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U.S. | Execution by nitrogen hypoxia doesn’t seem headed for widespread adoption as bills fall short and nitrogen producers object

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The day after Alabama carried out the first-known US execution using nitrogen gas, its attorney general sent a clear message to death penalty states that might want to follow suit: “Alabama has done it, and now so can you.” Indeed, in the weeks immediately following the January execution of Kenneth Smith, it appeared a handful of states were listening, introducing bills that would adopt the method known as nitrogen hypoxia or a similar one. Officials behind each framed the legislation as an alternative method that could help resume executions where they had long been stalled.

Japan | Hakamada case underscores folly of maintaining death penalty

The Tokyo High Court’s decision on March 13 to grant a retrial for an 87-year-old man who spent decades on death row strongly shows that he was wrongly convicted.

The retrial should be held immediately to provide a legal remedy for Iwao Hakamada.

In granting the retrial in the high-profile case, the high court said reasonable doubt has arisen on the guilt of Hakamada.

He was arrested on suspicion of murder in August 1966, two months after an executive of a miso-producing company and three of his family members were killed in what is now Shizuoka.

Hakamada, who had worked at the miso company, spent most of his adult life in detention. His latest request for a retrial was filed 15 years ago.

Prosecutors should accept a retrial without appealing the ruling.

FRAGILE BODY OF EVIDENCE


The principal focus of the court battle for a retrial was on the credibility of key evidence submitted by prosecutors: five articles of clothing, including a T-shirt and a pair of trousers with blood stains, found in a miso tank of the company.

The clothing was discovered during Hakamada’s trial, one year after his arrest.

His conviction was based on the court’s acceptance of prosecutors’ assertions that the clothing must have been worn by Hakamada during the crime because the blood type in the stains matched his.

Defense lawyers raised doubts about the reddish color of the blood stains on the evidence. The defense said the blood would have turned blackish after being immersed in miso for more than a year.

They submitted as new evidence the results of an experiment on changes in the color of blood stains in clothes placed in miso for such a long time. The change in color was scientifically assessed by an expert.

The high court ruled that the experiment results raised doubts that the clothing had remained in the miso tank for over a year, and that this finding constitutes “clear evidence to acquit” the defendant, a requirement for granting a retrial.

The court also examined other pieces of evidence that were used to convict Hakamada.

Its argument that the new evidence would have led to the acquittal of the defendant in the original trial is highly significant.

The court even referred to the possibility that the clothes may have been planted by an investigator.

A color photograph showing the reddish color of the blood stains was submitted by prosecutors for the first time in response to the court’s request during the retrial procedure.

The focus now is on what prosecutors will do.

If they appeal the retrial ruling, the case will go to the Supreme Court, taking more time for a final decision.

There is little time left for Hakamada and Hideko, his 90-year-old elder sister who has been supporting him.

CLEAR FLAWS IN JUDICIAL PROCEDURE


In Japan, retrials are seldom granted. In 1975, the Supreme Court ruled that the principle of “in dubio pro reo” (Latin for (when) in doubt, rule for the accused) should also be applied to decisions on retrial requests.

In the 1980s, four death row inmates were acquitted in retrials. But there has been no retrial for a condemned convict since then.

However, a number of cases of wrongful convictions have surfaced since 2010.

A man sentenced to life imprisonment over the 1990 murder of a girl in Ashikaga, Tochigi Prefecture, was acquitted in a retrial in 2010.

Two men wrongfully convicted of murdering a carpenter in Fukawa, Ibaraki Prefecture, in 1967 during a home robbery and sentenced to life in prison were acquitted in a retrial in 2011.

A Nepalese man who received a life sentence after being convicted of murdering a female employee of Tokyo Electric Power Co. in 1997 was also found not guilty in a retrial in 2012.

This is an ongoing problem.

Convicting and punishing people for crimes they did not commit is a most serious form of human rights violation by the state.

The judiciary has grave responsibility to prevent and correct such miscarriages of justice.

Under Japan’s criminal justice system, it takes too long to grant requests for retrials. As a result, this process fails to effectively provide a legal remedy to victims of false convictions.

At the end of February, the Osaka High Court granted a retrial in a robbery-murder case that occurred in 1984 in Hinocho, Shiga Prefecture.

But the person sentenced to life imprisonment for the crime died in 2011 during his first request for a retrial.

At the root of this problem is a lack of clear legal provisions for reopening a case.

There are 19 articles that touch on retrials in the Criminal Procedure Law, but they do not provide specific procedures for the step.

The Japan Federation of Bar Associations says the courts’ broad discretion in deciding on retrials undermines the consistency of court decisions on the issue.

Scholars and former judges have been calling for new legislation to deal with this problem. But the Diet and the government have been egregiously negligent in failing to make any response to such calls.

One urgent task is to set up rules for disclosing evidence in retrial requests.

The introduction of the citizen judge system has led to the establishment of a method for disclosing evidence, but it does not cover retrial procedures.

Strong new evidence that could lead to an acquittal must be produced for courts to grant a new trial.

The Hakamada case is not the only example where evidence submitted by prosecutors during a retrial process has shaken the basis for the earlier conviction.

Clear rules for evidence disclosure during retrial procedures should be established so that the matter is not left to the leadership of courts or the willingness of prosecutors.

DEATH PENALTY IS IRREVERSIBLE


The Shizuoka District Court in 2014 decided to grant Hakamada a new trial and ordered his release after nearly 48 years behind bars.

Hakamada is unable to carry out normal conversations due to the mental illnesses he developed while on death row.

His mental state is graphic evidence of the ordeal he suffered during his many years of fearing execution for a crime he said he never committed.

Can anyone safely say there have been no false convictions among the more than 100 death row inmates in Japan?

One especially disturbing aspect of this problem is when condemned convicts are executed while they are seeking retrials.

The Justice Ministry once tended to avoid such a scenario, but it has carried out death penalties of several convicts seeking retrial since 2017, including one execution last year and two in 2021.

The ministry says there is no legal basis to suspend executions because of a motion for a new trial. It also said it has no choice but to carry out executions in cases where retrial requests are certain to be rejected.

But Hakamada’s repeated requests for a retrial were turned down.

Capital punishment is final. Executed convicts are forever denied an opportunity to be tried afresh.

Decisions on executions can undermine the constitutional right to “a speedy and public trial by an impartial tribunal,” the guarantee that no criminal penalty shall be imposed except according to “procedure established by law,” and the principle of respecting all people as individuals.

There is no way to undo an execution even if the inmate later turns out to have been falsely convicted.

As with other forms of criminal punishment, a death sentence under the lay judge system is handed down when five or more of the nine judges involved, including at least one of the professional judges, support the decision.

The system does not require unanimous consensus among the judges.

The case of Hakamada, who was likely wrongfully sentenced to death, underscores how capital punishment is incompatible with the values and principles of a society that respects people’s lives and dignity.

The Diet and the government should face up to this problem and start debate for abolishing capital punishment.

Source: The Asahi Shimbun, Editorial, March 14, 2023

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


— Oscar Wilde

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