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Tuesday, Oct. 30, 2012

ANALYSIS

Classic case of selective evidence, double jeopardy?


Staff writer

Govinda Prasad Mainali recently told supporters that the Japanese police, prosecutors and courts should formally apologize for wrongfully imprisoning him for 15 years.

News photo
Enjoying freedom: Govinda Prasad Mainali waves from his home in Katmandu on Monday. KYODO

But along with this demand, issued from Nepal, to where he was deported in June, Mainali is also making one final plea.

"Govinda said he hopes he is the last person who has to endure such an experience," Mikiko Kyakuno, who has been in contact with the freed inmate, told reporters Thursday, adding the Nepalese wants the judicial system to "fix what is wrong."

Mainali's ordeal began with the murder of an unlikely prostitute in March 1997 and made headlines again three years later when the Tokyo High Court overturned his lower court acquittal, using the same evidence that initially cleared him.

He had maintained his innocence from the get-go and made repeated requests for a retrial, which only happened after prosecutors slowly submitted evidence they had been withholding that solidly placed another man at the scene of the crime when it occurred.

The state had a case it wanted to press, and thus used only partial evidence to achieve that goal, having no ethical qualms about withholding proof that someone else was the killer since that would deviate from their goal.Mainali was freed after serving 15 years of a life sentence in June and quickly deported, and a retrial was granted. The high court that had overturned Mainali's initial 2000 acquittal concluded the retrial Monday and is soon expected to exonerate him of the woman's murder.

A Hollywood-style ending to a legal saga this may be, but supporters of Mainali don't see his ordeal as a fluke. They feel the judicial system is greatly flawed and needs a fundamental overhaul.

The evidence that cleared Mainali was "available from the beginning when the district court proceedings were going on" in 2000, Mainali's supporters said in the formal complaint they filed with Tokyo prosecutors Thursday.

Although prosecutors argue that advances in DNA testing led to the new findings indicating the presence of another man, Mainali's supporters claim they simply "disregarded their public duty to pursue the truth."

Mainali's official vindication is expected to leave more questions unanswered than answered, including the identity of the true killer and the motive behind the 1997 murder of the 39-year-old Tokyo Electric Power Co. employee.

The biggest question, however, is why prosecutors waited 15 years to conduct DNA tests on crucial evidence while Mainali languished behind bars and the real killer remained at large.

In June, a spokesman for the Tokyo High Prosecutor's Office told The Japan Times that they "believe the prosecutors acted in compliance with the ethical code because they submitted evidence appropriately in order to prove their case."

Mainali's supporters thus argue the prosecutors' objective was not to get at the truth, but only to get a conviction against the suspect in hand.

Kyohei Imai, a member of Mainali's support group, also pointed out that the injustice has highlighted another crucial flaw in the judicial system.

While most countries ban prosecutors from filing a higher court appeal against an acquittal — the basic concept of double-jeopardy — Japan has a different interpretation in which it deems rulings on trials over the same offense to be separate if they are issued by the judicial system's three tiers, the district, high or Supreme Court.

News photo
Festive sight: The home of Govinda Prasad Mainali is decorated with lights Monday in Katmandu. KYODO

A district court acquittal is rarely finalized, because prosecutors have and routinely exercise the option to appeal, as they did in Mainali's case. "We need to discuss whether a judicial system where prosecutors can file an appeal against verdicts of innocence over and over again is justifiable," Imai said at the news conference Thursday.

Mainali has found peace after returning to Nepal and his family, according to his supporters.

He continuously complained for 15 years that he couldn't sleep well in prison, but that problem is over.

And signs of posttraumatic stress disorder, including inexplicable abdominal pains, gradually eased after his release.

Mainali is trying to lose the extra weight he gained while incarcerated and has taken up jogging, though without much success, according to those who have met him.

He has a pressing need to find work but so far hasn't been successful, those who have met him said. But Mainali has also told them he is too busy attending to family and supporters from Japan who have been continuously visiting Nepal since his return.



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