Between February and November of 2000, five patients being treated at a small private clinic on the northern edge of Sendai took sudden, serious turns for the worse. One of them, a woman, died. The other four survived. In January 2001 Miyagi Prefectural Police arrested Daisuke Mori, an assistant nurse who had left the clinic's staff a month earlier, and over the following four months prosecutors charged him, count by count, with all five. On March 30, 2004, the Sendai District Court found him guilty of one count of murder and four counts of attempted murder and sentenced him to life imprisonment.
He has denied every count since the third day of his detention. The Sendai High Court dismissed his appeal in 2006, the Supreme Court dismissed his final appeal in 2008, and the judgment became final on March 12 of that year. Since then the case has been fought in the narrower arena of Japan's retrial procedure, where his lawyers have argued that the scientific evidence at the core of the conviction was wrong and that at least one of the five patients was never the victim of a crime at all. The District Court refused his first request in 2014. On February 28, 2018, the Sendai High Court refused it again, in a thirty-page decision that took apart the defense's new evidence one piece at a time.
The clinic, in Sendai's Izumi Ward, had opened in 1991. It was a small institution that took in patients from young children to elderly adults.
Daisuke Mori was born on April 28, 1971, and lived in Miyagi Prefecture. He was a licensed assistant nurse. The clinic's founder recruited him himself, and Mori began work there in February 1999, at the age of twenty-seven. He stayed for almost two years.
The clinic did not outlast the case. It closed on March 10, 2001, two months after his arrest.
The five counts in the indictment covered patients who were being treated at the clinic between February 2 and November 24, 2000. Each was a separate offense, and each was tried as such. One patient, a woman, died; that count was charged as murder. The other four survived, and each of those counts was charged as attempted murder. The courts that later reviewed the case referred to the patients by letter, not by name.
One of the four survivors was a girl. Her case, an attempted murder dated October 31, 2000, became the one around which the whole prosecution turned. It was the event that first set the clinic's own leadership looking for a cause, and in the retrial proceedings years later it was the count the defense chose as its test case. The Sendai High Court called it the typical example of the offenses the trial court had found.
The clinic had seen a series of sudden deteriorations among its patients during 2000, children and elderly patients among them. In the weeks after October 31, the deputy director began to suspect that they were not natural. On November 8 she urged the founder to go to the police. He thought it too early: whatever pattern she saw was, as yet, circumstantial.
Over the next three weeks the concern hardened. On December 1, the founder took the matter to a forensic specialist at a university, and that specialist went to the First Investigation Division of the Miyagi Prefectural Police and reported the suspicion. On December 4, 2000, the founder had Mori resign from the clinic, effective that day.
The Miyagi police asked the scientific laboratory of the Osaka Prefectural Police to examine material connected with the five patients. Its findings would become the foundation of the prosecution.
On the morning of January 6, 2001, officers of the Miyagi Prefectural Police asked Mori to come to Izumi police station to answer questions about the girl. He went voluntarily. He was questioned through the day without a lawyer. Late that night he signed a statement admitting the allegation, and he was then arrested on a warrant issued by the Sendai District Court, on suspicion of attempted murder.
He saw a lawyer the next day. On January 9, 2001, he withdrew the statement and denied everything. He has maintained that position ever since, and he has said that the statement was produced by the pressure of that first day's questioning, not by anything he had done.
The case was then built in stages. Prosecutors brought charges on January 6 and January 26, on February 16, on March 9 and March 30, and finally on April 20, 2001. Mori was arrested afresh on each of those dates except the last. Through this period he was held in pretrial detention, and a court order barred him from contact with anyone other than his lawyers and, on two occasions in 2003, his family. The defense later said that the questioning after January 9 continued for about ten hours a day into the end of March and was hostile in tone. The Government of Japan answered that the arrests, the detention and the contact ban each complied with the Code of Criminal Procedure, and that the trial court had found the questioning lawful and that he had been told of his right to remain silent at the outset.
The final indictment brought the five patients together in one case: one count of murder and four of attempted murder.
Mori pleaded not guilty to all five counts before the Sendai District Court. His defense at trial was that no crime had taken place: that the patients' sudden deteriorations had medical explanations of their own and that the statement he signed on January 6 had been forced from him and was worthless.
The prosecution answered on two fronts. The first was the scientific evidence from the Osaka laboratory, presented in court by the analyst who had carried out the work. The second was medical testimony from specialists, among them a university professor called by the prosecution, who told the court that what had happened to each patient was consistent with the prosecution's account and was not explained by any illness.
On March 30, 2004, the court delivered its judgment, a document of 426 pages. It found Mori guilty on all five counts and sentenced him to life imprisonment. The court held that a crime had occurred in each case on two grounds read together: the scientific evidence, and the medical finding that what had happened to each patient fitted the prosecution's account while nothing else could explain it, or even leave a concrete possibility open. It found that he had acted with conditional intent to kill, the form of intent in Japanese law under which a person who accepts that death may follow from what he does is treated as intending it. He was thirty-two.
On the statement of January 6, the court ruled that the questioning had been lawful and that no facts had been established to show a forced confession. It did not, however, rest the conviction on the statement. In the account the Government of Japan later gave the United Nations, the court convicted on the other evidence and treated the statement only as corroboration of it.
Mori appealed to the Sendai High Court, which dismissed the appeal on March 22, 2006, and upheld the life sentence. He then appealed to the Supreme Court. On February 25, 2008, the Supreme Court dismissed that appeal, and on March 12, 2008, the judgment became final.
While the High Court appeal was still pending, a submission on his behalf went to the United Nations Working Group on Arbitrary Detention. The group sent the allegations to the Government of Japan on August 8, 2005. The submission set out the account of January 6, 2001, the questioning that followed his withdrawal of the statement, and the limits placed on his contact with family, and it argued that Japanese criminal justice relied too heavily on confessions. Japan replied twice, the second time on August 22, 2006, describing the charges, the stages of the prosecution, the length of the trial judgment and the legal basis for each step of his detention.
The Working Group adopted its opinion on November 21, 2006. It noted that the Government had not answered several of the specific points about how he had been questioned. It also noted that he had been without a lawyer for about a day before he withdrew his statement. But it held that international fair-trial standards do not expressly require a lawyer's presence during police questioning, and that the day without food and the conduct of a prosecutor that the submission described were not serious enough to render the trial unfair. It said that it was not an appeal court and could not reweigh the evidence. On the wider argument about the presumption of innocence, it observed that the submission itself conceded the evidence was not weak enough to annul the conviction on that ground, and it held that the principle of resolving doubt in the accused's favor is a rule for weighing evidence, not a guarantee that the fair-trial article of the International Covenant on Civil and Political Rights, to which Japan is a party, protects on its own. Its conclusion was a single sentence: the deprivation of liberty of Daisuke Mori was not arbitrary.
With the judgment final, the only route left was a retrial. In February 2012 Mori and his lawyers filed a request with the Sendai District Court under Article 435, item 6, of the Code of Criminal Procedure, which allows a retrial where clear evidence that would warrant an acquittal has been newly discovered.
The request carried five items of new evidence, grouped around three issues. The first issue was the reliability of the scientific evidence. Here the defense filed an opinion by a former university professor, who argued that the laboratory's method had rested on a false premise and could not show what the trial court had found, with supporting reference material. The second issue was the girl's case of October 31, 2000. A university professor and physician argued that her case had a natural cause; the defense also filed a statement that the prosecution's principal medical witness had given to prosecutors on January 22, 2001, before he testified. The third issue was Mori's own statement. A former university professor analyzed it from the standpoint of the psychology of testimony and argued that its contents showed he could not have been the person responsible.
In 2014 the Sendai District Court refused the request. It accepted that the scientific opinion was new but held that it was not clear evidence in the statutory sense, and it reached the same result on the reference work. It accepted that part of the medical opinion on the girl was new, held that none of it was clear evidence, and held that the 2001 statement was not new at all. It found the opinion on Mori's statement lacking in clarity. The defense lodged an immediate appeal with the Sendai High Court.
The appeal took almost four years. On the immediate appeal the defense narrowed its case to the two pieces of evidence it regarded as strongest: the scientific opinion and the medical opinion on the girl. It also put in thirteen supplementary briefs and further material. The prosecution answered with expert opinions of its own.
On February 28, 2018, the First Criminal Division of the Sendai High Court dismissed the immediate appeal.
On the scientific evidence, the court held that the defense expert had offered no theoretical basis for the conclusion that the laboratory's result was impossible, and that the grounds he did give were too thin to support so general a claim or to raise a reasonable doubt. The court held that his work could not displace the laboratory's, and it went further: even on the defense's own reading of the scientific evidence, it said, the result still pointed to the same conclusion. On either view, the court said, the trial court's finding that a crime had been committed against each patient stood.
On the girl's case, the court held that the physician's opinion added nothing that the trial had not already weighed. It worked from the same records that specialists for both sides had examined at trial, used the same method of reviewing them, and reached the same conclusion that another witness had already put to the trial court. The court added a passage on the nature of judicial fact-finding. A criminal court, it said, is establishing a historical fact about a past moment, which is a different task from a clinician's diagnosis made to guide treatment; to raise a reasonable doubt, an alternative explanation would have to be shown on clear and objective grounds, and that had not been done. It gave no weight to a paper on the case that the physician had published himself while acting for the defense, which it said could not count as independent confirmation of his view.
The court also refused the defense's applications to call the laboratory analyst as a witness and to order the prosecution to disclose further evidence. It found the meaning of the new evidence plain without more testimony, and it noted that the prosecution had offered to disclose material on the scientific issue voluntarily but had none in its possession.
The court summarized its own holding in one line: the lower court had been right to conclude that none of the new evidence was clear evidence warranting an acquittal under Article 435, item 6.
A request for a retrial in Japan goes first to the court that tried the case. If that court refuses it, the applicant may lodge an immediate appeal with the High Court and, after that, a special appeal to the Supreme Court. The test was stated by the Supreme Court's First Petty Bench in a decision of October 12, 1976. The question is not whether the court is convinced that the crime found in the final judgment did not happen. It is whether the new evidence, weighed together with all the evidence already in the record, gives reasonable grounds to doubt the factual findings of that judgment.
The Sendai High Court applied that test in Mori's case, and it also addressed what counts as new. An expert opinion, it held, is not new merely because a different expert has written it. It is new only if it reaches a different conclusion or rests on a different method or different underlying material, so that it is evidence the courts have not already weighed. Mori's lawyers had argued that the District Court's stricter view of novelty came from the period before the Supreme Court's decision of May 20, 1975, when retrials were rarely granted, and that evidence should count as new whenever no court had yet ruled on it. The High Court rejected the argument. Experts, it said, are interchangeable as sources of opinion, and what matters is whether the material itself is new to the courts, not whether the person presenting it is.
Mori denies every count. His lawyers argue that none of the five patients was the victim of a crime, that the scientific evidence was mistaken, that the girl's case had a natural cause, and that the statement of January 6, 2001, was the product of a single day's questioning without a lawyer. No court has accepted any of these arguments. The District Court, the High Court and the Supreme Court upheld the conviction, and the District Court and the High Court refused the first retrial request.
The statement of January 6 contained a motive. The trial court did not rest the conviction on the statement, and the motive given in it is not part of the court's findings.
Early public discussion of the case spoke of many more deteriorations at the clinic and of several deaths. None of that was charged. The conviction covers five patients and one death.
In 2012 Daisuke Mori was serving his life sentence in a prison in Chiba Prefecture. His conviction stands, and no court has ordered a retrial.
April 28, 1971: Daisuke Mori is born.
1991: The clinic opens in Izumi Ward, Sendai.
February 1999: Mori begins work at the clinic as an assistant nurse.
February 2 to November 24, 2000: The five offenses in the indictment.
October 31, 2000: The attempted murder of a girl, the count at the center of the later retrial request.
December 1, 2000: The suspicion is reported to the First Investigation Division of the Miyagi Prefectural Police.
December 4, 2000: Mori resigns from the clinic.
January 6, 2001: Mori signs a statement after a day of questioning and is arrested on suspicion of attempted murder.
January 9, 2001: He withdraws the statement and denies all the allegations.
January 26, February 16, March 9 and March 30, 2001: Further charges and arrests.
March 10, 2001: The clinic closes.
April 20, 2001: The last of the charges is brought.
March 30, 2004: The Sendai District Court sentences him to life imprisonment for one count of murder and four counts of attempted murder.
August 8, 2005: The UN Working Group on Arbitrary Detention sends the submission on his case to the Government of Japan.
March 22, 2006: The Sendai High Court dismisses his appeal.
November 21, 2006: The Working Group finds that his detention is not arbitrary.
February 25, 2008: The Supreme Court dismisses his final appeal.
March 12, 2008: The judgment becomes final.
February 2012: First retrial request filed with the Sendai District Court.
2014: The Sendai District Court refuses the request.
February 28, 2018: The Sendai High Court dismisses the immediate appeal.