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March|April 2003
Identity Crisis By Dashka Slater
Battle Of The Bands By Joshua David Mann
Trial By Prosecutor By Hiroshi Matsubara
Guanxi In Guangzhou By Katherine A. Mason
For Credit By Avi Schick
In Defense of the Slippery Slope By Eugene Volokh & David Newman

Trial By Prosecutor

Up against Japan's 99.8 percent conviction rate.

By Hiroshi Matsubara

JUST BEFORE THE NEW YEAR, I went to the Tokyo Detention House to speak with an inmate named Govinda Mainali, a man I believe shouldn't be there. As the legal reporter for The Japan Times, I was required to make a written promise not to publish the interview with Mainali, who was convicted of murder based on dubious evidence and is currently serving a life sentence.

Tokyo's winter felt even colder to me when I was inside the detention center, a huge structure that sits imposingly near the eastern end of the city. Decades-old electric heaters struggled to warm the concrete. It was my first time seeing Mainali since his sentencing two years ago at a trial I covered. When his punishment was handed down, he began crying out for help, an unusual scene in a system where criminal trials are almost always devoid of drama.

Mainali, a Nepalese immigrant who talks about his plight with a soft-spoken shyness in halting Japanese, has nonetheless been transformed into a spokesman by his predicament. "It will be the sixth New Year that I celebrate alone in here," he said in a statement to supporters. "How is it possible [in Japan] to detain an innocent man in a place like a prison for years?" Mainali has become a visible symbol of the growing reform movement that is chipping away at the mystique of the Japanese courts.

In the last decade there has been a mounting call for reform of the Japanese justice system, particularly from the Japanese Federation of Bar Associations. Much of this effort, little noticed across the Pacific, has focused on changing the standards for admission to the bar. At last count, Japan was home to one-third the number of lawyers per capita of France, one-tenth that of England, and one-twentieth that of the United States. Reformers believe that this state of affairs helps the criminal courts remain an insular world. It is also a hurdle to putting more lawyers, as opposed to career judges, on the bench, something many people think would make the courts more receptive to reform.

But a dearth of lawyers, while a problem to some, is hardly a rallying cry. Reformers have had more success attacking the Japanese courts themselves. In 1990, a retired high-court judge gave an influential speech that indicted the criminal justice system, citing the nation's 99.8 percent conviction rate as evidence that prosecutors, not courts, decide the fate of criminals. Criminal trials, he declared, are merely "formal ceremonies" en route to conviction.

The Japanese legal system takes its basic structure from a constitution heavy-handedly shaped by American influence after World War II, but the last 50 years have seen Japan attempt to reconcile an American adversarial system predicated on individual rights with a culture that values nonconfrontation and honor. It's created a legal world that bears little resemblance to the American ideas that established it.

In America, a just outcome is produced through a collision of counteracting components. Police launch an investigation, but the suspect is protected by a sphere of rights. Once a prosecutor decides to try a case, the defendant is entitled to a vigorous defense in a trial overseen by a judge. The final determination is made by a jury whose acquittal cannot be second-guessed.

Japan, though it has institutions similar in name, operates quite differently in practice. Prosecutors are vested with tremendous authority, and courts routinely defer to prosecutorial judgment. The prosecutor, in collaboration with law enforcement, is expected not only to enforce the laws but to decide how to use them to serve the public good. He is given far broader powers of investigation than his American counterpart, including the ability to search, seize, and interrogate without the interference of defense counsel. Justice in Japan is often equated to cooperating with the prosecutor. One of the earliest changes made by legislators to the American legal framework was the addition of a "societal duty" to submit to questioning upon arrest.

Because of their importance in the Japanese system, prosecutors have an overwhelming need to be right. A single loss can end their career. Prosecutors nearly always go to trial with a confession in hand, meaning that criminal courts are rarely asked to decide guilt or innocence. At trial, the counsel for the defendant usually spends his time trying to demonstrate the client's contrition, his chances of being rehabilitated, and the low risk he poses to society—factors that affect the sentence, not the verdict.

Even in contested cases, the outcome for defendants is bleak. In American federal courts, about one-fifth of all criminal defendants plead innocent—and of those, one-third are subsequently convicted (state numbers indicate a similar trend). Meanwhile, in Japan, despite the fact that only 7 percent of defendants choose to contest their prosecution, the conviction rate in such instances is still about 99 percent.

The temptations of overzealous or unethical prosecution are kept in check by cultural norms—the stigma of losing, the civic duty of the prosecutor—more than a system of checks and balances. But in Mainali's case, I believe that cultural norms failed him. Prosecutors were faced with unusual public pressure to secure a conviction quickly, despite flimsy evidence, and that's exactly what they did.

GOVINDA MAINALI, WHO LEFT NEPAL FOR JAPAN IN EARLY 1994, was taken into police custody on March 13, 1997, and held for overstaying his visa. The charge was a pretext: Police considered Mainali a suspect in the killing of a prostitute found four days earlier. At first, Mainali claimed not to know the woman. But interrogation led him to admit that the two had sexual intercourse on a few occasions, including one shortly before she was killed. Mainali steadfastly denied having a role in the crime.

Murders in Japan nearly always make news, but the details of this case proved especially sensational. The victim, a prostitute by night, turned out to be a respected economist for a large firm. Whatever her motives for prostitution, money clearly wasn't among them, prompting a renewed debate on the sexual mores of career women. The story hit a series of raw nerves, bringing sustained attention to the topics of prostitution and immigration in a nation not known for the honesty of its feelings about either.

The government's case relied on circumstantial evidence. It could prove only that Mainali had sexual intercourse with the victim near the day of the killing, a fact consistent with the revised story he had admitted to the police. Prosecutors opted to do the unusual and take the case to court without a confession or a smoking gun, paving the way for the unexpected to happen. Despite an unpopular client and an uphill battle, the defense prevailed. The chief judge (Japan has no criminal juries) explained in his ruling that the government had failed to meet the burden of proof. The central piece of evidence, a condom found on the scene containing Mainali's semen, did not prove the prosecution's theory of the crime, the court said.

But in the aftermath of this unlikely victory, the system turned on Mainali. A higher court stayed his acquittal and ordered him detained while the finding at trial was reconsidered. In the United States, where defendants are protected against double jeopardy, Mainali's acquittal would have ensured that he went free. Japan has no such standard: The opportunity to appeal a criminal acquittal is just one more weapon in the prosecutorial arsenal. Critics have pointed out that the stigma of losing a case puts prosecutors under great pressure to appeal each and every acquittal. In the notorious Kabutoyama case, prosecutors spent 21 years unsuccessfully appealing not-guilty verdicts handed down against a teacher charged with killing one of her students.

Deemed a flight risk, Mainali was held in the detention center for over eight months while prosecutors sought out and found a court more receptive to their case. In December 2000, the Tokyo High Court reversed Mainali's acquittal and sentenced him to life in prison. The presiding judge, Toshio Takaki, was the same man who had granted the prosecution's request to keep Mainali behind bars pending appeal. After six brief sessions that introduced no new evidence, he wrote that the record from the first trial left no doubt of Mainali's guilt.

TO OUTSIDE OBSERVERS, JAPAN'S HIGH CONVICTION RATE seems proof of a system weighted against defendants. But the real story is more complicated. Japanese prison terms, for both violent and nonviolent offenses, are shorter than those for comparable crimes in the United States. Murder, for instance, can carry a sentence of as little as three years. What is indisputable, however, is that in failing to emphasize procedural justice—a system based on rights and vigorous advocacy—Japan entrusts the integrity of its system to the good judgment of its prosecutors.

Daniel Foote, one of the first American-born law professors to receive tenure at a Japanese university, has argued that a discretionary system leaves few safeguards in place for cases where cultural sensibilities about honor and justice fail. I believe the Mainali case falls in this category. A high-profile arrest of an unpopular foreign suspect put prosecutors in a tough position, and Mainali made matters worse when he failed to abide by Japanese customs. By lying to the police, he destroyed his credibility and confirmed the prosecutor's belief that he was guilty.

Once prosecutors decided to go to trial, the incentives of the system made it difficult to turn back. And once Mainali found himself on trial, even an acquittal couldn't save him from jail time. Of course, wrongful imprisonment isn't endemic to Japan. In the United States, this case might have ended, as almost 90 percent of cases do, in a plea bargain, one tactic not available to Japanese prosecutors. Had he been arrested in the States, Mainali might well be serving 10 years instead of life, an only slightly more desirable scenario for a man many believe to be innocent. For now, Mainali sits in the Tokyo Detention House, waiting for an appeals ruling that is unlikely to set him free.

Hiroshi Matsubara is a reporter for The Japan Times, an English-language newspaper based in Tokyo.

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