Japan: Retrials high hurdle but sole track for wrongfully convicted

Death chamber
at Tokyo's Detention Center

Last month, the 1997 robbery-murder allegedly committed by Nepalese Govinda Prasad Mainali made headlines after a new DNA analysis showed the victim may have been with another man at the time she was slain and not the accused, who has maintained his innocence.

District Court found Mainali not guilty in 2000, the high court appealed and sentenced him to life — a term upheld by the Supreme Court and finalized in 2004. He is currently in a Yokohama prison.

The higher courts based their verdicts on the assumption that the accused must have been the only person with the victim.

For people whose sentences are finalized, the only way to win an acquittal, presuming a wrongful conviction has occurred, is through a retrial.

Mainali has been seeking a retrial for years, filing a motion in 2005. With the new evidence, expectations are high that he may finally get one and clear his name.

Following are questions and answers regarding the long and difficult retrial system.

What legal preconditions must be met for winning a retrial?

Under the Criminal Procedure Law, only someone whose sentence has been finalized can file.

The convicted or the legal representative must present new and clear evidence to support the bid, including proof that past testimony or expert opinions were wrongful.

A 1975 Supreme Court decision eased the criteria by ruling a retrial can be held if there is "reasonable doubt" about the finalized verdict.

If the convicted has died or is declared not of sound mind, a spouse or other direct next of kin can file for a retrial.

Prosecutors, who can file and appeal to reverse an acquittal, are meanwhile prohibited from seeking retrials for people who have been cleared, although they can file an objection to a court decision to hold a retrial.

Hiroshi Sato, a defense lawyer who has been involved in cases involving apparent wrongful convictions, stressed that not only is the life of someone wrongfully found guilty affected but also the real criminal remains unidentified.

"It is a double mistake committed by the state," Sato said. "One simple mistake could have an irredeemable impact on the person wrongfully convicted of the crime . . . (but) also would let the real culprit run free and victimize more people."

Why can a retrial process be drawn-out?

First there is a 3-step application process. Prosecutors or defendants can file an objection to a court's decision to approve or reject a retrial 3 times.

But even if the retrial bid is ultimately rejected, there is no limit to the number of times one can be sought.

Thus it is not uncommon for someone convicted to repeatedly seek a retrial. Many spend years, even decades, just seeking a retrial.

"Prosecutors will fight till the end to argue that the guilty verdict was correct," Sato said. "It takes too long to right a wrongful conviction in retrials. We must make sure that no innocent person is convicted in the initial trial stage."

What is the history of the retrial system? Have judicial precedents been established over the years?

The history of retrials goes back to the 1880 "Chizaiho," a law that later became the current Criminal Procedure Law.

The current criminal law which took effect in 1949, stipulates that retrials must only be granted if it benefits the convicted.

But almost none was granted, with the exception of a handful of people who had been sentenced to death for heinous crimes before and in the period immediately after the war.

In 1968, a bill to grant special retrials to people sentenced to death during the Allied Occupation, when political influence could have swayed the verdicts, was submitted to the Diet.

The bill was scrapped but the justice minister at the time, Kichinosuke Saigo, declared during a committee session in July 1969 that he would consider granting amnesty to 7 death-row inmates.

"It is natural to grant amnesty to those who deserve it in light of the circumstances of the crime, their behavior and the situation after the crime has been committed," Saigo said before the Lower House committee.

In the end, only 3 of the 7 were granted amnesty. One was executed, another died of natural causes in prison and 2 won acquittals in retrials.

Then came the 1975 Supreme Court easing of the criteria in connection with the Shiratori Incident, ruling that a retrial should be held if there is reasonable doubt concerning a guilty verdict.

The case was named after police officer Kazuo Shiratori, who was gunned down in Hokkaido in 1952. One of the people convicted of the crime and sentenced to life pleaded innocent and demanded a retrial.

The top court's decision of reasonable doubt pertaining to the convict's guilt had a significant impact on the retrial system, opening the door to a series of acquittals.

In the 1980s, 4 people on death row were granted retrials that resulted in acquittals. But since the 1990s, no other death-row inmate has been acquitted.

How may people have been acquitted by retrial?

The Japan Federation of Bar Associations said it is aware of 14 serious criminal cases, including murder and robbery-murder, that involved people on death row or serving prison terms in which retrials resulted in acquittals since the war.

The group does not have data on all convictions that were reversed but the number would spike if lesser offenses were included, such as traffic-related convictions.

The group is currently supporting six criminal cases in which retrials are sought, including Mainali's.

In May, Shoji Sakurai and Takao Sugiyama won not-guilty verdicts for the murder of a 62-year old carpenter, more than 40 years after they were handed life sentences in 1970.

A client of Sato's, Toshikazu Sugaya, was freed in June 2009 after a fresh DNA test failed to match that found on the 4-year-old girl he was convicted of killing in 1990, although an initial test at the time was used to convict him, when DNA testing was in its infancy. He spent 17 years in prison.

But retrials of death-row inmates remain rare, the last one being granted in 1986.

Death-row inmate Masaru Okunishi, however, may become the 1st to be granted a retrial in decades. In April 2010, the Supreme Court revoked a lower court ruling on Okunishi's retrial application and ordered the Nagoya High Court to deliberate the case further.

Okunishi has been on death row since 1972, convicted of killing 5 women and wounding 12 with poisoned wine in Mie Prefecture. This is his 7th retrial application.

Do many on death row seek retrials?

Yes. According to a JFBA survey released in January, 71.1 percent of 110 death-row inmates were applying for or planning to apply for retrials.

The law does not stipulate the suspension of a sentence while the convicted pursues a retrial, but legal experts say that in most cases, executions will be put on hold.

Is there an independent review system?

No. Retrial applications are handed to the courts that handed down guilty verdicts. If a retrial is granted, it would be brought before the same court.

In January, JFBA urged the government to set up a 3rd-party committee to analyze alleged wrongful convictions to learn how they came about and to recommend preventive action.

"There is a limit to an internal examination," the group said in a statement.

"It is clear that the investigation must be held by an independent 3rd party, separate from the police, prosecutors or the courts, to hold an exhaustive examination to determine the cause of misjudgments."

What about other countries?

In England, Wales and Northern Ireland, the Criminal Cases Review Commission was established in 1997 to examine possible wrongful convictions or unfair sentences.

As an independent public body, it considers "whether there is new evidence or argument that may cast doubt on the safety of an original decision."

If the CCRC determines that a case resulted in a wrongful or unfair sentence, it will refer it to the appeals court for reconsideration.

A similar commission was set up in Scotland in 1999.

In the United States since the early 1990s, the nonprofit group Innocence Project has been helping to win the exoneration, via DNA testing, of people believed wrongfully convicted.

According to the group, 273 people have been cleared through DNA tests in the U.S., including 17 who were on death row.

Such findings have led several states to issue a moratorium on the death penalty or abolish it, including Illinois, whose governor signed the bill to end it in March.

Source: Japan Times, August 15, 2011