However one feels about the death penalty, it’s difficult to argue that its application in Japan isn’t arbitrary. Last week, former Justice Minister Hideo Hiraoka publicly denounced his successor Toshio Ogawa’s decision to have three death row inmates hanged on March 29, saying that the government needs to discuss capital punishment before continuing with executions. The fact that Hiraoka on principle did not sign any death warrants during his tenure while Ogawa, in accordance with a very different set of values, approved three soon after assuming office shows that choices regarding life and death are governed more by personal whim than by guidelines. Don’t forget, these two guys belong to the same political party.
At the symposium where Hiraoka made his remarks, the secretary general of the Japan Federation of Bar Associations called for a change in judicial rules in relation to the lay judge system. At present, a death sentence can be delivered if the majority of the nine judges — six nonprofessionals and three professionals — decide in favor of it and if one of the majority is a professional. The JFBA, which is basically against capital punishment, says that death sentences should only be validated if the decision is unanimous.
These contentious matters were indirectly addressed by the recent trial in Saitama District Court of Kanae Kijima, who was convicted of killing three men and sentenced to hang. The trial lasted 100 days, making it the longest since the lay judge system started two years ago. The prosecution presented only circumstantial evidence, but what made the case particularly difficult was the background.
By the time Kijima was served a warrant for murder in 2010, she was already under arrest for swindling a man she had promised to marry and her story had been covered by the tabloid press, which implied she was responsible for the deaths of several lovers. Of the three deaths she was tried for, two were initially ruled suicides, the third an accident. The media reported that Kijima had received money from the men before they died, and described a long history as a compensated mistress to some 30 other men. By the time the trial started, everyone knew this story and seemed to be convinced of her guilt.
Two weeks ago, NHK ran a special program about the trial. According to the law, lay judges cannot discuss what they have talked about in closed chambers, even with family, so in order to get some idea of what might have gone down the producers found six people who had served as lay judges in the past and had them study the trial. Afterwards, they used their experience and the court materials to re-create what the lay judges at the Kijima trial might have gone through before reaching their guilty verdict and death sentence.
All agreed that the lay judges had their work cut out for them, since the prosecution’s entire case rested on three pieces of circumstantial evidence and a motive that made sense but was impossible to prove because Kijima never said anything during interrogations.
The mock lay judges discussed each aspect with tortured devotion. The two men whom the defense claimed committed suicide had died from asphyxiation caused by charcoal stoves. Prosecutors say that Kijima drugged them and lit the stoves herself. Did the fact that one of the men had no charcoal on his hands when he was found prove that he didn’t kill himself, as the prosecution put forth? Of course not. Did the fact that a surveillance camera captured Kijima visiting the home of the third victim hours before it burned down prove conclusively that she caused the fire which killed him? No way.
The mock lay judges concluded that the police investigation was sloppy, but it doesn’t mean they didn’t buy it, because the motive advanced by the prosecution was too credible. Kijima had extracted money out of these men on the false pretense that she might marry them and once they found out she had no intention of doing so they would surely demand the money back, so she killed them. Though NHK didn’t mention it, one of the main reasons this narrative is so easy to accept is not because it sounds true, but because it has been repeated over and over by the media for the past two years.
In the end, the mock judges assumed that the lay judges who actually tried the case had reached their conclusion because something had nudged them “out of the gray area” conjured up by the prosecution. What provided that nudge they couldn’t tell for sure, though film director Masayuki Suo, a commentator on the program, surmised that the professional judges “who have everyday experience with these situations” may have been the decisive factor. As far as the death sentence went, the mother of one of the victims was allowed to testify, and she asked for the harshest possible punishment.
The program ended with no clearer idea of the effectiveness of the lay judge system. If anything, NHK had illustrated the confusion that citizens feel when confronted with the responsibility of interpreting the law and deciding a person’s fate. They are told definitively that they must only consider the facts presented to them, but they are also encouraged to go with their gut, to reach a verdict based on whose story is the most logical. Was the prosecution’s narrative more believable than the defense’s? One of the mock jurists, remembering the trial she actually judged and which resulted in a death sentence, broke down in tears because she didn’t know anything for sure. Jurors are told they shouldn’t convict if there is a shadow of a doubt, but for the mock judges the entire process was darkened by doubt.
At the end of the program NHK interviewed one of the real lay judges in the Kijima case. He wasn’t allowed to discuss his experience in detail but admitted it had been “difficult to make a clear decision.” And in the end there was “no option but to convict. We did what we were supposed to do.”