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Sunday, Aug. 7, 2011

BIG IN JAPAN

Man convicted of murder may soon be proved innocent


"Can you imagine how it feels for an innocent man to be kept in prison for years?" demanded Govinda Prasad Mainali during a Japan Times interview in November 2003.

He'd been in prison six years then. He's still there. Perhaps not for much longer.

No one now living — with the possible but highly problematic exception of Mainali himself — knows what occurred in the seedy vacant apartment in Tokyo's Shibuya district where a woman we will call "Y" (to protect her family's privacy) was strangled to death and robbed one night in March 1997. Back then she, not he, was the main story, and a tantalizing story she was: "elite OL" (office lady) by day, backstreet prostitute by night. What drove her? No one knew and no one knows. Stress? Unhappiness? Why unhappy, with all her gifts and advantages?

She was 39 at the time of her death. "OL" is misleading; she was no office clerk but a senior economist with Tokyo Electric Power Co. (Tepco) — lately fallen from grace but then a pillar of Japan Inc., a glorious name to have on your business card. There was speculation about her having hit a "glass ceiling." However brilliant, as a woman she could rise only so high. Could depression over that have driven her into the streets at night to turn cheap tricks? Certainly it was not financial need. She was earning, Friday magazine reported last week as interest in the case reignited, around ¥10 million a year.

"Like hundreds of other Nepalis" — this is from the Nepali Times of April 26, 2001 — "Govinda Mainali left for Japan on a three-month tourist visa in 1994 at the age of 26 to seek his fortune. He had got restless looking after the farm and his elderly parents in their ancestral homestead in Ilam. Although the family had property and was moderately well-off, Govinda knew he had to earn some money to take care of his pregnant wife, Radha, and a daughter."

By March 1997 Mainali's three months were long up. He worked at an Indian restaurant next to the vacant apartment where Y's body was found some 10 days after her death. Mainali was arrested, first as a visa overstayer, then as a murder suspect. At first, he said he didn't know Y. Then he admitted he did know her, was one of her customers, had been with her some days before her death. But on the main point he held firm, and has ever since. He did not kill her, he insisted. Interrogators could not force a confession from him.

Astonishingly, in view of Japan's notorious 99-percent-plus conviction rate, Mainali was found not guilty. "There is nothing to prove Mainali committed the crime," declared Tokyo District Court Judge Toshikazu Obuchi in April 2000. The evidence, he said, was circumstantial and inconclusive. Considered a flight risk, Mainali had been held in detention throughout the trial. Now at last he was free.

But he wasn't — and here there occurred what to many has seemed a gross miscarriage of justice. Prosecutors promptly appealed the not-guilty verdict. In the United States and most of Europe, this would not have been possible. But Japanese law interprets double jeopardy loosely. Mainali was rearrested. In December 2000 the Tokyo High Court reversed Mainali's acquittal and sentenced him to life in prison. The Nepali Times described the scene:

"When Judge Toshio Takagi read out his verdict in Japanese, there was a shocked silence in the courtroom, according to those who were present. Govinda waited quietly for the verdict to be translated, and then shouted in Japanese, 'God! Please help me. I didn't do it.'"

The verdict was upheld by the Supreme Court in October 2003.

A defendant's anguished cry is no proof of innocence. But if the standard is "guilt beyond a reasonable doubt," the logical flaw in the proceedings, to the nonlegal mind, is plain. A lower court's not-guilty verdict would seem itself to constitute a reasonable doubt. For a higher court to deem otherwise, barring new evidence, is to imply that the lower court is irrational. If that is so, the Japanese court system is in deeper trouble than even pessimists suppose.

Fresh DNA analysis, which Mainali's lawyers had been urging for years, established last month that semen and body hair at the scene were not Mainali's after all. The legal implications are not yet clear. Will there be a retrial? If so, will it establish Mainali's innocence? Preliminary indications are that prosecutors will dig in their heels and insist Mainali's guilt is proved by other evidence. They have much invested in the verdict as it stands — what's left of their collective reputation, for one thing, following revelations of several blatant miscarriages of justice, conspicuous among them the cases of Toshikazu Sugaya, freed in 2009 after 17 years behind bars for a child-murder he never committed, and senior Health, Labor and Welfare Ministry bureaucrat Atsuko Muraki, indicted in 2009 for alleged abuse of office, acquitted a year later after prosecutors were caught tampering with the evidence. And in fact, defense lawyers quoted by the weekly Shukan Asahi charge police with deliberately covering up evidence favorable to Mainali.

If found innocent, notes tabloid Nikkan Gendai, Mainali, now 44, would be eligible for compensation of anywhere from ¥1,000 to ¥12,500, depending on circumstances, for every day of wrongful imprisonment. Potential total: ¥65 million.

"You know," Mainali's wife Radha told the Nepali Times back in 2001, "he really didn't have to go to Japan. He just wanted to have some income to build a house in Katmandu."



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