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Tuesday, Dec. 8, 2009
THE ZEIT GIST
Ichihashi trial key test of legal reforms
Extensive media coverage could sway lay judges
By STEPHEN GREEN
In March 2007, the Japanese police came under intense scrutiny at home and abroad after Tatsuya Ichihashi escaped barefoot from under the noses of a group of officers at his apartment in Ichikawa, Chiba Prefecture. The body of British Nova teacher Lindsay Hawker was found shortly after partially buried in a bathtub full of sand on the apartment balcony.
After eluding police for more than 2 1/2 years, Ichihashi was arrested last month on an outstanding warrant for abandoning Hawker's body. On Dec. 2, police announced Ichihashi had been indicted on the abandonment charge, and rearrested on a warrant for Hawker's rape and murder.
With Ichihashi's arrest, the focus of domestic and international attention has now shifted to Japan's criminal justice system, including the detention and interrogation of suspects, and recent judicial reforms such as the lay judge system. The inclusion of the rape charge and the release by police of information about Hawker's injuries suggest prosecutors will ask for the death penalty in this case, a contentious issue given that the number of executions in Japan continues to rise amid an international trend away from the death penalty. With the stakes this high, the question many will be asking is: Can Ichihashi receive a fair trial under the Japanese criminal justice system, especially considering the intense media coverage this case has generated over the last few years?
Japanese law allows the police to hold and interrogate Ichihashi for up to 23 days for each charge before indicting him. As a new charge was laid on the day the detention period for the first charge ended, Ichihashi will probably be held for interrogation a further 23 days. Usually, suspects are detained at a police station for the whole of this period. The practice of pre-indictment detention in police cells has for many years been widely criticized in Japan and abroad for failing to meet internationally accepted standards on the conditions of persons in custody.
Since his arrest, Ichihashi is reported to have remained silent during questioning about Hawker's death. Although the police have said there is strong evidence for the issue of the arrest warrant for rape and murder, past practice suggests it is highly likely they will work hard to extract a confession from Ichihashi and establish the motive for his actions before indicting him on the new charges.
The pre-election pledge of the ruling Democratic Party of Japan to introduce audiovisual recording of the entire interrogation process is still some way off being implemented. Ichihashi will not have the benefit of this important procedure to ensure transparency and accountability of his interrogation and the circumstances surrounding any confession that he makes to police or prosecutors.
Assuming Ichihashi is indicted for murder, his trial for this serious criminal offense will be a test for Japan's lay judge system (saibanin seido), which came into effect in May. Under this system, six members of the general public are selected to participate in trials of serious criminal cases that are contested by the defendant. One of the aims of the system is to increase citizen involvement in the justice process. Together with three professional judges, the lay judges will decide on the issue of guilt and, where relevant, the sentence to be imposed.
If Ichihashi is found guilty of murder, the professional and lay judges will have to consider whether to sentence him to death, imprisonment with work for life, or imprisonment with work for a definite term not less than five years. It is possible that Ichihashi could be given the death penalty. In sentencing practice to date in Japan it is extremely rare for a death sentence to be handed down for the murder of one person unless another serious crime, such as rape, was also committed.
In a 1983 decision, the Supreme Court issued guidelines for determining when the death penalty should be given. According to the court, selection of the death penalty must be allowed in cases where it is decided that it is the only way to ensure balance between the crime and the punishment, to act as a deterrent, and it is justified given the particular facts of the case including: the nature of and motive for the crime; the features and, in particular, the persistency and brutality employed in carrying out the murder; the gravity of its consequences, as reflected especially in the number of victims; the feelings of the victim's family, and the impact of the crime on society; the age of the perpetrator; whether they have a criminal record; and any grounds for leniency after the murder.
Under the lay judge system, the professional and lay judges will decide the sentence on a conditional majority: At least one of the three professional judges must agree with the sentence proposed by the majority of the panel. Increasing citizens' involvement through the lay judge system may mean that the death penalty is more often given, especially as surveys have shown the level of public support in Japan for capital punishment to be as high as 80 percent. Justice Minister Keiko Chiba was recently reported as saying she hoped that lay judges will "understand the seriousness of handing down the (death) penalty."
An additional dimension to this case is the level of media attention it has received — and will likely continue to receive — both in Japan and around the world. Ichihashi is likely to be the first person tried under the lay judge system where the circumstances of the crime have been the subject of an extraordinary amount of media scrutiny.
An example of the intensity of the media focus is that within minutes of the news of Ichihashi's arrest breaking in Japan, Bill Hawker, Lindsay's father, was informed not by the police, but live to air by Tokyo Broadcasting System's "The News" program. In response, and pre-empting the outcome of any trial, Hawker said he was "glad that justice has finally been done." (In Japan as in England, some constitutional and statutory protections exist giving a person accused of a crime certain rights, theoretically at least, including to an impartial trial. However, perhaps Hawker was aware that the conviction rate of indicted suspects in Japan is over 99 percent.)
By the time the case goes to trial it is difficult to imagine that many Japanese will not know about Hawker's murder, the police investigation, Ichihashi's association with the murder, and the extreme steps — including extensive plastic surgery — he took to avoid arrest. This raises the question of how the criminal justice system will ensure that the widespread notoriety associated with the case does not prevent Ichihashi receiving the impartial trial to which he is entitled.
Given this concern — and even though murder cases are supposed to be tried under the lay judge system — the prosecutor, defendant or defense counsel could apply to the court (or the court, without prompting, could decide) that the case is exceptional and should be tried by professional judges alone. Professional judges should be better equipped than lay judges to put aside what they have heard, seen or read in the media and decide the case only on the evidence presented at the trial.
A less drastic step would be to screen lay judge candidates during the selection process to remove any person where there is a fear they could conduct the trial unfairly. Lay judges have a moral and legal obligation to carry out their duties honestly and fairly in accordance with the law. It must be the responsibility of the chief judge on the panel, a professional judge, to remind the lay judges of this duty and to direct them to disregard the media coverage they have been exposed to, and opinions they may have formed, and base their decision solely on the trial evidence.
The media is undoubtedly aware of the influence it has on citizens, particularly in relation to the lay judge system. A representative body of one section of the media, the Japan Newspaper Publishers and Editors Association (Nihon Shimbun Kyokai), issued guidelines in January 2008 for reporting on criminal cases to be tried under the new system. One stated aim of the guidelines is "to ensure that news-gathering and reporting on criminal cases does not influence lay juries to excessively prejudge cases on the basis of the media reports." The guidelines set out three points covering: reporting on the suspect's statements during the investigation; reporting on the suspect's background and profile; and not to give the impression that the suspect is guilty. However, these are only guidelines, and members of the association are only urged to give them consideration in developing their own policies. Further, newspapers are only one source of information.
All sections of the media have an important and potentially highly influential role in reporting this case. The media has great power through its collection and presentation of information in shaping the public's views and opinions. This power should come with a high level of responsibility, including ensuring the media's actions do not interfere with the fairness of the trial process.
This case will focus attention on Japan's criminal justice system — and in particular the lay judge system — both inside and outside Japan. It is important that attention not only focuses on the outcome of Ichihashi's trial, but also on pre-indictment detention and investigation procedures, the fairness of the trial, and the role of the media in the criminal justice system.
Assuming the matter goes to trial, we can only hope that the process is fair and involves the participation of citizens — in closely examining and considering only the evidence, and questioning how it was obtained before reaching a verdict — thus offering an early example of the lay judge system as a positive development in Japan's judicial system reform process.
Stephen Green is an Australian lawyer currently teaching law at a university in Kyoto, and a program convener for the Australian Network for Japanese Law (ANJeL). Send comments on this issue and story ideas to email@example.com