INNOCENCE OVERTURNED:
". . .this court sentences you to death."

by Michael H. Fox
Jiadep.org Director

Constitution of Japan Article 39:
No person shall be held criminally liable for an act . . . of which he had been acquitted, nor shall he be placed in double jeopardy.

Tragedy in the afternoon.
Nestled tranquilly among foggy mountains on the border of Mie and Nara prefectures lies the village of Kuzuo, part of the city of Nabari. A sleepy village dotted by twenty five homes and serviced by a sole road, the village has a small temple, too small to employ to a monk, but large enough to serve as a gathering place for the community.

The spring of 1962 was an optimistic time for the village. Japan's economy was steadily rising and the economic benefits were trickling down to the hinterlands. On March 28, shortly before the new fiscal year, Kuzuo village held a "Modernization" meeting," a sign of the times. Talk about upcoming improvements to the village filled the agenda. The meeting concluded in the early evening with a toast for success in the upcoming year. Sake was served to the men, grape wine (budou-shu) to the women.

After a round of kanpai's, the atmosphere changed from conviviality to pandemonium. Most of the women in attendance became suddenly ill. Panic spread and a doctor was frantically summoned . Despite the arrival of medical help, the afternoon turned into a tragedy: five women died.

Chemical analysis of the grape wine clearly showed the presence of TEPP (Tetraethyl Pyrosphosptate)an extraordinarily strong pesticide. The grape wine had been deliberately poisoned.

The police, without any ostensible reason, immediately surmised an inside job, that the criminal was a local. The media, without asking for any proof, freely broadcast police speculations , "The criminal is from the village!" "Culprit among the crowd," "Local is suspected."

The investigation focussed on who was in possession of the wine. Tracing its path from the morning of purchase, the pool of suspects was narrowed to three people. The key suspect became thirty five year old Masaru Okunishi. Of the five women who perished in this disaster, one was his wife and another was a lover.

Okunishi was put under iron tight twenty four hour surveillance. Police took up residence inside his home, watching him 24 hours a day, even observing his bowel movements. After excruciating surveillance, incessant interrogation, and condemnation from the village, Okunishi broke down and confessed to the crime. "In order to kill my wife and lover, I mixed Nikkarin T into the wine."

Route of the Wine
To establish guilt, the prosecution would have to show that the defendant--and only the defendant--carried out the crime. Central to this argument is the handling of the wine on the day of the tragedy. In the early stages of the investigation, the police learned that the wine was bought by R-san between 2:30 and 3:00, and delivered to the home of N-san. N-san's wife (one of the victims) received the wine, and kept it for some two hours. Okunishi arrived and took possession at approximately 5:20, delivering it to the temple at 5:30.

Despite the confession, the scenario was full of holes. Several people were in possession of the wine, and others had access. The pressure on police to find a culprit was intense and, with Okunishi in custody, a second investigation was quickly launched to uncover further evidence.

The second investigation succeeded in getting additional statements from previous witnesses. The course of the wine and those with access were severely narrowed. And though the first investigation microscopically examined every peep and crack in the village, a new witness suddenly emerged. According to the witness, the wine was delivered to the home of N-san not at 3:00 p.m., but just minutes before Okunishi arrived and took possession.

The Trial
The trial opened with much fanfare. Mass poisonings were not unknown to post war Japan. In 1948, twelve people died of poisoning in an attempted robbery of the Teigin Bank in Tokyo. (See Box)

The evidence against Okunishi rested on four factors.
1) Possession of the wine immediately before the party.
2) His confession.
3) A love triangle as motivation for the murders.
4) Teeth marks on the wine bottle's cap.
An examination of the cap clearly showed that it had been opened by by biting and twisting. Who did this was a point of hot contention. The prosecution insisted the bite marks could only be from Okunishi. Forensic dentists testifying for the defense insisted they were certainly from someone else.

Decision
On December 23, 1964, some three and half years after the incident, the district court handed down an earth shattering decision. In a country with a conviction rate over 99%, the defendant was found, "not guilty." The court declared the confession unreliable; the assumed route and possession of the wine ambiguous, the motivation as fanciful, and the teeth-marks exculpatory. It even criticized the later witness statements from the second investigation as the product of police compulsion. Okunishi was freed.

Soon thereafter, the prosecution appealed. On September 10, 1969, five gruelling years later, The Nagoya High Court issued yet another shocking decision. It reversed the earlier decision and found Okunishi guilty. The court spared no mercy, he was sentenced to death.

A Search for Answers
Not guilty in the first trial; guilty and sentenced to hang in the second. The Japanese constitution clearly prohibits the retrial of those declared innocent. What happened?

When I began studying this case, I felt like a puzzled Zen proselyte in search of an answer to a paradoxical koan. My question was not "What is the sound of one hand clapping," rather "Does the constitution have any meaning?"

Some students of Zen do attain enlightenment. I have not. But over the years, I have gained some glimpses as to why the system deviates from rule of the law.

A Historical Perspective
History speaks much about this case. In pre war Japan, the function of the criminal court was not the adversarial pursuit of truth. The objective was to subject the corrupt criminal class to the will of the emperor. The courts were inquisitorial, the accused were assumed to be guilty. Establishing innocence was the burden of the defendant.
The new constitution of 1948 intended reform. Yet legal and social change do not happen overnight. Some of the reforms were welcomed, some were misconstrued, and others were outrightly disdained.

Re-educating the judiciary to protect the rights of the criminally accused would prove an ominous task. After the war, the legal elite examined their new constitution with bewilderment and distress. According to the Common Law traditions of Great Britain and the USA, one function of law was to protect the citizen from the excesses of state power. In Japan, the opposite notion prevailed: law was a tool to protect the elite and herd the unruly masses.

In the eyes of the the post war Japanese elite, if a courtroom was to be truly adversarial, then all sides must be equal. If the accused had a right to appeal, then the prosecution must also be delegated the same right. The constitution could be side-tracked by allowing retrial of innocent defendants under the newly promulgated Code of Criminal Procedure.

A Near Miracle.
Japanese law allows the criminally convicted to apply for retrial. But once found guilty, reopening a case is a daunting task. The National Bar Association (Nichibenren) equates the process to "pulling a camel through the eye of a needle." Compared to the USA where 129 death row inmates have been exonerated since 1973--a number which grows month by month--only four convicted death row inmates have been retried and freed in Japan. Sadly, this small achievement is a vestige of the past: all four acquittals occurred between 1983~1989.

The Nabari defense team has continued to fight for Okunishi's freedom relentlessly. They have filed and refiled for retrial over the years. On April 5, 2005 a near miracle occurred. The Nagoya High Court accepted Okunishi's seventh request for retrial. The decision made front page headline news across the country. Reopening a case indicates the court disagrees with the prior verdict and will most likely reverse.

The optimism was short lived. Prosecutorial authorities appealed and a separate bench of the Nagoya High Court overturned the decision on December 26, 2006. An appeal to the Supreme Court was rejected. All had returned to nought.

The Struggle for Justice
Okunishi, aged 82, remains on death row in Nagoya. 2008 marks his 39th year confined to a three mat room. He has not seen a television, movie, or any other type of moving image since 1969. He is only allowed visits with close family members and attorneys. He is quite cogent, and occasionally writes small blurbs for his support associations and progressive publications.

Attorney Izumi Suzuki, remains adamant of his client's innocence, castigating the forces of law and order. "The police have long concealed and most likely destroyed exculpatory evidence. They have intimidated and coerced witnesses. The question lingers: "Who are they trying to protect?"

Why does Okunishi remain imprisoned in light of forensic evidence indicating his innocence? Forensic dentists have testified that the bottle cap unequivocally exculpates his client. "Judges recoil when faced with the truth," he iterates, "they do not want to free someone just on bite-marks."


The Case Continues.
The Nabari case was not the first instance of postwar judges vomiting up their new constitution. But it has been the most egregious. And though eminent, it is just one of many cases of wrongful arrest in Japan.

Of the 106 inmates currently on death row, eight assert full innocence, and like Masaru Okunishi, are being backed by vocal support associations, some by Amnesty International. In addition,19 inmates deny all or some of the charges. These numbers are significant since so many convicts have abandoned appeal and accept their sentence.


Whither Capital Punishment in Japan?
Life on death row is a kind of slow death. Convicts in Japanese prisons are allowed to work, watch television, see movies and socialize with other prisoners. Death Row inmates get none of these luxuries, and languish in solitary confinement in detention centers. Replacing capital punishment with life-without-parole would end this debacle. Criminal justice systems are always imperfect. As long as society continues to execute the guilty, it will also execute the innocent. Masaru Okunishi deserves better.


~~~~~~~~~