Double Jeopardy and the Japanese Law

Two recent high-profile exonerations have reignited calls by defense lawyers to require the full disclosure of evidence, and to let verdicts handed down by lay judges stand.

The lawyers for Nepalese Govinda Prasad Mainali, who on Nov. 7 was finally exonerated in absentia of a 1997 robbery-murder, went a step further and slammed the Japanese practice of allowing prosecutors to appeal acquittals — something other countries ban as double jeopardy.

Because lay judges are now serving as de facto jurors in trials for serious crimes, attempts to appeal any acquittal they declare — even if they work with professional judges and are only exposed to whatever evidence both sides agree to submit — could undermine their significance.

The Tokyo District Court acquitted Mainali in April 2000, but prosecutors appealed, and the Tokyo High Court — using the same evidence — sentenced him to life for killing a woman employed by Tokyo Electric Power Co. who was moonlighting as a prostitute.

Mainali served 15 years in prison before being cleared in a retrial based on evidence prosecutors had from the get-go but didn’t present. That evidence was crucial because it indicated the woman was killed by someone other than Mainali.

Mainali was freed in June and promptly deported.

“I sincerely hope serious discussions about barring prosecutors from appealing an acquittal will start,” said Shozaburo Ishida, one of his lawyers.

Then there was the case of ex-Democratic Party of Japan powerbroker Ichiro Ozawa, who was put through mandatory indictment for allegedly conspiring to falsify his political funds records.

Prosecutors declined to press charges due to lack of evidence, but special public inquest panels set up to scrutinize the maverick politician decided twice to have him forcibly indicted.

Lawyers appointed by the court to act as the prosecutors tried Ozawa before the Tokyo District Court and lost. They then appealed to the high court, which on Nov. 12 upheld his acquittal.

Ozawa’s counsel criticized the court-appointed lawyers for appealing the ruling, which resulted in the acquitted man’s name being dragged through the press for several months as a perpetual defendant.

In a nation that boasts a 99.9 percent conviction rate, not-guilty verdicts would seem significant, yet prosecutors have the right to appeal.

Now that lay judges have been engaged in the criminal trial process since 2009, debate appears to be brewing over revising the law so that prosecutors are banned from seeking to overturn acquittals.

Legal experts interviewed by The Japan Times said that the prosecutor’s right to appeal has been taken for granted and is not a tradition likely to be easily ended.

The Supreme Court in February said in its decision on a lay judge trial that appellate courts must provide concrete reasons to support the overturning of an acquittal. This landmark decision may slowly help change the attitude of prosecutors and courts toward appeals filed by the state, the experts said.

“It’s very difficult to amend (the criminal) law unless the police, prosecutors and the Justice Ministry approve. Most politicians don’t have that kind of power or knowledge to challenge them,” said Akira Goto, a criminal law professor at Hitotsubashi University Law School. “But February’s decision may help change” the practice of prosecutors and courts, he said.

Double jeopardy has actually been the subject of debate for a long time, because the criminal procedure law stipulates that both prosecutors and defendants have the right to appeal. And Article 39 of the Constitution effectively states that no one should be held criminally liable for an act that was lawful at the time it was committed, or for which an acquittal has been declared, and no one should be placed in double jeopardy.

Defense lawyers have challenged the constitutionality of appeals filed by prosecutors, but in 1950 and thereafter, the Supreme Court has handed down judgments that upheld that right. The top court has basically reckoned that one “jeopardy” continues until a case is finalized.

“As long as the system allows three levels of trials, it’s a matter of course for prosecutors to appeal not-guilty verdicts as well as cases where the prison term is much shorter than what prosecution demanded,” unless they conclude that winning a reversal is unlikely, said lawyer Hidenori Imai, a former prosecutor who is now a professor at Kokugakuin University Law School.

In fact, judicial statistics show prosecutors are much more likely to win appeals than are defense teams. According to 2010 data, 65.5 percent of prosecutors’ appeals succeeded, meaning lower court acquittals or shorter sentences were overturned, while only 9.9 percent of defendants’ appeals were supported by high courts.

Lawyer Akira Kitani, a former criminal trial judge, said this partly stems from the fact that prosecutors take great pains to ensure whoever they indict can be convicted, and judges become accustomed to rubberstamping guilty verdicts. In the event of appeals, prosecutors are even more selective and pursue acquittals they are confident they can defeat.

“They write very, very careful arguments pointing out where the initial decision was wrong, and they can be convincing for high court judges,” Kitani said.

Kitani is recognized in legal circles as one of the few judges who have handed down a significant number of acquittals, although he admitted he spent much of his 37-year career in the judicial bureaucracy rather than on the bench. His record is even more notable because among the more than 30 acquittals he issued, only one was appealed by prosecutors, and they lost.

“I haven’t done anything special. I simply focused on what the courts are expected to do — check to see if the prosecutors have proven their case by the evidence submitted. I also listened carefully to the defendants and their lawyers. And if I had questions, I made sure they were answered. And when I did all that, there were cases that left room for doubt that couldn’t be solved. When that happened, I gave the benefit of the doubt to the defendant. That’s it,” he said.

“It’s a problem that I stand out (for my record.) I believe other judges also try cases that merit acquittals,” Kitani said.

His criticism of judges seems to reflect the hazards endemic to the strong powers prosecutors hold.

For example, Kitani noted there are too many judges who are indecisive and end up leaning toward convictions.

“Because they are so used to handing down convictions, sometimes when they face cases where they think there are doubts, those judges don’t know whether an acquittal is merited. The judges around them share the same mindset, and no one recommends an acquittal, so they end up convicting,” he said.

“And even if a judge (who has doubts) hands down a not-guilty verdict and that case ends up being overturned by a higher court, the judge will regret handing down the acquittal based on doubts, and instead stop handing down acquittals. This is one problem that stems from allowing prosecutors to appeal,” Kitani said.

But the Feb. 13 decision by the Supreme Court regarding how high courts should handle appeals may reduce the reversal of acquittals, pundits said.

In that case, the top court overturned a high court reversal and upheld a lay judge acquittal in a case involving a man indicted for allegedly smuggling stimulants into Japan.

In its decision, which became its first judgment on how an appeals court should operate, the Supreme Court said the high court must provide concrete proof that the lower court ruling was irrational in terms of “logical consistency and common sense” to reverse a district court ruling on grounds of factual error.

The case involved a 61-year-old man who allegedly smuggled about 1 kg of stimulants from Malaysia to Japan. Six lay judges and three professional judges at the Chiba District Court gave the man the benefit of doubt and acquitted him in June 2010. They accepted his argument that a client gave him canned chocolates as a souvenir for his friend and he was not aware the package contained stimulants.

Both Kitani and Goto of Hitotsubashi University said this landmark decision may send a message to both the courts and prosecutors that the bar to reverse acquittals has been raised  and reversals won’t come easily.

“Realistically speaking, when it becomes the norm for prosecutors to follow the Supreme Court’s judgment and stop appealing acquittals, then revising the law (in order to ban such appeals) may finally become possible. But that’s still going to take a long time,” he said.

In the meantime, it will also be important for prosecutors and the public to overcome the strong notion that all indictments must result in convictions, Goto said.

“Prosecutors see an acquittal as a failure that stains their record, because they are expected to only pursue cases they feel confident of winning. That kind of pressure also leads them to appeal.”