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Tuesday, Nov. 13, 2012

EDITORIAL

Inexcusable delay in justice

In the retrial of Mr. Govinda Prasad Mainali, a Nepalese man convicted and sentenced to life in prison for the March 1997 robbery-murder of a 39-year-old Tokyo woman, the Tokyo High Court eventually acquitted him Nov. 7, pointing to the strong possibility that a third person was the perpetrator.

Mr. Mainali is back in Nepal. He was released when the court decided on June 7 to retry him and was immediately deported for overstaying his visa. The acquittal came 15½ years after he was arrested. The reason for the delayed justice is clear. The police and the prosecution tailored their investigations to support their contention that Mr. Mainali was guilty, and did not disclose important evidence at the outset of his trial that would have undermined their case. A third-party panel must be established to examine this unpardonable conduct and make public its findings.

It's important that the ruling noted that the Tokyo District Court, which had found Mr. Mainali innocent in its April 2000 ruling, did not commit any errors of fact. This means that the Tokyo High Court and the Supreme Court, which reversed the decision, failed to properly assess the evidence. The two courts must realize that their trustworthiness has been greatly marred.

Only in September 2010 did the prosecution reveal that it possessed a piece of frozen gauze containing semen found in the victim. A DNA test in July 2011 proved that the semen belonged to an unidentified third party, not Mr. Mainali — a factor that led to the high court's decision on June 7, 2012, to retry him.

When Mr. Mainali's lawyers had called on the prosecution in 2007 to examine the DNA of biological matter found under the woman's fingernails, the prosecution refused. Only after the high court's decision to retry him did the prosecution in October 2012 carry out a DNA test. This DNA matched that of the semen found in the woman's body, the two strands of pubic hair found in the apartment in Tokyo's Shibuya Ward where she was found dead, and saliva found on her breasts. The Nov. 7 ruling pointed to the possibility that this unknown man had sex with the woman in the apartment on the day of her murder, struck her, causing her to bleed, and choked her. Apparently she fiercely resisted and scratched her attacker's skin with her fingernails.

Mr. Mainali was arrested four days after she was found dead on March 19, 1997, because he had a key to the apartment and semen in a condom found in the apartment's bathroom matched his DNA. During his trial — which took place three years after he was detained — his lawyers presented evidence that supported Mr. Mainali's assertion that the condom had been used long before the day of the murder. In addition, Mr. Mainali had an alibi backed by witnesses that placed him elsewhere at the time of her murder, which was estimated to have taken place around midnight on March 8.

The Tokyo District Court acquitted Mr. Mainali, noting that the evidence presented by the prosecution only established that he and the victim had sex in her apartment at some point in time, not that he murdered her, and that two pubic hairs found near the body belonged to an unknown third party, not to Mr. Mainali.

In reaching its decision to acquit Mr. Mainali, the Tokyo District Court upheld a pillar of justice: that a person is innocent unless proven guilty beyond a reasonable doubt. The responsibility of the high and top court is heavy because they ignored the most important points raised by the district court and violated this most fundamental principle of justice.



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