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Still dreaming of a Japan with juries — and without U.S. bases

by Colin P.A. Jones

Special To The Japan Times

At 84, Chihiro Isa hopes to see two things in his lifetime: the jury system reinstated in Japan and U.S. forces gone from Okinawa. These seemingly disparate dreams are actually inseparably rooted in his remarkable life experience.

The man Isa knew as his father was a doctor from Okinawa, where Isa spent part of his childhood, until the approach of war saw him sent to the Japanese mainland with his mother and younger siblings. His father stayed and perished in the battle of Okinawa. Much later, he learned that his biological father was an anti-establishment painter who had fled to America in 1939 after repeated arrests, eventually helping to make the propaganda leaflets U.S. forces dropped on the Okinawa battlefields where the man who raised his son died.

Despite being a promising student, as the eldest son of a fatherless household in the grim days of postwar Japan, Isa was forced to abandon the dream of further schooling in order to support his family. He translated and interpreted for the Occupation forces and eventually developed a thriving business with lucrative contracts servicing on-base stores. When the U.S. military and bureaucratic infrastructure shifted to Okinawa after the end of the Occupation in 1952, Isa followed it back to his childhood home.

A successful businessman, Isa drove imported cars, drank expensive liquor and frequented the golf courses with the Occupation elite. Then, one day in 1964, something happened that completely changed his life: He received a summons for jury service.

Administered by the U.S. until 1972, Okinawa at the time had an unusual hybrid system of justice with U.S.-style jury trials. Since court proceedings were conducted in English before American judges, jurors thus had to be able to speak and understand the language. This was a prerequisite that excluded much of the local population from service and resulted in the islands’ foreign population being over-represented on Okinawan juries. Thanks to English skills honed through years of dealing with Americans, Isa found himself one of the few Japanese chosen for the trial.

The case was a politically sensitive one: Four Okinawan men were charged with assault and manslaughter. They had allegedly fought with two drunken U.S. Marines, one of whom ended up dead.

The trial took place over a two-week period in the fall of 1964. The fateful brawl had taken place in the middle of the night, a running battle that migrated through the streets of Futenma. Those eyewitnesses who testified only saw parts of what happened, and there was no evidence clearly tying any of the defendants to the death of the marine, whose body was found later after the dust had settled.

The proceedings left Isa with more than a reasonable doubt about the defendants’ guilt. None had criminal records, and although they would have outnumbered the marines, they were physically much smaller and lacked the Americans’ combat training. Moreover, the marines were drunk and by some accounts had been looking for a fight, leaving Isa to believe that the defendants were acting in self-defense.

Once in the jury room, however, Isa found himself a holdout on a panel dominated by non-Japanese members ready to convict. It was like an alternate-reality version of “12 Angry Men.” Like the juror portrayed by Henry Fonda in the classic movie, Isa refused to budge, ultimately convincing the others to acquit on the manslaughter charge. Some bargaining was involved, however, with Isa agreeing to a guilty verdict for the less-serious assault charge.

Seeing the power of juries firsthand was a profound experience for Isa. Yet there was no Hollywood ending to this tale: The American judge used the assault convictions to punish three of the four defendants as severely as if they had been found guilty of manslaughter. This brought home the true nature of the supposedly benign U.S. administration: Members of the occupied community who harmed the occupiers would be severely dealt with regardless of the pretense of the law, while wrongdoing by the occupiers would be swept under the rug.

Soon after the trial, Isa left Okinawa and returned to the mainland and turned from business to writing, eventually becoming a prolific author and critic of Japan’s criminal-justice system and the status of Okinawa. In 1977 he published his first book, an award-winning account of his trial experience titled “Gyakuten” (“Reversal”). It went through dozens of printings and was made into an NHK drama. Isa ended up playing himself, due to the inability of the broadcaster to find an actor who could handle the extensive English courtroom dialogue.

Isa’s success led to another trial. “Gyakuten” had used the defendants’ real names; he had been trying to exonerate them, after all. However, in 1987, one sued for defamation on the grounds that the public disclosure of his criminal record was a violation of privacy. Isa suspects that the trial was instigated the Ministry of Justice, which had suggested the book was defamatory in discussions with the book’s publisher well before the civil case was brought. The dispute ended up in the Supreme Court, which had to decide between freedom of expression and privacy. Privacy won, of course.

Isa speculates that the ministry may have disliked the positive attention “Gyakuten” garnered for the jury system. After all, at the time Japan should have had one.

The country’s first modern code of criminal procedure was prepared by a French legal scholar hired by the Meiji government (1868-1912). His draft assumed a jury would play a role in serious criminal trials. Japanese leaders, however, feared a system empowering citizens to override the law (the ultimate power of juries) might lead to greater social disorder — even revolution. A jury-free code was enacted instead.

A jury system was eventually introduced in the 1920s, and juries decided several hundred cases between 1928 and 1942. In 1943 jury trials were suspended due to the war, pursuant to a statute that specifically called for their resumption once it was over.

Despite their zeal in democratizing postwar Japan, the American occupiers never pushed for the reestablishment of the jury system, going only so far as to draft the current Courts Act to allow for juries without requiring them. The Taisho Period (1912-26) law establishing the jury remains on the books, but in a state of suspended animation.

Instead, for most of the postwar period, criminal trials have been decided by professional judges, who are notorious for convicting over 99 percent of defendants. By contrast, the prewar jury system acquitted in about 17 percent of cases (though judges could order a new jury trial if they considered a verdict inappropriate). This stark discrepancy is one of the reasons why a small but dedicated group of activists such as Isa wants to revive the jury system.

To Isa, the system of lay judges that started hearing trials in 2009 is nothing like a jury. Under this system, randomly selected citizens with no legal expertise (“lay judges”) and professional judges hear and make decisions about culpability and punishment in trials involving serious offenses such as murder. This may sound a lot like what a jury does, but there is a huge difference between a system in which judges and laypeople decide a case together and one in which the laypeople act alone.

Under the latter system — a proper jury system — the jurors may go against the wishes of the judge. The lay judge system, by contrast, leaves the professional judges in a position to use their superior experience and expertise to guide the laymen to what the professionals consider to be the “correct” result. Furthermore, while unanimity is usually the requirement for a jury verdict, under the lay judge system a court can convict a defendant and sentence him to death on a simple majority vote; the three judges only need convince two of the six lay participants that the professionals’ view of the case is correct.

A jury system also requires that evidence and other information relevant to their verdict be presented in open court. Under Japan’s old jury system a defendant could challenge a conviction if the judge made prejudicial comments about the evidence. Such an appeal would be impossible now because the professional and lay judges deliberate in secret, with the latter (and only the latter) being subject to lifetime confidentiality obligations backed by criminal penalties. So it is impossible to know what the professionals have told the amateurs about the law or the evidence. Even lay judges who believe their panel convicted an innocent man must remain silent forever.

After five years and hundreds of trials, the lay judge system has resulted in a very slight drop in the conviction rate. It should be remembered, however, that in the great majority of cases guilt is not in question, with the trial mainly being about how to punish a defendant who has confessed and is not contesting the charges.

Even when limited to sentencing, one might question whether the role played by regular citizens is meaningful. Several acquittals have been reversed on appeal, and more recently appellate courts have been vacating death sentences imposed by lay judges in gruesome single-victim murder cases. High courts apparently prefer established judicial practice limiting death sentences to multiple-homicide cases over the sentiments of the lay participants, even though reflecting such views was supposedly a key reason for introducing the lay judge system.

While critical of the lay judge system, Isa sees even bigger problems with the pretrial aspects of criminal procedure. Under the current system, police and prosecutors can deprive a suspect of freedom without formally bringing charges. While the old code of criminal procedure provided for pretrial arraignments, these were eliminated in postwar amendments. Now, a suspect must be brought to court within three days of arrest, but the proceedings are to consider the prosecutor’s request for a detention warrant rather than to conduct a preliminary review of the merits of the charge against him; at this point the prosecutors may not yet have even decided to prosecute.

Since judges rubber-stamp applications for detention warrants as readily as they convict, police and prosecutors are then free to detain and question the suspect for almost three weeks until he confesses. The confession then becomes the principal basis for initiating a prosecution. Needless to say, the trial that follows can seem like a bit of a formality.

Without changes to this aspect of the criminal-justice system, Isa fears that the lay judge system will accomplish little more than forcing the Japanese people to become complicit in a system that is all too willing to convict based on coerced confession (as do I — Isa and I became acquainted thanks to a book I wrote expressing the view that the lay judge system seems designed to lessen criticism of the judiciary by enabling criminal trials to continue generating the same sort of results as always, but with professional judges isolated from criticism by a buffer of “civil participation”).

The lay judge system seems to be here to stay, and American forces show no signs of leaving Okinawa. Isa will probably not see his dreams realized, and efforts to revive the jury in Japan will never be more than quixotic. Still, with the U.S. convicting and imprisoning more of its people than Stalin did (overwhelmingly through jury-free plea bargains) and spending more on its military than most of the rest of the world put together, perhaps Americans should spend more time thinking about juries and bases too.

Colin P.A. Jones is a professor at Doshisha Law School in Kyoto. Starting next month, Law of the Land will appear in print on the second Thursday of the month rather than the third. Comments and ideas: community@japantimes.co.jp