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Japan: A 81 year-old
person waiting for the execution of capital punishment for the past 43
years
7 September 2007
Mr. Masaru Okunishi is from Kuzuo, a
remote mountain village in Nabari city of Mie prefecture. It is alleged
that on March 28, 1961 Okunishi poisoned to death five women by mixing
pesticide in their wine.
Kuzuo being a remote village, the
authorities suspected that the poisoning was deliberate and that one of
the villagers is responsible for the incident. Okunishi, a farmer, who
had carried the wine from the house of the local community chief to the
community centre, was charged with the crime. Okunishi was investigated
and had to endure over three days of prolonged and severe interrogation.
It is alleged that Okunishi being
unable to endure the interrogation any further, allegedly confessed the
crime on the night of April 2, 1961 and accordingly he was placed under
arrest on April 3.
Once Okunishi was arrested the
villagers immediately turned against Okunishi. It is alleged that the
villagers soon started spreading rumors against Okunishi suggesting his
guilt and wanted Okunishi to be punished at the earliest.
There was no material evidence or
eyewitness available to connect Okunishi and the crime alleged against
him. The only piece of evidence was a wine stopper found at the
community centre which allegedly had Okunishi's teeth marks.
Several villagers who wished to solve
the case immediately, made statements before the prosecutor and
testified that there was no person who could approach the wine secretly
before the incident other than Okunishi.
The case was tried at the Tsu District
Court and the court acquitted Okunishi in 1964. The court while
acquitting Okunishi, found that the witness statements were inconsistent
and thus suspicious. The court also opined that the evidences were to be
suspected as the result of 'extraordinary efforts' of the prosecutors to
prove Okunishi's guilt.
The confession statement allegedly
made by Okunishi, according to the court, was unnatural, unreasonable
and thus unreliable to prove the motive, preparations and further the
feasibility of the crime. The teeth-marks allegedly found on the wine
bottle stopper were held as not conclusive as the forensic test
conducted on the stopper was not good enough to prove Okunishi's
identity.
The prosecution appealed to the Nagoya
High Court. The High Court, while holding that the circumstantial
evidence was sufficient to prove Okunishi's guilt reversed the finding
of the trial court and convicted Okunishi in 1969 and sentenced him for
capital punishment.
Holding Okunishi guilty for murder,
the court said that given the circumstances of the case, Okunishi had
enough opportunity to poison the wine. The court adopted a process of
elimination of other possibilities and held that Okunishi is the only
possible person who could have committed the crime.
The High Court relied upon the
forensic evidence regarding the wine bottle stopper. New forensic
evidences produced by three scientists allegedly proved the marks on the
stopper as matching with Okunishi's dental structure [Black 3 Test].
Though the court relied upon the result of these tests to find Okunishi
guilty of the offense, the result of the tests was later found to be
false and even fabricated.
Okunishi appealed against the finding
of the High Court to the Supreme Court. However, the Supreme Court
dismissed the appeal and confirmed the sentence and punishment in 1972.
Starting from 1972 Okunishi, petitioned for retrial four times, which
were all dismissed. In 1973 the Japan Federation of Bar Associations (JFBA)
formed the 'Nabari Case Committee' to help Okunishi to find justice.
When the Nagoya High Court dismissed Okunishi's fourth application for
retrial the JFBA helped Okunishi to file a fifth application for retrial
at the same court.
Professor Habu of Japan University,
using the new forensic methods, proved "Black 3 Tests" to be
unscientific and concluded that it was impossible to identify the mark
on the wine stopper as that belonging to Okunishi. In 1993, the High
Court dismissed the application on the ground that new evidence was not
enough to vindicate Okunishi's guilt. The Supreme Court, while
acknowledged that the value of "Black 3 Tests" had been rebutted to a
great extent, yet dismissed Okunishi's the appeal in 1997.
In April 2005, in his seventh retrial
challenge, Okunishi finally got an affirmative decision by the Nagoya
Appeal Court. In his application, Okunishi submitted new evidences to be
considered in the case. One of the new evidence was in fact clearly
proving that the pesticide which was allegedly used by Okunishi to
poison the wine was not the one that he had allegedly confessed to the
investigators. Other important contentions were that it is impossible
for Okunishi to open the bottle as allegedly confessed by him.
The court while deciding this appeal
raised serious concerns upon the evidence relied upon to convict
Okunishi. The court ordered a retrial and stayed the execution of the
death sentence.
However, this order was reversed by a different panel of the same court
in 2006. It is against this finding Okunishi has appealed at the Supreme
Court, which is pending consideration of the court as of now.
Background information:
This case symbolically shows several
problems of the Japanese criminal justice system.
Although Article 336 of the Japanese
Cord of Criminal Procedure prescribes the principle of a presumption of
innocence, the conviction rate in Japan is more than 99%. Even if a
defendant is acquitted, the prosecutor has power to appeal on the claim
of an error in the finding of the facts. Thus, while having had
affirmative decision twice, Okunishi has been in death row more than 40
years.
Interrogation and pre-trial detention
is a serious cause of wrongful conviction in Japan. A large number of
the convictions on criminal trials are based on confessions. Once
arrested, suspects are usually detained for 23 days under the control of
police authority and obliged to face prolonged interrogation in a
confined rooms. It is often alleged that unacceptable means, including
psychological torture are widely used during interrogation.
The UN Human Rights Committee as well
as the UN Committee against Torture expressed deep concern regarding the
current practices of pretrial detention and interrogation in Japan and
strongly recommended reforms including employing electronic monitoring
systems during interrogation. However, no clear attempts to change the
current practices have been employed so far in Japan.
The courts generally tend to believe
evidences produced by the prosecution and often give more weight to such
evidence to convict an accused, rather than approaching such evidence
with caution. In particular, the courts tend to rely excessively on
confessions.
The prosecution is often accused of
non production of exculpatory evidence and under the current legal and
practical frame work; it is difficult for a contesting defense to
unearth such evidences. [Exculpatory evidence is the evidence favorable
to the defendant in a criminal trial, which clears or tends to clear the
defendant of guilt. In many countries such as the United States, if the
police or prosecutor has found such evidence, he/she must disclose it to
the defendant. The prosecution's failure to disclose exculpatory
evidence can result in the dismissal of a case. The opposite is
inculpatory evidence, which tends to prove a person's guilt.]
Such practice probably explains the
99% conviction rate in criminal cases in Japan. This is a matter of
concern in Japan and also among the international community that is
interested in the current legislative developments in Japan.
In Okunishi's case the exculpatory
evidence was not disclosed in the court, which has apparently denied
Okunishi a fair trial. This must be a serious concern for any court
while dealing a criminal case where the result of the trial might end-up
limiting a person's freedom or even sentencing a person for capital
punishment.
A First: Japan's High Court Accepts Amicus From
U.S. Law School Clinic
Marcia Coyle
-
The National Law Journal
May 1, 2008
The Supreme Court of Japan recently accepted its
first amicus brief from an American legal organization -- The Center
on Wrongful Convictions at Northwestern University School of Law.
The center's brief marks the first time, as well,
that it has sought to educate a foreign court on the subject of
wrongful convictions.
The Japanese high court is reviewing the case of
Masaru Okunishi, an 81-year-old man who has been claiming his
innocence from death row for almost 40 years.
The center's brief was filed through Okunishi's
counsel, Izumi Suzuki, who asked the center to write the amicus
brief.
In 1961, Okunishi was accused of having poisoned
to death five women in his village, including his wife, by mixing
pesticide in their wine.
Okunishi, a farmer, had carried the wine from the
house of the local community chief to the community center. After
facing more than 49 hours of police interrogation -- not excessively
long by Japanese standards -- Okunishi confessed to the crime. He
was acquitted at his first trial. Prosecutors subsequently appealed,
and, using forensic evidence that his attorneys now maintain was
false, obtained Okunishi's conviction and death sentence in 1969.
The Japanese Supreme Court affirmed his death sentence in 1972.
In 2005, in Okunishi's seventh bid for a retrial,
his lawyers presented new forensic evidence suggesting that their
client could not have poisoned the wine that killed the women.
A Nagoya High Court granted Okunishi a retrial
and stayed his execution. Prosecutors appealed and a second High
Court reinstated the conviction and death sentence, finding that
Okunishi's confession was voluntary and reliable. The case is now
pending before the Supreme Court.
In its amicus brief, the center argued that the
high court's decision to deny Okunishi's bid for a new trial was
based on mistaken understandings of false confessions and asked the
Supreme Court of Japan to grant him a new trial.
Japanese authorities can learn much from
America's experience with false confessions, said Steven A. Drizin,
the Center's legal director and a leading authority on false
confessions.
In the past five years, the number of American
states that have required electronic recordings of some or all
interrogations has more than quadrupled (from two to nine) and
preventing false confessions has been one of the main impetuses for
this reform, according to Drizin.
False and coerced confession evidence has played
a role in many of the cases in which the Center has been involved,
and, according to the Innocence Project, was instrumental in
approximately 25 percent of the 216 DNA exonerations to date.
The center has called for a variety of reforms in
criminal cases, most notably the mandatory electronic recording of
custodial interrogations, and it has filed amicus briefs in
appellate courts throughout the United States on confession-related
issues.
In recent years, the Japanese criminal justice
system has also been rocked with numerous false confessions, Drizin
noted, explaining that these false confessions have been blamed on
Japan's excessive reliance on confession evidence to gain
convictions. Japanese law enforcement authorities, who have a 99
percent conviction rate, rely on exceedingly long interrogations and
psychological coercion to obtain confessions, he added.
The center, part of Northwestern University
School of Law's Bluhm Legal Clinic, was founded in the wake of an
unprecedented conference at Northwestern. The 1998 conference
featured the largest ever gathering of exonerated death row inmates.
Since the Center's inception, its attorneys, staff and law students
have played a role in exposing numerous wrongful convictions.
Drizin and false confession expert Richard Leo
published "The Problem of False Confessions in the Post-DNA World"
in the North Carolina Law Review, a study that documented and
analyzed 125 proven false confessions in the United States, most of
which had occurred in the previous decade. It is the largest single
study ever of false confessions.