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Highhanded prosecutors get judicial pat on the back

The arrogance and self-complacence of public prosecutors have been exposed with the acquittal of a high-ranking former welfare ministry official who had been indicted on a charge of forgery, and the subsequent arrest and indictment of two prosecutors accused of hiding evidence of data tampering. The case involved an alleged attempt to abuse the postage discount system for the disabled.

The welfare official, Atsuko Muraki, had been arrested in 2009. On Sept. 10 of this year, the Osaka District Court acquitted her after rejecting crucial evidence submitted by the prosecution. The ruling has not been appealed.

The two prosecutors later arrested and indicted are Hiromichi Otsubo, former chief of the special investigation squad at the Osaka District Public Prosecutors Office, and his deputy, Motoaki Saga. Earlier their subordinate prosecutor, Tsunehiko Maeda, had been arrested and indicted on a charge of tampering with data on a floppy disk that prosecutors confiscated in the case against Muraki.

These incidents may be just the tip of the iceberg. How many other innocent people over the years have been victimized by highhanded prosecutors? The courts, meanwhile, deserve equal criticism for relying too heavily on arguments and evidence presented by prosecutors.

Criminal case procedures in Japan basically consist of a suspect’s arrest, the investigation and confiscation of evidence, detention of the suspect before indictment, and detention of the suspect (defendant) after indictment.

At each step, defense lawyers may seek to meet with the suspect or demand his release. A court decides whether to grant such requests. Disputes may occur over whether to release a defendant after indictment. The court has the power to have a defendant detained for up to two months, and to extend that period.

More often than not, a court sides with prosecutors if they oppose a release demanded by defense counsel. In other words, a court normally accepts whatever prosecutors demand.

Muraki was in custody for 163 days, but there have been cases in which a defendant was held for more than 500 days. This should be regarded as an infringement on human rights. For fear of being held so long, some defendants have made false confessions and signed depositions admitting to crimes, hoping that their innocence will be proved in court proceedings.

In reality, however, judges rely excessively on these depositions, especially in cases handled by special investigation squads, which exist only at the district public prosecutors offices in Tokyo, Osaka and Nagoya. Thus, investigators in these special investigation squads have gotten the idea that as long as they manage to get a suspect to sign a deposition, courts will find him or her guilty. This presumption has led to unethical, and sometimes illegal, means of obtaining confessions.

This partly explains why 99.9 percent of defendants in criminal cases are found guilty and why the process has become a hothouse for generating false charges.

Another problem with criminal court proceedings at present is that public prosecutors present only the “best evidence” to courts. They select the testimony and material evidence that they find useful in winning conviction. Since prosecutors don’t have to disclose testimony or evidence favorable to a defendant, it is only natural that they normally succeed in getting a conviction.

It’s the job of defense lawyers to find evidence favorable to defendants. Even if they find such evidence, if it has not been disclosed by the prosecution, they must obtain the Supreme Court’s approval for presenting it to a court. The process for getting approval is complex and difficult.

A longtime complaint has been that there is no higher authority or organization to check the trial-related conduct of public prosecutors. Courts of law are supposed to play this role, but in practice, courts and the prosecution have established congenial relations, apparently for fear that a decline in public prosecutors’ prestige or successive acquittals could cause the whole judiciary system to collapse.

Public prosecutors offices, which are a semi-judicial body, and courts, which are a purely judicial entity, are supposed to act as two completely separate institutions. But they are linked closely together through the Justice Ministry, which is deeply involved in the administration of prosecutors offices and the courts. There are also personnel exchanges for certain periods between public prosecutors offices and the benches of court judges.

Collusive relations came to light in 2001 when it was revealed that the deputy chief of the Fukuoka District Public Prosecutors Office leaked information on a Fukuoka High Court judge’s wife, who had been arrested on suspicion of stalking and intimidation, to the judge.

One bright spot in the otherwise dark picture of the judicial system is that there have been signs of change on the part of the courts. “Not guilty” rulings have recently been handed down one after another. It also appears that defendants in several cases who were given life imprisonment or a death sentence will be declared innocent in retrials. That’s because suspicions have grown over the credibility of pretrial confessions made before prosecutors and the evidence submitted.

One factor behind this change is the start of lay judge trials in 2009. In these trials, six lay judges selected from among ordinary citizens sit with three professional judges to determine not only whether the defendant is guilty but also the sentence. The new system is said to offset the lopsided tendency of courts to adopt depositions presented by prosecutors.

One journalist sees courts becoming less reliant on prosecutors and says now is the opportune time for courts to open their eyes and detect fabrications concocted by prosecutors.

Article 76 of the Constitution states: “All judges shall be independent in the exercise of their conscience and shall be bound only by this Constitution and the laws.”

This is an abridged translation of an article from the November issue of Sentaku, a monthly magazine covering Japanese political, social and economic issues.