An impassioned dispute over the access to less than a yen’s worth of electricity has pitched Carlos Ghosn’s former defence lawyer into a landmark constitutional clash with Japan’s justice system.
Takashi Takano said the legal battle symbolised Japan’s “crazy” prejudice against defence teams.
The spat began in a Yokohama courtroom in September when the presiding judge in a pre-trial hearing on a drugs smuggling case barred Takano from plugging his laptop into the room’s electricity socket.
The judge said the power belonged to the Japanese state and Takano, in acting for his client, was there in a private capacity. Takano protested, but to no avail, and has appealed to the High Court.
The judge’s socket prohibition, argued Takano, violated Japan’s constitutional guarantee of a citizen’s right to assistance by competent counsel — a clause that closely echoes the language of the Sixth Amendment of the US Constitution.
In the modern world, said Takano, a laptop was an essential part of a defence lawyer’s equipment and so the right to use it, with a cable if necessary, was protected.
But Takano’s argument takes the negative implications of the judge’s electricity ban even further. Defence lawyers, he said, should not be seen by the courts as acting in a wholly private capacity, but as a necessary part of the entire judicial system.
The fact that the judge made the distinction, he said, revealed a mindset that underpinned significant imbalances in a system weighed against defendants. Prosecutors, for example, are not obliged to share the full body of evidence with the defence.
“The language of the Japanese and US constitutions may sound the same on this matter, but the interpreted meaning is totally different,” said Takano, who fought for Ghosn to be granted the bail from which the former Nissan chair spectacularly escaped.
“This judge revealed a typical Japanese attitude in which they see criminal defence as a private matter and what we do as a private business. In reality, defence counsel is an essential part of the judicial system, but they don’t think that way.”
He added: “Defence lawyers are working for the wellbeing of the justice system — and the country — as a whole.”
Since blogging about the incident, Takano said he had received numerous accounts by other defence lawyers sharing similar experiences. In some cases, judges had ordered electricity sockets underneath the defence lawyers’ desks taped over to prevent use.
To confuse matters somewhat, the judge in Yokohama responded to Takano’s protest by extending the ban to the prosecutors, though it did not appear they were using laptops at the time.
Takano and other lawyers argue that the appearance of equality was a false one and further evidence of imbalance: because prosecutors have such a monopoly on evidence, they do not need to take such extensive notes in court.
Akira Kitani, a judge-turned-lawyer, questioned the decision to describe Takano’s defence activities as “private”. “In order to do a trial, having a lawyer is essential and that in itself is a public role,” he said. “It’s just embarrassing and a sign of how digitally backward the court system is.”
The Yokohama District Court confirmed to the Financial Times that it generally approved the use of courtroom electricity sockets when they were essential to a trial, but left individual judges to make decisions on a case-by-case basis.