The Trial About Chinese Tourist Zhao Yan

Collected here are the daily press reports.  For the background and all developments leading up to this trial see, The Chinese Tourist Zhao Yan.


(Xinhua Net) (untranslated as yet)  This is a background piece and assesses the changes of success of the case by the US federal government against Robert Rhodes on the charge of violating the civil rights of Zhao Yan.  The bottom paragraph is this: "In short, I support Ms. Zhao's civil suit and I believe that she will receive an appropriate award.  As for the civil rights case, if the truth was that "Rhodes kicked Zhao thrice and rammed her head into the ground twice," then I do not believe that Rhodes will be found guilty; even if found guilty, the penalty would not be severe.  I hope that those who care and sympathize with Ms. Zhao can foresee this from the viewpoint of an American jury.  If the criminal case should end in a not guilty verdict, netizens should remain calm and not have an Internet version of the LA riot.

在美国从事商业活动的赵燕女士,2004年7月21日晚11时在美加边境的尼亚加拉大瀑布美国一侧旅游时被美国执法人员殴打的事件,发生已经九天了。从美国纽约《侨报》7月23日报道这件新闻以来,它成了中国媒体的热点新闻。中国外交部、驻纽约领事馆、美国华人界团体、赵燕女士、赵燕女士的家属、国内外华人媒体,都坚决要求美国政府严惩肇事人员。美国政府已经向中国政府和人民以及赵燕女士本人,都表示道歉,并将以伤害罪对涉案的移民局督察洛德斯提出起诉。赵燕女士表示,为了我自己的尊严,为了我们民族的尊严,要将官司打到底,直至打我的凶手被绳之以法。她已经通过律师向美国政府和肇事警察提出500万美元的诉讼。国内媒体普遍认为,美国相关肇事人员难逃法律惩罚。据《北京晨报》7月27日报道,赵燕女士的美国律师认为,赵燕的诉讼官司胜算是百分之百。
  
  面对赵燕案件的媒体乐观态度,使人们回想起1991年的美国警察残酷殴打美国黑人罗德纳-金一案。在美国法院审理肇事警察期间,看过警察殴打金的录像的洛山矶居民,90%以上都认为警察过度使用武力,都认为肯定会判处警察有罪。然而,1992年4月,陪审团判处所有被告警察无罪。这个意外的无罪判决,激怒了美国洛山矶的黑人社区,导致了持续六天的洛山矶黑人大暴乱,造成54人死亡、2,383人受伤、上万人被捕,经济损失超过十亿美元。赵燕案件,也有相似之处。在举国上下以爱国、支持同胞、谴责美国执法人员暴行的激昂热潮中,我们是否应该冷静想想,根据美国法律,洛德斯会不会被判处有罪、或者如果有罪是否会受到严惩?如果赵燕案件中,美国被告洛德斯被判处无罪,那会不会导致中国网民大暴乱?
  
  赵燕这个案件,在美国,将会分成两个不同性质的案件起诉。一个是刑事案件,由美国政府为公诉人对洛德斯侵犯民权罪提起刑事诉讼,如果罪名成立,被告将面临最高10年的监禁以及25万美元的罚金。赵燕在这个案件中是证人。另一个案件是民事案件,由赵燕女士起诉洛德斯及美国政府,要求赔偿500万美元。赵燕女士在这个案件中是原告。赵女士说,要将官司打到底,直至打她的凶手被绳之以法,是不确切的。她打的只是民事案件,除了让被告支付赔偿金之外,她本人不能对被告洛德斯个人绳之任何法。即便赵女士得到赔偿,也与我们民族的尊严没有什么关系。
  
  刑事诉讼和民事诉讼,除了上述的不同之处之外,这两个案件最大的不同就是证明被告有罪、有错的证据门槛不一样。在民事判决中,原告只须证明被告很可能犯有过错(to prove over a balance of probabilities),法庭就可以判原告胜诉。而在刑事判决中,控方必须在没有合理疑问情况下证明被告有罪(to prove beyond a reasonable doubt),法庭就才可以判被告有罪。
  
  另外一个区别,就是陪审团制度的使用。《美国宪法》奠定了陪审团制度。由于洛德斯被控的是重罪,被告有权并且肯定会要求由陪审团来审理。在民事诉讼中,则恰恰相反:除非被告明示要求陪审团审理,否则就由法官来审理。在美国,民事诉讼案件决大多数都是由法官审理的。无论是由法官审理还是由陪审团审理,民事诉讼的结果都很可能是判赵燕女士胜诉。道理很简单,无论美国警察使用武力是否构成刑事犯罪、是否属于过度武力,赵女士受到了严重的身心伤害,应当得到适当赔偿。至于赔偿的金额,肯定不会有500万美元。1991年被美国警察残酷殴打美国黑人罗德纳-金,浑身上下被警察打了50多下警棍,造成金的头部严重受伤,胸部、背部、腿部的骨头均被打断。美国政府后来向这位受害人提供了380万美元的赔偿金。
  
  对洛德斯侵犯民权罪提起刑事诉讼的案子,将会有十二名陪审员审理。这十二名陪审员必须一致同意,才能判处被告洛德斯有罪。在这里,对于被告洛德斯殴打赵女士的基本事实,相信不会有太大的异议。但是,仅仅使用武力本事,并不一定有罪。如果使用武力正当,同样无罪;或者使用武力过度,但没有造成严重后果,尚未构成刑事犯罪,也同样无罪。
  
  那么,如果我是陪审员之一,会如何审理呢?这里,首先就是看有无证据证明被告洛德斯的确有罪。根据美国司法部网站的介绍,这个侵犯民权罪的法律依据,是《美国法典》第十八章第242条(执法人员在法律色彩之下剥夺他人权利)。由于此事事件发生突然,而且没有像1992年被美国警察残酷殴打美国黑人罗德纳-金那样有录像做为证据,那么主要就依靠两个方面的证据:一是医生的体验报告,另外就是当事人的证词。至于体验报告,应当是不会有异议的,也就是说,控方和被告都不会否认由于被告的殴打,导致受害人赵燕女士受伤。问题的关键,在于被告执法人员是否违法恶意使用武力。换言之,如果他使用武力,在当时的特定情况下是合理的,那么被告洛德斯就应当宣判无罪。而当事人的证词,则包括被告洛德斯的证词、他的警察同事的证词、赵燕女士的证词以及赵燕女士同伴的证词。被告是否有罪,在很大程度上取决于陪审员是否相信不利于被告的证词。
  
  就目前媒体报道的内容来看,在相关人士的证词上面,赵燕女士的说法有漏洞,不值得完全相信。同样道理,也不能完全相信被告洛德斯的说法。最为值得相信的说法,就是被告洛德斯警察同事的证词。我不完全相信被告洛德斯警察,是因为他是打人的人,说话当然对自己有利;我不完全相信赵燕女士的说法,是因为她说话的可信度很低。这就是为什么这几天有媒体和网友质疑赵燕女士的出国登记资料、在国内的职业等等。当一个人说话前言不搭后语,即便她说的话与本案无关,同样可以拿出来做为证据,来证明证人有不说真话的习惯,所以她的证词无可信度,不应做为证据接纳、或者即便做为证据接纳,也没有什么证明力。
  
  下面,总结一下赵燕女士言行的疑点。从陪审员的角度来看这些疑点,或多或少都影响赵燕女士的可信度。应当指出的是,由于这些可疑点都是通过媒体报道得来的,所以不排除媒体误解或错误报道赵燕女士言论的可能性。
  
  一、赵燕女士很可能有拘捕行为。根据赵燕女士的说法,洛德斯从屋子冲出来之后,二话不说,掏出胡椒剂就向赵燕面部没头没脑喷洒过来,并以重拳猛击赵燕的头部和面部。而根据洛德斯的说法,洛德斯声称当时赵燕对他挥动手臂,他不得已,向她喷了胡椒剂,之后将其带入屋子。他还说当时赵燕抓他的手,于是两人都翻倒在地上。在这点上,我基本相信洛德斯的说法。赵燕女士她们三个人,其他两个人都马上逃走了。由于警察当时已经得知有两位亚裔女士是嫌疑人,看见赵女士同伴仓惶逃走,当然有理由认为赵女士也会逃走,所以猛扑上来。做为本能的反应,有男孩子气质的赵女士,极有可能对洛德斯挥动手臂。所以,在这个问题上,我认为洛德斯使用胡椒剂、强制控制赵燕女士的行为,是适当的。但是,洛德斯其后的强制行为则是过度的、很可能是非法的行为。
  
  二、赵燕女士很可能夸大了被打的事实。根据《侨报》7月23日报道,她对记者叙述的被殴打经过是这样的:这名警察二话不说,掏出胡椒剂就向赵燕面部没头没脑喷洒过来,并以重拳猛击赵燕的头部和面部。赵燕当即昏倒在地,面部肿胀,眼眶出血,辣得难以忍受。这名警察又伙同随后赶来的其他四、五个警察,一起用坚硬的皮鞋猛踢瘫倒在地的赵燕,围殴至少持续了3、5分钟之久。既然她当即昏倒在地,又如何得知随后警察围殴至少持续了3、5分钟之久呢?随后,在对国土安全部官员的调查时,赵燕女士说她至少被踢了两脚。所谓至少,就是说她只能记得那个两脚。但是,后来赵燕女士又对媒体说,除了洛德斯之外,还有三名执法人员殴打了她。在这个问题上,我相信洛德斯的同事女执法人员的说法:洛德斯踢了赵燕三次,将赵燕的头撞地两次。最后,洛德斯的男同事叫洛德斯住手,他才停下。
  
  三、赵女士就有关离开美国的日程可能有误。赵女士先说,原定美加边境两日一夜的旅游结束后于23日飞返北京。后来又说原预订23日出发前往韩国汉城谈生意,因这起案件被迫延迟。但是后来据赵女士的同事、天津兆淼工贸有限公司公司董事长蔡治平先生的说法,赵燕原本是打算23日回来的,但因为没有买到机票,公司建议她到尼亚加拉瀑布游玩,订于25日回来。赵女士本来到底是打算是23日还是25日离开美国?她美国之行之后,到底是要去北京还是韩国?她把离开美国的日期拿出来说话,明显的想表明因为被打而错过商机,很可能是借机要求赔偿相关损失。
  
  四、赵女士出于孝心向母亲隐瞒被打情况。据报道,第一次来美就遇到此事的赵燕心情一直很低落,她说,她根本不敢让天津的母亲知道,我和我母亲同住,她最近生病、身体不好,我只敢说路上有些耽误了。赵燕暂时对国内亲属隐瞒了无法如期回国的真实原因。这个隐瞒真情的原因,出于孝心,对于我们中国人当然可以理解。但是对于讲究证据和可信度的陪审员来说,不管出于什么样的好意,不说真情就是隐瞒,就是不诚实。既然可以和自己的妈妈、亲属隐瞒实情,那么她会不会对媒体、对美国调查人员也隐瞒实情呢?
  
  五、赵女士是弱女子吗?从《侨报》报道此事一开始,国内媒体都把赵女士描述成一个身材瘦小的弱女子,以反衬多名膀大腰圆的美国移民局白人警察无缘无故围殴暴打。我不相信赵女士是个弱女子。首先,她一个女人家,在陌生的美加边境,晚上十一多钟,和另外两个女子外出拍照,这个胆子小吗?她明明看见警察在制服一个黑人,不但不走,反而走上前去要拍照,这个胆子小吗?其次,根据赵女士的堂姐夫回忆,赵燕从年轻时就是一个特别正直的人,性格像男孩子一样,非常坚强。最后,所有关于赵女士的照片,都是坐着的:在室内坐在椅子,在室外坐轮椅。为什么不拍她站起来的照片?我怀疑,赵女士其实是个大个子。根据她坐的轮椅高度、长度分析,她的身高很可能有1.70米以上。如果这个假设属实,那么她坐轮椅很可能是出于维护弱女子形象。想想看,如果洛德斯看见的是一个身高1.60米的矮个子女士,恐怕不会那么猛扑上去。但是,如果面前是一个1.70米的女士,情况就不一样了。
  
  六、赵女士的职业到底是什么?《侨报》最先报道赵燕女士被打事件时,说她是从事健身器材生意。这当然是她自己向《侨报》说的。然而,现在据报道,赵女士是天津兆淼工贸有限公司公司的法人代表,而她到美国是为参加宾州政府将要举办的木材洽购会做准备。已经有网友指出,这个木材洽购会和她的健身业务有什么联系?此外,她的这个法人代表也好生奇怪。根据《中华人民共和国公司法》第45条规定,董事长为公司的法定代表人。然而,身为天津兆淼工贸有限公司公司法人代表的赵女士,自己却不是董事长,因为董事长是蔡治平先生。
  
  最后,对这个案子作个预测。民事诉讼,美国政府很可能庭外和解,给赵女士一笔客观的赔偿金,当然这笔钱再多,也不能医治赵女士的身心伤害。唯一受益的,恐怕就是那个里根律师楼的律师,他们会喜笑颜开的。至于刑事诉讼,相信美国政府一定会进行起诉,也相信美国法院、陪审团会秉公判案。但是,那些相信 严惩凶手的人,请不要抱太大希望。首先,美国实行的是司法独立,刑事法庭庭长不是美国共和党政法委员会书记。其次,被告是否有罪,是由十二名美国普通人组成的陪审团决定,他们不会屈服任何政治、外交或媒体的压力。最后,即便判处被告有罪,也不一定是严惩。1991年那么残酷殴打美国黑人罗德纳-金的警察,一开始被判无罪,导致1992年4月美国洛山矶黑人大暴动。事后,美国政府不得不重新以联邦法起诉,其中两名被被判罪,但是仅仅被判处30个月的有期徒刑。
  
  一句话,支持赵女士的民事诉讼,相信她会得到适当赔偿。但是对于刑事诉讼,假如情况真的是洛德斯踢了赵燕三次,将赵燕的头撞地两次,那么我不相信被告洛德斯在刑事诉讼中会被判处有罪,即便有罪,也更不会受到严惩。希望关心、同情、支持赵燕女士的人,预测到这一点,从美国陪审员的角度看问题。这样,如果刑事审判的结局是无罪,网友们也会心态平和,不至于会发生网络上的洛山矶暴动。


(Associated Press via Newsday)  Border officer says he followed procedure during struggle.  By Carolyn Thompson.  August 19, 2005.

A veteran Customs and Border Protection officer charged with beating a Chinese tourist said Friday he acted "by the book" during a struggle in which the woman was pepper-sprayed, thrown against a wall and her head forced into the pavement.

Officer Robert Rhodes spoke briefly before the start of his trial in U.S. District Court, where he is accused of using excessive force against the visitor he had mistaken for a drug suspect.  "When I stopped her she fought. I followed CBP procedure by the book," Rhodes said as he arrived at the courthouse.

The 17-year border inspector is charged with depriving Zhao Yan of the Constitution's Fourth Amendment protection against unreasonable force by a law enforcement officer.  

"She's here in our country. She gets the same protection," assistant U.S. Attorney Martin Littlefield told jurors during his opening statement.

Rhodes could face 10 years in prison if convicted.

Zhao, 38, is suing the U.S. government for $10 million over the July 2004 incident that drew intense interest in China after pictures of Zhao, in a wheelchair with scrapes on her forehead and two black eyes, were widely published. The official Xinhua News Agency reported that China's foreign minister demanded in a phone call with then-Secretary of State Colin Powell that American border officials be punished.

Rhodes' attorney, Steven Cohen, has accused the U.S. government of bowing to pressure from the Chinese. In his opening statement, Cohen said it was "nothing short of extraordinary" that Rhodes was the one facing charges when it was Zhao and two traveling companions who had run from U.S. border agents seeking to question them.  

Cohen has included Powell, along with former Homeland Security Secretary Tom Ridge, on his list of potential witnesses.  Cohen also has claimed that Rhodes, who he said has processed 8 million visitors at the border, was singled out for prosecution becuase he is openly gay, and that his supervisors had long wanted to see him go because of it.

Littlefield has denied that either political pressure or Rhodes' homosexuality played a role in the indictment.  

In court Friday, Littlefield said that within seconds of running up to the petite Zhao, Rhodes emptied a can of pepper spray in her face and threw her against a wall, causing her to fall to her knees in a fetal position, her hands clamped to her burning eyes.  When one of two other officers who arrived to help could not pry Zhao's left hand from her face to handcuff her, Rhodes kneed her three times in the head and then grabbed her hair and pounded her head into the cement, Littlefield told jurors.

"There's no indication she's flailing or kicking. She just won't give up that arm," the prosecutor said.

Cohen painted a different picture, saying Zhao _ who Rhodes believed had been traveling with a man who had just been caught with marijuana _ had clawed and kicked at Rhodes, leaving scratches on his chest and bruises on his shin that are evident in photographs to be shown at trial.

"We don't have little Miss Innocent who was sprayed for no reason at all," Cohen said.  "Terrorists come in all sizes, shapes and colors," said Cohen, who said Rhodes used only the force necessary to keep the woman under control and from reaching for a potential weapon.  "Officer Rhodes did exactly what he was trained to do and exactly what we want him to do," he said.

Zhao, who owns a furniture company in Tianjin, is expected to testify through an interpreter during the trial, which will likely take more than two weeks.

The government called as its first witness a Department of Homeland Security firearms instructor, who testified that Rhodes had undergone mandatory training in the use of pepper spray and deadly force two months before the incident.


(Buffalo News)  Trial opens in beating on border.  By Michael Beebe.  August 20, 2005.

Robert Rhodes has protected the U.S. border for 17 years, three years shy of retirement, his attorney noted Friday in U.S. District Court in questioning why such a man would use pepper spray on an innocent woman and attack her, as the government has charged.

Perhaps in Rhodes' mind, attorney Steven M. Cohan told jurors, the woman - Zhao Yan - wasn't quite so innocent.  Cohan wants to know why Zhao, a Chinese citizen, was standing outside an inspection area at the Rainbow Bridge with two other Chinese women the night of July 21, 2004, watching customs agents handcuff a man caught smuggling pounds of marijuana across the border.

Rhodes, thinking the women might have been involved in the drug smuggling attempt, went outside to question them, but they ran off, Cohan said in his opening statement in Rhodes' trial on a charge of violating Zhao's civil rights.  When Rhodes caught Zhao about 50 feet from the inspection area, Cohan said, she scratched and kicked him, forcing him to use pepper spray and then, with two other agents, apply enough force to subdue her.

Zhao suffered no serious injuries, the defense lawyer argued. He attributed her badly swollen eyes, visible in pictures shown throughout China, as most likely a reaction to the pepper spray.

Officers in the Department of Homeland Security's Bureau of Customs and Border Protection can't be too careful after the terrorists attacks on Sept. 11, 2001, Cohan said, adding that Chinese nationals are among those customs agents are trained to suspect.

Rhodes also had no way of knowing what might have been in Zhao's handbag, Cohan argued.  "Terrorists come in all shapes, sizes and colors," he said. "Suicide bombers come in all sizes, shapes and colors."  He said it was extraordinary to arrest a customs inspector, while allowing a woman to go free after she fled an order to stop and fought the inspector.

Assistant U.S. Attorney Martin J. Littlefield, who is prosecuting Rhodes, 44, said the case is simple and straight forward.  Zhao, 38, a Chinese businesswoman who had taken a side trip to Niagara Falls, "had a constitutional right to be free from a government official using excessive, unreasonable force," Littlefield told the jury.  "She has constitutional rights the same as yours," Littlefield argued in Judge Richard J. Arcara's courtroom. "She's a visitor in our country. It didn't have to be a Chinese citizen. It could have been Joe Blow walking down the street, it could have been your neighbor."

Rhodes is charged with a single count of violating Zhao's rights by using excessive force under the guise of law. The charge carries a 10-year prison term.

Rhodes, a slight man in glasses with short-cropped hair and wearing a gray sport coat, was portrayed as various sizes by Littlefield as he attempted to draw a distinction between him and the smallish Zhao, who is 5 feet 2 and 120 pounds. As a witness, Zhao is excluded from the court until her testimony.  At one point in his opening statement Littlefield described Rhodes as 6 feet tall and weighing 200 pounds; at another point, he said Rhodes stood 6 feet, 2 inches tall.  Cohan, who commented that his client seemed to grow during Littlefield's remarks, said he had measured his client as 5 feet, 101/2 inches tall.

Size didn't matter, he maintained, scoffing at the notion that a woman is not capable of fighting a man. He promised to show the jury pictures of bruises and scratches that, he said, Zhao had inflicted on his client. The prosecution has said it will provide its own pictures, showed Rhodes had little if any injury.

Littlefield said testimony of other officers involved in handcuffing Zhao will show that Rhodes pepper-sprayed her, threw her against a wall, kneed her three times in the face and smashed her face against the pavement.

Impossible, Cohan countered. If Rhodes did all that, Zhao would have suffered serious facial injuries, he said, adding he would call medical experts to show she had not.  Although Cohan contends that Rhodes had been singled out for prosecution because he is gay and his superiors want to get rid of him, he never mentioned that to the jury.


(Buffalo News)  Photos of tourist's injuries shown to Rhodes trial jury.  By Michael Beebe.  August 26, 2005.

Jurors got their first look at the bruised and swollen face of Zhao Yan in U.S. District Court on Monday, as prosecutors continued their attempts to show that border inspector Robert Rhodes used excessive force against the Chinese tourist at the Rainbow Bridge last summer.

Pictures of Zhao, 38, a businesswoman who had taken a side trip to Niagara Falls, were shown to the jury after Judge Richard J. Arcara overruled defense attorney Steven M. Cohen's attempts to bar them as inflammatory.  Cohen claimed the photos had little or no evidentiary value and would unnecessarily prejudice the jury against his client, Rhodes, 44, an officer of the Department of Homeland Security's Bureau of Customs and Border Protection.

Assistant U.S. Attorney Martin J. Littlefield earlier told jurors that Zhao's facial injuries came about after Rhodes kneed the woman three times and then smashed her face against the pavement twice as he tried to handcuff her the evening of July 21, 2004.  Cohen contends that Zhao's eyes were swollen from the effects of pepper spray and that she would have suffered serious facial injuries had Rhodes done to her what the government has claimed. He said his client used reasonable force to subdue Zhao.

Rhodes, who has spent 17 years with the Customs Service, is charged with a single count of violating Zhao's civil rights. The charge carries a 10-year jail term.

Littlefield and fellow prosecutor Allison Gioia called a parade of Rhodes' fellow inspectors to testify Monday, part of a group of 10 officers who responded to a duress call put out by Rhodes.

Zhao, who is scheduled to arrive here from China this weekend and testify Monday, told investigators that she and two other Chinese women were outside the Rainbow Bridge immigration office at a time when officers inside had placed a drug smuggler under arrest.

The man, Dennis Leathers of Baltimore, testified Monday that he was arrested trying to bring marijuana across the border.  Leathers had been cleared by one agent - Rhodes - when officer Angelo Arcuri noticed a bulge in Leathers' back and stopped him to ask what it was.  "I told him it was my belt," Leathers said. "He said it wasn't no . . . belt and to get on the . . . floor."  Leathers, who was turned over to Niagara County authorities, said he served a four-month prison term.

Rhodes and other customs agents said they thought Leathers had come through the border with the three Chinese women, but Leathers said Monday he had come over by himself.  After Arcuri handcuffed Leathers, Rhodes hit the alarm button for help in pursuing the three women, and the area was swarmed by other officers, some of those inspectors who testified Monday.

Several said once they went outside the building they saw Rhodes pepper spraying Zhao, figured he had the situation under control and chased after the other two Chinese women.  Amina Zinnerman and Emmett Russell, the two inspectors who helped Rhodes handcuff Zhao, are expected to testify against him today.  Cohen again Monday attempted to argue that prosecutors have denied him access to various customs inspectors. But Arcara, after questioning both attorneys, said there was no evidence of it.


(Buffalo News)  Tape lacks evidence of struggle at customs.  By Michael Beebe.  August 25, 2006.

Jurors who will decide the fate of U.S. Customs Officer Robert Rhodes watched two hours of videotape Wednesday of the Rainbow Bridge the night of July 21, 2004, but never saw what took place that evening between Rhodes and Chinese tourist Zhao Yan.

The Niagara Falls Bridge Commission, which operates the Niagara Falls crossing, has numerous cameras that record what goes on at the bridge, but the camera - No. 13 - that would have shown the struggle was malfunctioning.

Jurors saw that Zhao and two other Chinese women with her did not cross the Rainbow Bridge with Dennis Leathers, as Rhodes and other agents suspected.  Leathers, caught with four pounds of marijuana, earlier testified he crossed alone. He served a four-month state prison term.

Jurors also saw a number of Homeland Security officers, responding to Rhodes' call for assistance, pursue the two Chinese women with Zhao, who fled when Rhodes told them to stop.  But whether Zhao ran too, as Rhodes claims and prosecutors deny, was also part of what the malfunctioning camera would have shown, as was what happened when Rhodes subdued Zhao.

Rhodes, 44, a 17-year veteran of the customs side of what is now the Department of Homeland Security's Bureau of Customs and Border Protection, contends Zhao ran from him, then scratched and kicked him when he tried to subdue her. He said he used necessary force to subdue her.

Two fellow officers of Rhodes, Emmett Russell and Amina Zinnerman, testified Tuesday that as all three officers tried to handcuff Zhao, Rhodes kneed her in the head and smashed her head into the pavement. They said his actions were unnecessary. Rhodes had earlier pepper sprayed Zhao and threw her against a wall, Zinnerman testified.

Zhao, 38, a Chinese businesswoman who came to Niagara Falls on a side trip, will testify Monday. She has said in a number of interviews that she believes she was beaten by three officers.

Rhodes is charged with a single count of violating Zhao's civil rights.


(Associated Press via Newsday)  Jurors see close-up of tourist's injuries after border struggle.  By Carolyn Thompson.  August 29, 2005.

Jurors who will decide whether a border officer was too rough on a Chinese tourist got a close-up look at the visitor's injuries Monday through pictures taken shortly after the incident.  On Tuesday, government prosecutors were expected to put the alleged victim on the stand. 

Department of Homeland Security Officer Robert Rhodes is charged with violating Zhao Yan's civil rights by using excessive force after mistaking her for a drug suspect at a Niagara Falls inspection station where she had traveled with a tour group. Prosecutors say Rhodes sprayed Zhao with pepper spray, slammed her head to the pavement and drove his knee into the side of her face.

The photographs taken within two hours of the incident last July showed Zhao's forehead scratched and swollen, her left eye puffed to a slit and bruising to her right eyelid.

Zhao suffered no broken bones and no internal bleeding, an emergency room doctor who treated her testified Monday. Dr. Gil Marzinek said Zhao's eyes were irritated from pepper spray and attributed the swelling and bruising to "forceful contact with a hard surface."

Earlier Monday, one of Zhao's two traveling companions testified that she became frightened and ran after the three women saw an officer pinning a man to the floor when they peered inside the doors of what turned out to be an inspection station at the Rainbow Bridge.

The man, Dennis Leathers, had been caught trying to smuggle marijuana across the border.

An angry-looking officer then ran toward the door, Xie Fang testified, and the women ran.  "His expression was extremely sinister, very horrible," Xie said through an interpreter. "My instant reaction was maybe he doesn't want us to see him pressing down this man."

Xie said she ran until coming upon three women on a bench and stopped. She was then handcuffed by two officers who had chased her.  

Authorities allege that in the meantime, Rhodes caught up with Zhao and beat her while trying to handcuff her.  Rhodes and other officers believed the three women may have been associates of the drug suspect, Leathers, when they began their chase.

Rhodes has said he followed Customs and Border Protection procedure in subduing Zhao after she ran from him and struggled when caught. The 17-year CBP officer could face up to 10 years in prison if convicted.

Defense attorney Steven Cohen has accused the U.S. government of bowing to pressure from the Chinese in prosecuting Rhodes.

Zhao is suing the U.S. government for $10 million.


(Buffalo News)  Tourist's face 'beyond recognition'.  By Michael Beebe.  August 30, 2005.

One of Zhao Yan's fellow Chinese tourists said she barely recognized Zhao after she was tackled and handcuffed by Robert Rhodes and two other border inspectors last summer at the Rainbow Bridge.  "When I first saw Zhao Yan her face had completely changed beyond recognition," Xie Fang testified Monday in Rhodes' U.S. District Court trial. "I could not recognize her anymore."

"Her face was swollen, there was a big bump on her forehead," Xie testified. "Around her eyes were also bumps and bruises. Her eyes had dropped out of sight. They had become two slits."  As Xie testified, jurors hearing the case before Judge Richard J. Arcara got yet another view of photos of Zhao's battered face.

It was only a few moments before, Xie testified, that she, Zhao and fellow tourist Ning Huang had happened to look inside the customs station at the Rainbow Bridge as agents were handcuffing a man.

The man, Dennis Leathers, earlier testified that he had just been caught trying to smuggle 4 pounds of marijuana across the border at about 11:15 that night, July 21, 2004.  Rhodes, who had initially allowed Leathers into the country before another agent noticed a bulge in his back, told investigators he thought that the Chinese women were with Leathers, hit a duress alarm to call for other officers, and gave chase.

Rhodes, a 17-year veteran of what is now the Homeland Security Department's Bureau of Customs and Border Protection, is charged with violating Zhao's civil rights. Zhao is expected to testify today.

A large contingent of Chinese reporters based in New York City were in court Monday, anticipating Zhao's expected testimony. The case is drawing widespread coverage in China.

Xie said she met Zhao and Huang on a tour of Niagara Falls that day. The three women were on a tour bus from New York City to the Falls and had met that night at dinner.  After watching the falls at night, they were outside the customs station, taking pictures of a sign to Canada, Xie said, when the women looked through the door and watched Leathers' arrest.

One of the officers, Xie testified, bolted out of the door toward them.  "At this time, I saw a cop suddenly rush from inside, his eyes were extremely sinister, very horrible," Xie testified through a translator.

Xie never identified Rhodes in court as the man first through the door, but previous witnesses have said that Rhodes led the parade of nearly a dozen inspectors who eventually chased after the women.

"My instinctive reaction," Xie said, "was maybe he didn't want us to see him (handcuffing) the man. Because the expression on his face was very terrible, very horrible to look at. I instinctively ran away."  Xie and Huang, who also ran, were eventually caught and handcuffed by agents, but Xie said as she was running away, she glanced back to see the man she first saw come out the door and two other agents surrounding Zhao.  "I turned around to see," she said under questioning from Assistant U.S. Attorney Allison Gioia. "I saw two or three around Zhao Yan, she already was squatting on the ground."

Two of Rhodes fellow inspectors, Emmett Russell and Amina Zinnerman, earlier testified that while they were trying to handcuff Zhao, Rhodes drove his knee to the side of her face and smashed her head onto the pavement.  Russell said he grabbed Rhodes' shoulder and told him to stop. Both officers said Rhodes had pepper sprayed Zhao as they came running to the scene, and Zinnerman said she watched Rhodes throw Zhao against a wall.  Both officers said Rhodes used unnecessary force to subdue Zhao.

Two doctors testified Monday that Zhao's injuries were consistent with blunt force trauma, and not caused by the pepper spray.  Dr. Gil Marzinek first treated Zhao in Niagara Falls Memorial Medical Center, and Dr. Douglas Monasebian, a New York City plastic surgeon, saw Zhao a week later.

Defense lawyer Steven M. Cohen sparred repeatedly with Monasebian, referring to him as the plastic surgeon who saw Zhao at the request of her "personal injury lawyer," Stanley Legan of Queens.  Cohen has used every opportunity to tell jurors that Zhao intends to sue Rhodes for $10 million. Cohen has also pointed to Zhao's statements that three officers attacked her and said Rhodes only used necessary force to subdue Zhao after she kicked and scratched him.

None of the three Chinese women were charged.


(Associated Press via Newsday)  Tourist identifies border officer in beating incident.  By Carolyn Thompson.  August 30, 2005.

A Chinese businesswoman faced the Homeland Security officer accused of beating her during a dramatic courtroom encounter Tuesday, where she vowed she will "always remember his face."

"How could I not know him," Zhao Yan cried when asked whether the officer was present in U.S. District Court. "He beat me up with savagery and brutality. I will always remember his face my whole life.

"I cannot believe the American police are so savage. That's him," Zhao continued before dissolving into sobs, a white handkerchief pressed to her face.

The declaration, delivered through an interpreter, ended Zhao's first day on the stand in the trial of Customs and Border Protection Officer Robert Rhodes. The veteran officer is charged with violating Zhao's civil rights by using excessive force while taking her into custody at the Rainbow Bridge in Niagara Falls last July.

Zhao testified that she believed three or more officers took part in the beating that left her eyes puffy and bruised and forehead scraped and swollen. Only Rhodes has been charged.

Rhodes has said Zhao and two companions fled when beckoned by border officers who believed the three Chinese women may have been associated with a black man who had just been caught with marijuana.  Rhodes had initially allowed the man, Dennis Leathers, to enter the country before another agent spotted a bulge containing drugs on his back. Rhodes could face up to 10 years in prison if convicted.

Zhao, 38, frequently cried while describing her visit to Niagara Falls, which she said she had wanted to see since reading about it in junior high. An executive of a trading company, Zhao had made the stop during a business trip to the United States, which she said was at the invitation of Pennsylvania economic development officials.

After taking a tour bus from New York City to Niagara Falls, Zhao and two women she had met over dinner came upon a customs inspection station during a nighttime sightseeing outing. Zhao's companion, Xie Fang, testified Monday that they peered through the doors and saw an officer pinning a black man to the floor, then became frightened when Rhodes beckoned toward the women and rushed the door.

While the two other women ran, Zhao testified that she froze, fearing she would be shot.

When Rhodes approached her, she said she spoke to him in broken English: "I'm from China, on business to America. My visa in my bag."  But the officer doused her with pepper spray, sending her dazed and blinded to the ground, she said.

"My whole face was burning then I felt a strong blow," she said. "I saw dark. There were stars before my eyes."

"My feeling was there were three or more than three (officers) who were surrounding me and somebody was kicking me on my face," said Zhao, who at times had difficulty speaking through her sobs.  "I felt so scared I felt I was dying," she said.

Zhao said she could not see her attackers through the pepper spray, and identified only Rhodes when asked by defense lawyer Steven Cohen whether the officer who had used the pepper spray was in the courtroom.

The trial was attended Tuesday by several Chinese students attending college in Buffalo, who said they were there to support Zhao, as well as representatives from the Chinese Consulate General's office in New York City.  "We hope the court can try this case in a legal and fair way," said consul Fu Weina, who said her office has been paying attention to the case from the beginning.  

Outside the courthouse, Kong Dezhou, a visiting scholar to Buffalo State College, held an enlarged photograph of Zhao showing her eyes swollen shut and bruises to her forehead taken shortly after the incident.  "I was scared by the pictures," Kong said. "I can't believe that in America ... that a person should have been beaten like this."

Also in the courtroom were attorneys assisting Zhao in her $10 million lawsuit against the U.S. government over the incident.

Zhao was expected back on the stand Wednesday.


(Buffalo News)  Victim testifies in officer's assault trial.  By Dan Herbeck.  August 31, 2005.

Bursting into tears more than a dozen times, the victim of an alleged assault by an officer at the Rainbow Bridge began her testimony Tuesday in a case that has become a Homeland Security horror story for the United States government.

Chinese businesswoman Zhao Yan, 38, told jurors that she was pepper-sprayed by a government officer, knocked to the ground and kicked in the head until she was senseless on the night of July 21, 2004.

Zhao said she believes she was struck by more than one attacker, but the only one she recognized was Robert Rhodes, 44, the Homeland Security officer who is accused of violating her civil rights.

"How could I not know him? He beat me up with such savagery and brutality," Zhao sobbed through an interpreter. "I will remember his face for the rest of my life. I cannot believe the American police are so savage. That's him!"

Zhao testified more than three hours Tuesday afternoon, finally becoming so emotional that District Judge Richard J. Arcara stopped the proceedings, directing her to return to the witness stand today.

The witness said she was attacked by Rhodes without provocation after she and two other Asian women had been sightseeing and taking photographs near a security checkpoint on the American side of the bridge.

Zhao said her two companions ran away. She said she was afraid to run because she thought Homeland Security officers might have the authority to shoot her.

"My feeling is there was three or more than three people surrounding me. Somebody was kicking me on my face," Zhao said. "When I knelt down, my head felt another impact. I was dazed. I couldn't see anything . . . There were stars before my eyes."

Rhodes has been suspended since the incident. No other Homeland Security officer has been disciplined or charged. The officer's attorney, Steven M. Cohen, says his client was singled out for prosecution because he is gay and also questioned Zhao's credibility in an interview after the testimony.

"I hope the jury knows an actress when they see one," Cohen said. "I would be more convinced of her sincerity if she had tears when she cried. I'd like to subpoena her handkerchief, to see if there are any tears on it."

"Her testimony was honest [because] that's what happened to her," said Howard B. Ross, one of Zhao's attorneys in a multimillion-dollar brutality lawsuit against the federal government. "I didn't coach her."

Zhao said she had taken a business trip in Pennsylvania, exploring a possible timber deal for a company where she works, before deciding to take a side trip to see Niagara Falls.

She said she and two women she met on the trip were taking pictures near the bridge when they spotted officers arresting a man who was accused of carrying marijuana over the bridge.

Rhodes then "beckoned" to her, waving with his hand for her to come and talk with him, Zhao said. She said Rhodes reacted violently when she told him, "I'm from China on business to America. My visa in my bag." "He went behind his back and pulled out a little can and started spraying it into my eyes and my face," Zhao said. "I didn't know what he was spraying . . . I felt like my whole face was burning." Zhao said she fell to her knees, and then felt repeated kicks or blows to both sides of her head.

"I was blinded by the spray. I couldn't see anything," Zhao said. "I was scared to death."

She was handcuffed and taken into custody, and then taken for medical treatment. No criminal charges were filed against Zhao.

Authorities believe Rhodes attacked Zhao because he mistakenly believed she was somehow linked to the man - Dennis Leathers - who had been caught with marijuana. According to prosecutor Martin J. Littlefield, there was no connection between the two.

Last week, two officers who worked with Rhodes testified that they saw Rhodes drive Zhao's head into the pavement and smash her in the side of the head with his knee.

On Tuesday, Zhao did not specify Rhodes as one of the attackers until Cohen asked her if she recognized his client.

Cohen raised numerous questions about Zhao's contention that she had come to the United States to investigate a possible timber deal involving a Chinese company where she was the general manager. Cohen will continue his questioning of Zhao today.

Before Zhao's testimony, Cohen questioned the actions of Steven MacMartin, a Homeland Security internal affairs agent who headed the investigation that led to Rhodes' arrest.

Cohen sought to prove that Rhodes was quickly singled out for prosecution after the fracas, and that little effort was made to investigate Rhodes' side of the story, or the possibility that other officers may have injured Zhao.

MacMartin said he was aware that Zhao has claimed that a number of Homeland Security officers "attacked" her.

"Did you ever ask her the identity of the other officers?" Cohen asked.

"I did not," MacMartin said.


(China Press USA)  August 31, 2005.

At 1:45pm, Zhao Yan was ready to testify.  As she was sitting next to our reporter in the gallery, we could see that her hands were trembling nervously.  She was then asked by the judge to sit in the witness box in the company of an interpreter.

Prosecutor Martin Littlefield did the direct examination first, asking Zhao  Yan why she came to the United States, the situation of her company and her experience at Niagara Falls.

Zhao Yan told the court that she is the general manager of a Tianjin company.  On July 12, 2004, she came to the United States with a B1 visa under the invitation from the Pennsylvania State Economic Development Corporation to inspect the timber industry for one week.  During the trip, Zhao went to Harrisburg and visited several timber value-added factories.  Afterwards, she went to Philadelphia and met with an official named Nancy.  She was accompanied on her trip with three colleagues, who know the technical side of the business.  Afterwards, Zhao went to New York City to visit her friend Jennifer Xiao.  But her friend was in Greece, and she stayed at her friend's house.  She toured Manhattan, saw Wall Street and the United Nations and got a picture taken with a police officer.  She said that she had a good impression of American police officers -- "tall, strong and handsome."  Then she decided to see the Niagara Falls.

When the topic came to the Niagara Falls, Zhao Yan became emotional for the first time.  She said that she had read about the Niagara Falls in textbooks and it was a childhood dream to want to see it.  After she said that, she began to cry causing some other Chinese female students to be moved.

When it came to the beating, Zhao Yan said that she only saw a police officer coming from inside the glass door and looking "very fierce."  "Subconciously, I wanted to run.  But I did not run, because I felt that if I ran, the police might shoot.  I thought that I did nothing wrong and I can explain to the police."  Zhao Yan described the situation as above.  When the policeman came out, Zhao Yan explained in simple English, "I from China.  I business to Amerca.  My visa under my bag."  But the police officer used a hand sign to let Zhao Yan not to look in her bag and his other hand took out a can and he sprayed her in the face, head and neck.

Zhao Yan could not see anything.  She was so scared that she thought she was going to die.  Her eyes hurt terribly.  Then she felt her head hitting the ground heavily.  She was down on her knees.  She felt someone kicking her face.  Then someone kicked her in the side.  She fell on the ground.  At this point of the narration, Zhao Yan was in tears.

Zhao Yan said that she was then brought into an office.  Two female officers took pity on her and applied a certain liquid on her face.  At the time, she was covered with blood on her head and her face (including her nose).  The liquid removed the blood.

Zhao Yan's description contradicts the defense's doubts about her injuries.  At the time when defense attorney Steven Cohen cross-examined the other witnesses, he wondered why there was no blood on her face in the photo and her nose was uninjured despite the alleged severity of the injuries.

(China Press USA)  August 31, 2005.

After a recession to allow Zhao Yan to recoup herself, it was time for the cross-examination by defense attorney Steven Cohen.  To start, Cohen keyed on Zhao Yan's letter of invitation to come to the United States, and asked her many questions about timber moistness and measurement techniques.  Zhao Yan knew nothing and simply said that she left the details to the company technicians.  The judge lost patience and asked the jury to leave.  Then the judge asked Cohen hwat the point was: "She said that she does not any technology stuff because that was the responsibility of her workers.  So why are you still asking about it?"

Cohen told the judge that he wanted to estabilish the credibility of the witness.  The judge paused and said, "I can give you some room to ask, but I will pay close attention to your questions."

COehn then took out the letter of invitation that Zhao Yan received in order to come to the United States.  Cohen asked, "You claim that you came here to buy timber, but this letter said you were here to open an office, and you wanted to buy office furniture and study the work and living conditions here, and to create employment opportunities here."

Cohen read out the letter and his attack seemed to make Zhao's credibility doubtful.

But Zhao Yan said with confidence: "First of all, the letter of invitation that you have is not the final letter of invitation.  Besides, the business was written by the State of Pennsylvania.  At the time, one of their officials toured Zhao's company in China and was quite pleased.  Therefore, he proposed that Zhao set up a factory in Pennsylvania."  But Zhao Yan said that is just a long-term objective, whereas the trip was for the sole purpose of purchasing cherry wood.

Cohen then asked, "Do you know that Pennsylvania is known for its pine and fir trees but it has no cherry trees?  Besides, what do you need timber for?"

Zhan Yan said: "To make money."

Cohen: "How?"

Zhao Yan: "By selling furniture."

Cohen then fussed over the length of stay on Zhao Yan's business visa.  He asked her why the immigration officer extended the period of stay to three months without even being requested by Zhao Yan.  She said, "Why don't you go and ask the Immigration Department?"  In truth, Cohen was obviously ignorant about immigrant visas since business visas are usually good for three months.  Zhao Yan's I-94 had a departure date of October 9 (three months after she entered).

Since Cohen failed to damage Zhao on the letter of invitation and the visa, he turned his attention to the details at Rainbow Bridge.  This is undoubtedly the strong suit for Zhao Yan.  When asked if she recognized the police officer who assaulted her, she cried once more, straightened her shoulders and pointed to Robert Rhodes: "How could I not know him.  I will remember his face my whole life.  That person who beat me up with such savagery and brutality.  I cannot believe the American police behave so viciously!" (我怎么能不认识他?!我一生都会记住他的脸,那个如此惨无人道、恶毒地打我的人!我不相信美国的警察会有这么恶毒的行为!)

The judge then called the court into recess.  The trial will resume tomorrow.


(Buffalo News)  Chinese woman testifies against bridge officer.  By Dan Herbeck.  September 1, 2005.

Chinese businesswoman Zhao Yan testified Wednesday that she is certain that Homeland Security Officer Robert Rhodes was the main aggressor in an allegedly unprovoked attack on her at the Rainbow Bridge last summer.

But questions arose on Wednesday about the involvement of two other officers as federal prosecutors concluded their case against Rhodes in U.S. District Court.

Zhao, 38, said she is certain that Rhodes is the man who pepper sprayed her in the face and knocked her to the ground, but she acknowledged that other officers may have then kicked her in the head.

"How many people were kicking your face?" defense lawyer Steven M. Cohen asked the emotional witness.

"I could not see. There were three people, or more than three people," Zhao answered.

"Is it fair to say you don't know it was Officer Rhodes who kicked you?" Cohen continued. "It could have been any of the officers who kicked you in the head, correct?"

"I do not know," Zhao said through an interpreter.

Zhao added that she was "traumatized" by the attack, temporarily blinded by pepper spray and cannot remember many details. "My heart is very heavy, but I will always remember . . . Mr. Rhodes here," she said. "I will always remember that mean, very savage look in his eyes."

Rhodes, 44, is the only Homeland Security officer who was suspended and charged criminally after the July 21, 2004, incident at the Niagara Falls bridge. Authorities believe Rhodes attacked Zhao because he mistakenly believed that she was involved with a man who had just been arrested for smuggling a packet of marijuana over the bridge.

Cohen alleges that Rhodes was unfairly singled out for prosecution. He got Zhao to admit that she also identified two other officers when she filed an intention to claim $10 million in damages against the Homeland Security Department.

Those two officers - Emmett Russell and Amina Zinnerman - are now key witnesses for the government. They testified last week that Rhodes smashed his knee into Zhao's head, grabbed her by the hair and slammed her face into the pavement. The alleged attack took place outside a Federal Inspection Station at the bridge.

Because of the millions of dollars potentially at stake in her claim, Zhao has a motive to "fabricate" testimony, Cohen said.

Zhao's testimony was observed by a number of Chinese journalists, Chinese students and two representatives of the Chinese consulate in New York City. One of the students, a woman working on a research project at Buffalo State College, repeatedly began to cry as Zhao told her story.

"This case has aroused great attention in China," said Fu Weina, the Chinese consul in New York. "If the facts we heard today are true, you can understand why . . . We hope (the trial) ends in a proper, legal and fair way."

Zhao was the 21st prosecution witness to testify in the trial, which began Aug. 19. She became extremely upset while describing the events to Cohen and prosecutor Martin J. Littlefield.

After Littlefield rested his case, Cohen began presenting defense witnesses. The first, Homeland Security Officer Kathleen McKeon, said the injuries she saw on Zhao's face minutes after the incident were not nearly as severe as those in pictures taken later.

More defense witnesses are expected today.


(China Press USA)  September 1, 2005.

Zhao Yan finished her testimony on August 31, 2005.  The cross-examination today was calmer than the previous afternoon.  But the jury had to be sent out of the courtroom on three occasions as the judge and lawyers debated points.

Twenty minutes after the lunch break, the judge told Zhao Yan that she was excused.  Zhao Yan asked for three minutes to make a statement, but the judge politely declined.

(China Press USA)  September 1, 2005.

On August 31, defense attorney Stephen Cohen followed his previous line of inquiry and sarcastically remarked that Zhao Yan was 'rehearsed' by the prosecutor.  Previously, Cohen had said that Zhao Yan was a "good actress."

Cohen began by asking Zhao Yan to "confirm" that officer Robert Rhodes was wearing eyeglasses or not.  The judge interrupted the question and asked Coehn: "What do you mean by 'confirm'?  She can remember, but she cannot 'confirm'."

Zhao Yan replied that she was certain that he did not wear eyeglasses, but she was unsure if he wore a hat.  When asked if she was certain that only Rhodes assaulted her, she said that between the start to the moment when her head hit the ground the second time, it was only Rhodes.

Cohen then wondered that since Zhao Yan had previously said that she could not open her eyes due to the pepper spray, then how could she be sure that it was Rhodes.  Zhao explained that the pepper spray had not taken effect immediately.  At first, she felt a little bit cold, and then she felt the sting later.  That was why she could still see who hit her.

Cohen then showed Zhao the monitoring videotape of the arrest of the drug smuggler Dennis Leathers, and he wanted Zhao Yan to point out which one was Leathers and where she was standing at the time.

Zhao Yan said that she could not tell who was who in the tape, and she did not know where she stood because the videotape was taken from the inside of the custom inspection station whereas she was standing outside at the time.

Cohen immediately remarked sarcastically that she was able to understand a complicated diagram before, but she could not comprehend a simple video segment.  He asked, "Is this because the prosecutor did not give you practice with these tapes?"

(China Press USA)  September 1, 2005.

The cross-examination in the morning revolved around what happened at Rainbow Bridge.  At noon, the judge told the witness and the jury to go out for lunch, and then he discussed some new motions with the lawyers.

COehn wanted to ask about a document that Zhao Yan's civil attorney Leagan had prepared for the civil suit against Homeland Security.  Apart from asking for US$10 million in personal damages, the document also listed the names of many other involved police officers, not just Rhodes alone.

The prosecutor and the judge both opposed the introduction of this document for the purpose of cross-examining Zhao Yan.  Judge Arcara said that this is a document prepared by the law office.  It is directed against the American government, so a Chinese citizen would not understand it.  Even people who are involved in the practice of law on a daily basis may not understand it.  "Frankly, sometimes I don't even understand it," said the judge.  The judge also characterized the terminology used in this type of document as "legal garbage" and "lawyer's stuff."  Arcara then read aloud a number of legal terminology to illustrate the absurdity.

But Cohen refused to budge and said, "Your honor, no rule prevents me from questioning her!"  He said that he wanted to ask Zhao Yan about this document because of certain contradictions in the document which has Zhao Yan's personal signature on it.  At this point, the prosecutor Littlefield said, "Zhao Yan signed knowing only that the lawyer is asking US$10 million on her behalf.  She does not understand anything about the document.  This is normal, since she is a foreigner who will go by what her lawyer tells her."

Finally, the judge agreed that the defense can ask Zhao Yan about the document.  When Zhao Yan got back on the witness stand, Cohen pointed out to her that the document showed that there were several names cited whereas Zhao Yan had just testified that only Rhodes beat her.  Furthermore, the document did not state that she lost consciousness but her testimony in court claimed that she did.

All of these questions were opposed by the prosecutor and the judge.  The judge pointed out that the witness had stated that there was only Rhodes at first, and then several other police officers came up.  Therefore, the witness was not being inconsistent.  So this line of inquiry was dropped.

(China Press USA)  September 1, 2005.

The trial resumed at 130pm as Zhao Yan returned to the witness stand.  After asking a few simple questions about the document in the civil lawsuit, Cohen then to a different question concerning the allegation that Zhao Yan was involved in human smuggling.

As soon as Cohen asked whether or not Zhao Yan knew if the American government had investigated if she was involved in human smuggling and even before the interpreter had interpreted the question, Judge Arcara interrupted the proceedings and directed the jury to leave the courtroom.

The judge then asked Cohen: "Don't you know that this was an investigation conducted by the American government?  How could you ask any individual about a government investigation of her?  How would she know?  Besides, those investigations seemed to be baseless and led nowhere in the end."

Cohen said confidently, "Your honor, it is not that the investigations led nowhere.  Rather, there were shut down suddenly."  The judge asked, "You mean to say that you know about this investigation and that the allegations have founded on some basis?"

Cohen said that he not only knew about this investigation, and he also has the report of the investigation -- certain informants contacted the American embassy in Beijing and claimed that they have evidence that Zhao Yan was involved in human smuggling.  These individuals wanted the Americans to provide protection before they will provide the evidence.  These informants were not anonymous, as they have names and phone numbers.

Prosecutor Littlefield said that the names of the informants were fake names, and those mobile telephone numbers led to machines that had been turned off.

Littlefield said that the informants wanted to be flew to American by airplane first, and then they will provide the evidence.  In fact, the investigators made contact with these informants four times, and each time the informants wanted the United States to provide protection before they will show any evidence.  These people did not provide any information with factual basis and that was why the investigation was called off.

Cohen countered that these informants wanted American protection but that did not mean that they had to flown to the United States.  The judge quickly asked, "You mean to say that these people are asking the United States to protect them inside China?"

At this point, the judge turned to Zhao Yan, who had been waiting patiently on the side, and said, "Your testimony is over and you may leave."  The time then was about 1:50pm, and so the afternoon session was only 20 minutes for Zhao Yan.  She asked the judge if she could have 3 minutes to make a "closing" statement but the judge said, "No, thanks."

Cohen then stated that the victim had mae conflicting statements, including the identification of the police officer and the description of her own injuries, and he therefore motioned the judge to dismiss the case without presenting it to the jury.  The judge rejected the motion.  Littlefield said that these testimonies do not alter the material injuries sustained by the victim.

(China Press USA)  September 1, 2005.

At around 830pm, Zhao Yan was interviewed by several Chinese-language reporters at the hotel where she was staying.  Compared to her demeanor during the day, Zhao Yan seemed more relaxed.  She wore a white hat and dark glasses against the photographers.

When asked about the 3 minute speech that she requested the judge to allow her, Zhao Yan said: "I wanted to say that I am a foreign tourist.  I am not your enemy.  I am your friend.  Why do you want to beat a tourist?"

As for the entire court proceeding and the testimony, Zhao Yan said, "I thought everything was quite normal."  As for why she shed tears in court, she said, "Anyone who encounters something like this will act this way.  I have held it inside myself for more than one year.  The Chinese media slandered me quite a bit.  I face a lot of pressure.  I was beaten badly, but they still talk about me that way."

"Do you want to go see the Niagara Falls?"

"I am not going."


(Buffalo News)  Police expert says officer used 'reasonable force'  By Dan Herbeck.  September 2, 2005.

An expert on police procedures testified Thursday that Homeland Security Officer Robert Rhodes used "reasonable force" when he subdued a Chinese tourist at the Rainbow Bridge in Niagara Falls last year.  The testimony came from Michael Levine, a retired federal agent and police instructor who appeared as a paid expert witness for Rhodes' defense team.

Rhodes, 44, is accused of criminally violating the civil rights of Zhao Yan, 38, a Chinese businesswoman who claims she was beaten, kicked and pepper-sprayed in an unprovoked attack at the bridge on the night of July 21, 2004.

Levine said he spent more than 300 hours reviewing documents, transcripts and reports on the incident. He said he concluded that Rhodes acted properly because Zhao was resisting him and may have been carrying a weapon.

"In this case, did you see any evidence of unreasonable force?" defense attorney Steven M. Cohen asked Levine.

"Not at all," Levine said. "I thought that it was a textbook example of using reasonable force."

On Wednesday, Zhao testified that Rhodes had attacked her with pepper spray after she saw Homeland Security officers arresting a man who had smuggled marijuana over the bridge into the United States.  After spraying her, Rhodes knocked her to the ground, where she was kicked and injured by three or more Homeland Security officers, Zhao said. She said she was blinded by the pepper spray and could not identify who kicked her.

Levine, 65, a former supervisor and training instructor for the U.S. Drug Enforcement Administration and other federal agencies, said Rhodes did not use unreasonable force. Levine said the officer didn't know if Zhao was carrying a gun or any other weapon, including a "tiny thermos that sprays anthrax."

Homeland Security officers that weekend were on a "yellow alert" for possible terrorism incidents, Levine added. He also said it would have been very difficult for Rhodes to repeatedly strike Zhao in the head with his knee, as government prosecutors have alleged.

Assistant U.S. Attorney Martin J. Littlefield questioned the sincerity of Levine's testimony. He noted Levine was paid more than $14,000 for reviewing the case and testifying for the defense.

"I take it the money doesn't influence your search for truth?" Littlefield asked.

"Not at all, sir," Levine said.


(Buffalo News)  Chinese tourist's injury slight, trial told.  By Dan Herbeck.  September 7, 2005.

Chinese tourist Zhao Yan suffered only minor injuries when she was subdued by a Homeland Security officer at the Rainbow Bridge last year, a medical expert for the defense testified on Tuesday.

Dr. Eric A. Davis also suggested that the injuries suffered by Zhao were not consistent with her claim that she was slammed face first into the pavement by Robert Rhodes, the officer who is accused of attacking her.

"We're talking about minor trauma," said Davis, who reviewed Zhao's medical records after a confrontation at the bridge that led to Rhodes' indictment. "She did not have any broken bones."

Zhao did not suffer a concussion, bleeding to the brain, severe cuts or spinal injuries, Davis said. He said none of Zhao's injuries should have required her to use a wheelchair, as she did when she announced plans for a multimillion-dollar lawsuit against the U.S. government a few days after the incident.

Rhodes' defense team rested its case Tuesday afternoon after presenting Davis, an associate professor of emergency medicine at the University of Rochester Medical School.

Final arguments will be heard today by a jury and District Judge Richard J. Arcara. The case is being followed closely in China, the world's most populated nation, where some see it as an example of U.S. mistreatment of foreign visitors.

Rhodes, 44, is accused of violating the civil rights of Zhao, 38, by pepper-spraying her, beating her and striking her in the head with his knee during an unprovoked attack at the bridge on July 21, 2004.

Defense attorney Steven M. Cohen decided not to put Rhodes on the witness stand to give his own version of the events. Cohen was unable to get former Secretary of State Colin L. Powell and former Homeland Security Director Tom Ridge to testify.

Cohen had hoped the two former Bush administration Cabinet members could help him prove that political pressures led federal prosecutors to obtain a quick indictment against Rhodes after the bridge confrontation.

"We couldn't get Ridge to testify . . . and there were some rulings made by Judge Arcara that would have made Powell's testimony irrelevant," Cohen said.

In pretrial legal arguments, Cohen claimed that Rhodes was singled out for prosecution because he is openly gay, but the issue was never raised during the trial.

Rhodes could face 10 years in prison if convicted. Prosecutors charge that he attacked Zhao outside a bridge inspection station because he mistakenly thought she was involved with a man who had just been caught smuggling marijuana over the bridge.

Prosecution witnesses have testified that Rhodes violently grabbed Zhao by her hair and drove her face into the pavement. Davis, the final witness in the case, tried to shed some doubt on that account.

"The first thing that would have hit (the ground) would be the nose," Davis said. "There was no fracture of the nasal bones."

But under questioning by Assistant U.S. Attorney Allison P. Gioia, Davis admitted that he was only interpreting medical records and had never met, treated nor examined Zhao. 


(Associated Press via Newsday)  Jurors hear closing arguments in case against border officer.  By Carolyn Thompson.  September 7, 2005.

Jurors deciding the fate of a Homeland Security officer charged with beating a Chinese tourist at the U.S.-Canadian border were given two vastly different scenarios to take with them into deliberations Wednesday.

Customs and Border Protection Officer Robert Rhodes was either embarrassed and out of control after a colleague spotted drugs on a man he had just cleared _ or a savvy, veteran officer relying on experience and training to control a woman who had run from him and resisted arrest.

Rhodes, a 17-year veteran, is on trial in U.S. District Court on a single count of violating tourist Zhao Yan's civil rights. Government prosecutors say Rhodes used excessive force when he slammed the businesswoman's head into pavement and struck her with his knee after pepper-spraying her at a Niagara Falls inspection station in July 2004.  He could face up to 10 years in prison if convicted.

In his final arguments, Assistant U.S. Attorney Martin Littlefield urged jurors to pay close attention to the eyewitness testimony of two of Rhodes' fellow border officers.  Both took the stand against their colleague, Littlefield said, when it would have been easier "to just blame the chink" who they knew would soon leave the country. (The prosecutor explained he used the offensive slang for a Chinese person to show how others might have seen the situation.)  The two officers testified that Zhao had done nothing to warrant the rough treatment that left her with a bump and scratches on her forehead and bruising and swelling around both eyes.

Zhao has filed notice she plans to sue the U.S. government for $10 million.

In closing his case, defense attorney Steven Cohen referred jurors to the testimony of the same two officers, pointing out that both had said Zhao was resisting Rhodes' attempts to handcuff her. He noted the tense, post-9/11 backdrop against which the incident played out.

"This didn't happen at Kmart. This didn't happen in your neighborhood," Cohen said. "This happened at the U.S.-Canadian border. ... I don't want my Homeland Security officer showing brotherly love to someone who's resisting arrest."

"This is a case of an officer just doing his job as he was trained to do," Cohen said.

In emotional testimony, Zhao denied running from Rhodes after he spotted her and two companions peering through a door into an inspection station where an officer had a drug suspect on the floor. Rhodes had initially let the man pass but another officer spotted a bulge on his back that contained four pounds of marijuana.

Rhodes told investigators he believed the women might have been associated with the drug suspect and ordered them inside, but they took off running. Security camera videotape played for jurors showed a host of officers running after two of the fleeing women but not the confrontation between Rhodes and Zhao.

One of the women seen running testified she was scared by the sinister look on Rhodes' face as he approached.

"We now have the scary, sinister face defense," Cohen said sarcastically.

Littlefield said Rhodes was angry at missing the drugs and only sought to link Zhao to the man to get himself off the hook for using violence.

"He knew he'd screwed up. He was just trying to justify what happened," Littlefield said, adding: "Where is his right to smash her head into the cement when the situation was clearly under control _ even if she was a drug dealer?"

The trial has been sporadically attended by reporters for Chinese-language newspapers and representatives of the Chinese Consulate General's Office in New York. Chinese students attending college in Buffalo have also been present in support of Zhao.

At the time of Rhodes' arrest, Cohen accused the U.S. government of bowing to pressure from the Chinese and singling out Rhodes because he is gay, but the issue was not raised during trial.

Cohen had included former Secretary of State Colin Powell and former Homeland Security Secretary Tom Ridge on his list of potential witnesses but did not call them.


(Buffalo News)  Rhodes jurors begin deliberation.  By Dan Herbeck.  September 8, 2005.

A prosecutor called Robert Rhodes a law-breaking Homeland Security officer who viciously attacked a Chinese tourist without provocation.

His defense attorney called him a dedicated public servant who was trying to protect America from another 9/11.

Jurors heard closing arguments on Wednesday, and then began their deliberations in Rhodes' criminal trial before U.S. District Judge Richard J. Arcara. Rhodes is accused of violating the civil rights of Zhao Yan, 38, by pepper spraying and beating her at the Rainbow Bridge in Niagara Falls on July 21, 2004.

His attorney, Steven M. Cohen, said Rhodes was worried that Zhao might be an armed terrorist or drug dealer when he subdued her that night. He said Rhodes was "doing his job as he was trained to do it."

Even if Zhao had been a suspected terrorist - which she was not - Rhodes' actions were inexcusable and illegal, Assistant U.S. Attorney Martin J. Littlefield responded.

"Has 9/11 so dirtied our thinking process that we're going to allow that kind of conduct?" Littlefield asked. "Seek justice. Protect our Constitution."

The case against Rhodes, 44, is a highly unusual one, because the U.S. government rarely files criminal charges against bridge security officers accused of mistreating foreign visitors.

The incident created an uproar in China, where the public reacted with anger after photographs of Zhao's injured face were broadcast after Rhodes' arrest. The Chinese news media have carried accounts of the trial from The News and the Associated Press.

According to prosecutors, Zhao and two other Asian women had been taking photographs near the bridge late that night when Rhodes attacked Zhao. Authorities believe Rhodes attacked the woman because he mistakenly thought she might be involved in drug smuggling.

Zhao testified during the trial that Rhodes sprayed her in the face, and then began beating her shortly after she witnessed officers arresting a man who had carried marijuana over the bridge. She also said she believes two other Homeland Security officers - whom she could not identify - took part in the beating.

Rhodes did not testify, but he has denied any wrongdoing, telling The Buffalo News he was following Homeland Security procedures when he tried to stop Zhao for questioning.

In his closing argument, Littlefield offered the theory that Rhodes was upset because he had just allowed Dennis Leathers to cross the border while allegedly carrying four pounds of marijuana under his shirt. Another officer spotted a bulge in Leathers' clothing and arrested him after Rhodes let him pass a checkpoint.

"Rhodes screwed up . . . He made a mistake," Littlefield said.

The embarrassed Rhodes tried to connect Zhao - an innocent bystander who spoke little English - to the smuggler, and then lashed out in anger at her, Littlefield said.

Littlefield said the evidence is "crystal clear" that Rhodes was the aggressor who sprayed Zhao in the face, pushed her against a wall, knocked her to the ground and repeatedly smashed her in the head with his knee.

Cohen disagreed. He portrayed Zhao as a money-hungry liar who has exaggerated her injuries and tried to cash in on the incident by filing a $10 million claim against the U.S. government.

The defense attorney said Rhodes had no way of knowing if Zhao was involved in drug smuggling, or if she was a terrorist, or carrying a weapon when he approached her for questioning immediately after Leathers' arrest. He said Zhao tried to run away and resisted Rhodes.

Zhao has "10 million reasons" to make false statements about Rhodes, Cohen said. He said Zhao testified that Rhodes was not wearing eyeglasses during the confrontation, but every other witness testified that Rhodes always wears glasses.

Cohen also noted that Zhao sat in a wheelchair during a press conference in her personal injury lawyer's office, several days after the incident. He said doctors have testified none of her injuries required her to use a wheelchair. 


(Associated Press via Newsday)  U.S. border officer acquitted of civil-rights charge alleging he struck Chinese tourist.  By Carolyn Thompson.  September 8, 2005.

A U.S. border officer was acquitted Thursday of violating a Chinese tourist's civil rights when he pushed her head into the pavement after pepper-spraying her at the U.S.-Canada border.

Government prosecutors claimed Homeland Security officer Robert Rhodes used excessive against Zhao Yan, 38, a businesswoman from Tianjin who was touring Niagara Falls in July 2004.

Rhodes told investigators he believed the woman might have been associated with a drug suspect and ordered her inside the Niagara Falls inspection station, but she took off running. He said he followed proper Customs and Border Protection procedure in subduing the struggling woman and denied accusations that he struck her head with his knee and slammed her face to the ground by the hair.

"I feel that I was vindicated and now I can put my life back together," Rhodes said at his attorney's office after leaving the courthouse under the protection of federal marshals. Defense attorney Steven Cohen said Rhodes had received death threats.

The case provoked anger in China after pictures of Zhao, her face swollen from pepper spray and her eyes and forehead bruised, were widely published.

Cohen accused the U.S. government of prosecuting Rhodes to protect delicate U.S.-Chinese relations and said Rhodes was an easy target because he was openly gay and had complained about discrimination on the job.

Despite that, Rhodes said he never stopped flying an American flag outside his home and would like to return to the job he has held for 17 years.

"Rob is a patriot and he loves this country,'' the lawyer said Thursday.

"I wasn't angry from day one," said Rhodes, who said he had to sell his house and raid his retirement account to cover legal fees and lost wages.

Zhao, who testified during the trial and is pursuing a $10 million lawsuit against the U.S. government, was not in the courtroom for the verdict. An attorney representing her in her civil case said the trial's outcome would have no impact on the lawsuit.

"It's always difficult to (criminally) convict any officer of the law in this kind of case," Stanley Legan said, noting the standards of proof are different in civil cases.

He suggested jurors may have been influenced by the tense, post-9/11 atmosphere that exists at the border, including a yellow alert at the time of the incident. But "I think her injuries clearly demonstrate that excessive force was used," Legan said.

Zhang Jie, director of the Center for China Studies at Buffalo State College, could not predict what the reaction in China would be, but said some in his department were puzzled by the verdict.

There "should be some (punishment) because this is so clear, so much evidence. What else do we need to convict that person?" he asked.

"That's clearly part of the characteristics of the American criminal justice system ... It's very hard to convict a person and easy to get off the hook in this justice system," Zhang said.

Rhodes said he hoped China and the United States would work together toward a strong relationship.

"I would hope the healing process could begin from this incident," the officer said.

Cohen said he believed the jury was swayed by the testimony of two of Rhodes' fellow border officers who took the stand against him. Although both were critical of the level of force Rhodes used, they indicated Zhao was resisting arrest. Rhodes could have faced up to 10 years in prison if convicted.


(Buffalo News)  Border security officer acquitted.  By Dan Herbeck.  September 9, 2005.

Robert Rhodes III, a Homeland Security officer accused of beating a Chinese tourist and smashing her face into the pavement at the Rainbow Bridge, was acquitted Thursday afternoon of criminal civil rights charges.

A federal court jury acquitted Rhodes, 44, after a three-week trial and less than four hours of deliberation.

The veteran officer was accused of an unprovoked attack on Zhao Yan, 38, a Chinese businesswoman who had been taking photographs at the Niagara Falls bridge with two Asian friends.

The decision is expected to touch off angry reactions in China, where many people were outraged last year after the publication of photographs showing the bruised and battered face of the alleged victim.

"This is unexpected and it is not good," said Dr. Jie Zhang, director of the Center for Chinese Studies at Buffalo State College. "It will hurt the image of the United States with the Chinese people."

Zhao was a tourist, not a terrorist, Zhang said.

"She was not armed. She was not a threat, and she was beaten up," Zhang said. "People in China applauded when they heard the U.S. government was prosecuting [Rhodes] but they will be upset by this verdict."

In an interview after the verdict, Rhodes said he scuffled with Zhao because he thought she might be involved with drug smuggling and was under orders to question suspicious people because of the terrorist attacks of Sept. 11, 2001. Prosecutors said Zhao was not a drug smuggler or a terrorist. They accused Rhodes of pepper spraying Zhao, knocking her down, striking her head with his knee, grabbing her by the hair and repeatedly smashing her face into the pavement.

Rhodes' attorneys said those claims were exaggerated, and they accused Zhao of making up much of her story in an attempt to cash in on a $10 million personal injury claim she has filed against the Department of Homeland Security.

"I was confident from Day One that a jury of my peers would acquit me," Rhodes said after the verdict. "I did my job. . . . If Zhao Yan had not run away from me when I tried to question her, we would not be sitting here."

"I believe that if the people of China had heard all the evidence in this case, they would have reached the same verdict - that Robert Rhodes did nothing wrong," said Steven M. Cohen, Rhodes' lead attorney.

Cohen said he believes jurors were skeptical of Zhao's testimony because she is suing the government for millions and was accompanied to court by a personal injury lawyer from New York City.

"The jury did a great job for their country," Cohen said. "They reaffirmed a law enforcement officer's right to protect himself, and his right to be able to do what is necessary to do his job."

Rhodes was standing when the verdict was read before District Judge Richard J. Arcara. The defendant smiled weakly and hugged his attorney. Moments later - because of an alleged threat that Rhodes would be murdered if he was acquitted - he was escorted out of the courthouse by federal marshals and agents.

Assistant U.S. Attorney Martin J. Littlefield said the alleged threat is under investigation. The prosecutor did not criticize the verdict, saying jurors made the decision they thought was correct.

Rhodes was suspended and indicted after a confrontation with Zhao on July 21, 2004. The case led to high-level discussions between the American and Chinese governments, and a promise from then-Secretary of State Colin L. Powell that the incident would be fully investigated.

Zhao was one of the three main witnesses against Rhodes. The two others were Homeland Security officers Emmett Russell and Amina Zinnerman, who testified that Rhodes struck Zhao in the head with his knee, grabbed her by the hair and repeatedly smashed her face into the pavement.

Littlefield said Rhodes attacked the woman because he mistakenly concluded that she was involved with a man who had just been caught smuggling four pounds of marijuana over the bridge into the United States.

Zhao testified that, when she tried to explain in broken English that she had come to America for a business meeting, Rhodes pepper sprayed her in the face, and then attacked her.

Rhodes said he only sprayed and battled with Zhao because she ran away from him, and then tried to punch him. He said he is convinced that the federal government singled him out for prosecution because he is openly gay.

The still-suspended officer said he is not bitter against the federal government, even though he had to sell his house and withdraw part of his retirement savings to help pay for a defense that, so far, has cost him $138,000.

Cohen said the defense team from the Buffalo law firm of Lorenzo & Cohen included four attorneys, four legal assistants, two private detectives, two expert witnesses, a publicist and a local psychic - Bernice Golden - who helped him evaluate candidates for the jury.

"It was worth it," Rhodes said. Rhodes said he hopes Cohen can help him get restored to his job with full back pay. Homeland Security officials were unavailable for comment on whether Rhodes will be allowed to return. 


(Sohu.com)  Internet comments

- Kill the Americans and feed them to the dogs! (杀了美国人,喂狗)
- American law is dog turd! (
美国的法律是狗屎!)
- Don't f*cking believe in American justice!
- Why complain?  At least, you were not executed right there and then.
- America is paradise but it is Americans' paradise (white Americans' paradise).
- If you want to go to America, you should be ready to be beaten up because everybody knows that it is a false democracy in America.
- What will Americans say if an American is beaten like this in China?
- Since it is okay to beat people, we will beat every American that comes to China.
- Let's beat up all the Americans in China and tell them it is the war against terrorism.
- Let one of our municipal administrator seize an American and beat them.  Let's see what happens?
- Will those who love America come out and fart?
- America has shown us what American democracy is.  Let those people who adore American democracy learn this well.
- If America wants to sell us that false democracy and freedom again, everyone knows it is fake.  Nobody wants to buy it anymore!
- Those who believe in the so-called American 'legal system' and 'human rights' learned a live lesson, with a big slap for those elites that promote American cultural advancement.
- It is the American police in a country where they protect human rights!  We should learn from them to let the police beat people!  It is like that in all countries that protect human rights; for example, in England, the police can execute an innocent citizen from suspicion alone!  And then you only have to say "I am sorry" and that's enough!


(Newsday)  China dismayed at acquittal of U.S. border officer accused of beating Chinese tourist.  September 10, 2005.

China's consulate in New York has voiced dismay over the acquittal of a U.S. border officer accused of beating a Chinese tourist and said it would closely monitor the progress of her civil lawsuit.

Homeland Security officer Robert Rhodes was found not guilty Thursday of using excessive force against Zhao Yan, 38, a businesswoman from Tianjin, China, who was touring Niagara Falls near the U.S.-Canada border in July 2004.

The incident sparked anger in China, with Foreign Minister Li Zhaoxing at one point raising the case with then-U.S. Secretary of State Colin Powell.

Rhodes was accused of spraying Zhao with pepper spray, throwing her against a wall, kneeing her in the head and striking her head on the ground.

Pictures of her bruised face were published in Chinese newspapers along with accounts of her ordeal.

Rhodes was charged with violating Zhao's civil rights. He told a court in upstate New York that he had followed proper procedures in subduing Zhao and denied beating her.

Zhao is pursuing a $10 million lawsuit against the U.S. government.

The Chinese consulate in New York said it would follow the case.

"The New York consulate-general expresses its shock and regret and hopes the U.S. side truly safeguards the legal rights of Ms. Zhao," it said in a statement on its Web site this week.

"The consulate-general strongly condemns the person who inflicted harm on Ms. Zhao," it added. "The consulate-general continues to monitor closely the situation of her civil lawsuit."

Zhao was standing nearby when Customs and Border Protection officers confiscated marijuana from a male pedestrian. Rhodes said in a statement that Zhao and two other women ran when he asked them to come into the inspection station.

He said he grabbed the nearest one and sprayed her with pepper spray when she swung her arms at him. The woman also scratched his arm and they both fell to the ground, he said.


(Huge Settlements.comExpert Witness Testimony Aids in Acquital of Homeland Security Officer Charged With Police Brutality Against Chinese Citizen    September 13, 2009.

Michael Levine, author of NY Times bestseller Deep Cover, a Police use-of-force and Investigative Procedures expert who testified as an expert for the defense, reveals the inside story of the incident that threatens US-China relations. Indictment number: (04-CR-196-A)

Protests and Apologies:
The alleged beating of Chinese citizen Ms. Zhao Yan, an incident that now threatens US-China relations, took place at the Rainbow Bridge Canada-US border crossing on July 21, 2004. Before the sun had set on July 23, the Chinese government had vehemently protested, the US government had apologized profusely and Robert Rhodes III, a 17-year veteran law enforcement officer was under arrest and fighting for his life. Tom Ridge, Secretary of Homeland Security. and Colin Powell, Secretary of State, both offered official US government apologies and the world media screamed for Rhodes to be punished, painting him as a craven, sadistic criminal.

According to Trial Consultant Michael Levine and attorney Steven Cohen, the instant knee-jerk reactions of the politicians and journalists all had one thing in commoncomplete ignorance and/or disregard of the facts.

Facts, Evidence & Expert Testimony
Michael Levine, who as defense expert spent more than 300 hours reviewing every aspect of the incident and its aftermath determined the following facts most of which are revealed here publicly for the first time:

1. The incident began at 11:35 PM when Ms. Zhao Yan and two companions fled Border Officer Robert Rhodes III as he approached, intending to question them relative to a smuggling arrest that had just been made.

2. Rhodes quickly caught Ms. Zhao and began to struggle with her. CCTV surveillance cameras taped her two companions sprinting away and separating in a manner suggestive of training as opposed to frightened women fleeing a "frightening, brutal and savage looking man," as Zhao Yan would later claim.

3. A short time earlier Zhoa Yan and her two companions had been caught on another CCTV camera, taking a photograph in a "No-photo zone"an unguarded alleyway leading to a lone, chain link door separating Canada and the US; a vulnerable area the details of which would be of great interest to spies, terrorists and drug smugglers; hardly a picturesque spot for tourist photos. Investigators would never attempt to seize or recover the film and/or camera containing this photo.

4. Ms Zhoa resisted arrest by scratching and kicking. Rhodes, sprayed her with a non-lethal chemical spray known as "pepper spray." Ms. Zhoa continued to fight. Rhodes, believing his actions were being recorded on a CCTV camera, now grappled with her trying to keep her at arms length to protect his gun. It would later be revealed that the camera was the only camera not functioning for "technical reasons."

5. Two other Border Patrol officers come to Rhodes aid and physically wrestled Zhoa Yan to the ground, indicating in their reports that even laying face down on the ground, she continued to resist by trying to pull her left hand under her and out of sight of the arresting officersa maneuver highly indicative of a concealed weapon, which nowadays might be as small and innocuous as an aerosol spray containing anthrax.

6. Rhodes at this point held Ms Zhao by the hair trying to keep her head down, until the other officers had both her hands cuffed behind her back. The other two officers claimed at trial that Rhodes slammed her face into the ground injuring her forehead.

7. At trial Michael Levine would cite his experience as a DEA instructor and former martial arts practitioner and testify that the injuries claimed by Ms. Zhao were impossible without her nose being smashed. (She had no broken bones, only bruises).

8. Within a half hour of her arrest (at approximately midnight) Ms Zhoa was released from custody by Homeland Security officials, taking with her all her belongings, cell phone, passport and camera included. None of these items were closely scrutinized and or examined by Homeland Security Investigators.

9. The photos introduced as evidence at trial showing Zhao Yans battered face would be taken at approximately 2:30 a.m. - hours after her release from custody. Two of the officers would testify that she looked substantially more battered in the photos than she did moments after the arrest.

10. Michael Levine would testify that in his experience encompassing in excess of 5000 arrests, faking and self-inflicting injuries were common ploys used by unguarded and/or unobserved arrested parties to deflect attention away from them and onto the arresting officers and/or for the purposes of fraudulent law suits.

11. Ms Zhao who claimed to be in the US on business of buying lumber for a Chinese company, was never investigated in any manner. In essence her uncorroborated statements concerning her business as a "lumber buyer" in the US, her other world travels, her taking photos in a No-photo zone, the reasons for her fleeing the uniformed officers, her resistance to arrest and even her true identity was simply accepted as "fact" by Homeland Security investigators and the United States Attorneys Office. Under cross-examination by Buffalo, NY attorney Steven Cohen, Zhao Yan would later be exposed as having little or no knowledge of the lumber business.

12. When Ms. Zhoas photos appeared in Chinese mainland newspapers, three Chinese citizens risked their lives by coming to the American consul in Beijing with information implicating her in international crimes including homicide and the smuggling of human beings into the US. These claims would never be investigated by Homeland Security, nor would the informants be afforded any protection. Their whereabouts are now unknown.

13. Michael Levine would testify at trial that, after spending 300 hours, carefully reviewing every aspect of this incident it was his opinion that every action taken by Officer Rhodes was reasonable and well within the Use of Force parameters of US law enforcement.

14. Levine would further testify, relying on his life-long training and experience as a martial artist, to demonstrate for the jury that the "knee strikes" that Rhodes was accused of delivering with "deadly force" while he [Rhodes was kneeling, were a physical impossibility.

The Verdict:
After a month-long trial, it would take the jury just four hours to acquit Robert Rhodes of all charges. But the lesson was not lost on the thousands of Homeland Security agents who to a man are keenly aware that the 17-year veteran was forced to sell his home to meet the $138,000 cost of his defense, and that the coming fight to win his job back would not be cheap nor easy. While America may never know who Zhoa Yan really is and just what her business and purpose was on an American international border crossing that night, a fact that remains certain is that no Homeland Security officer will ever run the risk of doing what Robert Rhodes tried to do: his job.
  
Michael Levine, one of Americas most decorated international undercover agents, states that, in this time in American history when the threat of nuclear and biological terror has been judged a matter of when not if by our experts, Americas enemies are rejoicing the fact that there even was a trial. Terrorists, drug traffickers and spies are now acutely aware of yet another weakness in American resolve and that political and economic interests still take precedence over national security at our borders, according to Levine.
  
Finally, Ms Zhao Yan has now obtained a New York City attorney and plans to sue the US government for $10 million, according to Yan's testimony.


(Niagara Falls Reporter)  Open Letter and Invitation to Zhao Yan.  By Frank Thomas Croisdale.  August 3, 2009.

First and foremost, let me say to you the words that you need to hear the most: I'm sorry.

I'm sorry that a U.S. Customs agent at the Rainbow Bridge beat you so horrifically on the night of July 21. I'm sorry that the beating happened in a city, Niagara Falls, that I love from the deepest depths of my heart. And, most of all, I'm sorry that the travesty that befell you has caused you to lose respect for America as a whole.

There is healing that needs to happen; let it begin with me.

In America, we believe that a person is innocent until proven guilty. The agent that you say beat you, Robert Rhodes, has claimed his innocence. While I will not deny Mr. Rhodes his assumption of innocence, nor his right to a fair trial, I will go so far as to believe your contention that you were attacked with much force and aggression.

How could anyone who has seen the photos of you with eyes swollen shut and bruises and cuts all over your face believe otherwise?

Mr. Rhodes and you agree that the whole incident started when a male pedestrian cleared Customs before an officer discovered several pounds of marijuana on his person. Evidently, Rhodes then mistook you and two other women for "mules," people who help in the transport of drugs over an international border.

It is at this point that your story and that of Mr. Rhodes enter into another woods altogether.

"Officer Rhodes tried to detain her, at which point she began kicking and scratching him," Rhodes attorney, Steven M. Cohen, said recently. "After getting kicked and scratched a few more times, he did what his protocol requires. He didn't pull out his firearm. He pulled out his pepper spray."

According to the "People's Daily Online," you have a different memory of what happened.

"That policeman, with one hand, beckoned me to go over there, while he sprayed me with liquid pepper with another hand. My eyes, hair, face and neck were sprayed successively, and then I fell to the ground, and was surrounded by at least three policemen, they kicked me on the face and body with their leather shoes. My eyes were so swollen that I simply couldn't open them, and one of my teeth was broken, my skin was in great pain, I thought I was dying at that time, so how could I attack the police?"

I'm reminded of an expression favored by my grandfather. "There are three sides to every story. Yours, mine, and the cold, hard truth."

The cold, hard truth about what happened on the night of July 21 is that it has caused you, and your nation, to lose faith in the goodness and integrity of not only the people of Niagara Falls, but of the citizens of America as a whole.

This is what the online version of "China Daily" had to say in the aftermath of your ordeal:

"The world knows the U.S. propensity for pointing fingers at others in human rights protections. But who is the real threat after all?

"Under the banner of anti-terrorism, the United States has given its army free rein to arrest or imprison any suspected terrorists or those suspected of having connections to terrorists.

"Its condemnation-provoking actions range from its invasion of Iraq without any convincing excuse to the abuse of Iraqi prisoners in Abu Ghraib prison.

The logic is reminiscent and representative of U.S. arrogance on the world stage.

"The Americans can kill anyone they think is a potential threat to their precious lives, or beat an innocent woman half to death on the flimsiest of excuses.

"Taking advantage of the prevailing sense of fear they have cultivated at home, the U.S. security apparatus has become even more bellicose in law enforcement."

I have to tell you that it was quite a shock to see an event that transpired on the shores of the Niagara River compared so directly with the abuses at the Abu Ghraib prison. I am sure that I speak for most Americans when I say that we like to think of ourselves as the good guys, the protectors and the nurturers, not people to be despised and vilified.

I must admit the cut was deep when you said that "America is the most barbaric of all the countries I've visited."

This might be a good time to tell you, Zhao, that aside from writing for this newspaper, I make my living in the tourism industry in Niagara Falls. There are a few people connected with this great city that I'd like you to hear about.

Gary Carella is a firefighter in Niagara Falls. In March of 2003, he risked his own life to save that of a man who had second thoughts about committing suicide by going over Niagara Falls. The man was standing mere yards from the mighty precipice when a harnessed Gary, along with the help of other police and fire personnel, was able to grab hold of him before they were both pulled to safety on the shore.

Just this past month, Gary and his mates repeated nearly the exact same rescue of a woman in an almost identical predicament.

You might think that Gary expected some sort of special recognition for his efforts, but he has no taste for the spotlight. He simply believes that it was another day at the job and that saving the lives of strangers is reward enough, in and of itself.

Kevin Cottrell is another citizen of my community that I'd like you to meet. Kevin gives tours to area school kids on the history of the Underground Railroad in Western New York. Kevin is an African-American man who connects with kids of all races and backgrounds. He believes that education is the key that unlocks most doors facing our youth. He gives of himself in the pursuit of erasing ignorance and empowering young people with the strength that is only found through enlightenment.

The third person that I'd like you to meet from Niagara Falls is best known by his nickname, the Candyman. The Candyman is a tour driver in Niagara Falls and, a few summers ago, he went out of his way to make a bride's dreams come true.

You see, a young couple was on one of the Candyman's illumination tours of Niagara Falls when they confided in him that they were supposed to have been married that afternoon. The minister had gotten lost trying to find them and they feared they would have to return home without tying the knot.

That's when the Candyman took matters into his own hands.

He called the justice of the peace and asked him what he was doing at 10:30 p.m. that evening. He asked him if he'd be willing to meet him on Goat Island above the falls to perform a moonlight ceremony. Then he asked the other tourists on his bus if they'd be willing to be witnesses for the ceremony.

The result was that the bride got the wedding she'd always dreamed of and a group of tourists took home a sweet memory to savor forever.

That is what the people of Niagara Falls are really all about.

I'd like to make a public offer to you, Zhao.

I invite you to return for a visit to Niagara Falls and I will pay for your hotel and sightseeing tour. I'll also take you out to dinner at one of Niagara's best restaurants and introduce you to Gary, Kevin and the Candyman.

You have asked the world to believe your words concerning the character of one person residing and employed in Niagara Falls.

I'm asking you to believe mine on all the rest.

(Niagara Falls Reporter)  Right to Fair Trial Essential.  By Frank Thomas Croisdale.  September 20, 2009.

It's not always easy, this newspaper column thing. Aside from facing a deadline and coming up with 1,500 or so words to entertain and enlighten each week, one has to hope that an old piece from weeks or years gone by doesn't come back to bite you in the posterior. A case in point was what happened a couple weeks ago.

The wife called me to say, "Boy, they're really slamming you in the e-mail."

Generally speaking, being chastised by readers is a good thing in the newspaper business. The sentiment is, love me or hate me as long as you read me. The strange thing was that I wrote about Hurricane Katrina, most specifically about one former Western New Yorker's narrow escape from New Orleans just hours before the cataclysmic storm slammed into the Louisiana shoreline. Hardly the type of column to elicit ire in readers. I said something to that effect to my better half.

"No, it isn't that column that they're raking you for, it's the one you wrote about Robert Rhodes and Zhao Yan," she informed me.

Suddenly everything became crystal clear.

In the Aug. 3, 2004 edition of this newspaper, I penned a column entitled, "An open letter and invitation to Zhao Yan." The column came on the heels of charges that Ms. Zhao made in which she alleged that border security officer Rhodes beat her at the Rainbow Bridge when he mistook her for a drug trafficker. In the piece, I offered a public apology to Ms. Zhao and highlighted the stories of a handful of residents of Niagara Falls who had gone out of their way to help their fellow man. In the piece, I also offered to take Ms. Zhao to dinner when she returned to Niagara Falls to meet some of the wonderful people from our fair city.

A federal court jury acquitted Rhodes of all charges. Many readers felt that the jury's verdict was cause enough that I owed Rhodes an apology along with a public retraction of my words from the August 2004 column.

Retired law enforcement officer Edward Magnuson wrote: "One year ago in your article "Open Letter and Invitation to Zhao Yan" you apologized for the actions of Customs Border Protection Agent Robert Rhodes, which you classified as excessive, and offered to take her out to dinner when she returned from China. You made it clear that although you understood that Rhodes was entitled to a trial you believed her version of the facts as published in the many newspapers of China, a country known world wide for its violations of human rights, and gave examples of the fine people in the Niagara area who she could meet. But you were not alone in your feelings; Homeland Security Director Tom Ridge also apologized to the government of China for the incident at the Rainbow Bridge. However both apologies were made only a few days after the incident and before all the facts and evidence were made known. For whatever reasons, political or social, the two of you jumped the gun in condemning agent Rhodes and acted prematurely at best."

Magnuson closed his missive with these words: "I hope you enjoyed your meal with Zhao Yan whose testimony under oath was obviously not deemed credible by the jurors from Niagara."

Even more critical of my column was Steve Reszka of Williamsville. Reszka, who described himself as a former reporter, wrote: "Now that a jury, which heard almost three weeks of testimony on this case, has acquitted Mr. Rhodes, you owe him an apology. The jury's verdict supported Mr. Rhodes' claim that he was doing his job as he was trained to do and if Zhao Yan didn't resist, none of this would have happened. Three doctors testified, two of which were called by the prosecution, that the injuries she sustained weren't as bad as she claimed."

Reszka saved his best shot for last: "Columnists like you, who (play) fast and loose with facts and descriptions should be taught a lesson in real journalism."

I've always lived by the credo that I'd rather be right than be consistent, so I decided to revisit the column and take a close look at what was actually written.

Most of the e-mail writers from the past week seemed to have the biggest problem with the opening paragraph of my column. In it I stated: "First and foremost, let me say to you the words that you need to hear the most: I'm sorry. I'm sorry that a U.S. Customs agent at the Rainbow Bridge beat you so horrifically on the night of July 21. I'm sorry that the beating happened in a city, Niagara Falls, that I love from the deepest depths of my heart. And, most of all, I'm sorry that the travesty that befell you has caused you to lose respect for America as a whole."

They are words that I stand by still. Neither Rhodes nor his attorney ever denied that he scuffled with and subdued Ms. Zhao. Their contention, supported by the jury, was that he stayed within border security protocol because Ms. Zhao resisted and struck out at him when he attempted to detain her. Fair enough, but that still doesn't mean that one shouldn't be sorry that an unarmed 90-odd pound woman was left looking like she went 12 rounds with Baby Joe Mesi. Sympathy and culpability need not be joined at the hip.

I'm most confident in standing by those words because of what I wrote next in the original column: "In America, we believe that a person is innocent until proven guilty. The agent that you say beat you, Robert Rhodes, has claimed his innocence. While I will not deny Mr. Rhodes his assumption of innocence, nor his right to a fair trial, I will go so far as to believe your contention that you were attacked with much force and aggression."

Again, the trial spotlighted the fact that Rhodes did indeed use much force and aggression in subduing Ms. Zhao. If the jury felt that force and aggression to be justified, then so be it. Most importantly, Rhodes received what I stated that I would not deny him -- a fair trial.

I concluded the column by saying, "You have asked the world to believe your words concerning the character of one person residing and employed in Niagara Falls. I'm asking you to believe mine on all the rest."

When detached from the original context of adequately summarizing the examples of humanitarianism profiled in the column, my words serve as an illustration of just what the Robert Rhodes/Zhao Yan story was all about in August of 2004. It was about an accusation and one person's words against those of another -- nothing more and nothing less.

Despite the charges levied by Magnuson and Reszka, I do not feel that what I wrote necessitates an apology to Robert Rhodes, but I'll offer something else to him instead. I offer congratulations and wishes for reinstatement to his position guarding our nation's borders.

One of the things that I believe most strongly in is America's judicial system. Although sometimes flawed, it is the best such system for dispensing justice in the world and deserves to be respected and honored at all times.

After the O.J. Simpson trial, Ted Koppel did one of his town meetings on "Nightline." One of the guests was an African-American young man who was a former gang leader turned youth counselor. His comments were the most salient spoken during the entire program. I'm paraphrasing here, but what he said in earnest was, "When the Rodney King verdict was handed down and the riots broke out, white people were saying, 'Hey, you have to respect the judicial system.' When the jury came back and said, 'Not guilty,' for O.J., the same people were screaming, 'The judicial system is broke and needs fixing.' Well, which way is it, people?"

He was right; we can't have it both ways. The judicial system must be respected and I respect the fact that Robert Rhodes was found not guilty. I hope that his life, along with that of Ms. Zhao, can go back to normal.

Ms. Zhao never took me up on my offer to a dinner in Niagara Falls. Maybe someday, long after the memory of this trial and that of her upcoming civil trial, fades to a distant memory, she will reconsider and accept my offer. It is an offer that I'd like to amend.

Rather than have the folks I mentioned in last year's column be our dining companions, I'd like to invite Robert Rhodes to join us. Maybe that dinner could be the first step in putting this unfortunate incident behind us.


(China Daily)  Zhao Yan beating case   By Raymond Zhou.  September 25, 2009.

A Chinese tourist was looking around the Niagara Falls near the US-Canadian border, and she was severely beaten by a US security officer.

That was basically what happened on July 21, 2004, and yet it is fascinating how facts could be presented and could shape public opinions, including those of the jurors.

When the bruised face of Zhao Yan appeared a year ago, it sent a shockwave among the Chinese public -- and rightly so. What did she do to have deserved such cruel treatment?

However, in the subsequent rainstorm of denunciations posted in popular websites, there was rarely any judicious analysis. Many simply jumped to the conclusion that the officer did it out of malice for Chinese people per se, not thinking that there are many other nationals who look like Chinese in the American eye, let alone the tens of millions of Asian-Americans.

There seemed to be a distinct line between traditional media and the new media in covering this unfortunate incident. While the "old school" tends to adhere to journalistic principles and report on how the Chinese and the US governments dealt with each other on this matter, some "new kids on the block" have taken the sensational route, eliciting wholesale condemnation and stereotyping.

Police brutality could certainly be a justifiable issue here, but cultural difference may have played a bigger role. To Zhao Yan, the 38-year-old business woman from Tianjin, North China, it seemed an intuitive response to flee from someone who was chasing her. It may not even matter how she would have reacted in a similar situation in China because all the Hollywood movies could have conditioned her to take off and fumble.

To Robert Rhodes, the US Homeland Security officer charged with violating Zhao's civil rights and recently acquitted in the criminal case, it was his duty to arrest someone who fit the description of a drug trafficking suspect and, when Zhao fled and reached for something in her bag, used all means to stop her. There have been frequent reports, in the US, of hesitating or lenient cops who ended up being killed in their line of duty by those they were trying to detain.

Did Rhodes use excessive force? It appeared so from the photo. But again, we must examine the circumstances of how one thing led to another. Each one of them gave an account that was favorable to his or her own argument, which did not really surprise anyone. Assuming each was telling the truth, it may not be the whole selective truth. Rhodes' track record may shed light whether he has a penchant for "excessive force."

We must admit that the jurors had a ringside seat on the facts than someone like me who is getting the details from media coverage. I respect their verdict, but that did not lessen my sympathy for Zhao. She may not have acted wisely, but how could she know better? It is ludicrous to expect her to act like an American the minute she descended on the land. That's why the word "tourist" has certain connotations.

Public perception towards Zhao Yan took a sharp turn when someone leaked that hers was a government-paid pleasure trip disguised as a business trip. Online responses were swift and vicious: "She deserved the beating and it served her right," many wrote.

One could not help but marvel at the hatred that Chinese people have for corruption. However, who footed her travel bill and who was her employer is totally irrelevant to this case. The same goes for the defendant's claim that she had violated her visa restrictions by engaging in activities not allowed by her visa type. Even if she had jumped ship and was in the US illegally, she should not be treated inhumanely. That is the bottom line

My deduction is, those who were exhilarated to see a "damned corrupt person" beaten were the same ones who had earlier felt the whole Chinese nation was insulted. When news was presented in a sensational form, it would certainly evoke simplistic responses. While it is in the good spirit to care about one's compatriots, especially when they are away from homeland, it may not be rational to equate an isolated incident with a full-blown bilateral confrontation.

Sensationalizing the Rodney King beating did not help America's racial relations. Nor will this case for justice or Sino-US relations.