A trial that could change the way Japan pursues corporate crime

By the tip of subsequent week, and after three years within the bear hug of Japanese justice, Nissan’s former authorized head, Greg Kelly, may very well be boarding a industrial flight out of Tokyo: getting into the airplane alongside a gantry and thru the cabin door.

On an earlier flight, on a non-public jet taken in late 2019 by Carlos Ghosn, the boarding preparations — inside a field lugged by ex-mercenaries — have been quite completely different. Each exits will go away a long-lasting mark on Japan. Kelly’s, with doubtlessly heavy implications for the way forward for Japanese plea bargaining and company whistleblowing, may very well be the deeper of the 2.

Ghosn’s made-for-Netflix vanishing act to Lebanon inflicted two wounds. The humiliation of his escape from underneath the noses of the Japanese authorities stung. The heavier blow, although, was to the Japanese prosecutors whose popularity had been staked (precariously, say authorized consultants) on the arrest of the nation’s most outstanding businessman on a number of fees of economic misconduct, which he has constantly denied. Facet debates on the equity of Japanese justice, the 99 per cent conviction charges for circumstances that come to trial, the legitimacy of prosecutorial strategies and the “true” motives behind Ghosn’s arrest will proceed to rage indefinitely: the escape denies prosecutors the prospect to show to the world that they have been proper.

And the trial of Kelly, a US citizen who has spent two years in court docket combating the only cost of conspiring to hide the true extent of Ghosn’s pay, has neither been the slam-dunk nor the proxy Ghosn takedown that prosecutors clearly hoped it is likely to be. The central strut of Kelly’s defence has been that, since there didn’t exist a signed, legally enforceable contract requiring Nissan to pay Ghosn the disputed Y9.3bn ($82mn), Nissan had no obligation to declare something and there was subsequently no crime of concealment.

In disputing this, prosecutors have tried to stuff the lengthy, lengthy hours in court docket with attestations of Ghosn’s dictatorial administration fashion, his avarice and different private shortcomings. None of this, actually, has any bearing on a case that authorized consultants say may in the end hinge on a high quality interpretation of the legislation.

If Kelly is convicted on Thursday, which many consider is the likeliest verdict of a justice system underneath stress to avoid wasting face, he should go away Japan in very brief order with a suspended jail sentence calculated to make a fast, diplomatically useful finish to the matter. However there are additionally loads of legal professionals and teachers who consider that Kelly’s defence has performed sufficient to safe an acquittal — an excessive rarity in any case, however notably so for such a high-profile prosecution.

For a terrific many causes, a not-guilty verdict could be enormous. Ghosn and his supporters would have vicarious “proof” that his arrest was at all times a vindictive weaponisation of justice. Defence legal professionals in Japan would sense {that a} turning level had come of their lengthy wrestle to scale back the courts’ conviction charges by even a couple of factors. Prosecutors could be criticised for engineering a gargantuan waste of time and credibility.

The explanation Kelly’s case is so doubtlessly pivotal, although, is that both a conviction or acquittal might reshape the way in which company crime is pursued by Japan’s justice system. And never essentially for the higher.

Behind the clearly epic theatre, Ghosn and Kelly’s arrests set a precedent as one of many very first circumstances in Japan the place the prosecution was constructed round a plea discount take care of Nissan whistleblowers. The power to strike such offers had solely been obtainable for a couple of months earlier than the prosecutors pounced, following a controversial change within the legislation.

In precept, the enlargement of the prosecutorial arsenal obtainable to struggle company crime and encourage whistleblowing is an effective factor. However its welcome by the Japanese public, which flinches on the concept of the self-confessed responsible negotiating their approach out of punishment, was at all times fragile.

As effectively attempting to burnish their reputations with a world-famous scalp, prosecutors within the Ghosn and Kelly trials have been at all times combating a grander marketing campaign to construct public acceptance of this new plea discount tactic. They wanted, mentioned a senior accomplice at one in all Japan’s largest legislation corporations, a “lovely” case to make the sale to the nation. Whether or not Kelly is convicted or not, this has been palpably ugly from begin to end.

Many interpret Japan’s excessive conviction price as an indication of inherent unfairness; in actuality it’s an index of profound risk-aversion by the prosecutors who solely pursue circumstances they really feel sure of profitable. Kelly could go away Japan, responsible or harmless, together with his tormentors in victory or defeat, institutionally much less keen to take dangers on circumstances of company criminality, and notably cautious of testing new waters with plea bargains.

leo.lewis@ft.com