Thursday, 18 November 2010

Japan: Lay judges give first death sentence

Lay judge duty takes a heavy toll / Concern over psychological cost of participating in death penalty cases
Fumio Tanaka and Eiji Kaji / Yomiuri Shimbun Staff Writers
From Daily Yomiuri Online

The first death sentence under the lay judge system was handed down Tuesday at the Yokohama District Court. It is hard to imagine how much anguish and mental stress the panel of citizen judges experienced in deciding a man who killed two others deserved capital punishment.

Hiroyuki Ikeda, 32, was sentenced to death after being convicted of robbery, murder and abandoning the bodies of the victims.

At a press conference held after the court handed down the sentence, a man in his 50s who served as a lay judge in the trial was asked whether the three-day period of deliberations had been sufficient.

"It's hard to say," he said, declining to give a definite answer.

Court deliberations on cases in which prosecutors demand capital punishment generally continue for more than one year before a sentence is handed down.

"I kept looking at the accused, thinking over and over whether a death sentence really was appropriate," said Fumio Yasuhiro, 66, a former senior judge at the Tokyo High Court. "The lay judges had to make a grave decision in a short period of time. They had a hard task."

Just before concluding the proceedings, presiding Judge Yoshifumi Asayama made an unusual remark to the condemned man, saying, "The court recommends you appeal the ruling.

"During the trial, Ikeda said he would accept any punishment, so the judge's final remark was read by some observers as an expression of the lay judges' desire that the death sentence not be finalized based on their judgement alone.

A senior prosecution official was critical of the judge's remark, saying, "[The nine judges] should take responsibility for the conclusion they came to after extended discussion.

"Yasuhiro, though, thought the judge's action was understandable.

"The fact that there are opportunities for appeal probably does lessen the burden on the lay judges. There will probably be similar remarks made by judges in the future," Yasuhiro said.

Under the jury trial system in the United States, a 12-member panel is in principle tasked merely with deciding whether the accused is guilty. In many states, however, juries also assess criminal culpability in cases where the prosecution requests the death penalty.

Surveys taken in the 1990s of people who had served on U.S. juries that decided in favor of the death penalty found many had suffered from posttraumatic stress disorder, insomnia and headaches.

In death penalty cases heard by juries in the United States, the criteria and procedures for assessing culpability are stipulated in detail. In Texas the process is particularly clear-cut, with jurors instructed to base their decision on just three criteria, one of which is "whether the accused would be a continuing threat to society."

Futoshi Iwata, professor of law at Sophia University, said that while such a simplified system "is designed to leave little room for anguish" for jurors, it also has demerits.

"Giving the death penalty can only be justified if a jury has reached that conclusion after truly grappling with the case. The issues involved are not so simple that they can be addressed with standardized procedures," Iwata said.

===Requirements for a decision

In a statement issued after Tuesday's ruling, the Japan Federation of Bar Associations said, "It is time to discuss how verdicts should be reached in cases where prosecutors demand the death penalty.

"In Japan, a majority of the nine-member panel--three professional and six lay judges--is required for the death penalty to apply.

In the United States, the death penalty cannot be applied without the unanimous support of the 12-member jury, a system some experts believe places a lesser psychological burden on jurors.

A veteran Japanese judge said the emotional and psychological impact on lay judges involved in handing down a death sentence would be less if the decision was made unanimously.

"Cases need to be discussed thoroughly, until all [nine] judges agree. If I were involved as a [professional] judge, I'd try as much as possible to avoid handing down a death penalty when opinion was split," the veteran judge said.

Keiko Kiyohara, mayor of Mitaka, western Tokyo, was a member of the governmental study panel that devised the lay judge system.

"Initially I asserted that, considering the possibility of mental stress, lay judges should handle a relatively lighter case before being involved in a death penalty trial," she has said.

As the panel's discussions progressed, however, she changed her mind.

"It is particularly important that the sensibilities of members of the public should be reflected in trials that decide whether a person lives or dies," Kiyohara said.

At Tuesday's press conference, the same man who served as a citizen judge in the Ikeda trial expressed his support for lay judges' participation in death penalty trials.

"I've learned a great deal by serving as a lay judge. For the purpose of fairly assessing culpability, it's a good thing."

(Nov. 18, 2010)

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