¹ See David T. Johnson, “Early Returns from Japan's New Criminal Trials,” The Asia-Pacific Journal, Vol 36 No 3, September 7, 2009; available here.

² Setsuko Kamiya, “Year One of Lay Judge System: All Convicted,” Japan Times, May 21, 2010.

³ asahi.com, “Editorial: Lay Judge System Turns 1,” May 20, 2010.

⁴ Mariko Sakai, Takashi Maemura, and Mayumi Oshige, “Lay Judges Strict about ‘Benefit of Doubt’: Prosecutors, Chagrined by 3 Not-Guilty Rulings, May Reevaluate Treatment of Evidence,” Daily Yomiuri, July 21, 2010.

⁵ Setsuko Kamiya, “Lay Judges Handle Pressure of Oshio Trial: Jurors Unfazed by Media Frenzy Surrounding High-Profile Case.” Japan Times, September 19, 2010.

⁶ David Garland, Peculiar Institution: America's Death Penalty in an Age of Abolition (Belknap Press of Harvard University Press, 2010), p.295.

⁷ It would be instructive to compare Japan with other nations besides the United States, but it is not possible for the subject of capital trials because these are the only developed democracies that continue to use capital punishment while relying on lay persons for capital sentencing. On the death penalty in other Asian nations, see David T. Johnson and Franklin E. Zimring, The Next Frontier: National Development, Political Change, and the Death Penalty in Asia (New York: Oxford University Press, 2009); and David T. Johnson and Franklin E. Zimring, “Death Penalty Lessons from Asia,” Asia Pacific Journal, Vol. 39 No 1, September 28, 2009, available here.

⁸ Email from Takano Takashi, December 7, 2010. For a condemned inmate's intriguing argument that the death penalty renders remorse meaningless, see Aoki Osamu, Koshukei (Tokyo: Kodansha, 2009), pp.127-156. The inmate, Ogata Hidenori, was hanged on July 28, 2010.

⁹ A survey of lawyers in Kinki (Osaka, Kyoto, Hyogo, Nara, Shiga, and Wakayama) aimed to find out how often “challenges without cause” (saibanin kihi) were used in the 180 lay judge trials that had occurred in the region as of August 2010. Responses were obtained for 51 trials (28 percent of the total), revealing that defense lawyers used one or more challenges in 94 percent of trials, while prosecutors used challenges in 78 percent of them. In February 2010, Japan's Supreme Court released guidelines saying that peremptory challenges “shall not be used as a reason to obtain advantage at trial.” Some defense lawyers and prosecutors apparently are not complying with that directive and are instead relying on intuition to excuse potential lay judges who seem likely to tilt toward the other side. See “Bengogawa no Saibanin ‘Kihi’…Chokkan de Gyoshi no Rei mo,” Yomiuri Shimbun, November 17, 2010.

¹⁰ Nagayama Norio was a serial killer who murdered four men in 1968. At trial he said his actions were the inevitable consequence of his “poverty and ignorance.” In prison he became a best-selling novelist. His most famous works, which still earn sizable royalties that are donated to charities in Japan and Peru, are Muchi no Namida (Tears of Ignorance, 1971), and Kibashi (Wooden Bridge, 1984). Nagayama was sentenced to death by the Tokyo District Court in 1977, but two years later the Tokyo High Court reduced his sentence to life imprisonment, reasoning that “The government should have saved the accused from his poor surroundings. It would be unfair to ignore the lack of proper welfare policies and lay all the responsibility on him.” In 1983, the Supreme Court overruled this opinion and issued its “Nagayama standards.” In 1987, the Tokyo High Court sentenced Nagayama to death, a decision the Supreme Court upheld in 1990. Nagayama was hanged on August 1, 1997. He was 48 years old. See Horikawa Keiko, Shikei no Kijun: “Nagayama Saiban” ga Nokoshita Mono (Tokyo: Nihon Hyoronsha, 2009); Keiji Hirano, “10 Years After Hanging, Killer Still Offers Lessons to Be Learned,” Japan Times, August 1, 2007; and Steven R. Weisman, “Death Sentence Fuels Japan's Soul-Searching,” New York Times, April 26, 1990.

¹¹ Essentially, the Nagayama decision requires that all relevant factors be taken into account when making a death sentencing decision. When U.S. Supreme Court Justice Samuel A. Alito Jr. wrote something similar in an opinion deciding whether the arrangements for mutual fund advisers' fees were proper, he acknowledged (tongue in cheek, one hopes) that this kind of guidance “may lack sharp analytical clarity.” See Adam Liptak, “Justices Are Long on Words but Short on Guidance,” New York Times, November 17, 2010. Some analysts, including former Supreme Court Justice Sonobe Itsuo, say that special importance should be attached to two of the nine Nagayama factors: the method of killing (which bears on the cruelty of the act), and the number of people killed. Sonobe also says that “only in exceptional circumstances can a death sentence be seen as appropriate when only one person has been killed.” Quoted in Daily Yomiuri, “Unmasking Capital Punishment: ‘Nagayama Criteria’ a Hot Issue 25 Years On,” March 8, 2009.

¹² On problems in the Nagayama framework, see Asahi Shimbun, “Shikei no Shakudo Fukai Nayami: Nagayama Kijun Saibanin Saiban de Kawaru ka,” November 23, 2010, p.37. This article also describes two proposed reforms. The first involves a scoring system based on consideration of 18 factors. Defendants who receive 35 points or more are sentenced to death, those who receive 29 points or less are sentenced to life, and those who receive 30 to 34 points should pray that they have a good defense lawyer. The second reform would create a two-stage sentencing process. In stage one, factors related to the crime are assessed (motive, method, number of victims, and so on) in order to discern whether the crime “deserves capital punishment” (shikei ni atai suru ka). In stage two, other factors (the defendant's age, prior record, remorse, potential for rehabilitation, and the feelings of the victims) are weighed in order to discern if a death sentence “can be avoided” (shikei o kaihi dekiru ka). For other critical analysis of the Nagayama factors, see Horikawa Keiko, Shikei no Kijun: ‘Nagayama Saiban’ ga Nokoshita Mono (Tokyo: Nihon Hyoronsha, 2009), ch.5; Nagata Kenji, Shikei Sentaku Kijun no Kenkyu (Osaka: Kansai Daigaku), 2010; Nagano Komi, “Kyokkei no Zehi Fukume Zentaizo Giron o,” Mainichi Shimbun, December 15, 2010, p.9; Daily Yomiuri, “Unmasking Capital Punishment: ‘Nagayama Criteria’ a Hot Issue 25 Years On,” March 8, 2009; and Yomiuri Shimbun Shakaibu, Shikei (Tokyo: Chuokoronshinsha, 2009), pp.171-176. For a colorful attempt to describe how the Nagayama criteria should be revised, written by a convicted murderer who is serving a life sentence and who says he supports capital punishment “absolutely,” see Yamato Mitatsu, Shikei Zettai Kouteiron: Muki Choekishu no Shucho (Tokyo: Shinchosha, 2010), pp.85-94. And for a first-person account about the Nagayama case written by a man who was suspected by police of committing the serial killings that led to Nagayama's hanging, see Daniel A. Metraux, “The Nagayama Criteria for Assessing the Death Penalty in Japan: Reflections of a Case Suspect,” Southeast Review of Asian Studies, Vol.31 (2009), pp.282-289.

¹³ Under Japanese law, victims and the bereaved have the right to legal representation at trial. Lawyers who take on this role often find themselves in the novel position of pushing for harsh punishment. See Masahiko Saeki, “Victim Participation in Criminal Trials in Japan,” paper presented at the annual meetings of the Law & Society Association, Chicago, May 27, 2010.

¹⁴ Of the five days of trial and one day of sentencing, I attended days three through six, thanks in part to the assistance of the Asahi newspaper, which gave me a journalist's badge on days four, five, and six—and with it the right to one of the 80 or so seats in Courtroom 104 (I was not in the country during the first two days of trial, and gained entry by lottery on day three). In exchange for the opportunity to watch Hayashi's trial, I agreed to be interviewed; see Asahi Shimbun, “Saizen no Sentaku Kangaenuite Hoshii,” October 26, 2010, p.39, and Asahi Shimbun, “Hanketsu Michibiita Katei Wakarazu Zannen,” November 2, 2010, p.38.

¹⁵ David T. Johnson, The Japanese Way of Justice: Prosecuting Crime in Japan (Oxford University Press, 2002), p.88.

¹⁶ David Garland, Peculiar Institution: America's Death Penalty in an Age of Abolition (Belknap Press of Harvard University Press, 2010), p.264.

¹⁷ Garland, 2010, p.279.

¹⁸ William Ian Miller, Eye for an Eye (Cambridge University Press, 2006).

¹⁹ Another sphere of silence at Hayashi's trial concerned Japan's huge adult entertainment industry (fuzoku), the fundamental premise of which is the exchange of money for “the illusion of intimacy.” See Jake Adelstein, Tokyo Vice: An American Reporter on the Police Beat in Japan (Pantheon, 2009), p.158. When simulated intimacy is revealed for what it is, one predictable consequence is that some consumers get upset. Whatever else Hayashi was—son, employee, lonely heart, stalker, killer—he was also, and importantly, a disappointed customer, and yet the contexts and causes of his disappointment went unexplored at his trial, not least because doing so would have called into question the purity of the person—and victim—who most disappointed him. The fuzoku dimension of this case also went unexplored by Japan's mainstream media, though some weekly magazines did discuss it. See, for example, Yamafuji Shoichiro et al, “Akiba ‘Mukichoeki’ ‘Mimi-kaki Satsujin’ 154nichi Kayotta Otoko ga Onna ni Nikushimi o Idaita Toki,” Shukan Posuto, November 19, 2010, pp.132-135.

²⁰ See Tadaki Keiichi, “Shikei Hanketsu Zenin Ichi de,” Mainichi Shimbun, November 26, 2010, p.11. In 2009, prosecutors sought 15 sentences of death and reached their desired outcome nine times, for a batting average of .600. See Kikuchi Sayoko, “Shikei Hanketsu-Mukichoeki Hanketsu (Shikei Kyukei) Ichiran,” in Shikei Haishi Nempo 2010 (Tokyo: Impakuto), pp.190-211.

²¹ In Japan, death sentences increased from an average of 5 per year in 1991-99 to an average of 12 per year in 2000-09. The rise in executions occurred a little later, with an increase from an average of 3 per year for 1990-2006 to an average of 10 per year for 2007-09. See Shikei Haishi Nempo 2010 (Tokyo: Impakuto), p.206.

²² Franklin E. Zimring, The Contradictions of American Capital Punishment (Oxford University Press, 2003).

²³ Japan does not have a sentence of life-without-parole (LWOP), though some abolitionists are pushing for it because they believe its availability would reduce the number of death sentences, as it may have done in some American jurisdictions. On this view, there is such a large gap between death and the next most severe sentence (life with the possibility of parole) that some judges and lay judges feel pressured to choose death because the alternative is too lenient. Yet there is also evidence from America and elsewhere that the availability of LWOP has little effect on capital sentences and executions while at the same time drawing into that category of punishment offenders who would have received a less severe sanction if LWOP did not exist. See David T. Johnson, “Parole Debate Misses the Central Question,” International Herald Tribune, August 7, 2008; and David T. Johnson, “Shushinkei Donyu: Shikei Yokushi ni wa Chokketsu Sezu,” Asahi Shimbun, June 20, 2008, p.14. Whatever the appropriateness of LWOP for Japan (the Ministry of Justice opposes it), the country's ordinary life sentence with the possibility of parole (muki choeki) increasingly means no release from prison. As of the end of 2009, Japan had 1772 prisoners serving life terms (compared to 106 persons on death row), which was a post-war high. In 2009, 81 people entered prison to serve life terms and only six lifers were released on parole (14 more died behind bars). On the average, those six served more than 30 years before being released, far longer than the 21 years that lifers served before being released on parole in 2000. The victims' rights movement is one important cause of the decline of parole for lifers in Japan. In recent years, the Ministry of Justice has increasingly taken into account the opinions of crime victims and bereaved families when deciding whether to release prisoners on parole. See Mainichi Daily News, “Number of Prisoners Serving Life Terms Hits Post-War High of 1772: Justice Ministry,” November 21, 2010.

²⁴ Discussion of the Shikei Bengo Purojekuto Chimu, Nihon Bengoshi Kaikan, Tokyo, December 18, 2010.

²⁵ For a summary of this court opinion, see Yomiuri Shimbun, November 2, 2010, p.22, and for a longer version see Shikei Bengo Purojekuto Chimu, “Shikei Kyukei Jiken Hanketsu Yoshi,” December 18, 2010, pp.1-10.

²⁶ Some observers believe the confidentiality rule should be relaxed when Japan formally evaluates the lay judge system after it has been in operation for three years. See, for example, Mark Levin and Virginia Tice, “Japan's New Citizen Judges: How Secrecy Imperils Judicial Reform,” The Asia-Pacific Journal, Vol. 19 No 6, May 9, 2009, available here. A lay judge in Sapporo may have broken the confidentiality law when he lamented to the media that “we've come to our conclusion after agreeing to place emphasis on the majority opinion in our deliberations. But to be honest, the sentence was too light. I think the defendant should have been given life imprisonment, in an extreme case.” The defendant's actual sentence was four years (for sexual assault). On hearing this complaint, an alternate lay judge in the same trial stormed out of the press conference after rebuking his colleague for breaching the confidentiality norm. “Now there was no point in having those discussions,” he said. See Mainichi Daily News, “Lay Judge's Post-Trial Comments to Press Spark Furor,” November 13, 2010.

²⁷ Of course, the media stress on the lay judge “burden” also reflects what questions the lay judges are asked.

²⁸ David T. Johnson, “Japan's Secretive Death Penalty Policy: Contours, Origins, Justifications, and Meanings,” Asia-Pacific Law & Policy Journal, vol.7, issue 2 (Summer 2006), pp.62-124, available here.

²⁹ A survey of 32 people who served as lay judges in non-capital trials in Tochigi prefecture found that 53 percent favored capital punishment, 19 percent opposed it, and 28 percent were unsure. In this small sample, the level of support for capital punishment was much lower than among Japan's general public. Shimotsuke Shimbun, “Kennai Saibanin Ichinen Keikensha Anketo: Shikei ‘Sansei’ Go-wari,” December 9, 2010.

³⁰ Itoh Naotaka, “Kyukei Shita Ijo Koso ga Suji da,” Mainichi Shimbun, December 14, 2010, p.7.

³¹ After Ikeda was sentenced to death, one judge said this prosecutor's statement was “intimidation of the lay judges, and highly inappropriate.” Yomiuri Shimbun, November 17, 2010, p.3.

³² Yomiuri Shimbun, “Nagayama Kijun Kangae no Konkyo,” November 17, 2010, p.37.

³³ Tokyo Shimbun, “‘Yamu o Enu’ Kyokkei: Jiken Shireba Shikei, Hikoku Shireba Tamerai: Kisha Bochoki,” November 16, 2010 (evening edition), p.8.

³⁴ This section is based on extensive media coverage of Ikeda's trial and on interviews with journalists and legal professionals who watched it. I did not attend any part of this capital trial or of the three that followed it.

³⁵ According to two reporters who covered Ikeda's trial, the victims in this case were “very close to the yakuza” and may well have been involved in criminal activities. But as with the young victim in the ear-cleaning case, the behavior of these victims was not examined at trial (author's interviews, December 8, 2010).

³⁶ The two-victim murder cases are analyzed in Mainichi Shimbun, “Saibanin Omoi Ketsudan,” November 16, 2010 (evening edition), p.9. Most legal professionals familiar with capital punishment in Japan acknowledge the following rules of thumb (author's interviews). If you kill one person, you are unlikely to receive a death sentence. Prosecutors have appealed several one-victim sentences, hoping to obtain the capital sentence that was denied them at trial, but seldom have succeeded. On the other hand, if you kill three persons or more, you are likely to receive a death sentence. In between it is hard to say, for when you kill two persons trial courts go both ways—or at least they did before the advent of Japan's lay judge system. Prosecutors appealed all five two-victim trial outcomes mentioned in the text that did not result in a death sentence, but they prevailed only once, in the “Hikari Mother-and-Child Murder Case” that occurred in Yamaguchi prefecture in 1999. In that case, the Yamaguchi District Court and the Hiroshima High Court imposed a life sentence on a defendant who was eighteen years old at the time the murders occurred (the age of majority in Japan is 20), but the Supreme Court sent the case back to the high court with instructions for it to reconsider. The case is now before the Supreme Court, which is expected to finalize the death sentence that it directed the high court to impose. See Masuda Michiko, Fukuda kun o Koroshite Nani ni Naru: Hikari Boshi Satsugai Jiken no Kansei (Tokyo: Inshidentsu, 2009).

³⁷ As a capital defender in Texas asks, “Is there any phrase in the English lexicon more immoral than There was nothing I could do?” David R. Dow, The Autobiography of an Execution (Twelve, 2010), p.220.

³⁸ Asahi Shimbun, “Irei no Setsuyu ni Hamon,” November 17, 2010, p.1.

³⁹ Author's interviews with Japanese journalists and legal professionals, November 2010.

⁴⁰ See publications of the American Capital Jury Project, available here.

⁴¹ Franklin E. Zimring and Gordon Hawkins, Capital Punishment and the American Agenda (Cambridge University Press, 1986), ch.5.

⁴² These trials are described in the next section of this article. On attendance at press conferences after lay judge trials, see David T. Johnson and Satoru Shinomiya, “Judging Japan's New Criminal Trials: Early Returns from 2009,” in Leon Wolff, Luke Nottage, and Kent Anderson, editors, Who Judges Japanese Law? Popular Participation in Japan's Legal Process (Edward Elgar, 2011, forthcoming).

⁴³ Kent Anderson and Mark Nolan, “Lay Participation in the Japanese Justice System: A Few Preliminary Thoughts Regarding the Lay Assessor System (Saiban-in Seido) from Domestic, Historical, and International Psychological Perspectives,” Vanderbilt Journal of Transnational Law, Vol. 37 (October 2004); available here.

⁴⁴ Author's interview, November 21, 2010. For Yasuda's general views on capital punishment and capital defense work, see Yasuda Yoshihiro, Shikei Bengonin (Tokyo: Kodansha, 2008).

⁴⁵ Igarashi Futaba, “Saibanin Saiban no Shikei Hanketsu,” Ho to Minshushugi, No. 454 (December 2010), pp.62-66.

⁴⁶ Kahoku Shimbun, “Saibanin Hatsu Shonen ni Shikei,” November 26, 2010, p.1.

⁴⁷ Since 1966, nine juveniles have received death sentences that eventually became finalized, and seven of them have been hanged. Yomiuri Shimbun, “Yamaguchi no Boshi Satsugai de Saikosai ‘Shikei Kaihi wa Futo’,” June 21, 2006, p.13.

⁴⁸ The condemned juvenile's co-offender—another 18-year-old male—received a sentence of 3 to 6 years in prison for “assisting a homicide” (satsujinhojozai). Prosecutors had sought a sentence of 4 to 8 years. Under the felony-murder rule that prevails in many American jurisdictions, this co-offender might have been charged with a capital crime if these killings had occurred in the United States. Scott Turow, Ultimate Punishment: A Lawyer's Reflections on Dealing with the Death Penalty (Picador, 2003).

⁴⁹ Asahi Shimbun, “Shonen no Bengogawa Koso: Ishinomaki San'nin Sassho,” December 7, 2010, p.39.

⁵⁰ Yomiuri Shimbun, “Shonengawa no Koso o Hihan: Ishinomaki Sassho no Higaisha,” December 10, 2010 (evening edition), p.19.

⁵¹ Tokyo Shimbun, “Kazoku San'nin Satsugai de Shikei,” December 8, 2010, p.25.

⁵² Sankei Shimbun, “Akushitsu, Mikatte na Doki: Genkei Keiko no Kazokunai Satsujin…,” December 8, 2010, p.22.

⁵³ After the defense appealed Okumoto's death sentence, one lay judge said, “To tell you the truth, I am relieved. I feel that our responsibility as lay judges has been lessened [by this appeal], and that the weight of handing down this death penalty has decreased as a result of entrusting the case to professional judges” (quoted in Asahi Shimbun, “Bengogawa ga Koso,” December 18, 2010, p.39). For other lay judge pronouncements about Okumoto's case, see Mainichi Shimbun, “Kazoku San'nin Satsugai ni Shikei: Miyazaki Chisai Hanketsu Saibanin Sanreime; Hanketsugo no Kisha Kaiken Jitsugen Sezu; Shuzai Ojita Saibanin ‘Sugoi Futan’,” December 8, 2010, p.29; Asahi Shimbun, “Hikoku ni Shikei Hanketsu: Miyazaki-Kazoku San'nin Satsugai Saibanin Saiban,” December 8, 2010, p.38; and Mainichi Shimbun, “Miyazaki-Kazoku San'nin Satsugai: Saibanin Saiban ‘Donna Kei demo Ukeru’ Hikoku, Shazai no Kotoba,” November 23, 2010.

⁵⁴ Yomiuri Shimbun, “‘Hyoketsu Tohyo Te Furueta’: Saibanin,” December 8, 2010, p.37.

⁵⁵ Aoki Takayuki, “Jubun Arieru Handan,” Tokyo Shimbun, December 8, 2010, p.5; and Fujimoto Tetsuya, “Nagayama Kijun no Genshu o,” Tokyo Shimbun, December 8, 2010, p.5.

⁵⁶ This is an acquittal rate of 0.3 percent. See Akihiro Ishihara and Takayuki Tsukiji, “Kagoshima Ruling Raises Bar,” Daily Yomiuri, December 12, 2010, p.2. On the causes and consequences of the low acquittal rates that prevailed in Japan before lay judge trials started, see David T. Johnson, The Japanese Way of Justice: Prosecuting Crime in Japan (New York: Oxford University Press, 2002), ch.7.

⁵⁷ Police had Shirahama's fingerprints on file because he had at least one prior conviction (for robbery), though little was said about this in the media. For an article that mentions his record in passing, see Tokyo Shimbun, “Saibanin wa Joshiki ga Hataraita,” December 11, 2010, p.5. Japanese media are not always easy on criminal suspects and defendants, though they can be quite kind to police and prosecutors. See, for example, Terasawa Yu, editor, Hodo Sarenai Keisatsu to Masukomi no Fuhai: Eiga “Pochi no Kokuhaku” ga Abaita Mono (Tokyo: Inshidentsu, 2009).

⁵⁸ See Igarashi Futaba, “Shinnen Erareru Saibanin Saiban o,” Minami Nihon Shimbun, November 3, 2010; Tokyo Shimbun, “Kagoshima no Korei Fufu Goto Satsujin Jiken: Shoko Busoku Shimin ni Futan; Hikoku wa Zenmen Hinin; Doki mo Fushizen,” November 17, 2010, p.24; Mainichi Shimbun, “Wakaru? Kagoshima Goto Satsujin Kyukei ‘Yuzai’ ‘Muzai’ Do Handan,” November 18, 2010; and Asahi Shimbun, “Kagoshima Hikoku Hinin de Shikei Kyukei: Saibanin Saiban Asu Hanketsu,” December 9, 2010, p.37.

⁵⁹ Mainichi Shimbun, “Saicho Shinri ‘Taihen Datta’,” December 11, 2010, p.3; and Igarashi Futaba, “Rekishi ni Nokoru Shikinseki,” Minami Nihon Shimbun, December 10, 2010.

⁶⁰ Kitani Akira, “Uso Tsuite mo Han'in to wa Kagiranai,” Asahi Shimbun, December 11, 2010, p.39; Kitani Akira, “Senzen kara Tsuzuku ‘Kenji wa Nakama’,” Asahi Shimbun, December 16, 2010, p.15.

⁶¹ Daniel H. Foote, “‘Saibanin da kara Muzai’ to wa Ienu,” Asahi Shimbun, December 11, 2010, p.39.

⁶² Court opinion, quoted in Tokyo Shimbun, “Saibanin no Joshiki wa Hataraita,” December 11, 2010, p.5.

⁶³ Asahi Shimbun, “‘Doko made Rissho Sureba’: Sosagawa,” December 11, 2010, p.39, and author's interview with an Asahi reporter. There are other reasons to wonder whether professional judges would have reached the same decision that the mixed panel did. In mock trials that were held before lay judge trials started, Japanese citizens playing the lay judge role often perceived more reasonable doubt than their professional counterparts did, and in Japan's prewar jury system, ordinary citizens acquitted much more often than professional judges did. Shirahama's lead defense lawyer also believes the lay judges made a difference (Nohira Yasuhiro, “Muzai Hanketsu ga Semaru Seigi no Saiko,” Asahi Shimbun, December 16, 2010, p.15). On the other hand, Goto Sadato, one of Japan's most prominent defense attorneys, believes a panel of professional judges would also have acquitted Shirahama, as does attorney Igarashi Futaba, who notes that the presiding judge in Kagoshima maintained a tight grip on all aspects of the proceedings (“Saibanin Saiban no Shikei Hanketsu,” Ho to Minshushugi, No. 454, December 2010, pp.62-66, and author's interviews with Goto and Igarashi, December 13 and 15, 2010). On the role of citizens' sensibilities in the Kagoshima verdict, see also Mainichi Shimbun, “Saibanin Kankaku Puro to Sa,” December 11, 2010, p.3.

⁶⁴ Two other men are expected to be acquitted at a retrial that will end in March 2011. Both defendants in this “Fukawa case” were released on parole after spending 29 years of their life sentences for a robbery-murder that occurred in Ibaraki prefecture in 1967. And both—62-year-old Sakurai Shoji and 63-year-old Sugiyama Takao—insist that their confessions are false and that police and prosecutors not only fabricated evidence in order to convict them but also hid evidence that could have proved their innocence. See Asahi Shimbun, “Enzai Konzetsu e Genin Kyumei: Fukawa Jiken Saishin Bengogawa, Saishu Benron,” December 11, 2010, p.37.

⁶⁵ Japan Times, “Ex-Prosecutor Indicted Over Evidence Tampering in Postal Case,” October 12, 2010. See also the comments by former Tokyo High Court Judge Kadono Hiroshi, on “waning public trust in investigative authorities” in the wake of the Osaka scandal, quoted in Akihiro Ishihara and Takayuki Tsukiji, “Kagoshima Ruling Raises Bar,” Daily Yomiuri, December 12, 2010, p.2.

⁶⁶ Nihon Bengoshi Rengokai, Enzai Shibushi Jiken: Tsukurareru Jihaku (Tokyo: Genjin, 2008).

⁶⁷ Ibusuki Makoto, “Shii teki na Shoko Kaiji Hihan Shita Hanketsu,” Asahi Shimbun, December 11, 2009, p.39.

⁶⁸ In the 1980s, four men on death row were also acquitted at retrial. See Daniel H. Foote, “From Japan's Death Row to Freedom,” Pacific Rim Law & Policy Journal, vol.1, no.1 (1992), pp.11-103.

⁶⁹ Mainichi Shimbun, “Shikei ga Kyukei Sare Isshin de Muzai Hanketsu ga Deta Saiban,” December 10, 2010 (evening edition), p.1.

⁷⁰ This is the English translation used by Akihiro Ishihara and Takayuki Tsukiji in “Kagoshima Ruling Raises Bar,” Daily Yomiuri, December 12, 2010, p.2. The Japanese language is more complicated; see Asahi Shimbun, “‘Shincho, Muri wa Nai,‘” December 11, 2010, p.39.

⁷¹ Mainichi Shimbun, “‘Nureginu Hareta,‘” December 11, 2010, p.27.

⁷² Citizens in Kagoshima were reluctant to judge Shirahama Masahiro but eager to observe his sentencing. Some 450 persons were summoned to serve as lay judges in this case, and 373 declined. This 83 percent refusal rate is much higher than the refusal rates in other lay judge trials. The six lay judges and two alternates who did serve were selected in the same fast and mechanical manner that characterized the other capital trials discussed in this article. See Mainichi Shimbun, “Sennin kara Hanketsu 40nichikan: Shonin 27nin, Hajimete no Genba Kensho,” December 11, 2010, p.3. On sentencing day in Kagoshima, 1278 citizens drew lots for 52 courtroom seats (38 other seats were reserved for the media). See Yomiuri Shimbun, “‘Muzai’ Doyomeku Hotei: Hikoku ‘Hai’ Atama Sageru; Tenjo Miageru Izokura,” December 10, 2010 (evening edition), p.19.

⁷³ Author's interviews with attorney Igarashi Futaba, who watched the trial and wrote several essays about it for the Minami Nihon Shimbun.

⁷⁴ Asahi Shimbun, “40nichikan: Kazoku ni Meiwaku; Izoku wa Tsurai Daro,” December 11, 2010, p.37.

⁷⁵ Tokyo Shimbun, “Hijo ni Odoroki, Zannen: Izoku Komento,” December 11, 2010, p.29; and Asahi Shimbun, “Sabanin ‘Shoko Fujubun,': ‘Kanjo Osaete Ketsuron'; Izoku ‘Jokyushin de Handan o,‘” December 11, 2010, p.39.

⁷⁶ Quoted in Tokyo Shimbun, “‘Genba ni Itta Koto Nai,'” December 10, 2010, p.9 (evening edition), and in Fumio Tanaka, “Judgment, Punishment May Need Separation,” Daily Yomiuri, December 12, 2010, p.2. Note, however, that attorney Igarashi Futaba (who observed the Kagoshima trial) insists that the presiding judge did not allow any of the survivors to request a sentence of death or make statements about facts in dispute. According to Igarashi, chief judge Hirashima Masamichi edited the survivors' statements before they were read in court in order to remove the offending passages (author's interviews, December 13 and 15, 2010).

⁷⁷ Yomiuri Shimbun, “Fufu Satsugai ‘Muzai’ Koso e: Kagoshima Chiken ga Hoshin,” December 19, 2010, p.36.

⁷⁸ All of Japan's major newspapers have said the Kagoshima verdict could become an important precedent. See, for example, these editorials: Yomiuri Shimbun, “Kensatsu no Amai Rissho o Tsuita Hanketsu,” December 11, 2010, p.3; Asahi Shimbun, “40nichi Kake, Mitsuketa Muzai,” December 11, 2010, p.3; Mainichi Shimbun, “Kyukoku ni Nozonda Saibanin,” December 11, 2010, p.5; and Tokyo Shimbun, “Saibanin no Joshiki ga Hataraita,” December 11, 2010, p.5. Of these, the first three—Yomiuri, Asahi, and Mainichi—seem to view the Kagoshima opinion as leaving room to wonder whether Shirahama really murdered the Kuranoshitas. In contrast, the Tokyo Shimbun suggests that Shirahama is actually innocent, and calls for police to start searching for “the real offender.” Attorney Igarashi Futaba shares this view (“Rekishi ni Nokoru Shikinseki,” Minami Nihon Shimbun, December 10, 2010). Some people familiar with this case say (off the record) that the Kuranoshitas may have been murdered by one of their relatives (author's interviews).

⁷⁹ Daily Yomiuri, “Insufficient Proof Leads to Acquittal,” December 12, 2010, p.2.

⁸⁰ Akihiro Ishihara and Takayuki Tsukiji, “Kagoshima Ruling Raises Bar,” Daily Yomiuri, December 12, 2010, p.2.

⁸¹ Quoted in Tokyo Shimbun, “‘Aozora to Onaji Kimochi,‘” December 11, 2010, p.29. In contrast, Shirahama's lead defense attorney was not at all confident of an acquittal; see Nohira Yasuhiro, “Muzai Hanketsu ga Semaru Seigi no Saiko,” Asahi Shimbun, December 16, 2010, p.15.

⁸² Woodson v. North Carolina, 428 U.S. 153 (1976), p.188.

⁸³ The “mixed majority” decision rule says that five votes are enough to convict and condemn a defendant to death, but at least one of the five must be a professional judge. By this rule, if the three professional judges stay together, they can block a call for capital punishment by five or six lay judges. And by the same rule, if the professional judges remain united for acquittal, they can trump five or six lay judges who want to convict.

⁸⁴ Japan's Supreme Court has issued no instructions about how voting should occur; the procedure apparently depends on the chief judge, and it may be written or oral (author's interviews with legal professionals, December 8, 2010).

⁸⁵ Murakoshi Hirotami, a Member of Parliament and Secretary General of the Diet Member's League for the Abolition of Capital Punishment, has vowed that changing the mixed majority rule to require consensus before a death sentence can be imposed will be his number one objective for death penalty reform in 2011 (statement made at the conference “Chikyu ga Kimete 20nen: Shikei no Nai Shakai e,” Tokyo, December 19, 2010). Death penalty opponents and defense lawyers are not the only people calling for reform of Japan's mixed majority rule. See, for example, essays by former Prosecutor General Tadaki Keiichi (“Shikei Hanketsu Zenin Ichi de,” Mainichi Shimbun, November 26, 2010, p.11) and former Minister of Justice Chiba Keiko, the death penalty abolitionist who authorized two executions in July 2010 (“Shikko no Shomei wa Watakushi nari no Koishi,” Asahi Shimbun, November 20, 2010, p.19). Chiba's decision to execute despite strongly opposing capital punishment throughout her long career as a lawyer and Member of Parliament is one of the two most important death penalty developments of 2010. The other is the start of capital lay judge trials. See David T. Johnson, “Ending the Secret Life of the Death Penalty,” Japan Times, September 26, 2010, p.15.

⁸⁶ Before the lay judge system started, a different majority rule prevailed, by which a death sentence could be imposed if two out of three professional judges wanted it. In 1968, pro boxer Hakamada Iwao was sentenced to death for killing four people in Shizuoka in 1966. He has been on death row ever since—42 years—and now suffers from serious mental illness. He is 74 years old. Many people believe Hakamada is actually innocent, including one of the three judges who tried him in Shizuoka. This judge—Kumamoto Norimichi—voted to acquit Hakamada, but he was outvoted by his two colleagues, who did not find persuasive his 360-page case for innocence. The senior judge on the panel then ordered Kumamoto (the most junior judge) to write the death sentence opinion. Kumamoto quit the judiciary the next year, and lived an anguished life thereafter (including a divorce and three suicide attempts). See Yamadaira Shigeki, Sabakareru no wa Warenari: Hakamada Jiken Shunin Saibankan 39nenme no Shinjitsu (Tokyo: Futabasha, 2010). In 2007, Kumamoto, age 70, broke the judiciary's confidentiality norm when he broke his own silence and told reporters that he feels “great sadness and disappointment” in addition to “tremendous anger” over what has happened to Hakamada. Kumamoto also filed a petition with Japan's Supreme Court demanding a retrial for the person whose death sentence he wrote. See Catherine Makino, “Dissenting Judge Breaks 40-Year Silence,” Inter Press Service News Agency, November 11, 2007; available here.

⁸⁷ The difficulty of deciding a defense strategy was evident in what many observers expected to be Japan's first capital lay judge trial, of 55-year-old Kageyama Hiroshi, for double murder with robbery in Tottori prefecture in February 2010. But prosecutors did not seek a sentence of death, and Kageyama was sentenced to life in prison. His trial lasted four days, followed by three days of deliberation. On the day before deliberations started, prosecutors announced they would not seek a death sentence because the defendant deserved sympathy for having been treated badly by the people he confessed to killing: his 82-year-old boss, and the boss's 74-year-old companion. See Japan Times, “Tottori Double-Killer Gets Life, Lay Judges Agree,” March 3, 2010. Many legal professionals point to the Tottori case to illustrate their claim that the lay judge system has made prosecutors more “cautious” (shincho) about seeking capital sentences than they were under the old system (author's interviews, November-December 2010).

⁸⁸ Ibusuki Makoto, “Saibanin Saiban to Shikei Jiken no Bengo Taisei o Megutte,” Kikan Keiji Bengo, No.59 (Autumn 2009), pp.9-12.

⁸⁹ On a survey of defense lawyers' impressions of the lay judge system (n=208 responses), see Daily Yomiuri, “‘Lay Judges Tougher on Defendants’,” November 2, 2010, p.3. The results of this survey show that 38 percent of defense lawyers feel sentences have become heavier under the lay judge system than they were under the judge-only system, with 35 percent perceiving no change and 7 percent seeing greater leniency. Nearly three-quarters of these defense lawyers believe the lay judge system has caused prosecutors to disclose more evidence to the defense (many legal professionals regard this as the most important effect of the new system so far). In trial arguments, 60 percent of the surveyed lawyers stressed that their clients would be rehabilitated, compared with only 23 percent who made the next most common argument: that there is reasonable doubt about guilt.

⁹⁰ A survey of 210 lay judges revealed that 21 percent believe professional judges “had directed them in their closed-door deliberations on whether to convict or what sentence to give,” compared with 73 percent who said professional judges had not done so. See Daily Yomiuri, “1 in 5 Lay Judges Feel Directed by Pro Judges,” August 2, 2010, p.3.

⁹¹ In an indecent assault trial in February 2010, the Osaka District Court did stress the importance of the separation principle when it said that “it is a jurist's responsibility to prepare an environment where lay judges can devote themselves only to deciding guilt.” Professor Ito's study suggests that such an environment is difficult to create when victims make sentencing requests in murder trials. See Fumio Tanaka, “Judgment, Punishment May Need Separation,” Daily Yomiuri, December 12, 2010.

⁹² A significant step towards recognizing that death is different occurred in 2010, when the Japan Federation of Bar Associations created a subcommittee (Shikei Jiken Bengo Purojekuto Chimu) to study how the Bar can assist lawyers doing capital defense work. Japanese law, courts, and criminal process need to take similar steps.

⁹³ By contrast, American criminal justice has been deemed “rough” in at least three ways: (1) for spending comparatively little time constructing and clarifying “the truth” (a rough approximation is often deemed good enough); (2) for tolerating inconsistencies in disposition between cases that should be treated similarly (roughness as unevenness); and (3) for treating suspects and defendants roughly during the pretrial process (often through coercive plea bargaining). See Amy Bach, Ordinary Injustice: How America Holds Court (New York: Metropolitan Books, 2009); and David T. Johnson, The Japanese Way of Justice: Prosecuting Crime in Japan (New York: Oxford University Press, 2002), pp.264-269.

⁹⁴ In comparison, the murder trial of Kato Tomohiro, who has confessed to killing seven people and wounding ten more in the Akihabara rampage that occurred in June 2008, still has some distance to travel after 26 trial sessions. Kato was indicted before the lay judge system took effect. See Mainichi Shimbun, “‘Shi ni Chokumen, Muryoku Datta,‘” December 8, 2010, p.26. Capital trials in the United States vary in length. One that concluded a week after Hayashi was sentenced took “nearly two months.” See William Glaberson, “Death Penalty for a Killer of 3 in Connecticut,” New York Times, November 8, 2010.

⁹⁵ In 2009, the average length of a lay judge trial was 3.3 days, and trials with contested issues lasted slightly longer (3.8 days). Japan's Supreme Court has said that it wants 90 percent of lay judge trials to finish in five days or less. See David T. Johnson and Satoru Shinomiya, “Judging Japan's New Criminal Trials: Early Returns from 2009,” in Leon Wolff, Luke Nottage, and Kent Anderson, editors, Who Judges Japanese Law? Popular Participation in Japan's Legal Process (Edward Elgar), forthcoming (2011).

⁹⁶ Email to the author, October 22, 2010.

⁹⁷ Nihon Keizai Shimbun, “Ryokei Kijun Mukau Saki wa,” November 17, 2010, p.38; Yomiuri Shimbun, “Saibanin Hajimete no Shikei Hanketsu,” November 17, 2010, p.39; and Tokyo Shimbun, “Omoi Ketsudan Kadai Tsugitsugi,” November 17, 2010, p.3.

⁹⁸ Author's interview, December 18, 2010.

⁹⁹ This attitude toward juvenile offenders may be common among lay judges. In a 2006 survey report compiled by the Supreme Court's Legal Training and Research Institute, 90 percent of professional judges said the defendant being a minor might lead them to show leniency in sentencing. By contrast, 50 percent of ordinary citizens said they would not consider the age of the defendant when deciding a sentence, and 25 percent said they would hand down a tougher punishment for a minor. See Inagaki Makoto and Tanaka Fumio, “Condemned Youth Earned No Leniency: By Sentencing Minor to Death, Lay Judge System Bucks Usual Focus on Rehabilitation,” Daily Yomiuri, November 27, 2010. See also Tokyo Shimbun, “Higai no Judaisei Jushi: Shonenho no Rinen yori,” November 26, 2010, p.26.

¹⁰⁰ Author's interview, December 9, 2010 (Japan has a small bar, and many attorneys are reluctant to criticize their colleagues on the record). After Okumoto filed an appeal against his death sentence, one of his attorneys explained why in language that reflects the cultural pressure in Japan to “atone” for killings by accepting—not resisting—the ultimate punishment. He said: “It is not too late to accept the death penalty after looking at the judgment of the higher court” (Asahi Shimbun, “Bengogawa ga Koso,” December 18, 2010, p.39.

¹⁰¹ The Japan Times and other newspapers said the Kagoshima case was “extremely long for a lay judge trial” (“Acquittal Instead of Death,” December 14, 2010, p.11). In contrast, attorney Igarashi Futaba believes many issues should have been examined more deeply in the Kagoshima trial (“Rekishi ni Nokoru Shikinseki,” Minami Nihon Shimbun, December 10, 2010; and author's interviews, December 13 and 15, 2010).

¹⁰² More generally, the lay judge system provides many opportunities for defense lawyers to challenge prosecutor prerogatives that were taken for granted under the old system. Attorney Takano Takashi has said “this is war,” and what he means is that if defense lawyers do not take advantage of the new opportunities and fight to change Japan's standard operating procedures, they will continue to be marginal players in the criminal process (author's interview, October 1, 2010). On how and why prosecutors have dominated defense lawyers in Japan, see David T. Johnson, The Japanese Way of Justice: Prosecuting Crime in Japan (Oxford University Press, 2002), pp.71-85. On what a good death penalty defense lawyer does in America, see David von Drehle, Among the Lowest of the Dead: The Culture of Capital Punishment (University of Michigan Press, 2006), p.196 (“This is the way a good death penalty lawyer works. Run all the traps, fight every issue, hit every court…Make the law do what it promises. Make it be perfect…”). But many American capital defenders are bad; see David R. Dow, The Autobiography of an Execution (Twelve, 2010), p.13 (“You meet many crappy or lazy lawyers…”).

¹⁰³ Scott Turow, Ultimate Punishment: A Lawyer's Reflections on Dealing with the Death Penalty (Picador, 2003).

¹⁰⁴ Scott E. Sundby, A Life and Death Decision: A Jury Weighs the Death Penalty (New York: Palgrave Macmillan, 2005), p.179.

¹⁰⁵ On the lay judge “burden” generally, see Setsuko Kamiya, “Scarred Lay Judges Battle Stress,” Japan Times, September 16, 2010.

¹⁰⁶ After Shirahama Masahiro was acquitted in the Kagoshima trial, the lead editorial in Japan's largest newspaper applauded lay judges for making “an extremely careful decision,” and then bewailed the “huge mental burden” lay judges experienced, saying they “must have been under unimaginable psychological stress.” The editorial concluded by insisting that concerns about stress “should be reflected when improvements are made in the lay judge system for future trials.” See Daily Yomiuri, “Insufficient Proof Leads to Acquittal,” December 12, 2010, p.2.

¹⁰⁷ One question worth considering is whether prosecutors' concern about the lay judge “burden” is connected to a preference for keeping capital trials on a fast track.

¹⁰⁸ Forum 90: Chikyu ga Kimeta Shikei Haishi (newsletter), Vol.112 (November 10, 2010), p.6.

¹⁰⁹ For an analysis of the causes and consequences of Japan's reliance on confessions, see David T. Johnson, The Japanese Way of Justice: Prosecuting Crime in Japan (Oxford University Press, 2002), ch.8. The lead defense lawyer for the man acquitted in Kagoshima argues that the investigation of his client went awry because police and prosecutors relied too much on confessions (jihaku hencho). In his view, after police arrested Shirahama Masahiro, they failed to thoroughly investigate the crime scene because they expected to obtain a confession. See Tokyo Shimbun, “‘Aozora to Onaji Kimochi,‘” December 11, 2010, p.29.

¹¹⁰ One wonders what the level of anxiety would be if each Japanese lay judge were required to do what jurors in America often have to do after condemning a person to death: stand up and say in open court if a death sentence was his or her choice. See, for example, William Glaberson, “Death Penalty for a Killer of 3 in Connecticut,” New York Times, November 8, 2010.

¹¹¹ Franklin E. Zimring, “The Death Penalty's Dirty Little Secret,” unpublished paper, December 3, 2010, pp.1-12.

¹¹² My answer to this question is no, but your answer may differ, especially if you support capital punishment, for reducing the burden that lay judges feel helps lubricate the machinery of death that produces capital sentences and executions. In order to survive in a modern setting, a system of capital punishment must provide mechanisms of deniability to the persons who make the decisions and do the deeds that keep the machinery clunking along. For analysis of some of the lubricants used in the American context, see Craig Haney, Death by Design: Capital Punishment as a Social Psychological System (Oxford University Press, 2005).