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U.S. is no role model for prosecutor reform

by David T. Johnson

The revelation of an “ace” prosecutor’s criminal misconduct in Osaka, and of a coverup by his bosses and peers, have led to one of the most serious scandals in the history of Japanese criminal justice — and to many calls for reform of Japan’s prosecution system.

The Asahi newspaper, which broke the story, has urged Japan’s procuracy to “rebuild itself from scratch,” and the Yomiuri, Japan’s largest circulation paper, has declared that the “entire prosecution system needs drastic reform.”

These and other observers have every reason to be outraged about prosecutors’ betrayal of trust, and they also are wise to wonder what can be done to prevent similar problems from occurring in the future. The misconduct in this case — prosecutor Tsunehiko Maeda’s altering of evidence on a floppy disk to increase the odds of convicting welfare ministry bureau chief Atsuko Muraki — not only came close to framing an innocent person; it also violates the values of truth and fairness on which Japan’s criminal process is supposed to be based. In this sense, the prosecution’s bad acts deserve the strongest condemnation.

But when it comes to the question of how to reform prosecution, things become more complicated. Many of the specific calls for change are misguided, chiefly because they assume America is a good model for reform of Japan’s prosecution system.

Some commentators contend that Japan should elect its chief prosecutors, as most American jurisdictions do. Others claim Japan ought to institute an American-style grand jury, to screen charge decisions before they are made, or a prosecutorial code of ethics like the one endorsed by the American Bar Association, or rules of discovery that would require prosecutors to disclose potentially exculpatory evidence to the defense, as has been mandated by the U.S. Supreme Court since 1963.

These proposals may seem attractive in principle, but the American experience suggests that they are hollow hopes. If Japanese reformers look to America at all, they should view it mainly as a negative role model — an instructive case study in how not to prevent prosecutor misconduct.

Consider a few discomfiting facts about prosecutor malfeasance in America. A study of the 124 persons who were exonerated and released from U.S. death rows between 1973 and 2007 found that 80, or almost two-thirds, of their convictions resulted not from good faith mistakes or errors but from “intentional, willful, malicious prosecutions by criminal justice personnel.”

An investigative report by USA Today of America’s federal system — widely regarded as the best of the country’s many criminal justice systems — found more than 200 cases since 1997 in which judges had determined that federal prosecutors violated legal or ethical rules. In each case, judges held that the violations were so serious that they overturned the conviction or rebuked the miscreant prosecutor.

And a recent study by the Innocence Project cited 707 California cases since 1997 (both federal and state) in which courts found prosecutorial misconduct. That is an average of more than 50 cases per year — in only one state. Sixty-seven California prosecutors were repeat offenders, including five who had committed misconduct four times or more, yet during the period covered by this study, the California State Bar Association disciplined only 10 prosecutors. None was charged with or convicted of a crime, a pattern that is entirely consistent with the norm of nonprosecution for prosecutor misconduct that prevails throughout America.

America’s civil justice system does little better at holding miscreant prosecutors accountable. Americans can sue almost anyone for almost anything, but oddly they cannot sue prosecutors, even when prosecutors hide evidence that could prove someone’s innocence. The Supreme Court 35 years ago ruled that prosecutors cannot face civil lawsuits over how they handle criminal cases, no matter how egregious the abuses or terrible the consequences for innocent persons who have been falsely accused of a crime. Courts since have further limited the circumstances under which prosecutors and their bosses can be sued for civil-rights wrongs.

American courts protect deviant prosecutors in other ways as well. The Brady rule, which imposes a duty on prosecutors to disclose favorable evidence to the defense, is one of the most unenforced constitutional mandates in American criminal law. And in their written opinions, American appeals courts routinely omit the names of prosecutors who have been accused of misconduct. They even go so far as to “depublish” lower court opinions in order to avoid stigmatizing government lawyers — a consideration that is never offered to individuals who have been charged with a crime, even those who have been proved innocent.

In short, prosecutor misconduct is an extremely serious problem in America, and almost nothing is being done to address it. As attorney Patrick Regan has said, “Short of pointing a gun at a prisoner and pulling the trigger, the prosecutor can get away with just about anything.” One predictable consequence is that American prosecutors know they can break the rules with impunity.

In 1940, U.S. Attorney General Robert Jackson observed that prosecutors have “more control over life, liberty, and reputation than any other person in America.” There is a parallel truth about prosecutors in Japan, for they, too, have broad discretion to pick and choose their cases — and so also their defendants (like Muraki). But for Japan it is difficult to discern how pervasive prosecutor misconduct is, because bad behavior only becomes known when it is exposed, and because Japanese institutions — such as the chummy “kisha club” system of reporting and the not-very adversarial system of criminal justice — are less able than their American counterparts to bring misconduct to light.

Whatever the actual incidence of prosecutor misconduct in Japan, the silver lining of the Osaka scandal is that it has focused public attention on problems in Japanese criminal justice that have been neglected for far too long. Among other things, criminal interrogations are long, intrusive and sometimes coercive. The pretrial statements of witnesses and suspects are not transcribed verbatim, they are composed — as essays — in the prosecutor’s own words. And all too often, Japanese courts, reporters, and defense lawyers do little to hold prosecutors accountable for their conduct.

In these ways (and more) Japan’s prosecution system must be improved. The one big thing the Democratic Party of Japan can do is push for a reform that would require the electronic recording of all custodial interrogations in their entirety. This would not be a magic bullet, but by opening the door to one of the most closed and secretive spaces in Japanese society, it would help prevent interrogation abuses of the kind that infected Muraki’s case long before Maeda altered that floppy disk.

The other thing Japanese reformers should do is be careful what they wish for, because they just might get it. America has precious little to teach about preventing prosecutor misconduct.

David T. Johnson is professor of sociology at the University of Hawaii. His book “The Japanese Way of Justice: Prosecuting Crime in Japan (Oxford University Press, 2002) received awards from the American Society of Criminology and the American Sociological Association. It has been translated into Japanese as “Amerikajin no Mita Nihon no Kensatsu Seido: Nichibei no Hikaku Kosatsu” (Springer-Verlag, 2004).