Role of Prosecutors in Postconviction Proceedings

Lady Justice, in the Supreme Court of Japan

As I posted on Thursday, there was a decision by the Tokyo High Court to grant a retrial to Govinda Mainali. The High Court also ordered his release. He was finally released after 15 years of confinement. Since he has a conviction for visa violations, he is placed in immigration custody, and will be sent back home to Nepal, to his family.

However, the Tokyo High Public Prosecutor’s Office immediately filed an objection to the High Court. Even if the Court denies the objection, they can still file an appeal to the Supreme Court. Deputy chief prosecutor of the Tokyo High Public Prosecutor’s Office was quoted as saying that the Court’s decision to grant Mainali a retrial was “absolutely unacceptable”.

Meanwhile, Asahi Shimbun news reported on June 3^rd that the Supreme Public Prosecutor’s Office will be holding the first meeting ever with the public prosecutors who deal with postconviction claims of innocence. They are apparently alarmed about the relatively high number of recent court decisions to retry cases. Of the eleven decisions (in death penalty or life sentence cases) to grant a retrial since the end of WWII, five  were handed down after 2009 (decisions in Ashikaga, Fukawa, Fukui, Higashi Sumiyoshi, and Mainali cases. Note that four of these involve false confessions).

The court decisions in these cases were made possible in part by the state-of-the-art DNA testing. As the exonerations all over the world have made it clear, DNA is a strong tool to prove innocence of the wrongfully convicted.

However an exoneration means the police and prosecutors who investigated, prosecuted, and helped to convict an innocent person will be criticized by the public. Thus, it was reported that the prosecutors are worried that these decisions to retry cases “will undermine the public’s trust to the investigation process, and therefore worrisome from the standpoint of public safety”. An executive prosecutor said that they “will do their best to battle these retrial claims by developping prosecution’s scientific knowledge.”

If the prosecutors truly believe what they said in these media reports, it is an evidence that the public prosecutors are worried more about “winning” postconviction cases than finding out the truth.

The Article 4 of the Public Prosecutor’s Office Act of Japan provides that the public prosecutors have an “objective duty”, meaning the prosecutors should do their job not just as a party in the case, but as a legal professional, or a quasi-judicial officer. Their job is to see that the justice is done, to be fair and impartial, and to promote the public interest. They are not just a party in a criminal prosecution, try to win by all means.

Does the recent attitude of the prosecutors meet these expectations of the law? It definitely does not. If they made a mistake, they should admit it and right the wrong. If there is a new and clear evidence of innocence (as the judge in these cases said there is), the prosecutors should help, not prevent an exoneration.

The criminal justice system in Japan is often said to be a mixture of  inquisitorial and adversarial system (the Criminal Procedure Code of Japan stems from the inquisitorial background (mainly German) and changes were added with an adversarial influence after the WWII under the U.S. occupation). But it often seems to me that it has taken the worst of both worlds.

During the investigation process, the focus is to “find the truth,” and the “truth” is often “found” by getting a confession. The suspects and defendants are treated not as a party, but as an object of investigation. It is also often criticized that the judges tend to be closer to the prosecutors. Every element of the crime or the personal history of the defendant is thoroughly investigated and proven. The conviction rate in a Japanese criminal trial is astonishing: over 99%.

However, when it comes to postconviction proceedings, it seems as though the prosecution’s focus is on “winning”, that is, to protect the conviction. Recent comments by prosecutors suggest that they perceive the petition for retrial as a challenge to them by the convicts.

This reminds me of Mark’s article on prosecutorial ethics in inquisitorial systems. Even if the law requires the prosecutors to be neutral, there are many obstacles in reality.

Many of the 99.9% convictions in Japan may have been mistakes.  If the prosecutors in Japan have an objective duty, with the recent rush of the decision to retry the convicted cases, they should reexamine what went wrong in the investigation and prosecution of these cases and reform the system, not just focus on winning the postconviction process with full force.