Skip to main content

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

Comments

Most viewed (Last 7 days)

Indiana's governor turns down clemency request, says execution planned for Thursday will go forward

Indiana’s governor turned down a clemency request and says an execution planned for Thursday will go forward against a man who killed his girlfriend’s two children in 2010 Indiana's governor turned down a clemency request Monday and said an execution planned for this week would go forward for a man who set a fire that killed his girlfriend's two children in 2010. Gov. Mike Braun said he would follow the Indiana Parole Board's recommendation to let the death sentence stand for Jeffrey Weisheit. “The Indiana Department of Correction will continue preparations to carry out the court-ordered sentence of execution” Thursday, said Braun, a Republican.

Indiana executes Jeffrey Weisheit

An Indiana man who admitted killing his girlfriend's two children was executed early Thursday in the first of three lethal injections scheduled for the same day in the U.S. Jeffrey Weisheit killed the children, ages 8 and 5, by setting fire to his girlfriend's house in the Evansville area in 2010.  The remains of 8-year-old Alyssa Lynch and 5-year-old Caleb Lynch were recovered from the ruins of a fire at their home in the Evansville area. Alyssa’s body was in a closet. Caleb’s body was on a mattress, restrained with duct tape. A railroad flare was in his underwear, and another was under his body. The children’s mother, Lisa Lynch, was at work at the time. She was in a relationship with Weisheit, but it was breaking down, investigators said. Weisheit spent 13 years on death row after his conviction. Weisheit died at the Indiana State Prison in Michigan City. The lethal injection started just after midnight, and he was pronounced dead at 12:45 a.m., according to Noelle Russell, ...

USA | 3 states to carry out rare triple execution this week

If all three executions are carried out as planned, it will be the second triple execution in the U.S. this year, reflecting an overall uptick in the death penalty since the beginning of 2025. Three states are planning to carry out a rare triple execution this week on Nov. 5. Indiana is set to execute Jeffrey Weisheit, 50, by lethal injection for the 2010 murders of his girlfriend's two children, 8-year-old Alyssa Lynch and her 5-year-old brother, Caleb. The children were burned alive in their home.

Vigil planned ahead of high-profile Oklahoma inmate's execution

OKLAHOMA CITY (KOKH) — After the Oklahoma Pardon and Parole Board denied clemency for a high-profile death row inmate in Oklahoma, a local organization is protesting his execution. James Pavatt was sentenced to death for the 2001 murder of Rob Andrew, a 39-year-old Oklahoma City advertising executive and father of two. Evidence presented at Pavatt's trial showed that he began an affair with Andrew's wife, Brenda Andrew, in 2001. Prosecutors argued that the murder was especially cruel and that Pavatt killed Andrew for an $800,000 insurance policy.

‘I’m Not Incompetent’ Christa Pike’s execution doctor, Mark Fowler, speaks.

Dr. Mark Fowler knew something was wrong after 45 minutes passed without word from the warden. In most cases, executions take no more than ten minutes. When he was summoned from his waiting room to the chamber next door, he saw 50-year-old Christa Pike, who’d received two lethal doses of pentobarbital that night, strapped to a gurney, gasping for air. “She’s not dead,” Fowler recalls the warden saying. “I thought, Well, in human beings there’s a spectrum of responses to medications and we’ll give it a few more minutes,” he says. Another half-hour passed. Fowler worried she might survive with irreversible brain damage. “She’s going to be in a permanent vegetative state with a quarter-million dollars in medical expenses.” He came back in and diagnosed her as comatose. The deputy commissioner ordered the execution to stop. Now, instead of taking part in Pike’s death, Fowler’s job was to bring her back to life.

Indiana governor rejects brain scans for death row inmate ahead of execution

Gov. Mike Braun is still weighing Jeffrey Weisheit’s clemency request, however. Gov. Mike Braun’s administration will not allow death row inmate Jeffrey Weisheit to undergo additional brain scans before his scheduled execution next week. The decision follows weeks of legal efforts by his attorneys to obtain additional medical evidence for his clemency case. Braun’s general counsel, Stephanie Flittner, met with Weisheit’s legal team Wednesday to discuss the testing and his pending clemency request.

Indiana Parole Board hears testimony on clemency for man scheduled for Nov. 5 execution

Jeffrey Weisheit set his house on fire in 2010, killing his girlfriend’s two young children he was watching.  The Indiana Parole Board will now make a recommendation in the coming days to Governor Mike Braun on whether to grant clemency to condemned killer Jeffrey Weisheit.  Jeffrey is scheduled to be executed by lethal injection on Nov. 5 for the 2010 murder of his girlfriend's 2 children in Vanderburgh County. 

Texas | Jury recommends death penalty for man convicted of killing San Benito police lieutenant

A Cameron County jury recommended the death penalty for Rogelio Martinez for killing a San Benito police lieutenant during a police chase in Brownsville.  Martinez stared forward as the judge announced the recommendation. Lt. Milton Resendez's family told Martinez in court that their lives will never be the same.  Resendez's wife and siblings walked past cameras and declined to speak with reporters. Inside the courtroom, where no audio or video recording was allowed, Resendez's sister Jackie raised her voice at Martinez during impact statements. 

Florida executes Jesse Guardado

Man convicted of 2004 killing is put to death in Florida’s 19th execution this year, tying a record Florida carried out a record-tying 19th execution of the year in an unusual instance of 3 states administering the death penalty on the same day. Jesse Guardado was pronounced dead at 6:13 p.m. following a 3-drug injection at a state prison in Starke. He had pleaded guilty to fatally stabbing 75-year-old Jackie Malone inside her Walton County home in 2004 before stealing her jewelry box, $80, and other valuables to buy drugs. The woman had helped him get a job and housing.

François Mitterrand, the Justice Minister Who Sent 45 Men to the Guillotine

The socialist president celebrated for abolishing the death penalty in France sent 45 condemned men to the guillotine when he was Minister of Justice. In French political history, François Mitterrand is the father of the historic victory of May 1981. He remains associated with one of the greatest moral laws of the Fifth Republic: the definitive end of capital executions, carried through with Robert Badinter in the autumn of 1981.