First Court Day of TEPCO Executives Criminal Trial ~Description of the Hearing

Rally before the trial, outside the Tokyo District Court. From left: Kazuyoshi Sato, head of the trial support group, Ruiko Muto,  Chair of the Fukushima Nuclear Disaster Plaintiffs and other plaintiffs

Rally before the trial, outside the Tokyo District Court. From left: Kazuyoshi Sato, head of the trial support group, Ruiko Muto, Chair of the Fukushima Nuclear Disaster Plaintiffs and other plaintiffs

 The first court day of the case against former TEPCO executives Tsunehisa Katsumata, Ichiro Takekuro and Sakae Muto for professional negligence leading to fatalities was held on June 30, 2017 in Tokyo District Court.
  Here, basically from the standpoint of an observer, I will describe what I saw and heard during the first day of court case, focusing on matters with little media coverage.
Courtroom Conditions
About half of the observers’ seats had white covers, indicating they were reserved for use by the press. From what I heard, the Fourth Criminal Affairs Department of Tokyo District Court provided two advantageously located seats to reporters from each news organization that requested them. Favorable treatment of news organizations cannot as a rule be called unfair, but there had to have been many news organizations arranging part-time help to observe the trial, and it was foreseeable that many victims coming all the way from Fukushima and other distant prefectures to observe the trial would be denied a seat to due to lack of space. That they nevertheless favored news organizations has to be considered suspicious. Incidentally, there were many reporters who left their seats early, having another reporter take their places, to provide breaking news just on defendants’ pleas in the arraignment.
  General observers who’d been lucky to be admitted, spending a lot of time just undergoing stringent inspections of their belongings and bodies, found the observers’ seats to be under continuous monitoring by 10 security guards. While we cannot call this discrimination against the nuclear accident victims and people opposed to nuclear energy, the precautions seemed a little overblown.
  On the other hand, the three defendants are thought to have been allowed into the courtroom via a back passage without undergoing inspections after being filmed for television prior to the court session. The difference between their treatment and that of the general observers was palpable.
Appearance of the Defendants
This was my first time to see the defendants in person, but they did not seem to have any health problems. They made their court appearance in suits with neckties, dressed in shades of black. True to my image of him, Katsumata was of small stature, but I was a bit surprised to see that Muto was larger than I’d thought. Incidentally, when they entered the courtroom Katsumata came in first, followed by Takekuro and then Muto, in the order of smallest to largest, but this was more a reflection of the order of their ranking back when they were TEPCO officials.
  After the opening procedures, the three men took their seats in the front row with their lawyers. You could tell they had real concerns about the outcome of the trial.
  Of the three men, Muto would occasionally rock his large body while seated. He seemed somewhat ill at ease.
  When the designated attorney presented the summary of evidence in the afternoon, if my eyes did not deceive me, Muto had gone to sleep in his chair. Because Katsumata’s face was downward at an angle, it was hard to tell, but he too appeared to be asleep. The trial was taking a long time, so they seemed to have relaxed and succumbed to their fatigue.
 The Prosecutor’s (Designated Attorney’s) Opening Statement
The presiding judge announced that the designated attorney performing as prosecutor would be referred to as “the prosecutor,” so here I will call him “the prosecutor.” (More importantly, the defense counsel’s referring stubbornly to the counsel for the prosecution as the “designated attorney” seemed designed to send the cryptic message, “The guy who was supposed be the prosecutor threw the case out.”) After the initial proceedings, the prosecutor, Hiroshi Kamiyama, spent about 80 minutes giving his opening statement that morning.
  What caught my attention in the prosecutor’s opening statement was that the reference period  of the negligence, in other words, “from when should measures have been taken to avoid the outcome,” had been established as early March, 2011. The reference periods in most cases where victims of the Fukushima nuclear accident have sought compensation for damages have run from about 2002 to 2008, but this time it was set considerably later. I took it that the reason for this was that the measures to avoid the outcome that the prosecutor was claiming basically centered around the construction of a 10-meter-high seawall along the eastern side of the platform, facing the ocean, on which the reactors and associated equipment sit, which is at 10 meters above sea level, with the nuclear power plant being shut down until this construction was completed. (Other measures, though, such as making the buildings water-tight or transferring the backup equipment to higher ground were included in his claims.)
The Defense Counsel’s Opening Statement
In the afternoon, the defense gave its opening statement. First, Muto’s defense attorney, Keita Miyamura, presented claims common to all three of the defendants.
  Attorney Miyamura is a lay-judge trial  criminal lawyer and well known as an up-and-coming young attorney, but the main claim he presented, similar to that of the government in national compensation cases, was that the earthquake that occurred off the Pacific coast of the Tohoku region was so enormous that it greatly exceeded expectations. The claims, in order, were (1) TEPCO’s tsunami simulation in 2008 for plant design was nothing more than a trial calculation, and would not give rise to the possibility of prediction, and (2) countermeasures based on the 2008 simulation involved nothing more than construction of a seawall on the south side, so the outcome could not have been avoided anyhow.
  The defense had nothing to say about the plans to build a 10-meter-high seawall atop the 10-meter platform. Whether defendant Muto had any awareness of these plans will be of interest in the details of explanations to come.
  Katsumata’s defense attorney pleaded that as chairman his client had lacked authority to execute official business duties, with his role limited to that of advisor with neither authority nor responsibility. Likewise, Takekuro’s defense attorney pleaded that his client had also lacked authority to execute official business duties as a fellow.
  Aside from whether these claims are true or false, meetings attended by defendant Katsumata were called “Imperial Councils,” insinuating unquestioned authority, and at the time of the accident he was seen by the Prime Minister as being the most influential person at TEPCO. Thus the claim that he had neither authority nor responsibility came across as really disgusting. It is often said that to earn respect as a superior, one condition is to take responsibility for the shortcomings of one’s subordinates, but it would appear that Katsumata has no intention of doing that.
Revelation of Results and Examination of the Evidence
The presiding judge explained that it would take some time to perform the revelation of results of the pretrial arrangement procedures and draw up the trial examination plan through to the conclusion of the trial, that this was being done  because it is a complicated, highly technical case and that in view of the particular circumstances of the case, examining the basic evidence in advance would facilitate the trial’s progress.
  The presiding judge’s remarks hinted at the existence of evidence being withheld pending a decision on whether to adopt it or not, but failed to clarify the details of what evidence was being requested to begin with and what opinions would be presented. This was due to lack of time that day to conduct requests for evidence, opinions on the evidence and procedures to adopt or reject evidence.
  The prosecutor announced a summary of the 183 items of Section A evidence (documentary evidence and articles of evidence), followed after a recess by a summary of the 55 items of Section B evidence (the investigator’s record of oral statements). Through this trial, several of TEPCO’s internal documents regarding tsunami countermeasures that had not been released before will be made public. It is amazing and disgraceful that while so much important evidence on TEPCO’s tsunami countermeasures exists and moreover that they agreed to have it examined at a criminal trial, this evidence has thus far been hidden at all costs from civil trials.
  The defense announced a summary of 45 items of documentary evidence (defense evidence). Characteristically, many of the items were from the investigator’s record of oral statements and, moreover, they were the same items from the investigator’s record of oral statements that the prosecutor had requested. For example, the late Professor Katsuyuki Abe (professor emeritus at the University of Tokyo), who famously (perhaps) counseled TEPCO that another option for them was to disregard long-term earthquake outlooks, apparently said, “I thought that as a nuclear power plant operator, they should have been implementing countermeasures presupposing the long-term outlook,” in the record requested by the prosecution, but in the records requested by the defense he said, “I thought that the ‘long-term outlook’ was just another point of view, so by ignoring it, I was simply refraining from adopting an opposing opinion.” What a shame he is dead now, and unable to tell the court what he really meant.
Adjournment and Impressions
The presiding judge announced that an interim briefing session would be held, and without setting the next court date, he adjourned the court at 4:30 p.m. A sigh of disappointment could be heard from the observers’ seats as it seemed that this trial too would go into a closed-room discussion.
  I predict, based on my own arbitrary judgments and biases, that the next court date will be in about three to six months and that the initial decision will come the year after next or thereafter. If this were a trial by lay judges, examination of the witnesses’ testimonies would be completed in about two weeks, and the judgment rendered in about a month, so this is strange.
Regarding the presiding judge, Kenichi Nagafuchi, in as far as you look at his career, he can be seen as an elite who was sent to preside over this trial, but in as far as you look at the first court date, he presents a relatively moderate ambience (most of all, though, it is those sorts of judges that you have to be careful about.) All kinds of speculations are flying about as to whether the defendants will be found guilty or not, but at this stage it is impossible to tell from the judge’s speech and actions, and I will leave it at that.
  The future direction of this trial will be noteworthy if only as an important case regarding how the judiciary can fulfill its function of acting as a restraining influence on the national government’s pro-nuclear policies.
<Kazuki Homori, Lawyer for the Fukushima Nuclear Disaster Plaintiffs>
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