National / Crime & Legal | Regional Voices: Tohoku

Past participants in Japan's lay judge system reveal its challenges

Kahoku Shimpo

“The accused was sitting right there, so close to me, and yet I felt like there was an unbridgeable distance between us.”

Tomomitsu Shibuya, a 55-year-old pastor from the city of Aomori who served as a lay judge almost 10 years ago, recalls the day that he sat in the Aomori District Court for the trial of a man accused of robbery and sexual assault.

It was the first trial in the Tohoku region involving lay judges and the first sexual assault case in Japan to be tried using them.

During the three days of the trial, Shibuya’s emotions wavered between empathy and outrage against the defendant, who was 22 years old at the time.

Upon hearing the victim’s statement on the first day, Shibuya’s first reaction was fury, as he imagined that the case could have happened to his daughter.

But on the second day, Shibuya found that the accused had his own burdens as well. His father had left the family, and his mother had died when he was young.

“I kept wondering whether there couldn’t have been a way for someone to reach out to the defendant before he committed such a terrible crime,” Shibuya said.

During deliberations, Shibuya raised the question of rehabilitation, asking the professional judges what kind of re-socialization programs would be available for the accused in prison.

The presiding judge refrained from giving a straight answer, merely saying that they would check and get back to Shibuya.

“It was almost like the judges hadn’t given much thought to what life for the defendant would look like after prison,” Shibuya said.

Ultimately, the man was handed a guilty verdict with a sentence of 15 years in prison, just as prosecutors had requested.

But following Shibuya’s suggestion, the presiding judge told the man in the end: “This sentence reflects our belief that you deserve a second chance. It is not a sentence to show we have given up on you.”

Looking back on his experience, Shibuya believes that the trial he participated in “had more room for compassion than ones with only professional judges.”

A decade has passed since the criminal justice system underwent a major overhaul and introduced the lay judge system for the first time amid much controversy.

In Japan’s lay judge system, six randomly selected people serve as civilian judges alongside three professionals to jointly deliberate on the verdict and sentence. The lay judge system only applies to criminal cases that carry a heavy sentence.

During those ten years, some 89,000 people have sat in during trials as a lay judge, and what they have taken away from that experience has revealed the challenges of the system.

One issue is the low appetite among the public for judicial participation.

In 2009, 83.9 percent of the candidates who were asked to come to the selection process at district courts to become a lay judge actually showed up. That figure, however, has since seen a steady decrease to mark 67.5 percent in 2018.

“The reason why participation rates are low is the same as why voting rates are low. People are too preoccupied with their own lives and they don’t want to get involved in something so burdensome,” said Shibuya.

But his experience at the court led him to set up a nonprofit organization two months later that encourages interaction among families in his community, in the hope of supporting parents and children in need.

The organization organizes cleanup campaigns and camps for families, and has also sent daily necessities to disaster-hit regions in Iwate Prefecture following the 2011 Great East Japan Earthquake.

“I mean, how dismal a world would it be if people just got sentenced and that was it,” Shibuya said. “I want to convey to people what I learned by being a lay judge, which is the importance of people supporting and caring about each other.”

Emotional distress

Yet, for others, the experience of being a lay judge was one that turned into a huge burden to carry, rather than a force for greater good.

Such was the case for a woman in her 60s from Koriyama, Fukushima Prefecture, who sat on the lay judge panel in March 2013 for a murder-robbery case at the Koriyama branch of the Fukushima District Court.

Eight days after the sentencing, the woman was diagnosed with acute stress disorder and is still seeing a doctor.

At the first day of the trial hearings, lay judges were shown color photographs of the crime scene, as well as the victim’s dead body, on a large screen. A voice recording of the victim pleading for help when calling for an ambulance right before dying was also played at court.

The woman couldn’t help but throw up during the break.

Suppressing her nausea, the woman still participated in the deliberations. But when the judges decided to give the defendant a death sentence, she was overwhelmed with an indescribable sense of guilt.

She filed a lawsuit against the government seeking damages and questioning the validity of the lay judge system. The lawsuit went as far as the Supreme Court after the plaintiff appealed to the Sendai High Court, but in 2016 she lost.

However, in handing down a ruling at the Sendai High Court, the presiding judge, while defending the court’s need to show the photograph of the corpse as presentation of evidence, also noted the need to discuss ways to alleviate the emotional distress of lay judges.

The impact was sweeping.

In cases where photographic evidence of corpses or injuries were presented at court, prosecutors were asked to provide it either as a black-and-white picture or create an illustration of it instead.

In addition, judges became more mindful about allowing small breaks during hearings out of consideration of any distress lay judges may be experiencing.

Profound sense of loneliness

Still others experience a profound sense of loneliness following sentencing, owing to their obligation not to speak about the trial.

Kazutoshi Horimoto, 74, of Sendai, served as a lay judge for a robbery and rape case held at the Sendai District Court in March. Although he believes the experience was worthwhile, there is one thing he regrets.

Although Horimoto had wanted to exchange contact details with his fellow lay judges after the trial was over, he couldn’t bring himself to ask out of concern that he would be too intrusive. He watched them go home, one by one, never to be seen again.

Given the confidentiality obligation that all lay judges bear, the only people Horimoto could have reflected and talked openly about the case with would have been the fellow lay judges.

At the hearing, the prosecutors and defense were at complete odds with one another, and the debate focused on whether the defendant was guilty or innocent. Ultimately, the defendant was given a guilty verdict with 15 years in prison, as requested by the prosecutors.

“I don’t regret the sentence we decided to hand out. But given that the defendant had insisted he was innocent, I’m still a bit hung up about it,” Horimoto said. “It’s frustrating to have to keep this to myself when I want to talk it out.”

In trials where the sentences may be heavy, court staff gently nudge lay judges to exchange contact details, but such instances are rare.

Even if one were to contact the court to ask for the contact details of other lay judges, the list of lay judges is destroyed soon after sentencing and there is no way for the court to respond to such requests.

Junya Ota, a 51-year-old employee at the city office in Kuroishi, Aomori Prefecture, also said he felt a sense of loneliness when he served as a lay judge five years ago at the Aomori District Court for a case of robbery resulting in injury.

“Lay judges called each other by assigned numbers throughout the deliberations. I couldn’t quite grasp what information we were supposed to keep confidential,” he said.

“We ended up never giving our names or talking about our professions,” he added.

But in December, Ota participated in a gathering held at Senshu University in Tokyo convened especially for former lay judges, where they can share their own experiences and discuss how the system could be improved.

Some talked of the struggle of discerning the facts despite a lack of evidence. Others said that they felt better after having a heart-to-heart with a fellow lay judge after the sentencing.

With the 30-odd people in attendance all sharing their thoughts and concerns, Ota felt less alone, like a burden had been lifted from his shoulders.

The increasing rate of people declining court requests to become a lay judge was also mentioned at the gathering. As many as 67 percent declined in 2018, up 14 percentage points from 2009.

One of the reasons for the steep decline rate is said to be the difficulty of taking leave from work, considering that the average length of a trial was extended from 3.7 days in 2009 to 10.8 days in 2018.

Ota admits that even his colleagues weren’t so happy about him taking up the task, although he is a public servant.

“Former lay judges have the responsibility to raise awareness of both the system’s strengths and weaknesses — the ones that the public at large may not yet be aware of,” Ota said.

This section features topics and issues from the Tohoku region covered by Kahoku Shimpo, the largest newspaper in Tohoku. The original articles were published on April 23, 25 and 26.