Laying down the law
Posted by ampontan on Tuesday, October 21, 2008
THE STORY HAS ALL THE ELEMENTS of more familiar causes célèbre: Parasitic attorneys disfiguring the intent of the law to further their own objectives, politicians making intemperate comments and then toggling between I’m sorry/I’m not sorry, and newspapers imitating third-rate blogs. In short, it’s another milestone in the descent of public discourse into the cesspool.
Except this time the story is happening in Japan and not in the West.
In April 1999, an 18-year-old male posed as a plumber (or plumbing inspector, or drainage pipe repair worker, depending on the newspaper) to force his way into an apartment in Hikari, Yamaguchi. Once inside, he tried to rape the woman living there, 23-year-old Motomura Yayoi. When she resisted, he strangled her with his hands, performed sex on her corpse, and strangled her 11-month-old baby with a rope after throwing the infant to the floor.
He later explained in court that it was his desire to rape a total stranger.
Defendants aged 14 to 19 are usually tried as juveniles in Japan, but they are tried as adults for serious crimes. These cases account for 0.8% of all juvenile trials. The 27-year-old defendant’s name has never been revealed because he was a minor when he committed the crime. (Hereinafter, we’ll call him Nanashi Gombei.)
Nanashi’s first trial was held at the Yamaguchi District Court in 2000. He confessed and was sentenced to life in prison.
The disappointed prosecutors were seeking the death penalty, so they appealed to the Hiroshima High Court. The Hiroshima court upheld the Yamaguchi ruling in 2002, so the prosecutors appealed to the Supreme Court.
Japan’s Supreme Court sided with the prosecutors. The Hiroshima court ruled that life imprisonment was appropriate because the killings weren’t premeditated and the killer was a minor. The Supreme Court said those arguments were insufficient and told Hiroshima to try again.
The Second Hiroshima Trial
In April this year, the prosecutors finally got what they were looking for when the Hiroshima Court reversed itself and handed down a death sentence. But the second Hiroshima trial was not a cut-and-dried replay of the first.
This time, Gombei had a new defense team of 20 veteran lawyers in his corner. The team was headed by Yasuda Yoshihiro, a long-time opponent of capital punishment. He chases those ambulances most likely to provide him with mass media exposure. For example, Mr. Yasuda defended Asahara Shoko, the leader of the Aum Shinrikyo cult/terrorist group that conducted five coordinated attacks on the Tokyo subway using sarin gas. They killed a dozen people, severely injured 50, and caused temporary health problems for another 1,000.
Reports say the defense team was “set up in March 2006 over concerns the top court might decide in favor of the prosecutors.” I have been unable to find any reports explaining who specifically “set it up” and who was “concerned”.
During the second high court hearing, the retooled defense team took a radically different approach than its predecessor. One of the biggest changes was to Nanashi’s story. He now said the police and the prosecutors forced his confession. He argued that his first defense team thought he deserved life imprisonment and therefore didn’t argue his case properly. Further, he denied that he intended to commit either the rape or the murders, and didn’t remember either touching the woman or tying the rope used to strangle the baby into a knot.
This directly contradicted his statements during the first two trials.
During questioning at the second Hiroshima trial, the accused said:
“At the time of the incident, I was in such a state that I didn’t even realize I had wrapped a rope around the baby’s neck and tied it in a bow. I first learned that the rope was tied in a bow when I was shown the rope during questioning… I held the baby in my arms thinking I would soothe her. I wasn’t cradling her to kill her, but fell into despair when I ended up killing her.
His lawyers claimed that the man should have been charged with injury resulting in death and that he was not in control of his actions. They said:
“The baby didn’t stop crying, so the defendant wrapped a rope around her neck and tied it in a bow, and she died.”
“(He) inadvertently killed (Motomura) because she rebuffed him when he held her…(He was holding her) out of a desire to behave as if he were her baby, because she reminded him of his own mother, who had committed suicide…. (He) lost track of himself as he feverishly pushed the victim down without noticing that he was strangling her.”
Because of his mother’s suicide, the defense attorneys argued, Nanashi didn’t have the opportunity to develop mature relationships with others. They said the attack arose from a sense of loneliness.
They claimed that Motomura died “accidentally” when Gombei used one hand to grip her throat in a backhand chokehold. In his earlier trials, the man said he had used both hands to strangle the woman. But the defense said that conflicted with the autopsy report.
They further maintained that the defendant didn’t consider sex with his victim’s corpse to be a crime, but a means to “return to his mother’s womb”, and that he hoped “it would bring it back to life.”
In regard to the murder of the infant, the defense team said the man used a rope to “loosely” strangle the baby to stop her from crying.
The prosecutors begged to differ:
“The defendant is trying to dodge the death penalty by fabricating and distorting facts of the incident and even disgracing the victims.”
The Hiroshima Court didn’t buy either Nanashi Gombei’s story or the defense arguments. Presiding Judge Narazaki Yasuhide said the killer’s intent and calculation were undeniable. He said that Nanashi’s inability to remember touching the woman or holding her neck was unnatural, and added that he didn’t believe a word of the defendant’s statements about killing the baby.
On the acts themselves:
“It was a selfish, self-centered and mean crime that ignored the personality of the victims”.
On the claim that he raped Motomura as a way to revive her:
“That is a preposterous idea, and it is doubtful that he could think of such a thing in front of a corpse…It’s rational to assume he raped her to satisfy his sexual appetite. It’s extremely incredible that he would think she would come back to life (by being raped), and I can never give credence to such an idea.”
Getting to the heart of the matter, the judge said:
“It is unnatural and unreasonable to be silent for 6 1/2 years after the (original) indictment if it contradicts the facts.”
He also noted that the defendant never came up with those explanations during any of the 296 meetings he had with his first defense team.
Said the judge:
“(The crime was) cold-blooded, cruel and inhumane…By presenting false excuses, the defendant has abandoned any effort to face up to his crime, and his attitude, which is an insult toward the bereaved family, is far from reflecting any remorse…There is no particular circumstance that would warrant taking into consideration a penalty other than the death sentence.”
He addressed the defendant’s demeanor:
“(He) seemed to have neglected to face the seriousness of the crime he committed while trying hard to avoid the death penalty…The apology he gave to the victims’ relatives was superficial, and his antisocial nature has been emphasized…even taking into consideration that he had just turned 18 years old at the time of the crime, he can’t avoid the death penalty.”
The defense counsel immediately appealed to the Supreme Court, which is like saying the days are getting shorter this time of year in the Northern Hemisphere.
The original defense team criticized the new defense team’s handling of the case and charged that their strategy did more harm than good. Imaeda Jin, one of the members of the initial team, said:
“The lawyers focused on denial of the act and failed to show the immature personality of the defendant to judges who finally made the decision that the defendant was lying…I thought if we had made his face and name public, we would have more sympathy for him because he looked very immature for his real age, like he was a junior high school student. I thought the public would understand his ‘immaturity’ at the time of the case. However, my proposal was not accepted.”
Journalist Washimi Kazuo thinks the second appeal to the Supreme Court will be rejected. Yes, the Supreme Court justices were the ones who wanted a retrial to begin with because they thought life imprisonment was too lenient, but Mr. Washimi has a different take:
“The defense will need a better strategy because judges these days care about the public’s sympathy for the victim. They cannot ignore it.”
Does Mr. Washimi pine for the bygone days of some golden age when a “strategy” was devised for judges who might have cared more about confessed killers than their innocent victims?
The Importance of the Case
This is the third death sentence in Japan since the end of World War II for a case returned to a high court by the Supreme Court. The Juvenile Law states that the death penalty cannot be applied for offenders under the age of 18. Courts have sentenced 18- and 19-year-olds to death three times since 1983, and 14 times since 1966. Nine of those sentenced have been executed.
Also at issue is how much longer 18-year-olds will be considered juveniles in Japan. When the mechanism was created during the Abe administration to govern national elections on possible Constitutional amendments, both the ruling coalition and the opposition party agreed to allow 18-year-olds to vote. (The current voting age in Japan is 20.)
The ruling is therefore viewed as a turning point for the courts’ handling of the death sentence involving cases in which the defendant is 18 or 19. Opinion polls also show that the Japanese public overwhelmingly supports the death penalty, with some surveys running as high as 70%.
It also comes before a new system takes effect next May in which lay judges begin taking part in the decisions for the verdict and sentence in criminal cases, including murder. No one can anticipate the impact the participation of lay judges will have on the Japanese legal system, though it is bound to be transformational. (Check the Legal System category at the left sidebar for more posts on that subject.)
Gov. Hashimoto’s Non-Lethal Injection
The lurid circumstances of the case—the attempted rape and murder of a young mother, the murder of her baby, and sex with a corpse—ensured that the trials would become instant content for the print and broadcast media. And when the new defense team hijacked the case and turned it into a vehicle for their cause, it inevitably became a weapon on the cultural battlefield.
The conflict wasn’t sparked by a minor skirmish, either; the counterattack was launched with the media equivalent of an artillery barrage from Hashimoto Toru.
Mr. Hashimoto is an attorney who has developed a popular following by appearing on television talk programs. He parlayed that popularity into election as the governor of Osaka earlier this year.
On 27 May 2007, before his election, he appeared on the local Osaka TV program Soko Made Itte Iinkai (Can You Say That Much?). He dropped his payload on Nanashi Gombei’s defense team during the show by calling their tactics “absurd”. While that in itself was uncontroversial, what he did next was unprecedented for Japanese television: He encouraged the viewing public to file chokai seikyu, or “disciplinary claims,” to the Japan Federation of Bar Associations (link on right sidebar) demanding the disbarment of the Yasuda team. (Lay persons have this right in Japan.)
As a result, the JFBA received more than 8,000 claims against Nanashi’s attorneys—that’s easier than it sounds because the form can be downloaded from the Internet. In contrast, only 1,367 claims against individual lawyers were filed nationwide for the year in 2006.
As so often happens in these cultural clashes, Mr. Hashimoto’s broadside had both positive and negative aspects. On the positive side of the ledger was his use of the term absurd to describe the defense. The Yasuda team concocted a patently absurd defense, and they deserved to be called on the carpet of public opinion for a dressing down.
But there were negative aspects as well. Regular television appearances are all about publicity, and perhaps Mr. Hashimoto was already thinking about a run for governor. He found the publicity he sought.
But he also failed to explain to the people who submitted the disciplinary claims that it was not the legal equivalent of simple complaint to a company over shoddy service. Persons submitting such claims can be sued for interfering with a lawyer’s livelihood.
See You in Court, Governor
What happened was close enough. Instead of suing the people who submitted the claims, four of the lawyers working on the Yasuda team sued Mr. Hashimoto. Earlier this month, a court found in their favor and ordered the governor to pay two million yen ($US 19,600) in damages to each of the four. Judge Hashimoto Yoshinari (probably no relation) said the governor defamed the defense lawyers and interfered with their work.
The governor was not the only over-the-top attorney named Hashimoto, however. The judge Hashimoto dismissed the governor’s assertion that the lawyers fabricated their defense claims and deserved to be punished. He said the lawyers were carrying out their duties of providing the best defense for the defendant.
Please. Perhaps Hashimoto Toru did behave recklessly, and the defense attorneys did not deserve to be disbarred, but it only requires a minimum of common sense to fuel suspicions that the second defense team’s strategy was fatuous nonsense created to keep Nanashi Gombei alive on a legal life support system to further their own ends.
The judge also said:
“No matter how absurd or preposterous the defendant’s claims were, those claims do not infringe upon the dignity of the lawyers.”
Only a lawyer could say that with a straight face.
The judge said of Gov. Hashimoto:
“(He) does not have a proper understanding of the mission and responsibilities of lawyers who protect the basic human rights of minorities.”
Here the judge veers into tin foil hat territory. The only conceivable “minority” group to which Nanashi Gombei could belong that would have a bearing on the case is minors, and protecting his “basic human rights” was never at issue. What the judge did here was to protect the time-honored privilege of lawyers to game the system for their own ends, rather than to protect the remaining integrity of the system itself.
The judge helpfully observed that it is not uncommon for defendants to change their story, but no one needs a law degree to figure that out. He neglected to point out, however, that Gombei didn’t change his story until nearly seven years later and that he changed it only when it became apparent that he was headed for the gallows. He also neglected to point out that the new story was ludicrous on its face, but his senses have likely been dulled by decades of listening to courtroom cock and bull.
Imaeda Jin, quoted before as part of the original defense team and one of the plaintiffs in the lawsuit, told reporters:
“It is important for society as a whole to recognize the important role of the defense in protecting the interests of the defendant.”
One wonders at what point in their legal careers attorneys become oblivious to how silly they sound to the rest of us. Nanashi Gombei’s interests, such as they were, were never threatened. Indeed, they were well protected through three trials. Protecting his interests became an issue only when the new defense team saw in him a chance to advance their own.
As befitting the duties of membership in the guild to which he belongs, Governor Hashimoto contritely apologized to the defense team:
“The initial ruling is serious. I believe there is no doubt that my own views went beyond the acceptable line.”
But that won’t stop him from filing an appeal:
“I don’t think the ruling is unjust. But considering that there are three stages in the court system, I would like to hear the high court’s opinion.”
Thus ensuring that his stream of publicity will continue.
He needn’t have worried: The Asahi Shimbun made sure he got plenty. They blasted Mr. Hashimoto in an editorial published the day after the ruling:
“If he seriously accepts the ruling, he should not appeal. Moreover, he should voluntarily surrender his qualification as a lawyer. If the public sees his apology only as a token gesture, they could also question his qualities as a governor.”
Here is the English version of the editorial, titled Defamation Suit Ruling. (The link won’t last too much longer). The Japanese version, however, was titled Bengoshi Shikaku wo Henjo Shite ha, which specifically calls on him to relinquish his qualifications.
Of course the Asahi employee who wrote this editorial is unlikely to have first-hand knowledge of the notoriously rigorous qualifications for Japanese lawyers. And no one will be surprised to discover that Mr. Hashimoto and the newspaper come from the opposite sides of the political fence.
Even some in the Japanese media have criticized the Asahi for the juvenile heavy-handedness of their recent op-ed pieces, which have come to resemble gas bubbles from the cloaca of the blogosphere or the straight news reporting of name brand Anglosphere journalism. (Exhibit A: They called former Justice Minister Hatoyama Yukio the “God of Death” for expediting delayed executions.)
Mr. Hashimoto was not pleased. During a speech at a ceremony for the Ground Self-Defense Forces in Itami on Sunday, the governor said:
“They’re just mouthing off. If more adults act like the Asahi Shimbun and do nothing but run people down, then Japan will go to the dogs.”
He wasn’t finished. Here’s what he said at a later event:
“I’m in a position of authority, so I don’t mind strong criticism, but criticism that crosses the line into mockery isn’t criticism at all. I’m completely opposed to mocking criticism.”
When one of the reporters suggested that Mr. Hashimoto was being childish, he replied:
“What of it? Wasn’t the Asahi Shimbun childish too? I don’t know who it was, but they said what they said.”
The governor hasn’t let up. At a press conference during a visit to Tokyo on Monday, he blasted the newspaper again:
“The Asahi Shimbun is a stupid opinion journal. I think they ought to shut down their business right away.”
- Mr. Hashimoto is unlikely to lose votes by backing capital punishment and bashing the self-serving pretzel logic of lawyers, but he might lose votes unless he understands that How is often more important than What.
- Mr. Yoshida and the rest of his sanctimonious gang of parasites will continue to cloak themselves in the ideals of justice to pervert common sense and force their own version of morality on the rest of us. It’s odd how much they resemble politicized Christians in the U.S., politicized Hindus in India, or politicized Moslems throughout the world in that regard. They’ll be supported by other members of the guild regardless of their beliefs, particularly against such apostates as Mr. Hashimoto.
- The defense used by the second team of lawyers at the second Hiroshima trial is so breathtakingly weird that one is forced to wonder whether they employed it because it was more likely to get the Hiroshima court to change its mind and sentence Nanashi Gombei to death, resulting in more publicity.
- Quality journalism will become an increasingly foreign concept at the Asahi, as it already has at many other media outlets in the Western world. They won’t mind; they’re getting as much publicity for their bad behavior as Mr. Hashimoto is getting for his. Besides, now that the media has been thoroughly outed for its obvious biases, it has been liberated from the pretense of impartiality.
- Nanashi Gombei’s execution is now about six years overdue, and each day that passes is another day alive that he no longer deserves. All that can prevent the inevitability of his execution is a change in the ruling party in national government and the possible appointment of a Justice Minister who thinks his opinions are more important than the near-consensus belief of the Japanese public.