Japan: Lay judge death sentences must be unanimous

Main gallows
at Tokyo Detention Center

Following a series of wrongful imprisonment cases, the Japan Federation of Bar Associations recently proposed that death sentences be handed down unanimously in lay judge trials, presided over by 3 professional judges and 6 citizens.

"People have been unfairly accused even in capital cases, thus it is necessary to introduce the unanimity rule when issuing a death sentence to prevent miscarriages of justice," the JFBA said, noting that death-row inmates have been acquitted after retrial in four postwar murder cases.

Under the current system, verdicts are based on "conditional majorities" that must include at least one professional judge.

Enforced on May 21, 2009, the lay judge law stipulates that the system must undergo a government review three years after its debut, if necessary. The JFBA's proposal was drafted with such a review in mind.

In addition to the four death-row reversals, other murder convictions have been overturned during retrials in recent years. Toshikazu Sugaya, for example, was freed in 2010 after being found not guilty through an updated DNA analysis, but only after serving more than 17 years of a life sentence for the 1990 murder of a 4-year-old girl.

At its annual human rights meeting last October, the JFBA expressed strong reservations about capital punishment and urged the government to immediately start public debate on abolishing the death penalty and to suspend executions during that period.

"We compiled the proposal on the premise that capital punishment is a harsh reality, and therefore we need to improve the lay judge system given these circumstances," said Hiroshi Shidehara, a Tokyo-based lawyer and secretary general of a JFBA taskforce examining the new jury-style system.

Amnesty International Japan official Teruo Hayashi welcomed the proposal.

"While we oppose the death penalty, it would be desirable if the unanimity rule would make lay judge panels more cautious and restrained in issuing death sentences," he said.

Japan has been under international pressure to abolish the death penalty.

"Regardless of opinion polls, the state (Japan) should favorably consider abolishing the death penalty and inform the public, as necessary, about the desirability of abolition," the Geneva-based Human Rights Committee argued in 2008.

Lawyer Shidehara suggested death sentences would definitely decline under a unanimity rule. As of the end of last year, 12 defendants had been sentenced to death in lay judge trials.

Worldwide, 141 countries have abolished the death penalty by law or in practice and 57 still use it, according to the JFBA and Amnesty International.

Since assuming his position in January, however, Justice Minister Toshio Ogawa has indicated he might resume issuing orders to send death-row inmates to the gallows, following a year in which no one was executed for the 1st time in 19 years.

In response, the Center for Prisoners' Rights, a domestic human rights group, has collected more than 1,600 signatures for a petition backing the suspension of executions and plans to submit it to Ogawa, a former judge and a prosecutor.

To improve the lay judge system, the JFBA proposed expanding the scope of criminal cases it handles.

Currently, lay judges serve on serious cases ranging from murder to robbery, arson and rape, but the JFBA said even minor cases should be tried under the system if the defense counsel wants to contest the prosecution's arguments.

The proposal was drafted mainly with wrongful accusations of train groping in mind, said Shidehara.

"It will be significant if lay judges examine, based on the common sense of ordinary citizens, whether a defendant committed a crime as prosecutors argue," the proposal says.

The JFBA also stressed the need to enhance the system by providing mental health care to lay judges to mitigate their anxiety over convicting and sentencing defendants.

"It is natural that citizen judges bear more of a psychological burden than professional judges do," especially when over capital punishment cases, the lawyers' group said.

The next step will be to hold talks with the Justice Ministry and the Supreme Court based on the proposal, according to Shidehara.

Source: Japan Times, March 25, 2012

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