Investigations, trial process said rife with errors

Ex-judge’s book traces faults of justice system

by Keiji Hirano

Kyodo

A former judge is seeking to raise public awareness of how miscarriages of justice can occur, having reversed more than 20 guilty verdicts during eight years as a presiding judge at the Tokyo High Court.

In his newly published book, “Reversed on the Facts — What Overturned Guilty Verdicts Can Teach Us About Fact-Finding,” Kunio Harada uses actual rulings in 16 of these cases to explain how he found misjudgments in the previous court decisions.

Harada, now a professor at Keio University law school, said he expects the book to be picked up not only by legal professionals and law students, but also by ordinary citizens who may be involved in serious criminal trials as lay judges, following a number of recent acquittals on retrial of convicts in high-profile murder cases.

In a property destruction case, for example, an entertainer known for her ample curves was convicted of damaging the front door of her boyfriend’s apartment. She was said to have entered the unit by slipping through a hole in the damaged door.

But in a re-enactment during the appeal trial, Harada pointed out the woman’s chest made her too big to fit through the hole.

And the down jacket she would have been wearing at the time was undamaged, contradicting the allegation that she had slipped through the narrow space.

In its verdict, the court said, “It was easy enough for the defendant herself to carry out a re-enactment, which should have been done at the first trial.”

Harada cites another case involving a man accused of molesting a high school girl on a crowded commuter train.

The girl believed the defendant was the molester because, she thought, she had been touched by the man’s left hand and he had been standing behind her to the right.

During the appeal trial, however, the possibility was raised that she believed she had been touched by a left hand based on the man’s location.

Once it was clear another person may have been the culprit, the court concluded, “There remains a reasonable doubt in determining the defendant is the molester. . . . It has not been sufficiently proved that the defendant is guilty, thus he should be acquitted.”

Harada said, “Most people may think of serious crimes, such as murder, when they think about false accusations, but this groping case shows that misjudgments can happen to any of us.”

While most cases in the book are minor compared with murder, the people involved suffered bitter fates. The man accused in the molestation case, for example, lost his job until proven not guilty, and his wife became severely mentally unstable, according to the book.

It’s easy enough to imagine that the ordinary citizens who act now as lay judges in criminal trials are prone to error, Harada said.

“We live in a society where anybody could be affected by a false accusation, both as a victim and a victimizer,” he said.

In the past few years, a number of people wrongfully convicted of murder have been acquitted upon retrial, including Toshikazu Sugaya, who spent nearly 18 years in prison for the murder of a 4-year-old girl in 1990, in what became known as the Ashikaga Incident. He was eventually cleared by new DNA evidence.

Also, it now appears certain that Govinda Prasad Mainali, a Nepalese released earlier this year after spending about 15 years in prison for the murder of a female Tokyo Electric Power Co. worker in 1997, will be exonerated when the verdict in his Monday retrial is issued. In his case, prosecutors had sat on evidence, proven by DNA tests, that indicated another man had committed the slaying.

Given these cases, Harada stressed the need to closely follow the principle of innocent until proven guilty, particularly in light of the problems that plague investigations, such as excessive reliance on confessions and lengthy interrogations without bail.

“The goal of a criminal trial is to determine whether it is sufficiently proved that a defendant is guilty or not, rather than searching for the true culprit,” he said. “I may have acquitted real perpetrators, but it is better than convicting an innocent person.”