"One is absolutely sickened, not by the crimes that the wicked have committed, but by the punishments that the good have inflicted." - Oscar Wilde

Monday, November 2, 2015

New technologies leading to criminal retrials in Japan

DNA testing has resulted in acquittals of some death-row inmates.
DNA testing has resulted in acquittals of some death-row inmates.
“In the world of engineering, when an airplane accident occurs, a thorough investigation is conducted. But what on earth are the people involved in laws doing when serious human error is committed in the cases of wrongful convictions?”

OSAKA — With the recent release of a couple from prison after a court ordered a 1995 arson-murder case reopened and other such retrials in Japan, more people previously convicted of serious crimes are getting a second shot at proving their innocence.

Technical innovations in DNA forensic science modeled on activities in the United States, as well as the introduction of a lay judge system, are creating a framework that could provide lawyers and “criminals” with access to various experts to help prove the innocence of persons suspected to have been wrongfully convicted.

But the road to change has many hurdles.

Recently, Keiko Aoki and Tatsuhiko Boku, who had been serving a life sentence for lighting a fire that killed the woman’s 11-year-old daughter, were freed after 20 years behind bars.

The Osaka High Court concluded that a retrial was appropriate as the fire could have been accidental, drawing on an experiment conducted by the couple’s lawyers to simulate the fire. Moreover, doubt was cast on the confession from Boku, the women’s de facto husband, as the simulation demonstrated the fire having caught in a different way.

In 1990, Toshikazu Sugaya was arrested and convicted with a life sentence by a high court in Tochigi Prefecture for the murder of a 4-year-old girl. It was determined that DNA evidence from body fluids on the dead girl’s clothing matched Sugaya’s.

But with the primitive forensic technology at the time of the man’s arrest, a little more than eight out of every 1,000 people would have also drawn an identical DNA match. Upon a further test in 2009, DNA evidence conclusively showed Sugaya’s innocence, and he was acquitted and awarded about 80 million yen in state compensation.

Perhaps even more sensational due to the international attention it gained was the case of Govinda Prasad Mainali, a Nepalese man who was wrongly jailed for 15 years while serving a life sentence in the 1997 murder of a Japanese female Tokyo Electric Power Co. worker who reportedly had moonlighted as a prostitute.

The Tokyo High Court ordered a retrial after sets of exculpatory DNA evidence were linked to an unidentified man who had sexual contact with the victim just hours before her death. Mainali was released and deported back to his native country, pending a retrial.

Swabs of semen recovered from the women’s body that the prosecution deemed too small a sample to analyze using the existing technologies at the time, underwent DNA testing in 2011 and were determined not to be from Mainali.

Mainali was formally acquitted in November 2012 and later awarded 68 million yen in compensation for his wrongful imprisonment.

Iwao Hakamada was exonerated by a DNA test after 48 years on death row.
Former professional boxer Iwao Hakamada, who had been sentenced to the death penalty in a 1966 quadruple homicide case, was released after nearly 48 years behind bars when a DNA test showed that blood stains detected on the culprit’s clothing did not belong to Hakamada.

The blood was thought to be that of the attacker and was previously determined unlikely to be from any of the victims.

In Japan, prosecutors have a staggering 99 percent conviction rate. Confessions are in most cases considered the king of evidence and acquittals are anathema to ambitious prosecutors and judges alike, experts argue.

Although it appears retrials in Japan could be on the rise, many point out that without “convincing and fresh” evidence the courts remain reluctant to order retrials. And even with fresh evidence, unless it can conclusively prove the person’s innocence, requests for retrials have historically been denied.

Inspired by the U.S.-based Innocence Project, researchers in Japan aim to launch a support network next spring for people believed to have been wrongly convicted.

Mitsuyuki Inaba, a professor at the College of Policy Science and Graduate School of Policy Science at Ritsumeikan University, is spearheading the project. He bemoans the lack of remorse expressed by investigators in wrongful conviction cases and says that more must be done to determine their cause.

“In the world of engineering, when an airplane accident occurs, a thorough investigation is conducted. But what on earth are the people involved in laws doing when serious human error is committed in the cases of wrongful convictions?” Inaba said.

The Innocence Project, which was founded in 1992 at the Benjamin N. Cardozo School of Law at Yeshiva University in New York City, serves as a nonprofit organization.

In questionable cases, scholars, journalists and lawyers work together to gather new evidence in response to prisoners who claim innocence. New technologies such as DNA testing and research of cases from fresh perspectives have resulted in retrials and acquittals of some death-row inmates.

Similar activities are spreading in countries like France, Australia and Taiwan, leading to a global network.

Kana Sasakura, an associate professor of the Konan University Faculty of Law in Kobe, said that Japanese courts will not allow a retrial unless new evidence is strong enough to overturn the original judgment. Moreover, collecting such evidence is extremely difficult.

“Unlike in ordinary criminal trials, there is no system for court-appointed defense lawyers, who are publicly financed, at retrials,” said Sasakura. “It is very difficult for convicts held in prisons and detention houses to collect new evidence by themselves that could overturn their conviction.”

“In the future, it would be desirable for the Japanese project to be operated like an NPO, raising donations from the public. For the time being, however, it will probably be operated more stably by having the head office at a university, which will be useful for education if students are interested in joining,” Sasakura said.

Source: Japan Times, November 2, 2015

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