Sunday, Sept. 23, 2007

MEDIA MIX
TV 'kangaroo courts' led by excitable pundits make joke of law

By PHILIP BRASOR

The current box-office winner in Japan is "Hero," the movie spinoff of a popular TV series starring heartthrob Takuya Kimura as a nonconformist prosecutor. Now there's an oxymoron. In American pop culture, at least, prosecutors tend to be the bad guys since they represent the establishment, but in Japan prosecutors put away the bad guys, who are helped by shifty criminal defense lawyers. If I had to describe this attitude to an American, I would say, "Imagine that everyone on trial for murder was O.J. Simpson."

The difference is that O.J. would have been toast in Japan, and his defense team would have been despised as thoroughly as the one that's currently representing the 26-year-old man accused of raping and murdering a housewife in Hiroshima and also killing her infant daughter. Because the man was 18 in 1999 when the crime occurred, he wins the right not to have his name publicized, but apparently it doesn't disqualify him for being eligible for the death penalty. The young man was convicted and given a life sentence in both his first trial and an appeal, but last year the Supreme Court ruled that the Hiroshima High Court had no reason not to give him the death penalty, and sent the case back.

The team now representing him has more than 20 lawyers and is headed by Yoshihiro Yasuda, who is famous for defending some notorious murder suspects, including Aum Shinrikyro guru Shoko Asahara. Yasuda's group is not just trying to prevent the death penalty from being applied. They are trying to convince the Hiroshima High Court that the defendant's previous admission of premeditation was improperly elicited, and that he did not intend to kill the woman or her baby.

This new strategy, which emerged when the trial started again in May, has scandalized practically everyone. Yasuda has even received death threats. The husband of the victim, Hiroshi Motomura, has been using the media since 1999 to demand the death penalty, and he blasted Yasuda for what has been called a childish and ridiculous defense. The young man now claims that he simply wanted to get to know the woman and had sex with her corpse in the belief that he could magically bring her back to life.

Yasuda was prepared for the stoning, but he may not have expected it to come from a fellow lawyer. Earlier this summer, on the Osaka TV talk show "Soko Made Itte Iinkai (Can You Say That Much?)," attorney Toru Hashimoto, who makes a nice supplementary living as a TV personality, called on viewers to submit chokai seikyu, or "disciplinary claims," to the Japan Federation of Bar Associations to have the members of the Yasuda team disbarred.

The JFBA had since received more than 4,000 such claims (the form can be downloaded off the Internet). To put it into perspective, a total of 1,367 claims against individual lawyers were filed during all of 2006.

Two weeks ago, Hashimoto appeared on the TV Asahi wide show "Super Morning" to discuss the matter. He appears on many programs offering what could reasonably be called rightwing opinions on the issues of the day. Because conservative pundits tend to be hardline, they make a more striking impression on TV than do their liberal counterparts, who tend to get bogged down in detail and resist appealing to viewers' emotions.

In this regard, Hashimoto is a classic conservative pundit, and it's obvious that his public solicitation for claims against the Yasuda group was a reckless stunt. He admitted as much on "Super Morning," though he tried to put a noble face on it. As freelance journalist Shoko Egawa explained on her blog, Hashimoto neglected to explain that chokai seikyu are actionable, meaning that anyone who submits one can be sued by the person cited for interfering in that person's livelihood. Apparently, many of the people who sent claims to JFBA thought of it as signing a petition.

Maybe Hashimoto thought so, too. Based on his self-defense on "Super Morning," it's easy to get the impression he doesn't understand how chokai seikyu work, but he didn't submit one himself, insisting he was too busy. Nevertheless, the Yasuda team plans to sue him.

However, it's his reasoning that deserves scrutiny, since that is what moved people to send claims. Hashimoto believes that the Yasuda team "convinced the defendant" to change his story, and then did not "explain why they did so" to the public, thus "destroying the dignity" of the legal profession. According to Hashimoto, the public has already decided that the young man deserves to die for his crimes, and Yasuda and his team were basically depriving the people of closure.

Yasuda has explained that some forensic evidence that counters the prosecutor's case was left out of the first trial, and in last week's court session, the defendant said he admitted to premeditation in the initial trials because the prosecutor and his first team of defense lawyers told him such an admission would save him from the gallows. Major news outlets glossed over both points if they mentioned them at all, focusing instead on statements given in court by the murdered woman's husband and mother, who reiterated that the defendant should pay with his life.

Defense attorneys have no legal or moral obligation to explain their actions to the public. Yasuda's only obligation is to his client, for whom he is working pro bono in this case. But Hashimoto is a celebrity, which is why his opinions get aired regardless of how irresponsible they may be. And the media obviously supports him, if for no other reason than the fact that he's one of theirs. At the end of the "Super Morning" discussion, the female announcer who was acting as emcee said that she had doubts about the case, "but the number of people who sent claims speaks for itself." Who needs courts of law when you've got the court of public opinion?

The Japan Times: Sunday, Sept. 23, 2007
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