Out of jail but back into detention

You’ll have heard that Govinda Prasad Mainali has been granted a retrial, but it does seem rather harsh to me that since he was an illegal immigrant at the time of arrest they transferred him straight to immigration detention for prompt repatriation, despite his family coming all the way over to see him. Even just one day with his family so they could all leave the country together as a unit would have been a much more humane way of treating him.

NHK had harsh words to say about the prosecution tonight, but there was nothing about him seeking compensation, although perhaps that is jumping the gun a little as we need to wait for the retrial.

Oh, and there was one thing that annoyed me in the article:

"In the U.S., for example, if a jury finds a defendant not guilty, prosecutors are not allowed to appeal. I think this is basically correct because juries find reasonable doubt. Defendants should be found not guilty if reasonable doubt exists," said Shozaburo Ishida, one of Mainali’s lawyers.

Why would what happens in the USA be of any relevance to a Nepali in Japan?

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21 Comments.

  1. Why would what happens in the USA be of any relevance to a Nepali in Japan?

    He was likely asked by a US Journalist about WTF does the prosecution get so many chances at a do over once they have “lost” a case. That wouldn’t happen in the US and some of the “readers” might wonder why Japan was so legally “backward.”

    But, you are correct, it doesn’t have a lot to do with Nepali here in Japan.

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  2. @chuckers:

    Oops. Screwed up the quoting on that.

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  3. According to wiki, the prosecution can appeal an acquittal in Canada and most of Europe, including the UK. It’s in the European Convention on Human Rights.

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  4. Yes, it reads to me also like a compare and contrast of the two systems by way of explanation; and by the way, one of the defence lawyers happens to think the US approach is better [for the defence].

    The bigger issue seems to me to be the selectivity with which the prosecution, that appears to have almost exclusive access to crime scene evidence, can pick and choose what is disclosed in order to secure the conviction.

    It’s interesting that not only has the retrial been granted, but his sentence is halted pending the retrial. He’s being deported — but I’m assuming from this, that’s where his family are:

    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.


    Though it’s a bit vague.

    Does he get deported after the retrial, or straight away? If straight away, what would make him come back? Is the suspension of the sentence and deportation almost a pre-emptive acquittal?

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  5. As far as I understand, the US prohibition on prosecution appeals is based on preventing double jeopardy, not an assertion of the reasonable doubt principle.

    Looking at the JT article, it seems obvious they’ve read the Japan section of the wiki article on Double Jeopardy, but not the rest of it, which would have let them know that most OECD countries allow prosecution appeals or some form of double jeopardy.

    I suspect the lawyer’s quote has been misframed.

    @iago:

    Yes – the manner of the trial is a bigger issue.

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  6. “Prosecutors reportedly found a sample of blood-type O saliva on the woman’s chest, suggesting another man had been present in the apartment, but did not submit it as evidence in court. Mainali’s blood type is B.”

    As often happens, it’s the little details at the end of the article (usually meaning they just barely survived being cut for length) that are more relevant that the opinion-as-news content in the main body of the article.

    We can debate the merits of prosecutorial appeal and double jeopardy, and which country does what (while certain parties decide to flip their moral compasses 180 degrees to “Yeehah! ‘Merica! U.S.A.! U.S.A.! ‘Merica is #1! Europe is diff’r’nt? Fuck ’em! Yeehah! ‘Mmmmmerica!” for a while) but the big issue most everyone (Japanese and gaijin) can get together on is Japanese prosecutors hiding evidence which they know could prove the defendant not guilty. If that didn’t happen, many of these retrials of likely innocent people wouldn’t need to happen in the first place.

    Will the prosecutors be punished? (Punished by their bosses for losing the case, likely. :evil: )

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  7. NHK had harsh words to say about the prosecution tonight

    One commentator on Hodo Station last night offered similar criticism — he said (paraphrased) that the increase in crime that coincided with the influx of foreigners in the mid-1990s created a situation where the authorities, pressured to enact strict countermeasures, used Mainali as a “scapegoat”. Mainali’s case was convenient for prosecutors because there would be little protest from Nepal, a poor nation with little influence; an arrest and trial like this based on such flimsy evidence would have never been brought against a Westerner. “Racism pervades this case,” said the commentator. A Japanese commentator.

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  8. NHK World is a little more circumspect in their <a href=http://www3.nhk.or.jp/daily/english/20120607_18.html?play)English Language reporting.

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  9. NHK World is a little more circumspect in their English Language reporting.

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  10. The cynical side of me wonders if perhaps that since Tepco is sort of the Bad Guy du Jour of late, whether they are re-opening this case to let slid an assault on said “Bad Guy(Gal)” (in spite of the fact that this was YEARS before anyone would have considered Tepco employees deserving such a fate.)

    Not to imply that I have ANYTHING against any Tepco employees or even the company itself. This was an awful murder and justice really needs to be done to the RIGHT offender.

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  11. @The 2-Belo:

    Mainali’s case was convenient for prosecutors because there would be little protest from Nepal, a poor nation with little influence; an arrest and trial like this based on such flimsy evidence would have never been brought against a Westerner.

    This is precisely the point that gets poo-pooed by the self-obsessed proponents of so-called Japanese microagression: if you want to combat racism in Japan, school kids saying “Hello” to passing Americans is not where you start.

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  12. @chuckers:
    The wheels of the Justice Ministry turn so slowly here that I doubt popular sentiment against TEPCO had much to do with the rulings, although it may possibly influence the sympathies of the media. Even that I doubt is very significant.

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  13. @VK:

    Quite.

    Veering off-topic: Schoolkids saying hello to passing Americans (Brits, Kiwis, Ozzies, whatever) is something to be encouraged, not disparaged. The kids are trying to make a connection. Given the choice of turning that interaction into a positive experience or a negative one, only a hyper-sensitive ass would choose the latter.

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  14. @iago:

    To be honest, I do find it annoying sometimes, so wouldn’t want to positively encourage it (Suddenly I’ve got to smile and be charming to boisterous people I don’t know – I’d make a crap Hollywood A lister about town). But it’s not an act of racism or aggression. Just kids being curious and friendly. If it was on my regular journey somewhere, I’d turn it into something positive – have a chat with them. I think someone on the microjoy thread has talked about that.

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  15. @iago:

    “only a hyper-sensitive ass would choose the latter”

    Bingo.

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  16. @VK:

    I know what you mean.

    Lots of places to stop off on the spectrum between adopting them as ones new best friends or telling them to “fuck off” though. :smile: Something the polar “you’re with us or you’re with the terrorists” debaters don’t seem to recognise.

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  17. Changes in the Criminal Procedure Code were actually enacted in 2005 to deal with this. Prosecutors are now obliged to disclose evidence which could support the case for the defence, not just that which supports their own.

    The Bar Association wants this formalized to include all evidence uncovered, to take discretion completely away from the prosecution.

    One aspect of this case which hasn’t been mentioned much in these recent reports is over the evidence of Mainali’s access to the murder scene. He had a key to the victim’s apartment and, even in this recent hearing, prosecutors argued that his access was a major reason a review of this case should not take place.

    In his book 2003 book 東電OL殺人事件, the writer Shinichi Sano alleges that a witness – I think it was the landlord – initially told police that Mainali had returned the key before the timeframe in which the murder was committed. Sano says the witness was then coerced by police into changing his testimony to make it possible for Mainali to have the key in his possession when the murder took place.

    If there is any substance to that claim, then the case is not simply one of evidence not being disclosed, but perhaps even falsified.

    Great credit must go to Mainali’s legal team who largely worked pro bono on his behalf.

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  18. @Justin Thyme:

    Prosecutors are now obliged to disclose evidence which could support the case for the defence, not just that which supports their own.

    Thanks for your informed post. Right now, who decides or not whether evidence is relevant? What oversight is there?

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  19. @Justin Thyme:

    Source, please. :wink:

    Except I actually mean it would be useful to have the source material. The laws and codes are on the Internet, I assume?

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  20. @Justin Thyme: Thanks for that interesting information!

    @The 2-Belo: Out of interest, do you remember the word the commentator used for “racism”?

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  21. “In the country X, for example, garbage is removed from the street on a regular basis, and sewage is dealt with by a centralized wastewater system.”

    Why would what happens in country X be of any relevance to a citizen of country Y in country Z?

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