General charges bias in Japan court ruling sentencing Marine to hard labor
August 4, 2005
CAMP FOSTER, Okinawa — The United States on Friday turned over a Marine sentenced to forced labor by a Japanese High Court despite what the Corps’ former top general in Japan called a “clear denial of due process.”
Lance Cpl. Joshua M. Major, 25, had his sentence for assault and conspiracy to commit robbery changed by the appellate Fukuoka High Court in January from a suspended two-year sentence to 4½ years of forced labor in prison.
“The High Court’s unprecedented harsh sentence clearly indicates a bias by the court against the accused,” wrote Lt. Gen. Robert Blackman, who was commander of the III Marine Expeditionary Force and Marine Corps Bases Japan when he signed a March 15 memo endorsing the opinion of Capt. T.S. Taylor, the judge advocate’s case liaison.
Blackman’s memo also accuses the high court of justifying the harsher sentence with the “perceived complicity of the U.S. Marine Corps,” which did not confine Major and co-defendant Cpl. Paul E. Mundell, 23, during the investigation.
However, the Marines say that the Japanese prosecutor told the judge advocate’s office that confinement during the investigation was not necessary.
“This is disconcerting because the prosecutor’s initial argument at the District Court was intentionally misleading on this point,” Blackman wrote.
The prosecutor has left Okinawa and could not be located to confirm whether he had said confinement of the defendants was unnecessary.
Blackman wrote that he would recommend that Defense Secretary Donald Rumsfeld “pursue action through diplomatic channels to correct the injustice of the High Court’s decision.”
U.S. Forces Japan could not confirm whether Rumsfeld’s office was contacted or whether any action was taken.
However, USFJ lawyers came to a conclusion far different from that of Blackman and Taylor.
“The sentence imposed by the High Court was within the permissible limits of sentencing allowed under Japanese law,” USFJ lawyers wrote Friday in response to an e-mail requesting information.
USFJ says the ruling did not circumvent agreements between Japan and the United States, as Blackman says occurred.
USFJ, however, did not respond to multiple requests from Stars and Stripes to clarify how its lawyers and Blackman came to opposing conclusions.
In April 2004, Major was handed a two-year prison sentence, suspended for three years, for his part in assaulting a 20-year-old Okinawa man and stealing his wallet in Ginowan on Oct. 23, 2003.
Calling the sentence “unacceptably light,” the prosecutor appealed and argued that Major and Mundell, who was given a 3½-year sentence by the district court, were equally responsible and had planned the attack.
Both Major and Mundell, assigned to the 1st Marine Aircraft Wing at Marine Corps Air Station Futenma, had been drinking heavily beforehand, according to evidence presented in district court.
After the two assaulted the man, Mundell took money from the Okinawan man’s wallet, which Major said he did not notice.
The district court did not mention the Marine Corps’ failure to confine Major and Mundell during the investigation as reasoning for its guilty verdict and suspended sentences, Taylor wrote in his opinion. Nor did the prosecutor reference this argument in the appeal, he wrote.
The high court picked the “failure to confine” argument out of the prosecutor’s closing statements in the original trial — despite the prosecutor’s earlier instructions to the Marines that they did not need to be confined, Taylor wrote.
Marine officials say the high court perceived the defendants’ freedom as a failure by the Corps to control them effectively, and thus decided on a harsher sentence.
“It is my opinion that the court based its decision, in part, on personal prejudice,” Taylor wrote. “This prejudice resulted in a sentence and conviction that are contrary to Japanese law and the United States-Japan Status of Forces Agreement and relevant agreements.”
Mundell accepted the high court’s ruling — also for 4½ years in prison — without appeal and already has begun serving his sentence.
The Japanese Supreme Court denied Major’s appeal June 6, and then denied another appeal filed through the Marine Corps on July 7.