[Public Defender Report] Can't See or Hear... How Do You Know If It's a 'Kidnapping' or an 'Arrest'?

The Story of Byeonghun Kim, a Visually and Hearing Impaired Man, Whose Charges Were Dismissed
Bit a Police Officer's Arm at a Subway Station
Arrested on the Spot and Prosecuted,
But Court-Appointed Lawyers Led to Case Dismissal

Editor's NoteFour out of ten defendants in criminal cases receive assistance from court-appointed (gukseon) lawyers. Court-appointed defense is a system established primarily to guarantee the constitutional right to legal counsel for suspects and defendants who find it difficult to hire a lawyer due to economic reasons. As such, 'court-appointed defense stories' often reflect the blind spots and critical issues within our society. Asia Economy's first report features the case of Byeonghun Kim (alias), who is visually and hearing impaired, and attorney Cheolsu Park.

On May 19, 2023, at Seoul National University Station, police officers recorded Mr. Kim Byung-hoon (alias, 59) with a body camera during the incident. He is holding a cane for the visually impaired and confronting the police.

#1. On the afternoon of May 19, 2023, a commotion broke out at Seoul National University Station on Subway Line 2. A man was swinging a cane for the visually impaired and shouting loudly. "Move aside, let go, let go!" "Why are you stopping me when I said I’m going?" The man pushed his hearing aid deeper into his ear. A scuffle ensued with the responding police officers. "I’m a police officer. If you continue like this, we have no choice but to arrest you." After a few minutes, an officer took out black protective gloves?gear to prevent injury. It was a signal that they intended to detain the man.

#2. "Ah!" The moment the officers grabbed the man, he bit the right arm of one officer. The protective glove was torn, and the officer sustained injuries requiring three weeks of medical treatment. The man was arrested on the spot.

This is the story of Byeonghun Kim (59, alias), who has severe visual and hearing impairments, being detained in a holding cell for one day. The police handed Kim over to the prosecution, which then sent the case to trial. Kim could not afford a lawyer. The Seoul Central District Court assigned the case to court-appointed defense attorneys Cheolsu Park and Yuyoung Park.

Attorney Cheolsu Park focused on Kim’s condition. Kim was also suffering from Parkinson’s disease. He could only hear sounds louder than 100 decibels?equivalent to a car horn?and could only see light. He could only recognize tactile paving by striking it hard with his cane. A ‘special communication’ began between attorney Park and Kim: written Q&A on the palm of the hand.

Park Cheolsu, public defender at Seoul Central District Court.

On the day of his arrest, Kim called a taxi for the disabled. The driver dropped him off at the wrong subway exit. From then on, Kim was confused. He said he got lost and wandered around. Then someone grabbed him and seemed to block the tactile paving. So he bit that person’s arm, only to find out it was a police officer. Kim also suffered four broken ribs.

After about 50 minutes of questioning at the police station, Kim was released but was asked by the police to submit a disability certificate. He refused. "I did nothing wrong... I didn’t want to seek leniency by exploiting my weakness," Kim told attorney Park. This was the turning point when things started to go wrong. Kim also said he wanted to apply for a citizen participation trial to prove his innocence and expose the police’s wrongdoing. However, things did not go as planned, and he was eventually indicted.

Attorney Park emphasized two points during Kim’s trial: ① Were the police’s protective measures for the disabled Kim appropriate? ② Was the ‘Miranda warning’ given during the arrest process? Park submitted a written opinion to the court stating that "the defendant resisted due to inappropriate protective measures" and "he bit the officer’s arm in self-defense, believing he was being kidnapped." He also argued that "the police treated Kim, who is disabled, no differently than an ordinary person, and forcibly dragged him out, handcuffed him, and arrested him without Kim even knowing they were police," calling it "an abuse of public authority."

Attorney Park called the injured police officer as a witness in court. He asked whether there is a procedure to give the Miranda warning to people with both hearing and visual impairments. The officer replied, "I am not aware of such a procedure."

Part of the opinion letter for dismissal of prosecution submitted by the 26th Criminal Division of the Seoul Central District Prosecutors' Office to the Seoul Central District Court on November 18 last year.

Everything became clear. Kim misunderstood the situation due to his disabilities, and the ‘due process’ during the arrest was not properly followed. Attorney Park also said the police misunderstood the situation, likely unaware of the severity of Kim’s disabilities.

At the end of last year, the Seoul Central District Prosecutor’s Office held a prosecution review committee and decided to dismiss the charges against Kim. Accordingly, the court dismissed the indictment, closing the case.

Attorney Park said, "When doing court-appointed defense, you inevitably meet many defendants who are angry or sorrowful. I believe our job is to ensure these people are not wrongfully accused."

*What is the Miranda warning?

The Miranda warning is a principle that requires police or prosecutors to inform a criminal suspect of the reason for their arrest, their right to legal counsel, and their right to remain silent before interrogation. Even if the suspect is accused of a serious crime, if it is revealed during the trial that the suspect’s rights under the Miranda warning were not communicated at the time of arrest, all charges against the suspect can be invalidated. This is a powerful human rights protection mechanism. It was introduced in South Korea in January 1997. The principle was established through the 1963 trial of Ernesto Miranda, who was arrested on rape charges. Miranda was convicted in the first trial but appealed, claiming he was not informed of his right to remain silent or to legal counsel. His defense highlighted that Miranda was not informed of his right to legal assistance, leading to the Supreme Court’s acquittal in 1966. The Supreme Court ruled 5-4 that Miranda’s confession could not be used as evidence. Since then, the Miranda warning, named after him, has been established as a fundamental principle that police must follow when arresting suspects.