The detention of former Nissan Chairman Carlos Ghosn, denied bail for more than three months after his arrest on charges of financial wrongdoing, has subjected Japan’s criminal justice system to a new level of international scrutiny. But Ghosn’s experience is by no means unusual in a system that convicts 99.9% of all those indicted, largely on the strength of confessions made under the threat of extended detention. We talked to former welfare ministry official Muraki Atsuko about her own ordeal as a victim of Japan’s “hostage justice,” the reforms spurred by her case, and the work that remains to be done.
“Hostage Justice” in the Postal Fraud Case
In June 2009, Muraki Atsuko, then chief of the Bureau of Equal Employment, Children, and Families in the Ministry of Health, Labor, and Welfare, was arrested by the Osaka District Public Prosecutors Office in connection with the so-called Postal Fraud Case. Five years earlier, a group called Rin-no-kai had improperly obtained a certificate of eligibility to make use of a postal discount intended for organizations for the disabled. The discount had then been used to advertise appliances and other commercial products through the mail. A bureaucrat under Muraki’s supervision, Kamimura Tsutomu, had fabricated and issued the certificate, allegedly on Muraki’s orders.
Muraki, who denied all knowledge of the crime, was interrogated for 20 days, during which time she was under constant pressure to sign interrogation reports containing statements she had never made. Repeatedly denied bail following her indictment in July 2009, she wound up spending a total of 164 days, more than five months, confined to a cell in Osaka Detention House.
In court, the six prosecutors on the investigation team admitted to destroying all their investigation notes. Kamimura, the subordinate who had implicated Muraki in his confession, testified that he had done so under duress. Backed by numerous other witnesses, he declared Muraki's innocence, swearing that he had acted on his own.
Muraki was acquitted in September 2010. Not long after, three investigators at the Osaka prosecutors office were charged with destruction of evidence and other crimes related to their work on her case. The fallout from the scandal led to the resignation of the nation's prosecutor general and spurred a major revision of the Criminal Procedure Code, including new requirements concerning the taping of interrogations. But Muraki and other critics of the system maintain that the reforms will do little to prevent the kinds of abuses that her case made notorious.
Muraki Atsuko addresses the press corps in Osaka following her acquittal on September 10, 2010. (© Jiji)
A Rigged System
“Ordinary citizens probably don’t think much about our criminal justice system,” says Muraki. “I know I didn’t. If I heard on the news that a suspect had been arrested in connection with a crime, I was just glad the perpetrator had been caught. It was only when I was arrested myself and forced to prove my own innocence that I realized there were three major obstacles to obtaining a fair trial in Japan. ”
The first obstacle, as Muraki sees it, is a lack of transparency surrounding interrogations, which are conducted behind closed doors with no counsel present. “The investigators can take things you’ve said and distort them or rearrange them as they see fit, and the interrogation reports they prepare become the most important evidence in a criminal trial,” says Muraki.
The second problem is the long-term detention of suspects, especially those who maintain their innocence. The law permits the courts to deny bail in cases where there is a risk that the accused will either flee or tamper with evidence and witnesses. “But there’s no serious effort by the courts to determine whether there are valid grounds for denying a given individual his or her freedom,” says Muraki. “Any suspect who claims his or her innocence is almost automatically kept in detention. And that’s a powerful weapon [of coercion]. This is what people mean by ‘hostage justice.’”
The vast majority of suspects break down when faced with the prospect of weeks or months in detention. Muraki turned out to be an exception. She recalls the exchange that hardened her resolve.
Needing a motive, the prosecution had cooked up a story about Muraki having the document forged at the behest of an influential Diet member in return for the latter's pledge to expedite passage of legislation for the disabled, which Muraki and her staff were preparing around that time. Muraki was horrified by the accusation, and she was infuriated when an investigator tried to reassure her that society would view her lapse leniently, provided the sentence was suspended.
“After all, it’s not such a terrible crime,” said the investigator. “Compared to what?” asked Muraki. “Compared to murder or assault,” the investigator replied. At this, Muraki exploded. “Better to be accused of stabbing a lover in a crime of passion than confess to a pathetic crime like forging an official document so that a fake advocacy group can make some money!”
It was a shocking declaration, especially coming from a slight, mild-mannered woman like Muraki. But the investigator had hit a nerve. “Of course it’s a crime to kill or injure someone. But sometimes human beings are driven to violence by the depth of their emotions. As far as I was concerned, a crime of passion like that was more understandable [than the one I was accused of]. In any case, guilty is guilty, regardless of whether the sentence is suspended. The investigator’s statement made me realize how completely out of touch the prosecutors were with the attitudes of ordinary people.”
Concealing and Destroying Evidence
The third obstacle to a fair trial relates to the disclosure of evidence, or discovery. “The police and the prosecutors are the only ones who can search people’s homes, so they have all the evidence at their disposal. The burden is on the defense to request disclosure of this or that piece of evidence and sift through it in hopes of stumbling on something that might help to exonerate their defendant.”
Muraki feels that she was lucky in this regard.
A female lawyer on her defense team urged her to help out by reviewing the huge stack of photocopied reports and statements provided by the prosecution at the request of the defense, and to make a list of any and all inconsistencies she noticed, however small. “You have more time than any of us,” said her attorney, “and we have no idea how the bureaucracy works when it comes to issuing certificates and so forth.”
Muraki got to work reading pages upon pages of discovery documents, and one investigation report in particular caught her eye. The document recorded the file data from a floppy disk that contained the forged certificate, and Muraki noticed that the dates of the document's creation and revision were inconsistent with the prosecution’s version of events. In court, this discovery played an important role in undermining the prosecution’s case.
“I couldn’t figure out why the floppy disk wasn’t included in the evidence,” says Muraki. “I had told the investigator repeatedly that there had to be an electronic record of the fabricated certificate, but he had assured me there wasn’t.” It came out later that the prosecution, in addition to concealing the existence of the disk, had altered the data on it, concerned that it might end up being used in court to dismantle their case against Muraki.
Half-Baked Reforms
On December 24, 2010, the Supreme Public Prosecutors Office issued a report on its review of the so-called Postal Fraud Case. Unfortunately, the report skirted many of the central questions raised by the case, such as why the prosecutors persisted in presenting Muraki with false interrogation reports to sign even after it was clear that she was innocent. In hopes of getting to the bottom of the matter, Muraki sued the government for damages. The government, in a surprise departure from precedent, agreed to pay, cutting short a trial that might have cast a much wider net.
In 2011, Muraki was appointed to a special subcommittee on criminal justice reform, set up under the Legislative Council of the Ministry of Justice. The subcommittee consisted primarily of experts in criminal law, and Muraki found some of their arguments unconvincing.
“It was stated at one point that electronic recording of interrogations could be detrimental to public safety. What could be worse for public safety than railroading innocent people and letting the real criminals go free?”
The revisions of the Code of Criminal Procedure enacted in 2016, in accordance with the panel’s recommendations, incorporated several notable reforms, including new requirements that certain interrogations be audio recorded or videotaped in full (as of June 2019) and that the prosecution furnish the defense with a complete catalogue of the evidence it had gathered. But from Muraki’s viewpoint, the reforms fall short.
“There are a lot of problems remaining,” she says. “For example, mandatory recording of interrogation is limited to cases that will be tried by lay judges and special investigations by prosecutors [a small percentage of the total], and it doesn’t apply to questioning of witnesses.”
In addition, police and prosecutors can still deny suspects access to counsel during interrogation, putting them at a serious disadvantage. “This is basically throwing amateurs into the ring with professionals without even the benefit of a referee. At a minimum, they should institute a system that would allow any suspect to consult with an attorney before signing an interrogation report.”
According to Muraki and other critics, the reforms also fail to guarantee disclosure of exculpatory evidence, and they do nothing to restrict the ability of investigators to extract confessions by keeping suspects in custody for months on end. If the prosecution claims that someone presents a flight risk or could tamper with witnesses or evidence if released, the courts almost never question that assertion. “We need clear, transparent rules to determine when ongoing detention is appropriate and a system to guarantee that the rules are followed.”
Muraki views her case as symptomatic of a deeper malady common to Japanese organizational culture, manifested more recently in a series of scandals involving the falsification of public records by government agencies. As she argues in her recent book Nihongata soshiki no yamai o kangaeru (Reflections on the Ills of the Japanese Organization), systematic transparency and disclosure are essential to prevent isolated errors from escalating into organizational cover-ups. “Also, such a system would give officials much less leeway to bend the rules as a favor to this or that politician, which I would think would be a big weight off their shoulders,” says Muraki.
Putting Her Ordeal to Good Use
How did Muraki survive her months-long nightmare? She credits strong family ties, a network of supporters convinced of her innocence, a savvy defense team, and her own curiosity and industry.
For more than five months, Muraki was locked in a small cell, where she was unable to lie down or wash—even in the sweltering heat of summer—except at designated times. She quickly resigned herself to the rules and resolved to make the maximum use of the time at her disposal. “I had never in my life had so much time on my hands,” she remarks. “They gave me three meals a day and even did my laundry for me.”
When not preparing for the trial, Muraki read voraciously, finishing some 150 books in the course of less than six months. She also observed her surroundings closely and took detailed notes of everything, down to the menu for each day’s meals.
One of the things that troubled her the most during this time was the extreme youth of the female prisoners whose job it was to pick up and deliver her laundry and serve her meals. When she asked her interrogators about them, she was told that they were generally doing time for drug offenses or prostitution. When Muraki returned to her job at the welfare ministry following her acquittal, she became better acquainted with the plight of such women. She found that many were victims of child poverty and abuse, who had gotten caught up in the sex industry after escaping wretched conditions at home.
“When I was a civil servant, my job was to study ways in which we could improve people’s lives through administrative policies. Since I’ve retired, I’m free to pursue all kinds of activities, unrelated to policy.
"I can think outside the box now,” Muraki says with a smile. “But I’m still getting used to my new freedom.”
(Interview and original Japanese text by Itakura Kimie of Nippon.com. Photos by Miwa Noriaki except where otherwise indicated.)
