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After 15 years, Mainali is a free man

by Michael Hoffman

Special To The Japan Times

Freed June 7 from 15 years’ imprisonment for a murder he apparently never committed, Govinda Prasad Mainali declared himself full of gratitude. Speaking through his lawyer, he said, “Mujitsu, shinjitsu wo shinjite kureta saibankan ni deaete yokatta. Kansha no kimochi de ippai desu,” (「無実、真実を信じてくれた裁判官に出会ってよかった。感謝の気持ちでいっぱいです”」”It’s lucky I encountered a judge who believed the truth, that I’m innocent. I am very grateful”).

In fact the High Court saibankan (裁判官, judge) who ordered a saishin (再審, retrial) was not the first to believe in Mainali’s innocence. Twelve years earlier the accused had been found not guilty, only to be undone by a kink in Japan’s legal system.

He was taiho sareta (逮捕された, arrested) in 1997 on suspicion of murdering and robbing a 39-year-old prostitute who by day, intriguingly enough, was an employee of Tokyo Electric Power Company — now best known as the bungling operator of the tsunami-stricken Fukushima No. 1 nuclear power plant, but then a blue-chip name to have on your business card. The woman’s shocking double life dominated coverage at first. The shift to the shocking injustice done to Mainali was very gradual.

Mainali came to Japan from Nepal in 1994 on a three-month tourist visa. He found work in an Indian restaurant in Tokyo’s Shibuya district, and stayed on. The satsujinzai (殺人罪, murder) occurred in a vacant apartment near the restaurant. He was initially arrested for fuhō taizai (不法滞在, overstaying his visa). Then it transpired that he knew the victim and had been one of her customers. The charge was upped from 不法滞在 to 殺人罪.

Mainali’s first three years of imprisonment were spent awaiting trial. The trial, in April 2000, produced a surprise. Japan’s notorious 99 percent conviction rate notwithstanding, Mainali was found muzai (無罪, not guilty), the Tokyo Chisaisaibankan (東京地裁裁判官, Tokyo District Court judge) declaring, “Hikoku ga hannin da to suru to setsumei dekinai jijitsu ga ōsugiru” (「被告が犯人だとすると説明できない事実が多すぎる」”If the defendant is the criminal there are too many facts that cannot be explained”). Jōkyō shōko (証拠, circumstantial evidence) was all the prosecution had, and it was not enough, the court ruled.

But — as the daily Nikkan Gendai commented last month — kensatsu (検察, prosecutors) are ōjōgiwa ga warui (往生際が悪い, bad losers). They appealed — something they wouldn’t have been permitted to do in many developed countries, where nijū no kiken (二重の危険, double jeopardy) is interpreted more strictly than in Japan. In the Tokyo Kosai (東京高裁, Tokyo High Court), without introducing new evidence, they got the verdict reversed. The sentence: muki chōeki (無期懲役, life imprisonment). The yūzai hanketsu (有罪判決, guilty verdict) was upheld by the Saikosai (最高裁, Supreme Court) in October 2003.

There is another quirk in Japanese law that worked against Mainali. Prosecutors are under no legal obligation to produce all the shōko (証拠, evidence) they have. 証拠 favorable to the accused can, astonishingly enough, be legally withheld. In Mainali’s case, kakusareta shōko (隠された証拠, concealed evidence) not released until 2010 included semen and hair collected at the scene. A new DNA-gata kantei (DNA型鑑定, DNA analysis) showed they were not Mainali’s. The circumstantial case against him burst like a soap bubble.

Analyzing the case for the Asahi Shimbun, nonfiction writer Shinichi Sano decried the enzai (冤罪, trumped-up charge) and the systemic soshiki bōei (組織防衛, closing ranks in defense of the organization) that in his view characterizes the police and prosecution. The widespread feeling at the time — Gaikokujin hanzai wo kibishiku torishimarubeki da, (外国人犯罪を厳しく取り締まるべきだ, We need to crack down on crimes committed by foreigners) — combined with Nepāru jin ni taisuru besshi (ネパール人に対する蔑視, contempt for Nepalese people) — fueled the momentum to convict. If one overriding lesson emerges from the case, it is how easily and utterly justice can get lost in the bureaucratic shuffle.

Mainali is back in Nepal now, free after 15 years and home after 18. He was kyōsei sōkan sareta (強制送還された, deported). The retrial, almost certain to end in full exoneration, can proceed without him. His conviction for overstaying his visa effectively deprives him of the right to re-enter Japan. That’s not likely to trouble him much. On the eve of departure he said, “Ichinichi mo hayaku Nepāru ni kaette, byōki no okasan ni aitai” (「一日も早くネパールに帰って、病気のお母さんに会いたい」”I want to get back to Nepal as quickly as possible and see my mother, who is ill”).

He added, compressing into one brief simple sentence what must be an inexpressible emotional turmoil, “Jūgonen no jikan wa mō modoranai” (「十五年の時間はもう戻らない」”Those 15 years will never come back.”)