Issue:
May 2023 | Japan Media Review
Old murder cases return to the news amid media focus on false convictions
On March 24, NHK’s Kita-kyushu news division reported that the Fukuoka District Court had advised local prosecutors to submit all evidence it had related to the 1992 murders of two junior high school girls in the city of Iizuka. In 1994, a man named Michitoshi Kuma was arrested for the murders, and was eventually convicted and given the death penalty by the Fukuoka District Court. Following the normal series of appeals by Kuma’s lawyers, in 2006, the Supreme Court finalized the verdict and the sentence. Kuma was executed only two years later.
Kuma had always maintained his innocence and never signed a confession. His lawyers say his conviction was based entirely on circumstantial evidence, and first applied for a retrial in 2009, a year after Kuma was hanged. That application was eventually rejected on appeal by the Supreme Court in 2021. The lawyers now say they have more convincing proof that the prosecution of Kuma was improperly handled and have applied again for a retrial. At a press conference, they said that they had talked to the Fukuoka District Court, which advised prosecutors to release all evidence in their possession. Unlike in other countries, prosecutors in Japan are not required to share all their findings with the defense. Still, it is difficult to say whether the court's demand might lead to a retrial, which, in Japan, almost always means a reversal of a conviction. And in this particular case, a man died at the hands of the state because of that conviction.
The Nihon Keizai Shimbun ran an editorial on March 18 about enzai, or “false convictions”. Retrials, the newspaper said, “reflect issues associated with the judicial process”. The editorial recounted past cases in which convictions had been overturned after a retrial, and specifically focused on the prosecution’s privilege to not divulge all evidence in their possession as a key reason for those false convictions, since it is inherently disadvantageous to the defendant. The reason this dispensation is law is connected to the “myth” that investigations by police and prosecutors are somehow infallible. One-third of all criminal investigations lead to indictments by prosecutors, and the result is a conviction rate of more than 99%, which is usually explained as resulting from prosecutors only indicting in cases they are sure they can win. Consequently, judges tend to automatically conclude that no mistakes were made in the investigation. However, that belief was severely undermined in 2009 when it was discovered that prosecutors in Osaka had fabricated evidence in their fraud case against federal bureaucrat Atsuko Muraki, a situation that the Nikkei thinks should have been a wake-up call, but wasn't.
The Nikkei’s editorial was prompted by two recent decisions to retry murder cases. One happened in 1984 with the killing of a female liquor store owner in Hino, Saga Prefecture. A man named Hiromu Sakahara was arrested three years later, convicted, and sentenced to life in prison. Five years ago, the Otsu District Court agreed to retry the case, and the decision was upheld by the Osaka High Court. Osaka prosecutors have appealed. The courts judged a retrial was warranted because prosecutors had withheld mitigating evidence, specifically some photographs that contradicted photos submitted by the prosecution that supposedly proved Sakahara had led police to the site where the body had been dumped. Sakahara will not enjoy his likely rehabilitation - he died in prison in 2011.
The other retrial is that of Iwao Hakamada, who was sentenced to death for killing four people at a miso factory in Shizuoka Prefecture in 1966. The Shizuoka District Court ruled for a retrial in 2014, and prosecutors appealed, but Hakamada, whose mental capabilities deteriorated greatly while on death row, was released into the care of his older sister pending a decision. The Tokyo High Court earlier this year upheld the retrial ruling. Prosecutors say they will not appeal the decision this time, which means that Hakamada will almost certainly be exonerated, thus making it the fifth capital case since World War II that has been deemed a false conviction.
One of the reasons Hakamada's case is so controversial is that the defense has accused the prosecution of fabricating evidence. In a recent summary that appeared on the web site 47 News, the prosecution's various claims are debunked, including the origin of the so-called murder weapon. In addition, the testimony of one witness is seen to have been invented by prosecutors. There is also speculation that police who investigated the murders chose Hakamada almost randomly because he was an ex-boxer, and thus possessed an unsavory image that could be played up by the media. Even before his arrest, Hakamada was being named in the local press as the likely suspect.
During the initial investigation, Hakamada was brutally interrogated, and police eventually forced a confession. 47 News says that the officers who carried out the interrogation had years before been involved in a capital conviction that was later overturned after a retrial. However, at the opening of Hakamada’s trial, the prosecution’s main evidence, blood-stained pajamas that the defendant had been wearing when he committed the crime, were later found to have no blood residue after defense lawyers demanded a new evaluation.
The pajamas now useless as evidence, a year or so after the murder an employee of the miso factory supposedly found a linen bag containing five articles of clothing in a tank of miso. Four of the items were stained with blood, and they were submitted as new evidence. The prosecution changed tack, saying that Hakamada had been wearing these items of clothing during the murder and had hid them in the tank. Hakamada said he had never seen them before. There were other inconsistencies in the prosecution's claims, not the least of which was that fact that the clothes were too small for Hakamada.
On September 11, 1968, Hakamada was convicted of murder and sentenced to death, even though the court threw out 44 of the 45 interrogation reports and went out of its way to criticize the prosecution's case. As 47 News explained, anyone reading the court's statement would have concluded that it had acquitted Hakamada, but it hadn’t. The statement was written by the one judge who thought Hakamada was innocent, but his two colleagues found him guilty, so the conviction was based on a 2-to-1 decision.
After appeals, the death penalty was finalized by the Supreme Court in 1980. As to the legitimacy of the five garments as evidence, the judge who carried out a preliminary study of the case to prepare the trial judges simply said that it was outrageous to claim that the police had carried out such a large-scale fabrication.
But, in fact, it was the five garments that led to Hakamada’s eventual retrial. According to the Asahi Shimbun, the Tokyo High Court accepted new results of analysis of the blood stains that suggested the evidence really had been fabricated. Though the stains matched Hakamada's blood type, when displayed in court they presented on the fabric as reddish in color, despite the fact that they had supposedly been sitting in a tank of miso for a year. Experiments carried out by both the defense and prosecution found that such a situation should have resulted in stains that were black (though prosecutors still tried to claim the color was “reddish” around the edges). Consequently, the clothing was no longer admissable as evidence.
The Hakamada case is a textbook example of how police, prosecutors, and courts have one another's backs in the resolution of criminal cases, regardless of how flimsy the evidence is. But the IIzuka-Kuma case is even more redolent of this air of supposed judicial infallibility, mainly because all the evidence was circumstantial. In March 2021, NHK ran an ambitious three-part investigation into the case whose conclusions were quite disturbing in what they revealed about the attitudes of law enforcement personnel and the media that covered them.
If Hakamada was chosen as the fall guy because of his image as a boxer and ne'er-do-well, Kuma, NHK suggests, became a target due to the frustration of local police in solving the disappearance of an elementary school girl in 1988. Supposedly, the last time the child was seen was near Kuma's house, and police had questioned him with regard to the disappearance, but found nothing suspicious.
Three years later, on February 20, 1991, two other girls left for school but never arrived. Their bodies were found two days later. The closest thing the police had to a witness was a man who was driving in a remote wooded area on the morning of the disappearance and saw a “blue van with double tires” parked on the side of the road and a man next to it. Police later found the backpacks of the girls near this location. As it happened, Kuma drove a blue van with double tires, so the police questioned him and impounded his vehicle. They also took some of his hair for a DNA sample.
Although Kuma’s wife told NHK that the police assured her that they didn't suspect her husband, the case sped off in that direction, owing partially to the local press's interest. An editor and a reporter for the Nishi Nippon Shimbun explained how they decided to focus on the DNA analysis, still a new crime-fighting technology at the time, in order to gain an advantage over the competition. When the editor heard that DNA retrieved from the victim's body matched Kuma's DNA, he prepared to publish a scoop the day before Kuma's planned arrest.
However, the DNA matter wasn't so clear. The analysis carried out by the police found a match, but when a sample was sent to Teikyo University in Tokyo for a second opinion, the results were the opposite. But since the sample was so small as to be virtually useless, Teikyo didn't make a conclusive judgement. The prosecutor threw out Teikyo's statement and relied solely on the police analysis.
In addition, the police had taken apart Kuma's van and found a trace of blood that was too small to analyze and some tiny fibers that matched the victims’ clothing. This seemed to be enough to issue an arrest warrant.
So the prosecution's case was based on four pieces of circumstantial evidence: the eyewitness report of the van at a site near where some of the victims’ belongings were found; a trace of blood in the van; fibers that matched the clothing of the victims (and, presumably, the clothing of many other people); and a preliminary DNA match. Although the detectives interviewed by NHK admitted that none of these pieces of evidence were convincing by themselves, together they constituted a solid case. One of the most chilling aspects of the interviews with police is that they knew they were investigating a capital crime and so were determined to get everything right, but to them “right” meant making sure someone got convicted and punished. “We had to be thorough,” the chief detective said, especially since Kuma maintained his innocence.
The police's actions thereafter were geared toward reinforcing Kuma's presumed guilt. Kuma submitted to a polygraph where his non-responses supposedly led police to a remote area where clothing they said belonged to the girl who disappeared in 1988 was found. Though the girl's mother said it looked like clothing her daugher had worn, the reporter on the case confided to NHK that the garments “didn't look like they'd been in the wild for four years”. However, he refused to speculate if police had planted the items. In addition, police brought in earth moving machinery to dig up Kuma's property to see if the body of the girl had been buried there. They didn't find anything, but news of the operation was covered widely. So when Kuma was convicted and sentenced, there a profound sense of relief, and not just on the part of the police, who saw it as a vindication of their “hard work”. The Nishi Nippon Shimbun editor said the court's decision essentially justified the tenor of the paper's coverage of the case. He was happy he didn't have to think about it any more.
But he was wrong. After the appeals were exhausted and the Supreme Court finalized the sentence in 2006, Kuma was executed only two years later. That shocked everyone involved, particularly the defense, which had already been preparing an application for retrial and was caught off-guard. They now applied themselves to the task with heightened determination. The core of their argument was based on new testimony by a man who said he saw the two victims in another car on the morning of the murders, and, more significantly, questions about the DNA analysis, which were based on a methodology called MCT118 that had already been found to be flawed in a case involving a man who was falsely convicted of the murder of a girl in Ashikaga, Tochigi Prefecture, around the same time as the Iizuka murders. In addition, the lawyers said they had proof that the police had manipulated the DNA results they had found.
One premise of the NHK report is that the investigatory actions of the police were premised on Kuma as a suspect. The defense later discovered that the police had already made Kuma the main suspect two days before taking the original witness’s testimony, and believed the results of the testimony had come as a result of leading questions. In court, the police said they made Kuma the suspect as a result of the testimony. The defense team also recreated this testimony and found that the witness’s recall of a dozen details would have been impossible within the one-second space of time he passed the parked van. In 2017, the Nishi Nippon editor assigned two journalists who had no previous stake in the case to reinvestigate it. They produced a series of 83 articles over two years that questioned almost all of the police's conclusions. However, when NHK asked one of the journalists if he thought Kuma was innocent, he refused to say, only that the evidence presented in court was not enough for a conviction if the principle of “beyond a reasonable doubt” was applied.
Nevertheless, in 2021, the Supreme Court rejected the retrial request. At a press conference after the ruling, Kuma’s lawyers did not withhold their disgust. The defense had submitted 200 pages of detailed refutations of the prosecution's case, as well as new evidence, and the court had ignored all of it, sending back a six-page summary filled with legal cliches. “This was not written by a reasonable person,” said one of the lawyers.
If Kuma's case ever proceeds to a retrial, it would call into question Japan's use of capital punishment, since Kuma has already been put to death. Pundits who have followed the case say there is ample reason to believe his execution was prioritized on purpose. The DNA method used in both the Kuma and the Ashikaga cases was being questioned by experts at the time of the execution, and Kuma’s defense was already looking into challenging the method in court to secure a retrial. When both cases were being investigated, the National Police Agency was promoting this method as a new crime-fighting tool, so there is speculation that the Ministry of Justice tried to get Kuma out of the way before he and his lawyers had a chance to bring up the matter. The MCT118 method was discredited in 2009, a year after Kuma's death, when the DNA-based conviction in the Ashikaga case was overturned. The lingering doubts surrounding the timing of Kuma’s execution are credible enough to demand his case be scrutinized again, and more throroughly.
Sources
https://www.nhk.jp/p/bs1sp/ts/YMKV7LM62W/episode/te/W5RPKK7N98/
Philip Brasor is a Tokyo-based writer who covers entertainment, the Japanese media, and money issues. He writes the Japan Media Watch column for the Number 1 Shimbun.
