MAJ Michael J. Brown v. U.S.A.
in U.S. District Court for D.C.IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
MICHAEL J. BROWN, Major, United States Marine Corps, Petitioner,
v. UNITED STATES OF AMERICA, Respondent.EMERGENCY PETITION FOR WRIT OF HABEAS CORPUS
This is an Emergency Petition for Writ of Habeas Corpus under the authority of 28 U.S.C. § 2241 et seq. In that the petitioner's commander-in-chief, George W. Bush, President of the United States, is a resident of the District of Columbia, venue lies in this District. Kinnell v. John Warner, Secretary of the Navy, et al., 356 F. Supp. 779, 782, (U.S. Dist. Ct. D. Hawaii 1973).
Petitioner is in the custody of the government of Japan, by the authority of the United States, each nation having acted, at one time or another, as agents of the other. Said custody is in violation of the Constitution of the United States and the Constitution of Japan, and is in violation of the Status of Forces Agreement between those countries.
Upon information and belief, I believe the following to be true and correct:
Factual Summary
There exists between the Respondent United States, hereinafter "Respondent," and Japan, a document known as the Status of Forces Agreement (hereinafter "SOFA"). Signed by the parties in 1960, the SOFA is an "Agreement ... between the United States of America and Japan, regarding facilities and areas and the status of United States armed forces in Japan." Within Article XVII of that SOFA is the parties' agreement concerning criminal jurisdiction and procedure. (Appendix 1, Status of Forces Agreement).
There exists within the Japanese criminal justice system an antiquated, barbaric and draconian investigatory process known as daiyo kangoku, which translates as "substitute prison." In the exercise of daiyo kangoku, detainees may be interrogated for 23 days without benefit of counsel, without bail, and without the right against self-incrimination, even though both the Japanese Constitution and the Japanese criminal code guarantee these fundamental rights. "Confessions" almost always result. During the period 1980-1992, official Japanese statistics show a conviction rate of between 99.98% and 99.995%. In the Japanese criminal justice system, due process has no meaning. (Appendix 2, The Daiyo kangoku (Substitute Prison) System of Police Custody in Japan, a report by the International Bar Association.
On or about November 2, 2002, Ms. Victoria Nakamine, a Filipino national married to a Japanese man, claimed that Petitioner raped her. Ms. Nakamine has lived on Okinawa for a number of years under a "marriage visa" granted to her by the Japanese government. Ms. Nakamine's claim is not supported by the other facts of the case, is uncorroborated, and is not worthy of belief. She has given inconsistent versions of her story and, in fact, has recently recanted. On or about November 7, 2002, at the request of the Japanese government, Respondent took Petitioner into custody, thus acting as an agent of Japan. The Respondent would daily deliver Petitioner to the Japanese for the purpose of daiyo kangoku. On December 3, 2002, contemporaneous with the issuance of an arrest warrant for attempted rape, Respondent was delivered into Japanese custody. Daiyo kangoku continued. Constitutional and procedural rights were violated or ignored. The Japanese unlawfully refused bail. An appeal to a superior court was denied based upon an inapplicable article of the Japanese criminal code.
Not coincidentally, Petitioner's dubious arrest and unlawful detention corresponds with discussions between Respondent and Japan on amending the existing SOFA. The Japanese are desirous of incorporating into the SOFA provisions even more severe than those presently existing. Subsequently, the governor of Okinawa Prefecture published unwarranted, inflammatory aspersions against Petitioner in the Japanese media, effectively convicting him in the court of public opinion. Japanese public opinion is steeped with such a volume of vilifying government rhetoric that Petitioner will be unable to receive a fair and impartial trial -- to the extent, that is, that anyone in Japan receives a fair and impartial trial. Petitioner's "trial" is to begin on Okinawa Prefecture before a panel of three judges on March 13, 2002.
Status of Forces Agreement
Article XVII of the SOFA, which was executed by the parties on January 19, 1960, is a naïve attempt to reconcile two disparate criminal justice systems. The criminal justice system of the Respondent United States is anchored on the fundamental beliefs expressed by this nation's founding fathers -- the dignity of man, that government exists to serve its citizens, that there exists for its citizens "inalienable rights" that may not be contracted away. The Declaration of Independence, the Constitution with its Bill of Rights, and the Federalist Papers reverently recognize the importance of preserving these rights in furtherance of our national goals and aspirations. Contrariwise, the Japanese criminal justice system, while paying specious deference to these "rights," prizes an ordered society where social harmony trumps constitutional niceties. It is within this system that a daiyo kangoku can exist. It is within this system that investigators and police officers' judgment can be so sound that 99.995% of those accused can be found guilty.
Under Article XXV of the SOFA, there exists an implementing regulation. Item 40 of that regulation addresses a procedural notification requirement that is jurisdictional in nature. Item 40 reads, in pertinent part, as follows:
When written notification has been made to... the United States... by the authorities of the other State of the commission of an alleged offense by a member of the United States Armed Forces... over which Japan has the primary right to exercise jurisdiction, Japan shall through the ministry of justice, advise the Legal Office of the Headquarters in Japan of the branch of the armed forces of which the accused is a member, whether it will exercise jurisdiction by bringing an indictment in the case. If the above advice is not received by the Legal Office concerned within [30 days], or if notice is received that Japan will not bring an indictment, the United States may exercise jurisdiction in any such case.
The government of Japan never did effect the required notification. Said notification being jurisdictional, the Respondent now may exercise primary jurisdiction in this case. Because of the compelling nature of this case, it is right and equitable for the Respondent to do so. (Appendix 3, Item 40, Implementing Regulation to SOFA).
Additionally, Article XVII, Section 3 confers concurrent jurisdiction to the Respondent and Japan in the issues of the alleged attempted rape. But, because of the nationalities involved in this case, Japan is given primary jurisdiction. However, because of the unusual facts of this case, the SOFA clearly compels the Respondent United States to request a waiver of Japan to return custody to Respondent. "The authorities of the state having primary right [Japan] shall give sympathetic consideration to a request from the authorities of the other state [United States] for a waiver of its right in cases when that other state considers such waiver to be of particular importance. (Underscore added). SOFA, Article XVII § 3.(c). Because of the gross violation of constitutional and procedural law previously and hereinafter noted, the Respondent is compelled to request primary jurisdiction over this case.
Article XVII, § 6.(a) requires the parties to " ... Assist each other in the carrying out of all necessary investigations into offenses, and in the collection and production of evidence, including the seizure and, in proper cases, the handing over of objects connected with an offense." This was done in Major Brown's case, with each of the parties acting as principals and as agents of the other.
Although the SOFA expressly provides for the right "to have compulsory process for obtaining witnesses in his favor" (Article XVII § 9.(d). and "to have legal representation of his own choice for his defense" (Article XVII, § 9.(e), neither were provided in such manner that could be considered minimally acceptable. The government of Japan has breached the SOFA.
Daiyo Kangoku
Daiyo kangoku, "substitute prison," was enacted in 1908 as a temporary measure out of a legitimate concern and desire to reduce the use of police cells. An ancillary benefit to the practice for the prosecution is the power conferred on the police and upon the prosecutors by permitting, for 23 days without effective supervision from the court, the opportunity to relentlessly interrogate one suspected of a crime. "Confessions" are highly prized by the court and provide an irrebuttable presumption of guilt. Throughout the entire country of Japan, the "conviction" rate is, for all intents and purposes, absolute. To be indicted is to be convicted. Though the SOFA guarantees to the accused the right "to be confronted with the witness against him" (SOFA, Article XVII, § 9.(c), for a complaining witness to be cross-examined is considered bad form. In those cases, judges frequently enhance the accused's punishment in retaliation for the defense lawyer's "incivility." A conviction is secured. Social order has been maintained.
The International Bar Association has its principal office in London, England. Its study and report, authored by Nicholas Cowdrey Mr. Cowdrey currently serves as President, International Association of Prosecutors. He is the Director of Public Prosecution , New South Wales, Sydney, Australia is appended here as Appendix 2. It provides an in-depth analysis of the Japanese substitute prison system. The International Bar Association web site address is www.ibanct.org.
Petitioner
Petitioner, Major Michael J. Brown, is a resident of Menard, Texas. His Officer Qualification Record is attached as Appendix 4. He is married and has two children: Christopher, age 5, and Danielle, age 2. He, his wife, Lisa, and their children reside off-post on Okinawa Prefecture, Japan. Since November 7, 2002, Major Brown has been in pretrial confinement, pending resolution of this false charge.
A former enlisted Marine, Major Brown was commissioned a second lieutenant of Marines on May 29, 1991. On March 1, 2001, he was promoted to his present rank. On August 29, 2001, he joined his present unit in Okinawa. Last month, he celebrated his 41st birthday in a Japanese prison.
The Incident
The complainant, Ms. Victoria Nakamine, a Filipino national married to a Japanese, entered Okinawa on a "marriage visa." The United States employed her as a bartender on a U.S. military base on Okinawa. On November 2, 2002, she reported to two U.S. Marine military policemen that the Petitioner had raped her. In the MPs' opinion, her conduct was inconsistent with having been raped. She reported her assailant's name as "Steven." She reported that "Steven" had ripped off her clothes. Though she was wearing her original clothing, those garments were not ripped, nor were they disheveled.
The accuser did not write her own complaint; it was written by her attorney and by the Okinawan police. Because her statement did not match the physical evidence, the police compelled Nakamine on two occasions to effect changes to her statement. These amendments were made to conform to parts of Major Brown's testimony given during interrogation and corroborated as true.
Although the accuser showed no signs of physical injury, the police produced a doctor's statement saying that she was examined on November 2, 2002, and that she had "skin oppressive pain on neck and both forearms," a euphemism for a complaint of being sore. The statement also said that the pain would heal within two days, making it impossible for the defense to verify the examination's veracity.
The accuser, at the prompting of the police, added that Major Brown had a "large ring on his finger" but only did so after the police seized his Texas A&M class ring and showed it to her.
Prior to the incident, the accuser was fired from one club for stealing money -- a crime of moral turpitude. After the incident involving Major Brown, she was fired from the officers' club because she bragged about the episode and complained that she did not get her picture in the paper. The accuser has given multiple inconsistent accounts to several people. On at least one occasion she completely recanted.
With one exception, the police made no attempt to interview American witnesses. Each of these witnesses would have provided exculpatory information
The evidence is clear that the government of Japan has purposely created such a hostile environment that Petitioner cannot receive a fair trial on Okinawa Prefecture. On December 3, 2002, simultaneous with Major Brown's arrest, Governor Keiichi Inamine issued the following statement: "Yet more trouble was caused by a U.S. serviceman, despite our repeated request to the U.S. military for disciplinary and preventive efforts. It is extremely regrettable and we feel enraged." This statement of judgment from Okinawa's highest government official clearly judges guilt before the fact. Because it was made publicly, it served to improperly sway public sentiment against Major Brown and the United States and affect the Japanese Naha court's ability to exercise balance and fairness in adjudicating the case.
After his indictment on December 19, 2002, Major Brown was shackled, handcuffed, dressed in prison pajamas, and paraded in front of the courthouse in a demeaning "photo-op" for the Japanese press and media. The media published multiple stories portraying Major Brown as a criminal. These stories also quoted Governor Inamine along with other vilifying aspersions.
Subsequently, numerous public protests and rallies were organized on Okinawa at the gates of military posts and each time Major Brown appeared in court. Again, following each demonstration and court appearance, these protests were accompanied by additional news reports vilifying Major Brown and the United States.
It is not coincidental that Major Brown's arrest, and the Okinawan government's inflammatory rhetoric coincide with the beginning of discussions between the United States and Japan concerning amending the current SOFA. The Japanese government has not concealed the fact that it wants the SOFA amended to provide fewer protections for U.S. servicemen than is already contained in the document. The arrest and persecution of Major Brown provides just such a vehicle for Japanese use.
This is not the first time that Japan has charged United States servicemen with crimes on the eve of SOFA re-negotiation discussions. Major Brown's case is historically consistent with Japan's track record on this issue.
Because of this wholly improper orchestration of the facts by the Okinawan government and of public sentiment being manipulated by a liberal press, the Naha court will feel immense public pressure against exonerating Major Brown despite the evidence -- or lack thereof.
The judge, Hiroshi Suzukki, has twice denied Major Brown bail. In each case his decision contradicted the SOFA, denying the express rights and privileges afforded to United States servicemen under the Agreement. Specifically:
a. On December 19, 2002, Major Brown's attorney filed a request for bail, which the court denied.
b. On December 20, 2002, the attorney filed for disclosure of the reason for the denial. The court's explanation was that there were sufficient reasons to believe that Major Brown would "destroy or conceal evidence." There is no reasonable ground to suspect that evidence would be destroyed or concealed. Because of the nature of these allegations, there exists no potential "evidence" that could be tampered with. The "evidence" has already been confiscated; the "crime scene" has been documented, examined, and preserved. The chain of custody and evidence that will be presented to the court are complete and cannot be affected by "destroying" or "concealing." There is no merit in the court's result-oriented Order.
c. On January 7, 2003, Major Brown's attorney filed a request for reconsideration.
d. The next day, January 8, 2003, the judge again denied the request.
e. On the same date, Major Brown's attorney appealed the decision to the Naha District Court.
f. On January 16, 2003, the District Court denied the appeal, basing its decision on the authority of an article of the Japanese Criminal Code that has no relevance or application to the case sub judice.
Major Brown's case will be tried in Okinawa Prefecture, Japan, on March 13, 2003.
Summary
Failing to appreciate the distinct differences between our cultures, the Government of the United States and the Government of Japan entered into a Status of Forces Agreement. On its face, SOFA provides a framework for the mutual cooperation between the countries in various matters, including criminal justice. However, because of the existence of the daiyo kangoku, United States armed forces service members and their dependents are effectively denied rights guaranteed not only by the laws of this country, but also by the laws of Japan. Constitutional guarantees of the right to be secure from unreasonable search and seizure, the right to be free from compulsory incrimination, the right to the effective assistance of counsel, and the right to a reasonable bail are ignored. "Substitute prison" exists in a system that is substantially unsupervised by the courts. The "confession" is king, and its importance in court is absolute. Due process has no meaning. The Japanese "conviction" rate is nearly 100 %. To be indicted is to be convicted. The presumption of innocence is a mockery of justice. Almost without exception, all are convicted; no one goes free.
The prosecution of this case, and the effort by the Japanese government to propagandize and distort the facts are contemporaneous with renewal of the SOFA negotiations between the parties.
The facts of the case of Major Michael J. Brown, United States Marines, would, but for the extremely serious nature of the allegations and their consequences, be a laughing matter. An accuser of dubious character, motivated by money, brings allegations that are unsupported by any corroborating evidence. Even though the accuser has given multiple conflicting statements, she will likely prevail. A good man will be convicted and his career in service to his country will be finished
Relief Requested
On the authority of 28 U.S.C. § 2241, the "Great Writ" and on this Honorable Court's broad and equitable powers, the Petitioner in the case sub judice, prays for the following relief:
1. In compliance with SOFA, Article XVII § 3.(c), ORDER the Respondent to exercise its charter by requesting the Government of Japan to give "sympathetic consideration" to waive its right to exercise primary jurisdiction in this matter.
2. In compliance with SOFA, Article XXV, and its amplifying regulation, Item 40, because of the Japanese government's failure to comply with established SOFA procedure, ORDER the Respondent to exercise primary jurisdiction in this case.
3. ORDER the Respondent to release Petitioner from its custody.
This Petition is respectfully submitted as an Emergency Petition for Writ of Habeas Corpus, in that Petitioner's trial on the merits is to begin on March 13, 2003. Historically, there is little justice in the Japanese courts.
RESPECTFULLY SUBMITTED this 7th day of March 2003.
__________________________________
Victor Kelley, Attorney for Petitioner Michael J. Brown, DC Bar Number: 4750083
National Military Justice Group, LLC, 2101 Sixth Avenue North, Suite 700, Birmingham, Alabama 35203
205.254.3216
CERTIFICATE OF SERVICE
This certifies that that above foregoing document was delivered by hand to the United States Attorney's Office, District of Columbia at the address below on March 7, 2003.
Roscoe C. Howard, Jr., USA, Judiciary Center Building, 555 Fourth Street, NW, Washington, 20530
__________________________________
Victor Kelley