High Drama of Injustice in Kabutoyama Case

BRIAN L. COVERT

The Kobe District Court, in rehearing the two-decade-old “Kabutoyama Jiken” court case on March 24, provided all the elements of a well-produced Hollywood movie.

There were the citizens in the public gallery, erupting in cheers and weeping with joy at the rendering of verdicts of innocence for the defendants.

There were the stunned prosecutors and police, barely able to keep their composure as the chief judge dismantled their arguments piece by piece.

There was even an associate judge sitting at the bench who appeared touched by the emotion of the moment, as she lifted her robed arm with the greatest of dignity and occasionally dabbed her nose with her handkerchief, joining the other sniffling spectators in the gallery.

And there is a sequel: At press time, public prosecutors announced that they will fight the innocent verdicts by appealing to a higher court — for a second time.

The Kabutoyama case, of course, is no Hollywood movie but a real-life drama involving real-life citizens that has played out in the halls of justice in Japan since 1974.

It is a drama, too, that raises renewed public ire and scholarly concern over the very foundations of the Japanese criminal justice system, a system in which proving a suspect’s guilt at any cost can often take priority over finding out the truth behind a crime.

“In traditional (Japanese) society, if one were charged by the authorities, people assumed that they were guilty or at least had done something wrong,” says Mikiso Hane, professor emeritus at Knox College in Illinois [USA], who was born in the U.S. and grew up in prewar Japan. “So this probably explains the view that one is guilty until proven innocent (in Japan).”

Hane, an author of several books on Japanese history, adds: “I know that if one were picked up by the police in prewar Japan, a stained cloud hung over that person whether he was proven guilty or not.”

Enter Etsuko Yamada, primary defendant in the Kabutoyama case.

In March 1974, Yamada (then Sawazaki) was a 22-year-old employee of Kabutoyama Gakuen, a facility for mentally disabled children deemed unfit to enter the mainstream Japanese educational system.

When the bodies of two 12-year-old resident children of the facility were found in a huge septic tank on the grounds of the facility in Nishinomiya, Hyogo Prefecture, Yamada became the police’s prime suspect in the resulting investigation.

Over the ensuing years, Yamada was arrested, cleared of all charges, then rearrested a few years later and indicted for murder. The Kobe District Court found her innocent.

Upon appeal by prosecutors, the Osaka High Court overturned Yamada’s acquittal and sent the case back to the Kobe court. Yamada appealed to the Supreme Court [in Tokyo], which refused to hear the case and supported the Osaka court’s decision.

At that point, in 1993, Yamada’s retrial started again in Kobe District Court. Five years later, the court found her innocent a second time. Now, public prosecutors in Kobe and Osaka are ready to try their luck once more at the Osaka High Court, saying they will again appeal Yamada’s two verdicts of innocence.

The question inevitably arises: Why is justice taking so long in the Kabutoyama case?

Article 39 of the Japanese Constitution prohibits a person from being tried twice for the same crime. Yet public prosecutors in Japan often appeal a defendant’s acquittal to a higher court, as they did with Yamada, resulting in a second prosecution. There is fierce debate within the Japanese legal community as to whether or not this violates the Constitution.

In the process of appealing, the case may get sent back to a lower court and retried from the beginning, adding years of legal battles, as it did with Yamada. There is also debate as to whether such excessive delays violate Article 37 of the Constitution, which guarantees a defendant a right to a speedy trial.

“I wonder if the concept of due process and protection of individual rights are upheld (in Japan) as strictly as they are in America,” says Hane. “One gets the impression that the feudalistic outlook in which the authorities still retain a sense of superiority over the defendant still prevails.”

Although public prosecutors in the Kabutoyama case have decided to appeal and thereby drag the case on for possibly many more years, what they don’t have — according to two rulings by the Kobe District Court — is solid evidence against Yamada.

The strongest evidence against her was unsworn testimony from a few of the mentally disabled children at Kabutoyama Gakuen, given mostly through leading questions by prosecutors three years after the alleged crime.

Police also point to a verbal confession by Yamada. But she claims her statements had been coerced by investigators during a 21-day detention period in which she was held virtually incommunicado.

People deserve to know how and why two innocent children fell into a septic tank and drowned in March 1974. Sadly, though, the public is no closer to knowing those answers now than it was then.

What is clear is that justice in the Kabutoyama case has run its natural course — twice over. It is now time for prosecutors to drop the case against Yamada, and for people to take a closer look at justice system reform in Japan.

Etsuko Yamada has spent the better part of her adult life fighting for her innocence in the Japanese courts. But the real battle lies ahead: being accepted back into Japanese society.

And that is a drama no Hollywood movie can recreate.
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The author is a freelance journalist living in Nishinomiya, Hyogo Prefecture.