As I posted here, Mainali Case revealed many problems of the Japanese criminal justice system. One of them is the law that permits prosecutors to appeal the acquittal verdict.
Japanese law does ban double jeopardy. Article 39 of the Constitution states: No person shall be held criminally liable for an act which was lawful at the time it was committed, or of which he had been acquitted, nor shall he be placed in double jeopardy.
However, the Supreme Court decided on September 27, 1950 that trials in district court, hight court and the Supreme Court for the same offence constitute a single jeopardy. Thus, there exists no double jeorpardy where the prosecutor appeal the acquittal at the district court. There has been many cases where this case law was challenged, but the Court has constantly upheld the decision. It was not even considered as an issue in the recent reform efforts.
Isn’t it about time we change this rule? Here is an excellent article by The Japan Times on this topic.
From The Japan Times Online :
Tuesday, Dec. 4, 2012
Double jeopardy practice scrutinized
Bids to reverse acquittals risk invalidating the lay judges’ role
By SETSUKO KAMIYA Staff writer
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. Continue reading →
Mainali’s wife and his two daughters.
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. Continue reading →
I came across a great article by Professor Jordan Barry of University of San Diego School of Law on prosecution of the exonerated.
Jordan Barry, Prosecuting the Exonerated: Actual Innocence and the Double Jeopardy Clause, 64 Stanford Law Review 535 (March, 2012). It is obtainable on SSRN.
Here is the abstract:
In certain circumstances, a prisoner who challenges her conviction must convince a court that she is actually innocent in order to get relief. Unfortunately, such judicial exonerations often fail to persuade prosecutors, who are generally free to retry prisoners who successfully challenge their convictions. There have been several instances in which prisoners have convinced courts of their innocence and overturned their convictions, only to have prosecutors bring the exact same charges against them a second time. This Article argues that the Double Jeopardy Clause protects these exonerated defendants from the ordeal of a second prosecution. Permitting prosecutors to continue to pursue such individuals contradicts established Supreme Court case law, violates the policies animating the Double Jeopardy Clause, and impairs the operation of the criminal justice system.