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Unprecedented Death Row Brief Filed With Japan's Supreme Court

The Center on Wrongful Convictions at the School of Law has filed an amicus or "friend of the court" brief in the case of Masaru Okunishi.

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May 15, 2008 | by Pat Vaughan Tremmel
CHICAGO --- The Center on Wrongful Convictions (CWC) at Northwestern University School of Law -- in its first attempt to educate a foreign court on the subject of wrongful convictions -- has filed an amicus or "friend of the court" brief in the case of Masaru Okunishi.

CWC's amicus brief on the case of Okunishi, an 81-year-old man who has been claiming his innocence from death row for almost 40 years, was filed with the Japanese Supreme Court Friday.

The Japanese Supreme Court's acceptance of an amicus brief from a legal organization in the United States also is a first.

The brief will be filed through Okunishi's counsel, which asked CWC to write the brief. Izumi Suzuki, lead counsel for Okunishi, explained the case and the amicus brief at a press conference in Tokyo at the Japan Federation of Bar Associations (JFBA) building.

In 1961, Okunishi was accused of having poisoned to death five women in his village, including his wife. After facing more than 49 hours of police interrogation -- an excessively long interrogation by American legal standards, but not according to Japanese law -- Okunishi confessed to the crime.

Even so, he was acquitted at his first trial. But prosecutors later appealed this decision, and, using forensic evidence that his attorneys now maintain was false, obtained Okunishi's conviction and death sentence in 1969. The Japanese Supreme Court affirmed his death sentence in 1972.

In 2005, in his seventh bid for a retrial, Okunishi's lawyers presented new forensic evidence suggesting that Okunishi could not have poisoned the wine. A Nagoya High Court granted Okunishi a retrial and stayed his execution. Prosecutors appealed and a second High Court reinstated the conviction and death sentence, finding that Okunishi's confession was voluntary and reliable. The case is now pending before the Supreme Court.

The CWC argued that the High Court's decision to deny Okunishi's bid for a new trial was based on mistaken understandings of false confessions and asked the Supreme Court of Japan to grant him a new trial.

"Japanese authorities can learn much from America's experience with false confessions," said Steven A. Drizin, legal director of the Center on Wrongful Convictions and a leading authority on false confessions.

"In the past five years, the number of states in America that have required electronic recordings of some or all interrogations has more than quadrupled (from two to nine) and preventing false confessions has been one of the main impetuses for
this reform."

False and coerced confession evidence has played a role many of the cases in which the Center on Wrongful Convictions has been involved, and, according to the Innocence Project, were instrumental in approximately 25 percent of the 216 DNA exonerations to date. The CWC has called for a variety of reforms in criminal cases, most notably the mandatory electronic recording of custodial interrogations, and filed amicus briefs in appellate courts throughout the United States on confession-related issues.

In recent years, the Japanese criminal justice system has also been rocked with numerous false confessions, Drizin noted.

"Such false confessions have been blamed on Japan's excessive reliance on confession evidence to gain convictions," he said. "Japanese law enforcement authorities, who have a 99 percent conviction rate, rely on exceedingly long interrogations and psychological coercion to obtain confessions."

Drizin supports JFBA efforts to require recording of interrogations to not only prevent false confessions, but also to make sure that criminal convictions are based upon the most accurate and reliable evidence of what transpired in the interrogation room.

The Center on Wrongful Convictions of Northwestern University, part of Northwestern University School of Law's Bluhm Legal Clinic, was founded in the wake of an unprecedented conference at Northwestern. The 1998 conference featured the largest ever gathering of exonerated death row inmates. Since CWC's inception, its attorneys, staff and law students have played a role in exposing numerous wrongful convictions. The CWC's work contributed to decisions of former Illinois Gov. George H. Ryan to declare a moratorium on executions in Illinois in January 2000. Ryan subsequently commuted the sentences of all Illinois death row inmates in January 2003. The moratorium remains in effect today.

Drizin (along with law professor and false confession expert Richard Leo) published "The Problem of False Confessions in the Post-DNA World" in the North Carolina Law Review, a study that documented and analyzed 125 proven false confessions in the United States, most of which had occurred in the previous decade. The widely cited law Review article is the largest single study ever of false confessions.