The Higashi-Sumiyoshi Case
A Case of Voluntary Confessions?
by
Michael H. Fox

Constitution of Japan: Article 38:2 Confession made under compulsion, torture or threat, or after prolonged arrest or detention shall not be admitted in evidence.

Timeline
1995
July Fire Occurs
Sep 10 Confessions/Arrest
Aoki Trial Begins
Boku Trial Begins
1999
Aoki sentenced to life.
Boku sentenced to life.
2000
Boku appeal begins
Aoki appeal begins
2004
Oct Aoki appeal denied
Dec Boku appeal denied
2005
Supreme Court Appeals
Boku Submitted
Aoki Submitted

When the postwar occupation forces were designing the present Japanese constitution, one of their goals was to broaden the sphere of rights encompassing the individual citizen. A key beneficiary of these rights was to be the criminally accused. Those accused of capital crimes would be presumed innocent until proven guilty, coerced confessions would not be admitted as evidence, and if found innocent, the defendant could not to be put in double jeopardy-the prosecution would forfeit the right to appeal decisions of “not guilty.”

Many articles of the new constitution were welcomed, some were tolerated and some abhorred. To the judicial and political elite , these particular rights which protected the criminally accused clearly fell into the latter category. And over fifty years later, things still remain as they did before the war. A recent incident in Kansai demonstrates the contemporary treatment of the criminally accused, and the gap between legal theory and actual practice.

THE ACCIDENT
On July 22, 1995, Shimada Tatsuhiro, a 34 year old technician, stopped at a gasoline stand and filled the tank of his van before arriving at his home in Osaka`s Higashi-Sumiyoshi ward. Some ten minutes later he smelled smoke and noticed a small fire in the garage under his van. He quickly searched for an extinguisher while his wife called the fire department. Some neighbors also lent assistance. But the tiny fire grew and spread. The couple’s 11 year old daughter, who at the time was in the first floor bath, tried to escape but was overcome by smoke and died of asphyxiation.

Both the police and fire departments carried out detailed investigations. Japan has a proportionately high number of arson-for-insurance fraud incidents and so investigation is a routine matter. The fire itself did not arouse the suspicion of the authorities, but the circumstances of the family probably did. Police soon learned that the man and woman of the house did not share the same name nor were they legally married. They had lived together for six years-a common law marriage-and their two children were from the woman`s (Ms. Aoki's) previous marriage. Police also discovered that Mr. Shimada was a zainichi Korean (whose real family name was Boku)and that Ms. Aoki had life insurance policies on both of her children.

Life insurance coverage for children is quite usual in Japan, most couples carry it as a matter of course. The usual coverage for minors through major programs is five million yen which can be doubled to ten million yen for a nominal premium. The little girl who died was insured for fifteen million yen, somewhat above the national norm.

THE INTERROGATION
The investigation of the fire did not seem to produce any suspicious findings. If it had, the police would have issued arrest warrants right away. Perhaps something about this case annoyed their conformist sensibilities, particularly the irregular family circumstances. At seven a.m on Sunday, September 10, some six weeks after the tragedy, a squad of detectives arrived at the couple`s new domicile and requested both Boku and Aoki to come down to the police station for voluntary questioning. Each was taken to a separate station. This questioning soon turned into an interrogation- the police immediately demanded that each confess to arson, murder, and insurance fraud. When Boku refused, his interrogators became violent- they hit his head, kicked his knees and applied choke holds. After 14 hours of continued verbal and physical abuse, police lost patience with Boku and fabricated a story saying his eight year old stepson had already confessed to seeing him start the fire. They reminded him that Japan has a death penalty, and if he cooperated, he would be spared from the noose. In a state of despair, Boku broke down and signed a confession admitting to the charges.

Ms. Aoki received the same treatment. Detectives put their mouths to her ear and screamed a torrent of insults and abuse further aggravating her sense of guilt and grief over her deceased daughter. “You couldn’t save your daughter so you are responsible for killing her. You are a murderer.” By eight o’clock that evening, a psychologically broken Aoki signed a similar confession.

The next day, both were visited by lawyers. Both denied the charges, Aoki in tears.

Confessions: theory and fact.
This case illustrates many problems of the Japanese policing, particularly the function and the public’s perception of confessions. A survey of various reference books touching on the Japanese legal system uncovers some disturbing commentaries which all but heap praise upon the present system. The Cambridge Encyclopedia of Japan asserts that incarceration and long interrogation of suspects without the presence of legal council, a condition unimaginable in other industrialized countries, enables the police to “develop a human relationship with the suspect, to the end of obtaining a confession or, in many cases, multiple confessions.(p, 275)
Assertions such as these are frequently made by western scholars of the Japanese criminal justice system. Such misinformed is very, very scary. In a recent issue of this magazine (KTO# 285 Nov 2000), a foreigner who had problems with the law advises, If you did it, confess. If you didn’t`t fight.” Most readers probably paid scant attention to this remark, finding it painfully obvious. But because ordinary Japanese are oblivious to law and obedient to authority, police are free to act as they please.
While Boku and Aoki were undergoing voluntary questioning, both had the right to stand up and walk out. But both were unaware of their rights and meek in the face of authority.

THE REENACTMENT
As the constitution of Japan prohibits conviction based solely on confession, prosecutors sought other evidence to cement their case. The police allege that on the day of the fire, Boku stopped in at a local store and bought a simple plastic pump, the 100 yen variety used for kerosene stoves in the winter. Upon arriving at home, he parked the van, pumped out six or seven liters of gasoline, laid the pump under the van, and ignited the fire with a disposable lighter.

In order to support this story, the authorities commissioned the Scientific Criminal Investigation Laboratory, a governmental organization, to carry out a reenactment of the case. The institute is quite meticulous- it procured a similar vehicle, built a garage to the same specification as Park’s, spread seven liters of gasoline on its floor, turned on their video cameras and set the entire thing ablaze.

The results of this reenactment were problematic and digressed from the evidence left by the actual blaze. In the reenactment, the paint on the van burned evenly, and the rising smoke covered the ceiling uniformly. In the actual fire, the paint on the van burned linearly and the smoke marks were spotty and uneven. This evidence, confirmed by witnesses who gave statements to the police, points to a small fire which gradually grew, not the sudden blaze recorded by police cameras.

How then did the fire begin? According to a report drafted by Hideaki Mochizuki, a technical investigator who belongs to the Institution of Professional Engineers, the most probable cause were sparks from the air compressor which ignited gasoline that had leaked from the fuel line`s canister. Boku had overfilled the tank at the gas station and a small quantity probably escaped from a crack in the canister or other places in the fuel line. The problem with the air compressor, made by subsidiary manufacturer, was so widespread that Honda and other manufacturers issued a recall in 1991.

Defense attorneys have challenged other allegations made by the police.They called as a witness, the owner of the small store where Boku is alleged to have bought the plastic kerosene pump used to spread the gasoline. The owner testified that he had no recollection of Boku ever purchasing such a pump nor, for that matter, any customer ever requesting one in the middle of the summer.

After nearly forty hearings apiece for both Aoki and Boku in separate trials, the Osaka District Court issued judgement. On March 30, 1999, it sentenced Boku to life imprisonment. Some six weeks later, it sentenced Aoki to the same.

AN ATTEMPT AT EXPLANATION
The lingering question in this case is Why? Why would police and prosecutors be so eager to build a case against Aoki and Boku? And why were the judges persuaded so easily. This case shows a side of police work which is not well acknowledged in the public`s eye. In Japan or anywhere else, law enforcement authorities are considered to be protectors of the peace, a force against crime and social disorder. But to those of us who study and work within the system, the grim realities of police work are hardly a secret. In many cases, the struggle to convict a suspect has no more ethical foundation than a soccer match: two teams, prosecution and defense, compete against each other with one objective --victory. Moral categories of good and evil, right and wrong, guilty or innocent are altogether unimportant. The judges decision, (99.5% of suspects in Japan are found guilty), certifies the result and the game is validated for the police and prosecution, and rather unfortunately, in the eye of the public.

In any trial, it is difficult to elucidate all the factors which motivate and influence both the procedures and the players. It is quite possible that police and prosecutors have another ulterior motive in this case. I asked defense attorney Saito Tomoyo if discrimination has been playing a role. Park had never revealed his Korean identity to his wife`s father,she explained, " and after both were arrested, Aoki's father, upon hearing the name Boku for the first time, asked a detective who he was. The response was 'Oh, you didn't know your daughter was bedding down with a Korean?."

THE CASE CONTINUES
After the sentences of life imprisonment were handed down, the defense teams immediately appealed to the Osaka High Court. Though the Japanese constitution guarantees the right to a speedy trial the current appeals cases did not begin until July, 2000, 14 months after initial sentencing. In an opening statement before the court, defense attorney Ogawa Kazue attacked the validity of the confessions. “What would an ordinary middle class couple without financial difficulties have to gain from the amount of insurance money? How could they know that fire would spread and the smoke rise with the necessary precision to kill their daughter? If this was in fact a conspiracy, is it really possible that an ordinary couple could engineer a master crime in which the evidence points to an accident? A plan which specified details of how and when to call the fire department, what lies to feed the police, what belongings to remove, and where to live after the building was destroyed?”

Let us hope the high court deliberates these questions and the many other contradictions in this case before it issues a decision.


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(SIDE BAR) Problematic Crimes Involving Confessions

Kabutoyama Case (Hyogo 1974) Two mentally impaired children at an institution were found drowned. After 16 days of morning to evening interrogation, a young governess confessed to "unconscious murder." She was soon released, sued the police, and was vengefully rearrested and tried four times before final acquittal in October of 1999.

Midori-so Case (Oita 1981) After insisting on his innocence, a young man confessed to rape and murder of his neighbor while "sleepwalking." He was sentenced to life imprisonment in the first trial and declared innocent in the appeals case.

Sayama Case (Saitama 1962) A case that became a rallying symbol for anti-discrimination groups, a young Burakumin confessed to rape and murder. The confession included authorship of a well written ransom letter-highly problematic since the accused was only semi-literate Burakumin. He was released from prison after serving 32 years, in 1994. The case is being appealed.

Kaizuka Case (Osaka 1979) Five men, four of whom were minors, confessed to rape and murder. All pleased innocent in court and but were sentenced to serve between ten and eighteen years in prison. After finding that police used undue "physical and psychological coercion," the court declared four of the defendants innocent in 1986, the fifth in 1989. Ten years later, the defendants were awarded 12.6 million in compensation.

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Court orders retrial for couple convicted of murder and arson in daughter's death
(Mainichi Japan) March 7, 2012

Tatsuhiro Boku's mother cries as she speaks to reporters after the Osaka District Court ordered a retrial of her son's case on March 7. (Mainichi)

The Osaka District Court on March 7 ordered a retrial for a couple convicted of murder-arson in the 1995 death of their daughter.
The girl's mother, Keiko Aoki, 48, and Aoki's common-law husband Tatsuhiro Boku, 46, are currently serving life prison terms for the crime, allegedly committed for the purpose of insurance fraud. While they were said to have confessed during police interrogations, they have since maintained their innocence, and had appealed for a retrial.
Aoki, who has been incarcerated at Wakayama Prison since 2007, agreed to meet with the Mainichi on three occasions between November 2011 and February 2012. She maintained that the fire had been an accident, and that "there's no real perpetrator" in the case. While she had some gray hairs, she did not appear haggard or thin and maintained her composure as she spoke.
"(Investigators) declared, 'The fire took place behind locked doors. The involvement of a third party was highly unlikely. You guys did it, didn't you?'" Aoki said. When she continued to deny it, she was told that Boku had been abusing their daughter. "My mind went completely blank," she said. She became emotionally unstable, which she said forced her to make a false confession.
In letters that were sent to the Mainichi, Aoki reiterated her innocence. "There is no real culprit. It was an accident, but the detectives turned it into a (murder) case," she wrote. "I believe that we'll get a retrial. The courts should look at the truth and correct their mistaken judgments."
It was when Aoki was asked about her parents and son during a Mainichi interview that she shed tears. "My parents are old and not in good health. I will someday be found not-guilty and freed, but there would be nothing I could do if my parents were dead when I got out," she said. She also worried about the son she'd left behind. "He must be lonely, having to be careful not to step on others' toes."
Meanwhile, Aoki's son has plans of his own for when his mother is freed. "First, I want to visit my sister's grave with her," he says.
Boku's 70-year-old mother, who lives in Osaka, has always believed that her son had been forced into a false confession by police, saying: "He didn't do it." She said that 17 years of maintaining his innocence had finally paid off with the Osaka District Court's order for a retrial.
For the several years leading up to Boku's arrest, he and his mother had lost contact; she learned of her son's arrest through media reports. Soon afterwards, Osaka Prefectural Police officers came to her home and told her, "Your son has already confessed."
She rushed to the police station where Boku was being held, but remembers that she was unable to ask whether he had actually committed the crimes. "All we could do was cry," she said.
In December 1995, at the first hearing of the case, Boku insisted that his confession had been extracted by investigators during a pushy interrogation, and maintained his innocence. Watching his expression from the court gallery, his mother felt assured that he was not the culprit. On every subsequent visit to see her son in detention, Boku pleaded with her to believe in his innocence. He was found guilty, however, and sentenced to life in prison in 1999.
Click here for the original Japanese story
(Mainichi Japan) March 7, 2012

　大阪市東住吉区の住宅で１９９５年、小学６年の女児（当時１１）が焼死した事件で、大阪地裁は７日、殺人と現住建造物等放火などの罪で無期懲役判決が確定した母親の青木恵子元被告（４８）＝服役中＝と内縁の夫だった朴龍晧（ぼく・たつひろ）元被告（４６）＝同＝の再審開始決定を出した。水島和男裁判長は「自白の信用性に疑問があり、確定判決の有罪認定が揺らいだ」と判断した。検察側は大阪高裁への即時抗告を検討するとみられる。
　２人は青木元被告の長女めぐみさんを１５００万円の生命保険金目的で殺害することを計画。９５年７月２２日夕、朴元被告が木造２階建ての青木元被告の自宅車庫にガソリンをまいて放火し、車庫に隣接する風呂場で入浴中のめぐみさんを殺害したとされた。
　朴元被告は「青木元被告と共謀し、ガソリン７リットルをまいて放火した」と自白したとされたが、公判で「車庫のワゴン車から漏れて気化したガソリンに風呂釜の種火から引火した」と無罪を主張。一、二審判決は自白調書を根拠に求刑通り無期懲役、最高裁が０６年に上告を退けたため、０９年７～８月に再審請求した

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放火殺人：「火災は事故だった」収監の母親、訴え続け
2012年3月7日 13時3分　更新：3月7日 13時4分

大阪地裁の再審開始決定を受け、報道陣に囲まれ涙ながらに話す朴元被告の母親＝大阪市北区の大阪地裁前で２０１２年３月７日午前１０時９分、川平愛撮影

　重い再審の扉が開かれた－－。母親と内縁の夫の放火によって小学６年の女児（当時１１歳）が焼死したとされる大阪市東住吉区の保険金目的殺人事件。「自然発火が原因で犯人はいない」と訴え続けた青木恵子（４８）と朴龍晧（たつひろ）（４６）の両元被告の前に「自白」という高い壁が立ちはだかっていたが、大阪地裁は７日、再審開始を決めた。「早く無罪の判決を」。両元被告と弁護団は声を弾ませた。
　和歌山刑務所（和歌山市）に０７年から収監されている青木恵子元被告は昨年１１月～今年２月に３回、面会に応じ、「火災は事故。真犯人はいない」と訴えた。白髪交じりだがやつれた様子はなく気丈に真っすぐ前を見据えて話す姿が印象的だった。
　事件当時の警察の取り調べについて「『現場は密室。第三者の介入は考えにくい。お前らだろう』と決めつけてきた。否認を続けると、朴元被告が長女を虐待していたと聞かされ、頭の中が真っ白になった」と説明。精神的に不安定になり自白したと強調した。
　やり取りした手紙でも、青木元被告は「真犯人はいません。事故だったのを刑事が事件にかえてしまった。再審決定を勝ち取れると信じている。裁判所もしっかりと真実に目を向けて間違った判断を正してほしい」と訴えた。
　そんな青木元被告が涙を見せたのは、面会中、残された父母や長男への思いを尋ねた時だ。「両親は高齢で体も悪い。私はいつか無罪で出るが、出所しても両親が死んでいたら取り返しがつかない」。そして「周囲に気を使わなければならず、寂しかっただろう」と長男に思いをはせた。
　その長男はこう望んだ。「お母さんが出てきたら、まずは一緒に（焼死した）姉のお墓参りに行きたい」【岡村崇】
　◇１７年「長かった」…朴元被告の母
　午前１０時過ぎ、地裁前で弁護団が「開始決定」という旗をかかげると、集まった約１００人の支援者は一斉に歓声を上げた。大阪府内に住む朴元被告の母親（７０）は涙を流し、「長かった。息子も無実が証明されることを願っていると思う」と話し、支援者らと抱き合って喜んだ。
　母親は朴元被告が逮捕されるまで数年間、音信不通。逮捕は報道で知った。その直後、大阪府警の警察官が自宅に来た。「息子さんはちゃんと認めているから」。勾留先の警察署に駆けつけて面会したが「本当にあんたがやったのかと聞けず、お互いに泣くだけだった」という。それでも「警察に無理やり自白させられただけ。絶対にやってない」と息子を信じてきた。
　９５年１２月の初公判。朴元被告は、強引な取り調べで自白を強要されたと無実を主張。傍聴席でその表情を見て、犯人ではないと確信した。その後も拘置所で面会を重ねるたび、朴元被告は「信じてくれ」と訴えたが、実刑が確定した。
　昨年６月、大分刑務所に出向き、朴元被告と面会。犯行に及ぶのは時間的に不可能とする弁護側の再現実験の結果を伝えると、朴元被告は「オッケー」と言いながら笑顔を見せた。今年２月には「後は裁判長の判断を待つだけ。お母ちゃん、頑張ってくれてありがとうな」と話したという。
　母親は「１７年間の主張がやっと報われた」と喜びつつ「まだ安心できない。早く無実を証明してほしい」と気を引き締めた。
　◇「娘も浮かばれる」…青木元被告
　朴、青木の元被告２人の弁護団は午前１１時、大阪市内で記者会見し、「検察官は今回の決定の内容を真摯（しんし）に受け止め、速やかに再審の公判手続きに移行することを決断すべきだ」と迫った。
　弁護団は決定をすぐに２人に伝えた。青木元被告は「これまでの不安が喜びに変わり、涙があふれて止まらない。何度も裁判官たちに裏切られ、悔しい思いをしてきたが、負けずに闘ってきて良かった。これで娘も浮かばれます」と話したという。

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再現実験で新証拠、再審の扉開く　大阪女児放火殺人

　「無実」の訴えが再審の扉を開いた。１９９５年に大阪市東住吉区の住宅に放火し、小学６年の少女（当時１１）を殺害したとして無期懲役が確定した母親らに対する７日の再審開始決定。弁護団は自白を重視した当時の捜査を批判し、検察側に即時抗告を断念するよう求めた。
　事件から１５年１０カ月後の昨年５月。弁護団は大阪府から約３００キロ離れた静岡県内の空き地にいた。朴元被告が府警の調べに、青木元被告の自宅車庫に「ポリタンクに入れた約７リットルのガソリンをまいた後、ライターで火をつけた」「青木元被告の娘が入浴していた車庫と壁１枚を隔てた風呂場に燃え移った」とした供述の通りに火災が起きるのかを調べるためだった。
　車庫に見立てたプレハブを２棟建て、それぞれに当時と同様に種火がついた風呂釜とワゴン車を置いた。朴元被告が自白したとされる「７リットル」のガソリンを自動散布機でプレハブ内にまいている途中、火を付けていないのに車庫全体が火の海に。風呂釜の種火から引火したのが原因だった。

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東住吉の放火殺人、３月７日に再審可否判断　大阪地裁

　大阪地裁の水島和男裁判長は２８日、大阪市東住吉区の自宅に放火して長女（当時１１）を殺害したとして無期懲役判決が確定した母親ら２人の弁護人に対し、３月７日に再審を開始するかどうかの判断を示すと伝えた。
　２人は母親の青木恵子受刑者（４８）と内縁の夫だった朴（ぼく）龍晧（たつひろ）受刑者（４６）。１９９５年７月２２日、自宅の風呂場に隣接した車庫にガソリンをまいて火をつけ、入浴中の長女を生命保険金目的で殺害したとして起訴された。２人は捜査段階で自白したとされたが、公判では無罪を主張。しかし、一、二審判決は求刑通り無期懲役とし、最高裁が上告を退けた。
　２人は弁護団が実施した火災の再現実験の結果を踏まえ、「車庫の車から漏れて気化したガソリンが風呂釜の吸気口に入り、種火に引火した自然発火の可能性が高い」として２００９年に再審請求。自白については「取り調べで脅迫や暴行を受けた」と訴えている。（岡本玄）