Trials in the shadows

This excerpt from Press Freedom in Contemporary Japan describes how reporters for the news media face some formidable barriers in trying to cover criminal court cases in Japan, even after the fact.

There are few news categories that attract more attention than criminal prosecutions. Everyone has a strong interest in maintaining a high standard of public safety and in confirming that police power is exercised in a responsible manner. And everyone involved in the news business is well aware that tales of crimes especially sensational crimes or those involving celebrities sell the news. So reporting crime and criminal prosecutions is high on the agenda of all news media.

Article 82 of Japan’s Constitution recognizes the immense public interest in criminal prosecutions and other trials, declaring that “Trials be conducted and judgement declared openly.” Despite this unambiguous statement, Japan’s legal community has conspired to spin a web of secrecy around criminal trials. Journalists face countless obstacles in reporting criminal prosecutions.

The veil of secrecy descends at the time of arrest. In general, suspects can be detained up to 23 days before an indictment is filed. During this period, police and prosecutors interrogate suspects at will, while the suspects themselves are often pro hibited from seeing anyone other than attorneys and immediate family members. Suspects have no contact with the news media. When reporters try to build a story at this stage, their primary sources are often leaks from police interrogators.

Defense counsel are obvious sources of information, but they are barred from interrogation sessions so they may learn of confessions and other client statements only after the fact. And they may hesitate to speak to the press to protect client confidences. Even after an indictment is filed and trial commenced, reporters face other obstacles. In particular, defense counsel and their clients are subject to a relatively new restraint on talking to the press, created by laws passed in 2004.

“UNINTENDED USE” OF TRIAL EVIDENCE
In response to widespread complaints that trials take too long, new rules that went into effect in 2005 created a pre-trial procedure that requires both the defense and prosecution to identify the issues and provide the other side with access to evidence in order to prepare for trial. This new procedure was a boon for defense counsel because there is no general rule requiring the government to disclose all evidence to the defense. Under the new procedure, defense counsel can get a relatively early look at evidence the government plans to present in court.

But there is a catch. Another new provision strictly prohibits defendants and their counsel from using disclosed evidence for any “unintended use” other than preparing for trial. Thus, news reporters may request to see this evidence, but defendants and their lawyers are prohibited from showing it to them and violating this rule is punishable by fines and prison terms of up to one year.

This prohibition came into focus in May 2013 when a prosecutor filed a disciplinary procedure with the Osaka Bar Association against attorney Masami Sadamoto for sharing his client’s interrogation video with an NHK reporter. The video had played a key role in gaining an acquittal by discrediting the prosecutors’ allegation that the defendant confessed to strangling a victim to death, and the reporter later aired the footage on national television in an NHK program focused on the value of video-recording in identifying false confessions.

Prosecutor Yuji Ueno alleged that Sadamoto’s disclosure violated the “unintended use” prohibition. Sadamoto argued that his act was legal and justifiable as the video was “important material describing the process of confessions that are contrary to the deposer’s intent,” showing that “investigators sometimes cherry-pick their preferred information and even modify or fabricate it.” He claimed that revealing such injustice serves an important public interest.

After eight months of deliberation, the bar association panel concluded that his act did violate the unintended use prohibition, but “giving weight to . . . his intentions, the pro-priety of his means, and the lack of actual harm,” that discipline was not appropriate. The “unintended use” rule has quickly become an entrenched feature of Japan’s criminal trials. Some bar associations have even adopted ethical rules cautioning members against unauthorized disclosures.

Many reporters complain that it hamstrings their work. The rule was applied in the infamous Ashikaga case, which involved a murder conviction based on a false confession. Audio-tapes of the defendant’s 1992 confession were first disclosed to defense counsel in 2009. Although defense attorney Hiroshi Sato spoke regularly with news reporters, he was required to withhold the tapes due to the prosecutors’ insistence on the rule. The defendant was ultimately released from prison later that year, following a retrial that resulted in acquittal.

Creative application of the unintended use rule has even affected law schools. In 2006, Tokyo prosecutors blocked a Japanese equivalent of the “Innocence Project,” in which criminal justice experts and law students at Waseda University inspected court records together. The prosecutors said that allowing students to examine the records serves an educational purpose that has nothing to do with trial preparation and therefore violates the rule.

BARRING ACCESS TO TRIAL RECORDS
The most authoritative source of information on any criminal trial is the trial record itself. However, Japan’s courts interpret the Code of Criminal Procedure to require that all records in criminal trials be sealed throughout the duration of the trial and all appeals. Like other members of the public, news reporters are blocked from access.

In 1987, the Diet passed a law governing the preservation of and access to trial records after appeals are exhausted and court decisions final. Oddly, this statute provides that trial records are not to be maintained by the courts, but by the prosecutors’ office in the jurisdiction where the case was initially filed. And while Article 4 of the law declares the general rule that such records must be disclosed to anyone who requests them, this rule is subject to broad and vague exceptions a perfect example of a case where “the exceptions have swallowed the rule.”

“We’ll let you see nothing . . . We will never disclose anything else.”

Access under the law was tested in some high-profile cases soon after it took effect. One involved the renowned freelance journalist Shoko Egawa, known for her work investigating police misconduct and wrongful convictions. When Egawa sought access to court records concerning the 1988 conviction of a police officer for rape of a female detainee in a police jail, her request was denied on the ground that disclosure would damage public order and morals, hinder rehabilitation of the offender (a police officer) and injure reputations of related persons. The official who denied the request told her, “The idea that everyone may access records is just what’s written in the law. The reality is, we disclose almost nothing.”

After Egawa filed suit, the prosecutor offered to voluntarily disclose the text of the judgment and another 31 documents, which she found to be irrelevant to her area of interest. The reason the officer gave for denying her the bulk of the records was that she was a journalist and was planning to write about the case. In the end, Egawa’s suit was fruitless. The court declined to order any access beyond the prosecutor’s voluntary offer.

Another case that took place soon afterward concerned one of Japan’s most powerful politicians. In 1992, Shin Kanemaru, vice president of the ruling LDP at the time, was prosecuted for failing to report donations of several million dollars. Kanemaru admitted to receiving the money and resigned his position. There was a great uproar after Kanemaru escaped the expected criminal trial when prosecutors applied a special procedure that did not require him to appear in court and agreed to an extraordinarily light punishment with no prison time.

After the court decision was final, a news industry researcher filed a request to examine the trial record. Provided access to only superficial portions of the record, he filed suit, arguing that Article 82 and other provisions of the Constitution guaranteed his access to the files. But the trial court ruled against him, ordering only limited disclosure. He appealed all the way to the Supreme Court, but in 1992, the court upheld the trial court action, ruling that no constitutional rights were involved. Thus, the trial of one of Japan’s most powerful politicians for improperly receiving a large sum of money took place essentially in secret.

The 1987 law remains in effect today, and prosecutors continue to enjoy broad discretion in deciding whether and what portions of trial records to disclose. For their part, news reporters continue to make requests. For example, when veteran Mainichi Shimbun reporter Hiroshi Dai requested records from a bid-rigging case in 2014 that involved many former high-ranking government officials, he was told, “[W] e’ll let you see nothing if anything, only the text of the judgment. Of course, any private and personal information in it will be blacked out. We will never disclose anything else.”

The official implied that the disclosure policy prioritizes financial interests over journalism by saying, “We won’t disclose especially because you are going to run a story on it. If you intended to use the record for something like an insurance payment, that would be different.” Some reporters have had somewhat greater success, but this seems quite serendipitous a key feature of the system is its decentralized nature and the nearly unlimited discretion exercised by local prosecutors’ offices.

Although the Constitution guarantees freedom of “speech, the press and all other forms of expression,” Japan’s National Diet, courts and government agencies have adopted laws, made court decisions and enacted policies that create serious obstacles to the exercise of these rights, especially freedom of the press. Because the public relies heavily on news organizations for information concerning matters of broad public interest, these restrictions significantly limit the people’s right to know and their ability to understand and influence public policy.

Lawrence Repeta is a professor of law at Meiji University, best-known as the plaintiff in a landmark suit decided by the Supreme Court of Japan in 1989 that opened courts to note-taking by spectators.

Yasuomi Sawa is an investigative reporter at Kyodo News, who recently worked with the Panama Papers project led by the International Consortium of Investigative Journalists.