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Sunday, July 22, 2007
Mobilizing the populace 'World War II-style' to judge their fellow citizens
Yoshikazu Ebisu seems an unlikely advocate for judicial reform. The 59-year-old illustrator first gained notoriety in the 1970s for his crude caricatures and moved on to variety shows in the late '80s, where his bumbling slob persona was the perfect target for insult comics. After he was arrested for betting at a Kabuki-cho mah-jongg parlor in 1998 he was blackballed from TV for three months. It was a light sentence as far as show-biz scandals go, but appropriate given that Ebisu's gambling jones is well-known and fortifies his media image as a layabout.
So what was he doing last May in Tokyo Shimbun discussing the lay-judge system that goes into effect in 2009? Apparently, he was representing the little guy's opinion, which is against it. In a survey conducted last February by the Cabinet Office, 33 percent of the respondents said they don't want to be lay judges, while another 44 percent said they will participate if summoned but only because they'd have to.
Ebisu says that at his age he wants to work as little as possible, and to him sitting in a courtroom and listening to lawyers argue a case is work. Moreover, he feels "it's presumptuous for someone like me to judge others." As a TV tarento (media celebrity), he sometimes inadvertently angers viewers. People have thrown things at his house. It's part of the job, "but I would never want to be put on trial by those people."
On the surface, Ebisu's comments reinforce the idea that the lay-judge system, in which average people sit on the bench with appointed judges to render verdicts and even sentences for serious criminal cases, will never work because average people aren't civic-minded enough to make it work. But Ebisu was being interviewed because he has been recruited as a yobikake-hito — a famous person who will "call out" and draw attention to an issue — by a group of lawyers and scholars who oppose the lay-judge system on a more fundamental level.
On June 29, Ebisu and other celebrities participated in a Tokyo symposium organized by this group. Despite their presence, the media barely covered it, but, then again, the media barely covered the proposed system prior to its enactment as law in 2004.
The de facto leader of the anti-lay-judge movement is lawyer Shunkichi Takayama, who said in a different Tokyo Shimbun article that his main objection to the system is that it "makes citizens stand on the side of the authorities." He compares it to the kokumin sodoin, or "general mobilization," of the Japanese populace during World War II.
The ostensible purpose of the lay-judge system is to enhance public trust in the judiciary while improving the quality of justice by utilizing the "common sense" of the average person. However, Takayama claims that the new system is part of an overall judicial-reform movement whose aim is to streamline courtroom procedures and make it easier for prosecutors to gain swift convictions. Revisions of criminal trial laws that accompany the introduction of lay judges will require judges, prosecutors and defense lawyers to participate in pretrial meetings where they will determine what is discussed in court and what evidence can be submitted.
The idea, says Takayama, is to keep the trial as short as possible. Supposedly, this streamlining is for the benefit of the lay judges, who want to get back to their lives as soon as possible, but the result is railroad justice that favors the prosecution. Once the evidence has been determined in the pretrial phase, nothing can be changed, added or subtracted. A defendant cannot recant in court a confession he or she may have made under duress.
As a practicing defense lawyer whose specialty is traffic offenses, Takayama has won 20 decisions over the course of his career, "and none of them involved trials of less than three years." The famous 99.9 percent conviction rate for criminal trials in Japan has been cited to explain everything from the supposed efficiency of police investigations to the received notion that Japanese suspects are guilty until proven innocent, but the statistic also indicates what defense lawyers are up against.
According to Tokyo Shimbun reporter Shogo Seki, the Supreme Court discussed a U.S.-style jury system back in the '90s "without any enthusiasm," but once they came up with the lay-judge alternative, the government gave it a big PR budget to sell it to the citizenry.
The citizenry is slowly coming round, but, as the Cabinet survey shows, there is still a ways to go. The main problem seems to be the system's mandatory nature. If you are called up to be a lay-judge you have to have a very good reason for not taking part. Asahi Shimbun recently ran a comparison between the U.S. jury system and the lay-judge model, pointing out that it is fairly easy for Americans to get out of jury duty. However, the article also stressed the "careful selection" aspect of the lay-judge system.
In America, potential jury members are interviewed by both sides who look for people who will give them an advantage in court, while the main consideration in the selection of lay judges is "how to make the trial process smoother." Prosecutors and defense lawyers do not quiz potential lay judges directly. They only ask questions through the professional judges, who can reject them. In the end, it is still the government-appointed judge who holds sway.
"Japanese people are intimidated by authority," says Ebisu, who doubts that lay judges will make any difference. Given his slacker image, it's easy to interpret his comments as a justifications for laziness, but the fact that he has come forward to oppose the lay-judge system seems to indicate otherwise. Making his own analogy to wartime mobilization, he adds, "Once you receive your draft notice, it's too late to protest."