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Wednesday, May 30, 2012
Questionable high court decision
The Nagoya High Court on May 25 rejected a retrial request by Masaru Okunishi, an 86-year-old man who has been on death row for the fatal poisoning of five women in 1961. It was his seventh petition for a retrial.
The Supreme Court in 2010 had sent the case back to the Nagoya High Court, ordering it to scientifically re-examine the case. Doubts remains as to whether the high court fully responded to the top court's call and followed the principle of in dubio pro reo: that one is innocent until proven guilty beyond reasonable doubt.
At a community meeting on the night of March 28, 1961, in Nabari, Mie Prefecture, 17 women who drank white wine were poisoned. Five of them, including both Okunishi's wife and girlfriend, died and 12 fell sick. Initially Okunishi confessed that he laced the wine with a pesticide to put an end to a love triangle. But he retracted his confession before being indicted.
In 1964, the Tsu District Court acquitted him on the grounds that his confession concerning the motive, the preparations for the crime and the carrying out of the crime was unnatural. But the Nagoya High Court sentenced him to death in 1969 mostly on the basis of the same evidence used in the first trial. The Supreme Court finalized the sentence in 1972.
In the seventh request for a retrial, the defense counsel for Okunishi argued that the type of the pesticide used in the crime was different from the poison Okunishi confessed to using. It pointed out that it is odd that an impurity characteristic of the pesticide Okunishi allegedly used was not found in the wine at the crime scene.
In an expert test ordered by the high court, a high concentration (more than 20 percent) of the impurity was detected when the pesticide was dissolved into water — a finding that appeared to support the defense counsel's argument that a different poison was used in the crime.
The prosecution insisted that the impurity was not detected in a test carried out after the crime because the pesticide was put through ether extraction. In the latest test, it was found that if the pesticide was put through ether extraction, as done in the preparation stage for the original test, the impurity was not detected, as the prosecution argued.
But the high court used a different explanation not adopted either by the defense counsel or by the prosecution to explain why the impurity was not detected in the wine left in the crime scene. It said that because one or two days passed before the original test was conducted, the impurity was not detected.
The defense counsel criticized the high court for using unfounded reasoning that even the prosecution did not use, to support the prosecution's position that Okunishi is guilty. The defense counsel was not allowed a chance to refute the court's reasoning. The high court appears to have acted contrary to the principle of in dubio pro reo (when in doubt, for the accused). What the high court eventually relied on in its decision was Okunishi's original confession.
Okunishi and his defense counsel will file a special appeal with the Supreme Court on Wednesday. In its judgment, the top court must use a strictly scientific method to reach its conclusion and abide by the in dubio pro reo principle. It should also scrutinize why the lower court in the first trial found Okunishi not guilty.