"Abandoned" to Justice: Court Observation Notes on the Ts'eng Wen-ch'in Case

How pathetic it is to use painkillers or medical artificial means to suppress this adventure toward rebirth.

On September 5 of this year, the high-profile "throat-slitting case" held its second-instance oral argument at the Taiwan High Court Tainan Branch^{(Note 1)}. The court opened two annex courtrooms and used technological equipment to conduct the trial. To clarify the defendant Ts'eng Wen-ch'in's criminal motive and recidivism risk, the collegial panel summoned Dr. Chuang, who conducted the first-instance mental health evaluation of the defendant; Dr. Hsu, who had previously treated the defendant; Dr. Chou and Dr. Li, who conducted the joint evaluation in the second instance; and Professor Shen, who performed the personality evaluation for the second instance.

The Trap of Evaluation?

To write a good sonnet, one must have the capacity for a long poem; to write a good medical certificate requires powers of observation.

One of the most important disputed points during the day-long hearing—and the part that took up the most time to clarify that day—was the defendant's mental state. The evaluation opinion given by Dr. Chuang, the first-instance evaluator, diverged from the opinions of the second-instance joint evaluation team and the personality evaluation. Dr. Chuang believed that the defendant's actions did not reach the level of losing cognitive capacity; however, the second-instance evaluators unanimously concluded that the defendant suffers from schizoid personality disorder, major depression, and schizophrenia, with the non-continuous presence of symptoms and familial tendencies both aligning. Regardless of whether the criteria of the DSM-5 Diagnostic and Statistical Manual (American school) or ICD-9 (International Classification of Diseases, European school) were cited, the defendant was evaluated as suffering from problems such as major depression and latent schizophrenia.

The court asked the first-instance evaluator why his evaluation opinion differed from that of the second-instance evaluators. The evaluator candidly admitted that during the first-instance evaluation, he "only spent half a day (a little over two hours) with the defendant, and the judgment data at the time was insufficient." Upon further questioning by the defendant's defense counsel, the first-instance evaluator stated that during the evaluation, the defendant only gave direct answers to his questions for "one-third" of the time that day.

Conversely, regarding the evaluation process of the second-instance joint evaluation team, the evaluators had "continuous contact with the defendant for over a year" and "both spent a long time in contact with the defendant, and inadvertently discovered that they could establish a relationship with the defendant through food, making the defendant more willing to open up." To this, the evaluator added: "This involves medical ethics, but if it can lead to a more accurate diagnosis as a result, I think it is appropriate..."

The prosecutor questioned whether the timing of the second-instance evaluation was too far removed from the time of the incident, asking: "Is it always better to conduct the evaluation as early as possible?"

The evaluator explained that although the closer to the time of the incident, the fresher the defendant's memory is, evaluators base their assessments on the logical consistency of the interviewee's statements.

In the libido, sexual desires, and fantasies of the human spirit, there are no elements of cruelty and masochism, and they do not contain the sharp fragments of enslavement; libido is unique. The most primitive forces are very close to desire and even to love.

George Steiner's words could not be more fitting to describe the defendant's mental state. Just as the doctors believed that Ts'eng Wen-ch'in needed to establish relationships, that he was not cold but indifferent, faced life difficulties, suffered frustrations from childhood environment and education, wanted to use death to solve problems, lived uncomfortably, had logical problems, had a borderline personality, was impulsive, was "kind"^{(Note 2)}, thought in a straight line, had problems in the personality formation process, had a sense of detachment from reality, and had a family history of mental illness, among other issues—finally, under the pressure of breaking up with his girlfriend and unemployment, having failed in his attempt at suicide, he turned to trying to kill someone else to achieve his purpose of suicide.

The Prosecutor in the Old Castle

The prosecutor attending this case, even if described using Heidegger's saying "those of great thought must commit great errors," would still feel overly flattering. When stating the gist of the appeal, he simply read aloud from written briefs; during the trial, he sometimes appeared to be closing his eyes to rest; when reviewing testimonial and non-testimonial evidence, his only two responses were "no objection" and "for reference only"; during cross-examination, he said to the sole female evaluator at the time: "I won't because you are female and have less seniority... You can explain as much as you can regarding the parts of your opinion that differ from those of other evaluators..." and other discriminatory remarks.

When it came to sentencing, compared to the defense counsel who provided a contextual explanation covering the defendant's childhood living background, family environment, and work situation, the prosecution bluntly stated: "The defendant is not suited for this society; he is suited for another society, a society in the heavens" and "If his mental condition is as the evaluator said, then the death penalty is a release for him." Such remarks felt preposterous. This kind of incompatibility (inkommensurabilität) or absurdity becomes all the more prominent in major cases. The prosecutor seemed to live in an old castle, while in his heart, the defendant was already dead.

The Defendant on the Judicial Frontline

We all know that situations of unexplainability and distortion of words are inevitable, and the same goes for law. Therefore, Niklas Luhmann, the master of German systems theory, stated in Law as a Social System that "the legal system does not construct the law itself, but should be determined by mutual interactions." However, among various reactions, for a defendant who considers himself a saint and wants to start a religion to seek "truth," we believe he is hallucinating and that the law and its binding force upon him are severed. Therefore, when he commits a "wrong," we uphold justice, believing that he has no possibility of resocialization and reformation and should be isolated from society.

Viewed from Luhmann's systems theory, this is exceptionally ironic, because every system operates in a closed manner, even law when describing itself: "When considering the concept of validity in normative terms, it means that those things which possess validity should in fact possess validity in themselves."

That's right, this is paradoxical. In other words, our law is actually looking for answers in illusion; it is merely our field that defines Ts'eng Wen-ch'in. Conversely, Ts'eng Wen-ch'in clearly understands food and desire, and truly perceives that he has difficulties and thus wants to resolve them. How is he any less like a living, breathing person than us? Yet we are unable to construct a set of methods to address existing scientific issues through discourse (diskurs), translate them into methods acceptable to the system, and grant him possibilities through communication. We are even unwilling to examine life, yet proficient in using the death penalty to evade problems. On some level, aren't we all Ts'eng Wen-ch'in—that evasive, reality-detached Ts'eng Wen-ch'in? He wants to face reality while we know how to disguise ourselves.

Contemplation and Reform

"In the facticity inherent in execution, it can already be seen that not everything that exists can be taken into consideration; replacing this attempt to establish a complete relationship is that selective yet supportive coupling, and a recursive network constituted by autopoietic reproduction." Society is a communication, constructing one another through loops; just like the roles played during the second-instance trial process of the Ts'eng Wen-ch'in case, not all conditions of the parties involved were taken into consideration—regardless of whether the prosecution and defense stances differed or were intentionally ignored. According to Luhmann's systems theory, anything outside one's own system is the environment, yet the environment has difficulty influencing an autopoietic system, which also corroborates the aforementioned meaning of dialogue: the necessity of communication.

Just as Professor Shen mentioned: "Whether a defendant has the possibility of reformation should depend on the type of treatment provided by the judiciary and correctional institutions, and this investment must be huge; the judiciary must consider whether to make this investment..."

When we view the trial as a multi-party communication process among the judge, prosecution, defense, defendant, victim, and society—as well as an attempt to establish a complete relationship—it ultimately comes back to whether our judiciary makes such a "choice" and possesses "supportibility," and how to prevent the purely formal rational syllogism from appearing grotesque in reality. Yet it is hard to expect a moral court—which might even consider "committing sexual assault before ancestral tablets" as an aggravating factor—to render a lawful and just (billigkeit) judgment when lacking backbone (supportibility).

Yet, "If an error cannot be corrected, it becomes all the more unbearable."—George Steiner. This is precisely why we reformers exist.

---