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Burden of proof impossible to bear

Wrongful convictions are 'shaming' Japan

by David Mcneill

It may not have been exactly what the government has in mind by the cliche “international cooperation,” but dozens of ordinary Japanese folk recently gave up a precious Sunday to help out foreigners in trouble.

The gaijin are locked up in jails around Japan thanks to trials that fell well short of fair and sometimes descended into farce, said a number of speakers at the Symposium to Free Govinda in Waseda University (Nov. 29th).

In at least three of the cases discussed, the accused walked free from district courts only to be rearrested, held illegally for months, and found guilty by higher courts on exactly the same evidence.

“When the judge says ‘the defendant is innocent,’ the defendant should be free to go. That’s common sense in other countries,” said Kyohei Imai, a freelance journalist and activist who has spent years trying to get Govinda Prasad Mainali released. “Here it seems to be a message to the prosecution to try harder.”

Mainali is perhaps the best known of what the speakers called a growing list of miscarriages of justice involving foreigners in Japan. The fact that his case achieved some notoriety here owes little, say activists, to concerns about civil rights and much more to his alleged victim, whose double life as a moonlighting prostitute proved irresistible to the press pack.

Most other cases, including that of Filipino Rosal Villanueva Manalili, who was convicted on the basis of a disputed confession of murdering her Japanese boyfriend, have generated far less interest in the local media.

Two recent cases involving Roberto Tokunaga and Moraga Reyes Alejandro Andres (see box) have been virtually ignored by the Japanese media, said the symposium participants, even though their treatment replicated the failures of the Mainali trial.

Both men were freed by local courts before the prosecution, judge and police decided to have another go, a case of double jeopardy that has important implications for the entire justice system here, said lawyer Kenzo Akiyama: “Putting people who have been declared innocent back in jail sets a dangerous precedent for everyone. That’s why I’m involved. And this has become an issue that is affecting our diplomatic relations with other countries. These cases shame Japan abroad.”

The main problem, said some, is Japan’s top-down justice system. “Japanese judges take the freedom of others very lightly,” said Imai. If you look at the U.S., Michael Jackson was released hours after he was arrested on serious charges because they take freedom seriously there. But here, once you’re arrested, you’re considered guilty. It’s a presumption of guilt and goes all the way to the Supreme Court.”

Will the current moral panic about crime, fueled by a government report last week that said a record 3.69 million crimes were committed in Japan in 2002, and that “Japanese people are increasingly becoming the victims of foreigners’ criminal acts,” translate into more miscarriages? Most agreed it would.

“I don’t think there’s any doubt about that,” said lawyer Tsukuda Katsuhiko. It’s probably true that crime is on the rise, even by foreigners, but the government isn’t doing anything at all to protect the working conditions and rights of foreign workers.

“And then when foreigners do something like overstay their visas, they’re thought of as criminals. If these people had secure lives and jobs they wouldn’t be out selling counterfeit telephone cards. There isn’t a system here for accepting large numbers of legal foreigners so many people find it easy here to blame them for problems.”

Banged-up foreigners

Roberto Tokunaga (26):Brazilian laundry worker, arrested in Nagano Prefecture in June 2000 for allegedly beating his daughter to death. Pronounced not guilty in May 2001 but later rearrested and held — illegally, say supporters — for ten months while prosecutors reworked his case. Tokyo High Court rejected earlier acquittal and sentenced Tokunaga on same evidence to five years in July 2002. Tokunaga claims his wife killed their daughter.

Govinda Prasad Mainali (37; wife Radha): Nepalese waiter arrested for the murder of a 39-year-old woman in Shibuya, March 1997. Tokyo District Court rejected circumstantial evidence and found Mainali not guilty in April 2000, but he was rearrested — illegally say supporters — on his way back to Nepal. Original verdict overturned by Tokyo High Court in 2001 and Mainali was sentenced to life on the same evidence. Appeal rejected by Supreme Court in October 2003. Supporters say the killer was likely to have been another of the victim’s clients.

Moraga Reyes Alejandro Andres (23):Chilean engineer accused January 2002 of robbing a Tokyo recycling shop and stealing a car in a separate incident in Nagano Pref. Pronounced not guilty for lack of evidence by summary court in Nagano in May 2003 but again detained while prosecutors appealed to the Tokyo High Court in June. Currently locked up in Tokyo Detention House awaiting High Court decision.

Nick Baker (32):British man caught in April 2002 carrying suitcase full of drugs at Narita Airport that he says belonged to his traveling partner, James Prunier. Convicted and sentenced to 14 years in June 2003. Supporters say presiding judge Kenji Kadoya ignored evidence of Prunier’s modus operandi that might have helped free Baker.

Rosal Villanueva Manalili (31):Filipina currently serving an eight-year sentence here for allegedly stabbing her Japanese boyfriend to death in November 1997. Convicted mainly on the basis of a confession, made under duress and later retracted. Among the controversies of the case, defense evidence that might have supported Manalili’s alibi was “lost” by the coroner. Supporters say the police, prosecutor and judge trampled on her right to a fair trial.