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  • The Govinda (Mainali) miscarriage of justice murder case ruled for retrial after 15 years, so Immigration deports him. But there’s more intrigue.

    Posted by Dr. ARUDOU, Debito on June 13th, 2012

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    Hi Blog. Making headlines this past week has been the Govinda Mainali Murder Case, a cause celebre I’ve known about for years (thanks to a very active domestic support group with regular mailings in Japanese). It’s come to a head, where DNA evidence has finally cast enough doubt on the evidence behind the conviction (see Yomiuri article immediately below), and it’s come to light (see Japan Times editorial below) that the prosecution withheld (or didn’t bother to have tested) vital evidence from the court (yes, they can do that in Japan) that would have exonerated him. It also put him in double jeopardy, meaning trying him more than once for the same crime (technically illegal, but yes, they can do that in Japan), reversing a not-guilty decision in lower court. As if that wasn’t enough, note the date of the Yomiuri article below stating the negative DNA test (July 2011) — meaning it only took Japan’s criminal justice system about a year for him to finally get his retrial, on top of the 15 years he’s been incarcerated. And after all that, now that it looks like Govinda is going to have his name cleared, Immigration is just going to deport him. The police in Japan are sore losers.  (At least Sugaya Toshikazu, in a very similar situation to Govinda, got an apology in 2009 from public prosecutors, not deportation.)

    Now, check out the details in Terrie’s Take below, where the plot really thickens because the murder victim, a prostitute in her off-hours, was an employee with TEPCO (yes, that TEPCO) with names of some high-level clients in her address books…

    As Terrie Lloyd notes below (as have I in the Japan Times), the already prosecutor-heavy criminal justice system in Japan is even more so if the suspect is a NJ.  More and more it looks like Govinda Mainali was actually a patsy for the powerful because he was a convenient foreigner for the Japanese police to pin this on. I’ve already discussed in detail before how Japan’s criminal investigation system is fully stacked against NJ victims (start here with the Scott Kang and Matthew Lacey Cases, then progress to the Suraj Case, where the police have still gotten away with murder). The Govinda Case is yet another case study for everyone to remember for when the NJ are potential perps.  Can’t win either way once the Japanese police get their hands on you. Arudou Debito

    ////////////////////////////////////////
    東電OL事件、再審の可能性…別人DNA検出
    読売新聞 2011年7月21日(木)3時1分配信
    Courtesy of CJ
    http://headlines.yahoo.co.jp/hl?a=20110721-00000090-yom-soci

    東京都渋谷区で1997年に起きた東京電力女性社員殺害事件で、強盗殺人罪により無期懲役が確定したネパール国籍の元飲食店員ゴビンダ・プラサド・マイナリ受刑者(44)が裁判のやり直しを求めた再審請求審で、東京高検が、被害者の体から採取された精液などのDNA鑑定を行った結果、精液は同受刑者以外の男性のもので、そのDNA型が殺害現場に残された体毛と一致したことがわかった。

    「(マイナリ受刑者以外の)第三者が被害者と現場の部屋に入ったとは考えがたい」とした確定判決に誤りがあった可能性を示す新たな事実で、再審開始の公算が出てきた。

    この事件でマイナリ受刑者は捜査段階から一貫して犯行を否認。同受刑者が犯人であることを直接示す証拠はなく、検察側は状況証拠を積み上げて起訴した。

    2000年4月の1審・東京地裁判決は「被害者が第三者と現場にいた可能性も否定できない」として無罪としたが、同年12月の2審・東京高裁判決は逆転有罪とし、最高裁で03年11月に確定した。

    マイナリ受刑者は05年3月、東京高裁に再審を請求した。

    同高裁は今年1月、弁護側からの要請を受け、現場から採取された物証についてDNA鑑定の実施を検討するよう検察側に求めた。これを受け、東京高検が精液などのDNA鑑定を専門家に依頼していた。
    最終更新:7月21日(木)3時1分

    ///////////////////////////////////

    The Japan Times Friday, June 8, 2012
    Mainali granted retrial, is let out of prison
    DNA evidence of another man looks set to clear Nepalese
    By MINORU MATSUTANI, Staff writer
    http://www.japantimes.co.jp/text/nn20120608a1.html

    The Tokyo High Court said Thursday it will retry Govinda Prasad Mainali, 45, a Nepalese man serving life in prison for the 1997 robbery-murder of a 39-year-old woman, because a DNA test in July contradicted the justification for its guilty verdict.

    The high court also said Thursday Mainali’s sentence will be halted. He was later released from a Yokohama prison. He is expected to soon be placed in immigration custody for deportation, as he has been convicted of visa violations.

    “We would like to express respect to the high court’s prompt and appropriate decision even though there was no room for doing otherwise,” Mainali’s attorneys said in a prepared statement.

    “Prosecutors should comply with the decision, for doing so is in compliance with prosecutors’ philosophy: ‘Prosecutors must not regard guilty verdicts as their purpose and heavy punishments as their achievement.’ “

    The Tokyo High Public Prosecutor’s Office immediately filed an objection to the court’s decision, with deputy chief Toshihiko Itami saying the decision was “totally unacceptable.”

    One of his lawyers quoted Mainali as saying, “I am glad I found a judge who believes my innocence and truth.”

    His wife, Radha, 42, expressed her gratitude at a news conference in Tokyo. His daughter, Alisha, 19, said the past 15 years were “very long and dark.” They came to Japan with another of Govinda’s daughters, Mithila, 21.

    The victim, a Tokyo Electric Power Co. employee whose name was withheld and who engaged in prostitution at night, was found dead March 19, 1997, in a vacant apartment in Shibuya Ward, Tokyo. Mainali, who lived nearby, was arrested four days later on suspicion of overstaying his visa. He was later charged with murdering and robbing the woman, after police learned that Mainali was an acquaintance of hers, had a key to the flat and because a used condom found in the toilet at the scene contained semen that matched his DNA.

    The district court acquitted Mainali in April 2000 because prosecutors failed to prove him guilty beyond a reasonable doubt. A urologist also testified that the semen in the condom greatly predated the day of the slaying. The court added there were several unclear points, including two strands of hair found on the victim that came from a third party.

    However, when prosecutors appealed his acquittal, the Tokyo High Court found Mainali guilty in December 2000 and sentenced him to life behind bars even though no new evidence was presented. The high court said “it is difficult to think someone other than” Mainali brought her to the vacant apartment where she was slain and called his testimony unreliable.

    The Supreme Court finalized the sentence three years later.

    Mainali’s coming retrial is based on DNA tests carried out on semen found in and on the victim. It was that of another man and matched the hair fibers.

    Prosecutors often appeal lower court-meted acquittals because they imply the case will be brought before a high or the Supreme Court, and thus do not violate 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.

    Rest at http://www.japantimes.co.jp/text/nn20120608a1.html

    ///////////////////////////////////

    The Japan Times Tuesday, June 12, 2012

    EDITORIAL
    Don’t delay justice any longer
    http://www.japantimes.co.jp/text/ed20120612a1.html

    The Tokyo High Court on June 7 decided to retry a Nepalese man serving a life sentence for the 1997 robbery-murder of a 39-year-old woman in Tokyo on the strength of new evidence and he was released at the court’s order. But the Tokyo High Public Prosecutors Office immediately filed an objection. The prosecutors office should refrain from any further moves to delay the start of the retrial because the high court decision is based on DNA evidence that suggests that the perpetrator was not Mainali.

    A female employee of Tokyo Electric Power Co. was found dead in a vacant apartment in Maruyama-cho, Shibuya Ward, on March 19, 1997. Govinda Prasad Mainali, now 44, living nearby, was arrested four days later based on the fact that he had a key to the apartment and that semen left in a condom found in the apartment’ toilet matched his DNA. Mainali has consistently denied the charges.

    The Tokyo District Court in April 2000 found him innocent. It said that it was not clear whether the condom was used at the time the crime was committed and that two strands of hair found on the victim came from a third party. But the Tokyo High Court in December the same year found him guilty primarily on the grounds that a notebook owned by the woman, who meticulously kept records on men she had sexual intercourse with, contained no reference to the condom in question.

    Semen was also found inside the woman’s body. Its blood type matched that of another man, but the prosecution did not carry out a DNA test on the grounds that the amount was so small, and given the technological limits at the time, a DNA test was impossible.

    In hearings to request a retrial for Mainali, his defense counsel called for a DNA test on the semen. A DNA test in July 2011 found that it did not match Mainali’s DNA, but that it did match the DNA of a strand of hair left on the carpet at the scene and a blood stain on the victim’s coat. These findings suggest that a different man was in the apartment when the crime was committed. The high court said that the findings constitute enough new evidence for a court to overturn the original guilty ruling against Mainali and render a not-guilty ruling.

    Long after Mainali was found guilty, it was revealed that the prosecution had withheld critical evidence concerning the semen, the bloodstain and saliva found on the victim’s breast. A law should be enacted that requires the prosecution to reveal all its evidence to the court and the defense lawyers, and to punish all public prosecutors who do not comply. A system also should be devised to preserve evidence indefinitely for future testing if needed.

    ENDS

    ///////////////////////////////////

    Order issued to deport Nepalese man granted retrial over 1997 Tokyo murder
    TOKYO, June 11, 2012 Kyodo, courtesy of JK
    Order issued to deport Nepalese man granted retrial over 1997 Tokyo murder
    http://english.kyodonews.jp/news/2012/06/163137.html

    Immigration authorities on Monday issued an order to deport a Nepalese man who has been granted a retrial after the Tokyo High Court decided last Thursday to reopen the case of the murder of a Japanese woman in Tokyo in 1997.

    Godinda Prasad Mainali, 45, who arrived in Japan in 1994, was convicted of overstaying his visa in 1997. Ongoing deliberations for a retrial will continue even with his absence from Japan.

    On the order issued by the Tokyo Regional Immigration Bureau, Mainali is expected ot soon leave Japan along with his wife Radha, 42, and their two daughters Mithila, 20, and Alisha, 18, who came to Japan from Nepal last week.

    ///////////////////////////////////

    Mainali to be deported soon

    NHK World June 12, 2012, courtesy of JK

    http://www3.nhk.or.jp/daily/english/20120611_24.html

    A Nepalese man who was granted a retrial in the murder of a Japanese woman 15 years ago will leave for home soon.

    Japan’s Immigration Bureau issued a deportation order for Govinda Prasad Mainali on Monday.

    Mainali was released from prison and sent to an immigration facility in Yokohama after a Tokyo court granted his retrial. He had been serving a life sentence for the 1997 murder that took place in the capital.

    Sources say Mainali wants to return to Nepal at his expense together with his wife and 2 daughters. The three came to Japan last week.

    The Immigration Bureau plans to deport Mainali as soon as he is issued a passport by the Nepalese Embassy and his plane tickets are ready.

    ///////////////////////////////////

    Nepalese Man Granted Retrial Ordered to Leave Japan

    http://jen.jiji.com/jc/eng?g=eco&k=2012061100400

    Tokyo, June 11 2012 (Jiji Press)–The Tokyo Regional Immigration Bureau’s Yokohama branch issued a deportation order Monday to a Nepalese man who was granted a retrial and released Thursday after being jailed for the murder of a Japanese woman in 1997.
    Govinda Prasad Mainali, 45, has been in custody at the immigration office as his prison sentence for the killing of the Tokyo Electric Power Co. <9501> employee was halted. [sic]
    Mainali is expected to return to Nepal on Tuesday at the earliest.
    The office decided to deport Mainali, convicted of violating the immigration control law, as he wished to return home in an interview, officials said.
    He is to return to Nepal after the Nepalese embassy in Tokyo issues a passport which he has sought.
    (2012/06/11-13:40)

    =========================

    Japan Times Monday, June 11, 2012
    http://www.japantimes.co.jp/text/nn20120611a3.html

    Mainali faces difficult readjustment after 15 years in prison
    Kyodo
    KATHMANDU — The elder brother of a Nepalese man granted a retrial in Japan after serving 15 years in prison for the 1997 murder of a Japanese woman expects his sibling’s rehabilitation to be a challenge.

    Indra Mainali, 54, who is waiting for Govinda Prasad Mainali’s return to Nepal, said while the Tokyo High Court’s decision on Thursday to grant a retrial has ended a chapter in Govinda’s suffering, another chapter of less tangible suffering is about to begin.

    Govinda’s daughters felt during conversations with their father last week that 15 years of imprisonment have inflicted heavy psychological and emotional damage on their father, Indra said.

    Mithila, 20, and Alisha, 18, met their father twice last week, the first time in prison and the second time at the Tokyo Regional Immigration Bureau’s Yokohama office, where he is currently in custody awaiting deportation. Including these meetings, the daughters have met their father only three times over the past 15 years.

    After his long imprisonment, Govinda, 45, seemed very worried about how he will adjust to his family and social life, said Indra, who took over responsibility of Govinda’s family after his arrest and conviction in Japan.

    Indra said his brother had not expected that he would leave prison the day he was granted a retrial.

    According to Indra, prison security personnel suddenly told Mainali late afternoon on Thursday to pack his things and get ready.

    They did not allow him time to say goodbye to other inmates.

    They did not tell him that he was being released. Later, a police officer arrived at the prison and drove him to the immigration office.

    “We expect in him a number of psychological (problems) and problems related to his rehabilitation in family and society…We will just try our best to bring him back to normalcy,” Indra said.
    Rest at http://www.japantimes.co.jp/text/nn20120611a3.html

    =========================

    TERRIE’S TAKE

    TT-665 — Govinda Mainali – Justice 15 Years Too Late, ebiz news from Japan
    http://www.japaninc.com/tt665_Govinda_Mainali–justice_15_years_too_late

    Last week something happened that we never expected to see:
    the release of Govinda Prasad Mainali, a Nepalese who has
    been in prison on and off since 1997. Mainali was released
    to Immigration authorities, who are going to deport him for
    overstaying his visa back in 1997, because the Tokyo High
    Court finally agreed to a retrial of Mainali after new DNA
    evidence.

    Japan has an extremely high conviction rate for many
    reasons, including some not to be proud of. One of these is
    the willingness of the courts to hear prosecution testimony
    with greater belief than anything the defense may say.
    Particularly problematic is the acceptance of “induced”
    confessions as if they were fact, even if the other
    evidence is not sufficiently supported by actual facts.

    Further, the conviction rate of foreigner suspects (you
    definitely don’t want to be one) is a foregone conclusion,
    with seemingly little or no interest by the courts about
    who actually committed the crime when a foreigner is offered
    up as the perp. There are a number of recorded cases where
    the courts have actually SAID there has been insufficient
    evidence for an ordinary conviction, but none-the-less
    have convicted the defendant anyway, simply because the
    prosecutors said they did it.

    Unfortunately the Japanese police, immigration, and
    prosecutors have the ability to “disappear” suspects for
    days or even months while they mercilessly interrogate them
    so as to extract a confession. This is not just a foreigner
    thing. The abuse of this system became so bad that several
    years ago new laws were pushed through that now require
    prosecutors to record their interrogation interviews.
    However, this doesn’t force them to treat the suspect
    humanely and there are still lots of ways for them to
    induce a confession outside of the actual interrogation.
    And, well, the recorder could always just run out of
    batteries…

    The case of Govinda Mainali is particularly distressing,
    and reminds all foreigners that through seemingly innocent
    circumstances we could just as easily be caught up in a
    similar situation. Reading about his case makes you feel
    like we’re living in an emerging economy in the Middle East
    rather than a first-world country like Japan. In
    particular, we feel that his is a case where his race and
    foreignness played a large part in how he was treated. At
    the same time we concede that Japan does not have a
    monopoly on unfair treatment by the courts. There are
    plenty of examples in the UK and USA to compare.

    The background to his case is that he was a restaurant
    worker in Shibuya and who shared an apartment with four
    others. Unfortunately for him, he started seeing a local
    hooker, Yasuko Watanabe, and struck up a relationship with
    her. By all accounts they didn’t see each other often, but
    at some point he helped her get access to a vacant
    apartment near his, and she used to take her customers
    there — four men a night, virtually every night. What is
    weird is that she was leading a double life and by day was
    a highly paid researcher for Tokyo Electric Power Co.
    (TEPCO). When she was found murdered in the vacant
    apartment, Mainali became the prime suspect by virtue of
    the fact that he had a key to the apartment and that his
    name was in her diary.

    The problem for Mainali is that he lied initially, saying
    he didn’t know her, which of course made the police
    suspicious. At some point he changed his story and agreed
    that he’d slept with her, but the damage was done. The fact
    that he lied wasn’t surprising, considering he was an
    overstayer and was no doubt fearful of what might happen to
    him, but once he started down that slippery slope, the
    prosecutors pieced together all the circumstantial evidence
    and decided they had their man.

    Mainali had good lawyers, however, who decided there was
    an injustice being done and made a crusade out of getting him
    freed. In 2000 his case was thrown out by the Tokyo
    District Court for lack of evidence. At that point, if he
    was a Japanese he would have been let go, but because the
    outstanding deportation order, the Prosecutor’s office
    successfully had him kept in jail while they appealed to a
    higher court. With the second trial he was found guilty and
    sentenced. A subsequent Supreme Court appeal also failed.

    It was only after 15 long years of appeals by Mainali’s
    lawyer and a change of judge, that the prosecutor’s office
    was forced to admit they had untested sperm samples in
    a freezer. Just recently they reluctantly and finally
    tested the DNA from the victim and they found — guess what
    — the DNA wasn’t his.

    What is interesting is that Yasuko Watanabe kept meticulous
    records of her customers, and on that list was one of her
    bosses at TEPCO, where she worked. Who else was she seeing?
    Was Mainali a fall-guy for something deeper and darker?
    There are various Japanese websites that speculate that
    Watanabe in her day job, having written a number of damning
    internal reports about nuclear power risks at TEPCO,
    coupled with an affair with one of her bosses (possibly the
    current Chairman of the company), meant that she was
    silenced by the Yakuza on the behalf of “someone”.

    Another key point, and the reason for Mainali’s release was
    the fact that the Prosecutor’s office seemingly never
    revealed to several appeal courts (the High Court and the
    Supreme Court) that they didn’t do a DNA test on sperm
    inside the victim’s body. Given how crucial it was to the
    case, how is that even possible?

    Anyway, Mainali is now going to be deported. No word yet on
    whether he is going to be allowed back to represent himself
    at the re-trial, and certainly if we were him, we wouldn’t
    be planning to come back to Japan, ever. However, at that
    hearing, if he is found not guilty through lack of
    evidence, as he was back in 2000, then there is the small
    issue of compensation. If he was in some other countries,
    he might be able to claim hundreds of thousands of dollars
    in mental anguish, physical hardship, and lost earnings.

    But this is Japan, and in one case a South American woman
    who was arrested by the Chiba Prefectural Police was
    illegally confined at a hotel for 10 days until they got an
    arrest warrant (god knows what actually went on at the
    hotel). She was awarded JPY2m in compensation for wrongful
    detention. It didn’t do her much good, though, as the court
    still imprisoned her on her hotel confession even though
    she retracted it once they properly charged her. She got 8
    years and has no doubt been deported by now…

    We wish Mainali the best of luck with the rest of his life,
    and hope that his case knocks some sense into the Japanese
    courts and the Prosecutor’s Office, since it’s apparent
    that they were highly embarrassed by the turn of events.
    But the fact is that a foreigner falling afoul of the
    Japanese legal system doesn’t have a hope in hell of
    getting a fair trial. In our opinion, the first step in
    getting Japan to address the obvious inequalities towards
    foreigners in the legal system is to pass a law making
    prosecutors who hide/withhold evidence open to legal
    charges themselves.

    Secondly, racial discrimination against non-Japanese should
    be illegal, especially by law enforcement bodies. According
    to a book from Mainali’s supporters, in 1997, 76.1% of
    Japanese suspects were held in custody, whereas for
    foreigners the number was 99%. Apart from being a overdue
    concession to human rights, equal treatment would also give
    overstayers a foothold to appeal on the grounds that they
    should get the same level of legal consideration that any
    Japanese would expect.

    Thirdly, Japan also needs to recant the death penalty.
    We’re not sure why Mainali wasn’t put on the death row, but
    he did get the second most harsh sentence — that of
    indefinite life imprisonment. If he had been on death row,
    it’s possible that after the 2003 Supreme Court appeal
    failed, that he would have been hanged. Too late, then, for
    apologies later.

    Lastly, it is also obvious that Japan needs stricter
    suspect detention rights rules, such as giving prisoners
    access to legal advice and protection from abusive law
    authorities, and habeus corpus procedures that require the
    police and immigration to prove that they actually have
    legal right to hold someone. These are obvious and simple
    rights that most first-world citizens and residents take
    for granted. Many people would be shocked if they knew just
    how primitive the system is in Japan, and how easy it is
    for foreigners in particular to fall into the legal
    system’s maw.

    References:

    * Background to the case — http://bit.ly/KbSqwv
    * Defense group’s indictment of the pathetic decision made
    by the Supreme Court in the face of fresh evidence –
    http://bit.ly/Kcb2wj
    * Wikipedia account by Japanese — http://bit.ly/MwCPDe

    ENDS

    35 Responses to “The Govinda (Mainali) miscarriage of justice murder case ruled for retrial after 15 years, so Immigration deports him. But there’s more intrigue.”

    1. Johnny Says:

      They were always going to do this to the guy. Disgraceful, but hardly surprising.

    2. Aladair Says:

      The Japanese ‘justice’ system is reprehensible and frightening, particularly for foreigners it would seem.

      Destroy a man’s life, then, rather than admit a miscarriage of justice, ship him off for overstaying his visa…while he was in prison!! Horrible beyond words.

      I hope this man lives the rest of his life in peace.

    3. Charuzu Says:

      Did this truly occur: “deputy chief Toshihiko Itami saying the decision was “totally unacceptable.””

      If it is true that a prosecutor stated that a judicial decision is unacceptable — meaning that the prosecution will not accept the decision — it is ominous for the rule of law in J.

      If prosecutors are not bound by judicial decisions, then the J slide towards authoritarian statism is even more advanced.

      – As I said, sore losers. They’re THAT used to getting their way. And they do, 99% of the time.

    4. AJ Says:

      Let this be a lesson to us all about how unscrupulous the Japanese can be when you couple their poor sense of social science, foolish level of trust in authority, and shoganai attitude amplified by a lack of empathy for outsiders. It’s a perfect storm.

    5. trustbutverify Says:

      Mainali was actually a visa violator before he was arrested for this crime, although I believe (don’t have a citation) other acquitted people have been violated for overstaying despite being a legal resident at the time of conviction (or even if not convicted but their visa expired while in detention).

      While Double Jeopardy is anti-constitutional in Japan, the “legal definition” is constructed such that the only acquittal that counts, from a DJ perspective, is the final Supreme Court decision (http://en.wikipedia.org/wiki/Double_jeopardy#Japan).

      It is astounding and frightening how the power in the legal system is so severely biased toward the prosecution, to the extent that evidence proving innocence can be withheld from the defence in order to secure a conviction.

      It is also interesting to me that Mainali’s sentence has been suspended and his is “going home” (being deported) before the retrial. I cannot imagine that he is expected to return to Japan for retrial, suggesting that the acquittal is inevitable. I would suggest that this is an exercise in damage limitation and to avoid the glaring issues in the system being examined. With Mainali out of detention (and out of the country) there is no external pressure to accelerate the retrial process. They can take their time. Because he has “gone home,” it may be thought that when (if?) the retrial occurs, it can be a quiet affair, and the outcome will have much less scrutiny because Mainali is already a free man. The waves and impact of the eventual acquittal will be much less impactful to the current state of the legal system than if Mainali was still in detention with domestic and international media waiting for his release. Mainali is hardly likely to ressurect these demons and make a fuss.

      The whole thing can quietly fade away.

      So less scrutiny of the failings and faults of the legal process, less scrutiny of those others who are part of this affair and have managed to keep their names clean, and no search for the real murderer?

    6. Mark in Yayoi Says:

      Destroy a man’s life, then, rather than admit a miscarriage of justice, ship him off for overstaying his visa…while he was in prison!!

      Aladair, a minor correction is in order: in Mr. Mainali’s particular case, he had been overstaying his visa when he was arrested. But your point still holds in general. (A brief GOogle search brings up anecdotal evidence here.)

      – Either way, if an NJ is in prison (even if his visa was valid when he started his sentence), he can’t renew (since he can’t drop by an Immigration office — he’s incarcerated!). Then if the visa expires during his sentence, he’s summarily deported as an overstayer upon release. That’s standard operating procedure towards NJ (and only NJ, of course, since they unlike citizens have visa issues) in the Japanese criminal justice system.

      If you really want to see how unbalanced the scales of justice are for NJ, remember that EVEN IF ACQUITTED of a criminal act in court, the NJ (and only the NJ; citizens are granted bail, sometimes even if NOT acquitted) is still incarcerated during the appeal process — which is almost always done because the prosecution in Japan is so cocksure and such a sore loser. It’s long been called “Hostage Justice“, and it’s perhaps the most rotten thing I can think of in Japanese society. And Govinda got caught in it for fifteen years.

    7. Loverilakkuma Says:

      @trustbutverify, #5

      “overstaying despite being a legal resident…”

      This is where the trick lies. There’s no point in arguing about expiration date if you are considered legal “resident” or jyumin, in comparison to “alien” or ”tourist” whose duration of stay is limited based on classification of her/his visa documentation. As for his case, he could be held responsible for the consequence of overstaying. But, I remain skeptical of J-immigration bureau’s approach to those whose visa are about to expire. Regarding the tone of media stigma on those who overstayed in Japan, I really wonder if the immigration bureau does their job correctly, such as, giving adequate information regarding immigration record, including the notification of expiration date well ahead of time. Remember, Japanese language is pretty challenging for many of those who live in Japan for a limited period.

      – I think that Immigration actually has a “trip up with a ticking clock” mentality. In that they go out of their way to reset the “visa clock” taking any opportunity they can. Case in point, a friend told me on a separate list:

      ====================
      Friend: “I had a permanent resident visa…that took me 12 years to get. They took it away in 5 minutes.

      “I was living in [a Third-World country], my [Japanese] husband was kidnapped (he got away), and we had to return to Japan sooner than we’d planned. Well, I got on the plane and realized halfway there that my re-entry permit had expired 2 weeks prior. Being an honest person (and assuming it would be a matter of writing a letter of apology and standing in a bunch of lines), I said, “I’m sorry, my re-entry permit expired”. They pulled me out of line, took me to a windowless room where a British guy was chained to a bench, left me there. Then came back and handed me my passport. My permanent resident visa was stamped “VOID”. They never even asked me any questions!!

      “I’d never even had a parking ticket in Japan, was a responsible college professor, etc., etc. My husband’s family couldn’t do anything. I was told that I could start over again with a spouse visa: 6 months, 6 months, 6 months; 1 year, 1 year, 1 year; 3 years, 3 years, 3 years…and then try for the permanent resident visa again. But by that point I had lost any desire to live in Japan at all, much less permanently. So when I need to go to Japan for conferences or to visit in-laws, I have a tourist visa.”
      ====================

      Debito again: So when you have such “genten shugi” involved here, it’s not a matter of Japanese language challenge. It’s a matter of bureaucratic attitude. This is less connected with Govinda’s case, but in general, a simple month-before postcard reminder to the current address they have on file (the GOJ does that for expiring driver licenses) saying “your visa is about to expire” would be nice. Not gonna happen. So would Immigration issuing some kind of proof saying “your visa is currently being renewed” for people who do follow the rules and get their stuff in on time just in case the cops stop you for an instant Gaijin Card Check. Not gonna happen either. Because Immigration is not nice. They see themselves as the guardians at the gate, looking for any excuse to boot NJ out.

    8. John (Yokohama) Says:

      Posted today.

      http://www.japantoday.com/category/kuchikomi/view/prosecutors-in-nepalis-case-are-sore-losers

      “Prosecutors in Nepali’s case are ‘sore losers’
      KUCHIKOMI JUN. 14, 2012 – 07:31AM JST

      TOKYO —
      “Prosecutors,” observes the daily Nikkan Gendai (June 9), “are bad losers.”

      Fifteen years behind bars is a brutal price to pay for overstaying your visa. Govinda Prasad Mainali of Nepal did that. He entered Japan in 1994 on a three-month tourist visa, found work at a Tokyo Indian restaurant, and was still there in March 1997, when a 39-year-old prostitute was murdered nearby. Mainali, one of her customers, was arrested, first for overstaying, then as a murder suspect.

      When the story first broke it was the victim who captured most of the attention. Her “double life” was fascinating – prostitute by night, by day an economist with Tokyo Electric Power Company. Here was a mystery indeed. What had driven her to the streets? Mainali’s arrest and trial were a sideshow in comparison.

      That changed when he was found innocent. Tokyo District Court Judge Toshikazu Obuchi in April 2000 found the evidence against him thin and circumstantial. Prosecutors promptly appealed – a move that, together with a notorious 99% conviction rate, reinforced a widespread notion that Japan’s court system is heavily weighted in the prosecution’s favor. In December 2000 the Tokyo High Court found Mainali guilty. In October 2003 the Supreme Court upheld that verdict.

      Last July fresh DNA evidence linked semen and body hair found at the scene to a man other than Mainali. Eleven months later – on June 7 – the Tokyo High Court granted a retrial, Judge Masayoshi Ogawa declaring, “The [DNA] test results make it an undeniable possibility that another man could have murdered the victim.”

      Fifteen years after his arrest, Mainali is at last free. Deportation to Nepal is pending. But prosecutors, says Nikkan Gendai, refuse to admit defeat. They promptly filed a motion to have the retrial decision reconsidered. “Saving face,” declares the daily, “is more important to the prosecution than human rights.” A final decision could take another year. Mainali will be out of jail and out of the country, but if closure is what he hopes for, his time for that is not yet.

      Mainali’s case presents an additional motive for the prosecution, tenacious at the best of times, to dig in its heels. Mainali being foreign, his case is in the international spotlight. Nikkan Gendai quotes an unnamed prosecutor as saying, “A not guilty verdict could have international repercussions.” He presumably means it would discredit Japan’s justice system. But a guilty verdict would be no less discrediting, because few observers would believe it.”

    9. John (Yokohama) Says:

      Posted today.

      http://www.japantimes.co.jp/text/nn20120614a2.html

      “ANALYSIS
      Mainali case exposes flaws, bias in judicial system
      Prosecutors withheld evidence, detained Nepalese after acquittal

      By MINORU MATSUTANI
      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.

      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.”

    10. John (Yokohama) Says:

      Posted today.

      http://www.yomiuri.co.jp/dy/national/T120613005605.htm

      “THE MAINALI CASE — A matter of evidence / Investigators decided guilt prematurely
      The Yomiuri Shimbun

      Fifteen years have passed since a female employee of Tokyo Electric Power Co. was found murdered in a Tokyo apartment. Newly obtained DNA test results recently prompted the court to grant a retrial and release the Nepalese man who had been convicted of the killing.

      The following is the second installment of a series focusing on the lessons police and prosecutors should draw from this case in future criminal investigations and trials.

      Two days after a woman was found dead in an apartment on March 19, 1997, Tomihiko Hirata, then chief of the Metropolitan Police Department’s first investigative division, wrote in his diary, “A Nepalese man who lives in a neighboring building should be found guilty with the circumstantial evidence we have collected.”

      The Nepalese man, Govinda Prasad Mainali, had no alibi and had entered the apartment where the body was found in Shibuya Ward, Tokyo.

      On March 23, the MPD arrested Mainali on suspicion of violating the Immigration Control and Refugee Recognition Law by overstaying his visa.

      Investigators from the Shibuya Police Station became excited when they heard that Mainali had “grinned” during questioning. “We thought he had unconsciously allowed himself to relax when he learned he wasn’t being arrested on a murder charge,” one of the investigators said. “We believed we had the killer.”

      Although Mainali, now 45, insisted he had never met the woman, an employee of Tokyo Electric Power Co., the MPD’s institute of scientific investigation reported that Mainali’s DNA had been detected in semen from a condom found in a toilet at the crime scene.

      Hirata, now 69, said when he heard about the DNA findings it only deepened his belief that Mainali was lying.

      Since the investigation had obtained DNA evidence pointing to Mainali as the perpetrator, examination of other pieces of material evidence was deemed unnecessary.

      These included semen found in the woman’s body, semen that was later confirmed to belong to someone other than Mainali. A blood test showed that this person had type O blood–Mainali has type B.

      This was a vital piece of evidence that indicated the last person the murdered woman encountered was not Mainali but a third person, now referred to as “X.” For 15 years after the crime, no DNA analysis on the semen sample was conducted.

      According to investigative sources, a male acquaintance of the victim who she met on the night of the murder was blood type O. The police therefore decided that the blood probably belonged to this man.

      Because a saliva sample from the surface of the woman’s body also came back type O, the police decided against conducting a DNA analysis.

      Many other pieces of material evidence were only tested for blood type.

      One of the investigators at the time said, “We were working with limited time and money, so we had to narrow down the samples to be sent for DNA analysis.”

      A DNA analysis that takes less than a day now took at least a week back then, and some tests cost hundreds of thousands of yen.

      Yet, type B blood was also detected from blood on a handle of the victim’s shoulder bag. The handle had been torn from the bag, apparently when she struggled with the perpetrator.

      The investigative headquarters asked Ikuo Ishiyama, professor emeritus of Teikyo University, to conduct a DNA analysis on the blood sample. They believed that detecting Mainali’s DNA in the sample would prove his guilt beyond a shadow of a doubt. Prof. Ishiyama told the police the analysis would take two months.

      However, Mainali was still under arrest on the visa violation charge, and could possibly be deported if he was found guilty.

      Hirata instructed his team to proceed with the investigation without relying on the DNA analysis at a meeting of the officers working on the case.

      On May 20, Mainali was found guilty of the immigration violation and was immediately served a fresh arrest warrant on suspicion of murder-robbery.

      DNA tests on a substance found on the bag handle, which would have been decisive, found only the victim’s DNA.

      Shigemi Oshida, professor emeritus at Nihon University, said, “I assume the investigators had preconceptions and worries about the case, which probably dulled their analysis of the facts.”

      Oshida conducted the DNA testing in the Ashikaga case, in which fresh DNA evidence led to a retrial in a murder that took place more than 20 years ago.

      The June 7 decision granting Mainali a retrial stated that the new DNA analysis opened up the possibility that X could be the perpetrator.

      The decision said, “If this evidence had been presented in the previous high court trial, it could be assumed that the judges would not have found the defendant guilty.”

      In the Ashikaga case, the original DNA analysis performed in 1991 was faulty, but technology introduced in 1996 improved the accuracy of DNA testing.

      “Even the technology back [in 1997] could have produced similar DNA results to those obtained during the appeal for a retrial [this year],” Oshida said.

      Thus the police’s decision to narrowly focus on evidence that supported their theory of Mainali as the killer proved fateful.

      After hearing a retrial had been granted, Hirata said bitterly: “I can’t believe so much new evidence has appeared. I’ve always believed we should have conducted our investigation as best we could.”

      (Jun. 14, 2012)”

    11. dude Says:

      This case has made me very sad. I am sad that Japan, the Japanese people, and their government really care so little about Justice, the rule of law… they really have no compassion.

      As he has not been found innocent, there will be no compensation from the GOJ – they are not admitting any wrongdoing. He is supposedly expected to appear for retrial, but if he does not show, the trial cannot proceed, he will be presumed guilty, thus no monetary compensation. If he does appear, they can extend indefinitely, and that is only if he is allowed back into the country – he is being deported for a visa violation, after all. Either way, the Mandarins have ‘fixed’ the outcome, and no one can challenge them publicly.

      It is very disturbing to see (what I thought was) a great nation act in this way. I will have to stop buying all products (big and small) made in Japan. Maybe they will notice, but surely they will spin it in their favor.

    12. Jim Di Griz Says:

      To be honest, I am starting to think that the whole prosecution and conviction of Govinda was intentionally planned in order to distract from the real issue here, which is the victims connection to TEPCO, and the names in her client list. The fact that this issue is not being seen as important to the case is mind-boggling, but understandable in the J-media’s and J-police’s to-and-fro about the acquittal.
      The J-media should be asking;
      ‘Who killed her?’
      ‘What was the motivation?’

      It looked like a simple rape/murder case, then luckily (for whoever planned the crime), poor Govinda gets involved. Now he’s deported, and the J-police stand by his original conviction. Handy that, isn’t it? Killer and motive will never be known because J-police aren’t looking, and J-media aren’t asking.

      The mere mention of TEPCO after 3/11 should send the J-media into a feeding frenzy, but alas, they are too busy navel-gazing.

    13. Andrew in Saitama Says:

      And Govinda was found guilty because it seems the semen found on the body was fron an O-type blood individual, just like Govinda… or approximately 30% of the Japanese population…

    14. Loverilakkuma Says:

      @Jim Di Griz, #12

      I don’t have much expectation on J-media regarding their quality of investigative report. Their unspoken ties with powers-that-be in mega corporations, business associations and national authorities undermines their professional journalism that has led to the curtailment of journalists’ free speech—or the right to report what they eaxctly see in the scene. That’s why so many young, talented Japanese reporters leave J-media and become freelance reporters. Don’t expect them to spearhead the issues that will challenge the cultural foundation of nation or national politics, like the New York Times did in the 60s (i.e., New York Times Co. v. Sullivan, 376 U.S. 254 (1964) [ http://en.wikipedia.org/wiki/New_York_Times_Co._v._Sullivan. They are, after all, oily conglomerates that serve for team-J’s missions to disseminate a mundane discourse of cultural relativism.

    15. Colin Says:

      There`s no outcry by the masses so things will never change. This is the saddest thing about injustices.

    16. pondscum Says:

      http://www.youtube.com/watch?v=6wXkI4t7nuc

      This video is about why you should never talk to Police in the US. Does any of this apply here in Japan, too?

    17. Mark in Yayoi Says:

      @Debito #6 – Thanks for linking to the innocent Swiss woman’s case; that’s the one I’d been trying to find, and I couldn’t remember what her nationality was.

      I wonder if a really gutsy lawyer could petition for immediate permanent residency permission for Mr. Mainali. After all, he has lived the last 15 consecutive years in Japan without committing any crimes.

      – Gutsy indeed.

    18. Loverilakkuma Says:

      @Andrew in Saitama, #13

      Regarding visa violation, Govinda would likely be found guilty of his conduct. If Japan Today’s article above is correct, his offence can be more serious than mere overstaying. He came to Japan as a 90-day tourist visa and got a job without following a proper documentation to change his status. I have to say that’s a red flag. You can’t get a full-time job unless the visa doesn’t grant you work permission.(Correct me if I’m wrong on tourist visa.)

      Still, the J-legal authorities could have done far better to treat this man for his offense. Maximum 24 hour interrogation and documentation sign-up for deportation (with up to 10 or 15 year ban on re-entry to Japan) was enough as the punishment. Problem solved. That’s the best way for the prosecutors to save their ‘faces.’

      @Pondscum, #16

      Very likely if they see foreign-looking persons at Koban or police depots. On appearance, Japanese police officers may not seem to be militant as the American cops and sheriffs, but it totally depends on the case and the situation. They will stop NJ at anytime, anywhere they want for ID checking, while American cops usually ask people ID regardless of citizens or non-citizens if there’s a terror threat or crime suspect on the run.

      Here’s an example:

      http://www.youtube.com/watch?v=zdNO10dNqKA&feature=related

      – Re Paragraph 1: You are correct. Tourists cannot by SOR definition work.

      Re Paragraph 2: That’s our case. He could have been merely deported, but instead he became a convenient patsy. For whom, remains the question.

    19. debito Says:

      – Debito here. Terrie’s Take 665b offers the following corrections:

      +++ CORRECTIONS/FEEDBACK

      In this section we run comments and corrections submitted
      by readers. We encourage you to spot our mistakes and
      amplify our points, by email, to editors@terrie.com.

      => Last week in TT665, we covered the case of Govind
      Mainali, who was released from prison after years behind
      bars for what appears to be wrongful conviction. We
      mentioned in passing about Mainali’s ability to claim
      compensation and how a South American woman had
      successfully done just this, even though she was still
      convicted. As it turns out, she wasn’t from South America
      (we made a wrong assumption after reading her name) and a
      reader that probably many people know, kindly wrote in to
      give us more information about her case. Thanks Charles.

      => Our reader comments:

      Great piece. I have been following this case for many
      years. However, one correction: the woman you are
      referring to is Rosal Manalili Villanueva (Filipina) who
      was detained on November 8, 1997 after discovering her
      boyfriend’s body in their apartment. She was illegally
      detained for 10 days. She was convicted in September 1999
      and given 8 years. She finally was released and deported
      January 8, 2007. He daughter, who was three at the time
      of the murder, last saw Rosal on November 7, 1997.

      There are many sordid details about this case. I know this
      because I met Rosal on November 18, 1999 while she being
      detained in Chiba appealing her conviction. I became her
      advocate and traveled back to Manila with her on January
      8, 2007. Her case appeared twice on nationally TV (Torigoe
      covered her). While being detained she became fluent in
      Japanese (writing as well as spoken) was by all standards
      an exemplary prisoner (no infractions, fluency in Japanese
      that included use of keigo, and always cheerful), but was
      not released early because she refused to accept
      responsibility for the death of her boyfriend. Most
      prisoners are released after 60% of their sentence. She
      held for nine years and two months on an 8-year sentence.

      Our support group often met with Mainali’s support group to
      share information appeal strategies. You are right in
      saying his indefinite sentence was probably more cruel.
      What you did not clearly mention was in 1999 he was only
      one of 51 not-guilty verdicts out of +2000 trials. Even
      though 90% of convictions involve a confession, he had
      refused to confess. Yet, within six months he was found
      guilty at the District High Court because, as one judge
      said, “I looked into his eyes and could see he was
      guilty.”

      One thing to tell your readers, If you have not committed
      the crime, NEVER NEVER NEVER confess.

      Probably more information than you wanted, but just wanted
      to give her Rosal her due. She was an incredible woman with
      an incredible story. And yet, during her time of detention
      you could not find someone more upbeat, positive and not
      bitter given what she had been through.

      Sincerely,

      Charles E. McJilton
      CEO / Executive Director
      Second Harvest Japan
      http://www.2hj.org

      *** We respond:

      Charles, thanks for this insight and the accompanying
      documentation. From those notes we see that Rosal’s illegal
      hotel detention happened in evenings in between day-long
      interrogations, and that she was guarded by female staff
      from the Chiba Police.

      ENDS

    20. Charuzu Says:

      While the point made — “If you have not committed
      the crime, NEVER NEVER NEVER confess.” — is of course universally true, it is rather unrealistic.

      J police use rather severe forms of psychological manipulation and can hold people for long periods that result in the psychological disorientation of the people.

      As such, innocent people can be coerced or tricked into confessions of crimes.

      See, for example: http://www.psychologicalscience.org/index.php/news/releases/false-confessions-may-lead-to-more-errors-in-evidence-a-study-shows.html

      It would be better of J police could be reoriented into an understanding that their duty is to solve crimes, and NOT to obtain confessions.

      Given the J legal system that is heavily weighted in their favour, it is far too easy for the police to obtain confessions, rather than the harder task of solving the crime.

      The current system encourages J police laziness, and also favours smart criminals who, once the wrong person is convicted, know that they have effectively been exonerated.
      As such, the legal system needs to be changed to not so favour police misconduct.

      – The NPA would probably counterargue that obtaining confessions IS solving crimes.

    21. Nick Says:

      I am overjoyed to see Govinda Mainali home in Nepal.

      Last night I listened to Ikegami Akira’s explanation of the far-from-stellar performance of the Japanese Police with regard to Aum Shinri Kyo. The police consistently gave Asahara’s outfit the “benefit of the doubt” and were “oh so careful” not to infringe on the precious rights of this murderous cult.

      I was irritated to hear Ikegami continue to give the police the benefit of the doubt despite a several-year-long trail of criminal evidence that they failed to act upon.

      If so much importance is placed on giving people the benefit of the doubt, how is it that Govinda Mainali ended up rotting in prison for a good portion of his life?

      – Because he’s a foreigner. Plus this time this foreigner was a convenient patsy. It really is that simple.

    22. JS Says:

      I found the following news story from the Daily Yomiuri Online to be quite interesting. Do they mean the Japanese prison authorities did not keep impeccable and detailed records of their physical abuse of Mainali? How unusual!

      Link: http://www.yomiuri.co.jp/dy/national/T120619004152.htm

       Govt denies Mainali was abused in prison
      Jiji Press

      Justice Minister Makoto Taki on Tuesday denied that Govinda Prasad Mainali had been physically abused by guards while he was in prison in Japan.

      “The Justice Ministry’s Correction Bureau checked the records at the prison’s medical office and other materials, but found no evidence of such abuse,” Taki said at a press conference.

      Mainali was deported for violating the immigration control law and returned home last weekend.

      He told reporters after his release that he had been physically abused by prison guards.

      (Jun. 20, 2012)

    23. MMT Says:

      The article in the Japan Times certainly has an interesting quote:

      “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……

      ….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.

      http://www.japantimes.co.jp/text/nn20120614a2.html#.T-GH5VKGXUI

      – Heh. The proofreader was on psychotropics that day. Or maybe the JT knows something we don’t know? :) Anyway, back to due gravitas regarding this case.

    24. JS Says:

      The truth continues to slowly trickle out, now that Mainali is safely out of Japan. The following news story from The Japan Times turns the spotlight on Mainali’s defense attorney. Japanese lawyers are obligated to abide by the code of conduct as defined by the Code of Ethics for Practising Bengoshi. They have a fiduciary responaibility towards their clients to properly refute dubious claims by the opposing party. The Japan Times article seems to suggest that the Japanese defense lawyer representing Mainali did not take this responsibility seriously.

      ROOMMATE SAYS POLICE FORCED HIM TO SIGN FALSE STATEMENT INDICATING MAINALI’S GUILT
      Kyodo – Thursday, June 21, 2012

      DHULABARI, Nepal — A Nepalese man who shared a Tokyo flat with compatriot Govinda Prasad Mainali, 45, said Monday he was coerced while in detention in Japan to sign a false statement indicating his roommate had murdered a Tokyo woman in 1997 in order to rob her.

      Mainali was last week deported to Nepal after being granted a retrial presumably to exonerate him after he spent 15 years in a Yokohama prison for the March 8, 1997, murder of the 39-year-old woman, an employee of Tokyo Electric Power Co. who engaged in prostitution on the side, because evidence long held by prosecutors that suggested his innocence was newly brought to light.

      Nepalese migrant worker Narendra Kumar Khadka, 42, said in a Monday interview in his hometown of Dhulabari in eastern Nepal that Japanese police pressured him into signing the statement to prove Mainali murdered the woman, AND THE DEFENDANT’S COUNSEL NEVER CONTACTED HIM IN AN ATTEMPT TO REFUTE THAT CLAIM.

      Mainali, who was arrested later that month for overstaying his visa, then charged, tried and acquitted in the slaying, only to be sentenced to life by the Tokyo High Court on appeal, spent 15 years behind bars before the same high court granted his retrial based on new evidence that put another man at the scene of the crime after he had been there.

      Recent DNA tests indicated the other man at the scene had had sex with the victim — evidence prosecutors didn’t submit in the trial that acquitted Mainali or when the state appealed and won a life sentence against him.

      Mainali returned to Nepal for the first time in 18 years Saturday, nine days after he was released by the Tokyo High Court.

      Khadka said he and Mainali were among five Nepalese migrant workers who lived in a building in Tokyo’s Shibuya Ward adjacent to the vacant apartment where the woman was murdered. Police found her body 11 days after her death.

      “Japanese police wanted to establish that Mainali was desperately in need of money at the time of the murder. They made me sign a statement that said Mainali returned to me a few days after the murder a sum of ¥100,000 that he had borrowed from me in February that year,” Khadka told Kyodo News at his residence in Dhulabari, about 300 km southeast of Kathmandu.

      “In reality, Mainali had returned the sum to me on March 6, which is two days before the murder,” said Khadka, who went to Japan on a tourist visa in 1995 and was deported to Nepal a few months after the murder for overstaying.

      According to Khadka, he was detained for about 20 days at a police station in Tokyo, for about 1½ months at the Tokyo Detention House and for about 20 days by immigration authorities before he was deported.

      In detention, Khadka said he was often interrogated for 10 to 12 hours a day.

      “They insisted that Mainali had killed the woman for money. I told them Mainali wasn’t so badly in need of money. But they didn’t believe me and kept on saying that Mainali killed the woman to pay me back. They also said Mainali was in need of money as he was sending money to his family in Katmandu to build a house,” Khadka said.

      “I consistently told them that Mainali had returned to me the money before the day of the murder,” he said. “But they told me to sign a false statement if I wanted my detention to end soon. After around three months of mental torture, I relented. It was too much for me.”

      KHADKA SAID DEFENSE LAWYERS FOR MAINALI NEVER CONTACTED HIM AFTER HE RETURNED TO NEPAL and he did not speak out for so many years “because I didn’t want any more trouble.”

      “Japan is a big country and has big influence in Nepal. So if I anger Japanese authorities, I could get into trouble even if I live in my own country,” Khadka said, noting he was visited “many times” by Japanese investigators after he returned to Nepal.

      He showed Kyodo a statement he said he gave to Japanese investigators in 2000 that shows Mainali returned the money to him on March 6, not after the woman’s slaying.

      Link: http://www.japantimes.co.jp/text/nn20120621a2.html#.T-KuK6NhiSN

    25. MMT Says:

      In “defense” of the defense lawyer, after reading that article the other day I came conclusion that their was no follow-up because they knew there would be no way the judge would overturn it. Since the axiom of the criminal justice system appears to be “The prosucutors can (in general) do no wrong” and obtaining a signed confession (obtained through whatever means) is the evidence most prized by the courts it is safe to assume that a defense lawyer wouldn’t bother trying to close the barn door after that particular horse has bolted.

      What I find so disturbing is the level of corruption by both the police and prosecutors in this case. Besides the standard 23 day detention with 8 hour interrogations, sleep deprivation and other strong-arm tactics we also have:

      * tampering with and bullying a witness into falsifying his testimony to support the prosecutor’s case
      * Key evidence linking the defendant to the apartment at the time of the murder was testified to as false by a medical professional; only have that testimony ignored by the courts during the appeal.
      * Evidence is hidden from defense lawyers (the semen sample found inside the victim) and despite the prosecutor’s own evidence that the blood type of that sample matched blood type of both pubic hairs and saliva found on the victim belonging to an unknown(?) third person and not Mainali, that evidence is either ignored or minimized in court.
      * The utter farce that is the justice system’s flaunting of the constitutionally-guaranteed “no double jeopardy” rule. Claims that appeals by prosecutors are legal because district, high and supreme courts are “different and separate” from each other would be laughingly absurd in most countries. One has to guess that the only way a case would be be considered double jeopardy would be one held twice in the same courtroom with the same judge and on the same day.

    26. Nick Says:

      I wish to thank JS and MMT for damning information about how the Mainali Govinda case was mishandled. I was very disappointed to learn that the defense lawyer failed to contact Khadka’s regarding Khadka’s claim that Mainali had repaid the ¥100,000 two days before the murder. This proves that the “motive” for the crime was shamelessly fabricated. Khadka’s fear that the tainted hand of Japanese “justice” will reach him in his own homeland as well as the defense lawyer’s cowardly abdication of his fiduciary responsibility to refute a false claim extracted under duress are both disturbing.

    27. JS Says:

      New York Times
      Published: June 24, 2012

      Japan’s Inept Guardians
      By RICHARD LLOYD PARRY
      Tokyo

      Link: 
      http://www.nytimes.com/2012/06/25/opinion/japans-inept-guardians.html

      Excerpt:

      The police believe that because Japan is one of the world’s most crime-free societies, they must be great crime fighters. In fact, the opposite is true: Japan is peaceful, safe and regimented not because of, but despite, the frequently disgraceful performance of its guardians. Individually, many Japanese police officers are honest and dedicated. But as an institution, the force they serve is arrogant, complacent and incompetent. Rarely has this been so obvious as in the last few days.

      Japan has been reeling over the case of a 45-year-old Nepalese man, Govinda Prasad Mainali, who returned to Katmandu last weekend after 15 years in detention. At the end of a prolonged trial (he was first cleared in a lower court), he was convicted of murdering a Japanese woman in Tokyo in 1997. The evidence was circumstantial; Mr. Govinda insisted on his innocence. After years of badgering by his lawyers, prosecutors finally surrendered DNA samples, which made it clear that he had told the truth, and that another, unidentified, man had carried out the crime.

      Police accounts have presented the failure to test the samples as regrettable absent-mindedness, but the whole case has about it the stink of conspiracy. Japan’s normally forgiving newspapers have reported that, among other irregularities, detectives bullied and bribed witnesses into signing false statements, and found one of them a job after he gave evidence damaging to Mr. Govinda. In the past two years, two other long-serving prisoners have been granted retrials after it became obvious that they were not guilty of the murders for which they’d been convicted more than 18 years earlier.

    28. Charuzu Says:

      This article seems relevant:

      http://www.jstor.org/stable/10.2307/25064570

      I particularly am struck by its beginning:

      “Everyone, please watch your bags. There is a foreigner on the bus,” announced a bus driver in Hamamatsu on the loudspeaker of the bus after a 37-year-old Brazilian woman of Japanese descent came aboard.

      The basic assumption that a foreigner, even one of Yamato ancestry, is inherently criminal is a basic feature of many J.

      It reminds me in many ways of life in Saudi Arabia, which also has deeply held and pervasive bigotries.

    29. Charuzu Says:

      This may be relevant:

      http://www.npa.go.jp/sosikihanzai/kokusaisousa/kokusai/H23_rainichi.pdf

      My Japanese is too poor to be certain, though.

    30. debito Says:

      Govinda Mainali Case hits Washington Times, Debito among others quoted:

      http://www.washingtontimes.com/news/2012/jun/25/japan-held-innocent-foreigner-15-years/?page=all#pagebreak
      Japan held innocent foreigner 15 years
      Critics say legal system harsh to non-Japanese
      By Christopher Johnson – Special to The Washington Times Monday, June 25, 2012

      TORONTO — Foreign residents in Japan are calling for justice and equality after a Tokyo court this month released from prison a Nepalese man who had been wrongly convicted of murder 15 years ago.

      Japanese immigration officials immediately detained and deported Govinda Mainali, 45, for overstaying his visa after the Tokyo High Court ruled that new DNA evidence cleared him of involvement in a 1997 murder for which he had been imprisoned.

      Human rights activists said Japanese authorities moved quickly to deport Mr. Mainali to deter him from seeking compensation for his wrongful conviction and imprisonment. They are demanding that Japan compensate him, overhaul the country’s justice system, and punish prosecutors and judges. The conviction rate for suspects tops 99 percent with foreigners at particular risk, critics say.

      “The Mainali case is proof once again that there are two systems of justice in Japan: one for Japanese, one for foreigners,” says Debito Arudou, a U.S.-born rights activist.

      “Once the public prosecutor has a foreigner in his grip, that means indefinite incarceration without habeas corpus or bail. Even if judged innocent in court, prosecutors usually appeal and foreigners are still jailed.”

      Gopal Krishna Siwakoti, a Nepalese human rights activist, called the case the “trial of the century in terms of migrant workers,” and an example of how a “xenophobic attitude was entrenched in Japanese judicial system.”

      The newspaper Nikkan Gendai called prosecutors “sore losers” who are more interested in saving face than human rights.

      Even so-called “Japan apologists” have spoken out against “induced confessions,” harsh imprisonment and costly deportation of more than 100,000 foreigners over the past decade.

      “The fact is that a foreigner falling afoul of the Japanese legal system doesn’t have a hope in hell of getting a fair trial,” foreign entrepreneur Terrie Lloyd wrote in his magazine Japan Inc. “Reading about his case makes you feel like we’re living in an emerging economy in the Middle East rather than a first-world country like Japan.”

      At a Tokyo press conference last Tuesday, Justice Minister Makoto Taki denied that Mr. Mainali was mistreated in jail.

      Mr. Mainali, a restaurant worker in Tokyo’s Shibuya entertainment district, was arrested in 1997 for overstaying his student visa by three years. Police later charged him with strangling Yasuko Watanabe, 39, an economist for the Tokyo Electric Power Co. (TEPCO) and an alleged prostitute.

      The Yomiuri Shimbun newspaper last week reported that a chief police investigator wrote in his diary: “A Nepalese man who lives in a neighboring building should be found guilty with the circumstantial evidence we have collected.”

      Charles McJilton, a Tokyo-based Christian missionary from Minnesota who has visited about 50 foreign prisoners in Japan since the 1990s, said Mr. Mainali wasn’t allowed a lawyer or proper interpreter.

      “It was him against all the police and prosecutors. She [the victim] worked for TEPCO, was controversial because she was a prostitute at night, and the police felt they had to get a conviction,” Mr. McJilton said. “They probably believed he would confess to it eventually, but he didn’t.”

      Activists say 99 percent of foreign suspects are held in custody and denied bail, compared with 76 percent of Japanese.

      “It’s not a system of innocence until proven guilty. If you appear in court, you are supposed to show remorse and take responsibility for the crime,” said Mr. McJilton.
      ENDS

    31. Baudrillard Says:

      “It’s not a system of innocence until proven guilty. If you appear in court, you are supposed to show remorse and take responsibility for the crime,” said Mr. McJilton.

      Its traditionally the same in Communist China. The GOJ should be shamed by this similarity alone to change the system.
      “A first-world country like Japan?” Dont make me laugh.

    32. Baudrillard Says:

      We all have to stop being blinded, dazzled by the media images and the Society of the Spectacle.

      In the case of Japan this is the clean streets, a squeaky clean illusion of a superior society, the technology, the anime, the cyber reality and the hype reality. “Nothing here is real” moaned one broken hearted blogger on a Japanese dating site recently. This is how the false images render human relations in this nightmare meaningless and bizarre; a TEPCO worker who moonlighted as a prostitute. This should be in the headlines post Fukushima; what kind of company are Tepco running?

      Nothing and no one is what it seems in this postmodern hall of mirrors.

      My point is this case, and the sheer random brutality and corruption reveal Japan for what it is a “Third world country with first world toys”, but not with the rights and laws of a first world country.

      There are striking similarities with Post Communist China, or even US allies in the Middle East. OK, so Japanese women can get away with dressing more freely here but there are less Japanese women on boards in Japan than there are in Kuwait or other Islamic countries. Even Pakistan had a female president.

      This is actually what drove me to leave Japan; the lack of legal protection for NJs. I felt increasingly paranoid, that as nationalism and resentment brought on by Japan’s economic problems increase, the longer you stay in Japan, the more likely you are to become a convenient scapegoat, simply by having no rights.

      And whitey, this goes for you too. The police visits to the gaijin house during the G8 Hokkaido summit to “check who is living here”, the immigration officals breaking down the door, the disgruntled, stressed out Japanese colleague who blames you and goes to the police box to complain to somehow get back at you (a number of Japanese citizens think they can inform on a foreigner they dont like and so blackmail us to do what they say at all times); all these daily micro agressions-that are not in fact that micro at all- are the writing on the wall that say, sooner or later, you are going to be accused of something. It is time to leave if you can.

      If you cannot leave, organize. There is at least strength in numbers and you will need an alibi.

    33. Jim Di Griz Says:

      I think that Baudrillard has a valid point;

      ‘nationalism and resentment brought on by Japan’s economic problems increase’.

      Since the J-Gov is totally deluding itself about the economic problems, we can’t expect to see a solution anytime soon. I think it will get much worse before it gets any better; it has to. Right now no one is admitting that there is even a problem. Until then, you would be a fool not to have a contingency plan.

    34. Fight Back Says:

      Big ups to Chris Johnson! It’s great to see this shocking story being reported in such a major publication!

      Here’s hoping his mention of the apologist issue will stir further discussion and raise awareness of the situation. It’s great that this can rise to the national level and not be relegated to Japan only news. 

      Now, how do we capitalize on the boost Mr Johnson has given us?

    35. John (Yokohama) Says:

      “‘Sorry’ the hardest word to say / Prosecutors admit Mainali ‘not guilty,’ but without soul-searching
      The Yomiuri Shimbun (Oct. 30, 2012)

      http://www.yomiuri.co.jp/dy/national/T121029003127.htm

      “Therefore, we assert that the defendant is not guilty,” a prosecutor stated before the Tokyo High Court on Monday.

      With this statement at the first retrial hearing over the 1997 murder of a female employee of Tokyo Electric Power Co., the prosecution finally retracted its assertion that a Nepalese man was the perpetrator. The hearing took place at the same court that sentenced him to life imprisonment 12 years ago.

      On behalf of Govinda Prasad Mainali, who returned to his home country after being released from prison earlier this year, defense lawyers urged the prosecution to admit their past mistakes during the investigation that led to the 47-year-old man’s conviction.

      Presiding Judge Shoji Ogawa began the session at 10:30 a.m. at courtroom No. 102 at the high court in Kasumigaseki, Tokyo, without the presence of Mainali.

      Prosecutor Shin Kukimoto confirmed the pieces of evidence submitted to an appeal hearing 12 years ago following a not-guilty sentence at a district court.

      Kukimoto then stood up and said with a tense expression, “We had asserted that the defendant was the perpetrator of the crime.”

      He then referred to the results of evidence examinations that suggested a third person might have committed the crime. “Since we have obtained different results from examinations that have been conducted since the appeal of the lower court ruling, we cannot conclude that he was guilty,” he said.

      After a pause, he said, “Therefore, we assert that the defendant is not guilty.”

      Kukimoto spent just two minutes making his statement.

      As soon as Kukimoto finished speaking, Hiroshi Kamiyama, the chief defense lawyer who was seated opposite the prosecutor, stood up to ask whether the prosecutors would withdraw their appeal.

      “We cannot do so legally,” Kukimoto replied. “The finalized sentence is valid until the public hearings of the retrial are completed.”

      Then, results of new tests that found a third person’s DNA in substances collected from the victim’s nails were submitted to the court.

      “Prosecutors should reveal all the materials related to [Mainali's] investigation and trials so an independent body can examine how they handled the case,” defense lawyer Shozaburo Ishida said. “The court also deserves criticism for giving a wrong judgment.”

      After listening to statements by both sides, Ogawa said a ruling would be handed down Nov. 7. The hearing lasted 25 minutes.

      At the end of the hearing, some people watching the proceedings called out for the prosecutors to apologize to Mainali.

      During a press conference held shortly after the hearing, Kamiyama criticized the prosecutors’ behavior at the hearing.

      “Considering Mr. Govinda’s feelings, prosecutors must apologize to him,” he said.

      Takayuki Aonuma, deputy chief prosecutor at the Tokyo High Public Prosecutors Office, released a statement one hour after the end of the hearing.

      “We did not conceal any evidence, nor did we make any mistakes during the investigation and trials for this case,” the statement said. “However, we are deeply sorry about detaining [Mr. Mainali] for such a long period.”

      ===

      Stance changed late

      The Tokyo High Public Prosecutors Office decided not to pursue a guilty charge against Mainali only 10 days before the retrial, a senior prosecutor said.

      “We changed our stance so late because many people felt strongly that Mainali was guilty,” the official said.

      Last summer, a third person’s DNA was detected from sperm collected from inside the victim’s body and other samples. “It was at that time the possibility emerged that [Mainali] might not have been the perpetrator, making it highly certain he is not guilty,” the official said

      However, many other prosecutors at the office still thought the finalized sentence would not be overturned, believing the third person came into contact with the victim before the murder, according to the official.

      When it granted Mainali a retrial in June, the high court suggested the third person could have been the real perpetrator.

      The court decision started a panic in the prosecutors office, since many believed they had little chance of winning the retrial, but others insisted they should continue seeking a guilty ruling for Mainali to maintain consistency, the official said.

      Another senior official said prosecutors should review their investigations into the case.

      “One new fact after another has come to light since the retrial was requested, so there’s room for us to review whether we examined the evidence properly during the original investigation,” the other official said.

      ENDS

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