Thursday, April 3, 2014

Japan: Retrial Granted in 1966 Capital Case

Iwao Hakamada, 78, the world’s longest serving death row inmate, was convicted of killing his employer and his employer’s wife and two children in 1966.  He has been on Japan’s death row since that time.    And on Japan’s death row, a definite execution date is never set, so that each day can be the inmate’s last.  In granting a retrial, the judge relied on the possible fabrication of evidence by prosecutors in the form of blood stained clothes that came to light a year after the crime.  These clothes did not fit the defendant, were covered with stains too vivid for their age, and, when tested revealed no DNA link to Hakamada.

Like over 90 percent of defendants in Japan, Hakemada had confessed to the crime, and it was this confession that formed the real basis for his conviction.  He did so after being brutally interrogated, quickly recanted his confession, and has maintained his innocence throughout the past forty-eight years.  Confessions are the linchpin to Japan’s 99 percent conviction rate.  Japanese law allows detention for up to three days, during the first day of which the prosecution may request an extension of detention for a ten day period, which may itself be extended by ten days.  Judges regularly grant these requests and, as a result, it is routine for detention to last a full 23 days with no limits to the length of interrogation.  There also are strict limits on the right to counsel for detainees.

Although nominally an adversary system since post-World War II, several aspects of Japanese criminal justice make it vulnerable to wrongful convictions based on coerced and unreliable confessions.  First, a cultural value is placed on expressing remorse and accepting responsibility.  Second, prosecutors are under pressure to bring only slam-dunk cases which, without conclusive forensic proof, will usually require a confession.  Third, until recent reforms, there was virtually no pretrial disclosure by the prosecution to the defense.  Fourth, as noted above, the law allows for extended, unsupervised, uncounseled interrogation and judges routinely accede to the prosecutor’s discretion and control of the investigation.  Finally, extraordinary judicial deference is paid to prosecutorial discretion.

A country like Japan, whose justice system is largely controlled by its inquisitorial investigative process, needs to get to the root of the problem by requiring counsel to be present during interrogations and by requiring the recording of any interrogations by the police.   In 2004 there was legislative reform requiring counsel during investigative interrogation, but a bill requiring the recording of interrogations did not pass.  Since then, the Supreme Public Prosecutor’s office has instituted reforms that include partial videotaping of some interrogations, internal supervision and review procedures, written reports of interrogations, a list of specific techniques that may not be used, and a prohibition against interrogations from 10-5 am.  In addition, interrogations may not last more than eight hours without prior permission from the head of the police office.

 These changes are to be commended and reflect some of the changes brought about by law enforcement in the United States and the United Kingdom.  To the extent that these are voluntary reforms, however, their success will remain to be seen.  Particularly problematic is the decision to partially videotape interrogations, which can be extremely misleading.    And, of course, few law enforcement reforms can make a real difference in the face of strong judicial deference to the prosecution.    Nevertheless, the grant of a retrial in this very visible, historic, case is a good sign of what is, hopefully, Japan’s continuing criminal justice evolution. 



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