". . .this court sentences you to death."
by Michael H. Fox
Originally Published in Kansai Time Out
Constitution of Japan Article 39:
No person shall be held criminally liable for an act . . . of which he had been acquitted, nor shall he be placed in double jeopardy.
Tragedy in the afternoon.
Nestled tranquilly among foggy mountains on the border of Mie and Nara prefectures lies the village of Kuzuo, part of the city of Nabari. A sleepy village dotted by twenty five homes and serviced by a sole road, the village has a small temple, too small to employ to a monk, but large enough to serve as a gathering place for the community.
The spring of 1962 was an optimistic time for the village. Japan's economy was steadily rising and the economic benefits were trickling down to the hinterlands. On March 28, shortly before the new fiscal year, Kuzuo village held a "Modernization" meeting," a sign of the times. Talk about upcoming improvements to the village filled the agenda. The meeting concluded in the early evening with a toast for success in the upcoming year. Sake was served to the men, grape wine (budou-shu) to the women.
After a round of kanpai's, the atmosphere changed from conviviality to pandemonium. Most of the women in attendance became suddenly ill. Panic spread and a doctor was frantically summoned . Despite the arrival of medical help, the afternoon turned into a tragedy: five women died.
Chemical analysis of the grape wine clearly showed the presence of TEPP (Tetraethyl Pyrosphosptate)an extraordinarily strong pesticide. The grape wine had been deliberately poisoned.
Scene of the Crime
March 28, 1962
Who did it?
The police, without any ostensible reason, immediately surmised an inside job, that the criminal was a local. The media, without asking for any proof, freely broadcast police speculations , "The criminal is from the village!" "Culprit among the crowd," "Local is suspected."
The investigation focussed on who was in possession of the wine. Tracing its path from the morning of purchase, the pool of suspects was narrowed to three people. The key suspect became thirty five year old Masaru Okunishi. Of the five women who perished in this disaster, one was his wife and another was a lover.
Okunishi was put under iron tight twenty four hour surveillance. Police took up residence inside his home, watching him 24 hours a day, even observing his bowel movements. After excruciating surveillance, incessant interrogation, and condemnation from the village, Okunishi broke down and confessed to the crime. "In order to kill my wife and lover, I mixed Nikkarin T into the wine."
Route of the Wine
To establish guilt, the prosecution would have to show that the defendant--and only the defendant--carried out the crime. Central to this argument is the handling of the wine on the day of the tragedy. In the early stages of the investigation, the police learned that the wine was bought by R-san between 2:30 and 3:00, and delivered to the home of N-san. N-san's wife (one of the victims) received the wine, and kept it for some two hours. Okunishi arrived and took possession at approximately 5:20, delivering it to the temple at 5:30.
Despite the confession, the scenario was full of holes. Several people were in possession of the wine, and others had access. The pressure on police to find a culprit was intense and, with Okunishi in custody, a second investigation was quickly launched to uncover further evidence.
The second investigation succeeded in getting additional statements from previous witnesses. The course of the wine and those with access were severely narrowed. And though the first investigation microscopically examined every peep and crack in the village, a new witness suddenly emerged. According to the witness, the wine was delivered to the home of N-san not at 3:00 p.m., but just minutes before Okunishi arrived and took possession.
The trial opened with much fanfare. Mass poisonings were not unknown to post war Japan. In 1948, twelve people died of poisoning in an attempted robbery of the Teigin Bank in Tokyo. (See Box)
The evidence against Okunishi rested on four factors.
1) Possession of the wine immediately before the party.
2) His confession.
3) A love triangle as motivation for the murders.
4) Teeth marks on the wine bottle's cap.
An examination of the cap clearly showed that it had been opened by by biting and twisting. Who did this was a point of hot contention. The prosecution insisted the bite marks could only be from Okunishi. Forensic dentists testifying for the defense insisted they were certainly from someone else.
On December 23, 1964, some three and half years after the incident, the district court handed down an earth shattering decision. In a country with a conviction rate over 99%, the defendant was found, "not guilty." The court declared the confession unreliable; the assumed route and possession of the wine ambiguous, the motivation as fanciful, and the teeth-marks exculpatory. It even criticized the later witness statements from the second investigation as the product of police compulsion. Okunishi was freed.
Soon thereafter, the prosecution appealed. On September 10, 1969, five gruelling years later, The Nagoya High Court issued yet another shocking decision. It reversed the earlier decision and found Okunishi guilty. The court spared no mercy, he was sentenced to death.
Okunishi. After the second verdict.
A Search for Answers
Not guilty in the first trial; guilty and sentenced to hang in the second. The Japanese constitution clearly prohibits the retrial of those declared innocent. What happened?
When I began studying this case, I felt like a puzzled Zen proselyte in search of an answer to a paradoxical koan. My question was not "What is the sound of one hand clapping," rather "Does the constitution have any meaning?"
Some students of Zen do attain enlightenment. I have not. But over the years, I have gained some glimpses as to why the system deviates from rule of the law.
A Historical Perspective
History speaks much about this case. In pre war Japan, the function of the criminal court was not the adversarial pursuit of truth. The objective was to subject the corrupt criminal class to the will of the emperor. The courts were inquisitorial, the accused were assumed to be guilty. Establishing innocence was the burden of the defendant.
The new constitution of 1948 intended reform. Yet legal and social change do not happen overnight. Some of the reforms were welcomed, some were misconstrued, and others were outrightly disdained.
Re-educating the judiciary to protect the rights of the criminally accused would prove an ominous task. After the war, the legal elite examined their new constitution with bewilderment and distress. According to the Common Law traditions of Great Britain and the USA, one function of law was to protect the citizen from the excesses of state power. In Japan, the opposite notion prevailed: law was a tool to protect the elite and herd the unruly masses.
In the eyes of the the post war Japanese elite, if a courtroom was to be truly adversarial, then all sides must be equal. If the accused had a right to appeal, then the prosecution must also be delegated the same right. The constitution could be side-tracked by allowing retrial of innocent defendants under the newly promulgated Code of Criminal Procedure.
A Near Miracle.
Japanese law allows the criminally convicted to apply for retrial. But once found guilty, reopening a case is a daunting task. The National Bar Association (Nichibenren) equates the process to "pulling a camel through the eye of a needle." Compared to the USA where 129 death row inmates have been exonerated since 1973--a number which grows month by month--only four convicted death row inmates have been retried and freed in Japan. Sadly, this small achievement is a vestige of the past: all four acquittals occurred between 1983~1989.
The Nabari defense team has continued to fight for Okunishi's freedom relentlessly. They have filed and refiled for retrial over the years. On April 5, 2005 a near miracle occurred. The Nagoya High Court accepted Okunishi's seventh request for retrial. The decision made front page headline news across the country. Reopening a case indicates the court disagrees with the prior verdict and will most likely reverse.
The optimism was short lived. Prosecutorial authorities appealed and a separate bench of the Nagoya High Court overturned the decision on December 26, 2006. An appeal to the Supreme Court was rejected. All had returned to nought.
The Struggle for Justice
Okunishi, aged 82, remains on death row in Nagoya. 2008 marks his 39th year confined to a three mat room. He has not seen a television, movie, or any other type of moving image since 1969. He is only allowed visits with close family members and attorneys. He is quite cogent, and occasionally writes small blurbs for his support associations and progressive publications.
Attorney Izumi Suzuki, remains adamant of his client's innocence, castigating the forces of law and order. "The police have long concealed and most likely destroyed exculpatory evidence. They have intimidated and coerced witnesses. The question lingers: "Who are they trying to protect?"
Why does Okunishi remain imprisoned in light of forensic evidence indicating his innocence? Forensic dentists have testified that the bottle cap unequivocally exculpates his client. "Judges recoil when faced with the truth," he iterates, "they do not want to free someone just on bite-marks."
The Case Continues.
The Nabari case was not the first instance of postwar judges vomiting up their new constitution. But it has been the most egregious. And though eminent, it is just one of many cases of wrongful arrest in Japan.
Of the 106 inmates currently on death row, eight assert full innocence, and like Masaru Okunishi, are being backed by vocal support associations, some by Amnesty International. In addition,19 inmates deny all or some of the charges. These numbers are significant since so many convicts have abandoned appeal and accept their sentence.
Whither Capital Punishment in Japan?
Life on death row is a kind of slow death. Convicts in Japanese prisons are allowed to work, watch television, see movies and socialize with other prisoners. Death Row inmates get none of these luxuries, and languish in solitary confinement in detention centers. Replacing capital punishment with life-without-parole would end this debacle. Criminal justice systems are always imperfect. As long as society continues to execute the guilty, it will also execute the innocent. Masaru Okunishi deserves better.
Court begins review process
for man on death row for 1961 murders
20th April 2010
The Nagoya High Court said Monday it has received papers on an 84-year-old death row inmate, convicted of killing five women and injuring 12 others with poisoned wine, that it needs to start a review of its earlier decision concerning the high-profile murder case in Mie Prefecture in 1961.
The court said the arrival of records from the Supreme Court on Masaru Okunishi, who has been on death row since 1972, marks the beginning of a reconsideration of the case, after the top court decided to send it back to the high court on April 5.
But it is expected to take a few more months for a retrial to begin in earnest as judges need time to read through the documents and decide on a trial plan in discussion with the prosecution and the defense team.
The focus of the trial will be on whether the type of agricultural chemical that Okunishi allegedly confessed to using was indeed in the wine.
Okunishi was arrested in April 1961 for allegedly poisoning 17 women in March that year at a local community meeting in Nabari, Mie Prefecture. Five of the women, including his wife, died and 12 fell ill. He allegedly confessed to investigators that he had laced the wine with an agricultural chemical.
Okunishi retracted his confession shortly before his indictment. In 1964, the Tsu District Court acquitted him, citing lack of evidence.
But the Nagoya High Court overturned the lower court decision and sentenced him to death in 1969—a decision upheld by the Supreme Court in 1972.
Okunishi has since applied a total of seven times for a retrial and been refused six times. On his seventh attempt, the Nagoya High Court decided to reopen the case in 2005, citing new evidence that could prove his innocence and ordered his execution to be suspended.
But prosecutors filed an objection, and a separate three-judge panel at the high court repealed the previous decision.
The court rejected the defense team’s argument that the type of pesticide that Okunishi said he used was not actually used in the deaths because its characteristic component was not detected in the wine. In 2007, the defense filed an appeal with the Supreme Court. Man, 84, on death row over fatal wine poisonings hopeful of retrial
A death row inmate convicted of killing five women with poison-laced wine is hopeful of a retrial after the Supreme Court on Monday dismissed a lower court decision against a retrial.
(Mainichi Japan) April 6, 2010
The move has paved the way for a retrial for Masaru Okunishi, 84, whose death sentence has been confirmed over a murder case in which five women died after drinking wine laced with an agricultural chemical in Nabari, Mie Prefecture, in 1961.
The top court's Third Petty Bench sent the case back to the Nagoya High Court on Monday after annulling the high court's 2006 ruling that had overturned a decision for a retrial. The high court will once again examine whether to open a retrial.
"It has not been determined yet whether the agricultural chemical used in the incident was among Okunishi's belongings," said the top court, ordering the Nagoya High Court to conduct a fresh examination.
Monday's decision was reached unanimously by the five judges at the Third Petty Bench.
"Considering that nearly 50 years have passed since the incident and it's been eight years since the defendant filed his seventh appeal for a retrial, examination of evidence at the high court should be kept to a minimum and conducted in an efficient manner," said judge Mutsuo Tahara.
At issue is whether the investigators' test results, in which a component of the agricultural chemical that Okunishi confessed to have laced in the lethal wine was not detected in the wine, could be held valid.
The Nagoya High Court had determined that there could be a possibility of an element not being detected if it was hydrolyzed, before sentencing Okunishi to death in 1969. However, his defense counsel conducted a fresh examination employing a different method and maintained that the element should have been detected if it was really laced in the wine.
The Nagoya High Court accepted the attorneys' assertion and decided to open a retrial in 2005, but the court later annulled the decision following prosecutors' opposition and said, "An element could be undetected depending on the circumstances where the wine was left."
The Supreme Court on Monday said a fresh examination should be conducted using the same agricultural chemical and employing the same method as investigators initially used.
"The high court cannot be said to have examined the investigators' test results based on scientific knowledge, nor looked into whether the agricultural chemical laced in the wine was different to the one (that the defendant confessed to have used), or whether the element was not detected simply because its concentration was low and thus its reaction was weak," the court said.
In the highly publicized Nabari wine poisoning case, 17 women collapsed after drinking white wine laced with an agricultural chemical during a gathering at a public hall in Nabari on the night of March 28, 1961. Five of them died while 12 others were injured. Okunishi was arrested and indicted after reportedly confessing that he tried to solve the problem of a love triangle with his wife and his lover.
The Tsu District Court acquitted Okunishi after determining that his confessions were not credible, but the Nagoya District Court overturned the ruling and sentenced him to death, which was confirmed by the top court in 1972. All six appeals for a retrial that Okunishi had previously filed were turned down.
Japan: Court rejects retrial for man on death row over 1961 killings
Posted: 25 May 2012 04:55 AM PDT
Death Row TOKYO —
A court on Friday rejected an appeal by a farmer who has spent 40 years on death row for the murder of his wife, his mistress and three other women who died after drinking poisoned wine in rural Japan.
The Nagoya High Court “turned down the appeal for retrial” of 86-year-old Masaru Okunishi over the killings, a court spokesman said. The request could still go to the Supreme Court.
Okunishi, who has spent much of the past four decades in solitary confinement, has consistently protested his innocence after retracting what he says was a coerced confession ahead of his original trial.
But presiding judge Yasuo Shimoyama ruled “his confession is fully credible in its essential part,” according to Jiji Press news agency.
The chief judge said the defense counsel had not presented enough evidence to prove a kind of pesticide Okunishi said he had used was not the poison found in the wine, it said.
Amnesty International protested the court decision.
Japan: Death-row inmate refused to sign petition for death-penalty abolition and request for pardon.
Posted: 26 May 2012
Source: The Mainichi, May 25, 2012
Masaru Okunishi, the 86-year-old death-row inmate convicted of killing 5 and injuring 12 with poisoned wine in 1961, had refused to sign a petition that demanded the abolishment of the death penalty, a source who has visited Okunishi at a detention center revealed on May 25.
According to Shozo Ino, 73, an Okunishi supporter included on the approved visitors list for the inmate, Fusakichi Kawamura -- another supporter approved for visits who has since passed away -- had asked Okunishi in the mid-1990s for his signature on a humanitarian organization's petition for the abolishment of the death penalty.
Ino revealed that after some silence, Okunishi told Kawamura, "I believe that those who have actually committed crimes may deserve the death penalty. But because I haven't done anything, there's no need to abolish the death penalty."
Kawamura had also suggested at the time that Okunishi apply for a pardon, but the inmate refused on the same grounds. "People who have committed crimes can be pardoned. But because I have not done anything, I have no need of one," Okunishi is said to have replied.
"From a death-row inmate's point of view, making those 2 moves could have worked in his favor," Ino said. "But Okunishi probably didn't accept the suggestions because he's a straight-thinking person; not the kind of person who plots strategies."
In the mid-1990s, Okunishi's case was moving from his 5th and 6th petitions for a retrial. In 1993, Okunishi's objection to a rejection of his 5th petition for a retrial was dismissed by the Nagoya High Court. The special appeal that he subsequently made to the Supreme Court was dismissed in 1997, which led to him to lodge a 6th petition for a retrial.
On May 25, the Nagoya High Court reversed an earlier high court decision to reopen Okunishi's case, thereby rejecting the inmate's 7th petition.
Bar, Amnesty slam denial of inmate’s retrial over 1961 poison killings
Human rights groups attacked the Supreme Court’s dismissal of an 87-year-old death-row inmate’s petition for a retrial over the 1961 murders of five women who drank poisoned wine in Nabari, Mie Prefecture.
The top court ruled that the poison used could have been tetraethyl pyrophosphate as determined in the final ruling that saw Masaru Okunishi convicted of killing five people, including his wife, and injuring 12 others who drank the tainted wine at a community meeting in the city.
But Japan Federation of Bar Associations President Kenji Yamagishi said in a statement Friday there was reasonable doubt that the poison was the pesticide, adding that the top court should have properly examined new evidence — that included testimony from an expert that the poison was not tetraethyl pyrophosphate — submitted by the defense team for Okunishi.
“It is doubtful that Mr. Okunishi is the culprit, and the decision (by the Supreme Court) cannot be said to be appropriate,” said the chief of the federation, which has since 1973 supported the effort to reopen the case, without elaborating on what role a different poison than the one that was determined “could” have been used has in connection with Okunishi’s guilt or innocence. Earlier reports said he confessed.
Amnesty International Japan also had “grave concern” over the rejection of Okunishi’s retrial bid.
Okunishi was acquitted of the murder in 1964 in his district court trial but was sentenced to death 1969 by the Nagoya High Court after prosecutors appealed. That verdict was finalized by the Supreme Court three years later. As his petition for a retrial was initially accepted, Amnesty said, “The vicissitudes in the rulings indicate the fact-findings involve reasonable doubt.”
Due to deteriorating health, Okunishi has been held in a medical prison in Tokyo since May and is now in serious condition.
“We demand Mr. Okunishi be guaranteed the opportunity to stand retrial,” Amnesty said in a statement.
Human rights groups criticize verdict in 'Nabari Poison Wine Case'
October 18, 2013(Mainichi Japan)
TOKYO (Kyodo) -- Human rights groups attacked the Supreme Court's dismissal of a petition by a death row inmate for a retrial over the 1961 murders of five women who drank poisoned wine in Nabari, Mie Prefecture.
The top court ruled that the poison used could have been tetraethyl pyrophosphate as determined in the final ruling that saw Masaru Okunishi convicted of killing five people and injuring 12 others after they drank the tainted wine at a local community meeting in the central Japan city.
But Japan Federation of Bar Associations President Kenji Yamagishi said in a statement Friday there was reasonable doubt the poison was the pesticide, adding that the top court should have examined properly new evidence -- that included testimony from an expert that the poison was not tetraethyl pyrophosphate -- submitted by the defense team for Okunishi.
"It is doubtful that Mr. Okunishi is the culprit, and the decision (by the Supreme Court) cannot be said to be an appropriate judgment," said the chief of the federation, which has since 1973 supported the effort to reopen the case.
Amnesty International Japan also showed "grave concern" over the verdict on Okunishi.
Okunishi was acquitted of the murder in 1964 but handed the death sentence at an appeal court in 1969, finalized by the Supreme Court three years later. As his petition for a retrial was initially accepted, Amnesty said, "The vicissitudes in the rulings indicate the fact-findings involve reasonable doubt."
Due to deteriorating health, Okunishi has been held in a medical prison in Tokyo since May and is now in a serious condition.
"We demand Mr. Okunishi be guaranteed the opportunity to stand retrial," Amnesty said in a statement.