If a scientific investigation had been conducted and the public prosecutor and the judge had been able to discern the test results with deep insight, the innocent person wouldn’t have been tormented for such a long time--. Such cases have come to light one after another. I want to introduce actual cases in which I was involved as a forensic pathologist and urge persons concerned with judiciary who are dependent on confessions and verbal evidence rather than direct evidence to reflect seriously.
Request for starting a re-examination of the post office robbery in Himeji
On Wednesday, November 4th, “Facts and DNA That Do Not Match” which participated in the Arts Festival put on by the Japanese Agency for Cultural Affairs in 2012, was broadcast for 90 minutes in a news show “The Scoop Special” by TV Asahi.
There might be a few people who know of this case. This incident, in which two criminals wearing ski masks robbed a post office in Himeji City of about 22 million yen, took place in June of 2001. Mr. J from Nigeria was arrested and accused of the crime, and even though the case was headed for the Supreme Court, a 9-year prison sentence was passed.
When I was consulted on this case for the first time, the consulter said: “Did J really do that? It is Friday that snitched,” which sounded like a ridiculous story to me. After listening to the story carefully, I came to understand that one of the two criminals is insisting his innocence and requesting a retrial. Still, I came across something strange.
So, I got that person to officially request a DNA test on a ski mask through a lawyer in Osaka. To be doubly sure, I bought a ski mask at a sports equipment store in Jinbo-cho in Tokyo. I put it on at home and even acted out a robber saying “Hand over your money.” After that, I took the ski mask to the Analysis Science and Technology Center and had a DNA test done on it, and I was able to make sure that it was only my DNA that was detected on it.
First of all, the green ski mask (found in the post office) was brought in and micro evidence found at the nose part of the mask was tested, and as a result, several types of DNA were detected. However, Mr. J’s DNA, which they had expected to find, was not detected. To be doubly sure, another DNA test called a Y-STR analysis was conducted, but Mr. J’s DNA was not detected at all, rather several types of DNA from other persons were detected. It was on October 11th that the summarized results were submitted to the lawyer who received a request in a form of written expert evidence.
Mr. J completed his 6-year prison term in 2009 and was released, and then he was reunited with his wife and child for the first time in 8 years. After that, it was reviewed in court whether he had to be deported to Nigeria or not, and because at the first ruling, the court decided to deport Mr. J to his homeland, he took his appeal to the Osaka High Court. Since the result of the DNA test was submitted to the court in the final stage, the Osaka High Court deferred its conclusion, which gave him a grace time until the result of the retrial came out.
TV Asahi, which had been gathering information about this case, decided to make a 90-minute program admitting this certificate as conclusive evidence. In making the program, I was filmed when I was giving a lecture on “forensic pathology” as a professor emeritus at Nihon University College of Law, and the instrument for DNA testing in the Analysis Science and Technology Center (Setagayaku) was also filmed. When Mr. Shuntaro Torigoe, a newscaster of “The Scoop” visited the Analysis Science and Technology Center, he wore a white coat, cap and mask, and officially conducted an on-camera interview near the measuring instrument. All these were combined and broadcasted on the air.
How should evidence be handled in criminal trials, especially when the evidence submitted to the court proves to be advantageous to the accused or evidence tampering is suspected? How should evidential matter be handled after the judgment becomes final and binding? And also, how valid are the test results if they were obtained from scientific test institutes other than the police agency? These questions are provoking a lot of interest. If a retrial begins, it will attract national attention.
Before this program was aired on television, the defense team was interviewed at a press conference, which interview appeared in newspapers such as the morning edition of the Mainichi Shimbun on October 31st.
Judgment rendered at the retrial for the TEPCO OL murder case
At the trail for re-examining the case in which a female employee at the Tokyo Electric Power Company was murdered in 1997, the Tokyo High Court found Mr. Govinda Prasad Mainali (46 years old) from Nepal, who had been sentence to life imprisonment, not guilty on November 11th. The DNA from someone other than Mr. Mainali had been detected in the adhering substance left on the nails of the murder victim, which constituted exculpatory evidence.
The Yomiuri Shimbun published an article entitled “DNA Detected in Articles Left Behind Doesn’t Match” in July of 2011, which totally changed Mr. Mainali’s situation. After a DNA test was conducted, the Tokyo High Court ordered a retrial. Mr. Mainali faced deportation and returned to Nepal with his wife and two daughters. This situation has been extensively covered by the media.
However, the innocent verdict should have been pronounced much earlier. It was in July of 2001 that I submitted written expert evidence which stated that the state of semen in the condom found in the bathroom at the crime scene was estimated to predate the day of the slaying. Thanks to the cooperation of Nepalese men staying in Japan those days, extremely intensive experiments had been conducted for over a month, through which the precious written expert opinion was compiled. But nothing was mentioned about the test results in the Supreme Court's decision and he was sentenced to life imprisonment. (For further information, see the articles “Defense Team in the Murder Case of a TEPCO Female Employee Submits DNA Analysis Results as New Evidence [東電女子社員殺人事件弁護団DNA鑑定書新証拠として提出]” published on July 27th in 2011 and “DNA Testing and How It Should Be Used in Criminal Investigation [DNA型鑑定 犯罪捜査応用のあるべき])” published on May 31st in 2010 and No.4 of the interview article “The Difficulty of Getting an Innocent Verdict [無罪判決の難しさ])”
The aforementioned ruling party legislator says: “The moment that your party gains power, executive members of industry organizations and academic societies will come with petitions. They often point out similar problems, and most of them are seeking their own interests. They come along with their petitions unitedly, so even if I find something wrong with their petitions, it is impossible to overturn them. From the eyes of the nations, we are no more than amateurs.” You can find a structural limitation there in which even minister-level politicians cannot easily make a directional change when some problems are found. Politicians need to be backed up by public opinions to make a “right decision.”
I think it is a great shame that if an extensive DNA test had been conducted at the time, he would not have spent ten years in prison. From January to March in 2011, the public prosecutor was asserting strongly that the appeal for a retrial should be dismissed on the grounds that one person, who had been a college lecturer at the time of the incident, pointed out that “there are flaws in the test results (semen) submitted by Oshida.” I felt suspicious about it and examined the background of this identifier, and he turned out to be neither an expert in forensic pathology nor a medical doctor. Even though he graduated from the department of pharmacy, he did not have any experience in medicolegal judgment. However, from then on, the re-examination of DNA type started to attract increasing attention.
The written expert opinion evidence for the Ashikaga murder case (1997), the Fukui junior high school student murder case (1996) and the TEPCO OL murder case (2001) followed the same pattern three times in a row, and also each case led to the ordering of a retrial afterward, at which I expressed resentment saying “I thought the Supreme Court was stupid.” This comment appeared in some newspapers (including the Shimotsuke Shimbun, June 18th in 2012).
Molestation cases and DNA tests
I was requested to conduct a DNA test concerning a molestation case in which a man put his hand inside a woman’s underwear as many as five times during the week after Golden Week in May.
However, the story I heard from the lawyer was totally different. According to the lawyer, “the first grade high school student who claimed to be a ‘victim’ fumbled around the suspect’s groin part of his trousers with her hands for ten minutes.” After I conducted a DNA pretest using my sample uniform trousers, which nobody else had worn, I could detect only my DNA. Then using scotch tape, I carefully collect a specimen from the groin part of the trousers that the defendant was wearing on the day and conducted a DNA test, and as a result, some types of DNA were detected. The defendant was detained by the police, so I got the police to get some hair in the same way taken in the Ashikaga murder case and send it in a plastic bag to the lawyer. The DNA test conducted on the hair showed that the DNA was the same as that detected in the trousers; however, another type of DNA was detected. It was not possible then to identify who it belonged to, but it was obviously somebody else’s.
I was going to hand over the written expert evidence of the test to the lawyer on one Friday afternoon. On Friday, the lawyer came with the photographs of DNA types of the victim and the defendant that had been disclosed in the morning on the same day to receive the written expert evidence. We were very shocked with the result, because “the DNA of the defendant matched our analysis result, and the DNA of the ‘victim,’ the first grade high school student, matched someone else’s DNA detected in the trousers.” That is, the defendant’s claim was proved to be right, contrary to what the victim had said.
At the public trial held on Friday, November 16th, I testified about the above-mentioned results as an expert witness. I also testified that I was ready to conduct the next investigation referring the trousers with a long strip of scotch tape in the center of the pertinent part.
In this case, since the defendant did not confessed to a crime, he was in police custody for longer than five months as a result, and he was released only after the persons involved in the case gave evidence.
Recently, the court has handed down not guilty verdicts very often in molestation cases. What sort of initial investigation or tests should be conducted and how urgently and comprehensively should they be performed without depending on verbal evidence? I became painfully aware that we are facing a great challenge.
In the world, there are unbelievable phenomena taking place one after another, which made me rediscover the fact that “a person may tell a lie, but material evidence never tells a lie.”
Chinese / Japanese