A 20 year-old former tobishoku—a skilled construction worker somewhat similar to a “spiderman”—was brought before the Gifu District Court on charges of theft. The defendant was alleged to have gone on a two-day shoplifting spree, taking 229 manga comic books worth roughly 110,000 yen in order to repay loans and finance a marijuana habit. When the judge* asked, “Do you understand that marijuana is bad for your health?”, the defendant replied, “I don’t think it’s bad for my health. I did research on the Internet, and it said that marijuana was less harmful than tobacco and alcohol.” The judge responded to this in a voice that was audible to the three people who had come to watch the proceedings, “You’re being deceived, because you’re a fool (ばか).”
Leaving aside for the moment the undeniable fact that the defendant was a fool for challenging the judge, it is safe to say on the basis of 100% hearsay evidence—that marijuana is less harmful to the health of the user than tobacco and less harmful to everyone than alcohol—you rarely if ever hear of a marijuana-fueled shooting binge or a driver high on marijuana piling into a row of schoolchildren. I suspect that the Japanese media is aware that the defendant’s logic cannot be totally denied. It’s a debate that will start in earnest here in future years, as the U.S. and Western Europe gradually move towards further decriminalization. But I digress.
Asahi, Yomiuri, and Sankei have seized on this incident, considering the matter noteworthy enough to post on their websites, unusual treatment for such a trivial case not involving policemen, prosecutors, judges, other public servants, and educators. For the moment, they appear to be focusing on the fact that the judge called the defendant a fool, presumably a breach of decorum and detrimental to the court’s dignity. As evidence of this interpretation, unusually for a criminal case, the name of the defendant—not a minor—(as well as the judge’s) have been withheld from publication.
However, if the language went beyond the narrow, acceptable boundaries of behavior that the Japanese media demands of the judiciary, the sentiment itself was not unexpected, coming as it did in a criminal case. Various memoirs by ex-judges as well as more impersonal reports indicate that the judiciary shares a common belief that the role of the courts goes beyond upholding the law itself to restoring and improving the moral rectitude of society at large and specifically criminal miscreants. Thus, it is not that unusual for judges during the course of proceedings to admonish, chastise, or even commiserate with defendants for their admitted behavior and/or their lack/expressions/of remorse. This behavior reaches its peak in a guilty verdict and the concomitant sentencing, where the judge apparently feels a professional obligation to offer what amounts to a lengthy sermon to the understandably pensive defender. The verdict itself is typically studded with judgmental, exhortatory, and emotive language, such as “coldblooded” and “utterly depraved” nature of the crime and the “utterly depraved”, as well as the ubiquitous reference to the defendant’s sense of remorse or lack thereof.
It is important in this context to note that the degree of remorse expressed by the defendant through the course of the proceedings can materially and explicitly affect the severity of the eventual sentence. Thus, the comportment of the defendant with regard to this point may be more the outcome of self-interested calculations than any genuine change of heart. This process is not limited to the judiciary, but extends to the prosecutors—remember the Public Prosecutors Office’s near unlimited discretion over the decision to pursue a case in court—and the police, where intimations of severe sentences have apparently led on rare occasions to suspects confessing to crimes that they did not actually commit.
All the more astounding then, to find the defendant in this case ambushing the judge on what was only a little more than a rhetorical question (as a clever schoolboy would have ambushed his schoolmaster upon being told that he would suffer brain damage if he continued to indulge himself). His rash action certainly did not help him in the criminal proceedings, but it did get him case (if not his name) in the papers.
* In Japan, there are no juries. Minor cases are presided over by a single judge; more serious cases require three judges, with a majority required to convict. Starting this July, laypersons will join the judge of judges in sitting on cases and deciding the verdict and sentence if required.