Terrie takes an inaccurate look at Govinda Prasad Mainali

As discussed earlier here, Govinda Prasad Mainali has been granted a retrial. Terrie Lloyd’s Terrie’s Takes newsletter decided to cover it, but reading the content it is not what I would expect from a respected Japan expert like Mr Lloyd, but instead it feels more like he delegated the article to his Japan Today "reporters".

Further, the conviction rate of foreigner suspects (you definitely don’t want to be one) is a foregone conclusion,

The 99%+ conviction rate of people brought before the courts indicates that it is also a foregone conclusion for Japanese suspects. However, is he suggesting that there is a higher rate for foreigners from arrest to conviction when compared to Japanese? The paper "Why Is the Japanese Conviction Rate So High?" from 1999 seems to be the definitive study of this matter but doesn’t examine the nationality of suspects. I suspect the above quote is an opinion, not a fact, although I welcome any data one way or the other.

There are a number of recorded cases where the courts have actually SAID there has been insufficient evidence for an ordinary conviction, but none-the-less have convicted the defendant anyway, simply because the prosecutors said they did it.

Are we still talking about foreigners? The above could very well refer to the recent lay judge conviction of Kanae Kijima on circumstantial evidence. She also had an online fan club, but there was less reporting of it in the English-language press as it is not as juicy a detail as Tatsuya Ichihashi’s one.

The abuse of this system became so bad that several years ago new laws were pushed through that now require prosecutors to record their interrogation interviews.

No, it’s still only applicable in certain cases and doesn’t apply to all of the interrogation process; it is certainly not "required".

In particular, we feel that his is a case where his race and foreignness played a large part in how he was treated.

This is indeed how I feel too, and no doubt many Japanese do too.

In 2000 his case was thrown out by the Tokyo District Court for lack of evidence.

No, he was found not guilty. Thrown out implies it was cancelled half-way through. Incidentally, if it were thrown out rather than having a verdict handed down, in English law at least the prosecution can in many circumstances appeal that decision.

At that point, if he was a Japanese he would have been let go, but because the outstanding deportation order, the Prosecutor’s office successfully had him kept in jail while they appealed to a higher court.

This conflates two or even three issues – if it had been a Japanese person there may also have been an appeal by the prosecution, but the Japanese person would have had a higher chance of getting bail.

In our opinion, the first step in getting Japan to address the obvious inequalities towards foreigners in the legal system is to pass a law making prosecutors who hide/withhold evidence open to legal charges themselves.

I agree, but I don’t see how the two are connected – prosecutors seem quite adept at hiding evidence in Japanese cases too. Is there data to suggest that evidence is hidden more when the defendants are foreign?

We’re not sure why Mainali wasn’t put on the death row

Sigh! If you don’t know why he wasn’t you are ignorant of how death sentences are handed down in Japan.

Leave a comment ?

33 Comments.

  1. Man, that web page is a mess, and mixing the Spammy advertising in with the story doesn’t help with readability.

    Someone hacked that piece together in a hurry, presumably to make the publication date. It’s a vehicle for the advertising, and I guess the objective is to make the target audience want to read it through all the SPAM.

    Playing up the “foreigners arem’t safe from the authorities” angle and mixing in some Tepco nuclear conspiracy speculation (And Hookers! And Yakuza!) just to add flavor to the tofu probably helps keep people with it. Despite all the SPAM.

    Mainali’s arrest isn’t surprising. He, uh, knew the woman. He had been in the apartment. Heck, his ejaculate was floating in the toilet. He lied to the police (not unnaturally, I guess). Was he picked up because he was a foreigner or because he was, let’s face it, a likely suspect. Being an undocumented alien probably didn’t help either.

    It’s not the arrest and suspicion that’s an issue. It’s the conviction that’s the issue. It’s the fact that exonerating evidence was ignored because it was an otherwise convenient conviction that’s the issue. Additionally convenient because of his nationality and status, no doubt.

    It’s the failings and faults that are systemic to the criminal legal system and affect everyone that is the core issue.

    At least there are other people who are doing a better job of looking at this than Terrie, and not just exploting the events to throw lame advertising at people.

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  2. “Mainali’s arrest isn’t surprising. He, uh, knew the woman. He had been in the apartment. Heck, his ejaculate was floating in the toilet.”

    Umm, the same people that figured out that it was “his” ejaculate in the toilet also withheld the evidence that it *wasn’t his* ejaculate in the victim.

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  3. “the Japanese person would have had a higher chance of getting bail.”

    That’s not quite the right way to see it. If a court finds a defendant not guilty, Japanese or otherwise, then they are acquitted, and so can be released. It’s not a question of having them apply for bail: they are free.

    The prosecution can request continued detention in some circumstances and I’ll mention an example below.

    In Mainali’s case, what his defence counsel found so frustrating was the way in which Immigration appeared to work on behalf of the prosecution. Immigration took Mainali into custody as soon as he was initially acquitted, but then delayed processing him while the prosecution filed an appeal against the not guilty verdict. They ensured Mainali was around to receive his punishment when the court eventually found for the prosecution.

    If a legal system allows for prosecutorial appeals, then it’s understandable why you wouldn’t want defendants to escape justice by leaving the country. However, the way in which Immigration in Japan appears to operate in cahoots with prosecutors has raised concerns.

    The issue was laid bare recently in a less high profile case.

    In 2006, a Swiss woman was arrested at Narita on suspicion of attempting to smuggle drugs into Japan. The court in Chiba found her not guilty. Immigration then detained her for overstaying her visa while prosecutors appealed the decision, just as they did in the Mainali case.

    The woman was arrested at Narita. The only reason she was guilty of overstaying her visa is because she had been detained while her case went to trial. The authorities obliged her to overstay, and then used that offence to detain her again when she had been found not guilty.

    The prosecution, intending to appeal, then requested she be returned to detention to avoid the possibility of being deported. This was approved.

    Unlike Mainali, she decided to appeal against her continued confinement. She actually won. A court decided that it was not proper for her to be held following the not guilty verdict.

    This should have led to her release but it didn’t, because this decision itself was appealed to a higher court and she remained in custody while that appeal took place.

    In theory, she could have sued to be released based on the lower court’s finding but she was in danger of entering a legal labyrinth. It would have meant starting a third case: she would have been petitioning not to be detained based on a decision (under appeal) which upheld her right not to be detained following a decision (under appeal) which granted her freedom. Not a happy prospect, especially when you realize that any decision in her favour could also be appealed.

    She declined to start a new action and was obliged to wait while a second court reviewed the issue of her continued detention. The second court then ruled against her so she took her suit to the Supreme Court. The highest court in the land also ruled against her – althought it was a close decision.

    As it stands, then, Immigration is entitled to take custody of any foreign defendant found not guilty in a criminal case if they do not have a valid visa – however that circumstance has arisen. They are also under no obligation to process a deportation within any paticular timetable. Prosecutors are also permitted to request a return to detention if that person is being held by Immigration, and they intend to appeal a not guilty verdict.

    The Swiss woman eventually won her freedom in early 2008 because the prosecutorial appeal over her smuggling conviction was rejected. She was in detention for something like a year and a half in total, and missed two Christmas holidays.

    With regard to the Mainali case, the Yomiuri has done some good reporting in recent days and most of their aricles have also appeared in translation.

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  4. Long post, but full of cited facts (and some open speculation..assume anything without a number is speculation awaiting your comments)

    When it comes to Japan’s “justice” system, it’s hard not to believe anything bad you can come up with. However, the conviction rate already being about 99% * for all makes it almost statistically impossible to “prove” gaijin get it worse on that front. (If it’s 99.5% vs. 98.5% or something, that’s a statistical blip, especially when one group is 1-2% the size of the other)

    http://www.stat.go.jp/data/nenkan/zuhyou/y2513000.xls
    *Out of 75873 prosecuted cases in 2009, 74733 convicted makes 98.5%

    Even a Japan-hate blogger will often get it right when he is ranting about the Japanese “justice” system.

    However [take a moment.. prepare to not burst out laughing]

    as I guess the MOJ will say :roll: the system is supposedly designed so that cases where the person is innocent will already have been “filtered out” and not even brought to trial. :lol: :lol: :lol:

    When conviction rates are 99%, then the prosecution rates become important.

    So how do gaijin rank when it comes to cases being prosecuted or not?

    http://hakusyo1.moj.go.jp/en/58/image/image/h003001003003h.jpg
    from
    http://hakusyo1.moj.go.jp/en/58/nfm/n_58_2_3_1_3_1.html

    Answer.
    Not well (as many would suspect, I think)

    Some sample stats, where I’m still not sure about the term “finally disposed” means..I guess the prosecutors office either decides to prosecute or not.
    And the term “visiting foreign national” has various definitions.. the police define it as tourists and gaijin without PR..or something, maybe not including spouse visas either, will double check.

    Prosecution rate by crime (all vs. foreigners)

    The worst trends against gaijin
    Murder 44.4% of 1342 people
    (so,746 not prosecuted, including 3 gaijin below)
    89.3% of 29 gaijin
    (so, 3 not prosecuted)

    Robbery 67.1% of 3382 people
    90.5% of 147 gaijin
    and many other categories trend against gaijin, but less strong

    Some trend about even
    Injury (assault etc.)
    Robbery 49.9% of 40314 people
    44.9% of 1140 gaijin

    Some trend against Japanese, such as embezzlement, but that’s not a shock, one would not expect short-term gaijin and tourists to be in positions to be able to embezzle (I guess that makes me a Gaijin Apologist! :wink: hmm.. maybe the Japan-hater crowd, with their tendency to assume all convicted gaijin criminals are innocent, can get that label)

    And the interesting one for us is violations of the Immigration Control Act.. where it looks like I (and certain Crusaders) are wrong in assuming that all but a small fraction of cases are against gaijin.

    Immigration Control Act
    43.2% of 6853 people
    42.0% of 6066 gaijin
    almost the same rate?
    Well, sure, because the gaijin are included in the total. If you do the math you find the non-foreign only total
    52.4% of 787 non-foreign!
    Non-foreign (Japanese?) are prosecuted more than gaijin on Immigration crimes?!
    Well, maybe not, if PR are included in the definition of “non-foreign”.
    Further, only 42% of gaijin prosecuted seems quite low as I’d expect anyone who has a valid visa wouldn’t even get to this stage (everyone is probably guilty, not a value judgment here, just the cold fact that if you’re being detained for visa troubles, I’d wager 100-to-1 odds that you don’t have a valid visa, nor even “applied” for one :roll: ). I wonder if immediate deportation bypasses prosecution, thus deflating the prosecution rate.

    Another thing to consider is the stigma. How does being arrested, maybe held for a few weeks, and then the “justice” system says “You’re free to go!” affect a Japanese vs. a gaijin? I hear that often workers are fired immediately on arrest so the company can avoid being associated with him/her in the news reports (thus so many arrested people are “unemployed”..is this true?) How does that end up if you’re not prosecuted? I assume if it’s eikaiwa, you don’t get your job back. Maybe evicted from your apartment in absentia, all your stuff tossed on the curb and currently on sale at a recycle shop. But that’s more about lack of a family and support network than the “justice” system.. Anyway..

    Well, there’s more info, but for now I’ll stop.

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  5. @Level3:

    Sorry all the cut and pasting yielded a mistake..

    Under the category “Injury” I accidentally left in the word “robbery”. Please ignore it.

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  6. Immigration took Mainali into custody as soon as he was initially acquitted, but then delayed processing him while the prosecution filed an appeal against the not guilty verdict.

    Unless I missed something recently, I don’t think he was acquitted nor was he found ‘not guilty.’ They released him, yes, but they have only agreed that the case should be retried.

    Did I miss a news update?

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  7. “Unless I missed something recently, I don’t think he was acquitted nor was he found ‘not guilty.’”

    He was acquitted in his first trial, which is the period I am talking about there

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  8. @Justin Thyme: Thanks again for the great info – that’s a very good point about Immigration being allowed to hold people to no particular schedule… :sad:

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  9. @Level3:

    Wow, the case of the Swiss woman make me want to go back and edit my post about being held “for a few weeks” and then let go (that sounds bad enough.. your life seriously disrupted, worse so if you have no support network)..and that may be how it happens to Japanese, of course longer if it goes to appeal.

    but the cases of visas expiring while in custody (even when found not guilty) show there are special injustices for gaijin. It almost seems like the prosecution are happy to drag things out just to let the visa expire so they can still “get their man” on immigration charges “he/she WAS guilty of a crime, HAHA!”

    But it seems like the prosecution is happy to do whatever they can to convict everyone including Japanese, being gaijin just gives them more options.

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  10. Yeah, I think a good writeup on the Swiss woman would be far better since it really seems to highlight some of the prosecutorial tricks they can play on NJ.

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  11. Tweet of the day from “not much up there department”:

    “I wonder how many of the Japanese journalists hounding the Nepali man, returning home from jail in Japan, had legal work visas for Nepal?”
    -CJ

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  12. Sorry, that was meant to be the “not much up there” department.

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  13. I’m sure 100% of them filed reports without portraying themselves as Indiana Jones, had return tickets, managed to show up at Immigration sober, and have gone at least a week without threatening anyone on Twitter…

    BAZINGA!

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  14. Might be splitting hairs, but Terrie’s take has an update with comment from Charles E. McJilton,
    CEO / Executive Director, Second Harvest Japan, who writes:

    “What you did not clearly mention was in 1999 he [Mainali] was only one of 51 not-guilty verdicts out of +2000 trials. Even though 90% of convictions involve a confession, he had refused to confess. “

    This does not match with my source (link in my uber-long post above) showing 76590 prosecuted criminal cases in 2009, with a mere 85 “not guilty” verdicts. Perhaps there is some difference between being prosecuted and going to trial? Summary judgments?
    Only 2000+ trials? Seems low, maybe he’s using a different definition or just faulty memory.
    So that just casts some doubt (but not much, we’re talking about the J “justice” system here) for me on the “90% confession” rate. Wish these figures came with sources…

    If we’re going to debate this stuff, even though we’re all on the same side, it would help if our figures matched.

    Meanwhile a certain Crusader is claiming all these prosecutor appeals and retrials are double-jeopardy and “technically illegal”.
    :roll:
    While wishing aloud that Immigration would send postcards to people whose visas are near expiration to help avoid these problems (though I don’t see how that would have helped those, including Mainali, who came on tourist visas, they aren’t overstaying by mistake)
    Don’t they already send postcards? My memory is hazy on that. Anyone? Or should people just be responsible adults and treat their visa status just as importantly as their passport. :roll:

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  15. Or should people just be responsible adults and treat their visa status just as importantly as their passport.

    It’s this. No reminder postcards.

    In fact, I’d go as far as to say the consequences of letting your visa status lapse are more serious than the consequences of losing your passport.

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  16. Don’t they already send postcards? My memory is hazy on that. Anyone? Or should people just be responsible adults and treat their visa status just as importantly as their passport.

    As iago states, the Immigration Dept. doesn’t send you a postcard to let you know your visa is about to expire. Some (many? all?) ward/city offices will send a postcard when you ARC is about to expire. Immigration *might* start doing that with the new Residence card but I don’t think any one will know until it starts to happen (or doesn’t.)

    A friend of mine forgot to update his visa. Twice. In consecutive years. :oops:

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  17. I can sort of see both sides of the argument. On the one hand, such an important thing with such potentially disasterous consequences if you mess it up, what would it cost the authorities to help out a little and send reminders; on the other hand, it’s kind of an initiative test to weed out the kind of disorganised slackers who probably aren’t the prime material Japan needs to prosper anyway… :grin:

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  18. @iago:
    Sending out postcards could just lead to slackers who still “forget” to renew but would now almost be guaranteed to lie, “But I didn’t get a postcard! Musta got lost in the mail. It’s your fault!!11!”

    Makes a much more appealing excuse for the slacker than tales of “I gave them the application..sorta..I think.. did I mail it in? did my dog eat it first? Kinda hazy. But that was 6 months ago, guess it isn’t urgent. I have lots of old visas anyway…”

    A few CJ-ish “didn’t see no postcard” cases and Immi would (or already has) figured they’d need to send all these notices by registered mail. And even then you’d still get hard-core slackers/dodgers just ignoring the knock at the door and the postal notice to get the Immi notice to renew the visa. That’s getting into Inception-levels of irresponsibility. But it happens. Welcome to the world of gaijin.. there are many species.

    Meanwhile, for the 99% of responsible adults, you just add another pain in the ass step to the process, being home to sign for registered mail that turns out to notify you of something you already know. :wink:

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  19. The Police dept mails out postcards 1 month before your birthday when your DL is supposed to expire. Those are not sent via registered mail just regular post.

    You also need to bring this postcard with you to re-register your license. There are ways around that but it requires a bit of an excuse to do so.

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  20. @chuckers:

    Guess that proves it’s all a xeno-agressive conspiracy against immigrants (except those with drivers licenses?). :wink:

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  21. @Level3:
    Certainly. Didn’t you know that the DLs have IC chips in them as well? :roll:

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  22. @Level3:

    “I’m sure 100% of them…managed to show up at Immigration sober”

    I’ve been on business trips with Japanese office workers (and gaijin who’ve fully assimilated)… 100% sober on arrival sounds like pretty long odds to me.

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  23. @Sublight:

    Good point.
    Maybe “not on the road to blackout drunk”? But that probably doesn’t work for everyone either. How about “not belligerently drunk”?

    Meanwhile, the silence from some gaijin blogs on the Furlong murder case is deafening. Activists holding their tongues because there’s not much info on which to make a judgment? A nice change! If only they felt that way about all cases.
    So why this time?
    Can’t figure out how to spin their double standards to fit a gaijin-on-gaijin crime? Brainstorming a narrative in which all scorn is placed on the J police and nobody else? Afraid of being labeled “sexist” or “racist” or “Apologist” by their fellow-travelers depending on how they view the case? It’s a minefield, and silence is the best CYA tactic for now.

    ..or perhaps they’re just honestly waiting for the truth to come out?

    :lol: :lol: :lol:

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  24. Ken, did you work out all the problems with your ISP? I’m assuming someone hit you with a false DMCA charge or something?

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  25. Nothing so exciting, I’m afraid George, I just forgot to pay my hosting…

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  26. Damn you, Ken! And here I was hoping for some drama on my Monday morning. :razz: Glad things are up and running smoothly.

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  27. The Terrie piece on Mainali is an example of a wider problem: the cult of the Japan expert. It’s something that Japologism should deal with. The contrast with Justin Thyme’s posts is quite striking.

    First, it demonstrates the tendency of the “Japan!” generalist to hold forth on a range of areas forgetting that each of these areas is a specialism in itself: law, culture, history, politics, economics, nuclear physics, education etc. He makes some howlers because he doesn’t appreciate that he’s not an expert on everything and needs to tread more carefully, do a bit of reading, be a little less…glib.

    Secondly, the “Japan” expert tends to have a vested interest in overplaying foreign/Japanese as an organising principle of analysis, and they crowbar stories into that. As Ken repeatedly points out, he treats faults of the system as faults against foreigners, and doesn’t really explain how it happens, implying some diffuse, generally spread racism. He fails to distinguish between
    * problems with the legal system for everyone living in Japan (reliance on confessions; lack of oversight with the police etc. etc.)
    * problems specifically applying to non-nationals (the ridiculous forced visa overstay if you’re arrested),
    * problems that disproportionately affect non-nationals (support networks not there, presumption of flight risk with bail etc.)
    * personal (group) racism – where laws that apply to everyone are applied unfairly because someone is from a certain ethnic group, regardless of citizenship – which quite possibly happened here because Mainali was not just “foreign”, but the wrong kind of foreign.

    Thirdly, as a result of the first two, the detail is screwed up. Everything stops at “Bad news for foreigners” as if a single law banning “bad news for foreigners” is the solution to everything (Voldemort does this too). It prevents people understanding the mechanisms by which there may be prejudice (the difference between personal and institutional racism, for example), and prevents people seeing where there is common cause across society. You see similar problems with foreign discussions of child custody. Casting it as a plot by Japan to steal the children of foreigners doesn’t help. There are Japanese suffering because of the same law.

    The thing is, people want their Japan experts. People respond to blurb that says “the ONE book about [country X] that EVERYONE must read”. Terrie wants to tell a story about police corruption and offence to foreigners, so he mixes up a lot of bits and bobs he’s read in the papers. A lot of his readership will swallow it up because they tune in to hear the stories he has to tell. Not many will say “Really? the conviction rate is 99% because of forced confessions? Are you sure?” Not many will do what Level3 does and go and check what sounds fishy.

    Terrie is a financial analyst, not a legal scholar. There’s no particular reason to put one’s faith in him in particular for information about on the judicial system. We wouldn’t do that in our own country. (I really like Beneaththewheel’s point about some people not treating this place as if it’s a real country. The cult of the Japan expert is part of the problem. Real countries don’t have overarching experts like this.)

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  28. @VK:

    You may be right. In this case, though, I do think there’s a strong element of need something to write about to provide a vehicle for all the paid advertising. The case, in this case, in my opinion, has simply been co-opted for commercial purposes. Subject expertise, not required.

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  29. @iago:

    Maybe. Personally, I can’t see the fun in getting so much wrong. Why wasn’t Mainali given the death penalty? Google it, for pity’s sake.

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  30. @VK:

    I’m suspecting staff writers. I really don’t think they care.

    To be honest, the intrusive, spammy advertising really got my back up…

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  31. @iago:

    They’re not very busy there, judging by the front page. Only two new posts in the past couple of years, and comments rarely made. Japan Inc appears to have folded.

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  32. @VK:

    Got to wonder why he bothered at all, if that’s the case…? The presentation didn’t give me impression it was an issue the writer cared passionately about.

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  33. Tony in Saitama

    @Ken Y-N:

    In the midst of a discussion about whether or not people should be reminded to fulfill their obligations, not a little ironic… :smile:

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