Tokyo High Prosecutor’s Office stated on August 2nd (JST) that it will not appeal the Tokyo High Court’s decision affirming the ruling to grant a retrial for Govinda Prasad Mainali. The Prosecutor’s Office commented that it could not find a compelling reason to file a Special Appeal to the Supreme Court (since the grounds for Special Appeal are limited). However, they will not change their argument that Mainali is guilty of the 1997 murder in the retrial process.
Division 4 of Tokyo High Court granted Mainali a retrial in June this year, but the Prosecutor’s Office immediately filed an objection. Objection was denied by Division 5 of High Court on July 31st. Read more in my previous post here.
Division 4 of the Tokyo High Court, which also granted a retrial for Mainali, will handle the retrial process. In all the cases where a retrial took place in the past, “not guilty” decisions followed.
Read a detailed report in English from the Daily Yomiuri Online Staff writers Katsuro Oda and Chihiro Iwasaki here.
The Tokyo High Court’s rejection of objections by prosecutors regarding the granting of a retrial to a Nepalese man convicted of murder has made it nearly certain a retrial will be held and that the defendant, who was released from custody in June, will be found not guilty.
Prosecutors in the case claimed the court’s earlier decision to grant a retrial, which was based on the reevaluation of evidence already presented during a trial and that was not directly related to new evidence, runs counter to judicial precedent.
However, with the rejection of this assertion by a different division of the same court, the Tokyo High Public Prosecutors Office has decided not to file a special appeal with the Supreme Court, according to sources close to the office. A formal decision is expected shortly.
After the start of the retrial is confirmed, the first hearing at the high court regarding the 1997 murder of a female employee of Tokyo Electric Power Co. is expected to be held later this year.
Prosecutors have said they will continue to seek a conviction for defendant Govinda Prasad Mainali, who has returned to Nepal. However, legal experts believe it is highly unlikely he will be found guilty.
Prosecutors had pinned their hopes on a reexamination of DNA evidence found on the victim’s hand. The DNA analysis carried out for the high court’s hearing on the retrial request stated that the sample contained more than one person’s DNA–likely that of an unidentified person mixed with that of the defendant or the victim. A DNA examiner was unable to determine who the DNA belonged to.
The prosecutors believed if a repeat analysis showed the mixed sample contained Mainali’s DNA, it was possible the high court’s retrial decision could be overturned. Tuesday’s decision rejected their request, saying there is no need to reexamine the DNA.
The prosecutors also insisted that the circumstances surrounding the murder pointed more naturally to Mainali as the culprit, instead of a third person who entered the picture through new DNA analysis.
The court’s latest decision rejected this assertion as well, saying that even considering prosecutors’ claims, reasonable suspicion exists that the third person could be the perpetrator.
According to one veteran judge, “Since the high court made the same judgment twice in only two months, I’ve no doubt the defendant will be found not guilty in the retrial.”
Stung by the back-to-back decisions against them, prosecutors have started using stronger language, with one senior official of the top prosecutors office calling the court’s decisions “absurd” for not giving proper weight to decisions made in the trial-and-appeal justice system.
In June, the prosecutors office launched a committee of prosecutors to discuss how to present cases involving retrials to the court while “respecting [the court's] final decision.”
In the Mainali case, some said a special appeal should be filed with the Supreme Court, but most believed that claims regarding judicial precedent or assertions that the high court decision was unconstitutional would not hold up. The latter view won and the special appeal was abandoned.
Limited room to prove guilt
The retrial is expected to start in the Tokyo High Court in a few months.
The former defendant was found not guilty by the Tokyo District Court in April 2000. But following an appeal, the Tokyo High Court overturned the decision, ruled he was guilty and sentenced him to life in prison in December 2000.
The retrial will reexamine the case from the stage of contesting whether the not-guilty ruling was appropriate. If the high court finds Mainali not guilty, the court will dismiss an intermediate appeal.
The prosecutors are also considering whether to call for a reexamination of the DNA found in a substance left on the victim’s hand.
Just as the submission of new evidence is restricted in the hearing of an intermediate appeal handling an ordinary criminal trial, it is highly likely that a call for the reexamination of DNA will be turned down.
Recently, partially due to the impact of the new lay judge system, there is a growing tendency of courts to respect the decision made in the first trial.
This means it is possible that the retrial could be concluded in just one day if the DNA test results that are presented as new evidence are adopted. This evidence showed that the DNA of semen left inside the victim’s body is from a third person and DNA matching this person was found in body hair collected at the crime scene.
A senior prosecutors office official said, “If the high court does not approve the DNA reexamination, there is a way for the high public prosecutors office to do it on its own.”
The high public prosecutors office made repeated additional DNA tests during a high court hearing over the demand for a retrial. However, the office was unable to find DNA that matched the former defendant.
Former judge likely to return
The retrial will be handled by the high court’s “4th criminal division,” which includes Judge Shoji Ogawa, who presided over the court that granted the retrial for Mainali in June. If no personnel changes are made, it is highly likely Ogawa and his colleagues will be in charge of the case.
Another prosecutors office official said, “We should work out some measures, but it would be difficult for the judges who firmly believed in the defendant’s innocence to change their mind.”
Although Mainali has returned to Nepal, there is no need for him to appear in court as the retrial is an appeal to a higher court.
Another judge said, “The examination of the retrial will not be affected as long as the court can get in contact with the defendant through his lawyer.”