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Tuesday, Aug. 14, 2007
THE ZEIT GIST
Abuse, racism, lost evidence deny justice in Valentine case
Nigerian's ordeal shows that different standards apply for foreigners in court
Special to The Japan Times
In 1999, a Brazilian resident of Japan named Milton Higaki was involved in an accident that killed a schoolgirl. Rather than face justice in Japan, he fled to Brazil fearing "discrimination as a foreigner in Japanese courts."
Although the domestic media quickly saw this as a case of crooked-foreigner-as-flight-risk, human rights attorney Yasuko Morioka took a more nuanced view, criticizing Japan's "lack of legal hearings that consider the rights of foreign(ers)."
While fleeing from justice is not to be condoned, cases like Higaki's are more understandable considering the increasing awareness of the scarier aspects of Japan's judicial system.
Not only is the United Nations aware of the potential for torture in Japan's prisons (more below), but courts here also tend to use different judicial standards when coming to decisions in cases involving non-Japanese.
Consider the Valentine case. On the evening of Dec. 9, 2003, a Nigerian nightclub worker surnamed Valentine was one of many Africans displaying flyers in Tokyo's Kabukicho nightlife district. Two potential customers asked to see his club. Obliging, here's what happened next:
On the way, his "customers" were rumbled as plainclothes police, Valentine says, and he panicked and ran away. Valentine was tackled, and a cop named Tanabu kicked him repeatedly below the knee until his leg was badly broken.
The police, on the other hand, claim that guilt gave Valentine wings, and while sprinting down a narrow alleyway, he dodged another policeman, crashed into a sign attached to a building, and thus broke his leg.
Valentine was then arrested under the Entertainment and Amusement Trades Control Act for handing out nightclub pamphlets, a charge he denies. However, whatever he-said she-said, Valentine was denied access to a hospital while in custody.
According to Valentine's testimony, hospitals and doctors were contingent on him signing a confession, in Japanese (which he could not read), that the police had not hurt him. He refused. The interrogations continued for 10 days.
According to the U.N., this sort of thing is not all that unusual. The U.N. Committee Against Torture recently criticized Japan (CAT/C/JPN/CO/1, May 18, 2007, Sections 15(c) and 17) for "the lack of appropriate and prompt medical care for individuals in police custody," and for "undue delays in provision."
Consequently, Valentine's leg injury worsened. When he ultimately did sign and was released to Immigration, officials saw he wasn't running anywhere, and immediately sent him to a private hospital for emergency treatment.
Several operations later, some involving rib bone transplants to his leg, Valentine says he remains crippled and in constant pain.
In 2005, Valentine sued the police for damages and medical bills totaling ¥42,937,800. But on March 29, 2007, the Tokyo District Court ruled against Valentine, and on fascinating judicial grounds.
First, the judges played doctor. Although Valentine's post-Immigration physician testified that his injuries were indeed aggravated by the incarceration (even indicating for the record that he had never seen a broken leg left in such bad condition), judges ruled that the doctor's judgment was merely "a sense" ("kankaku") lacking "rational grounds."
Head Judge Masaki Sugiyama somehow deduced that Valentine's bones were unusually "strong," and — in his own expert medical opinion — Valentine's leg didn't get all that much worse in custody.
The judges then ruled that officer Tanabu couldn't have kicked Valentine's leg, since — in their expert forensic opinion — Tanabu's "rubber shoes" would have left "pinpoint injuries." (Shoes never stomp or crush, one assumes.)
Even fishier is the photo re-enactment the Tokyo police submitted to court (see above). The cop in white playing Valentine dodges another cop. He avoids three steps and collides with a sign attached to the building.
Note what trouble the re-enactor has lifting his knee up to the sign. Valentine, whom I've met, is not tall. Also, considering that Valentine's injuries are to the bone below the knee, how did the knee also escape injury?
Moreover, this happened in December around 8 p.m. The photo indicates Valentine jumped up a curb plus two steps (in evening shadow), then crashed into a sign (which probably would have been lit).
Why does he make impact with the more visible object? I'm not Nancy Drew, but something doesn't add up.
Especially when a boulder left unturned is the crime-prevention surveillance cameras riddling Kabukicho. If events had happened as police claim, why hasn't substantive footage surfaced in court?
Also ignored by the court was the lack of Valentine's trousers, which had been confiscated by the police, held for months, then returned with no forensic comment on whether or not the pant leg had foot marks.
Plus, according to Valentine, police doctors attending his detention somehow lost his "karute," or medical chart. Bang goes evidence of the cops' awareness of Valentine's medical condition during interrogation.
Again, it's systematic. The aforementioned U.N. torture report also notes "the lack of independent medical staff within the prison system," and recommends "placing medical facilities and staff under the jurisdiction of the health ministry." It's easy to see why.
Even then, Valentine says the court decided the responsibility for keeping medical records lay with the police hospital, not the National Police Agency, and let it go.
Finally, here's the biggest reason Community Page readers should take note of this case: Based on nationality, standards for evidence differ.
In court, an African named Francis testified that he witnessed a police officer kicking Valentine's leg.
The judges dismiss him on page 19 of their decision: "As Francis is closely acquainted with the plaintiff, visiting him in hospital and associating with him in Kabukicho's black community, under no circumstances ("totei") can we accept his eyewitness testimony as having any objectivity or credibility."
Try doing this in another society, where you disqualify someone merely because they were apparently friends, moreover sharing the same racial (sorry, "community") background. You'd get media criticism, if not riots.
Would this judicial standard have been applied to two Japanese? Or to the police as well, with their strong sense of community? Doubtful.
Judges thus assume (without any further evidence in the decision) that there is solidarity within, or even the existence of, a close community. One linked by black skin or hospital visits.
Had I been a stranger but an eyewitness, I too might have visited to offer condolences. Would I then be considered as thick as thieves, ready to lie under oath?
Thus there is an emerging pattern of Japanese judges exploiting the foreign factor to let Japanese off the hook. For example, Zeit Gist's Feb. 7, 2006, column dealt with the McGowan case. An African American was denied entry to an eyeglass store in Taito, Osaka, because the owner expressly "dislikes black people."
Taken to court, the judge ruled against McGowan due to flawed testimony — flawed because McGowan is foreign. The decision claimed there was a language barrier, and split hairs on whether the discrimination was due to McGowan's being black or merely foreign. Thus a self-proclaimed racist escaped any reprisal.
The precedent set was that people are less credible in court if they are not native speakers of Japanese.
Fortunately, the Osaka High Court overturned this cracked decision in October 2006.
But the beat goes on. In the Valentine Case it is a matter of association. An eyewitness is dismissed because he's a friend. And black.
Consider this disadvantageous judicial precedent. Unless non-Japanese are well-integrated into Japanese society, what Japanese friend or stranger is going to come to their defense?
Valentine's doctor did, but judges overruled his testimony anyway, and overlooked the insufficient police evidence (medical records, kicked trousers, odd re-enactments and possible video footage).
Valentine has likewise appealed to the Tokyo High Court. His next hearing — which is open to the public — is around Sept. 25.
His case deserves attention. Something must stop the judiciary's tendency to use any possible pretext to undermine a foreigner's case, including overruling evidence on the grounds of expertise and nationality.
In this case, the damage done is particularly odious. Japan's police seem to be able to treat foreigners in their custody any way they like — with complete judicial impunity.
I see incentives for both flight risks and broken legs.