A former judge who has heard many retrial requests is pushing for an overhaul of the criminal justice system to better serve people who may have been wrongly convicted.

Hiroshi Kadono, 79, said the current setup does not guarantee a “fair” trial because retrials are nearly impossible to gain unless the defendant is lucky enough to have the “right” judge review the case.

“We should not let the situation go unremedied any longer,” he said.

The retrial process has come under fresh scrutiny through the case of Iwao Hakamada, who fought for more than 40 years to clear his name.

In a retrial, the Shizuoka District Court last month exonerated Hakamada over the 1966 murders of four people.

What led to Hakamada’s retrial was the disclosure of new evidence.

The defense lawyers had tried to submit this evidence for more than 30 years since their first bid for a retrial from 1981. Prosecutors finally agreed to hand it over to the defense in 2010 during their second motion after the judge assigned to the case strongly recommended it.

The new evidence consisted of color photographs of bloody clothing supposedly worn by Hakamada during the crime.

Previous photos of the clothing presented at court were grainy and unclear.

Hakamada’s defense team, citing scientific tests, argued that the reddish color of the bloodstains in the photos would not have been possible if Hakamada had worn the clothing.

A retrial was granted.

‘RETRIAL DIVIDE’

The Criminal Procedure Law contains more than 500 articles, but only 19 of them concern procedures for retrial requests.

One of the articles says a court or a judge may “conduct an examination of the facts,” but it does not specify the extent of power they can exercise concerning such requests.

Legal experts say the lack of detailed stipulations allows the court or judge to deal with retrial motions at their own discretion.

Therefore, the criteria for evidence disclosure, the schedules for hearings to decide on retrial requests, and other relevant matters can vary from one judge to the next.

Legal experts have called the situation a “retrial divide.”

A court can order a retrial when strong evidence is presented that could exonerate the defendant or when evidence used to convict the suspect was likely false.

In trials, prosecutors tend to only present evidence that will help to prove their case against the accused. They leave out anything that could be considered exculpatory evidence.

Kadono had evaluated numerous retrial requests, including high-profile murder cases, during his about 40 years in the judiciary until he retired in 2010.

He said he learned that reviewing as many pieces of evidence as possible held by investigative authorities, including those not presented at trial, was critical in evaluating retrial requests.

As the presiding judge at the Tokyo High Court, Kadono heard prosecutors’ appeal of a lower court order for a retrial.

In the original trial, two defendants were convicted and sentenced to life in prison over a 1967 murder-robbery in Ibaraki Prefecture.

There was no physical evidence connecting them with the crime, and the defendants had maintained their innocence.

Kadono was stunned when he heard the prosecution’s appeal.

He discovered that numerous pieces of evidence, including audio records of the interrogations of the accused as well as a written statement of an expert opinion questioning their guilt, were submitted only after the original trial was over.

“If such evidence had not been disclosed, a retrial would not have been granted,” he said of his 2008 decision to uphold the lower court order.

The experience drove home to him the need for judges to grasp what evidence prosecutors may have withheld and prompt them to hand over hidden evidence if necessary.

Kadono also examined a request for a retrial of a man convicted in the 1997 murder of an employee of Tokyo Electric Power Co.

The Tokyo High Public Prosecutors Office was initially reluctant to comply with Kadono’s request to disclose unused evidence.

“We have reservations about replying, including confirming the existence of evidence,” the prosecutors office said.

But prosecutors eventually submitted the evidence--DNA test results—leading to a retrial order.

Kadono also pressed for disclosure of evidence in many other cases. He ordered new trials in some cases and denied requests in others.

Critics of the judicial system have also cited as flaws: the lack of provisions requiring courts to set dates to hear retrial petitions or establish a time frame for a ruling; the appeals process that allows prosecutors to drag on the case for years; and court hearings held behind closed doors to examine retrial requests.

Kadono, who now practices law, said the lack of specified stipulations led him to prioritize trials taking place in front of him. Retrial petitions took a backseat.

“My hands were full with cases,” he said. “I sometimes could not help hoping that my successor would take care of the retrial requests.”

PROLONGED PROCESS

Hakamada’s defense team spent about 42 years to win a retrial, which began only in October last year.

Positive developments started around 14 years ago with the disclosure of potentially exculpatory evidence.

According to the Supreme Court, about 1,160 convicts requested retrials between 2017 and 2021, and retrials were granted in 13 cases.

But since prosecutors can appeal the court decisions, nobody knows when the retrials will actually start.

The clauses relevant to retrials were set in 1948, and they have never been amended despite repeated calls from lawyers for a drastic review.

The Japan Federation of Bar Associations, which has pushed for extensive revisions, hopes to drum up public support for the initiative in light of Hakamada’s ordeal, which underscored the serious flaws in the criminal justice system.

The federation released its draft proposal for revisions of the Criminal Procedure Law last year, calling for detailed guidelines on how to proceed with retrial motions.

The proposal includes giving judges the power to demand disclosure of evidence and to prohibit prosecutors from appealing court decisions granting retrials.

Many legal experts argue that prosecutors should prove the defendant’s guilt during a retrial, rather than challenge a court decision to grant a new trial.

A nonpartisan group of Diet members was formed in March to work toward the revision.

But the Justice Ministry remained cautious about amending the law, saying careful consideration must be given.

(This story was compiled from reports by Yusuke Morishita and Takashi Endo.)