Ghosn changes up his defense team - been there and done that!

By Steven Gan with Commentary by David Wagner

I wasn’t particularly shocked when I heard that the lawyers, Motonari Otsuru and Masato Oshikubo, defending former Nissan Motor Co. chief Carlos Ghosn on charges of financial misconduct, submitted their resignations (on February 13th, 2019). In their place, veteran lawyer, Junichiro Hironaka, 73, confirmed that he had joined Ghosn’s legal team. Hironaka is a  criminal defense attorney well known for taking on tough and high-profile cases and securing not-guilty verdicts. In a country with a criminal justice system that prides itself on maintaining a 99.8% conviction rate, this is quite notable. For Mr. Ghosn, it appears that hiring Mr. Hironaka is a strategic move for improving his chances of fighting the charges against him. 

Having been one of the few foreigners who have had the unfortunate luxury of experiencing Japan’s criminal justice system for a white collar crime, allow me to share my thoughts on the effectiveness, or lack thereof, of most Japanese criminal defense attorneys. 

But first, as per my December 2018 article, "Carlos Ghosn's Stars and Mine Have Crossed,” I elaborated on my indictment and conviction for being in violation of Article 72 of the Attorneys Law. This law simply states that if a non-attorney performs the work of an attorney for remuneration, they are committing a criminal act.

My apologies for being repetitive but in short, I established a debt collection business in 1992 and successfully operated and grew the enterprise for the next twelve years. As the business became more and more well known (with over ninety presentations throughout the country, hundreds of articles, a book, and appearances on radio and television), a flood of other companies moved into this highly underdeveloped industry. The attorneys who were on the Committee that Guards Against Illegal Activities Performed by Non-Attorneys at the Tokyo Bar Association (let’s call this committee the CGAIA) observed the business community’s acceptance of this new industry and became alarmed that if allowed to grow and gain strength, it would take away one of their bread and butter services. 

As a result of this competitive threat, the CGAIA targeted my company as the lamb that needed to be sacrificed to bring this industry down. In order to do this, they submitted a criminal complaint to the special section of the prosecutors office, the same special section that is now handling the investigation and indictments against Ghosn and Nissan, asserting that I was in violation of Article 72 of the Attorneys Law. 

When I was first asked to come down to the prosecutors office for what was called "voluntary questioning,” which is anything but voluntary, I asked if I could also bring my current attorney. I was told that according to the Code of Criminal Procedures, I was not allowed to have an attorney present. This was the first shock to be hit with regarding how Japan’s criminal justice system treats a suspect. During the summer of 2004 I was called down to the prosecutors office about ten times and submitted to voluntary questioning for an estimated seventy hours. 

As this investigation period began, I reached out to the four attorneys who had previously written opinion letters on my collection business, in which they had asserted that my business was not in violation of Article 72 of the Attorneys Law. I asked each one if they would be my criminal defense attorney but to my disappointment, each one was very fearful of getting involved with my legal problem. In other words, they were happy to receive considerable compensation to review my collection system and write their opinion letters, but when it came time to defend their opinions, they wanted to crawl into a very deep hole away from any ethical danger they might find themselves in. Even my legal counsel at the time was actually shaking when I told him that I would be relying on him to represent me since for the last four years he had supported my business with care, consideration, and enthusiasm, and was appropriately compensated. 

After dealing with their rejections, I started calling around to several other attorneys I knew and one of them who I had worked with on a business venture agreed to defend me. For the sake of privacy, I’ll refer to him as Mr. Tanaka. Before deciding to use Mr. Tanaka we discussed his criminal defense experience and although it was not extensive, he reassured me that he understood the system and so I decided to engage his support. 

It wasn’t too long before I realized that Mr. Tanaka had a very over the top nicey-nicey disposition with the prosecutor handling my case. After each session, in which I reported to Mr. Tanaka the content and nature of the questioning, he would often make a call to the prosecutor to confirm this or that item. The calls that were made in front of me had a very apologetic tone. In Japanese customary and colloquial manner he would say, “I’m so sorry we have been bothering you and creating such a mess.” Or, “I know you’re very busy and I greatly appreciate you taking the time to deal with this difficult situation.” He never seemed to grab on to the idea of using every legal tool and route to support me. This was especially troubling since I very carefully throughout the years did everything I could to insure that my business did not infringe on Article 72. I pointed out over and over to Mr. Tanaka that the case against me was not a legal one but a competitive one. 

It seemed as though I had to constantly prop up my defense attorney to stand up against the prosecutor’s claims of why I was illegal. For example, I told the prosecutor that although the CGAIA asserted that only attorneys could perform debt collection, the irony was that many Japanese attorneys used my collection services when they could not collect against overseas debtors on behalf of their clients. Some of the attorneys in fact introduced my company to their attorney associates for their use. Moreover, if I was so guilty as the CGAIA claimed, why was the government even using my debt collection services? Yes, there were a lot of inconsistencies to the claims against me and this is something that makes me identify closely with some of the questionable claims against Mr. Ghosn.

Mr. Tanaka always seemed too timid to challenge the prosecutor. His strategy was that as much as possible we shouldn’t rock the boat and with a little luck we might just get off without too much damage. Conversely, my feeling is that we needed to assertively show and emphasize all the evidence possible to persuade the prosecutor of my innocence. It is suggested that the same timidity I experienced by Mr. Tanaka is why Mr. Ghosn decided to ask for the resignations of his two defense attorneys, Mr. Otsuru and Mr. Oshikubo.

In Japan, criminal defense attorneys are well known for being “I’m sorry attorneys.” and that’s because they apologize to the prosecutors and the judge for the misdeeds of their clients. In other words, rather than pursuing a barracuda approach to defending their clients, especially in view of their innocence, they readily capitulate since the system is so massively stacked against them. Along with the confessions of guilt that suspects are forced to sign, criminal defense attorneys actually enable the system to maintain that 99.8% conviction rate. 

From the end of August until the beginning of November 2004, I had not heard anything from the prosecutors office except that the prosecutor handling my case was no longer in charge of it. Through the grapevine I was told that he was taken off the case due to not being able to get a confession from me. In retrospect, he was actually a pretty fair guy and stated at our last voluntary questioning session that if I was guilty then the attorneys who wrote opinion letters supporting the legality of my debt collection business were co-conspirators. I appreciated that but for him, not getting me to confess was not upholding a 99.8% conviction rate, and that just would never be allowed. 

After our last session, feeling that this was not over, I was determined to find my barracuda criminal defense attorney, and fortunately, through several introductions, I met Mr. Shima (name has been changed). 

Mr. Shima had been the chief of the Fukuoka Prosecutors Office for several years and after he was retired from that position, he went into private practice as a criminal defense attorney. From the moment I met him, I could at least feel that he would not be a delicate “Cinderella.” His style of speaking was very firm and he had a swagger in his gestures and walk. He also walked around with two body guards. I never asked him why but I imagine there were a few cases in which some of the past defendants were not too pleased with his prosecutorial aggressiveness. 

The important point for me was that Mr. Shima was tough, completely understood how the system worked, and I had confidence he could communicate with the prosecutors for my benefit, whoever the next one or two assigned to my case would be. 

I did not ask Mr. Tanaka to resign but rather insisted that he do whatever support work necessary that Mr. Shima requested. I think Mr. Tanaka was actually relieved to hear this and as time went on, he also learned another approach to the system from Mr. Shima.

In early November of 2004 I was contacted by the new prosecutor handling my case to come down again for voluntary questioning. Upon arrival I was arrested and brought down to the Tokyo Detention Center and placed in solitary confinement. By the fourth day I was given a very dire ultimatum. Either sign their confessions or stay in solitary confinement for a very long time. Fortunately I was able to consult with Mr. Shima later that day about my options and he very clearly said to me, “Look, I don’t want you to stay in jail for over one year. It’s not worth it. What I will do is work to get you out on bail and work the system to get you through the court proceedings as quickly and as painlessly as possible.” 

Although it wasn’t what I wanted to hear, I decided to follow his advice and signed the confessions the new prosecutor crafted on my behalf. Although the prosector wanted to hold me in jail until my case came up a few months later, Mr. Shima was able to bring in some high profile and prominent individuals to be my guarantors, and after twenty-five days I was released on bail. 

Starting in January and ending in March 2005, Mr. Shima met with the prosecutor several times, which I believe helped to choreograph the proceedings against me. In the evening prior to the last court date in March, Mr. Shima called me at home to tell me very confidentially that he was told through various sources that I would receive probation and have to pay a one million yen (about US$10,000) fine. I can’t imagine a verdict being quietly passed to the defense attorney in the U.S. but in my case in Japan, I attribute it to Mr. Shima’s ability to get into the underbelly of the criminal justice system.

I am hopeful that Mr. Hironaka's deep experience and successes will spearhead this case against Mr. Ghosn at a much faster and more effective pace. At the same time, with all the twists and turns to date, I wouldn't be surprised if there is still another change to Mr. Ghosn's defense team down the road.

David, over to you. 

Wow! I’ll make sure to never break any law in Japan where I can be criminally indicted. Like you said, since the system is so terribly stacked against a suspect or defendant, it seems that the only way out for most individuals is to plead guilty and hope they don’t go to jail or that they receive a minimum sentence. 

What is particularly bothersome from what you explained, and from what I have also researched on my own, is the notion that most criminal defense attorneys apologize to the prosecutors and the judge for the actual or only accused wrong doings of their clients. That is just completely counter-intuitive and diametrically opposed to what a "justice” system should be all about. 

Maybe I’m too much of a Law & Order fan but in our system of justice, even with all of its flaws, we expect our defense attorneys to pull out every law, regulation, and angle in the book to aggressively refute the charges and/or prove their client’s innocence. We also rely on a jury system, with all of its faults, to not convict a person if there is reasonable doubt. In other words, we at least attempt to provide a standard of justice to those who are accused of a crime. 

On one hand, as an over thirty year long term resident of Japan, I have tremendously benefited from the business opportunities it has offered. But on the other hand, it’s so disheartening to feel that underneath the veneer of a robust business climate, Japan’s criminal justice system does not provide a version of fairness that many in the West are accustomed to. 

Perhaps we can hope that the case against Carlos Ghosn will help to propel some changes to what seems to be a criminal justice system based on law and not justice, especially when the most important idea is to ultimately maintain a 99.8% conviction rate. 

Steven Gan is President of Stellar Risk Management Services, Inc. and can be reached at [email protected]. You can also read the account of his criminal justice experience in Japan in his book, "Making It & Breaking It in Japan - My True Story of Songs, Sins, and Solitary."

David Wagner is a Media Messaging and Crisis Management Consultant and can be reached at [email protected].