Friday, July 25, 2008

"More Lawyers Needed

"Given the size of its population, Japan, with just 25,000 lawyers, 3,200 judges and 2,400 public prosecutors, has far fewer legal professionals than do Western industrial nations.

"What this shortage of lawyers means is that unless people can find reliable legal professionals in their community, the ideal of making judicial services easily accessible to all is just pie in the sky.

"Aiming to improve the situation, the government has crafted a policy to increase the number of legal experts to 50,000 by around 2018. To achieve that, the plan calls for raising the number of individuals who pass bar examinations to 3,000 per year.

"Last year, 2,099 passed bar exams.

"But now the Japan Federation of Bar Associations says that number is too large. It has called for the government to scale back the pace of growth in the legal profession for the time being.

"The federation will shortly submit a proposal to the Justice Ministry, which oversees the national bar exams.

"Chief Cabinet Secretary Nobutaka Machimura opposes the move.

""I doubt the federation's judgment in this matter. It is acting in a way that is totally inconsistent with its involvement in judicial reform by suddenly making such a proposal," Machimura said recently. This criticism is valid, and the government should not change its policy of increasing the number of people who pass bar exams.

"The federation says it opposes the expansion because the quality of legal trainees at the Legal Training and Research Institute has declined. It says candidates are receiving insufficient education at law schools, many of which were established under a system introduced in 2004.

"The problem, the federation says, is that once they pass the bar, many law students cannot find jobs at established law firms, where they would receive the benefit of training with experienced lawyers. Instead, these neophyte lawyers are setting up their own legal practices.

"Yet, many experienced lawyers are hired by law schools as instructors.

"If these institutions are indeed failing to provide adequate education, the federation should first try to help the schools improve their ability to train legal professionals.

"The job crunch among rookie lawyers is certainly a vexing problem. Many rural areas still have an acute shortage of lawyers.

"For instance, in 24 judicial districts of the branches of district courts nationwide, there is only one practicing lawyer. Both the federation and local bar associations should try harder to figure out how to encourage the glut of lawyers concentrated in large cities to set up practice in other areas of the nation.

"Many overworked lawyers are serving too many clients. To solve this problem, law firms should hire more young lawyers, even if training them means adding an additional burden for a while.

"Meanwhile, we are seeing a spate of bid-rigging and slush-fund scandals involving employees at the central and local governments and in companies. These public and private organizations should hire lawyers as full-time employees to foster a corporate culture of legal compliance.

"With income gaps rapidly widening, many people around the country find it difficult to access legal services. Japan Legal Support Center (Houterasu), an independent organization that provides advice and counseling on legal affairs to the public, received 220,000 requests for help last fiscal year.

"Next year, the citizen judge system begins. Under that system, judges trained in the law will, together with a randomly selected group of citizen judges, decide serious criminal cases through intensive court hearings. In addition, starting next year, crimes such as theft and injurious assault will be added to the list of crimes under which suspects before indictment are eligible for court-appointed attorneys. The list at present only includes grave offenses such as murder and robbery.

"These changes will inevitably increase demand for criminal trial lawyers.

"Since the practice of law is a for-profit business, we can understand the bar community's concerns about excessive competition. But an appropriate amount of competition is good for the profession.

"It is high time that the legal community began to support the principle of judicial reform and to promote plans to increase the number of lawyers in Japan."

By Editorial (7/23/2008), Asahi Shimbun, Link to article (last visited 7/25/2008)

Monday, July 21, 2008

Dressing Up for Trials

"Defendants will likely be allowed to wear neckties and open-back slippers that look like leather shoes in courtrooms to give them a more dignified appearance when the lay judge system comes into force next May, sources said Sunday.

"The change will be reflected in practice trials Tuesday at the Tokyo District Court, the sources said.

"The rule is aimed at warding off negative impressions or prejudice among the lay judges, who will be selected at random from voter registration lists.

"Under current rules, defendants typically show up in court dressed in sportswear and sandals. In most cases, ties and shoes are not allowed to prevent suicide or escape. Defendants are also made to sit between two guards in front of their lawyers.

"The Justice Ministry is expected to consider revising rules on the use of restraints, such as handcuffs and other types of shackles, when defendants enter courtrooms, the sources said.

"Revising the rules on the seating location of defendants and their attire was raised during a meeting of a citizens' group in which the Japan Federation of Bar Associations gathered the opinions of intellectuals.

"According to the sources, Jimpachi Mori, a cartoonist known for depicting the trial system, said during the meeting, "Defendants are tried in such miserable conditions, wearing jerseys. It's not right when courts of justice are deeply involved with human rights."

"The citizens' group asked the bar association in April 2005 to try to improve the situation.

"Following a request from the bar association, the Justice Ministry plans to permit defendants to sit next to their lawyers in courtrooms while two guards sit behind them, on condition that one of the two guards places a leg between the defendant and lawyer to prevent escape.

"Each courthouse is expected to grant the change in seating if requested by the defense as long as there are no objections from prosecutors or the judicial authorities, the sources said.

"As for attire, the ministry will allow defendants to wear clip-on ties, which would be harder for defendants to use to choke themselves, and slippers that look like leather shoes from the front.

"The items will be available on loan at detention facilities at the request of defendants, they said."

By Kyodo News (7/21/2008), Japan Times, Link to article (last visited 7/22/2008)

Friday, July 18, 2008

Penal Code Reform: Death Penalty and Life Imprisonment

"With less than a year before Japan embarks on the lay judge system, some lawmakers are raising concerns that having to choose between the death sentence and the second most severe punishment — life with the possibility of parole after 10 years — will be too daunting a burden for the nonprofessionals presiding over criminal trials.

"Liberal Democratic Party legislator Koichi Kato is a leading figure among Diet members trying to create another choice for the ordinary people who will be judging the innocence or guilt of their peers in serious crimes.

""The public will not be trying pickpockets, but will hear severe cases, and that is going to be extremely challenging," said Kato, a former LDP secretary general who has also served as chief Cabinet secretary. "As legislators, we must consider preparing an alternative (to the death penalty) that the people can choose."

"Kato and dozens of other lawmakers from both the ruling coalition and the opposition camp are planning to propose a bill during the next Diet session to revise the Penal Code and introduce a penalty of life imprisonment with no parole.

"Revising the Penal Code would require amending about 40 related legal articles, Kato said, and there are various technical hurdles to overcome when introducing such a proposal to the Diet.

"Still, he believes there is a good chance of the bill's passage because judicial committee directors from all parties in the Lower House, as well as lawmakers who once served as National Police Agency bureaucrats, who have some sway over the bill, support the move.

"Kato is one of the small number of Diet members who believe the death penalty should be abolished, even though a vast majority of the public supports capital punishment.

"As a major reason for his minority opinion, Kato said he is skeptical of the 99 percent conviction rate in criminal trials.

""Humans can make mistakes, so I've always thought this high rate was dangerous, that there are wrongful convictions," he said, adding he also recognizes the global trend leaning toward the abolition of capital punishment.

"Kato said he has much sympathy for former Supreme Court Justice Shigemitsu Danto, who at the age of 94 is strenuously continuing his campaign to abolish the death penalty. Kato said he has had a great deal of respect for Danto since he learned criminal law from the former justice at the University of Tokyo.

"Under the new "saibanin" (lay judge) system that starts next May 21, six people randomly chosen from among eligible voters will take part in each criminal trial along with three professional judges.

"The nine will render a decision in a majority vote, although a guilty verdict must be supported by at least one professional judge.

"When the verdict is guilty, the panel will also determine the penalty, including in some cases whether capital punishment is warranted.

"As a lawmaker who supported the bill in 2004 to establish the lay judge system, Kato is convinced that civic participation in the criminal trial process is a positive move for Japan.

""It will make the public think (about trials) not just as someone else's problem. And public participation will also make sure the legal professionals stay sharp," he said.

"Yet at the same time he is uneasy that some lay judges will face the stressful situation of having to decide whether to hand down the death sentence.

"Earlier this year, Kato discussed the issue with another nonpartisan group of Diet members calling for the abolition of capital punishment, led by Shizuka Kamei of Kokumin Shinto (People's New Party).

"At that time, Kamei's group, which claims a membership of about 70 lawmakers, concluded that given the 80 percent public support rate for capital punishment, it was still unrealistic to push for an end to the death penalty.

"Rather, the group opted for a more feasible target on the road toward achieving their ultimate goal — by pushing for legislation to make capital punishment possible only through a unanimous vote of the professional and lay judges, instead of a majority vote, and to introduce the new penalty of life in prison without parole.

"When Kato initially began soliciting support for this bill among LDP members, he thought he would have a hard time because most Diet members favor retaining the death penalty.

"To his surprise, many in the LDP welcomed the fact that the question has been raised, because despite the difference in their opinion on capital punishment, they had also been concerned about the vast difference between the death sentence and a life term with the possibility of parole, according to Kato.

"Currently, inmates given a life term can technically be paroled after 10 years, although in reality most remain behind bars 20 to 30 years.

"Many lawmakers told Kato they support adding an alternative between the two most severe penalties.

"However, it was necessary to carefully avoid the question of the death penalty if the lawmakers who support capital punishment were to work with the abolitionists. Thus, a new group of politicians looking into the Penal Code was formed in May. Led by Kato, more than 140 members, including some from the abolitionist group, have joined the new league.

"Participants in the inaugural meeting in May included some powerful lawmakers: former Prime Minister Yoshiro Mori, former LDP Secretary General Hidenao Nakagawa and Democratic Party of Japan Secretary General Yukio Hatoyama. Kamei also took part in the gathering.

"Since then, Kato has been careful not to discuss the death penalty too openly to avoid upsetting members who favor retaining capital punishment. Kato also gave up on including the unanimous vote requirement for the death penalty that the abolitionists were pushing.

""I place great value on this solidarity that was created in a very short time for such an important issue," Kato said. "We'll take one step at a time."

"Some experts say that sentencing someone to life in prison without parole is even more cruel than capital punishment because the inmate must live without hope, and that it will not uphold the purpose of the correction system.

"But Kato said members of his group are of the opinion that this depends on the conditions that inmates will face inside the prisons. Death row inmates, however, are never informed beforehand of their execution dates and thus have to live in suspense, waiting for that fateful knock on their cell door.

"On the death penalty itself, Kato expressed his concern that the number of executions fluctuates depending on who is justice minister.

"Kunio Hatoyama, who currently holds that post, has sent 13 inmates to the gallows, while Seiken Sugiura — also from the LDP — did not sign a single execution order during his 11-month stint from 2005 to 2006.

"The issue "involves many elements, including one's view of life and death and punishment, the possibility of wrongful conviction, doubt toward the current justice system. So I don't think it is right that the number can sway from zero to 13 depending on the beliefs or personalities of each justice minister," Kato said.

""In any event, introduction of the lay judge system has triggered the debate, and we may have entered a period where the entire public will have to think together (about executions)," he said."

By Setsuko Kamiya (7/18/2008), Japan Times, Link to article (last visited 7/18/2008)

Tuesday, July 15, 2008

Forced Confession and Retrial

"A high court on Monday upheld a lower court's decision to retry two men who were convicted of murdering a carpenter in 1967.

"The Tokyo High Court dismissed an appeal filed by prosecutors against a decision made by the Mito District Court's Tsuchiura branch to open a retrial of Shoji Sakurai, 61, and Takao Sugiyama, 61.

""There are serious doubts about the credibility of their statement, raising reasonable doubts about the conviction," Presiding Judge Hiroshi Kadono said as he handed down the decision.

"It remains to be seen if prosecutors will appeal the decision to the Supreme Court. If they abandon their appeal, a retrial will open.

""Finally, the court decided to open a retrial. We'll try hard (to win acquittal), so please continue to support us," Sugiyama told his supporters outside the court.

""Finally, clear facts were recognized. It was a long fight. I really appreciate the support by our lawyers and supporters. Although the court decided to open a retrial, our struggle will continue," Sakurai said.

"Sakurai and Sugiyama were released on parole in 1996 after they were sentenced to life imprisonment and spent 18 years behind bars.

"Presiding Judge Kadono upheld the lower court's judgment that their statements on how they killed the victim do not match the conditions of the victim's body.

"He recognized new evidence presented by their lawyers indicating that the culprit stuffed underpants into the victim's mouth after strangling him.

""The statements that the two made during investigations to the effect that they first put underpants in the victim's mouth, then strangled him, contradict with the facts," Kadono said.

"The appeal court judge also pointed out that the statements made by Sakurai and Sugiyama changed from time to time.

""It is presumed that their statements changed from time to time in an unnatural way because they didn't actually experience what they confessed to doing," he said.

"The presiding judge also noted that their fingerprints and hair were not found at the murder scene.

"Furthermore, Kadono pointed to the possibility that a tape recording of their confessions had been edited, and said investigators may have led them into making confessions.

"The incident occurred in 1967. Shoten Tamamura, then 62, was murdered at his home in Tone, Ibaraki Prefecture, and about 110,000 yen was stolen from him. Ibaraki Prefectural Police arrested Sakurai and Sugiyama for murder and robbery later in the year.

"Sakurai and Sugiyama admitted to the allegations during investigations. However, they pleaded not guilty during their district court trial. They were sentenced to life imprisonment in 1970 and the conviction was confirmed after the Supreme Court dismissed their appeal in 1978."

By Mainichi Shimbun (7/14/2008), Link to article (last visited 7/15/2008)

Saturday, July 12, 2008

Judicial Reform: JFBA and The Increase in the Number of Lawyers

"The Japan Federation of Bar Associations is set to withdraw its backing of a government initiative to sharply increase bar admissions, it was learned Thursday.

"The umbrella body of bar associations across Japan plans to recommend that the Justice Ministry "slow down the pace of personnel increase for the near term," by setting aside targets for the number of people passing the bar exam, according to sources.

"The government plans to expand the quotas annually, to 3,000 by 2010, as one of the pillars of the country's ongoing judicial reform.

"The federation's administrative board will adopt the proposal in a meeting to be held as early as next week, federation sources said.

"The ministry may review its policy of increasing the number of legal practitioners in light of the federation's proposal and other views, a move that would fundamentally alter judicial reforms, ministry sources said.

"The number of people passing national bar exams surpassed 2,000 for the first time in 2007, after hovering around 500 annually until around 1990.

"If the government proceeds with current plans, the judiciary--including lawyers, judges and prosecutors--will be 50,000-strong within a decade, from about 29,000 today.

"But many lawyers and other legal experts still oppose the policy switch, and the federation's move will likely spark controversy.

"According to the draft proposal, the bar federation believes that the increased number of people passing bar exams has resulted in "lower quality" legal trainees, because some law schools offer insufficient education on basic subjects.

""To only pursue the quota of 3,000 will make the legal community one that lacks the fundamental legal knowledge and practical ability," the draft says.

"The draft also points out that many newcomers to the legal profession now practice law without having had sufficient opportunity to learn from senior lawyers at law firms because of the rise in legal trainees who fail to find work at law firms.

"The shortage of job opportunities is partly to blame for the degraded quality of legal services, the draft said.

"In an extraordinary general meeting in November 2000, the federation adopted a resolution calling for measures to increase the number of legal professionals, to address the shortage of lawyers in rural areas and make them play a larger role in society.

"The plan to increase the bar admission quota to 3,000 by 2010 was subsequently approved by the Cabinet in March 2002 as a part of a judicial reform package that also includes the planned introduction of the lay judge system.

"In the wake of reported difficulties encountered by young lawyers finding work at law firms, however, the federation changed its stance. Many senior lawyers also fear that their client numbers will dwindle.

"During the federation's presidential election in February, pro- and anti-reform candidates went head to head. Current president Makoto Miyazaki, who pledged to proceed with the judicial reform, won the seat, but only after he proposed to "reconsider" the federation's stance on the reform.

"One reformist federation member expressed regret about the planned proposal, which, the lawyer said, runs counter to ongoing judicial reforms.

""It is as if the federation is setting aside its ideal to aspire to a judicial system that plays a larger role in society," the lawyer said."

By Miako Ichikawa (7/11/2008), Asahi Shimbun, Link to article (last visited 7/12/2008)

Saturday, July 5, 2008

"Supreme Court urges new psychiatric testing rules

"A draft of a Supreme Court research paper looking into the use of psychiatric evaluations to determine the criminal competency of defendants contains a demand that such evaluations, in principle, only be conducted before a trial begins, it was learned Tuesday.

"Looking ahead to the planned introduction of the lay judge system in May next year, the draft paper hopes this restriction will prevent the prolongation of trials through the defense or prosecution demanding a psychiatric reevaluation if they are dissatisfied with the results of the original evaluation.

"The draft also demands that psychiatrists refrain from giving opinions as to whether a defendant is criminally responsible for his or her actions and stick to the medical facts, so as to prevent the results of evaluations from unduly influencing the decisions of lay judges.

"The top court plans to compile an official research report, which will be based on the opinions of judges, before autumn. It hopes the contents of the report will form part of the new guidelines for the lay judge system.

"The Penal Code stipulates that a defendant evaluated in psychiatric tests not to have been criminally responsible, because of mental illness, when a crime was committed (non compos mentis), must be found not guilty. When a defendant is judged to have had noticeably diminished criminal responsibility at the time of the crime (diminished capacity), he or she must be given a lighter sentence.

"Based on National Police Agency figures, about 10 percent of the 1,000 or so murder and arson suspects expected to stand trial annually under the lay judge system likely will have or will be suspected of having a mental illness.

"Trials in the past have often been drawn out because psychiatrists have been requested to perform evaluations after a trial has started and either the defense or prosecution demands a reevaluation after being dissatisfied with the original result.

"The trial of Tsutomu Miyazaki, who was executed last month for abducting and killing four young girls in the Kanto region in 1988 and 1989, was extended for this reason.

"In addition, there have been many cases in which an examiner not only made a medical judgment, but also alluded to whether a defendant was criminally competent, resulting in the opinion of the examiner running counter to the court's decision.

"Kaori Mihashi, a 33-year-old woman who is currently appealing her incarceration for killing her husband at their home in Shibuya Ward, Tokyo, and abandoning his dismembered body, was found by psychiatrists to be mentally incompetent at the time of the crime. But the Tokyo District Court in April judged she was fully mentally competent to bear criminal responsibility and handed down a 15-year prison sentence."

By Yomiuri Shimbun (7/2/2008), Link to article (last visited 7/4/2008)