The Law And The People With It

De profundis clamavi at te Domine

From the Depths, I cry out to you my Lord!

It is possible and indeed not unreasonable to see Japan's criminal justice system as suffering from a split personality.

On the one side there is the police force -- reactive, laconic (some might say lazy), non-judgmental ("The person was found stabbed, shot in the back, chained and handcuffed inside the locked trunk of a car at the bottom of a local reservoir. Police are investigating the possibility the deceased was involved in some sort of trouble...") and otherwise preoccupied with watching the world go by.

Once the police and the courts are engaged, however, jurisprudence becomes a juggernaut, crushing due process, presumption of innocence and human dignity beneath the wheels of The Law. Jake Adelstein offers a familiar yet still depressing glimpse of the sheer bloody mindedness of the criminal investigation and prosecution machine in his newly published bit of reportage, "Abandon Hope All Ye Tried in Japan" over at The Daily Beast. (Link)

Before reading Adelstein's piece, I considered the inert and relentless faces of criminal investigation independent aspects of a cultural dichotomy. Upon reading Adelstein's account, however, both the inactive and active aspects of the law seem facets of a not illogical unified whole. Having a police force and courts who most of the time refuse to involve themselves in the affairs of the citizens but when they do engage themselves they do so with a reprehensible zeal sets the base conditions for a stable, low cost equilibrium. If the state were to apply its crime investigation methods equally to the entire populace, the cost of prosecution and incarceration would be Himalayan, much of the population would be in jail and those still free would see the police and the courts as evil. However, by selectively, infrequently but merciless applying themselves to cases, the police and the courts create strong incentives for the citizens to police themselves, if only to stay out of harm's way. A police officer does not need to be on every corner, nor does every complaint need to be followed up. Instead, just take a thin slice of the cases and act upon them with blind, vengeful determination. The citizens will take note of what happens to those who become trapped in the pit of the law (don't call it "justice") system and will strive, of their own volition, to never, ever becoming trapped in that system themselves.


Later - A Journal of Legal Studies article focusing on the conviction rate coming to the same conclusion as to costs (Link). However, the authors see the low budget for prosecution as a bug, not a feature.

In discussions of his article on Facebook, Jake Adelstein notes that the current system has difficulty prosecuting cases where the criminal refuses to confess and physical evidence or eyewitness testimony is poor. Low cost implies tradeoffs and this is one of them.

Photo image: Nightfall in Manazuru, Kanagawa Prefecture on February 23, 2012.
Photo credit: MTC

The Magnificent 30s

From Professore Andrea Ortolani, in comments, a note of commonality in between Justice Ikadatsu Junko, who on Monday ruled unconstitutional and invalid the elections held in the Hiroshima #1 and #2 House of Representatives districts last year -- and Justice Katano Noriyoshi, who ruled yesterday that the Okayama #2 district election was unconstitutional and invalid (Link): both Ikadatsu and Katano are from the 30th lawyers' examination class.

So what?

Members of the 30th graduating class are on the cusp of retirement. Justice Ikadatsu is 65, mandatory retirement age for a justice. Katano, if he is not also in his final year, is probably close to it.

Nothing like approaching retirement to ease fears of retaliation and exclusion. Nothing stands in the way of your getting a full pension; no one can threaten you with exile to the sticks (Justice Ikadatsu served in Gifu, Tsu, Tokyo, Nagoya, and Okinawa before her present posting). No sempai can pressure you to not rock the boat. Having no hope of higher appointment, you are liberated from the need to be popular with your peers.

Revolution -- t'is a priviledge of the old.

Praise for Ozawa Ichiro and His People

In a few hours' time, if the news media have it right, Ishikawa Tomohiro, Okubo Toshinori and possibly Ikeda Mitsutomo will be indicted for violations of campaign finance law. These indictments will be a travesty of justice and an insult to simple decency.

That the actions of the prosecutors shall not be a dagger into the heart of democracy is due to the fortitude of these three men, as they resisted in giving the prosecutors what they had been seeking all along: a pretext to arrest Democratic Party of Japan Secretary-General Ozawa Ichiro.

In Ozawa, the prosecutors had the perfect villain: smarmy, arrogant, secretive, tough toward the United States and in cahoots with the Chinese leadership, treacherous (fatally treacherous, in the case of Prime Minister Obuchi Keizo), insincere, a former confidant of Tanaka Kakuei, willing to promote bad policy in search of votes and most importantly, physically ugly.

People would cheer his downfall.

The only problem was, the prosecutors did not have a crime...and going though all of the material seized from Ozawa's home and offices for months and placing Ozawa's former aides in prison for 23 days in mid-winter did not lead to the discovery or the manufacture of one.

Which among us could undergo similar scrutiny and not be found guilty of some violation? Very few, I would suspect.

That the prosecutors are predicted to be throwing in the towel despite having burrowed through mountains of evidence should indicate how utterly we have been manipulated into hating Ozawa and assuming his guilt. We have been fed heaps of horse manure by the conservative politico-media complex, and for the most part, we have accepted what were fed as fact.

Ozawa is an unpleasant man to look at and listen to. I am for one am glad he is predicted to continue assaulting my senses for some time to come.

Further Cracks in the Levee

In a decision taking one more chip out of the edifice of power that thwarted the popular will, inflated the importance of rural votes and helped perpetuate rule by the Liberal Democratic Party, Hiroshima High Court judge Hirota Satoshi has found that differences in the size of voting age populations inside House of Representives districts leading to dilutions of voting strengths greater than two-to-one are unconstitutional. While Hirota ruled against the plaintiff, a Hiroshima Prefecture man whose own voting district in the August 2009 elections has a voting age population 1.47 times larger than the least populated district the nation (Kochi District #3) he did state a seemingly obvious but heretofore ignored principle:

"It is difficult to think that without any (specific) constitutional sanction, a single voter living in a least populated district gets two votes or, conversely, that two voters in a high population district get only one vote."

Slowly, slowly the courts have been chipping away at the vast disparities that exist in voting strengths, starting with the first decision in December 1972 that found unconstitutional a difference of greater than 4.99 in voting strengths. The informal standard since 1990 has been anything greater than 2.99 is unconstitutional, challenges of a 2.0 standard having failed in 1996, 2000 and 2005.

For those who believe in the wisdom of the people, particularly a highly educated people with a general neutrality towards religious or other ideologies, the court's timidity heretofore in giving the people their constitutionally guaranteed equal voice in how they are governed has been an infuriating and demoralizing spectacle. With this ruling, there is hope, albeit a late one that Japan's stumbling responses to the decay of the last 20 years will come to an end.

The Temple of the Law

Going through my files (I call them my files even though they really are just uncollated, dog-eared sheafs of paper) I came across a newspaper report of an Aichi court decision from one year ago. It casts an interesting light of the Okinawa police force's decision to not charge Sgt. Tyrone Hadnott, particularly as it applies to the issue of how intent can have an effect on the prosecution of sex crimes.

On May 24 last, newspapers reported that the previous day a Nagoya Municipal Court had found a 32 year old man not guilty of violating Aichi Prefecture's Youth Protection and Nurturing Ordinance (seishōnen hogo ikusei jōrei, also called the "Prohibition against Harlotry" – inkō no kinshi). The man, an assistant restaurant manager--married, with a pregnant wife and one child at home -- began a relationship with a then 17 year old high school student working part time at the restaurant. Four months after the girl began working at the establishment, the man and the girl began visiting a local hotel to engage in sex. The recorded number of visits to the hotel were six...

The police arrested the man for violating the ordinance's prohibitions against inciting a minor to lewd and licentious behavior. Prosecutors demanded he pay a 400,000 yen fine.

The judge ruled the man not guilty, with the explanation, "It was a sincere and continuing relationship for which it cannot be said that the man carried it out solely with the intent of satisfying his own lust." As a consequence, the judge concluded, there is no evidence of a crime having been committed.

Prosecutors brought up the seemingly important point of the man being already married. The judge would have none of it, saying, "The girl knew of the situation and accepted it. She sought out this relationship out of mutual affection."

As for the argument that the man abused his position as the girls's supervisor—the judge dismissed it out of hand.

In closing remarks, the judge nevertheless warned the man:

"This court's decision does not represent the public's placing a mark of approval on your actions. I want you to think seriously that even though what you have done is permissible under the law, what you have done has elements in it that are morally impermissible."

Very odd. Not very encouraging too. I can perceive no legal principle being honored. The special needs of children for protection...the definition of sexual harassment...impartial application of the law as written...the separation of the powers...all dissolved in the bathetic cauldron of "affection."

Sometimes it seems as though the law is just one vast, empty edifice.

Pour l'exemple - Hadnott sentenced

Last month I was stunned at the U.S. military's filing a mountain of charges against Staff Sergeant Tyrone Hadnott in relation to an alleged rape of a 14 year girl in Okinawa on February 10.

I was beside myself. I could not believe that a U.S. military court could try and convict a service member of serious sexual assault when Japanese prosecutors, laboring under extreme political and community pressure, could not file charges.

Despairing that my own lack of faith in law enforcement may have tainted my assessment of the case, I posted the following on April 25, the day the news broke of Hadnott's arraignment:

I must admit, I have hoped Sergeant Hadnott not guilty of the crimes of which he has been accused. I suppose I have not lost hope that he is still partly innocent--that he is being charged with very serious crimes in order that he may be intimidated into confessing a lesser crime as a part of a plea bargain--a dirty trick but one exasperated prosecutors will employ in order to win a conviction sometimes.

It is a long shot though--and one that unfairly impugns the motives of JAG officers--a really bad initial assumption, generally.

Not so long a shot and possibly not so unfair, as it turns out.

The extremely serious charges against Staff Sgt. Hadnott -- all bargained away.

Hadnott goes to the brig for three years for the crime of abusive sexual conduct: touching the victim in a sexual manner over clothing.

US Marine gets 4 years on sex charge
AP

By TOMOKO A. HOSAKA –TOKYO — A U.S. Marine accused of raping a 14-year-old Japanese girl was convicted of a lesser charge Friday during a court martial and sentenced to four years in prison in a case that inflamed public anger at the American military presence on Okinawa.

Staff Sgt. Tyrone L. Hadnott, 38, was found guilty of abusive sexual conduct, said Master Sgt. Chuck Albrecht. He said four other charges — rape of a child under 16, making false official statements, adultery and "kidnapping through inveigling," or trickery — were dropped.

Though Hadnott was sentenced to four years in prison, he will only serve a maximum of three years, with the fourth year of the sentence suspended under a pretrial agreement, the Marines said in a statement...

Justice has been served.

I am sure of it.

We have nothing to fear.

A spanner in the works

Wow, did the judges in Nagoya throw the government for a loop yesterday, ruling that the dispatch of the Air Self Defense Forces to Iraq is unconstitutional.

Japan Court Rules Sending Troops to Iraq Illegal, Kyodo Says
Bloomberg

By Naoko Fujimura April 17 -- A Japanese court said the country's dispatch of troops to Iraq was unconstitutional, becoming the first court to rule the mission illegal, Kyodo news service said.

Airlifting activities by Japan's Air Self-Defense Force in connection with the U.S.-led war in Iraq violate Japan's constitution, which renounces war, Presiding Judge Kunio Aoyama at the Nagoya High Court in central Japan said, according to Kyodo.

Even though the court declined to suspend the mission or award damages, plaintiffs won't appeal the ruling, the report said. Prime Minister Yasuo Fukuda told reporters the decision won't affect Self-Defense Force activities in Iraq, Kyodo said.

The court ruled that the air dispatch was not just unconstitutional, but illegal, the flights into Baghdad violating the provision of the Special Measures for Humanitarian and Reconstruction Assistance Law limiting the activities of the Self Defense Forces in Iraq to "areas outside of a zone of conflict".

The response of the government? Dismisssive. "Heck, it's non-binding. So no problem." According to the Tokyo Shimbun, one legislator even said, "The lead judge just wanted his name to go down in history." (He did have a little caveat, continuing, "Even so, it's a problematic ruling.")

[Just an aside--but is it not interesting that when a judge rules that what a street criminal did is illegal, the street criminal is universally condemned, particularly by the law-and-order types in the Diet, as having been a bad, bad person. However, when a judge rules that what the politicians have done is illegal...it is the judge who is wrong!

Perhaps politicians, when they were young, were taught to not respect the law by leftist teachers who would not sing the national anthem.]

The ruling represents a shot in the arm for a lot of causes that had fallen moribund.

The ruling will revive the Democratic Party's fight to withdraw the SDF from the Mideast, the next hurdles being the renewal of the Indian Ocean dispatch in January of next year (it was for only one more year, was it not?) and then in July, the renewal of the law permitting the ASDF flights in and out of Iraq.

The ruling will also revive the constitutional revision crowd, many of whom must have been stunned at the Yomiuri poll of a week ago showing that the number of respondents thinking the constitution in need of revision fell below the number of those thinking the constitution should be kept as it is. If the constitution does not permit the dispatch of the planes, and a dispatch of the planes is indeed vital to Japan's overall security--then efforts must be made to have the constitution amended, with popular disquiet an issue that needs be dealt with by-the-by.

Another group who can take heart in the ruling is a broad coalition of folks from all points in the political spectrum who share a common, humble wish: that the courts of the land force everyone, even the powerful and the influential, to obey the law as it is written. The Nagoya court looked at the words of the law and decided that they meant something--and in this land, that is no mean achievement.

Almost Nothing Left to Say

The newspapers are all starting to report almost identical stories about the taxicab murder case, rather than contradictory or wildly different tales.

Today's revelation--a female acquaintance of the accused, in whose residence the accused has had recent entry, has testified that the murder weapon resembles a knife that has been missing from her home. The papers also claim that the sailor, who has been denying any connection to the crime, has begun admitting a connection to the cabby's murder to U.S. military authorities.

How long this daily drip of revelations will be allowed to go on before the Yokosuka police make a formal request for the transfer of the sailor to their custody is anybody's guess.

The Net's Closing In Around

In the case of the murdered taxicab driver (references begin here, et al) assertions today by the Yokosuka Police have made it much harder to believe in the innocence of the accused American sailor.

One report has the sailor calling an acquaintance from within Yokosuka just after the estimated time of the murder. According police, the sailor's words in that telephone conversation intimated that something bad had just happened to him.

The police have also claimed that the image of a person resembling the suspect was recorded by a Shinagawa security camera the night of the murder.

What this tells me is:

a) DNA tests and fingerprint dustings on the murder weapon and from the interior of the car have been inconclusive

b) there is pressure to lock down this case sooner rather than later.

These revelations, though not damning, are going to put extreme pressure on the U. S. Navy and the FBI to transfer the suspect to Japanese custody.

I would like to see a prosecutor convince a judge to issue an arrest warrant here first, before beating myself over the head for doubting the full guilt of the suspected murder.

Later - True to form, the Asahi Shimbun is swimming in the deepest end of the pool. While the other news agencies are claiming that the sailor in his mobile phone conversation "gave hints" or "gave indications" or "intimated" that he was involved in an incident, the headline of the top story of this evening's edition of the Asahi screams:

"The AWOL American Serviceman: 'I Stabbed Him!'"

I note with some sardony that in the article, the Asahi admits that its previous exclusive, that the serviceman claimed he was in a Dobuita drinking establishment at the time of the murder "has yet to be confirmed."

No kidding.

Still later - This is getting stupid.

The evening Asahi Shimbun claims that the serviceman told his acquaintance, "several things including 'I did it, unfortunately...' (yatte shimatta) and 'I stabbed him!' (sashita) and the like." Now the weekly tabloid magazine Shukan Gendai, always a paragon of probity, offers yet another version of today's police revelations, claiming that the serviceman said, "I did it, unfortunately..." (yachimatta) which the Shukan Gendai insists is supposed to be understood to mean, "I stabbed him."

[I file as a mental note for future reference the Shukan Gendai's use of a contraction and the Asahi's use of the formal phrase.]

It seems that nobody really knows anything.

The Nihon Keizai Shimbun is hedging the most, noting that the source of today's revelations is not actually "the police," but "sources with connections to the investigation."

Which means...

Juggernaut

A U.S. active duty serviceman has been arrested in Okinawa Prefecture for assault of a sexual nature upon a 14 year old girl. Christopher Pelligrini over at Trans Pacific Radio has tried to put the case into context in a thoughtful essay on the prosecution of rape in Japan while Tobias Harris has examined the politico-military background to the case (here and here).

There is a limit to the level of sympathy anyone can extend to the accused: he has already admitted to forcible sexual assault upon a minor. His assertions that he did not engage in sex or know that the girl was not of legal age do not detract from his having forced his attentions upon a person who lacked the physical means to resist him.

Nevertheless, the rapidity of Staff Sergeant Tyrone Hadnott's transfer to Japanese custody, his immediate arrest on the incredibly flexible charge of bōkō (暴行）and the multi-ring media circus ever since leave little room for faith that he will be tried only for the crimes he has committed. More likely he will be tried for all the unprosecuted or insufficiently prosecuted rapes and murders of the occupation period and the U.S Defense Department's shielding of its warfighters and civilian personnel with the Status of Forces Agreement after the reversion.

The hopelessness of Sergeant Hadnott's situation was made clear in the first comment out of Foreign Minister Kōmura Masahiko's mouth as regards the incident. "Ii kagen ni shiro" ("Give me an effing break") he told the bank of cameras, explaining what the people should be feeling when they first hear of the story on the news.

When the two-time Minister of Foreign Affairs, the nation's top diplomat and the holder of a degreee in law, eschews the language of diplomacy in favor of an earthy, exasperated "What the hell? Again? Give me an effing break" locution--you can pretty much discount the "innocent until proven guilty" presumption.

Ambassador Thomas Schieffer and Marine Lt. General Richard Zilmer have gone before the cameras and sworn, solemnly--with either with complete incomprehension of the situation or with the coldest, most calculating of hypocrisies--to "cooperate fully with the investigation."

I must confess, I laughed. "Cooperate fully with the investigation? What investigation? You have already handed him over to He is in the hands of the Japanese legal system. They have already booked him for assault. What is left to investigate, aside from the length of his sentence?"

Why care? Why should anyone care that a jerk, an idiot, possibly a pedophile, possibly a rapist, is crushed beneath the wheels of the law? If that is the cost of keeping the alliance going-- that a fool is tossed under the wheels to excite the crowd even as his superiors proclaim the openness of their minds as to his guilt--then so be it, right? Is he not a soldier, ready to lay down his life for his country anyway?

We should all be pragmatic--let the law be used to settle old scores, clear old debts from old accounts. We also need to give the people a moment or two of righteous indignation since that makes them feel better about Japan's semi-colonial status.

Anyway, it too late to change anything. The judicial process has begun--the guy's toast. Why waste the resources and the energy? We ourselves could never do anything stupid that could be misrepresented or misunderstood...and the police and prosecutors would never imprison us in order to fulfill a quota or respond to political pressure to "do something!"

Think about the greater good.

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Photo: Demons tormenting the damned
Detail from the Enma Scrolls of the Zendōji
Yorii City, Saitama Prefecture
February 11, 2008

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Later: Many thanks to reader AC for the correction. According the timeline printed in the Asahi Shimbun evening edition of February 12, local police found Mr. Hadnott sitting in his car in front of his off-base home just after midnight on February 11. The officers convinced Hadnott to voluntarily come with them to the police station for questioning. They arrested him at the police station at around 2:10 a.m.

Even later: After reading the various accounts of the purported rape in the various major dailies, none of the actions or words of any of the main actors makes any sense at all.