| The
"Enzai (False Charge) - Kabutoyama Case" Chapter II The "Kabutoyama Case" - What was Disputed? |
Chapter II The "Kabutoyama Case" -- What was Disputed?
II-1. Evidences and the Prosecutors' Scenario
The proceeding starts. People focus attention on how the prosecutors could
demonstrate the "motive" as they themselves once conceded that
Yamada has no motive of murder. The prosecution argues as follows in the
opening statement.
<On March 17, Yamada went out to the back of Aoba Dormitory to look
for Mitsuko who had not shown up in cafeteria even at suppertime. She saw
Mitsuko playing on the septic tank. When Yamada called out "Mitsuko",
the girl fell into the tank through the open cover of the manhole. Yamada
got so upset, too much confused to rescue the girl, and left the scene
after replacing the cover on the manhole. Since she was the only responsible
staff member on duty when the child turned up missing, she was afraid that
she would be doubted about the missing girl. She thought she could evade
suspicion if another child mysteriously disappear when someone else is
on duty. So she planned to take out and kill another resident and fake
it to be another case of disappearance. >
It seems that a strange inference somehow occurred to the prosecutors'
mind that the earlier death of Mitsuko had motivated Yamada to murder Satoru
later on.
Furthermore, they account for how the crime was committed:
<Around eight o'clock on March 19, Yamada entered the girl's building
of Aoba dormitory. Roaming to mark a child suitable for a victim, she found
Satoru playing in the room Sakura. Yamada called out Satoru, "Come
here Satoru". They walked together down the corridor and reached the
emergency exit, where she opened the door with the master key she carried
with her. Seeing this, Satoru crouched down, so Yamada tried to raise by
holding him under their arms. Satoru violently resisted crying out "Ah,
ah" in an angry voice. He squatted down and attempted to escape by
crawling away. About ten meters away, Yamada caught up with Satoru and
grabbed him by both legs and dragged him back toward the door. She then
took him outside and locked the door again with her master key. She picked
him up and carried to the manhole. Once setting Satoru down, she opened
the cover of the manhole (as heavy as 17 kg) and again picked him up under
arms and dropped him into the tank legs first.>
While this argument of her killing actions seems unrealistic enough, her
"motive" is utterly beyond sense. In order to cover up an accidental
death by negligence, who could commit another murder that will no doubt
invite more suspicion and more jeopardy? Such a motive is astoundingly
unnatural and illogical. Presume that Yamada wanted to conceal her negligence
in rescuing Mitsuko as insisted by the prosecution, what would she have
done? Mitsuko already turned up missing and the effort for searching her
extended beyond the premises of school. She must have been feared for discovery
of Mitsuko's body more than anything else. Necessity of cover-up would
be felt only after discovery of her body. Throwing Satoru into the same
tank could be much less the fake of an accidental death because Mitsuko's
body would be discovered at the same time.
The fact is that this story is exactly the same as the false confession
that was extracted from Yamada at her first arrest in 1974. The confession
was a direct result from coercing, leading and fishing questions by the
investigators who were struggling for the difficult task to find her guilty.
Later on, the prosecutors decided to drop this case due to lack of motive
because "this cannot be a confession of her motive".
In addition, the assumption that she took Satoru out around eight o'clock
is quite irrational, no, simply impossible. This time is bedtime for younger
children under 12. A number of children would hang in the dormitory for
changing, tooth-brushing and toileting. Two staff members on duty would
hastily move around to help them go to bed, check the bedroom condition,
collect and put into order the underwear they took off, etc. It is totally
impossible to take the child out without being seen by anybody during this
period of time. Everyone working at Kabutoyama Gakuen, like Yamada herself,
is too well familiar with this situation. If Yamada were the real murderer,
she would never choose this particular time for acting it out.
What is the framework of evidence that sustains this "fictional scenario"
of the prosecution?
As will be discussed in more detail, this framework is basically built
up of the eye- witnesses of the resident A and additionally introduced
four other residents. This is reinforced by Yamada's "confessions"
at her first arrest and the lab test report on "fiber threads found
on the both parties' clothes" as the only alleged physical evidence.
(The subject of fiber threads on the both parties' clothes will be further
discussed in Section II-6.)
This is all of what they call evidences linked with the case. The prosecution
has presented numerous witnesses and evidences in the series of trials,
but most of them are circumstantial ones that are far away from proving
the crime. The prosecutors themselves conceded before the court: "There
is no direct evidences available in this case. We have no way other than
gathering indirect evidences."
II-2. "New Witnesses" Presented Three Years
Later
The prosecution starts re-investigation upon receipt of the decision (Oct.
1995) of "Non-indictment unjustifiable" by the Prosecution Review
Commission. Their efforts are now focused on eyewitnesses to be obtained
from several residents. They had witnesses only from resident A at the
time of first investigation and first arrest. In the course of this secondary
investigation, however, they obtain "new witnesses" from four
additional residents.
Calling the total five residents A (girl), B(boy), C(boy), D(boy) and E
(girl), let us look over the details of their statements. Before doing
this, we have to be aware that police investigators questioned each of
the former residents more than a dozen of times, with the resulting examination
records varying in details from time to time. Some of their statements
are largely inconsistent between those made at police and their testimonies
given at some closed trial sessions. Furthermore, it is marked that some
of their statements given during cross-examination of defense counsels
reveal indescribable confusion. In fact, it is rather difficult to identify
what is the certified statement of a particular child. Now let us introduce
some of their statements below which are mostly excerpts from police's
examination records. The statements of two children B (male 15) and D (male
15) seem to be merely a backup of those given by girl A and boy C, so we
omit this from the following discussion. (Residents' ages as of the day
when it happened)
A (female 11)
<Around half past seven, I returned from day room to my own Sakura room.
Satoru was there playing with my roommate S. I changed to pajama and got
into futon. D came to call Satoru, but Satoru didn't go. Then, Miss Yamada
came from the day room and called, "Come here, Satoru". She took
him out of the room. I closed my eyes facing the corridor, but I heard
her voice and footsteps. When Satoru left the room, I got up and closed
the door. At that time, I saw Miss Yamda behind Satoru in line walking
down the corridor toward the emergency exit."
The police obtained this statement prior to the first arrest. However,
this kind of scenes that a teacher takes a child out calling "Come
here" are just everyday scenes in the school. The prosecutors who
decided to drop the case referred to this statement as "we cannot
identify this scene as happened on 19th."
C (male 12) states as follows in his "final" statement.
<Before eight o'clock, an animation TV program we were watching in the
day room was finished. TV turned off (by the teacher on duty), so I went
to toilet. When I left toilet, I met D. D came to take Satoru back to his
room, and asked me to get Satoru out. When I went to the teacher's room
in girl's wing to get Satoru, I saw Miss Yamada and Satoru across the room
Botan walking down the corridor toward the emergency exit. Miss Yamada
seemed pushing Satoru on his shoulders. I was frightened to see them. So
I went into toilet of the girl's wing and had a peep toward them. Satoru
was crouched down at the emergency exit. Miss Yamada was trying to raise
him, but he pretended to throw a stone and resisted crying "Ah, ah".
Satoru squatted down crawling to the room Rose. Then Miss Yamada walked
up and grabbed him by legs and dragged away to the exit. When Miss Yamada
released Satoru's one leg, he kicked at her face with this leg. I saw her
face. I'm sure it is Miss Yamada. She was in red turtle sweater and black
coat on it. She dragged Satoru out of the exit and closed the door. I went
to the door and touched it but I could not open it. So I climbed up on
the washstand in the girl's wing and looked at the back of Aoba Dorm through
the window, but saw nothing because it was dark. When the teacher on duty
came to look for Satoru, I said I don't know. I was afraid, if I tell her
what I saw, I may be treated like Satoru.>
This is the eyewitness that emerged for the first time three years and
two months after Satoru's death. It is apparent that the dramatic story
mentioned in the prosecution's opening statement is derived from this statement
by C.
E (female 15) states at the police as follows.
<We (older children) got a snack of chocolate (from the teacher on duty).
When I was watching some singing program on TV eating chocolate, I saw
Miss Yamada. She was in front of the teachers' room in the girl's wing
and walked away from the day room. When I went to girl's toilet, I saw
Miss Yamada with Satoru on the corridor across the room "Botan".
C was in the toilet."
Despite this written statement made at police, she refused to speak any
word of such statement and remains silent at the court session. Instead,
she begins talking about the facts about Mitsuko's death that has never
been told before. Details of this witness regarding Mitsuko's death will
be given in Section II-7 "A fiction of Murder Case".
The five children were questioned over three to four years more than twenty
times, resulting in numerous written statements and examination records
dictated by police investigators. Although not all of them have been disclosed
to the defense, only those presented at trials number in nearly 100 which
include 22 from A, 25 from C and 24 from E. Reviewing this enormous volume
of documents obtained from five children, we see there an appalling extent
of transformations, variations and mutual conflicts. At this stage, there
were obviously few statements among them that were in line with the script
possibly written by the prosecution. Notwithstanding, this immense volume
of records containing that much discrepancy and inconsistency are miraculously
knit up together into a single web of stories in the elapse of four years.
A total perfect coincidence is eventually reached by these innumerable
fragments of facts and stories. .
The prosecution ascribes the emergence of these "new witnesses"
past more than three years to the staff members' attempt to keep the children
in silence. However, the prosecution is by no means able to provide evidence
or proof of who made this attempt when, where and in what circumstance.
Yet everyone will duly wonder why such important "eye-witnesses"
come to the surface after more than three years passed. This question of
"why over three years?" will be answered perhaps by having a
look at how often the residents were questioned in the meantime and how
enormous the volume of examination records turns out to be. The fact is
not that these statements suddenly emerged after three to four years, but
that they needed to spend these years to fabricate their "witnesses".
Is it not the only way we can reasonably interpret this bizarreness?
II-3. Does the Children's Testimony Tell You the Truth?
Already on the next day of Satoru's death, police questioned the staff
members and children at school. The result of this questioning has never
been presented in trial sessions, though. This implies that the prosecution
obtained no significant information in favor of them on the very day when
the people had the clearest memory. Despite this, in the course of four
years, fragments of vague and unidentified memory have been converged on
one single scheme in line with a particular scenario. This process forms
a crux of the issue of residents' witnesses. Looking into their statements
makes us aware of several grave problems. First of all, is the witness
truly concerned with memory of March 19, the day when Satoru was killed
?
As long as we see from the finalized statements, it seems that the time
and place are roughly identified as about eight o'clock in the evening
and the day room. However, once you review the individual statements chronologically,
it is obvious to anyone that, as months and years go by, the day and time
have been more and more identified and specified.
For instance in the statements by E, there was no "eye-witnessing
Yamada" in the beginning. Some time later, she says, "I saw Miss
Yamada", but it was still "before Satoru's disappearance".
According to her statement one month later, it was "while she was
watching a song program on TV." When the investigator gets to know
that a teacher on duty gave chocolate only to older children past eight,
he asks E if she saw Yamada before she got chocolate or after that. The
answer at that time is "I don't know". It is then changed to
"I saw Miss Yamada while I was eating chocolate" in her statement
made on the next day. Another month later, she says, "I saw teachers
looking for Satoru when I finished eating chocolate." Fragments are
gradually patched up together to a particular time and place.
It is totally against the law of memory that the children happen to recall
very commonplace scenes (A recalls Yamada taking Satoru out and E recalls
Yamada coming to the day room) many weeks and months later. It seems that
the children anyhow do not recognize that they are being questioned about
what happened in the particular evening of 19th. One thing; everyday scenes
with no particular date marked and the other; their own experiences flowing
in temporal sequence are mixed up together with no distinct demarcation
in their mind. The whole set of their statements is more or less like an
artwork created by cutting some pieces out of children's daily life scenes
and patching them together to the shape of the preoccupation or written
script of the police and prosecution.
Witness examination of the former school residents, which takes place before
a closed court, begins with trouble already at the scheduled examination
in chief of resident A. Since the prosecutors are unable to get their planned
statement from her, they decide to carry it over to the second session.
Thereafter, 5 sessions are held for examinations in chief and 11 for cross-examinations,
spending nearly three years.
The children, except for E, at large sustain coherent statements during
the prosecution's examinations in chief. They manage to give generally
smooth responses to the questions. Once the cross-examination opens, however,
most of their answers are like "I don't know" or "I'm not
sure". In case of D for instance, to 260 questions in the examination
in chief, he answered "I don't know" only six times accounting
for 2.3 %. In contrast, his I-don't-know answers soared to 469 to 935 questions
in cross-examinations (as much as 50.1 % !).
Even to the same question as asked in an examination in chief, they admit
that they are not sure of answer when the expression or sequence of the
questions are different than before. It is not that they do not understand
the meaning of the question, but that they seem unsure of answering the
question they were never asked. This implies that their statements are
only a reproduction of questions and answers rehearsed by the prosecutors,
instead of being those derived from his own memory. The children make sure
of the fact that the prosecutors rehearsed for answering on the day before
the trial session for witness examination. This is the reason why they
are so confused and have no way to answer when asked any question other
than planned.
Another notable feature of these residents' statements is that they give
two or more different, often conflicting answers to one and the same question.
Telling a lie means consciously falsifying what one has in clear memory.
If the residents have no definite memory other than images built by investigators'
fishing and leading, it is no wonder that they are totally unconscious
of their own lies and contradictory explanation, because they are unable
to distinguish their statements from their own memory. The children insist
that they are not lying despite their conflicting statements. This fact
already indicates that they have lost clear memory of reality.
The highlight of the former residents' statements is obviously those made
by the boy C. As long as we can see from the examination records, he was
questioned since immediately after his schoolmates' deaths four times in
1974 and three times in 1975. In the meantime, he has never told anyone
of police, staff members and his parents anything concerned with this subject.
In May 1977, however, he begins to make detailed "new statements"
all of a sudden. Henceforth, there are numerous statements given by him,
which eventually lead to the court testimony. We see in them not only an
unmistakable fallacy but also unique traits and features of his attitude
in making statements.
One such feature is his tendency to give too much detail about everything.
It is seen not only in the essential part of his eyewitnesses but in peripheral,
commonplace matters. For instance, when he is asked what he ate for supper
on that March 19, he gives an answer that it is hashed beef with rice and
rolled vegetable, which is far distant from the truth of course.
It is impossible for anyone to remember such daily trivial things after
several years. In this case, it is rather difficult to imagine that the
investigators led these answers. This must be his own fiction. There are
many other pieces of statement in which he plausibly talks about a scene
where he has never been present. He has some ability to "make stories",
so, once asked a question, he cannot help giving an answer that could never
be given in a logical context. There is no definite line dividing between
imagination and actual experiences. Yet he is not conscious of this mixing-up
on his own. He does not recognize any incoherence of his statement even
if he tells a lie or a mere fancy in spite of himself. He by no means feels
guilty of his deception when he says, "I don't know him, I've never
even seen him" about an investigator who has been in close touch with
the boy during examination for many months.
For instance, take a look at his explanations: "Seeing Miss Yamada
and Satoru together, I was frightened and hid myself in the girl's toilet",
or that he was constantly trying to peep at the backyard of Aoba dorm where
the septic tank is located. They can scarcely be based on firm personal
memory. There is no other reasonable interpretation than that he made up
a story out of some pieces of hindsight information.
Further regarding his explanation that when the male teacher on duty came
to him asking for Satoru, "I said I don't know, because I was afraid
I may be treated like Satoru if I tell him what I saw", the fallacy
is sheer palpable. The entire story comes from ex-post-facto information
that Satoru's body was discovered in the septic tank back of Aoba dorm.
It expresses not merely his psychological reaction of "feeling frightened".
The eyewitnesses of this boy are essentially constituted by such real actions
@as "I hid myself in the toilet", "I had a peep toward
the tank beyond the washstand" and "I said I don't know Satoru".
Now that his witnessing acts found to be fictional, we have to point out
that "what he had witnessed" is stripped of any prerequisite
for the truth.
His statement appears so shaky even in the core part of the occurrence.
If the scene where Yamada took Satoru out actually happened and if C really
witnessed this, kept this in his memory and confessed it three years later,
an unchangeable image of the scene must be firmly settled in his memory
during these years. This is of course the natural way to understand the
process.
Human memory tends to be lost or changed to the greatest extent for some
time immediately after the occurrence. Past that length of time, the memory
is less subject to change and is more firmly settled in mind. Especially
when the memory is confined to one's mind without being exposed to anyone
else, it tends to be more securely settled in brain. Against this law of
memory, C's statements drastically change within a span of few days. For
instance, such an impressive and most likely unforgettable scene as "crawling
away" emerges only in a considerably later statement. Besides, the
actions such as "she opened the door", "he resisted crying
"Ah, ah" and "he squatted down" vary in sequence of
occurrence from statement to statement.
Such variations could not be the result from any correction the boy made
to his own memory. The changes were made just because his memory was in
conflict with those of other children. Later on, in fact, his statement
gains an amazing coherence with others'. B's witness is changed to coincide
with the C's new statement. Boy D and girl E then begin to make sure of
eye-witnessing the same scene as if induced by C's statement.
Here we unmistakably see the directionality intended by the examiners.
The prosecution assigns some psychologists and psychiatrists to make experts'
analysis reports on their statements, especially those of A and C. Let
us briefly mention their conclusions that we believe are totally ill grounded.
1. Inconsistencies and fluctuations are unavoidable because they are "mentally
retarded".
2. The "mentally retarded" lack comprehension and memory of abstract
matters they have not experienced on their own. They are unable to state
out of memory what they have been taught by others.
3. The "mentally retarded" are unable to invent anything that
does not exist in their memory.
These experts' examination reports essentially rely on some neither identified
nor verified natures specific to the "mentally retarded". They
confine the "mentally retarded" to a single narrow category without
trying to find their individual personalities and diversities. Besides,
they provide no single observation on the conversational exchange between
the examiners and the residents and resultant changes in children's psychology
that should be the crucial part of the case.
Unfortunately, there is a hidden prejudice in our society against such
children and therefore their statements, with which they are regarded as
special and different from us "normal" people. It seems that
the prosecution takes advantage of this prejudice to convince the judge
in favor of their cause.
We have attempted to understand the school residents' statements not as
those of the "mentally retarded or deficient" children in general
but as those given by ordinary eyewitnesses with their own personalities
and traits. For example, as for Item 1 "such flip-flops is unavoidable",
we contend that there must be their own reason for varying statements.
So, the truth of a particular statement cannot be discovered without exploring
for the reason of such changes.
It will also be apparent from our concrete analysis above that there is
some basic misconception with Item 2 "they cannot state such things
even if led by investigators" and Item 3 "they cannot make up
stories". People, whether "normal" or "mentally retarded",
capture things outside the sphere of their direct experiences, as long
as they have language and communicate with others in it. The children having
command of language sometimes go into the world of imagination and create
a story in their mind. Despite the argument of the examination report that
they have no comprehension or memory of abstract matters, the children
are able to express something they haven't directly experienced with their
own concepts = language, as long as it concerns actual things, persons
and places. In other words, they are capable of making a story based on
questioners' hints or suggestions about the daily scenes of which they
have their own images.
The fragments of the children's daily life scenes have assumed the shape
drawn by the police and prosecution as if iron particles scattered over
a wider area are attracted to a spot of strong magnetic field. This is
no doubt the way the eyewitnesses of the former Kabutoyama Gakuen residents
have been formed. If the children had had a power stored in them to resist
this, they could have freed themselves from the coercing force of the police
and proescution. However, the children have been mentally constrained in
a socially isolated institution under the name of protection. This has
deprived them of some freedom of access to reality and self-accountability.
In this circumstance, it is difficult for them to establish self-identity
and independent personality. Harassing involvement of the children into
this mess of trials might be the third tragedy of this trial case following
the first, Mitsuko's and Satoru's deaths and the second the false charge
against Yamada.
II-4. Credibility of the Residents' Witnesses
The witness statements are evaluated and judged as follows in the two non-guilty
decisions.
First of all regarding the statement of C:
<There are a number of untruthful, unnatural, incomprehensible and inconsistent
elements seen in the statements of the witness C. The way he bears witness
is also very confusing. Naming some examples of his unique attitude, he
gives different answers to the same question when asked by different persons
or at different times; he gives conflicting answers to the same question
when it is expressed in different ways; he somehow responds to any kind
of question, hardly ever admitting that he does not know or cannot remember
even about the things that can never be known to him or remembered by him
in the given circumstance. It is therefore difficult to judge what part
of his statement bears credibility merely from his testimony before the
court. Also, it is not likely at all that there is some credibility in
his eyewitnesses stated in the prosecutions examination in chief.>
< There are a number of untruthful, unnatural, incomprehensible and
inconsistent elements seen in the statements of the witness C. Credibility
of the latter is therefore largely questionable. Furthermore, the points
of his statement including witnesses mentioned by the prosecution as credible
are mostly questionable or ungrounded. Especially, the fact that he took
three years after the incident to begin stating about the scenes witnessed
by him and the details of those statements are largely questionable and
unnatural. After all, we cannot but conclude that the statement of C offers
no credibility. > (from the decision by the remand trial)
Regarding the statement by A
<The statement of A contains the eyewitness contended by the prosecution
in their examination in chief. However, in view of the way it was obtained
and the way A made statement in the cross-examination, we have to point
out that the statement is regarded as questionable in terms of credibility.
Furthermore, the eyewitnesses of A including those given in the course
of examination show a possibility that they were given referring to the
occurrence on some other day. Also, there are some influences from the
investigators, unignorable fluctuations and other dubious points recognized
in her further statements. We therefore conclude that the statements of
C are incredible.> (from the decision by the remand trial)
Regarding the statement by E
<Regarding the statement of E, we are able to point out the following
problems. There is no phrase sustaining the prosecution's contention in
her statement. In the statements given in the examination process, it is
generally questionable whether E was truly recalling her memory when speaking
to the investigators. The witness that she saw the defendant twice lacks
concreteness and reality and therefore credibility. Although the witness
that she saw the defendant anyway also seems incredible, it has coherence
to a certain extent. And in view of where she was in the evening, she might
have a memory of the defendant coming to Aoba dorm searching for Satoru.
Although her memory is not clear enough, she probably made the statement
as above because she thought she witnessed the defendant anyway. Her statement
that she witnessed C is obviously unnatural and incredible. We therefore
conclude that the statement contended by the prosecution is not credible.>
(from the decision by the remand trial)
The remand trial decision gives general findings about the residents' witnesses
and testimony as follows.
1. None of the residents mentioned anything linked with their later-coming
witness statements when the teachers on duty came looking for Satoru.
2. The prosecution's allegation on teachers' efforts to keep the residents
in silence for cover-up of evidence is not justifiable.
3. The residents' first witness statements are only those made to the police
investigators.
4. Their statements are hardly concerned with their mutual relationship
and totally lack the backup of statements made by the teachers and instructors
on duty.
As discussed above, their statements are devoid of any reference to their
mutual relationship and any support by the statement of staff members.
We therefore conclude that all the points above make us doubtful of credibility
of the residents' statements.
II-5. Her confession is No Truth
We have mentioned in Section I-4 the process Yamada has undergone until
she reaches her "false confession". When looking over her confession
records, we can never find out the truth merely from the surface of the
text. It is necessary to read her psychological condition that drives her
toward confession. We have to note her deep grief for the miserable death
of Mitsuko she was in charge of as well as a sense of responsibility for
the incident repeatedly expressed in her statements. Police investigators
use and abuse this strong sense of responsibility to lead her confession,
and the prosecution takes advantage of it to write a fictional scenario
for her motive to kill Satoru.
Was it then possible for the court judges to correctly read the truth from
her "false confession" ? The court decisions rule as follows
with reference to her "confession" records.
<I am thinking over and over again, but I feel too much disturbed to
recall anything exactly. I had said that when Principal left school in
the evening of 19th, I went to Aoba dorm to use the toilet there. But if
I had entered the dorm through the front door, the children must have immediately
recognized me and called out, "Miss Yamada, Miss Etsuko." It
means that I hadn't entered Aoba Dorm through the front door to use the
toilet. I cannot recall if I had come into the dorm through any other entrance,
no matter how hard I try to remember. This time of about 15 minutes totally
slips from my memory. It seems about the time when Satoru was taken out.
A number of things thought over, it seems to me that I happened to kill
Satoru unconsciously.
Children are naive and pure-hearted. I don't believe they could tell a
lie. If some of them saw me taking him out, it could be the truth. In view
of such things, I suppose I did it in spite of myself. If I had been conscious
enough then and had really killed him, I must have honestly told you the
truth, but I really cannot recall with all my efforts. I have never been
forgetful of things before. Nor do I remember that I have been laughed
at by others because of bizarre behaviors. I have never been hospitalized
before." (from the police examiners' record dated April 14, 1974)
Confessions and denials are alternated as summarized below. After the statement
given above, she officially confesses her crime for the first time in the
evening of April 17. This confession however contains only the phrases:
"It is truly me who killed Mitsuko and Satoru by dropping them into
the manhole." It is only a simple outline with no reference at all
to her real actions or motives for killing. Also, it is worth noting that
unlike her later confessions, she confesses here the murder of Mitsuko
as well.
In a police record on the next 18th, she states about how she entered Aoba
dorm and called out Satoru taking him out of the emergency exit. However,
it is only a rough sketch and her words are quite unclear as she says,
"I don't remember", "I just vaguely remember" or "I
cannot be totally sure". In fact, she was this morning denying her
confession made on the previous day, so this confession again overturns
her proximate denial. Despite this fact, the record has no reference to
why and how these denials and confessions took place one immediately after
another.
The confession record on the next 19th is focused on Mitsuko's death on
17th, which is allegedly linked with her motive of killing Satoru. The
facts about murdering Satoru are merely outlined as in the 19th record,
but here is no ambiguous expression with everything stated with considerable
affirmation. And in the morning of this 19th, she again reverses her confession
on the previous day to denial, and then again begins to confess. Although
she was supposed to explain her motive in this statement, she had so far
refused to confess, she only briefly says, "I recalled many things,
so I'll tell you them." There is none of expected statement of why
and how she repeated denial and confession again.
In the police record of April 20, then, she confesses her motive and gives
some more detail about the incident after 7:30 in the 19th evening. Yet
as to what happened after she stepped into Aoba dorm, there are more guessing
expressions such as "I supposec" . With regard to the scene
on the septic tank, she says, "This was anyhow a horrible thing to
do, so I cannot clearly recall details about this circumstance."
In the final record on April 21, she speaks about serving oranges and the
child A in the room "Sakura", but the expressions are still not
quite assuring, often headed by "I suppose c"
As seen from the discussion above, the statement in the five confession
records is merely generic and fragmentary with many unassuring expressions.
Furthermore, her statements do not reveal any reason why she has begun
to confess, that could be usually explained when a suspect who has kept
denying begins to confess, besides lacking explanation of a convincing
motive and vivid reality of the crime.
<They have kept records of the defendant's confession, but not from
the beginning stage since her arrest. In addition, confessions and denials
take place alternately in a span of only few days since her first confession.
From the sixth day of the first confession, however, she turns to denial
and eventually persists in denying. The statements of her confession are
merely generic and fragmentary with many unassuring expressions. Furthermore,
they do not reveal any reason why she has begun to confess, that could
be usually explained when a suspect who has kept denying begins to confess.
Besides they lack explanation of a convincing motive and vivid reality
of the crime. These confession records therefore largely lack credibility.
Although the prosecution contends for credibility of the confessions in
view of their content and the circumstance where they were stated, they
fail to provide the defendant's confessions with positive grounds or reasons
for credibility. Also, the defendant's excuse for her coming to confess
seems not totally rejectable. In view of these observations, we are unable
to recognize credibility of the defendant's confessions.> (From the
decision by the remand trial court)
II-6. Physical Evidence -- Adhesion of Fiber Threads
to the Each Other's Clothing
In the Kabutoyama case, there is virtually no physical or objective evidence
that links Yamada with the crime. If she had murdered the boy as contended
by the prosecution, there must have been numerous physical evidences such
as her fingerprints on the door knob, her footprints on the floors of the
rooms and corridor of the girl's building where she had allegedly entered
with her shoes on, her footprints around the septic tank, her fingerprints
on the manhole lid, and an analysis report of the soil attached to the
sole of Satoru's shoes, and so forth. If she had truly dropped Satoru into
the manhole, some splatter of drain water must have been on her coat (on-the-spot
tests showed that drain water splattered), yet there are none such evidences
presented.
If the police had been sure of a school's inside murderer in an early stage
as admitted by themselves, this lack of direct evidences must be a straightforward
proof of her innocence, rather than blunders in their investigation.
There is only one evidence that can be named physical among those presented
by the prosecution. It is a lab test report on fiber threads. Police insists
that they found some threads of fiber on each other's clothing, "that
is, the fiber thread of Yamada's black coat and Satoru's blue sweater that
were attached to the other party's clothing during some time between their
going out of the emergency exit and Yamada's picking Satoru up and dropping
him into the tank" (according to the prosecutors' arraignment). The
"lab report on identity of the fibers" is thus presented as an
evidence. At the same time, the prosecution contends that there was no
other chance for such fibers to be attached to each other's closing than
during murdering Satoru.
The expert witnesses for the prosecution assure the court that the fiber
threads closely resemble those of the respective clothes in color and material.
Despite this, the cross examination makes them admit uncertainty and limitation
of their lab analysis. They say, "Specimens are too few to make sure
of 100 percent identity" and "there is an undeniable possibility
that the threads might be those of someone else's clothes as their clothes
are made of fibers and dying materials widely available in the market."
Three other problems also come to the surface in the course of trial. One
is that there must be so many fiber threads attached to the both clothes.
The police picked only those that appeared to their naked eyes to belong
to other party's clothes out of those numerous fiber threads and sent them
to lab analysis as specimens. This is a sheer arbitrary process, as they
should have tested all the threads attached to their clothes. The second
problem is whether the method of sampling the attached fibers is really
appropriate. They say that the threads were picked up by pressing a vinyl
adhesive tape to the clothes. This method is very likely to pluck out the
fibers of the clothes themselves besides the threads attached to them.
It is very questionable whether the police was equipped with the system
and ability to strictly distinguish between the two types of fiber threads.
Third, the way the clothes are stored and secured as evidence has been
dreadfully crude. When the Satoru's body was dragged out of the tank, his
clothes were carefully washed to rinse the filth off. Some examiners were
carrying Satoru's clothes with them to show the children. An examiner even
took Yamada's coat home. The clothes were sent out to analysis after all
these had happened.
There is another big problem. Even if the fiber threads attached to each
other's clothes are proved identical, it could not form an evidence unless
it is proved that there was absolutely no other chance of thread sticking
than at the time of alleged murdering. The prosecution argues: "Yamada's
coat was purchased two years ago. She had this coat on 19th when Satoru
was killed because she was off duty then. The staff members of school are
in uniform when they are teaching and caring for the children in school.
So Yamada had no opportunity other than at the point of crime to come close
to the children with her private coat on."
If this were a passerby killer's case, there may be no chance for the criminal
and the victim to meet with each other at some other time than in killing.
However, it is impossible for the staff members of such a caring institution
to avoid involvement with the residents just because they are dressed in
private. The school is a living place for the children and the staff members
caring for them cannot go without being privately involved with the children's
life. In fact, Yamada occasionally invited some children to her apartment
room and let them stay overnight.
This lab analysis report of fiber threads is by no means worth the name
of scientific analysis. Not only that, by using this report as an evidence,
they neglect the way the staff of a caring facility is tied with its residents.
This can never be a decisive evidence.
The two non-guilty decisions rule this subject of fiber threads as follows.
<It seems apparent that these clothes were occasionally taken out of
storage by the examiners. Considering that detection of the fiber threads
as specimen of analysis was accomplished seven months after the incident,
there is an undeniable possibility that the clothes were brought into contact
with each other in the meantime. This report is therefore questionable
in terms of its value as an expert's examination reference.>
<Above all, there is no clear explanation, in what case and in what
form the fiber threads of one clothing are attached to the other. Besides,
the threads allegedly attached to the clothing are as minute as one on
Satoru's sweater, one on his trousers and two on the defendant's coat.
The lab reports merely state that they "closely resemble" or
just "resemble", so that they are scarcely significant as circumstantial
evidence.>
II-7 Murder Case in Fiction - Exploring the Truth
It is a fact beyond doubt that Mitsuko died by falling in the septic tank
some time between the end of snack time and suppertime on March 17, 1974.
However, there was initially no eyewitness about this fall of Mitsuko.
Only one witness of the drop scene was given in Yamada's "confession"
as part of her motive in a notably unnatural narrative.
The truth of Mitsuko's death has remained in the darkness for almost three
years. The truth even police examiners dared not question now begins to
come from E's mouth as if squeezed out. She starts to talk about it in
June 1977 before the investigators and has disclosed more and more of her
involvement in Mitsuko's death in her following four statements. The profile
of her series of statements was at large established with her testimony
before the court in May 1980.
"After snack, five people I, Satoru, Mitsuko, F (male resident), G
(female resident, 24) were playing near the septic tank. It's me who opened
the cover of manhole. I opened the cover a little, then moved it to the
side and made it full open. I pulled Mitsuko' hand, and she fell. She fell
with feet first. Water inside splattered up a little. Piss and dirty things
are inside. Mitsuko was wallowing in water. I saw a little of her hair
and dress. It's me who replaced the cover. Miss Yamada was not there."
Is this statement true? If so, it will topple the Kabutoyama case from
the ground up. Police examiners and prosecutors have neither predicted
nor expected this E's witness. The residents' "new witnesses"
so far reviewed are all those shaped along the investigators' theory. They
strongly suggest a possibility that investigators' leading largely influenced
the statements. In contrast, those of E rather conflict with the police's
and prosecution's scenario. There seems to be little room for their leading
or suggestion in that sense.
While other residents' statements are those of mere eyewitnesses, E's statements
about Mitsuko's fall are those of actions which closely involve her own
body motions. Visual memory is mostly indefinite and as such gives more
room for examiners' leading. On the other hand, physical memory of a scene
where one has been physically actively involved more firmly settles in
one's mind as the significance of the particular body motion is hardly
lost in one's memory.
E's statements exhibit "vivid reality of witnesses" just because
they are about physical actions. As for the statements made by C, the prosecution
contends that they exhibit a "vivid reality of witnesses" that
can be derived only from actual experiences and are too complicated to
be invented by C himself. However, there is a distinct difference between
the statements of C and those of E. The witnesses of C certainly seem complex
in somewhat dramatic composition, but all of their components directly
come from the scenes of his everyday life. To build the blocks of those
components is by no means beyond his ability.
In case of E's witnesses, the things are totally different. A. Trunkel
points out in his book "The Truth in the Witness" that the statement
beyond the composing ability of the witness is true. The way E opened the
cover of the manhole, how the drain water splattered and how the tank inside
looked c all these cannot be described without experiencing in actuality.
Just because the examiners are believed to have never tried to fish or
lead such confession, the E's statements are most likely to be true.
What she talked about here is the things of her own business. At least
part of this fall "accident" may be ascribed to the motion she
made on the scene. She must have feared that confessing this to others
could do damage to her. And perhaps it was quite painful for her to recall
and state what had happened. This seems to be a reason enough for her silence
kept for three years.
These statements of E are immensely significant. They will completely turn
over the prosecution's script that Yamada's seeing Mitsuko falling and
dying in the tank is her motive of killing Satoru.
There are some other things. Content of her stomach indicates that her
death was two to three hours after eating. Counting from the lunchtime
at noon, the death supposedly happened around three o'clock. This is coincident
with E's statements but not with the prosecution's theory that she died
immediately before suppertime.
The fact that the children were often playing on the septic tank is found
in the residents' statements as well as staff's journals and records. In
fact, when they dredged the tank after drawing up the two bodies, there
were found numerous items such as stones, nail clippers, keys, bolts and
underwear thrown in by the children. This clearly demonstrates that the
children were playing around the tank removing the manhole cover many times.
This murder case started with the police's preoccupation that the manhole
cover is too heavy to be removed by the children and that this is a murder
case because two children one after another died on the same spot, with
the lid of the manhole replaced by somebody. Now that Mitsuko' death on
17th was almost proved to be a fall accident, the grounds for this preoccupation
was totally broken down. Satoru's death on 19th is still a mystery. We
cannot deny, though, a possibility that it was another accident following
that on 17. The entire Kabutoyama case as series murder was most likely
just a piece of fiction.
II-8. Two Non-guilty Court Decisions
The Kabutoyama case had to spend more than two decades to undergo several
decisions or judgements before some courts at different levels.
The defendants are indicted in March 1976. After the trials before the
Kobe District Court taking nine years and a half, the decision of complete
acquittal is made in October 1985.
Despite this, the prosecutors file an appeal to the Osaka High Court, whereupon
the Osaka Court remands the case back the Kobe District Court. The defense
appeals this decision to the Supreme Court as unjustifiable and unacceptable.
The Supreme Court gives only a few lines of "Appeal Dismissing"
decision in April 1992, without having even one session of oral proceedings.
Based on this decision, the Kobe District Court starts retrial according
to the remanding decision of the Osaka High Court.
The remand trial opens in February 1993. Total 70 trial sessions over five
years win for the defendants the second complete non-guilty decision in
March 1998. In spite of public criticism, the prosecution again appeals
to the Osaka High Court.
The second appeal trial before the Osaka High Court begins January 1999
and closes hearings with five sessions taking only two months.
The decisions are scheduled to be given on September 29 for Yamada, on
October 22 for Araki and October 29 for Tada. The Osaka High Court is definitely
expected to give the third acquittal decisions for all three of them.
The Kabutoyama case has revealed in its long-run process a large number
of problems associated with the entire system of criminal justice. As will
be discussed in the following section, the problems are for instance with
the way of questioning suspects, Daiyo Kangoku(substitute prison), investigation
process heavily depending on "confession", disclosure of evidences
under prosecutors' hands, lost effectiveness of the justice and punishment
due to excessively long trials, the rule of "presumed innocence"
of suspects and defendants, deficiency of the consciousness of human rights
in our whole society including mass media, and so on.
Here let us present two actual problems. At the closure of hearings before
the second appeal court in March 1999, Chief Defense Council Kodaka closes
his final argument with the following practical proposals. First, it is
necessary to establish an institutional compensation system for redressing
the victim of a miscarriage of justice or false charge. Second, the prosecutors'
right of appeal which is most responsible for long trials should be abolished
or juridically limited. He has requested the Osaka District Court to incorporate
their opinion with respect to his proposals in their decision in accordance
with the spirit of the Constitution (the power to determine the constitutionality
of any law). The adjugating trial scheduled to open this fall will attract
enormous interest not only in expected non-guilty decisions but also in
what opinions will be presented by the court with respect to these proposals.
In that sense, we would like as many people as possible to pay keen attention
to the decisions.
The "false charge - Kabutoyama case" is the history of continual
breaching and distorting the human rights of three obscure citizens, Yamada,
Araki and Tada, over more than two decades. This small case has obviously
shaken the justice system of Japan and as such revealed to our society
the significance of winning human rights through our own efforts. We hope
that the final non-guilty decisions and some successful results achieved
by this trial case will be social assets for Japan and the world.
We recognize that besides Japan, there are many other countries across
the world where the human rights situation is still underdeveloped. Let
us walk forward hand in hand until <human rights> developed by human
wisdom in our long history be shared by all human beings as global assets.
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