FATHER'S RETRIAL MAY NEVER COME

Nepalese family standing a lonely vigil

by Akemi Nakamura

On one Monday morning in April, two Nepalese girls sat in a small room divided by a clear acrylic wall and talked to their father, Govinda Mainali, on the other side.

It was their first encounter since Mainali left Nepal for Japan to work 13 years ago.

Mainali is serving a life term at the Yokohama Prison for the 1997 murder of a 39-year-old female company employee. He pleaded innocent throughout the legal proceedings — which saw him acquitted by a district court but found guilty by higher courts — and is now seeking a retrial.

Invited by the Justice for Govinda Innocence Advocacy Group, a Tokyo-based citizens’ group supporting Mainali and his retrial bid, his 13- and 15-year-old daughters (both of whom asked not to be named) came to Japan with their mother, Radha, last month to see him.

“We were very glad. I had remembered him only in photographs,” the elder daughter said in Nepalese through an interpreter. “When we first met him, we told him we believe you are innocent.”

During their two-week stay, they visited the prison seven times. Each meeting with their father lasting about 30 minutes. Radha, who has visited Japan five times, updated her husband about family life in Katmandu while the two girls sang songs and talked about their dreams: The elder daughter wants to become a doctor and the younger a flight attendant.

They also submitted a petition to the Tokyo High Court asking for a retrial and met with his lawyers and supporters.

“I want to tell Japanese people to help us so my father can go back to Nepal soon,” the younger daughter said. This was the first time she had ever met her father because she hadn’t been born yet when he left Nepal in 1994.

In March 1997, Mainali, who was then working at a restaurant in Chiba, was arrested for the murder of the woman, who worked at Tokyo Electric Power Co. by day and as a prostitute by night, and for robbing her of 40,000 yen.

In April 2000, the Tokyo District Court found him not guilty due to a lack of direct evidence linking him to the murder. However, the Tokyo High Court — adopting the same circumstantial evidence provided by the prosecutors as trustworthy — reversed the ruling that December and sentenced him to life in prison, a decision upheld by the Supreme Court in October 2003.

Among the indirect evidence was sperm matching Mainali’s DNA left in a condom found in the apartment in Shibuya Ward, Tokyo, where the victim’s body was found. After examining an expert analysis of the sample, the district court ruled that the sperm was likely too old to have been produced on the day of the murder, but the high court determined that it proved the accused was in the apartment that fateful day.

Mainali filed an official request with the high court in March 2005 for a retrial. The request is pending.

Under the Criminal Procedure Law, to request a retrial convicts must provide new and “clear” evidence in their favor.

Mainali’s lawyers submitted to the high court the results of a new test by a university professor showing the sperm was too old to have been produced the day of the murder, according to Asaka Kanda, one of the lawyers.

They are also asking the high court to re-examine other evidence, including a DNA test on the torn strap of the victim’s bag left in the room, he said. According to Kanda, it is presumed that the person who killed the woman broke the strap, so the killer’s DNA was left on it.

A test was conducted on the strap in September 1997 but failed to produce data that could identify the perpetrator because the amount of DNA was too small, he said. A new test with advanced technology may shed fresh light on the evidence, he said.

It usually takes years for a court to reach a decision on a retrial plea, and it is rare for judges to grant one.

In fiscal 2005, courts nationwide received 358 new requests for a retrial as well as 107 retrial pleas carried over from previous years. The courts gave the go-ahead in only four of the cases, rejected 317 and withheld decisions on the rest.

Makoto Ibusuki, a professor on the Criminal Procedure Law at Ritsumeikan University Law School in Kyoto, said there are no legal obligations for judges, who are busy with ongoing cases, to promptly examine or decide on retrial requests.

In addition, judges may be reluctant to do so partly because reopening a case means they will be challenging decisions made by their colleagues, he said. To change the situation, Ibusuki said that Japan, like Britain, needs a third-party organization to exclusively handle retrial requests.

One glimmer of hope for Mainali is that the Japan Federation of Bar Associations decided last October to back his efforts toward a retrial by providing financial assistance and two lawyers.

While waiting for Mainali’s return, his wife Radha has raised the two girls by herself and looked after his parents in Ilam, Nepal. His father died April 27.

Now Radha and the two daughters live in Katmandu, living on the rent they get from renting out part of their three-story house built with money Mainali earned before his arrest and donations from the citizens’ group. They try not to be identified as Mainali’s family, fearing the prejudice that would come as the family of a convict.

“When my husband was arrested, I cried all the time,” Radha said. “Now a dark cloud still hangs over my heart, but it’s not good to have a gloomy face. So I always try to be cheerful for our daughters.”