Evidence against a death row inmate in Japan is shaky, but retrial is unlikely because it would damage the Japanese criminal justice system’s image of infallibility and provide an opportunity for abolitionists, says Dr Mai Sato in a new piece for The Conversation.

In June 1966, the manager of a miso-producing factory, his wife and two children were murdered in their home. Their house was robbed and set alight. Iwao Hakamada, who was an employee at the miso factory, was tried for the quadruple murder and ultimately found guilty. But you don’t need to be a legal expert to feel uneasy about the safety of his conviction.

After he was arrested, Hakamada was interrogated without a lawyer and tortured for 20 days, for up to 16 hours a day. The prosecution submitted 45 signed documents by Hakamada confessing his crime, but the court admitted only one.

The police claimed that Hakamada was in his pyjamas when he committed the murder, and that the pyjamas were stained with blood that was not his, and with oil used in the arson. But then, 14 months after the crime and nine months after the trial had started, five other items of heavily bloodstained clothing were mysteriously “discovered” in a miso barrel at the factory. (It has since been suggested in court appeals that the clothes might have been planted by the police).

The prosecution duly altered its argument, and claimed that Hakamada wore the newly found clothes when murdering the family and then – for whatever reason – changed into pyjamas to commit the arson. However, the colour of the clothes was too light and the blood stains too dark for them to have been stewing in a miso barrel for 14 months. The clothes were also too small for Hakamada. The prosecution claimed that the clothes shrunk in the miso barrel, and that the tag “B” on the clothes indicated a medium size (which would have fit Hakamada), even though the tag in fact indicated the colour (black) not the size.

Nonetheless, Hakamada was sentenced to death. More than five decades later, he is listed in the Guinness Book of World Records as the longest-serving man on death row. But the possibility he’ll end his life as a convict is not a sure thing.

Shaky ground

In 2007, one of the original trial judges admitted that even at the time, he considered Hakamada’s conviction probably unsafe: “Looking at the evidence, there was almost nothing but the confession, and that has been taken under intense interrogation.” He said that two senior judges pressured him into writing a guilty verdict.

In 2014, Hakamada was released and a retrial was ordered by a lower court – but in June 2018, the Tokyo High Court overturned the decision to grant a retrial. It did not demand Hakamada be brought back into detention, given his age and health concerns; but until his name is cleared, he technically remains on death row. Hakamada’s lawyers are now appealing to the Supreme Court. For the 82-year-old Hakamada to clear his name, the Supreme Court must grant him a new trial and find him not guilty. It took four years for the Tokyo High Court to issue its ruling, and the Supreme Court’s decision could take another couple of years.

The lead attorney in the Hakamada case, Katsuhiko Nishijima, is convinced that the police and the prosecution “hid evidence” and “forged reports” to get a conviction. After the Tokyo High Court’s ruling, Hakamada’s sister, who has campaigned for his innocence, expressed her disappointment: “It’s not just the prosecution, but the courts are also turning a blind eye to the truth.”

The court’s exceptional 2014 decision to release Hakamada when a retrial was ordered and that he remains on release despite the latest judgment amount to a tacit admission that his conviction is less than sound.

So why is the Japanese criminal justice system so reluctant to officially consider the possibility that Hakamada was wrongfully convicted? In short, because of the effect a not guilty verdict could have on the system itself. The Tokyo High Court’s decision to scrap the retrial has to be taken in the context of other events that have nothing to do with this particular case.

Clashing priorities

Earlier this year, I wrote about the possible execution of 13 members of the now-defunct doomsday cult Aum Shinrikyo, sentenced to death for their part in the cult’s infamous 1995 sarin attack on the Tokyo subway. The Japanese Ministry of Justice transferred these convicted cult members to various detention centres where executions can be carried out. It is rumoured that they could be simultaneously executed this summer.

Had the Tokyo High Court upheld the decision to grant Hakamada a retrial, scrutiny of the death penalty’s merits would have ramped up just as the Aum executions are due. The executions are already sensitive thanks to both the next Olympics and the UN’s 14th Congress on Crime Prevention and Criminal Justice. In the run up to these events, the Japanese government is working hard to keep attention away from any matters that would tarnish Japan’s international reputation.

This means the Hakamada’s high court decision relieves pressure on the courts as they try to “finish” the Aum cases by the end of 2018. Until a retrial declares Hakamada’s innocence, the Japanese government can work under the assumption that the current death penalty system is safe. But then again, that doesn’t mean public opinion is set in stone.

Changing times

My own research shows that as things stand, the Japanese public trust the courts. They view the handful of postwar death penalty verdicts that have been overturned as old to the point of irrelevance, with no bearing on the system’s current workings. But if Hakamada were exonerated, that would damage the system’s image of infallibility and provide an unprecedented opening for abolitionists both inside and outside of Japan.

The same effect can be observed elsewhere. In the US, a number of high-profile exonerations have played a part in dramatically shifting attitudes towards capital punishment. According to polling firm Gallup, Americans’ support for the death penalty reached 80% in 1994 but sank to 55% by 2017. Fewer death sentences are being handed down, and more and more states are moving away from capital punishment altogether. In the UK, the fallout from the wrongful execution of Timothy Evans eventually led to the Murder (Abolition of Death Penalty) Act 1965 which abolished the death penalty for capital murder.

For now, Japan is still trying to preserve the legitimacy of the death penalty and the criminal justice system by delaying an unedifying retrial while denying any possibility of error. But in the end, no system is immune to error. And so long as the death penalty remains a lawful punishment, innocent people will be sentenced to death. How we respond to mistakes is another matter.

This post was first published on The Conversation, 26 June 2018. Dr Mai Sato is a Lecturer in the University of Reading School of Law. Her report, ‘The Public Opinion Myth: Why Japan retains the Death Penalty’, and ‘The Wavering Public?’, a documentary she commissioned, have gone a long way to changing Japan’s received notions of the legitimacy of the death penalty. In 2017 she won a University of Reading Research Engagement and Impact Award for her research.