The Asia-Pacific Journal | Japan Focus Volume 13 | Issue 6 | Number 2 | Article ID 4272 | Feb 09, 2015

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An Innocent Man: Hakamada Iwao and the Problem ofWrongful Convictions in Japan 無実の男・袴田巌　日本の冤罪問題

David T. Johnson

How long, Lord, how long?

Hakamada Iwao (Letters from Prison, 1992)

I pray every day that Mr. Hakamada will befound innocent and released from death row.

Kumamoto Norimichi (2008), one of threejudges who sentenced Hakamada to death in1968

A criminal case can go wrong in two mainways. A person who committed a crime canescape punishment, or a person can beconvicted and punished for a crime he or shedid not commit (Simon, 2012, p.4). Everycriminal justice system makes mistakes of bothkinds, but most cultures and criminal justiceprofessionals believe that the worse mistake isthe false conviction of a person who is actuallyinnocent (Huff and Killias, 2008). As juristWilliam Blackstone observed, "it is better thatten guilty persons escape than that oneinnocent suffer."1 An aversion to convicting theinnocent is also well established in Japan'slegal culture. Indeed, the main proximate causeof Japan's high conviction rate may be theinstitutionalized caution of Japaneseprosecutors about charging cases withevidence that could lead to an acquittal(Johnson, 2002, p.237). On this view, thecriminal justice system in Japan might convictfewer innocent people than do systems incountries that adopt more aggressive chargingpolicies (Sasaki, 2000).

The main aim of this article is to explore theproblem of wrongful convictions in Japanese

criminal justice by focusing on the case ofHakamada Iwao, who was sentenced to deathin 1968 and released in 2014 because ofevidence of his innocence. The subject ofwrongful convictions has received littlescholarly attention since Chalmers Johnson'sclassic account of the Conspiracy at Matsukawa(1972), which at the time he wrote was thebiggest cause célèbre in the annals of Japanesecrime. In that case, three persons were killedby the sabotage of a train on the Tohoku line inAugust 1949. Twenty persons were arrested,nineteen of them being Communists or laborunion leaders. In 1950, all 20 were convictedby the Fukushima District Court, and five weresentenced to death. But the prosecution's casecame apart on appeal. By 1970, all of theaccused had been exonerated. Johnson (1972)concluded that they may well have been victimsof a frame-up by police and prosecutors (p.5),but he also believed that miscarriages of justiceof that kind were "extremely unlikely" to occurin post-occupation Japan because "nothing hasa greater educative effect on the public andthrough it on the judiciary than an unfair trial"(p.406). This article argues that the problem ofwrongful convictions continues to plagueJapanese criminal justice today, more than fourdecades after Johnson wrote.

Japan in Comparative Perspective

One cannot understand the problem ofwrongful convictions in Japan without assessinghow it compares with other countries. In thisfield as in others in the social sciences, "thosewho know only one country know no country"(Lipset, 1996, p.17). The United States has

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been the subject of more wrongful convictionresearch than any other nation (Huff andKillias, 2013, p.xv), and in this country in thequarter century since 1989, there have been316 post-conviction DNA exonerations-anaverage of 1 per month. But since biologicalevidence is available in only 10 to 15 percent ofserious felony cases, the true number ofwrongful convictions is much greater thanthese DNA cases suggest (Simon, 2012, p.228).Between January 1989 and July 2014, morethan 1400 persons were wrongfully convictedand subsequently released because of evidenceof their innocence-an average of 4.5exonerations per month (National Registry ofExonerations, 2014). More than 90 percent ofthese exonerees were men, 46 percent wereblack, and 76 percent had been convicted ofhomicide or sexual assault. These exonereesspent an average of 10 years in prison beforebeing released, and many spent two to threetimes that long.

The true scale of America's problem withwrongful convictions cannot be known becausesome wrongly convicted (and wronglyexecuted) persons are never discovered. Buteducated estimates of the percentage of casesthat result in wrongful conviction have beenmade, and they range from 3 to 5 percent forcapital homicide cases and 8 percent or morefor cases of sexual assault (Simon, 2012, p.4).These estimates are far higher than anyonesupposed before the "discovery of innocence"raised awareness about the problem ofwrongful convictions in American criminaljustice (Baumgartner, De Boef, and Boydstun,2008).

More broadly, the risk of convicting innocentpeople "is probably not equally distributedacross nations" (Huff and Killias, 2008, p.287),and the risk may be greater in the UnitedStates than in most countries of Europebecause American systems of adversarialcriminal justice strike a different balancebetween the need to obtain convictions and the

need to find the "truth" than do the moreinquisitorial criminal justice systems on theEuropean continent (Killias, 2013, p.73).Although American prosecutors are expected toconvict criminals and protect the rights ofdefendants, their role as zealous advocate oftentakes precedence because institutionalpressures and professional incentives rewardthem for pursuing convictions (Medwed, 2012,p.3). American criminal justice also relies onplea bargaining to dispose of more than 90percent of criminal cases, and "errors areprobably more frequent in cases handledthrough plea bargains and summaryproceedings than in those that go to trial"because "justice without trial" tends to befaster and rougher than in cases tried by a juryor judge or both (Killias and Huff, 2013, p.376).The comparative conclusion is that "bothwrongful convictions and exonerations appearto be far more frequent in the United Statesthan in Western Europe, even when taking intoaccount the respective populations andnumbers of convictions in each nation" (Killiasand Huff, 2013, p.382).2

It is impossible to know how many personshave been wrongfully convicted in Japan, andfew thoughtful estimates have been made. Themost comprehensive effort to count identifies162 "wrongful conviction" (enzai) casesbetween 1910 and 2010, all of which werediscovered in the post-war period, and morethan half of which were homicide cases(Ibusuki et al, 2012). The average number perdecade is 16, with a high of 37 in the 1950s andlows of 2 or fewer in the 1910s, the 1920s, andthe 1930s. This study probably represents "thetip of an iceberg" of wrongful conviction casesbecause old cases are difficult to document,because less serious crimes (such as drugoffenses and sexual molestation) were excludedfrom it, and (most fundamentally) becausesome cases of wrongful conviction are neverdiscovered (Nishijima, 2012, p.155).3

Table 1. Wrongful Convictions in Japan by

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Decade, 1910 – 2010 (Source: Ibusuki et al.,2012, pp.155-168).

Decade Number1910s 21920s 11930s 01940s 131950s 371960s 141970s 311980s 311990s 162000s 171910-2010 167

In serious criminal cases, exonerations aremuch less common in Japan than in the UnitedStates. Since 1945, only eight persons havebeen sentenced to death or life imprisonmentand subsequently acquitted at retrial. Thisaverage of one exoneration every eight or nineyears allows two contrasting interpretations.On the one hand, Japan has few actors andinstitutions that aggressively search formiscarriages of justice (defense lawyers,investigative journalists, scholars, case reviewcommissions, exoneration registries, InnocenceProjects, and so on). Since the number ofwrongful convictions revealed depends on howintensely and effectively they are looked for,these institutional shortcomings suggest thatJapan's miscarriage of justice problem may wellbe much larger than what has come to light sofar. On the other hand, Japan's prosecutionsystem generally prefers the risk that anuncharged offender will reoffend over the riskthat a charged suspect will be acquitted. Thisconservative charging policy is enforcedthrough organizational mechanisms such as thekessai system of hierarchical consultation andreview within Japan's procuracy and thepenchant for punishing prosecutors who chargeor try cases that end in acquittal (Johnson,2002, pp.237-242). On this view, Japan's

prosecutor-gatekeepers may send fewerinnocent persons to trial than do theircounterparts in the United States and someother countries (Medwed, 2012; Givelber andFarrell, 2012).

The following case-study of the murderconviction of Hakamada Iwao and his releasefrom death row 48 years later is important notonly for what it reveals about how the awesomepower of Japan's criminal justice system ruinedone innocent man (Vollen and Eggers, 2005). Italso illustrates how and why mistakes of thismagnitude continue to occur in the Japanesecontext-and by implication, probably in otherAsian contexts (such as South Korea andTaiwan) where legal institutions have beenstrongly shaped by Japanese influences. Inthese senses, the purpose of this article is theadvancement of what Aristotle called phronesis(prudence or practical wisdom). The aim is toimprove analysis and discussion of the valuesand interests at play in Japanese criminaljustice, because this is a prerequisite forenlightened legal development in any society(Flybjerg, 2001, p.3).

This study proceeds in six parts, on the manHakamada Iwao, the four murders he wasaccused o f commit t ing in 1966, theinvestigations by police and prosecutors thatproduced unreliable evidence (including falseconfessions and bloody clothes the policeapparently planted in order to frame him), theoriginal trial which resulted in a death sentencethat was written by a judge who believedHakamada was actually innocent, the appealsprocess that repeatedly ratified the trial court'smistakes, and Hakamada's almost half-centuryof life in prison, most of which was spent insolitary confinement under imminent threat ofexecution. The article then goes on to analyzethe causes of this miscarriage of justice and ofthe 2014 decision to release Hakamada fromdeath row while he awaits a retrial that willalmost certainly end in acquittal if he does notdie first. The conclusion of this article identifies

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some lessons that should be learned from thistroubling and telling case study. Foremostamong them is the need to reduce the level ofdenial about the possibility of wrongfulconvictions in Japanese criminal justice.

Hakamada Iwao before his arrest in 1966

The Man

On March 10, 1936, Hakamada Iwao was bornin the town of Yuto in Shizuoka prefecture. Hisbirthplace was near Shizuoka City, which ishalfway between Tokyo and Nagoya on theTokaido corridor, about 180 kilometers fromTokyo. His parents were working class, and hewas the last of six children, with two brothersand three sisters (Yamamoto, 2004, p.147).

Hakamada was nine years old when Japansurrendered in 1945. He graduated from juniorhigh school in 1950, and then went to work atan automobi le company in Shizuoka(Yamamoto, 2004, p.157). A few years later hebecame interested in boxing, a sport thatrequired little money to perform. In 1957, atthe age of 21, he p laced th ird in thebantamweight division of a prefecturaltournament, and in November of the followingyear he turned professional. He rose to becomethe sixth ranked featherweight fighter (119 to126 pounds) in Japan. On the whole, however,Hakamada was more a tough fighter than anaccomplished one. He won just over half hisfights as a professional (16 wins, 10 losses, and3 draws), but he was never knocked out, and hestill holds the Japanese record for most profights in one year: 19 in 1959 (Hakamada'sLetters, 1992, p.5). In his 21 months as aprofessional Hakamada fought more than oncea month, and in the last six months of hiscareer, which ended in 1960, he did not win afight (Ogata, 2010, p.54).4

After his boxing career ended, Hakamadaworked a series of jobs, some in the watertrade (mizu shobai) as a waiter and bartender.According to police reports, Hakamada hadmany girlfriends and frequently gambled onmahjong and bike and horse races (thoughthese assertions have been contested). In 1963,he married a woman named "Reiko" whom hemet at a club. In 1964 they had a son named"Kiyo," whom Hakamada obtained custody ofwhen Reiko left him. The reasons for thedissolution of their marriage are disputed.Reiko claimed that Hakamada punched, kicked,and bullied her and was lazy at work, but otherobservers have said that Reiko felt child careduties interfered with her desire to have a care-free life (Yamamoto, 2004, p.171).

In 1963, Hakamada met a wealthy restaurateurnamed Nishinomiya Hideyo who took a liking tohim and put him in charge of a club in thewater trade district. When that club lost money,

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Nishinomiya put Hakamada in charge of adifferent club, but it lost money too. Hakamadaowed Nishinomiya 550,000 yen ($5500) forthese failed ventures, but Nishinomiya did notpush for repayment, and he even introducedHakamada to Hashimoto Fujio, the man whowould become Hakamada's final employer(Yamamoto, 2004, p.161).

Hakamada Iwao in the boxing ring in thelate 1950s

Hashimoto was also an active participant in thewater trade. Before he was murdered in 1966,he is said to have had relationships with morethan 60 women at various bars and clubs inShizuoka, and after his murder his father toldthe police he had been a "bad guy" (waruiotoko). Hashimoto hired Hakamada to work inhis family's business, the Kogane MisoManufacture and Sale Company, in the city ofShimizu on the northern end of the Izupeninsula. Hakamada lived in the company

dormitory, next to the miso factory that wasjust across the train tracks from whereHashimoto lived with his family in a large andwell-furnished home. During the period of hisemployment, Hakamada seemed to be onfriendly terms with the Hashimotos. He eventook some meals with them in their home(Yamamoto, 2004, pp.87-98).

Table 2. Timeline of the Hakamada Case

March 10, 1936 Hakamada Iwao is born in Shizuoka prefecture

June 30, 1966 Four persons murdered near a miso factory in Shimizu city,Shizuoka prefecture

August 18, 1966 Hakamada is arrested 49 days after the murdersSeptember 6, 1966 Hakamada starts confessing on the 20th day after his arrestSeptember 9, 1966 Hakamada is charged with robbery-murder and arsonNovember 15, 1966 Hakamada's trial starts in Shizuoka District Court

August 31, 1967 Police find five pieces of clothing in a miso tank 14 months afterthe crimes

September 11, 1968 Hakamada is convicted & sentenced to death in Shizuoka DistrictCourt

May 18, 1976 Hakamada's appeal is rejected by Tokyo High Court

November 19, 1980 Hakamada's appeal is rejected by Supreme Court & his deathsentence is finalized

April 20, 1981 Hakamada makes first request for a retrial to Shizuoka DistrictCourt

November 13, 1981 Japan Federation of Bar Associations establishes Hakamada CaseCommission

August 9, 1994 Shizuoka District Court rejects Hakamada's request for retrial

March 10, 2003Hakamada tells death row visitor & former Member of ParliamentHosaka Nobuto that he is "omnipotent God" and has taken overthe prison and abolished the death penalty

August 27, 2004 Hakamada's retrial request rejected by Tokyo High Court

March – July 2007Former Shizuoka District Court judge Kumamoto Norimichiannounces that he believes Hakamada is innocent & files petitionto Supreme Court for Hakamada's retrial

April 2007 Amnesty International & Japan Pro Boxing Association start a newcampaign for retrial

March 25, 2008 Hakamada's retrial request rejected by Japan's Supreme Court

April 2008 Hakamada makes second request for a retrial in Shizuoka DistrictCourt

April 2010 57 Members of Parliament form "Federation to Save theCondemned Hakamada Iwao"

May 29, 2010 Director Takahashi Banmei releases film "BOX: The HakamadaCase"

March 10, 2011 On Hakamada's 75th birthday, Guinness World Records certifieshim as the world's longest incarcerated death row inmate

March 27, 2014Hakamada is granted a retrial and released from death row at theage of 78 by the Shizuoka District Court; prosecutors haveappealed

2016 or 2017? Hakamada's retrial?

The Crimes

The fire was set around 2:00 AM on Thursday,June 30, 1966. It was the day after the Beatlesarrived in Tokyo to start their Asia tour. Fourfire trucks responded to a neighbor's phone calland it took them 30 minutes to bring the blazeunder control. After the site cooled, four deadbodies were found inside the Hashimoto home:41-year-old Fujio (who had earned a second

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degree black belt in judo), his 39-year-old wifeChieko, their 17-year-old daughter Fujiko (ajunior in high school), and their 14-year-old sonMasaichiro (in the second year of junior highschool). Their bodies smelled of gasoline andhad been stabbed more than 40 times.According to police, 80,000 yen ($2000) hadbeen stolen from the residence, but morestriking was what was not taken: 3,740,000 yen($37,400) in cash (it was pay day at the misofactory), bank books, stock certificates, andexpensive jewelry. The only surviving memberof the Hashimoto family was the eldestdaughter Masako, who told police she hadreturned from a trip the evening before andstopped by to greet her parents at about 10:00PM before walking to her grandmother's homea short distance away. As a junior in highschool, Masako had moved out of her parents'home to move in with her grandmother becauseher father disapproved of her boyfriend(Yamamoto, 2004, p.99).5

This quadruple murder in a quiet corner ofJapan attracted media attention-much of itsensationalistic (Ogata, 2010, p.113).6 Theprefectural and local police combined toestablish a special force of 80 officers toinvestigate crimes that made front page newsnationwide. Despite the cash and property thatwas not taken, police maintained that themotive for the murders was money. On thistheory, the offender knew it was pay day, so itmust have been an inside job. Police also founda knife (kurikogatana) inside the home that wasusually used for woodworking and that had ablade measuring 13 centimeters long (5.1inches). They believed it was the murderweapon (Ogata, 2010, p.75).

Police suspicion fell on the 30-year-oldHakamada for three main reasons. First, he didnot have an alibi. Hakamada was living alone inhis company dorm room, and he claimed thathe had joined neighbors and other employeesin fighting the fire, though no one rememberedseeing him during that period of time. In

addition, Hakamada had cuts on the middlefinger of his left hand and on his right shoulder.He said he received these wounds when he fellfrom the roof while trying to fighting the fire,but police believed they were inflicted while hewas committing the crimes. More broadly,some police possessed an "anti-boxerprejudice" (bokusa kuzure) that was common inthe Japanese society of that period. Accordingto this stereotype, former fighters retain awillingness to use violence to solve problemsand to get what they want (Ochiai, 2014).Whatever the logic of these judgments mayhave been at the time they were made, inretrospect it is clear that police cast theirinvestigative gaze too narrowly (Yamamoto,2004, p.185). By focusing almost solely onHakamada and on evidence that supportedtheir hunch about his guilt, they ignoredevidence to the contrary and repeatedlycommitted the mistake of "tunnel vision"(mikomi sosa) that is common in wrongfulconviction cases in Japan (Miyazawa, 1992) andother countries (Simon, 2012).

Hakamada Iwao after his arrest in 1966

Investigation

Hakamada was arrested on August 18, 1966,50 days after the four murders occurred.Before this, police had been questioning him ona "voluntary" basis (nin'i shutto) and had beenleaking information to reporters that made itclear who their one and only suspect was.7 OnJuly 4, just four days after the crimes, theMainichi newspaper published a headline

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making it plain who police were targeting:"Employee 'H' Surfaces" ("Jugyoin 'H' Ukabu").One basis for this claim was the discovery ofblood-stained pajamas in Hakamada's dormroom. Police said the blood types on thepajamas (A and AB) matched those of themurdered father and son, but the stains wereso tiny that even some police believed thepajamas could not have been worn during thecommission of four gory homicides. Subsequenttesting of the stains reached the differentconclusion that the blood type(s) could not bedetermined. Police also said they found traceamounts of gas and oil on Hakamada's pajamas,which they regarded as evidence that he hadcommitted the arson too.

The main question for police was whetherHakamada would confess. Confessions havelong been the cornerstone of Japanese criminaljustice-"the king of evidence" and "the decisiveelement of proof" sought by every prosecutorand expected by most judges (Johnson, 1972,p.149). Most Japanese law enforcementofficials "believe strongly that confessions mustbe extracted" (Miyazawa, 1992, p.165), andsome believe that "the right to silence is acancer" (Johnson, 2002, p.243). This demandfor confessions throughout Japan's criminaljustice system helps explain why interrogationsfrequently are long and intensive andsometimes are coercive (Johnson, 2002,pp.243-275). Hakamada endured 20 days ofinterrogation after he was arrested and beforehe confessed. During this period, the averagelength of interrogation was more than 11 hoursper day (see Table 3).8 Between his arrest andindictment, Hakamada was interrogated formore than 264 hours-about half of all the hoursin that 23 day interval (Yamamoto, 2004,p.202). During this interval he was permitted tomeet his defense lawyers three times for a totalof 37 minutes (Ogata, 2010, p.61).

Research in the United States has found thatone of the best predictors of whether a criminalsuspect confesses is the length of interrogation.

I n s e r i o u s f e l o n y c a s e s , A m e r i c a ninterrogations average less than three hoursper suspect (Leo, 1996), and a study of 125false confession cases found that the longestinterrogations lasted less than one-tenth aslong as those that Hakamada experienced(Drizin and Leo, 2004). In most democracies, aconfession obtained after more than 200 hoursof interrogation would be ruled involuntary,unreliable, and inadmissible as evidence. Butnot in Japan (Foote, 1991).9

Table 3. Interrogation Times of HakamadaIwao in Hours and Minutes, August 18 toSeptember 9, 1966 (Sources: Hakamada sano Sukuu Kai, 1992, p.181; Hakamada JikenBengodan, 2003, p.20.)

Date Police Prosecutors Daily TotalAugust 18 (Th) 1:35 1:35 (arrest)August 19 (Fri) 10:30 10:30August 20 (Sat) 7:23 2:00 9:23August 21 (Sun) 6:05 1:00 7:05August 22 (Mon) 12:11 12:11August 23 (Tues) 12:50 12:50August 24 (Wed) 12:07 12:07August 25 (Th) 12:25 12:25August 26 (Fri) 12:26 12:26August 27 (Sat) 13:17 13:17August 28 (Sun) 12:32 12:32August 29 (Mon) 7:19 7:19August 30 (Tues) 12:47 12:47August 31 (Wed) 9:32 2:00 11:32September 1 (Th) 13:18 13:18September 2 (Fri) 11:15 11:15September 3 (Sat) 9:50 9:50September 4 (Sun) 16:20 16:20September 5 (Mon) 12:50 12:50September 6 (Tues) 14:40 14:40 (first "confession")September 7 (Wed) 11:30 11:30September 8 (Th) 9:45 3:00 12:45

September 9 (Fri) 7:00 7:00 14:00 ("confesses" to prosecutors and isindicted)

Total for 23 days 249:27 15:00 264:27 (average duration=11:30 per day)

The length of interrogation is hardly the onlyproblem with the "confessions" in Hakamada'scase. None of his interrogations was recordedon tape, and none was transcribed verbatim.Instead, all of the statements taken fromHakamada were summarized by police andprosecutors and composed in their own words.The 45 dossiers (chosho) containing thesestatements are "essays" in a twofold sense:they are compositions written from lawenforcement's perspective, and they are effortsto persuade trial and appellate court judges of

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a particular point of view. In Japanese criminaljustice, pressure to produce persuasivecompositions sometimes compels police andprosecutors to distort or even fabricate theircontent (Johnson, 2002, p.248).10 A survey of1300 Japanese prosecutors in 2011 found thatmore than 26 percent admitted to being told bya superior to compose a dossier that differedfrom what a suspect or witness actually said(Asahi Shimbun, 2011a). Hakamada's defenselawyers have consistently maintained thatpolice and prosecutors routinely engaged inthis kind of creative license in their client'scase. There is even evidence that theconfessions composed by police followed a"script" police had written several weeks beforeHakamada was arrested (Yamamoto, 2004,p.186). In one trial session, Hakamada himselfasked one of his interrogators, "Isn't it true thatwhat you detectives cal l my series ofconfessions is in fact a fictitious mystery story(suiri sakusei) that you made up in your ownminds?" (Yamamoto, 2004, p.229).

During the 23 days of his interrogation,Hakamada was pressured in several ways. Hewas given bad food-mostly thin miso soup and acheap mixture of barley and rice. He wasdeprived of sleep, and when he nodded offpolice used pins to poke him awake (Ogata,2010, p.61). He was denied access to thebathroom (when he was permitted to go, policeforced him to use a portable toilet in the cornerof the interrogation room). He was permitted tobathe only once a week. He was not givenadequate water to drink despite the brutallyhot weather. And most strikingly, he wasrepeatedly victimized by police brutality andother forms of the "third degree."1 1 AsHakamada described in one of his letters fromprison:

"Police threatened me by sayingthat if they killed me nothingwould happen to them becausethey would report that my death

was caused by an illness. I wasderided and beaten with woodennightsticks. Day after day I waspressured by interrogation teamsof two or three people working inshifts. I was interrogated morning,afternoon, and evening. On somenights I was interrogated from11:00 PM to 2:00 AM. Police tookturns hitting and kicking me. Thiswas my interrogation. Their aimwas to frame me (detchiageru) bycomposing dossiers saying that Icommitted murder and arson eventhough I had done no such thing"( q u o t e d i n O g a t a , 2 0 1 0 ,pp.60-61). 1 2

Hakamada also described at tr ial hisexperience of the "third degree." He said policepulled his hair, punched him, kicked him, yelledat him, and threatened to bring in his motherand brothers for questioning if he did notconfess. On the morning of September 6, 1966,on the 20th day of interrogation, Hakamada feltexhausted and offered to confess "in theafternoon" if police would first allow him to restfor a little while. He wanted to stop the agony,but police would not wait. They pressuredHakamada into signing the first of several"confession" statements that they wouldproduce over the next three days. The firstconfession statement was three lines long. Itsaid, "I am the one who killed the boss's family.I am very sorry. From now on I will tell you indetail what happened." Two other statementswere taken on the same day: one was 5 pagesand the other was 76 pages. None of thesethree statements was read by Hakamada orread aloud to him by the police. As Hakamadatestified in court, "I wanted a silence and had aheadache so I just wrote down my name andput my head down on the table. They held myhand and took my fingerprint" (quoted inWallace, 2007).

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In 1973, five years after Hakamada had beensentenced to death and while his case was onappeal before the Tokyo High Court, heexplained in another letter from prison why hehad falsely confessed. His description of hisdesire to "escape" echoes research in theUnited States (Leo, 2008) and Japan (Hamada,1992) which shows that false confessors arefrequently motivated by the felt need to escapean intolerable situation.

"Police believe their investigationi s comple te i f they ob ta insomething like a confessionthrough the use o f tor ture(gomon). It goes without sayingthat th is be l ie f i s wrong. Iunderstand the psychology ofpeople who confess to crimes theydid not commit af ter beinginterrogated through torture. Itwears you down when you get toldthe same thing [by police] againand again and again. In times likethat, when you are experiencingphysical pain, you think you canescape the situation by saying youdid something you did not reallydo. Isn't this the way humans are?"(Hakamada's Letters, 1992, p.57).13

Trial

Movie set of a police interrogation room inJapan (2014)

In March 2007, a former Japanese judge namedKumamoto Norimichi revealed that Hakamadaand his defense lawyers were not the onlypersons concerned about police interrogationmethods. Kumamoto had been the juniormember of the three judge panel of theShizuoka District Court that convictedHakamada and sentenced him to death in 1968.Almost four decades later he publicallydisclosed for the first time that he had alwaysbelieved Hakamada was innocent. Kumamotowas 29 years old when Hakamada's trialstarted, and he sat on the bench with a chiefjudge (Ishimi Katsushi) who was 30 years hissenior and another judge (Takai Yoshio) whowas 10 years his senior and who seemedcertain of Hakamada's guilt from the trial'soutset (Ogata, 2010, p.106). In 1966,Kumamoto looked like a rising star in Japan'sjudiciary. He became a judge in 1961 afterfinishing with the top score on the bar exam-out of more than 10,000 persons who took it inhis year. Some of his mentors and colleaguespredicted that one day he would become aJustice on Japan's Supreme Court, butKumamoto qu i t the jud ic iary out o fdisappointment and despair six months afterHakamada was sentenced to death. Kumamotohimself did not oppose capital punishment. In

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his first five years as a judge he helpedsentence five defendants to death (Wallace,2007)-and afterward visited four of them ondeath row (Ogata, 2010, p.13). But Kumamotodid have ser ious concerns about thetruthfulness of the confession statements policehad produced in Hakamada's case. Here is howhe questioned one of the police who testified atHakamada's trial (quoted in Ogata, 2010,pp.109-111):

Judge: I'd like to ask you aboutyour understanding of the right tosilence. Why are criminal suspectstold about their right to remainsilent?

Detective: Because it has beendecided that they must be told…

Judge: Is the right to silence anobstacle to investigations?

Detective: Yes.

Judge: Have you been doing thesame kind of interrogations foralmost 20 years?

Detective: Yes.

Judge: Has there been any suspectwho did not confess?

Detective: No.

Judge: What do you think about theright to silence?

Detective: If you are asked aquestion you should speak thetruth, and if you are the realoffender you should also speak thetruth.

Judge: Oh, so you say, "if you arethe real offender." You thoughtHakamada was the real offender,

didn't you?

Detective: Yes.

Judge: Was i t good that heconfessed?

Detective: Yes.

Judge: But when a human being isforced to sit confined in a closedspace, even for one hour-wouldn'tyou yourself have a hard time [notconfessing] if you were put in thatposition?

Detective: Yes. But that doesn'tchange the fact that I should speakthe truth.

Kumamoto reports that the trial prosecutor inHakamada's case (Yoshimura Eizo) objected tothese questions. "He claimed that I wasprejudiced and that I was asking leadingquestions to this detective," Kumamoto recalls."And I told him, 'Yes, I do possess a prejudice:the prejudice that the wrong person should notbe punished.' But that just angered him all themore" (quoted in Ogata, 2010, p.111).

The story prosecutors composed through themedium of Hakamada's "confessions" was thathe had been having an affair with Mrs.Hashimoto, who asked him to murder herfamily and burn their house down so that shecould build a new home and start a new life.14

Police and prosecutors composed a total of 45"confession" statements during theirinterrogations: 29 before Hakamada wascharged with robbery-murder and arson onSeptember 9, 1966, and 16 more in the monththat followed (Ogata, 2010, p.69). The ShizuokaDistr ic t Court re jected 44 o f the 45statements.15 In its written opinion, the Courtfound that police had repeatedly violated theprinciples of "truth discovery" and "dueprocess" through their interrogation methods,

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and it concluded that police deserved to be"severely criticized" (though they were neverpunished). It even said, "We hope and expectthat this kind of police behavior will neverhappen again" (Kumamoto, 2009, p.158). Butthe Shizuoka District Court also ruled that onestatement taken by prosecutors after more than250 hours of interrogation was voluntary,reliable, and admissible as evidence.16

A second devastating blow landed in the 17th

trial session on August 31, 1967, whenprosecutors announced that police had justdiscovered five articles of clothing in a misotank at the Kogane factory. It was fourteenmonths after the crimes had occurred and ninemonths after Hakamada's trial had started.When this "discovery" was made, JudgeKumamoto believed the trial was going poorlyfor prosecutors, and some members of themedia had been predicting that the case wouldend in acquittal (Kumamoto, 2009, p.156). Inthis context, the Court ruled that prosecutorscould introduce the clothing as evidence. Theirrevised indictment claimed that the pajamaswere no longer relevant. Instead, at the time ofthe crimes Hakamada was now said to bewearing the newly found clothes: a white short-sleeve t-shirt, a gray long-sleeve sport shirt,white underwear, white boxer shorts, and apair of iron blue trousers. Prosecutors arguedthat Hakamada hid these clothes in the misotank after fleeing the murder scene. On thistheory, a team of 80 police failed to find theclothes for more than 400 days. For the nexthalf-century, Hakamada and his defenselawyers would argue that police had plantedthe clothes in order to assure a conviction.

The "discovery" of this clothing proved to be aturning point in Hakamada's trial, for it helpedpush at least one of the two senior judgestoward conviction and capital punishment. Butto Judge Kumamoto, who as the "assignedjudge" (shunin saibankan) had been given thetask of writing the Court's opinion, the newclothes conf irmed the impression of

Hakamada's innocence. As Kumamoto laterexplained,

"For a long t ime I had beenthinking that there was somethingstrange about the evidenceprosecutors presented in this case,and then came their claim that atthe time of the murders Hakamadawas wearing different clothes thanthose police and prosecutors firstclaimed he was wearing. Well then,what in the world was I supposedto make of police testimony upuntil this time? When the newclothes came along, I told ChiefJudge Ishimi that this was verypeculiar. Judge Takai, who seemedsure from the start of trial thatHakamada was guilty, may justhave thought that here, finally, wasdecisive evidence that he was thekiller. But I thought just theopposite. To me, this was evidencedemanding an acquittal. I believedthis was evidence police probablyp l an ted i n o rder t o f r ameHakamada" (quoted in Ogata,2010, p.108).17

In Japan, writing a judicial opinion to acquit thedefendant in a capital case is extremelydemanding because prosecutors will likelyappeal the decision and appellate courts willprobably give prosecutors what they want(Harada, 2012). After closing argumentsconcluded in Hakamada's trial, JudgeKumamoto drafted 350 pages of an opinion thatwas to serve as the starting point for thejudges' deliberations. His draft would haveacquitted Hakamada, but the three judges'opinions were so split and their arguments sorancorous that the date to announce theirdecision had to be postponed. Judge Kumamotobelieved Hakamada was innocent. Judge Takaibelieved Hakamada was guilty and deserving of

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a sentence of death. The swing vote was ChiefJudge Ishimi, who ultimately decided to convictand condemn Hakamada, based mainly on theconfession.

Article 38 of Japan's Constitutionsstates that

"No person shall be compelled totestify against himself. Confessionmade under compulsion, torture orthreat, or after prolonged arrest ordetention shall not be admitted inevidence. No person shall beconvicted or punished in caseswhere the only proof against him ishis own confession."

But Judges Ishimi and Takai believed "peopledo not confess to things they have not done"(Ogata, 2010, p.112), and they pressuredKumamoto to rewrite his opinion. Kumamotoresisted, and he even made an inquiry to theSupreme Court. When he was told that "win orlose it is standard practice" for the assignedjudge to write the opinion, he went along withthis judicial custom, though in a final act ofprotest he refused to affix his name stamp(hanko) to the final page of the decision(Kumamoto, 2009, p.158). A clerk of the courtdid so in his place (Ogata, 2010, p.116).

Two lives changed dramatically after ChiefJudge Ishimi read the Shizuoka District Court'sopinion on September 11, 1968.18 HakamadaIwao was condemned to death and to decadesof struggle against this Court's conclusion. Atfirst he was surprised by the verdict and deathsentence, for he had remained confidentthroughout the two years of his trial that theShizuoka District Court would recognize thetruth and acquit him (Letters from Prison,1992, pp.21-40). But his confidence in Japanesecriminal justice disappeared in the yearsfollowing this capital sentence, and by the early1980s most people who still knew him believed

he was insane (Amnesty International, 2009,p.36). When Hakamada emerged from his half-century of confinement in 2014, he announcedto reporters that as "god of the universe" hehad abolished capital punishment. It was onlywhen the topic turned to boxing that his wordselicited something other than uncomfortablesilence or bemused chuckles in his listeners(author's interview with Nitta Shosei, SecretaryGeneral of the Japan Pro Boxing Association,May 12, 2014).

Judge Kumamoto's life was also transformed.He quit the judiciary six months aftersentencing and went on to live an anguishedlife-alcoholic, suicidal, intermittently employedas a lawyer and teacher, homeless, divorced bytwo wives, estranged from both his daughters,and plagued by Parkinson's Disease, cancer,and other health problems (Ogata, 2010,pp.123-139). Kumamoto has repeatedly saidthat he believes he helped sentence aninnocent man to death. He claims that afterquitting the judiciary he tried four times to visitHakamada, but jail officials refused to allow themeetings. He also says he wrote a letter toHakamada's defense lawyers offering to appearin appellate court as a witness for their client.The letter was never answered (Ogata, 2010,p.124).19

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Former Judge Kumamoto Norimichideclaring his belief in Hakamada'sinnocence in 2007

Appeals

Defense lawyers made six main claims onappeal. They argued that: (1) Hakamada'sconfessions were false; (2) the blood-stainedclothes from the miso tank had no connectionto their client; (3) a knife attack by oneassailant against four people resulting in morethan 40 stab wounds would have resulted insounds that nearby neighbors would haveheard (4) the small knife that prosecutorsclaimed was the sole murder weapon could nothave inflicted so much damage to the victims'bodies; (5) the back door of the Hashimotoresidence, through which Hakamada was saidto have entered on the night of the crimes, hadin fact been locked and impassable; and (6)Hakamada had no motive to commit thesemurders.

Between the time of Hakamada's deathsentence in 1968 and his release from deathrow in 2014, dozens of prosecutors opposedthese defense arguments, and dozens of judgesrejected them. Most notably, an appeal to theTokyo High Court was rejected in 1976, and in1980 Japan's Supreme Court finalized thesentence of death. In 1981, Hakamada'sdefense lawyers made their first application fora retrial in Shizuoka District Court. That Courtrejected this request in 1994, as did the TokyoHigh Court in 2004 and the Supreme Court in2008.

In April 2008, Hakamada's attorneys filed theirsecond request for a retrial. Six years later, onMarch 27, 2014, Shizuoka District Court JudgeMurayama Hiroaki declared that Hakamadashould receive a retrial and, in the interest ofjustice, be released immediately from the TokyoDetention Center. After 48 years behind bars-and after telling the people who first reportedthe news to him to "stop kidding around"-the

world's longest serving death row inmate wasreleased. Prosecutors have appealed, but as ofthis writing in February 2015, 78-year-oldHakamada Iwao remains free, living with hissister Hideko in Hamamatsu, struggling torecover his physical and mental health, and-asa matter of Japanese law-still a convicted killerunder sentence of death. Analysts expect theremaining appeals process to last two years ormore.

Hakamada's defense attorneys and supportersregard the Shizuoka District Court's decision asa "de facto acquittal" that will be "impossible"to overturn on appeal, and three Japanesejournalists told me they believe Hakamada willwin the legal battle if Father Time does not killhim first (author's interviews, May 2014). Forthe police, prosecutors, and judges whoperpetrated and perpetuated this injustice, themost welcome outcome might be the death ofHakamada before he is officially exonerated.

DNA was decisive in winning Hakamada'sfreedom. DNA tests have been used by policeand prosecutors to obtain convictions incountless cases since the late 1980s, but inJapan they have seldom been used to exoneratethe wrongfully convicted.20 The ShizuokaDistrict Court's retrial and release decision ofMarch 2014 focused on the five articles ofclothing that the Supreme Court had declaredthe "most important evidence" when it finalizedHakamada's sentence of death in 1980. DNAtests on those clothes were performed byexperts for both the prosecution and thedefense, and the Shizuoka District Court foundthe latter more reliable. The defense testsshowed that the blood on the garments camefrom neither Hakamada nor the murdervictims. This satisfied the legal requirementthat "new evidence" be submitted before aretrial can occur, and it strongly suggested thatthe clothes were planted by police. To theCourt, the DNA test results constituted "clearevidence that the defendant should beacquitted."21 As for Hakamada's confession, the

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Court concluded that "its evidentiary value isweak" and "absolutely not enough to convictthe defendant."

Hakamada Iwao trying on the pants police"discovered" in the miso tank (1976)

The Shizuoka District Court saved its strongestlanguage for the end of its opinion, where itexplained why Hakamada should not only beretried but also released from death rowimmediately. Japan had four death penaltyretrials in the 1980s, all of which ended inacquittal (Foote, 1992). In all four cases theconvicts remained on death row until the retrialhad ended in acquittal (Foote, 1993).Hakamada's release from death row was astriking break from this precedent. As theCourt explained,

"In addition to approving a retrialfor the defendant, it is natural tosuspend the execution of his deathsentence. Moreover, based on thiscourt's discretion, we concludethat it is also appropriate tosuspend the execution of thedefendant's confinement. Thisdefendant has been convicted andincarcerated for an extremely longperiod of time under the threat ofcapital punishment based onimportant evidence that may wellh a v e b e e n p l a n t e d b y t h einvestigating authorities. Atpresent, when the high probabilityof the defendant's innocence hasbeen made clear, detaining himany longer would violate justice toan intolerable extent" (ShizuokaDistrict Court, 2014, pp.66-67).

Life on Death Row

Hakamada was 78 years old when he wasreleased from death row in March 2014-diabetic, deluded about his identity, and dimlyaware of his own legal situation. He wassentenced to death in the same year thatMartin Luther King Jr. and Robert F. Kennedywere assassinated. What will this Japanese RipVan Winkle do after decades of confinement ina cell measuring eight square meters?

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Hakamada spent the first three months of hisfreedom receiving treatment in hospitals inTokyo and Shizuoka. Then he started livingwith his sister Hideko. In July 2014 the mediareported that he spent most of his time"wandering silently back and forth on thehallway that connects the bedroom and tatamiroom" of her home (Cho, 2014; see also theAustralian Broadcasting Corporation's video(https://apjjf.org/site/view/4262)). Pacingapparently dominates his daily routine, fromthe time he rises at 5:00 AM until the time hegoes to bed at 8:00 PM. Hideko has given thepress access to her home because she wantspeople to know "what happens to a humanbeing when he is imprisoned for 48 years" andto "see [him] as he is." She believes hiscond i t ion i s showing some s igns o fimprovement, but she also says "I'm still unableto feel happy that he's come back" (quoted inCho, 2014).

Hakamada spent 17,388 days behind bars, butthe pains of his punishment involved more thanits duration. For Hakamada as for the 130other inmates on death row in Japan at the timeof his release, life waiting for death wassolitary, monotonous, and scary. Before themen and women on death row are physicallykilled by hanging (a method Japan has notchanged since 1873), they are sociallyextinguished through the state's severerestrictions on meetings and correspondence.Condemned persons are not permitted tocommunicate with each other, and outsidecontact with them is all but impossible unlessthe person who wants to meet is a defenselawyer or close relative. When meetings arepermitted, strict limitations are placed on thefrequency, duration, and content of contact.The state's stated reason for this policy is topromote "stable feelings" (shinjo no antei) inthe inmates so as to help them prepare fordeath, but one function of killing socially beforekilling physically is the facilitation of smoothexecutions in which detached and demoralizedinmates do not resist. In these circumstances,

many inmates on death row in Japan becomementally ill-as did Hakamada (AmnestyInternational, 2009).22

Death row inmates in Japan are not notified ofthe date or time of execution until an hour or sobefore it occurs. This policy has been likened toa "surprise attack" (damashi-uchi). Mostinmates live for years not knowing if thepresent day will be their last (Johnson, 2006,p.254). In Hakamada's case, from the time theSupreme Court finalized his death sentence inNovember 1980 until his release from deathrow in March 2014, there were more than 8000days on which he may have woken upwondering if this would be the day he isexecuted (hangings in Japan are carried out inthe morning and only on weekdays). MendaSakae, who was exonerated and released fromdeath row in 1983 a f ter 34 years o fincarceration, has described the effects of thisnotification policy:

"Between 8:00 and 8:30 in themorning was the most critical time,because that was generally whenprisoners were notified of theirexecution… You began to feel themost terrible anxiety, because youdon't know if they [the guards] aregoing to stop in front of your cell.It is impossible to express howawful a feeling this was. I wouldhave shivers down my spine. It wasabsolutely unbearable" (quoted inFrench, 2002).23

Death row is difficult even for the guilty, but tobe innocent and incarcerated in theseconditions surely makes the suffering moresevere. Hakamada seemed to go throughseveral stages during his 48 years ofconfinement (Letters from Prison, 1992). Forthe first several years he appeared strong andconfident. In a letter sent to his mother in 1967he wrote, "Of course I don't have any

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connection to this case. Mom, please beconfident and come visit me here in jail withyour head held high" (p.23). Later that year hewrote, "I am innocent, and now I am calmlywaiting for my trial to conclude. I am in a warmroom and I do not have any complaints" (p.26).A little later in the same year he said, "I believethe court will understand that I am innocent.There is no way I will lose this fight" (p.29).And near the end of 1967 he even predictedthat "My experience in this detention facilitywill be a plus for my future life" (p.32).

After Hakamada was sentenced to death onSeptember 11, 1968, he wrote a brief note tohis mother in simple kanji and katakana: "Mom,please don't worry about me, and get wellsoon." Thereafter, his letters expressed morefrustration and anger, feelings whichintensified over the years until he startedshowing signs of seriously disturbed thinkingand behavior a few months after the SupremeCourt confirmed his death sentence in 1980(Amnesty International, 2009, p.37). Here is asampling from his Letters from Prison, whichwere edited by members of his support groupsand published in 1992:

"The police are framing me bytrying to connect my stuff to thiscase. To my knowledge, theridiculous nonsense of theirinvestigation is unprecedented inhistory" (1970, p.55).

"As I feel fear spreading across mybody like a black wave, I havefallen into a condition of despair,with a feeling of rage that wants tocurse everything about thistransitory world" (1974, p.59).

"The ugliness in my heart must notbe ignored, even if only a little of itcan be seen from the outside"(1981, p.77).

"Oh God, what a difficult thing it isto live. Will my life be nothing butsuffering until the very end? I don'tknow how many more years thisawfulness of authority wi l lcontinue. There is no sin in me.Lord God, please help me…" (1982,p.98).

Hakamada's last published letter was written in1989. It was a message to Rubin "Hurricane"Carter, the professional boxer who wasconvicted of a triple murder in New Jersey in1966 (the same year of Hakamada's arrest) andincarcerated for 20 years before being releasedin 1985 when a federal judge ruled that hisprosecution had been "predicated upon anappeal to racism rather than reason, andconcealment rather than disclosure" (quoted inHirsch, 2000). Here, in part, is what Hakamadawrote to Hurricane, 25 years before his ownrelease:

"Hey, Mr. Carter! Isn't it great thaty o u h a v e b e e n c l e a r e d ?Congratulations! I bet you didn'tforget your intense passion forboxing during your long term ofimprisonment! You and I both havemaintained a similar passion forboxing, and there is no doubt thatyour f ighting spirit was thesplendid driving force that provedyour innocence. I, too, will receivepower from the circle of peoplewho are committed to justice, andbelieving in the love and decisivejudgment of the Japanese people(who are not inferior to theAmerican people), I will try myhardest to continue after you.From the bottom of my heart Ihumbly request that hereafter,through the good will that comesfrom me being in circumstancesmuch like your own, you will

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support our struggle here in Japanto prove my innocence…" (p.175).

Hakamada continued to write letters untilAugust 1991. According to his sister Hideko,most of the ones written after his deathsentence became finalized in 1980 made littlesense (Amnesty International, 2009, p.37).24

The trajectory of Hakamada's mental illness isimpossible to describe because correctionsofficials did not allow him to be psychologicallyexamined until 2007-about 25 years aftersymptoms first appeared. According to Hidekoand his defense lawyers, sometime in the early1980s he started to lose touch with reality, andin the decades that followed his delusionsbecame increasingly severe. Hakamada oftentold visitors that someone was conductingelectricity through his cell and poisoning hisfood. Around 1990, he started refusing to meetHideko, telling prison officials "I do not have anolder sister." When Setagaya Ward Mayor andanti-death penalty activist Hosaka Nobutovisited death row in 2003, Hakamada told him,"I am the omnipotent god," and he announcedthat he had taken over the Tokyo DetentionCenter and abolished capital punishment(quoted in Asahi Shimbun, 2014). When someof Hakamada's relatives died in the mid-2000s,raising legal questions about inheritance, hislawyers submitted an application to the TokyoFamily Court asking that Hideko be named hislegal guardian. This resulted in outsideexaminations that found he was suffering frommental illness. Several experts have said themain illness is "institutional psychosis" (kokinshojo) caused by the length and conditions ofhis confinement, but corrections officialsclaimed he was showing signs of seniledementia, perhaps exacerbated by the blows heexperienced as a boxer.

On March 27, 2014, when Hideko went to theTokyo Detention Center to relay the news abouthis retrial and release, her brother said "Stopkidding around. The Hakamada case is over. Go

home because this is none of your business"(Asahi Shimbun, 2014). But eventually he waspersuaded to leave, and when he shuffled outthe front exit of the jail where he had lived formost of the past five decades, a crowd ofcameramen was there to record the moment ofhis liberation. Eight weeks later, on May 19,Hakamada was escorted into the ring at theKorakuen Hall Boxing Stadium in Tokyo, wherehe received an honorary championship beltfrom supporters in the Japan Pro BoxingAssociation. One hundred or so members of themedia were present on this occasion, and at thepress conference which followed the ceremonyin the ring, Hakamada rambled incoherently,with little regard for who held the microphone.I could not understand everything he said, but Idid hear him say on several occasions that he is"god" and "the dictator of the universe." Whenone of his former boxing trainers took themicrophone to express admiration for hisprotégé's perseverance, Hakamada told him to"sit down and shut up" because "these peopleare here to see me." After about fifteen minutesof awkward interaction, a boxing officialinterrupted Hakamada to say that the subjectof this press conference was too tired tocontinue, and Hakamada was escorted out ofthe room and, eventually, back to the hospitalin Tokyo where he was staying. Hideko lookedon with what might have been a smile ofembarrassment on her face, and the rest of thepeople sitting at the front table continued toanswer questions from the media after theinnocent man disappeared.

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Hakamada Iwao and his sister Hidekoleaving the Tokyo Detention Center onMarch 27, 2014

Causes of Hakamada's Conviction

The wrongful conviction and condemnation ofHakamada Iwao has six main causes. First,Hakamada falsely confessed to crimes he didnot commit. His admissions of guilt were notspontaneous or voluntary, as some falseconfessions are. They were coerced by thepolice through interrogation practices thatbroke his will to resist. (Research shows thatmore than two-thirds of college students can bemanipulated into making a false confession; seeSiegel, 2015). Moreover, Hakamada's falseconfessions were composed by police inlanguage that failed to capture his resistance,reluctance, and resignation. Those policeessays then formed the basis for the confessioncomposed by prosecutors that the ShizuokaDistrict Court admitted as evidence in his trial.According to Kumamoto, the decision to admitthis one statement as evidence was motivatedby his judicial colleagues' recognition that thephysical evidence against the defendant wastoo weak to convict or to impose a sentence ofdeath (Mainichi Shimbun, 2014a). Once thisfateful decision was made, the psychologicalphenomena of "tunnel vision" and "confirmationbias" caused other prosecutors and judges whoreviewed Hakamada's case to focus onevidence that supported the conviction and todisregard evidence that indicated innocence

(Leo, 2008, p.263).

Second, police apparently planted evidence -the clothes in the miso tank-in order to frameHakamada. Some analysts believe policeprobably did this out of a sincere belief inHakamada's guilt (author's interview withreporters for the Shizuoka Shimbun, May 10,2014). If this was indeed the perception ofsome police, then they aimed to frame a"guilty" man.25 But of course, planting evidence-even against the guilty-is both illegal andegregious, as was recognized by the ShizuokaDistrict Court that rebuked police and orderedHakamada's release in 2014.

Third, prosecutors withheld from the defensealmost 600 pieces of evidence, some of whichpointed to Hakamada's innocence and much ofwhich raised reasonable doubt about his guilt.As summarized by one of Hakamada's defenselawyers, there were four main kinds ofconcealed evidence (Nishijima, 2014, p.82).

(a) Prosecutors possessed colorphotographs of the clothes fromthe Kogane miso tank that weretaken soon after the clothes hadbeen "discovered" in August 1967.The photos show that the colors ofthe t-shirt and boxer shorts weretoo light and the blood stains toodark to be consistent with policeand prosecutor claims that theyhad been submerged in miso formore than 14 months.

(b) Prosecutors possessed awritten statement taken from anemployee of the company thatmanufactured the pants "found" inthe miso tank. On the back of thepants was a "B" tag which policeand prosecutors claimed indicatedtheir size-a size which would havef i t H a k a m a d a . B u t i n t h i sundisc losed document the

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employee had stated that the tagreflects the color of the pants (ironblue), not their size.

(c) Prosecutors possessed severalwritten statements taken from thevictims' neighbors and fromKogane employees describing whatthey had seen and heard before,during, and after the time of thecrimes. Some of these statementscast doubt on the prosecution'sclaims about what transpired onJune 29-30, 1966.

(d) Prosecutors possessed evidenceshowing that the miso tank wherethe clothes were "found" hadcontained a combination of misoleft over from past batches andmiso that had been added after thecrimes occurred. According todefense lawyers, prosecutors musttherefore have known that it wouldhave been impossible for theclothes to remain hidden duringthe miso mixing process.

In total, prosecutors concealed from thedefense more than 100 photographs andstatements which could have clearedHakamada decades before they finallyacknowledged the existence of this criticalevidence in August 2014 (Nishijima, 2014;Japan Times, 2014b). Of course, at the time ofHakamada's first trial and in subsequentappeals, prosecutors had few obligations todisclose this kind of evidence to the defense. Bylaw, they were required to disclose onlyevidence in their possession that would be usedat trial. This rule is premised on the principlethat prosecutors will try to reveal the truth attrial, no matter what it might mean for the caseoutcome. In Hakamada's case as in othermiscarriages of justice in Japan, prosecutors'persistent refusal to disclose potentiallyexonerating evidence belies their claim that

their main aims are to "clarify the truth" and"do justice" (Johnson, 1972; Foote, 1992 and1993; Johnson, 2002, p.272; Ibusuki et al, 2012;Ibusuki, 2014).

Fourth, media coverage of the Hashimotos'murders put pressure on po l ice andprosecutors to solve the case and on courts toproduce a conviction. Media coverage of thiscase also reflected and reinforced the "tunnelvision" and "confirmation bias" that afflictedpolice and prosecutors. Weeks beforeHakamada was arrested, newspaper articlesbased on anonymous police sources implicatedhim as the killer ("Employee 'H' Surfaces").During the 23 days of his interrogation,reporters routinely printed what police toldthem-including their confidence that their oneand only suspect would confess because he wasthe real killer. After Hakamada confessed, themedia displayed remarkable naivete about theharsh reality of these interrogations("Hakamada Succumbs to Scient i f icInvestigation"). During Hakamada's trial, themedia saw signs of his guilt in innocentgestures ("Inappropriate Smiling"). OnSeptember 13, 1968, two days after Hakamadawas convicted and sentenced to death, AsahiShimbun published a profile of Morita Seiji, oneof the lead detectives in this case. Moritastressed that throughout his interrogations ofHakamada (which lasted 264 hours andinvolved frequent yelling, hitting, kicking, andsleep deprivation), he had maintained "respect"for Hakamada's "point of view" (tachiba) and"humanity" (ningensei). All in all, mediacoverage of this case reads more like publicre lat ions for the pol ice than l ike anindependent effort to find and report the mostrelevant facts (Ogata, 2010, p.67). FormerJudge Kumamoto has said that the main causesof this miscarriage of justice were Hakamada'sfalse confession and public opinion that wasseverely distorted by biased reporting in themedia. Kumamoto also believes the differenceof opinion between him and his two seniorjudges can be partially attributed to the fact

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that he was transferred to the Shizuoka DistrictCourt after Hakamada's trial had alreadystarted, leaving him less affected by pretrialpublicity (Ogata, 2010, p.113).

Fifth, Hakamada's trial failed to ascertain theaccuracy of the evidence produced by policeand prosecutors-and Hakamada's own defenselawyers contributed to this failure. In criminaltrials in Japan and elsewhere, the adjudicativeprocess provides a number of mechanisms thatare supposed to safeguard the accuracy ofverdicts (Simon, 2012, p.180). Thesesafeguards include the presumption ofinnocence, a high burden of proof forprosecutors, vigorous cross-examination bydefense lawyers, and assurances that theadjudicators will be impartial and objective. Allof these safeguards failed in Hakamada's trial.His coerced confession pushed the presumptionof two of his three judges toward guilt.Prosecutors were supposed to prove thedefendant's guilt "beyond a reasonable doubt,"yet the Shizuoka District Court convicteddespite an abundance of doubt about thevoluntariness and reliability of Hakamada'sconfession, the province of the clothes "found"in the miso tank, the capacity of a small fruitknife to cause dozens of deep cuts withoutcausing significant damage to the blade, andthe ability of an adult man to enter the victims'residence through a locked gate.

Hakamada's defense lawyers were alsoineffective-partly for reasons beyond theircontrol (author's interview of Yamasaki Toshiki,director general of Hakamada's support groupin Shizuoka, May 10, 2014). Defense lawyerslacked access to their client during the all-important pre-indictment stage, and theylacked access to evidence in prosecutors'possession which would have helped them testthe state's claims through cross-examination, amechanism which has been called the "greatestlegal engine ever invented for the discovery ofthe truth."26 This engine was seldom started inHakamada's tr ia l (Yamamoto, 2004,

pp.363-389).

But defense lawyers a lso bear someresponsibility for the wrongful conviction of theman they represented. Most notably, theirinexperience in criminal trials and the normsabout criminal defense in Japanese legalculture (Johnson, 2011) led them to concludethat they should not directly challenge certainaspects of the state's case. In particular, byrefusing to challenge the honesty and proprietyof police and prosecutors, they failed torecognize that, at least in this case, the bestdefense might have been a good offense. Asone of the lead attorneys on Hakamada'sappellate defense team has acknowledged, ittook decades for other defense lawyers toarrive at this recognition (Ogawa, 2009, p.75).27

Sixth and finally, Japan's appellate courts failedto acknowledge problems in Hakamada's casefor more than forty years. It took the TokyoHigh Court and the Supreme Court twelveyears to reject Hakamada's original appealsand finalize his sentence of death. Then, afterHakamada's defense lawyers filed their firstrequest for a retrial in 1981, it took the threelevels of Japan's judiciary 27 years to reject it.The Hakamada team's attempt to get a retrialbegan to make meaningful progress only after asecond request was made (in 2008). This efforteventually succeeded, but not before more thantwenty judges had ratified the Shizuoka DistrictCourt's original mistake (Yamamoto, 2004,p.552). Hakamada's case started to receivesignificantly more public attention in 2007,after former judge Kumamoto proclaimed thathe had always believed Hakamada wasinnocent. This pronouncement not onlyattracted much media attention; it stimulated"save Hakamada" movements in AmnestyInternational, Japan's Pro Boxing Association,and a "Federation" composed of 57 members ofJapan's Parliament. This social movementgained additional strength in 2010, whendirector Takahashi Banmei released "BOX," atwo-hour film documenting and dramatizing

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this miscarriage of justice and the anguishKumamoto fe l t be fore and a f ter h i sparticipation in the case. 2 8

Studies suggest that in some contexts andcases, politics and public opinion influencejudicial decision-making in Japan (Upham,2005). It is hard to state how these forcesworked after Hakamada's second request for aretrial, but two influences do seem significant.Murayama Hiroaki, the chief judge who led thepanel of three judges in the Shizuoka DistrictCourt that made the retrial and releasedecision in March 2014, is widely regarded as acapable and accomplished judge. He would nothave been assigned to Shizuoka if Hakamada'scase were not on the docket, and the GeneralSecretariat of Japan's Supreme Court would nothave transferred him there if it did not regardhim as a reliable executor of judicial policy. Inaddition, politics and public opinion drove themovement for "justice system reform" (shihokaikaku) in Japan that resulted in the advent ofa new "lay judge trial system" (saibanin saibanseido) that started in 2009 (Shinomiya, 2013).This trial system is not directly connected toHakamada's case, for lay judges do not work onappellate courts. But indirectly, it did stimulatemany criminal justice reforms, includingsignificantly expanded obligations forprosecutors to disclose evidence to the defense(shoko kaiji). In Hakamada's case, JudgeMurayama persuaded prosecutors to disclosepreviously undisclosed evidence to the defense-evidence which greatly assisted defensearguments that Hakamada is innocent(Nishijima, 2014). And Judge Murayama'sdecision to pressure and cajole prosecutorsarose from his perception that the new normsof discovery in Japanese criminal justice,though not legally binding with respect to aretrial petit ion, should be applied inHakamada's case too (Mainichi Shimbun,2014b).

Causes of Hakamada's Release

Hakamada will be 80 years old in 2016. If hedoes not die before his retrial, he will almostcertainly be acquitted when three judges of theShizuoka District reconsider the state's caseagainst him. Retrials in Japan seldom end inacquittal, and the 2014 decision to grantHakamada a retrial leaves little doubt about hisinnocence. If he is acquitted, he will likelyreceive from the Japanese state 12,500 yen($125) for each day he was incarcerated(Sasakura, 2012). In Hakamada's case, thiswould sum to a total of about $2,200,000, morethan triple the amount received by GovindaMainali, who received $680,000 for the 15years he was wrongfully incarcerated for themurder of an employee of Tokyo ElectricCompany before being acquitted at a retrial inTokyo in 2012 (Ishida, 2013).29

Although Hakamada has not been officiallyexonerated (legally he remains sentenced todeath), it is worth considering what caused thedramatic change of judicial opinion in his case.The most important proximate cause of thisreverse course is the evidence that prosecutorsfinally disclosed to the defense after more than40 years of stonewalling. That evidence led tonew DNA tests , the resul ts o f whichundermined the state's claims about themeaning of the bloody clothes pulled out of themiso tank by raising disturbing questions aboutwho had put them there.

But larger forces also shaped the judicialprocess in this case. The lay judge reform of2009 (and the politics which preceded it)changed many norms in Japanese criminaljustice and thereby enabled Judge Murayama topressure prosecutors into disclosing evidencethat had long been concealed. Public opinionabout Hakamada's case also became moreintense after former Judge Kumamoto revealedthe nature of his own participation in it.Perhaps most importantly, the heroic efforts ofpeople working on Hakamada's case kept hopealive-and kept him alive-during five decades ofstruggle. Through it all, Hakamada's strongest

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ally was his sister Hideko, who wrote to himoften and visited him monthly (at her ownexpense), even during the long years when herefused to meet with her. Hideko participatedin hundreds of meetings, marches, and ralliesall over Japan, some focused on her brother'scase and others on the criminal justiceproblems this case illustrates. In addition,Hakamada now has a large and able team ofdefense lawyers, led by Nishijima Katsuhikoand Ogawa Hideyo.30 If they had been hisoriginal trial attorneys, the outcome might havebeen different. Finally, Hakamada has beenaided by several "support groups" (shienkai andkyuenkai) which have provided practicalassistance to him and his family.3 1 Theunglamorous but essential work performed bythe volunteers in these groups ranges fromorganizing meetings and arranging mediacoverage to editing publications and providingemotional, logistical, and financial support(Steinhoff, 2014). Most importantly, they keptthe memories of this man and his miscarriageof justice alive through the sheer force of theirdetermination and perseverance.

Although the foregoing causes help explain theturn toward acquittal in Hakamada's case, theyare not comprehensive. As in most wrongfulconvictions that end in exoneration, luck alsoplayed a prominent role in this case (Nishijima,2012, p.156).32 From 1966 to 2014, HakamadaIwao was surely one of unluckiest persons inJapan, but he might also be called "lucky" insome respects. He was lucky to have a sisterwho made huge sacrifices for him. He waslucky to be judged by a man like Kumamoto,who had the courage to break with custom andlaw by (belatedly) going public. He was lucky tohave experiences as a professional boxer thatattracted public interest to his case. He waslucky not to have his execution authorized byany of the sixty or so Ministers of Justice whoserved in that office after his death sentencewas finalized in 1980. More than 100 inmateswere hanged while Hakamada was on deathrow, and some of them had credible claims of

innocence (Aoki, 2009, pp.173-204). And hewas "lucky" to have lived so long under suchdifficult conditions of confinement.

Hakamada Iwao pacing in his sister'shouse in 2014

Lessons

Wrongful convictions are an "abomination ofjustice," especially when they involveintentional misconduct (Forst, 2013, p.36).Hakamada's defense lawyers and many otheranalysts believe Shizuoka police plantedevidence in order to frame him for crimes hedid not commit (Mainichi Shimbun, 2014b). In2014, the Shizuoka District Court wassufficiently persuaded of this probability toorder his release from death row before he was

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acquitted. This unprecedented action reflectedthat Court's serious concern about officialabuses of power and about Hakamada's ownwelfare (Shizuoka District Court, 2014).

The criminal process is only as good as theevidence on which it feeds. In Japan as in theUnited States, police and prosecutors producemost of the evidence (Miyazawa, 1992), andtheir investigations are "the single mostimportant determinant of evidence accuracy"(Simon, 2012, p.17). The first lesson fromHakamada's case is that police and prosecutorsshould not coerce confessions or fabricateevidence.33 Although this proposition iselementary, it needs to be stressed becauseJapanese police and prosecutors have coercedconfessions in other cases (Foote, 1991;Miyazawa, 1992; Hamada, 1992; Johnson,2002; Tomita, 2014), and because they alsohave fabricated evidence (Otsubo, 2011) andbeen directed to do so by their superiors (AsahiShimbun, 2011a), as explained by formerprosecutor Ichikawa Hiroshi in the AustralianBroadcasting Corporation video that appears int h i s i s s u e o f A s i a - P a c i f i c J o u r n a l(http://japanfocus.org/site/view/4262). Ofcourse, merely imploring pol ice andprosecutors to "be good" will have few positiveeffects. When these officials believe it is intheir interest to cut corners and break rules,they sometimes do so, usually with impunity. Toimprove on their performance and reduce therisk of wrongful conviction, their behavior mustbe made more accountable. Two structuralreforms are critical.

First, interrogations by police and prosecutorsshould be video recorded in all cases and intheir entirety (Suo, 2014). The interrogationroom is the most closed, secretive, andimportant space in Japanese criminal justice,and it is also where most miscarriages ofjustice germinate. The start of Japan's lay judgesystem in 2009 stimulated some recording, butmuch more can and should be done to makeinterrogations more transparent and

interrogators more accountable (YomiuriShimbun, 2014). In 2013, police interrogatorsrecorded the entire interrogation in only 29 outof 3315 cases that went to a lay judge trial(0.87 percent). Moreover, lay judge trialscomprise only about three percent of allcriminal trials in Japan; the other 97 percentare tried before a single professional judge or apanel of three professional judges. In 2013,police recorded the entire interrogation in only4 of these non-lay judge cases. By contrast,Japanese prosecutors recorded the entireinterrogation process in 75 percent of the layjudge cases they handled that year (JapanTimes, 2014a). Police interrogations are farmore common, intensive, and fundamental inJapanese c r imina l jus t i ce than areinterrogations by prosecutors. It is therefore nosurprise that the strongest resistance torecording reforms comes from the police. Morethan 90 percent of individual police officers inJapan believe recording interrogations is either"greatly effective or effective to some extent"(Japan Times, 2014a), but leaders of the policeinstitution want to maintain their discretion toturn off recording machines when it suits theirpurposes, as when they deem recording likelyto inhibit candor from a suspect or witness. Inthis sense, Japan's penchant for "bureaucraticinformalism" in legal reform remains alive anddysfunctional in its criminal justice system(Upham, 1987, p.27).34

The second vital reform is the creation of anobligation for prosecutors to disclose to thedefense all of the evidence in their possession(Ito, 2012). Hakamada was convicted partlybecause prosecutors hid much importantevidence, and he remained incarcerated foralmost half a century because his defenselawyers and the trial and appellate judges whoheard his case did not have access to manycritical facts. Prosecutors in Japan claim thattheir cardinal objective is "discovering thetruth" about criminal cases (Johnson, 2002,p.98). Too often, though, their version of "thetruth" fails to reflect key facts (Ezoe, 2010).

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The lay judge reform of 2009 stimulated someexpansion in prosecutors' duty to discloseevidence to the defense (Itoh, 2012), but moremust be done to make "discovering the truth"more than a mere slogan (Ishida, 2014).Evidence in criminal cases is not owned byprosecutors; it is "public property" which hasthe potential to reveal enough truth so thatprosecutors, judges, and lay judges can makesound decisions about guilt, innocence, andpunishment (Ibusuki, 2010). Japanese criminaljustice needs to respect this basic principle.

There are other reforms which would improvethe quality of Japanese criminal justice (Ibusukiet al, 2014), from the creation of forensic labsthat are independent of the police to theprovision of better defense lawyering forindigent suspects. In these respects, Japan lagsbehind the widely recognized "best practices"of criminal justice systems in other developeddemocracies (see Simon, 2012).

There is a lso the quest ion of capita lpunishment. To reduce the risk of wrongfuldeath by execution, Japan should reform itsdeath penalty system. Error is inevitable in alldeath penalty systems (Death Penalty Project,2014), but Japan's takes strikingly fewinstitutional and procedural safeguards toprevent mistakes (Johnson, 2013). In 1968,Hakamada was sentenced to death by a two-to-one vote of judges in Shizuoka District Court.Under Japan's current lay judge system,murder defendants can be convicted andcondemned to death by a vote of five-to-four(provided at least one of the five votes comesfrom a professional judge). Despite officialclaims to the contrary, this voting rule does notreflect a "cautious" (shincho) approach tocapital punishment, nor does it reflect thelessons that former Judge Kumamoto learnedfrom his own encounters with Japan's deathpenalty (Ogata, 2010).

More generally, death in Japan is not deemed a"different" (tokubetsu) form of punishment

requiring special procedures and protectionsfor capital defendants. In a capital case in1948, Japan's Supreme Court did state that "asingle life weighs more than the entire earth,"but two-thirds of a century later prosecutorsare still not required to tell the defense beforetrial whether they will seek a sentence of death(they are permitted to make their sentencingrequest on the penultimate day of trial). Thispractice hamstrings the efforts of defenseattorneys and bar associations to prepareeffective counterarguments if a capitalsentence is sought. Prosecutors in Japan arealso allowed to appeal acquittals and non-capital sentences if the court of first instancedoes not give them what they want. Thesedeficiencies in Japan's death penalty systemreflect both an insensitivity to the possibility oferror and a failure of political will (Johnson,2013, p.182).

The foregoing reforms would reduce the risk ofwrongful conviction, but the most importantlessons from Hakamada's case concern culturalassumptions that are relevant in many areas ofJapanese society, from medicine to nuclearenergy to criminal justice.35 As explained in anaccompanying article in this issue of Asia-Pacific Journal (Johnson, 2015), three principlesseem primary (Schulz, 2010, pp.299-307). First,in order to eradicate error one must assume itis inevitable. At present, too many criminaljustice officials in Japan assume that wrongfulconvictions are a thing of the past. Second,successful strategies for preventing error relyon principles of openness and transparency toidentify mistakes. Recording all interrogationsand disclosing more evidence to the defensewould move Japan considerably closer torealizing this imperative. Third, Japanesecriminal justice must rely more on verifiabledata so that decisions can be made based onfacts rather than on opinions, assumptions, andthe prerogatives of power.3 6 Empiricalcriminology in Japan is less developed than itscounterparts in the United States and England,and Japanese criminal justice professionals

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remain relatively uninformed about how "law inaction" is patterned. There are many reasonsfor this, including different sensibilities aboutwhat it means to do "social science" in Japan(Barshay, 2007), but in my view the key causeof this deficit is the resistance of Japanesecriminal justice officials to being studied in aserious way. Most notably, while police are themost important actors in Japanese criminaljustice because they are the main producers ofevidence (Miyazawa, 1992), hardly anyonestudies them in a serious way. As one Japanesereporter observed:

"If a prominent sociologist fromthe West…came here to researchthe Japanese police, that scholarundoubtedly would conclude thatthis country is 'a strange land.'First he would run into the policewall of secrecy, and he would beunable to investigate actual policepractices and conditions. Next hewould be informed that there is noinvestigative reporting about thepolice by newspaper or othermainstream journalists, and thatthere are very few free-lancejournalists who follow policeissues. Then he would learn that inJapanese colleges and universitiesthere are no courses about thepolice (as there are in the West)and no scholars who seriouslystudy them. In the end, our friendthe sociologist would discover thatcitizens and taxpayers (who haveentrusted their safety to the police)h a v e a n e x t r e m e l y w e a kconsciousness to try to check thepolice. Such a scholar, I think,would be seized by this question: IsJapan rea l l y a democrat i ccountry?" (Kobayashi, 1998, p.vi).

Seventeen years after this passage was

published, Japan remains a "strange land" withrespect to police research. Ironically, much ofthe best research about Japanese policing isbased on field work that was finished decadesago-and much of that was done by foreigners(Bayley, 1976; Ames, 1981). Police studies inJapan today may even be behind where it wastwenty or thirty years ago (but see Croydon,forthcoming for one recent and welcomecontribution).

In the United States, the problem of wrongfulconvictions has attracted an "explosion ofattention" in the past three decades (Radelet,2013, p.xv), and the discovery of innocence hasbeen the most important cause of sharpdeclines in death sentences, executions, andpublic support for capital punishment(Baumgartner, De Boef, and Boydstun, 2008).In Japan, by contrast, there has been relativelylittle research and debate about the frequency,causes, and consequences of wrongfulconvictions, and it seems no coincidence thatJapan is one of the few countries in the worldwhere capital punishment has accelerated inrecent years (Johnson and Zimring, 2009). Thecase of Hakamada Iwao and other revelationsof wrongful conviction in Japan are tragic intheir own right but they also raise troublingquestions about other problems in Japan'scriminal justice system. If Japan convictspeople who are actually innocent, how muchfaith should be placed in the proposition thatprison sentences are proportional to harm andculpability or that police stops have a solidlegal foundation? How often are Japanesepolice and prosecutors overzealous, and howoften are defense lawyers incompetent,unprepared, or handicapped by the law andeconomics of doing criminal defense in asystem that tilts strongly toward stateinterests? And if Hakamada Iwao, IshikawaKazuo, Sugaya Toshikazu, Sugiyama Takao,Sakurai Shoji, and Govinda Mainali (amongother victims) can be wrongfully convicted inmurder cases that receive major mediaattention, how frequently does Japanese

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criminal justice fail when the stakes are lowerand the criminal process is largely hidden frompublic view?

So far, Japanese researchers, journalists, andlegal professionals are merely scratching thesurface of these critical questions. Wrongfulconvictions are hardly a thing of the past inJapanese law and society, in part becauseunfair criminal trials and procedures have nothad the "educative effect" that ChalmersJohnson (1972) predicted when he finished hiscase study of the "Conspiracy at Matsukawa"more than forty years ago. For the problem ofwrongful convictions to persist in the decadesto come, all Japan needs to do is continuedenying this reality.

Japanese prosecutor explaining why hisoffice appealed the decision to grantHakamada a retrial

This is part two of a three part series curatedand written by David T. Johnson on TheDeath Penalty and Wrongful Convictions inJapan.

David T. Johnson is Professor of Sociology,University of Hawaii at Manoa and an Asia-Pacific Journal contributing editor. He is co-author (with Franklin E. Zimring) of The NextFrontier: National Development, PoliticalChange, and the Death Penalty in Asia(http://www.amazon.com/dp/0195382455/?tag=theasipacjo0b-20) (Oxford University Press,

2009), co-author (with Maiko Tagusari) ofKoritsu Suru Nihon no Shikei [Japan's IsolatedDeath Penalty] (Gendai Jinbunsha, 2012), andformer co-editor of Law & Society Review. Hecan be reached at davidjoh@hawaii.edu.

Recommended citation: David T. Johnson, "AnInnocent Man: Hakamada Iwao and theProblem of Wrongful Convictions in Japan", TheAsia-Pacific Journal, Vol. 13, Issue 6, No. 4,February 9, 2015.

Related articles

David T. Johnson, Killing Asahara: WhatJapan Can Learn about Victims and CapitalPunishment from the Execution of anA m e r i c a n T e r r o r i s t(https://apjjf.org/-David_T_-Johnson/3832)

•Philip Brasor, Lay Judge System and theK a n a e K i j i m a T r i a l(https://apjjf .org/-Philip-Brasor/3757)

•David T. Johnson, War in a Season of SlowRevolution: Defense Lawyers and LayJudges in Japanese Criminal Justice(https://apjjf.org/-David_T_-Johnson/3554)

•David T. Johnson, Capital Punishmentwithout Capital Trials in Japan's Lay JudgeS y s t e m(https://apjjf.org/-David_T_-Johnson/3461)

•Lawrence Repeta, Transfer of Power atJ a p a n ' s J u s t i c e M i n i s t r y(https://apjjf.org/-Lawrence-Repeta/3244)

•David T. Johnson and Franklin E. Zimring,Death Penalty Lessons from Asia(https://apjjf.org/-Franklin_E_-Zimring/3228)

•Mark Levin and Virginia Tice, Japan's NewCitizen Judges: How Secrecy ImperilsJ u d i c i a l R e f o r m(https://apjjf .org/-Virginia-Tice/3141)

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Notes

1 Some analysts suggest a different ratio.Benjamin Franklin put the proper proportion at100 to 1, while rabbi-scholar Maimonides put itat 1000 to 1. In contrast, Jeremy Benthamstated that "we must be on guard against thosesentimental exaggerations which tend to givecrime impunity, under the pretext of insuringthe safety of innocence." On this view, toomuch concern about condemning the innocentcould lead to the pernicious principle that"nobody ought to be punished, lest an innocentman be punished" (quoted in Volokh, 1997).Research suggests that "the public preferslower standards of proof in situations wheremore serious offenses have been committed,and higher standards of proof where the crimecommitted is less serious" (de Keijser, deLange, and van Wilsem, 2014, p.45). And in

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some contexts, the public seems to care moreabout failures to convict than about the costs offalse conviction.

2 Many studies have been done about wrongfulconvictions in the United States, England, andsome countries of Europe (Huff and Killias,2008 and 2013), but little research has beenpubl ished in Engl ish about wrongfulconvictions in Asia. The Asian studies includeJiang, 2013 (on wrongful convictions and deathpenalty reform in The People's Republic ofChina), and Chen and Chua, 2010 (on the riskfactors for wrongful conviction in Singapore).Accounts of wrongful conviction cases in Asiainclude Sherrer, 2011 (on the posthumousacquittal of Chiang Kuo-ching, who wasexecuted in Taiwan in 1997), Hankyoreh, 2007(on eight persons in South Korea who wereexonerated 32 years after they were executedfor treason in 1975), and Sherrer, 2013 (onNguyen Tan Chan, who was convicted andsentenced to death in Vietnam in 2004 andexonerated in 2013). Two websites provideuseful information about wrongful convictionsin Asia: The Wrongful Convictions Blog(http://wrongfulconvictionsblog.org) (edited byMark Godsey of the Center for the Global Studyof Wrongful Conviction at the University ofC i n c i n n a t i ) ; a n d J u s t i c e D e n i e d(http://www.justicedenied.org) (published byHans Sherrer), which lists 77 other web sitesrelated to wrongful convictions. In Japan,Michael H. Fox maintains the Japan Innocenceand Death Penalty Information Center(http://www.jiadep.org/).

3 The Japanese language for miscarriages ofjustice is rich, and there is significant semanticoverlap between various terms. Enzai istypically translated as "wrongful conviction" or"miscarriage of justice." Mujitsu no hito refersto a person who is "actually innocent" whilemujitsu no tsumi refers to a "factually baselesscriminal charge." Nureginu means a "falsecharge or accusation." Detchiageru means to"make up, frame up, or invent." Netsuzo means

to "invent, fabricate, forge, or frame." Andgohan means a "misjudgment, mistrial, ormiscarriage of justice" (Nishijima, 2012, p.155).Some analysts have criticized the concept of"miscarriage of justice" as a "misnomer" whichfails to recognize that police care more about"efficiency, obedience, and order" than justice(Dubber, 2009, p.281), and which fails to"exhaust the universe of injustices" (Ewick,2009, p.304), but these critiques seemmisplaced. The scope of the meaning of"miscarriage of justice" also varies from cultureto culture. In Japan, persons who are arrestedbut never charged are sometimes said to bevictims of a "miscarriage" (enzai), but thislanguage is seldom used to describe analogouscases in the United States. The comparativestudy of miscarriages of justice is still in itsinfancy and is heavily concentrated on thenations of the West, but linguistically if notculturally, Japan may have more sensitivity tomiscarriages than do some jurisdictions in theUnited States. More research is needed on thisand many other topics related to wrongfulconvictions (Huff and Killias, 2008 and 2013).

4 Some observers believe that the psychologicalproblems Hakamada experienced after hisdeath sentence was finalized in 1980 are betterexplained by brain trauma inflicted whileboxing than by the conditions of his convictionand confinement (author's interviews in Tokyo,May 12 and 15, 2014).

5 Masako told police that she knocked on thedoor of her parents' home and was greeted byher father, who did not let her in (Yamamoto,2004, p.103). Some observers believe Masakoknew more about the murder of her family thanshe acknowledged. We may never know forsure because she apparently committed suicidea day or two after Hakamada was releasedfrom death row in March 2014. Shizuoka policehave released little information about thecircumstances of her death (author's interviewwith reporters from Shizuoka Shimbun, May10, 2014).

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6 In the United States, crimes of this kindattracting significant media attention are called"heaters" (Schmidle, 2014, p.36). In Japan,crime reporting about "heater" cases tends tobe sensationalistic and strongly supportive oflaw enforcement's perspectives (Miyazawa,1992, p.227; Kawai, 2004, p.194).

7 Police said they "let Hakamada swim" forseven weeks before arresting him because theywanted to see whether he would engage inother acts that would be incriminating (policetailed him for most of this period). But the truthis more complicated. Police in Japan arepermitted to do things on a "voluntary" basis(n in ' i doko and n in ' i shut to) dur inginvestigations (such as restrict a suspect'sliberty and require him or her to be questioned)that would not be allowed prior to arrest inother criminal justice systems (Miyazawa,1992, p.103). In addition, the long pretrialperiod gave the media plenty of time toconstruct images of Hakamada that stronglysuggested he was guilty (Ogata, 2010, p.64).Most fundamentally, police did not haveenough evidence to arrest Hakamada, which isalso why they tried hard to obtain admissions ofguilt from him during the long pre-arrestperiod (Yamamoto, 2004, p.190).

8 An expression used by the yakuza testifies tothe difficulty of maintaining claims ofinnocence during police interrogation in Japan:"It is a miracle to withstand three days ofinterrogation" (author's interview withShizuoka defense lawyers, May 10, 2014).

9 In a case in Kagoshima involving allegationsof vote buying in a local election, six elderlysuspects falsely confessed after enduringhundreds of hours of interrogations, and oneman who refused to confess spent 395 days injail before finally being released (Onishi, 2007).The practice of jailing suspects for prolongedperiods of time if they do not confess has beencalled "kidnap justice" (hitojichi shiho) becauseit creates strong incentives to provide police

with the "ransom" they seek (a confession) inorder to obtain freedom (Egawa, 2014).

10 In one recent case, prosecutors in Osakaaltered information on a floppy disc in anattempt to convict a high-level governmentofficial of corruption. The official (MurakiAtsuko) was acquitted in 2010, and threeprosecutors were criminally convicted for theirrole in this fraud (Otsubo, 2011).

11 In 1931, The Wickersham Commission Reporton law observance and law enforcement in theUnited States defined the "third degree" as "theinfliction of physical pain or mental suffering toextract information" (Leo, 2008, p.43).

1 2 Hakamada told his sister that duringinterrogation, "I could do nothing but crouchdown on the f loor trying to keep fromdefecating. One of the interrogators put mythumb onto an ink pad, drew it to theconfession he had composed, and ordered meto 'Write your name here!' while he wasshouting at me, kicking me, and wrenching myarm" (quoted in Policy Review, 2005).

13 In Japan, police conduct the large majority ofinterrogations, but prosecutors interrogate too.In 2010, a survey about prosecutors'interrogation practices was sent to all ofJapan's 28,870 private attorneys. Respondentsidentified six main categories of abuse: threats("if you do not confess you will not be releasedon bail"), inducements ("if you confess we willnot charge you"), violence (hitting, kicking,throwing things, and so on), attempts toundermine a suspect's relationship withdefense counsel ("your young lawyer is lousy!"),long interrogations that overbear a suspect'swill (some respondents reported interrogationsof 8 hours or more each day for many days in arow), and "other" problems (such asprosecutors telling a suspect "you are the worstkind of human being" or not reading a dossieraloud before asking a suspect to sign it). Formore details about this survey, see Nihon

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Bengoshi Rengokai, 2011.

14 According to some defense lawyers andmembers of Hakamada's support teams, thefour Hashimoto victims may have been killed byyakuza sent by their boss to exact revenge forMr. Hashimoto's involvement with "the wrongwoman" (author's interviews, May 10, 2014).On this view, the boss's rage was reflected inthe brutality of the murders.

15 The Shizuoka District Court gave fourreasons for rejecting 44 of the 45 statements(chosho). First, Hakamada's interrogationswere long, averaging almost 12 hours per dayfor 23 days. Second, police had pressuredHakamada for information (about his alibi,blood on his pajamas, a cut on the middlefinger of his left hand, blood on a glove, and themurder weapon), but Hakamada had notincriminated himself despite their high-pressure tactics. Third, police had continued topressure Hakamada to confess despite hisrepeated denials. And fourth, beforeHakamada's first confession on the twentiethday of interrogation, he had been allowed tomeet with his defense attorneys only threetimes, for 7, 15, and 15 minutes, respectively(Nishijima, 2014, p.79).

16 The Shizuoka District Court gave threereasons for admitting one of the 45 confessionstatements. First, police were not present whenHakamada confessed to prosecutors. Second,police and prosecutors are different, so it isinappropriate to focus on Hakamada'sinteractions with police. And third, theinterrogating prosecutor did not have policestatements on his desk when Hakamadaconfessed to him (Ogata, 2010, p.114). FormerJudge Kumamoto has said he opposed thisreasoning during deliberations and claims thatthe other two judges wanted to admit at leastone confession statement as evidence in orderto make a sentence of death seem morereasonable (Mainichi Shimbun, 2014a).

17 Former Judge Kumamoto has not saidwhether Judges Ishimi and Takai believed thatpolice planted the clothing evidence and thatHakamada was the real killer (Ogata, 2010,p.108). If this was their view, then the twosenior judges would have believed that policeplanted evidence in order to frame a guiltyman.

18 The Shizuoka District Court's decision madeno mention of Kumamoto's dissent, as is thecustom in Japan's judiciary.

19 It is unclear why former Judge Kumamotowent public in 2007 with his revelations aboutthis case. He has given various explanations. Bylaw, judges in Japan have a "duty o fconfidentiality" (shuhi gimu) to refrain fromspeaking about their case deliberations, andthis may help explain why Kumamoto waited solong before speaking out. My own view is thathis decision to go public may have beenmotivated by the deaths of former JudgesIshimi and Takai and by his own desire to atonefor his involvement in a decision that ruined aninnocent man's life. For more details, seeKumamoto (2009), Ogata (2010) and Yamadaira(2010). In May 2014 I tried to interviewKumamoto, but I was told he was too ill tocommunicate effectively.

20 Before Hakamada, the most well-known DNA-based exonerations in Japan occurred in thecase of Sugaya Toshikazu, who was releasedfrom prison in 2009 after serving 17 years inprison for the murder of a four-year-old girl inthe Saitama city of Ashikaga, and in the case ofGovinda Mainali, a Nepalese man who wasacquitted at a retrial in 2012 after serving 15years in prison for the murder of a Japanesewoman in the Shibuya district of Tokyo.

21 The Shizuoka District Court further foundthat the colors of the clothes were "unnatural"and inconsistent with the state's claim that theyhad been submerged in miso for 14 months,and it said it was "unnatural" to believe that it

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took 14 months for police to find this clothingor that the killer would hide incriminatingevidence so close to the scene of the crime. TheCourt also concluded that the pants "found" inthe miso tank were too big to fit Hakamada, afact that police and prosecutors discoveredduring their pretrial investigations and kepthidden from the defense for more than 40years.

22 At the time of Hakamada's release in March2014, the 130 inmates on death row under afinalized sentence of death had spent anaverage of eight years and five months in thiscondition (New York Times, 2014). More thanhalf were seeking a retrial. Condemned inmatesare held in detention centers (kochisho) inTokyo, Osaka, Nagoya, Sapporo, Sendai,Hiroshima, and Fukuoka, and they lack many ofthe rights accorded to persons incarcerated inprisons (keimusho). Death rows in Japan havealso become more closed and secretive over thepast few decades. Until the 1970s, condemnedinmates were notified a day or two before theyw e r e h a n g e d a n d w e r e g i v e n m o r eopportunities to communicate with persons onthe outside (Johnson, 2006, p.261).

23 Life on Japan's death row is not only scary, itis tinged with irony, absurdity and humiliation.In a letter to Hideko written on a wintermorning in 1981, Hakamada complained aboutthe bitter cold in his cell and his frostbittenfingers before going on to observe that "Theradio was just turned on. It's the same show asalways. [Someone] is asking 'How are youspending this pleasant Sunday morning?' Thereare about 2000 inmates in this jail listening tothis radio show. Among them, not a single onethinks he is having a 'pleasant Sunday.' I hatebeing forced to listen to these absurd words"(Letters from Prison, 1992, p.84).

24 Hideko believes the letters may have stoppedbecause guards who screened inmates'correspondence found it "too cumbersome" toread through all the nonsense her brother was

writing and "told him not to write" anymore(quoted in Amnesty International, 2009, p.37).

25 In O.J. Simpson's murder trial, which endedin acquittal in 1995, several jurors believedthat police planted blood evidence onSimpson's sock in order to frame a guilty man-and they voted to acquit. One of Simpson'sdefense lawyers has said that students atHarvard Law School who confront thisdilemma-should a killer who has been framedby police be convicted or acquitted?-are"always divided" (Dershowitz, 2014).

26 This assertion was originally made in 1904 bythe American jurist John Wigmore and wasrepeated by the U.S. Supreme Court in 1981and 1999 (Simon, 2012, pp.180-183).

27 Many defense lawyers in Japan and theUnited States believe that truly innocentpersons are the hardest kind of defendant torepresent because they know nothing about thecrime and can provide little assistance to theirattorneys (Morton, 2014, p.69).

28 Two of Hakamada's defense lawyers told methat Takahashi's "BOX" film is "mostly fiction,"and one of them said Yamadaira Shigeki's(2010) book about Judge KumamotoNorimichi's role in this case and his reactionsto Hakamada's death sentence is also"unreliable" (author's interviews in Shizuoka,May 10, 2014). In writing this article I have notrelied on these sources.

29 The matter of Hakamada's compensationraises some interesting questions. For example,is $2,200,000 a lot for 48 years of whatHakamada went through? Not compared to the$40 million awarded in 2014 to the five Latinoand black defendants who were wrongfullyconvicted of rape in the 1990 "Central ParkJogger" case in New York City-none of whomserved more than 13 years in prison. On theother hand, 24 American states have no legalprovision for financial compensation to personswho have been wrongly imprisoned.

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30 Since 1981, Hakamada's defense team hasbeen financially supported by funds andpersonnel from the Japan Federation of BarAssociations. In many countries, institutionalsupport of this kind is often the differencebetween wrongful convictions that get revealedand those that do not (Huff and Killias, 2013).

31 Hakamada's support groups include TheShimizu and Shizuoka Citizens' Group toRescue Mr. Hakamada Iwao (Hakamada Iwaosan o Kyuen Suru Shimizu – Shizuoka Shiminno Kai, based in Shizuoka and led by Mr.Yamasaki Toshiki), The Group to Save InnocentDeath Row Inmate and Former Pro BoxerHakamada Iwao (Mujitsu no Shikeishu – MotoPuro Bokusa Hakamada Iwao o Sukuu Kai,based in Tokyo and led by Ms. Monma Sachie),and Free Hakamada Now (led by the Japan ProBoxing Association in Tokyo). On the role ofsupport groups in Japanese law and societymore generally, see Andrews (2014) andSteinhoff (2014).

32 As one veteran defense lawyer has observed(Nishijima, 2012, p.156), many exonerations inJapan are achieved through some combinationof "superhuman efforts" (chojin teki doryoku)and "accidental factors" (guzen teki yoso).

33 Japanese officials sometimes argue thatmiscarriages of justice occur mainly becausecriminal suspects give false confessions. Thisclaim ("if only they wouldn't do that") fails toacknowledge that persons suspected of seriouscrime seldom provide false confessionsspontaneously (Nishijima, 2012, p.156). Thevast majority of false confessions are givenbecause suspects were manipulated or coercedby police (Hamada, 1992).

3 4Two hallmarks of the "bureaucratic

informalism" that characterizes Japan'sapproach to law and social change are legalinformality (through an emphasis on officials'discretion), and strict limits on the judicialreview of discretion (Upham, 1987, p.22).Japan's slow progress toward recordinginterrogations also reflects the tendency ofJ a p a n e s e l a w t o m a k e h o r t a t o r ypronouncements without providing legalsanctions for failures to comply (Haley, 1980).John Haley calls this pattern in Japanese law"authority without power" and "commandwithout coercion" (Haley, 1991, p.193). As ofAugust 2014, Japan's Ministry of Justice plansto submit a bill to Parliament in 2015 that willr e q u i r e p o l i c e a n d p r o s e c u t o r s t o"electronically record the entire interrogationprocess in all criminal cases subject to layjudge trials" (Japan Times, 2014a). Even if thisbill becomes law, police and prosecutors willmaintain their discretion not to record in the 98percent of criminal cases that are tried byprofessional judges (Suo, 2014).

35 Reform of laws and institutions is the mainmeans of change in the modernist approach todeveloping democracy, but the idea that reformalters actual practice "is a hypothesis, not anaxiom" (Flyvbjerg, 1998, p.234). The bestresearch on "making democracy work" warnsthat that the "designers of new institutions areoften writing on water" (Putnam, 1993, p.17).Since culture conditions new laws andinstitutions, reformers should attend to thisarea too.

36

More generally, Japan is often a "fact-rich butdata-poor" focus for empirical research in thesocial sciences because individual-level dataare largely unavailable (Brinton, 2003, p.195).