JIADEP Note: A heinous instance of "innocence overturned," Brazilian Tokunaga was declared not guilty by the district court and convicted by the high court.


'Racist' judge jails foreigner found not guilty 2002/06/08

A Tokyo High Court judge has ordered a Brazilian man to be jailed during his trial even though the defendant was found not guilty in an earlier trial. Presiding Judge Taketaka Nakagawa complied with a prosecution request to jail Roberto Tokunaga because of fears that he may escape or conceal evidence that could lead to his conviction for inflicting bodily injury resulting in the death of his 3-year-old daughter. Tokunaga had been found not guilty by the Matsumoto Branch of the Nagano District Court, but will be jailed anyway. It is extremely rare for courts to implement such a move, but the same grounds were for cited for jailing a Nepalese man found not guilty of the 1997 murder of a Tokyo woman who moonlighted as a prostitute. Tokunaga's lawyers called the court's decision "racist." "It was an unfair decision made because the defendant is a foreigner. It was racist," Tsuyoshi Kamijo, Tokunaga's lawyer, said. "Having been found not guilty, his only worry was finding a job, not running away or hiding evidence." Tokunaga's problem seems to have arisen because he told Nakagawa on several occasions when his hearing opened at the Tokyo High Court on Wednesday that the only address he could remember was the one in Nagano Prefecture where he lived when charged with his daughter's killing. Refusing to give the judge the answer he wanted gave grounds for Nakagawa to say that Tokunaga had no fixed address. That, together with fear of escape of concealment of evidence, is sufficient grounds for a defendant in a high court trial to be jailed during their hearing even if found not guilty in the earlier trial. Mainichi Interactive


FREEDOM FLEETING AMID DOUBLE JEOPARDY Foreigners locked up despite acquittal By HIROSHI MATSUBARA Staff writer The Japan Times: Feb. 28, 2003

Roberto Tokunaga was freed in May 2001. The 26-year-old Brazilian was acquitted by a district court in Nagano Prefecture of fatally abusing his 3-year-old daughter. But what happened to him five months later -- when prosecutors appealed his acquittal before the Tokyo High Court -- came as a shock: The court allowed the prosecutors to lock him up in the Tokyo Detention House. He stayed there for 10 months. Then the court last July overturned the lower court acquittal and sentenced him to five years. And his detention was extended by four months until the Supreme Court rejected his appeal in November. "The court took us by surprise by allowing an acquitted man to be detained further, and in a manner akin to being abducted," said lawyer Tsuyoshi Kamijo, chief of Tokunaga's defense trial team. "The defendant later said he thought it was a setup by the court, prosecutors and even us (his defense lawyers)," Kamijo said. He said Tokunaga's detention was the second involving an acquitted foreigner, following that of a Nepalese man who, after being cleared of a woman's murder in Tokyo, was returned to detention in 2000 while prosecutors appealed that acquittal, only to eventually be sentenced to life. The detention decisions have raised questions about the way the courts treat non-Japanese, especially those from developing countries. The Criminal Procedure Law stipulates that defendants should not be held unless there are sufficient reasons to suspect their guilt. Thus their detention would end if they are acquitted. Defendants can be detained only when they have no fixed address, they pose a flight risk or may attempt to destroy evidence. But courts usually do not explain which of these conditions apply in each case. In a heavily criticized decision in May 2000, the Tokyo High Court allowed prosecutors to continue holding the Nepalese man, Govinda Mainali, 36, despite his lower court acquittal in the 1997 slaying. The court only said there were sufficient reasons for the detention. No explanation was given for Tokunaga's detention either. Tokunaga had a job and a registered address "just like an ordinary Japanese citizen," said Kyohei Imai, a freelance journalist who covered both trials. The court did not tell Tokunaga in advance that it planned further detention. So he did not bring any daily necessities with him to court, his lawyers said. The high court sentence came only after a few sessions, and no new evidence was presented. The Supreme Court then rejected Tokunaga's appeal in November, and since then he has been serving his sentence at Fuchu Prison in western Tokyo, according to his supporters. Kamijo said Tokunaga's detention is a breach of the constitutional principle that laws should be applied to all in an equal manner. Detaining the acquitted also implies that the higher courts consider lower court rulings to be just worthless pieces of paper, he added. Tokunaga came to Japan in October 1993, married a Brazilian in 1995 and had a daughter in 1997. In June 2000, he was arrested on suspicion of fatally abusing the girl, whose body was found in their apartment in the village of Hodaka, Nagano Prefecture, earlier that month. When interrogated by police, he confessed that he struck and kicked her several times to quiet her. Then during the district court trial, he withdrew the confession, claiming he made it only to protect his wife, who, he said, actually killed their child. The Nagano District Court's Matsumoto branch acquitted him in May 2001, judging that his initial confession contradicted other evidence. He was immediately freed from the Matsumoto Detention House. Tokunaga then found a job at a laundry factory in Nagano Prefecture. His wife was never charged, and his lawyers said they do not know her whereabouts. While Tokunaga's case has drawn less attention than Govinda's, experts say his detention after acquittal poses a larger problem. When Govinda was acquitted, he was placed in the custody of immigration authorities because he faced deportation for visa violations. Prosecutors had him returned to the detention house so they could keep him in Japan for the appeal trial. There is no law spelling out how foreigners without proper visas who have been acquitted of crimes should be handled if prosecutors seek an appeal. Because of his Japanese ancestry, Tokunaga had a valid visa through January 2003 allowing him to work. "The Japanese public should be more aware of these cases, because anyone accused of a crime could face such detention after an acquittal," journalist Imai said. The Supreme Court is currently examining Govinda's appeal of his life sentence. He remains in the Tokyo Detention House, where he has languished for nearly six years. Like Govinda, Tokunaga dreamed of returning to his country with his earnings from Japan and building a house for his family. It appears neither dream will come true. He most likely faces deportation as soon as he finishes his term. The Japan Times: Feb. 28, 2003

THE ZEIT GIST Burden of proof impossible to bear Wrongful convictions are 'shaming' Japan By DAVID MCNEILL Tuesday, Dec. 9, 2003

It may not have been exactly what the government has in mind by the cliche "international cooperation," but dozens of ordinary Japanese folk recently gave up a precious Sunday to help out foreigners in trouble. The gaijin are locked up in jails around Japan thanks to trials that fell well short of fair and sometimes descended into farce, said a number of speakers at the Symposium to Free Govinda in Waseda University (Nov. 29th). In at least three of the cases discussed, the accused walked free from district courts only to be rearrested, held illegally for months, and found guilty by higher courts on exactly the same evidence. "When the judge says 'the defendant is innocent,' the defendant should be free to go. That's common sense in other countries," said Kyohei Imai, a freelance journalist and activist who has spent years trying to get Govinda Prasad Mainali released. "Here it seems to be a message to the prosecution to try harder." Mainali is perhaps the best known of what the speakers called a growing list of miscarriages of justice involving foreigners in Japan. The fact that his case achieved some notoriety here owes little, say activists, to concerns about civil rights and much more to his alleged victim, Yasuko Watanabe, whose double life as a moonlighting prostitute proved irresistible to the press pack. Most other cases, including that of Filipino Rosal Villanueva Manalili, who was convicted on the basis of a disputed confession of murdering her Japanese boyfriend, have generated far less interest in the local media. Two recent cases involving Roberto Tokunaga and Moraga Reyes Alejandro Andres (see box) have been virtually ignored by the Japanese media, said the symposium participants, even though their treatment replicated the failures of the Mainali trial. Both men were freed by local courts before the prosecution, judge and police decided to have another go, a case of double jeopardy that has important implications for the entire justice system here, said lawyer Kenzo Akiyama: "Putting people who have been declared innocent back in jail sets a dangerous precedent for everyone. That's why I'm involved. And this has become an issue that is affecting our diplomatic relations with other countries. These cases shame Japan abroad." The main problem, said some, is Japan's top-down justice system. "Japanese judges take the freedom of others very lightly," said Imai. If you look at the U.S., Michael Jackson was released hours after he was arrested on serious charges because they take freedom seriously there. But here, once you're arrested, you're considered guilty. It's a presumption of guilt and goes all the way to the Supreme Court." Will the current moral panic about crime, fueled by a government report last week that said a record 3.69 million crimes were committed in Japan in 2002, and that "Japanese people are increasingly becoming the victims of foreigners' criminal acts," translate into more miscarriages? Most agreed it would. "I don't think there's any doubt about that," said lawyer Tsukuda Katsuhiko. It's probably true that crime is on the rise, even by foreigners, but the government isn't doing anything at all to protect the working conditions and rights of foreign workers. "And then when foreigners do something like overstay their visas, they're thought of as criminals. If these people had secure lives and jobs they wouldn't be out selling counterfeit telephone cards. There isn't a system here for accepting large numbers of legal foreigners so many people find it easy here to blame them for problems." Banged-up foreigners Roberto Tokunaga (26):Brazilian laundry worker, arrested in Nagano Prefecture in June 2000 for allegedly beating his daughter to death. Pronounced not guilty in May 2001 but later rearrested and held -- illegally, say supporters -- for ten months while prosecutors reworked his case. Tokyo High Court rejected earlier acquittal and sentenced Tokunaga on same evidence to five years in July 2002. Tokunaga claims his wife killed their daughter. Govinda Prasad Mainali (37; wife Radha): Nepalese waiter arrested for the murder of Yasuko Watanabe in Shibuya, March 1997. Tokyo District Court rejected circumstantial evidence and found Mainali not guilty in April 2000, but he was rearrested -- illegally say supporters -- on his way back to Nepal. Original verdict overturned by Tokyo High Court in 2001 and Mainali was sentenced to life on the same evidence. Appeal rejected by Supreme Court in October 2003. Supporters say the killer was likely to have been another of Watanabe's clients.

Moraga Reyes Alejandro Andres (23):Chilean engineer accused January 2002 of robbing a Tokyo recycling shop and stealing a car in a separate incident in Nagano Pref. Pronounced not guilty for lack of evidence by summary court in Nagano in May 2003 but again detained while prosecutors appealed to the Tokyo High Court in June. Currently locked up in Tokyo Detention House awaiting High Court decision.

Nick Baker (32):British man caught in April 2002 carrying suitcase full of drugs at Narita Airport that he says belonged to his traveling partner, James Prunier. Convicted and sentenced to 14 years in June 2003. Supporters say presiding judge Kenji Kadoya ignored evidence of Prunier's modus operandi that might have helped free Baker. Rosal Villanueva Manalili (31):Filipina currently serving an eight-year sentence here for allegedly stabbing her Japanese boyfriend to death in November 1997. Convicted mainly on the basis of a confession, made under duress and later retracted. Among the controversies of the case, defense evidence that might have supported Manalili's alibi was "lost" by the coroner. Supporters say the police, prosecutor and judge trampled on her right to a fair trial.


Journalist Kyouhei Imai on the Tokunaga Case <一審無罪で身柄勾留> 文責・今井恭平

 20021122日、弁護士会館で、定例の学習会を行いました。今回は、穂高折檻死事件。無実を訴えている被告人のトクナガ・ロベルト・ヒデオ・デ・フレイタスさん(ブラジル国籍)の弁護人のお一人、鈴木 剛弁護士にお出でいただき、話を伺いました。    トクナガさんは、2000年6月27日の朝、自分の当時3歳の娘を折檻し、死亡させたとして、傷害致死で逮捕・起訴され、当初は自分がやったと認めていましたが、裁判になってからは、真犯人は妻であり、自分は身代わりになった、と主張をくつがえしました。一審長野地裁松本支部は2001年5月24 日、無罪判決を下しました。   この事件は、控訴審が始まった時点から、きわめて特異な展開を見せます。20011017日に、東京高裁で第1回公判が開かれましたが、裁判所は、第1回から被告人質問を行うから、被告人を出廷させるように弁護側に求めました。一審無罪である以上、検察側の控訴に反論する以上に積極的な主張を行う必要は本来ないはずであり、この訴訟指揮は異常です。その上、第1回公判終了後、勾留質問を行う、として弁護人も退廷させた上でトクナガさんに勾留尋問を行い、その場で勾留が決定されました。つまり、ゴビンダさんと同様、一審無罪にもかかわらず、身柄を拘束されたのです。   トクナガさんは、就労ビザを取得しており、2003年までの滞在資格があります。逮捕によって、それまでの職を失いましたが、一審無罪判決後、ようやく新しい職を見つけて、働き始めていました。したがって、ゴビンダさんのように、超過滞在で強制送還される恐れも存在しませんでした。にもかかわらず、東京高裁第3刑事部は、刑事訴訟法第60条に該当するとして、トクナガさんの勾留を認め、最高裁も特別抗告を棄却し、勾留が決定されました。   検察側は、トクナガさんが外国人であるが故に、逃亡の恐れが強い、と特段に主張したそうで、その点で、ゴビンダさん同様の外国人への差別があることは事実ですが、それ以前に、刑訴法60条の前提は、「被告人が罪を犯したことを疑うに足りる相当な理由がある場合」で、さらにいくつかの条件を満たす場合に、はじめて勾留を認めているのです。一審無罪にもかかわらず、「罪を犯したことを疑うに足りる相当な理由がある」とされたのでは、一審判決は何の意味もないことになります。こうした恐るべき決定が、最高裁の5人の判事によって、全員一致で認められたのです。 <事件の争点>    トクナガさんの自供調書以外に、決定的な物証は存在しません。起訴状によれば、「平成12年6月12日頃から6月25日頃までの間、3歳の娘に対して多数回にわたって顔面、腹部、両大腿部等を手拳等で殴打、足蹴り等の暴行を加え、両大腿部皮下出血、膀胱破裂等の傷害を負わせ6月27日午前7時頃右傷害に起因する外傷性ショックにより死亡させた」ということが起訴事実とされています。   トクナガさんは妻をかばうために、最初は積極的に供述を行っていたので、検察側主張は、ほぼその自供どおりのものとなっています。したがって、 25日までの暴行で、その2日後の27日に外傷性ショックという死因で死亡することがありうるのか、が争点となりました。意見を述べた3名の医師のうち2名までは、暴行と死亡の間の時間はもっと短時間であったことを強く示唆しています。残る1名は、2日後に死亡することもまったくありえないことではない、としています。   また、弁護側は、トクナガさんの自白した暴行の状況が不自然である点を指摘し、無罪を主張。一審は、自供の不自然さと、25日の暴行が最後であるとすれば、27日に死亡することは不自然だとする医師の意見を容れて、無罪判決を言いわたしました。     東京高裁は、2002年6月8日、一審無罪判決を破棄し、懲役5年を言い渡しました。二審でも、被害者の死は急死に近く、2日前の暴行が原因とは考えにくいと、より強く示唆する医師の鑑定意見が出されましたが、高裁はまったく無視しました。専門家鑑定を恣意的に利用したり無視した点でも、ゴビンダさん冤罪事件と似た部分があるように思えます。   トクナガさんは、現在、最高裁に上告し、東京拘置所に勾留されたままです。彼は日本語をほとんど話すことができず、孤立しています。   当日お話をうかがった会員からは、事件の詳細について、さらにいろいろな質問が出され、鈴木弁護士は、ていねいに説明してくださいました。事件自体が冤罪であるか否かまで即断することはできませんが、無罪判決にもかかわらず勾留されたという事実の重さを考えると、何らかの形でゴビンダさん支援と結びつけて考えていきたいと話し合っています。