Mainali case shows Japan's justice system is flawed.

Kazuo Ishikawa, a burakumin victim of Japan’s draconian criminal justice system.

After fifteen long years, Govinda Prasad Mainali, the Nepalese man who had been wrongly incarcerated for murdering a Japanese prostitute in 1997, will finally be exonerated. But the glaring defects of the Japanese criminal justice system, perhaps the worst in the First World, will likely remain unfixed.

Mainali’s fatal mistakes were that he had been seen with the victim ten days before the murder, and that a used condom bearing his semen was found at the scene of the crime. These were circumstantial evidence that could have hardly established guilt beyond reasonable doubt, which is why the Nepalese had been initially acquitted by the Tokyo District Court. But he was not immediately released; the Bureau of Immigration, instead of deporting him to Kathmandu as per standard procedure, prolonged his detention for visa violation. This enabled the prosecutors to appeal his acquittal.

The Tokyo High Court, using the same set of evidence, reversed the District Court’s verdict, calling Mainali’s testimony “unreliable.” He was sentenced to lifetime imprisonment, and he claims to have been physically abused by his guards. In Japan, non-guilty verdicts can be appealed and overturned even without new evidence. I’m not a lawyer, but if this is not double jeopardy, which is prohibited by Article 39 of the Constitution, I don’t know what is.

In June of this year, new evidence based on fresh DNA analysis prompted the High Court to re-open Mainali’s case. Not only did this re-opening proved, beyond reasonable doubt, that Mainali was indeed innocent, it also revealed that all this time, the prosecutors, who so vigorously pursued Mainali’s conviction, had in their possession pieces of evidence that could have established the fact that someone other than Mainali had actually been in the crime scene when the murder was committed. After trying in vain to block the re-trial, the prosecutors reversed their position last Monday, admitting that Mainali is indeed innocent; but they refused to apologize.

“They submitted the evidence appropriately in order to prove their case,” says the spokesman of the Tokyo High Prosecutor’s Office when asked if prosecutors in the Mainali case violated their code of ethics when they withheld evidence that could have proven the Nepalese’s innocence. He doesn’t get it: Public prosecutors are not just required to win their cases; their basic mandate is to seek the truth and, on that basis, pursue justice.

In Japan, criminal trials have a 99% conviction rate, leading some observers to wonder whether the burden of proof in Japanese criminal courts lies not with the prosecution but with the defense– that the accused is presumed guilty until proven innocent, so to speak. The result is that prosecutors who lose even just a single case face extremely dim career prospects, while defense lawyers have very little to lose. For Japanese prosecutors, therefore, winning a case, at all cost, is everything. It’s perhaps in this context that prosecutors in Mainali’s case saw a need to withhold evidence that could have cast doubt on his guilt. In some cases, like that of a health ministry official accused of fraud in 2010, prosecutors would even tamper with the evidence.  I suspect this is the norm in almost all criminal investigations in the country.

The problem is that prosecutors are not legally required to disclose all evidence they have in cases they pursue. This may sound unthinkable for a liberal democracy like Japan, but it’s just one of the many peculiarities that make Japan’s criminal justice system appropriate for an authoritarian, as opposed to a democratic, country.

Consider, for instance, that there are neither Miranda rights nor writ of habeas corpus in Japan (see Update below). The police can detain and interrogate a suspect without charge, and without access to lawyers, for three days. If prosecutors deem these three days to be insufficient, they can ask the courts for a ten day extension twice, which is approved most of the time. This means that the police can detain a suspect without access to state-appointed counsel for up to 23 days. Worse, if the suspect is charged with two cases, those cases would be dealt with separately, meaning the process can be repeated again in such a way that the police can detain and interrogate the suspect for 46 days or more, depending on the number of charges.

Usually, police interrogations are neither recorded nor videotaped. The law sets no limits to the length of these interrogations and matters and topics that the police may raise during the sessions. The law does not require the presence of defense lawyers in these interrogations either, which fuels speculation that the police are forcing suspects to make false confessions.

Toshikazu Sugaya, for instance, was convicted based on a confession he claims to have been coerced through police torture, along with an imprecise DNA analysis that prosecutors used against him. This was despite the fact that his false, written account of how he supposedly killed a four-year-old girl was inconsistent with the forensic evidence presented by prosecutors. He spent 17 years in prison, only to be released in 2009 when fresh DNA analysis conclusively indicated that he was innocent. Kazuo Ishikawa is not as lucky. Accused of murdering a female high school student in 1964, Ishikawa was arrested in a police round-up of a burakumin* neighborhood in Saitama Prefecture and detained without access to lawyers for 46 days. He claims that he signed a pre-prepared confession letter after the police threatened to arrest his brother, who had been his family’s breadwinner. He was sentenced to death, which was later commuted to life imprisonment with hard labor. He was released on parole in 1994, and is now fighting for a reversal of his guilty verdict.

How many more Mainalis, Sugayas, and Ishikawas are languishing in jails, perhaps waiting to be executed or had in fact been hanged, across Japan? This is something that law-enforcers, prosecutors, judges, and politicians must reflect on. Clearly, the current attitude among prosecutors, and the enormous Kempeitai-like powers given for the police to abuse, are not appropriate for a highly-industrialized country that calls itself part of the free world.

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*Burakumin is a Japanese outcast caste whose members’ ancestors took jobs considered unpure by Shintoism, like executioners, morticians, butchers and slaughterhouse workers, etc. during the feudal era. They usually live in hamlets and ghettos. 

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UPDATE: According to this article in the Japanese version of Wikipedia, Article 34 of the Constitution of Japan, which states that “no person shall be arrested or detained without immediately being informed of the charges against him, or without being given the right to have access to a lawyer” (何人も、理由を直ちに告げられ、且つ、直ちに弁護人に依頼する権利を与へられなければ、抑留又は拘禁されない。), is supposed to be the basis of Japan’s habeas corpus rule (人身保護規則). However, the rule is used mainly as a relief from unlawful private detention (kidnapping), as opposed to detention by law-enforcers.

Article 34 actually reads: “No person shall be arrested or detained without immediately being informed of the charges against him, or without being given the right to have access to a lawyer; nor shall any person be detained without adequate cause; and upon demand of any person such cause must be immediately shown in open court in his presence and the presence of his counsel.” (何人も、理由を直ちに告げられ、且つ、直ちに弁護人に依頼する権利を与へられなければ、抑留又は拘禁されない。又、何人も、正当な理由がなければ、拘禁されず、要求があれば、その理由は、直ちに本人及びその弁護人の出席する公開の法廷で示されなければならない。) This means that basic rights of the accused are supposed to be protected by the 1948 MacArthur Constitution. However, as this informative advisory by the US Embassy in Tokyo states, “there are no automatic ‘Miranda rights’ in Japan. The police usually begin their initial questioning before you have an opportunity to see a lawyer.”

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