Here is an article by Minoru Matsutani of the Japan Times on the Mainali Case and the flaws of the Japanese criminal justice system that it highlights (read about the Mainali Case here and here).
It points out some of the problematic features of the Japanese system including: (1) prosecutors withholding evidence which would have cleared the defendant (no Brady rule in Japan), (2) not enough disclosure of the prosecution’s evidence, (3) no law to limit the appeal by the prosecution to a not guilty decision by the court, etc. In addition, there were apparently even more hardships for Mainali, who is a Nepalese.
Mainali is expected to leave Japan for his home country this week.
Mainali case exposes flaws, bias in judicial system –Prosecutors withheld evidence, detained Nepalese after acquittal
Facing retrial, exoneration and freedom after spending 15 years in prison for the 1997 murder of a Tokyo woman — a crime for which he was initially acquitted — Govinda Prasad Mainali could be a case study in the flaws in the nation’s judicial system.
Like other foreigners in violation of their visa status, the Nepalese was placed in immigration detention after his acquittal, pending deportation. But prosecutors had other plans: They made sure he stayed in immigration custody as they retried his case on appeal, bent on a conviction.
To this end, they withheld evidence that would strongly establish reasonable doubt of guilt. In short, they presented, as a spokesman for the state said, what was needed “to prove their case.”
……Mainali lawyer Shozaburo Ishida faulted prosecutors for withholding vital evidence that could have upheld Mainali’s acquittal.
“The problem is that we lawyers cannot know what evidence prosecutors have,” Ishida said. “We just have to rely on prosecutors’ ethics.”
The Tokyo High Court this time around “took the initiative to push prosecutors to present all the evidence in a way I have never seen. We greatly appreciate the court’s attitude,” he added……
It wasn’t until September 2010 that prosecutors finally revealed they had kept frozen a piece of gauze containing semen from another man taken from inside the victim’s body, Ishida said.
That, and the fresh DNA analysis matching the semen and hair found at the scene, served as the key pieces of evidence indicating the unidentified other man may have been the last person with the victim. No fresh DNA evidence matching Mainali’s was found.
A spokesman for the Tokyo High Prosecutor’s Office told The Japan Times, however, that withholding such evidence, as the state did before the district court’s 2000 acquittal, does not violate the “prosecutors’ ethical code” published by the Supreme Prosecutor’s Office on Sept. 28 last year.
“We believe it is in compli-ance with the ethical code because the prosecutors submitted evidence appropriately in order to prove their case,” the spokesman said.
The Supreme Prosecutor’s Office published the code in response to a major scandal involving prosecutors bent on winning a conviction. Elite Osaka prosecutors had tampered with evidence in a failed attempt to establish the guilt of a health ministry official on trial for fraud in September 2010.
The code basically stipulates prosecutors must comply with laws, perform their duties in a fair manner, respect human rights and do their utmost to avoid punishing the innocent.
Japan is not the only country where prosecutors are selective in the evidence they present in their pursuit of a conviction.
……To be sure, there were no laws in Japan as of 2000 that required prosecutors to present all evidence in their possession. In November 2005, the Code of Criminal Procedure was revised to require prosecutors to present a list of evidence. But the revised law’s lack of penalties may prove little deterrent to the withholding of key evidence.
The revision was made in preparation for introducing the lay judge system, to simplify trial procedures for citizen judges.
Prosecutors may now have to submit a list of evidence, but they decide what is on the list, and thus lawyers have to depend on their good faith, lawyer Ishida said.
It is unknown, however, whether prosecutors actually knew the gauze contained semen that was not from Mainali, he said.
Prosecutors nonetheless should always present all the evidence they have from the beginning, Ishida and Aoyama Gakuin University law professor Osamu Niikura said.
“Prosecutors are not just opponents of defendant attorneys. They serve the public interest, and presenting all the evidence to make sure they don’t convict an innocent person . . . is in the public interest,” Niikura said.
……Another problem in Mainali’s case was that prosecutors appealed the district court acquittal, leading the Tokyo High Court to convict him, Ishida said……
Japan, like many nations, bans double jeopardy, but the judicial system considers district court, high court and Supreme Court trials of the same party for the same alleged offense to be separate trials, unlike in other countries where the verdict in the trial of first instance stands.
Judges here also apparently follow the maxim “prosecutors are usually right,” as 99 percent of defendants are found guilty in criminal trials, Aoyama Gakuin University’s Niikura said.
Prosecutors’ interrogations here are more thorough than those carried out in other countries, he said, hence the “very extreme” 99 percent conviction rate.
Another problem was that prosecutors demanded Mainali remain in Immigration Bureau custody after his district court acquittal, because otherwise he would have been deported for overstaying his visa. The high court could not have held an appeal trial without him in Japan.
“If he was a Japanese, he would have been released,” Ishida said, calling prosecutors’ demand for the detention of someone who had been acquitted, just so they can pursue a conviction, unprecedented.
Mainali is back in immigration custody, effectively in detention since 1997
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Strictly, the prosecution have indeed complied with their “ethical” requirement to “submit evidence appropriate to prove their case”. The mischief is that the “ethical” responsibility appears to end with the prosecution case, not with the overall fairness of the proceedure. There is a notable lack of an equally potent, enforceable ongoing obligation upon the prosecution to actively bring to the attention of the defence all and any evidence gathered in the investigation which has the potential to undermine the prosecution or which may reasonably be capable of assisting the defence.
To that end, senior named individuals at the police investigation stage and prosecutors office must be appointed and held to account for decisions relating to “disclosure” on an ongoing basis throughout the pre-trial process. This, in turn (as in the United Kindom) may lead to a concommitant obligation upon the defence to indicate the nature and character of their case in order for the prosecution (in gathering evidence) to reasonably know what items may become evidence capable of undermining the prosecution or assisting the defence.
Secondly, however, any such proceedure implies a proactive, adequately (publicly) funded defence together with legislation giving locus standi to defence advocates to properly challenge failings in the disclosure process at an early stage. The court must be empowered to compel any failings in disclosure to be addressed and sanctions to stay proceedings in circumstances where it appears such duty is not, reasonably, being met. The latter sanction may exist in adversarial juurisdictions such as the US, but the former impediment of inadequate funding is an equal, more pernicious impediment to justice, alive and well in the US criminal justice system and increasingly in the United Kingdom.
Thank you for your comment, A.C. Foreman! Sadly, Japan does not even have the Brady requirement. We now have implemented a limited discovery process in some case, but not all… For the fairness of the process, I agree with your view that the prosecution should disclose all and any evidence that came into their attention.
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