it? How can I negotiate down the client's sentence?
5
How to communicate? Is "die-hard" communication useful?
In practice, there is a type of lawyer whose case-handling style is called "die-hard" lawyers in the industry. When defending clients, these lawyers often show strong confrontation. They usually argue the legal issues in the case in a way of "challenging, competing, not compromising, not admitting defeat, and not giving up until they achieve their goals". They are tit-for-tat when communicating with case handlers, and even expose the problems in the case through the Internet, using the pressure of public opinion to push the case to a different direction.
This style may indeed play a certain role in some cases of innocence defense that have a great social impact and are controversial. However, in cases like this one, where the nature of the case is basically clear and the focus of the controversy is on the sentencing range, "fighting to the death" is often not only ineffective, but may even have a counterproductive effect - in the eyes of the judicial authorities, an improper confession attitude and poor communication will ultimately lead to a heavier sentencing result, and this kind of situation is not uncommon in our case handling.
Does that mean that for cases like this one where the nature of the crime is clear, we can only “lie down and go through the process, plead guilty and accept punishment”? Of course not. For cases where the nature of the crime is clear, we can still adopt effective strategies for lighter punishment and strive for lighter punishment for the parties involved.
Of course, how to develop a defense strategy for the client's lesser crime depends on the specific case. In addition to looking at the evidence itself, it is also necessary to comprehensively consider the stage of the case, the individual character and style of the person handling the case, their understanding of the legal provisions, and their overall judgment of the facts of the case. Sometimes, the same case may take a completely different direction in the hands of different case handlers.
6
Initial confrontation with prosecutors
One morning, I made an appointment with the prosecutor in charge to communicate. I rushed to the door of the procuratorate in advance to wait, but when I walked into his office, I was struck by the heaviness of the piles of case files on his desk.
He looked extremely busy, the landline on his desk kept ringing and ringing. I sat on the chair opposite him, waiting silently - waiting for a suitable "interruption point".
The ringing finally quieted down. He raised his head, glanced at me, and said in a straightforward tone: "There is no dispute about this case. Let's plead guilty and accept punishment as soon as possible. The time is almost up. We have a lot of cases, and the court also wants to prosecute them quickly."
I took the opportunity to ask the first question: "What are your current considerations on sentencing?"
He flipped through the file and said impatiently: "He said the code was written by two partners? B has been dead for many years, so it was written by B? You have also read the file. There is no trace of A in this case. We don't even know if this person exists. I guess he made it up!" With such a large amount of money, referring to other cases we handled, the sentence would be at least 7 to 8 years."
At this moment, I could feel the obvious qualitative tendency in his tone - his views on the case were basically consistent with those of the public security organs.
Frankly speaking, this is indeed the case based on the files alone:
It was he who interfaced with the gambling platform;
It was he who matched the contract logic;
He still controls the wallet address (and it is not multi-signature);
In the TG chat records, he was the only one communicating with the platform.
Although he said he only received a fixed salary, he also said that he had not received any money in all these years, and he could not even explain who received how much;
Moreover, in the first few transcripts, he did not even mention the so-called "partner".
In this situation - not to mention the prosecutor, what would any ordinary person think based on their preconceived ideas?
7
How to achieve “effective communication”?
In fact, before meeting the prosecutor, I had repeatedly reviewed all the key evidence points of the case - it can be said that I went to meet him with clear communication goals and preparations. His initial response did not surprise me.
Then, I started asking questions about their opinions on the case.
The prosecutor did not pay much attention to my opinion at first. After all, in such cases of "guilty plea and acceptance of punishment + clear data", case handlers would usually subconsciously go directly through the process.
But then I said, "If the procuratorate does not withdraw the investigation and just dismisses the case, do you think the judge will ask the procuratorate to provide additional evidence?" Just this one sentence made him visibly stunned. Then, he put down the work at hand, took out his notebook and began to take notes.
In fact, although it seems that there is no dispute about the characterization of this case, there are many bugs in both substance and procedure, such as the process of judicial disposal and realization of virtual currency, the calculation method of the amount involved in the case, the identification method, etc. In addition, if the parties are easily identified as the main offenders, there will be some "sequelae". If the defense insists on requesting the case to be withdrawn, it will be a headache for the prosecutor who is handling a currency-related case for the first time, because the evidence that can be obtained has already been obtained. Even if the case is returned to the public security organs, it is difficult to make up for any more powerful evidence in this case.
In short, I saw that the prosecutor's expression became more and more serious as he wrote down the information. Well, this shows that my opinions have attracted his attention. After two or three hours of communication in the morning, he finally said, "Okay, your opinions do make sense. I have written them down. I need to discuss them with my superiors, and some of the contents also need to be confirmed with the police before I can reply to you."
I know that by coming here this time, I have achieved the purpose of this communication.
In the following days, I did not stop pushing forward. I continued to maintain online communication with the prosecutor, repeatedly discussing the key issues in the case and communicating item by item.
8
As you wish
In the end, the sentencing recommendation for this case was gradually reduced from the "at least seven or eight years" initially stated by the prosecutor.
First, we persuaded him to reduce the sentencing recommendation to less than five years.
Let's go further and talk about the three-year sentence.
Then there was the "three years suspended for five years" sentence.
Finally, I came to a conclusion that satisfied me and the client:
Sentenced to two years' imprisonment, suspended for three years.
To the uninitiated, this may seem like a miracle.
But for me, every adjustment, every persuasion, and every control of the rhythm of communication are all steadily advancing step by step according to my work plan. Due to space limitations, I will have the opportunity to share my ideas on handling cases and the details of my communication with prosecutors in the future.
When the final decision was finalized with the prosecutor over the phone, the prosecutor said:
"It is indeed thanks to you lawyers that the leaders of the court finally agreed to the result of this case. The work of the defense lawyers was indeed very thorough. We also admit that your views are indeed very reasonable."
To be honest, this is the first time I have heard such words from a prosecutor in my eight years of practice. After all, everyone in the industry knows that although it is called a "professional community", in how many cases do the prosecutors and lawyers respect and recognize each other?
The client was very satisfied with the final result, so he signed a confession and the case was transferred to the court. However, the court stage was not smooth sailing.
Not long after the case went to court, my partner, Attorney Ding, received a call from the judge:
"How did the procuratorate come up with this sentencing recommendation? The maximum sentence is less than five years. How could it be possible to apply probation?"
When we heard this, our hearts tightened. After all, the sentencing recommendation of the procuratorate is just a suggestion, and the final decision still lies in the hands of the judge.
I won’t go into detail about the twists and turns in the process. In short, after a narrow escape, the court finally adopted the sentencing recommendation of the procuratorate, and the verdict was officially implemented:
Sentenced to two years' imprisonment, suspended for three years.
As an aside, the judge was also quite interesting. Afterwards, he quietly asked us, "How did you communicate with the prosecutor? They usually don't hang us." (The judge's original words)
9
Review: Finding hope in the cracks
I often say that the job of a criminal defense lawyer is often to find hope in the cracks.
The ideal outcome of the case is actually based on the careful analysis of the lawyer's litigation strategy and good communication with the person in charge at every step. Every step of the work requires the right rhythm and good control of the degree.
The case itself is clearly defined, the amount involved is high, the parties voluntarily plead guilty, and have no objection to the facts and the amount calculated by the case-handling unit. This is a case that seems to have "no room for negotiation." But I always believe that no matter how difficult and complicated a case is, as long as there is no final judgment, there must be room for communication and adjustment. The problem is not to deny something, but how to find a breakthrough point and push the case-handling agency to make a judgment that is more favorable to the parties within the existing evidence structure.
The breakthrough point of this case is not to question the basic facts of the case that have been clearly defined, but to accurately identify the possible concerns of the case handlers, find their "most unacceptable risks", and then, based on these risks, promote adjustments to the way the case is handled.
Throughout the defense process, we did not avoid the severity of the case, nor did we blindly challenge the characterization. Instead, we designed strategies from the perspective of "letting the case go through the process smoothly and keeping the punishment within a reasonable range." In short, standing in the position of the case handlers, fully thinking from their perspectives and then proposing corresponding defense opinions, and then striving for a favorable result for the client, is the key factor in achieving a good result in this case.
10
Thank you for your trust
In fact, the family of this case came to me through the introduction of Lawyer Ding Yue from Shanghai Shuke Law Firm.
Frankly speaking, I have been a lawyer for so many years, and I have received many cases from my peers. But in fact, such trust between peers is not easy to come by. After all, such a recommendation itself is a kind of professional endorsement. If the lawyer who introduced the case messes up the case, the introducer himself will also lose face. Especially in a case like this, which is new and complex, and involves a high amount of money, it seems to be a very difficult case for any lawyer.
Lawyer Dante did not hesitate at all and recommended me to the family members immediately. She said to the family members: "Lawyer Shao has handled many virtual currency cases and casino opening cases, and has relatively rich experience. She hopes that I can join this case.
I was actually quite moved after hearing this. We didn't know each other before, but she was willing to sincerely recommend me to the family without any personal relationship. This kind of trust essentially puts the interests of the client first.
Throughout the case handling process, we cooperated very smoothly. Whether it was the discussion of case strategies, communication with family members, or the preparation of materials, we were able to cooperate perfectly. At the same time, I also recognized her professionalism, her sincerity, kindness, and her sense of responsibility towards the client and family members throughout the case.
11
postscript
After writing this article, I still want to add a few words. Maybe it has nothing to do with the case itself, but it is related to the often-repeated topic of why lawyers defend "bad guys".
Some people may say, what is there to defend in this case? Gambling has ruined so many families, and people like this should be sentenced severely! You lawyers are helping bad guys get away with it, turning black into white!
But in the process of handling hundreds of criminal cases, I also realized that as criminal lawyers, what we face is never an abstract "charge", but a specific person. Behind each person is a family or even several families.
And, even if each person's behavior is ultimately classified as a crime, there are specific reasons from their perspective.
In this case, the client had been working abroad for many years to make a living. Because he had experience in cryptocurrency trading and was a programmer who was good at writing code, he was introduced to the job of "helping the platform to handle fund settlement." This decision was of course wrong, but his original intention was to make more money and give his family a better life.
Although he has made a lot of money from this business in the past two years, he has always lived frugally, which is why he has basically not touched the money in his exchange account. In addition to cashing out a small amount when needed and sending it to his family in China for living expenses, he saves the rest of the money for his children's future education and living expenses. Because he knows that due to his illness, he may not live to see the day when his children go to college, so he works hard to make money and wants to leave more for his children while he is still alive.
Yes, he did break the law, but he has already borne the corresponding consequences: he was detained for more than half a year, and he also paid the illegal gains and fines. But if he continues to be detained for a long time in the future, his family will fall into deeper trouble.
We never deny the harmfulness of crime.
But oftentimes, a lawyer is not just defending an accused person.
It is also about saving a family that is on the verge of collapse.
This may be one of the meanings of criminal defense.
