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Friday, Feb. 26, 2010

Lay judges off to solid start

Legal system gets a positive jolt from citizen participation


Staff writer

It's been roughly a half year since the first lay judge trial, and many in the legal profession agree the new criminal trial system has gotten off to a smooth start, and the public is taking its new civic duty very seriously.

News photo
Weighty affair: A courtroom sketch shows the start of a trial at the Tottori District Court this week in which the 55-year-old defendant could be sentenced to death for killing two people. KYODO PHOTO

But as more cases are tried by the combination of professional and citizen judges, the ordinary people who participate will face new challenges — including deciding whether to hand down the death penalty. The first such test may come next week in a murder trial that got under way Tuesday at the Tottori District Court.

According to a Kyodo News tally, as of Feb. 13 a total of 232 cases had been tried under the "saibanin seido" (lay judge system), in which six randomly chosen registered voters sit on the bench with three professional judges to try heinous crimes. Together, the nine members of the panel determine the facts and decide the sentence if they find the defendant guilty in a majority vote.

A total of 1,956 people have sat through 232 cases either as lay judges or as alternates, Kyodo said.

All 60 district courts and branches across Japan will have experienced the new system at least once when the Niigata District Court holds its first such trial in mid-March, hearing the case of a Russian accused of smuggling 4.7 kg of narcotics into Japan.

Public participation in the courtroom has clearly transformed the proceedings. Legal professionals now speak in plain words instead of jargon; the focus is on oral presentations rather than documents; and both prosecutors and defense attorneys utilize PowerPoint presentations to guide the lay judges through their arguments.

And in the deliberation room, the discussions generally appear to be going well, with the professional judges serving as careful moderators and making sure all their lay counterparts speak up and exchange opinions before they do, while answering any technical questions the lay judges may have.

The lay judges are prohibited from revealing the details of their deliberations, though they are allowed to provide general impressions of their experiences.

According to a survey conducted by the Supreme Court on the lay judges who served on 77 cases between August and November, in which 442 responded, 82.4 percent said there was a good atmosphere and they felt comfortable speaking out during the deliberations.

In the same survey, which was released earlier this month, 75.6 percent said they felt the trials they participated in were deliberated fully, while 5.4 percent said they would have preferred the discussions went further.

Attendance for the selection process has been remarkably high. The Supreme Court survey found that the average participation ratio was 85.3 percent. Many observers argue this demonstrates how seriously the public is taking the new duty.

Those called to serve may be showing up, but that doesn't mean they're happy about it. In fact, 58.6 percent of those who served said they initially didn't want to. Only 26.2 percent had been looking forward to serving.

And yet after their trial was over, 98 percent said they felt it was a positive experience.

"I'm glad that I didn't refuse, and I'm glad that I served," said a man in his 70s who took part in a trial in late January at the Tokyo District Court. He served on the three-day trial of 21-year-old Ryota Shiina for allegedly groping a woman's breasts and injuring her.

The panel gave Shiina a three-year suspended prison term, ruling that while they had every reason to blame him for hurting the 35-year-old victim both physically and mentally, they decided not to put him in prison right away because he and the victim had already reached a monetary settlement, and the victim did not want him to receive an actual prison term.

The lay judge, who is self-employed and declined to give his name, said at a news conference after the trial he was a bit shocked when he first learned which case he would be dealing with. But the whole experience taught him how much more goes on behind the scenes of a crime than what he would read about in the papers, he said.

"Everyone in the group had different backgrounds and we all saw things from different perspectives, and I was very impressed with that," he said. "I was a bit nervous to speak up at first, but in the end we were all able to discuss matters thoroughly."

A lay judge in her 20s who sat on the same trial and also requested anonymity said she would not refuse to serve even for cases such as that of Tomohiro Kato, who is being tried at the Tokyo District Court for murdering seven people and wounding 10 in Tokyo's Akihabara district in 2008. His case is being handled by professional judges alone because he was indicted before the lay judge system was installed last May.

"I learned from serving that there are many sides to a case, both the victim's and the defendant's, and that was a very good experience. I don't think I would refuse to serve," she said.

The lay judge in his 70s added: "I think it's impossible to say that one case is heavier than another. They are all important. And I think I also wouldn't refuse if I was chosen."

So far, a large majority of the defendants in lay judge trials — which have dealt with such crimes as murder, robbery, rape and arson — have pleaded guilty. As a result, lay judges have been primarily tasked with deciding the sentence.

Lawyer Takayuki Aoki, a professor at Surugadai Law School in Tokyo, remarked that the sentences handed down by lay and professional panels have so far tended to be more varied in their content than professional-bench trials. Professionals share a common scale of sentencing and generally mete out sentences based on their legal knowledge and experience.

"Lay judges seem to be handing down tougher sentences, especially to sex offenders and murderers, compared with professional-only courts," he said.

At the same time, Aoki said, lay judges are also giving suspended sentences, or even putting defendants on probation, at a higher rate than professional judges did.

"Lay judges seem to be putting more consideration into the defendant's future when they decide a sentence," he said, adding this could lead to greater interest in penalty and correction issues, which the general public has rarely had to face.

More cases will continue to be tried under the new system. They will include high-profile cases such as that of Tatsuya Ichihashi, who has been indicted for murdering British English teacher Lindsay Ann Hawker, and former actor Manabu Oshio, facing charges for allegedly failing to take action to prevent the death of a woman after she took the synthetic drug MDMA with him. The dates of their trials have yet to be set.

One of the most serious challenges lay judges will face is whether to sentence someone to hang.

In a government poll on the death penalty conducted in December, 85.6 percent of the respondents indicated support for capital punishment, an increase from 81.4 percent in a similar survey in 2004.

Only 5.7 percent of the respondents to the 2009 poll were in support of abolishing the death penalty, down from 6.0 percent in the previous poll.

The murder trial under way in Tottori is getting a great deal of attention because it could be the first involving lay judges in which prosecutors demand the death sentence. So far, the toughest demand by prosecutors has been life in prison with the possibility of parole.

Hiroshi Kageyama, 55, is charged with allegedly murdering Hideo Ishitani, 82, and Masako Omori, 74, and robbing them of about ¥12 million. Ishitani was the president of an accounting firm where Kageyama worked for 20 years.

While Kageyama has admitted strangling the victims, his lawyers are arguing the money was just a small part of the motive. To keep their client away from the gallows, they are putting forth the argument that disputes with the pair over the company's financial problems had a severe psychological impact on Kageyama.

The prosecutors are scheduled to make their closing arguments Friday. This will be followed by closed-door deliberations. The ruling is expected March 2.

Lawyer Aoki said that despite the public support for capital punishment, it is difficult to predict whether lay judges will move the bar higher or lower for handing down the ultimate penalty.

"Until recently, the Japanese public has said the death penalty is necessary, but they didn't want to deal with it themselves. But now they will have to," he said. "It is necessary to open up the information regarding punishment and correction to the public and increase the discussion" on whether society really supports the government taking the life of its citizens.



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