Race and a Wrongful Conviction in Japan

Exoneration Visible?

Across cultures, darker people suffer most. Why?
— T-shirt worn by rapper Andre 3000 at a recent concert.

Exonerations of wrongfully convicted suspects continue to dominate the news. For many years, wrongful convictions were considered the result of honest mistakes. Mistaken eyewitness judgments were considered the major factor. But contemporary research has disproved this hypothesis. We now know that police and prosecutorial malfeasance — suborning perjury, concealing evidence, falsifying scientific reports, etc., is the leading factor in wrongful convictions.  And the majority of victims are people of color.

Racial prejudice has a long history in the USA. Jailing people of color is a political expedient which benefits the dominant race. We would not expect this phenomena to occur in many other countries, particularly those with few people of color. Least of all, Japan.

One person who found out otherwise is Julius (nickname), a Nigerian resident of Japan. In June of 2001 he was living in the western city of Himeji. Already married to a Japanese national and the father of one child, the 25 year old had a flourishing business of breaking down used cars and exporting the parts. He was paying taxes, and had just received permanent residence — no small feat after a relatively short stay in Japan. All in all, life was good.

In the late afternoon of June 19, a police cruiser appeared near his residence. Julius was at a neighbor’s watching CNN. Suddenly, an officer approached and yelled out, “Whose garage is that next door?” Julius responded affirmatively. He was thrown on the ground, cuffed from behind and taken to the police station.

Seated in the interrogation room, two detectives just sat quietly and glared. He knew why he was here, so they just waited for an apology and a confession. Julius was stupefied. When he asked,  why he was there, one cop screamed, “You know why you are here! Just cut the crap and confess now! We have retrieved the money.”

Stunned, speechless

Julius was stunned, speechless. The police were not going to settle for feigned ignorance. “So tell us, how did 24,000,000 yen ($220,000) in cash end up in your garage?” Once again, Julius sat stupefied. “I have no idea of what you are talking about.”

Julius was telling the truth. He really had no idea that a local post office, the Himeji Hanada branch, had just been robbed by two black men wearing rain gear and ski masks.

The police were adamant. “Confess, dammit, we have the money, and your damn ski masks!” When Julius did not respond, they grabbed his dreadlocks and slammed his head against the wall.

Legal limbo

The brutal interrogation continued for some hours. Julius’s wife, hearing that her husband had been taken away, visited the station and brought some food. The interrogation continued. Around 10:00 pm, the police decided to call it a night. But there was one problem: they had no arrest warrant. Had Julius been caught in the act, arrest would have been a simple matter. But this was not the case. He was simply seized and brought into custody — a sort of legal limbo

Without an arrest warrant signed by a judge, Julius could not be legally incarcerated. He should have been released. To overcome this obstacle, the police did not move him to a cell, but just kept him locked overnight in the interrogation room.  He slept on a chair with his head on the desk.

A warrant was exercised at 7:00 am the next morning. Julius was now a prisoner of the state.

News of the robbery was broadcast locally. Hearing of the arrest, one of the actual culprits felt a tinge of guilt. He decided to come clean.

A true confession

“Dave ” as he is referred to in transcripts, worked for and was related to Julius. He contacted Osaka attorney Takashi Ikeda through a local English magazine. Dave was upfront, “I committed the crime and I want to confess to the police.”  Ikeda came out to Himeji and accompanied Dave to the police station. After signing a confession, he vehemently insisted that Julius had nothing to with the crime. The other perpetrator was a third Nigerian who went by the name of Austin.

Hearing of Dave’s admission, Julius thought the nightmare over. The police had one perpetrator and catching the second would not be difficult. The Japanese police are very good at tracking down suspects. The search is radically easier when the suspect is of a different race.

A Dark Side

Though it seems unconscionable, the police never pursued Austin. They had Julius in their jaws, and he was too tasty to be released. The question is why?

Like so many stories about wrongful convictions, there is always a flip-side. Several months before the incident, police began questioning black foreign residents in the Himeji area about a rape that had occurred in the city of Osaka, some 90 km (60 miles) away. A Japanese woman reported being raped by an unidentified black man, and police were investigating.

Julius, being a married permanent resident, was one of the first approached by the police. Many of the black residents in the area had overstayed their visas and were unlikely to cooperate. Julius thought this a good opportunity to clear the names of those living in the area, and make good with the powers of law enforcement. The police had DNA, and those who were innocent would certainly cooperate.

Julius took a cooperative viewpoint.  “I contacted all the blacks in the area, the Africans, the Americans, those from the Middle East. We decided to participate in DNA testing. We knew that those who volunteered would be cleared.”

The plan backfires

Things did not go as expected. The first volunteer was arrested. Julius made enquiries and leaned that the DNA did not match. He complained vociferously to the cops. “You said that if the DNA did not match, the guy would go free.” The police replied with disdain and suggested that Julius should give a statement inculpating the suspect. “I will not. And you better let the guy go. You know, we could complain to the United Nations.”

Most citizens in Japan are obsequious in the face of police. Likewise, the police are not used to those who talk back, particularly foreigners. The police at the station conferred in a small huddle, and counterattacked.  One got into Julius’s face and shouted, “Are you threatening us?”

Safe to say from that moment, Julius, a happily married Japanese resident who embraced the idea of cooperation with law enforcement, was now a public enemy.

Fabricating Evidence

With one culprit incarcerated, and the other free, the police would have to build a case. But how do you build a case against an innocent man? The solution: doctor evidence, suborn perjury, and tell lies.

Police claims and Defense assertions

Let us examine the case against Julius, the prosecution’s claims and the assertions of the defense.

Claim 1. The money was recovered from Julius’s warehouse which was usually locked and the key in his close possession. Therefore, Julius was the only one who could store the money.

Assertion 1: Julius: “I never locked the place. There was nothing to take — heavy car parts and old tools. I never worried about anybody stealing. Sure I locked the place at night, but during the day it was always open. Anybody could have entered at anytime.”

Claim 2: Of the two faces captured on the post office video, one was undeniably Julius.

Assertion: It was not Julius. The face does not match and neither does the hair. Julius had long dreadlocks at the time. The perimeter around face is apparently blacked out, and no long hair is visible.

Claim 3. Another Nigerian acquaintance “F,” signed an affidavit stating that no one named Austin existed.

Assertion: The defense tracked down Mr. F. He stated that he never signed any such document. It was an utter forgery.

Suborning Perjury

The prosecution still lacked solid evidence. A typical procedure, both in Japan and elsewhere, is to offer one culprit a deal in exchange for testimony. Such testimony would easily seal the case.

Dave was offered a deal. Testify that Julius was your partner and jail time will be waived. You can return home right away. Otherwise, you will serve years in prison.

Testifying falsely against others in order to save oneself is yet another significant factor of wrongful convictions. Fearlessly, Dave rejected the offer. He would not rat on his cousin. Moreover, he became a defense witness and testified for Julius. The prosecution made good on its threat: Dave spent two and half years in prison and was then deported.

The $220,000 question.

Readers outside Japan are probably perplexed if not stunned wondering how so much money could be inside a ‘post office.’ Well, it is not only readers outside Japan but many of us inside as well.

To begin, Japanese post offices do much more than process mail. They also serve as banks. The government offers savings accounts, and for many citizens it is a kind of national piggy bank. Personal checking accounts do not exist in Japan, and most domestic payments are made by postal transfers.  I pay my health club membership through a post office account, and nearly everything else, including donations to a school for the deaf in the Philippines. Post offices also offer health insurance and pension plans. Indeed they are financial institutions.

As a long term Japan expat, I was stunned when I heard about the money retrieved in this case. This is a small suburban post office, in no need of such huge amounts of cash. I wonder how many small American banks with 7 or 8 employees would have so much money?

Many observers of this case think that the $220,000 loot is greatly exaggerated. How much was taken? A fraction of that? The post office employees were mum when interviewed. Lesser money could mean a lesser sentence. This is still an unsolved riddle.

Building evidence

As mentioned above, the robbery was caught on camera. There were two cameras but only the surveillance tape of one was submitted as evidence. Perhaps due to the high summer temperature, one of the culprits removed his ski mask during the crime. The face is difficult to make out. At court the prosecution insisted the face was that of Julius. But Julius had long dreadlocks at the time, and these are not visible.

In the end, Dave’s honest testimony did not help. Julius was sentenced to six years. His appeals were denied by the Osaka High Court and the Supreme Court.

A chance at vindication

In 2009, Julius was released from prison after nearly 8 years of incarceration. Though sentenced to 6 years, pretrial detention in Japan is only partially counted toward sentences. And the 5 months spent appealing to the Supreme Court did not count at all.

Needless to say, Julius was not free. He was not allowed to unite with his wife and child, and instead, was transferred to immigration detention. The Ministry of Justice was pushing for instant deportation.

Julius’s attorney notified the MOJ that he would be filing for a retrial. The retrial would take time. A small miracle of sorts, Julius was granted provisional release.

Retrial

In order to convince a court to open a retrial, new evidence must be presented. A reconsideration of old evidence is not enough. This is a roadblock in many cases.

Fortunately, new evidence has been discovered. And some is rather startling.

First and foremost is the post office video of the robbery.  The face of one of the culprits is visible. Both Dave and Julius testified that the face was that of Austin. And that it could not be Julius due to the radically different hair style.

Attorney Ikeda always had suspicions that the police had altered the tape. He enlisted the services of a forensic analyst in the U.K. After a detailed analysis, the forensic expert found that the original tape had been doctored, particularly the area around Austin’s head. The darkening was to mask the dreadlocks.

A second source of new evidence is the ski masks. One day Julius visited the police station to see if he could retrieve any of the evidence. Though it was a fishing mission, he made a great catch. The ski masks were in the evidence box.

The masks were analyzed for DNA. A sizable amount was retrieved. And none matched Julius.

Most shocking of the newly retrieved evidence was a hair analysis report created by the police before the first trial. The report indicated that hair taken from one of the ski masks did not match either Julius or Dave. The prosecution knew about this but hid it from the defense.

Decision?

In 2014, two years after submitting the retrial request, the Kobe District Court issued a rejection. The defense appealed.

In 2016, exactly two years to the date of the previous dismissal, the Osaka High Court overruled the lower court rejection and remanded for retrial. But its reasoning was convoluted. The court deemed, “Even if Julius was not the perpetrator, he was likely an accomplice.” Attorney Ikeda was flabbergasted. “According to the Code of Criminal Law, one cannot be both the perpetrator and the accomplice. This is a legal impossibility.”

State Redress Suit

In addition to a retrial request, attorney Ikeda has also filed a suit against the state seeking financial damages for police malfeasance in violation of the Constitution and the Code of Criminal Procedure. Typically, this is done after an exoneration. Ikeda has boldly challenged the state hoping that good results in a civil suit will aid the retrial request.

One of the many claims Ikeda is pursuing is Julius’s seizure without warrant. Unless caught in a criminal act, police may not incarcerate suspects without a warrant. Suspects can be asked to voluntarily appear at a police station, (and many do with unfortunate consequences.) Needless to say, detainment without a warrant is grossly illegal. Sadly enough, non-Japanese may be at the brunt of this practice.1

Legal Limbo Redux

Julius is under a residency status known as ‘provisional release.’ Upon conviction, his permanent residence was revoked. He may not work, and is forced to live on his wife’s salary and assistance from supporters. He cannot leave Hyogo prefecture, and even needs to get special permission to visit his Osaka attorney. His appeals may take many more years. But there may be light on the horizon. The Kobe District Court originally scheduled a decision on the state redress suit for May 12. The decision was postponed and will be issued on June 16.

Julius’s supporters think this is a sign of hope. If the court chooses to reject the state redress suit, issuing a decision would be perfunctory. Ruling against the state and in favor of a foreign defendant is very unusual. But the evidence in this case being so strong, hope is on the horizon.

  1. In 1997, Filipina Rosal M Villanueva, was held without a warrant in a hotel for 10 days while authorities investigated the stabbing death of her live-in boyfriend. Though ultimately convicted — what many called a gross malfeasance of justice — she was awarded  two  million yen in a state redress suit for illegal confinement. For a possible explanation of this phenomena, see  “Gangsters and foreigners have no rights“.  Note:  This case has been verified as a manifest violation of human rights by the Japan Federation of Bar Associations Human Rights Protection Committee. Presently, there are only 12 active cases with this verification. For more info see here. []
Michael H. Fox is associate professor at Hyogo University and director of the Japan Innocence and Death Penalty Information Center. Read other articles by Michael H., or visit Michael H.'s website.