Capital Punishment Without Capital Trials in Japan's Lay Judge System 証拠調べ終了後の論告まで死刑が求刑されるかどう か分からない日本の裁判員制度における死刑
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Volume 8 | Issue 49 | Number 1 | Article ID 3461 | Dec 06, 2010 The Asia-Pacific Journal | Japan Focus Capital Punishment without Capital Trials in Japan's Lay Judge System 証拠調べ終了後の論告まで死刑が求刑されるかどう か分からない日本の裁判員制度における死刑 David T. Johnson Capital Punishment without Capital original Jury Law was suspended during the Trials in Japan’s Lay Judge System Pacific War. In May 2010, newspapers reported that the new system “has had a smooth first 2 David T. Johnson year,” though they also stressed that it “has yet to be really tested by cases involving complex chains of evidence or demands by prosecutors for the death sentence.”3 I really agonized. I cried many The new system is being tested in its second times during the trial, and now year. In June-July 2010, lay judge panels when I recall it I still shed tears. I handed down three complete or partial want you to understand this. acquittals in cases involving complex evidence and defendants who denied guilt, causing some Man in his fifties who served on prosecutors to contend that the new system the first lay judge panel that makes it “harder and harder to persuade lay imposed a death sentence in Japan judges that defendants are guilty”—despite the (press conference after the trial of fact that these not-guilty verdicts were the first Ikeda Hiroyuki, November 16, that lay judges had rendered in more than 600 2010) 4 trials. In September, a lay judge panel in Tokyo evaluated the contradictory claims of Does capital punishment do medical experts and endured two weeks of justice? We the people who frenzied media coverage before convicting constitute society have entered an actor Oshio Manabu and sentencing him to era in which we must directly two-and-one-half years in prison for failing to confront the death penalty and call an ambulance to aid Tanaka Kaori, who answer this question. died of an overdose of Ecstasy (MDMA) that Tokyo Shimbun (November 17, Oshio had given her when they met to have sex 2010, p.26) in a Roppongi apartment (prosecutors wanted a six-year sentence).5 And in October, Japanese citizens started to decide who the state should In May 2009, Japan began a new trial system in kill. By the end of 2010, lay judge panels had which ordinary citizens sit with professional made five capital decisions, resulting in one life judges in order to adjudicate guilt andsentence, three death sentences, and one determine sentence in serious criminalacquittal. See Table 1. cases.1 This change injected a meaningful dose of lay participation into Japanese criminal trials Table 1. Capital Trials in Japan’s Lay Judge for the first time since 1943, when Japan’s System, 2010 1 8 | 49 | 1 APJ | JF have done. Perhaps there is nothing to be done except atone for my crimes by giving up my own life, though sometimes I feel this might be running away. Perhaps it is better to atone by living and remembering. I am deeply sorry for what I have done, and I have no excuses.” Defendant Hayashi Koji’s final statement to the court before it deliberated about his sentence. He spoke these words through tears, Sources: Yomiuri Shimbun, “Kensatsugawa ga and concluded with a ninety- Shikei Kyukei Shita Saibanin Saiban no degree bow that he held for Hanketsu,” December 11, 2010, p.24, and other several seconds (Tokyo District newspapers. Court, October 25, 2010) Note: The number of “days of deliberation” reflects the number of days scheduled. In some In countries like Japan and the United States cases, the actual number of days deliberated is which retain the death penalty, capital trials less than the scheduled number. are one of the most suspenseful criminal justice rituals, not least because the moment of This article describes the first two “capital sentencing is saturated with emotion and trials” in Japan’s lay judge system and explores uncertainty.6 Juries in the United States and lay a few of the salient issues that are raised when judge panels in Japan have virtually citizens make life-and-death decisions. It also untrammeled power to choose between life and summarizes the other “capital trials” of 2010. death. In both countries, capital decisions One key finding is that while Japan has capital ultimately “rest not on a legal but an ethical punishment, it does not have anything that can judgment—an assessment of the ‘moral guilt’ of be called a “capital trial” because until the the defendant” (former U.S. Supreme Court penultimate trial session, when prosecutors Justice John Paul Stevens, inSpaziano v. make their sentencing request, nobody knows Florida, 1984).7 whether the punishment sought is death or something less. The rest of this article omits In Japan’s first capital trial, Hayashi Koji, age the quotation marks that were used in the 42, was sentenced to life in prison for previous three sentences to call attention to murdering two women on August 3, 2009. One this troubling fact. of his victims was 78-year-old Suzuki Yoshie, whom Hayashi smashed in the head with a A Life Sentence for Hayashi Koji hammer five or six times before stabbing her in the upper body 16 times more. Suzuki had surprised him when he broke into her house at “I did something really terrible. 9:00 on that Monday morning. When I see the victims’ photographs and their bereaved Hayashi’s second victim and main target was family members in court, I once Suzuki’s 21-year-old granddaughter, Ejiri Miho, again feel deep regret over what I whom Hayashi had patronized at an “ear- 2 8 | 49 | 1 APJ | JF cleaning salon” 154 times in the previous 14 instance in which the father had physically months, and whom he stabbed in the neck five abused her son. or six times soon after he had killed Suzuki. Ejiri died from the wounds one month later. In addition to their regular meetings at the Hayashi felt unrequited love for Ejiri—or lust, salon—11 times per month, on the or longing, or something—and he was angry average—Hayashi and Ejiri traded emails and that the management of her shop had forbidden exchanged gifts on birthdays, Christmas, and him to visit any more. Valentine’s Day. According to Hayashi, Ejiri urged him to visit the salon more often, at least Hayashi was arrested while washing the blood until a month or two before she was murdered, off his hands in the kitchen of the house where when Hayashi’s attentions apparently crossed these murders occurred—an impossible task the line that separates welcome interest from because he had cut his own hand during the stalking. killings. Before committing the crimes, Hayashi had been a reliable company worker for some By all accounts Ejiri was good at her job, with 20 years and possessed over $100,000 in monthly earnings that sometimes exceeded savings. But his bank account was rapidly 650,000 yen ($8000)—a little more than what diminishing, for an hour of Ejiri’s time cost $60, Hayashi earned for working 45 to 50 hours a and on Saturdays and Sundays he sometimes week in his company. Ejiri’s boss testified that spent up to seven hours enjoying her services. she was the top-earning ear-cleaner out of The parties to the case agree that those more than 100 who worked at the salon. The services were non-sexual. Ejiri cleaneddesire not to cut into her income or his own Hayashi’s ears, at least occasionally, but most profits may help explain—in part—why the boss of their time together was spent talking, waited a long time to respond to Ejiri’s holding hands, watching DVDs, and eating food concerns about Hayashi, whom she sometimes that Hayashi had purchased on his way to the saw hanging around places he knew she would salon. According to Hayashi, when he failed to be. It remains unclear even after the trial why bring the foods that Ejiri had requested, she neither Ejiri nor her boss complained to the scolded him, which sometimes brought him to police about behavior prosecutors described as tears. “persistent stalking.” As this description suggests, Hayashi does not Hayashi had no prior arrests, he frequently cut a very macho image. At five feet, six inches wrote letters of apology and remorse to the tall (169 centimeters), he weighed 101 pounds surviving family members of the victims, and he (46 kilograms) at the time of his trial, down did not dispute any of the core claims in the nearly 40 pounds (18 kilograms) from what he prosecution’s case except for their weighed when he was arrested 14 months characterization of his relationship with Ejiri as before. Hayashi has never been married and a one-way emotional street. As the opening (he testified) never had a serious girlfriend. epigraph of this section recounts, Hayashi even Since the age of 26 he has suffered from a told the court he was unsure whether he should severe form of arthritis which requires medical atone for the murders by living or dying. In treatment. He has lived on his own for about murder cases in Japan, defense lawyers often the same period of time, having left his home in coach and encourage their clients to show Chiba when his father ordered him out. At trial, remorse and regret, by writing letters of Hayashi’s mother described the father as an apology to the bereaved, reading books that “extremely selfish and self-centered” man who victims have written, and otherwise playing the “angers easily,” but said she knew of no penitent role.