Minoru Matsutani of The Japan Times reports:
The Tokyo High Court said Thursday it will retry Govinda Prasad Mainali, 44, a Nepalese man serving life in prison for the 1997 robbery-murder of a 39-year-old woman, because a DNA test in July contradicted the justification for its guilty verdict.
The high court also said Thursday Mainali's sentence will be halted. He was later released from a Yokohama prison. He is expected to soon be placed in immigration custody for deportation, as he has been convicted of visa violations.
"We would like to express respect to the high court's prompt and appropriate decision even though there was no room for doing otherwise," Mainali's attorneys said in a prepared statement. "Prosecutors should comply with the decision, for doing so is in compliance with prosecutors' philosophy: 'Prosecutors must not regard guilty verdicts as their purpose and heavy punishments as their achievement.' "
The Tokyo High Public Prosecutor's Office immediately filed an objection to the court's decision, with deputy chief Toshihiko Itami saying the decision was "totally unacceptable."
One of his lawyers quoted Mainali as saying, "I am glad I found a judge who believes my innocence and truth."
His wife, Radha, 42, expressed her gratitude at a news conference in Tokyo. His daughter, Alisha, 19, said the past 15 years were "very long and dark." They came to Japan with another of Govinda's daughters, Mithila, 21.
The victim, a Tokyo Electric Power Co. employee whose name was withheld and who engaged in prostitution at night, was found dead March 19, 1997, in a vacant apartment in Shibuya Ward, Tokyo. Mainali, who lived nearby, was arrested four days later on suspicion of overstaying his visa. He was later charged with murdering and robbing the woman, after police learned that Mainali was an acquaintance of hers, had a key to the flat and because a used condom found in the toilet at the scene contained semen that matched his DNA.
The district court acquitted Mainali in April 2000 because prosecutors failed to prove him guilty beyond a reasonable doubt. A urologist also testified that the semen in the condom greatly predated the day of the slaying. The court added there were several unclear points, including two strands of hair found on the victim that came from a third party.
However, when prosecutors appealed his acquittal, the Tokyo High Court found Mainali guilty in December 2000 and sentenced him to life behind bars even though no new evidence was presented. The high court said "it is difficult to think someone other than" Mainali brought her to the vacant apartment where she was slain and called his testimony unreliable.
The Supreme Court finalized the sentence three years later.
Mainali's coming retrial is based on DNA tests carried out on semen found in and on the victim. It was that of another man and matched the hair fibers.
Prosecutors often appeal lower court-meted acquittals because they imply the case will be brought before a high or the Supreme Court, and thus do not violate the law against double jeopardy.
Japan, like many nations, bans double jeopardy, but the judicial system considers district court, high court and Supreme Court trials of the same party for the same alleged offense to be separate trials, unlike in other countries where the verdict in the trial of first instance stands.
"In the U.S., for example, if a jury finds a defendant not guilty, prosecutors are not allowed to appeal. I think this is basically correct because juries find reasonable doubt. Defendants should be found not guilty if reasonable doubt exists," said Shozaburo Ishida, one of Mainali's lawyers.
The Japan Federation of Bar Associations routinely urges prosecutors not to appeal, member Manabu Sasamori said.
The district court acquittal began looking proper when the results of a new DNA test conducted last July showed the semen found inside and on the woman was not that of Mainali.
Mainali has maintained his innocence and was convicted with vague evidence. He has been seeking a retrial since 2005.
Prosecutors reportedly found a sample of blood-type O saliva on the woman's chest, suggesting another man had been present in the apartment, but did not submit it as evidence in court. Mainali's blood type is B.
Information from Kyodo added
Sources: Japan Times and Asahi Shimbun
Why deport him if it's going to force you to go through the tedious process of extradition?