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Thursday, June 14, 2012

ANALYSIS

Mainali case exposes flaws, bias in judicial system

Prosecutors withheld evidence, detained Nepalese after acquittal


Staff writer

Facing retrial, exoneration and freedom after spending 15 years in prison for the 1997 murder of a Tokyo woman — a crime for which he was initially acquitted — Govinda Prasad Mainali could be a case study in the flaws in the nation's judicial system.

News photo
Finale near: Lawyers Hiroshi Kamiyama (left) and Shozaburo Ishida share smiles Wednesday after meeting with their client, Govinda Prasad Mainali, at the Yokohama Office of the Tokyo Regional Immigration Bureau. KYODO

Like other foreigners in violation of their visa status, the Nepalese was placed in immigration detention after his acquittal, pending deportation. But prosecutors had other plans: They made sure he stayed in immigration custody as they retried his case on appeal, bent on a conviction.

To this end, they withheld evidence that would strongly establish reasonable doubt of guilt. In short, they presented, as a spokesman for the state said, what was needed "to prove their case."

The prosecutors had evidence that another man was at the scene of the slaying, a vacant apartment in Shibuya Ward, Tokyo. The revelation that a DNA test performed last July matched semen found inside and on the corpse with hair strands on the victim prompted the Tokyo High Court last week to order Mainali's retrial, which he had long been demanding.

In 2000, the same court convicted Mainali of robbing and killing the 39-year-old Tokyo Electric Power Co. employee, who engaged in prostitution on the side, ruling that only he could have been in the apartment at the time of the killing.

Mainali, 45, was ordered deported this week and is expected to return to Nepal, as his presence in the retrial, which will presumably clear him, is not deemed necessary, and his lawyers say he also plans to sue the government for the gross breach of justice and his 15-year incarceration because of it.

Mainali lawyer Shozaburo Ishida faulted prosecutors for withholding vital evidence that could have upheld Mainali's acquittal.

"The problem is that we lawyers cannot know what evidence prosecutors have," Ishida said. "We just have to rely on prosecutors' ethics."

The Tokyo High Court this time around "took the initiative to push prosecutors to present all the evidence in a way I have never seen. We greatly appreciate the court's attitude," he added.

The court and attorneys for Mainali, who has steadfastly maintained his innocence, pressed prosecutors for evidence that another man had been at the crime scene. According to court findings, Mainali was last with the victim 10 days before she was found dead. He had sex with her then and his semen was found in a condom in the apartment's toilet. The exact time of her death is unknown, but the semen in the condom well predated her slaying, according to an analysis presented in Mainali's Tokyo District Court trial, which found him not guilty.

It wasn't until September 2010 that prosecutors finally revealed they had kept frozen a piece of gauze containing semen taken from inside the victim's body, Ishida said.

That, and the fresh DNA analysis matching the semen and hair found at the scene, served as the key pieces of evidence indicating the unidentified other man may have been the last person with the victim. No fresh DNA evidence matching Mainali's was found.

A spokesman for the Tokyo High Prosecutor's Office told The Japan Times, however, that withholding such evidence, as the state did before the district court's 2000 acquittal, does not violate the "prosecutors' ethical code" published by the Supreme Prosecutor's Office on Sept. 28 last year.

"We believe it is in compli-ance with the ethical code because the prosecutors submitted evidence appropriately in order to prove their case," the spokesman said.

The Supreme Prosecutor's Office published the code in response to a major scandal involving prosecutors bent on winning a conviction. Elite Osaka prosecutors had tampered with evidence in a failed attempt to establish the guilt of a health ministry official on trial for fraud in September 2010.

The code basically stipulates prosecutors must comply with laws, perform their duties in a fair manner, respect human rights and do their utmost to avoid punishing the innocent.

Japan is not the only country where prosecutors are selective in the evidence they present in their pursuit of a conviction.

"While most prosecutors in the U.S. properly perform their duties, a few of them unfortunately violate the rules and withhold vital evidence from time to time," said Matthew Wilson, an associate professor of law at the University of Wyoming.

The U.S. has what is known as the "Brady Rule," which effectively states that prosecutors violate a defendant's constitutional rights if they withhold evidence that is favorable to the defense and material to the defendant's guilt or punishment, Wilson said. If the withheld evidence is likely to have undermined confidence in the trial outcome, then a conviction will be overturned, he added.

To be sure, there were no laws in Japan as of 2000 that required prosecutors to present all evidence in their possession. In November 2005, the Code of Criminal Procedure was revised to require prosecutors to present a list of evidence. But the revised law's lack of penalties may prove little deterrent to the withholding of key evidence.

The revision was made in preparation for introducing the lay judge system, to simplify trial procedures for citizen judges.

Prosecutors may now have to submit a list of evidence, but they decide what is on the list, and thus lawyers have to depend on their good faith, lawyer Ishida said.

It is unknown, however, whether prosecutors actually knew the gauze contained semen that was not from Mainali, he said.

Prosecutors nonetheless should always present all the evidence they have from the beginning, Ishida and Aoyama Gakuin University law professor Osamu Niikura said.

"Prosecutors are not just opponents of defendant attorneys. They serve the public interest, and presenting all the evidence to make sure they don't convict an innocent person . . . is in the public interest," Niikura said.

A fresh DNA test in 2009 led to the de facto exoneration of Toshikazu Sugaya, who had spent 18 years in prison for the kidnap-murder of a 4-year-old Tochigi girl. An older, flawed DNA test and coerced confession prompted judges to initially convict Sugaya and send him up.

There is no longer a statute of limitations for murder, and thus the real killer of the female Tepco employee, whose name was withheld, is not off the hook.

Another problem in Mainali's case was that prosecutors appealed the district court acquittal, leading the Tokyo High Court to convict him, Ishida said.

The district court acquitted him in April 2000, saying there were several unclear points, including two strands of hair found on the victim that came from a third party — the other man, as the latest DNA test shows.

Calling his testimony unreliable, the high court overturned the acquittal and sentenced Mainali to life even though no new evidence was presented, ruling "it is difficult to think someone other than" Mainali brought her to the vacant apartment where she was slain.

Japan is one of the few countries where prosecutors are allowed to appeal not-guilty verdicts. By bringing a case before the high court or the Supreme Court, prosecutors can claim this avoids violating the law against double jeopardy.

Japan, like many nations, bans double jeopardy, but the judicial system considers district court, high court and Supreme Court trials of the same party for the same alleged offense to be separate trials, unlike in other countries where the verdict in the trial of first instance stands.

Judges here also apparently follow the maxim "prosecutors are usually right," as 99 percent of defendants are found guilty in criminal trials, Aoyama Gakuin University's Niikura said.

Prosecutors' interrogations here are more thorough than those carried out in other countries, he said, hence the "very extreme" 99 percent conviction rate.

Another problem was that prosecutors demanded Mainali remain in Immigration Bureau custody after his district court acquittal, because otherwise he would have been deported for overstaying his visa. The high court could not have held an appeal trial without him in Japan.

"If he was a Japanese, he would have been released," Ishida said, calling prosecutors' demand for the detention of someone who had been acquitted, just so they can pursue a conviction, unprecedented.

Mainali is back in immigration custody, effectively in detention since 1997.



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