Judge has role in reforming China's legal ideas

While teaching U.S. criminal law in China a few months ago, Common Pleas Judge Benjamin Lerner acted as the mean, tough American law-school teacher just once toward his students.

He had posed a simple question: In the case study they were assigned, did the defendant plead guilty or proceed to trial?

The answer was on the first page.

"So I called on somebody," after the students didn't raise their hands, Lerner said recently in an interview.

The student had a 50-50 chance of getting the answer right. She got it wrong.

After it became obvious that the class didn't read the case, Lerner scolded the 42 students - who were judges, prosecutors, other working attorneys and a few graduate students - at Tsinghua University School of Law in Beijing.

"I gave them a little lecture, acting very stern," he said. Then, "I got up and I slammed my book closed, and I walked out."

As he departed, leaving the students stunned, "I could hardly stop myself from breaking into laughter," he admitted.

Lerner, 66, was usually his kind, humorous self. He told the students to call him "Ben" or "Judge Ben," if they insisted on a title.

He taught a Criminal Law and Criminal Procedure course in Beijing from the end of August to mid-October through Temple University's Master of Laws program at Tsinghua, one of China's top universities.

In Philadelphia, he presides over pre-trial proceedings and motions in all homicide cases, and over some nonjury homicide trials, at the Criminal Justice Center in Center City.

Although he has taught as an adjunct a few times, he's not a professor. Getting the Chinese students to engage in discussion, particularly in a second language for them, was a "work in progress" throughout the eight-week course, he said.

In return, the sojourn to China gave Lerner the opportunity to learn about the Chinese criminal-justice system. He also found how difficult it can be to live in a foreign country.

"I underestimated how difficult it would be for an American with no Chinese [language skills], flying solo, living on his own, to live and work in a city as large, as crowded, as busy, and as devoid of English speakers as Beijing. It was in fact very difficult."

Temple established its Master of Laws program in Beijing in 1999 with the Chinese government's approval. The program is part of the school's rule-of-law initiative in China. The students graduate with a Temple degree.

Lerner said he realized on that October day when the students were unprepared that they had just returned from a week's vacation for the National Day holiday. It was their last term, and they were getting antsy to graduate. After he walked out of the classroom, the students sent a delegation to his office to apologize.

Judges there, he gathered, "aren't people who have been lawyers for a long time."

But, "the prosecutors are very powerful. They are regarded as a very important arm of the government . . . In many situations, the judge is really taking instructions from the prosecutor about what the case is and what ought to be done with the defendant."

He added: "The idea that a defense lawyer has a real role to play, that you could be questioning the prosecution's case . . . whether your client was in fact guilty or not, that's all new."

The Chinese students wanted to reform their system by making it more balanced and creating an independent judiciary. But they were not keen on implementing a jury system, which China does not have.

Lerner discovered that the Chinese students also liked as much certainty as possible in their legal system. In trying to get them involved in discussions, he would give them the facts of a case as they had developed at trial.

"They didn't want to give an opinion or decision," he said. "What they wanted to do was change the facts or add facts . . . Because by adding the facts or changing the facts, they could be absolutely sure what the right answer was."

Lerner, a Common Pleas judge for 12 years, was chief of the Philadelphia public defender office from 1975 to 1990. Before that, he served in the state attorney general's office, where he headed the Criminal Law Division.

He was asked to teach in China by Adelaide Ferguson, assistant dean for graduate and international programs at Temple University's law school.

During the summer before their last term, the Chinese students come to Philadelphia, where they take classes at Temple and observe courtroom hearings - including sitting in Lerner's courtroom.

The students this past summer "really hit it off with Ben" and "were curious about what he had to say," Ferguson said. *