In the so-called Hakamada case of 1966, in which four members of a family were murdered in Shizuoka Prefecture, the Tokyo High Court on June 11 reversed the decision to start a retrial of former defendant Iwao Hakamada, 82. What led to the court decision that left the guilty verdict unchallenged -- a turnaround from the previous ruling by the Shizuoka District Court that ordered the release of the death-row convict based on a presumption of innocence?
Undermining 'Honda analysis'
"Our thinking was that if we could destroy the credibility of the analysis by the defense, the district court's decision would be overturned. The high court made a fair judgement," a senior prosecutor said regarding the ruling.
The Shizuoka District Court's decision in 2014 accepted the significance of DNA analysis (see below) presented by University of Tsukuba Prof. Katsuya Honda, an expert recommended by the defense. Honda's DNA analysis examined the bloodstains on the short-sleeve T-shirt thought to have been worn by Hakamada and concluded that the blood did not match his DNA type.
The district court also judged that the color of five items of clothing, including the T-shirt -- found in a tank at a miso paste factory 14 months after the murder was committed -- seemed unnatural, going on to say, "There is a possibility that law enforcement authorities fabricated the evidence."
In contrast, the prosecutors' side paid attention to the method utilized by Honda. Since the Honda analysis was the basis of the district court's decision, the prosecutors thought that the decision would be overturned once it was able to damage its credibility, regardless of other evaluations of evidence such as the color of the clothing.
Honda used his own method that included dropping a "reagent" that collects blood cells into a normal saline with a little piece of the shirt that had been soaked. With that, DNA can be obtained from old bloodstains.
However, Prof. Koichi Suzuki of Osaka Medical College, an expert recommended by the prosecution, submitted a report to the high court saying that "because the reagent has the effect of breaking down DNA, it's inappropriate to be used for the analysis," after examining Honda's method.
Suzuki has been involved with cases -- including the so-called Ashikaga murder case and the murder of a female employee of Tokyo Electric Power Company Holdings, Inc. -- in which defendants were acquitted in retrials. Suzuki submitted DNA analyses that played a deciding factor in the subsequent rulings. A senior prosecutor said, "To enhance the persuasiveness of our argument at the high court, we deliberately asked an expert who has presented unfavorable arguments against us in the past."
Data loss questioned
While the high court had urged the defense to recommend other experts to conduct verification experiments, the defense rejected it as "unnecessary." In contrast, prosecutors submitted a total of 20 letters of opinion from forensic scientists who had negative views of the Honda analysis to corroborate Suzuki's report.
The high court's decision denied the credibility of Honda's method, saying "Several scholars point out that it is difficult to extract DNA through such a method, and it raises serious doubts about the results." It also recognizes that it was inappropriate to use a reagent that dissolves DNA for the analysis.
In addition, the high court referred to the fact that Honda erased the original data and lab notebook that should have been the basis for his analysis. It criticized him severely, saying, "It is bizarre and could be inconsistent with academic society guidelines."
Although Honda has been involved in requesting retrials, including the Ashikaga case, Takashi Gojobori, distinguished guest research professor at Waseda University, said, "No other expert in the field has adopted Prof. Honda's method, and doubts have been raised about it among forensic scientists."
Moreover, a veteran criminal judge said: "Because judges are not experts in DNA analysis, they likely become cautious when making a judgment on a method that divides experts. The prosecutors' tactics can be said to have worked well in this case."
Reluctant disclosure
The district court and the high court spent about 10 years all together on the second appeal for a retrial in the Hakamada case. In addition to the argument over the DNA analysis at the high court, the negative stance toward disclosing evidence by the prosecutors' office, starting at the district court level, was said to have prolonged the process.
In criminal trials, law enforcement authorities present evidence -- such as statements made by the defendant during the investigation or deadly weapons collected to prove the crime -- to the defense before the trial begins.
The 2004 amendments to the Criminal Procedure Code in preparation for introducing the lay judge system expanded the range of evidence for disclosure from 2005. Disclosing a list of all evidence became mandatory in 2016.
However, the legal obligations for disclosing evidence are not clear in requests for retrials. During proceedings related to the second appeal for a retrial in the Hakamada case, started in 2008, prosecutors reportedly took a negative stance from the beginning, insisting, "There is no legal basis for that."
After repeatedly being asked to disclose the evidence by the defense as well as the district court, the prosecutors' side finally presented important evidence in September 2010, such as color photos of the five items of clothing.
It followed by intermittently releasing a total of about 600 items -- such as an audio recording of Hakamada's statements during the investigation. A criminal judge complained about this, saying, "Such an attitude of presenting evidence bit by bit might cause judges to become distrustful of law enforcement authorities."
Furthermore, not a few pieces of evidence were disclosed after the proceedings were moved to the high court. A member of the defense team said, "Had the prosecutors acted in adherence with the spirit of the amended law, and thus released enough evidence from the start, the proceedings would not have dragged on so long."
In the proceedings for requesting a retrial in the murder of the TEPCO employee, which ended with an acquittal in 2012, the prosecutors disclosed evidence upon the defense's request and it revealed the possibility that the real culprit may be different from the accused.
Prof. Masanori Tsunoda of Nihon University, the former chief judge at the Tokyo High Court, said, "It's time for discussions to be started about requiring prosecutors to disclose evidence when requested by a court in the process of requesting retrials."
(From The Yomiuri Shimbun, June 12, 2018)
-- DNA analysis
DNA exist in the form of a double helix inside cells and consist of four substances, each called a base. Its structure, or type, differs among individuals and the probability of two people having the same type is said to be about 1 in 4.7 trillion. In the so-called Ashikaga murder case and the murder of the female employee of TEPCO, DNA analysis indicated someone other than the convicted defendants was the culprit, thereby leading to their acquittal at retrial.
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