China: 从建议量刑13年到最终判决7年 彭吉岳律师有效辩护受法官致函"点赞"

Last Updated: 8 August 2019
Article by King & Capital Law Firm

近日,京都律师事务所合伙人彭吉岳律师担任辩护人的一起职务犯罪案件宣判,在最初考虑量刑13年左右有期徒刑的背景下,经过彭吉岳律师认真辩护和灵活沟通,被告人最终被判处7年有期徒刑,其工作态度与专业风采获得承办法官致函"点赞"!

  

反腐大潮下身犯两罪,数罪并罚量刑建议13年

  被告人杨某原任山东省某市机关局长、党组书记,因相关经济问题被指控犯贪污罪和受贿罪,其中贪污金额近300万元,受贿金额30余万元。根据办案机关的建议,两罪并罚应判处13年有期徒刑。该案是当地监察委成立以来办理的第一起反腐案件,态度之坚、力度之大可见一斑。

  在国家强势反腐的背景下,司法机关对贪污贿赂犯罪的处理往往具有从严、从重的倾向。当事人接到监察委电话通知后,赶到指定地点接受调查时即被采取留置措施,与其失去联系的家属十分焦急,彭吉岳律师了解案情后,迅速制定了罪轻辩护的策略:对确实存在的犯罪事实应当认罪悔罪,对存在争议的事实及量刑问题应当抽丝剥茧,争取最有利的结果。

  

专业论证与灵活沟通,庭前辩护系统扎实

  刑事案件,辩护律师越早介入越容易赢得先机。彭吉岳律师一接受委托便迅速展开了辩护工作,将辩护重点放在庭前。彭律师先后多次会见当事人、与监察委、检察院、法院等部门沟通,着重表达以下意见:

  1.杨某对被指控的主要犯罪事实认罪认罚,态度良好,根据刑事诉讼认罪认罚从宽的原则,可以依法从宽处理;

  2.杨某受到电话通知后便立即赶赴指定地点接受调查,如实供述了主要犯罪事实,同时在留置期间还主动供述了办案机关未掌握的犯罪事实,全额退赃,具有多项从轻、减轻处罚的量刑情节;

  3.案件证据体系不够完整和充分。从卷宗来看,言辞证据却存在高度一致部分指控事实无客观证据印证,证据无法达到切实充分的程度等情形,辩护人认为真实性和客观性存疑。

  该案犯罪事实数量多、时间跨度大,涉及多方主体,较为复杂,彭吉岳律师在认真阅卷的基础上,仔细梳理案件事实,做出了细致的阅卷笔录。经统计,仅贪污事实中涉及的相关主体就有15个,每个主体相关的贪污事实还有几起至十几起不等。在浩如烟海的案卷信息中,通过梳理和比对,彭吉岳律师发现众多言辞证据高度重合的反常现象,辩护人据此表达了相关辩护意见,动摇了案件证据体系。

  经过积极的辩护和沟通,彭吉岳律师成功说服监察委出具了杨某如实供述办案机关未掌握的犯罪事实,认罪态度较好等情况说明,同时也使各部门办案人员充分了解了本案的众多从轻、减轻处罚的情节以及证据体系存在的问题,为后续量刑辩护打下了良好基础。

  

13年量刑建议下实判7年,辩护效果显著

  庭审前,彭吉岳律师与被告人协商确定了庭审辩护策略,被告人认罪悔罪,辩护人依法独立指出本案中存在的证据瑕疵和定性问题。在这一指导思想下,庭审取得了非常好的效果,辩护人的大量意见被法庭采纳。

  7月17日,本案宣判。被告人因贪污罪被判处有期徒刑6年,因受贿罪被判处有期徒刑2年,数罪并罚决定执行有期徒刑7年。从最初的量刑建议13年,到最终实际判决7年,刑期降低了近一半,可谓是职务犯罪难得的有效辩护案例。

  

以专业和敬业赢得认可,宣判后法官致函"点赞"

  彭吉岳律师庭前积极沟通、庭上依法辩护的工作方式不仅获得了当事人及其家属的肯定,更赢得了本案承办法官的尊重和认可。案件宣判后,本案法官特别向北京市京都律师事务所发送《工作情况评价》,赞扬彭吉岳律师的专业水准及敬业精神。《工作情况评价》中写道:彭吉岳律师"工作认真负责,与我院沟通顺畅......既依法为杨某做了积极的辩护,同时也以客观事实为基础,利用国家的刑事司法政策,最大限度地维护了被告人的利益,体现了大所、专业所、首都律所的律师的担当。"

  彭吉岳律师工作情况评价书

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