TOKYO – Carlos Ghosn is preparing to walk out of a Tokyo jail as soon as Wednesday, thanks to a new legal team with defense experience and international criticism about Japan’s treatment of criminal defendants.
The Tokyo District Court on Tuesday granted the former Nissan Motor chairman release on bail of nearly $9 million. The court later denied an appeal from prosecutors, allowing Ghosn to overcome the last hurdle to his release. He will likely be free Wednesday to leave his cell in eastern Tokyo where he has lived since Nov. 19.
Lawyers not involved in the case said his imminent release is a milestone in Japan’s legal system, where defendants such as Ghosn who deny wrongdoing are typically kept behind bars until trial or shortly before.
“If the appeal is denied, this will become a groundbreaking precedent,” Chuko Hayakawa, a lawyer and former ruling-party member of Parliament, said before the court knocked down the appeal.
A trial is likely at least six months away for Ghosn, who built a globe-spanning auto alliance while simultaneously leading Nissan and Renault SA, only to lose all his executive posts after his arrest and indictment in Japan. He is charged with hiding deferred compensation on Nissan’s financial disclosures and funneling $14.7 million of Nissan money to the business of a Saudi friend who had helped him through a personal financial problem.
Ghosn says he is innocent, calling his discussions with Nissan about deferred compensation hypothetical and saying Nissan paid the Saudi business for legitimate services.
The Tokyo court had rejected Ghosn’s petitions for release twice in January. Apart from a short session on procedural issues that the court held in February, little about the case has changed since then.
What did change was Ghosn’s legal team. On Feb. 13, he dismissed his previous lawyer, a former prosecutor who had little experience handling prominent defense cases, and brought in “the razor,” 73-year-old defense specialist Junichiro Hironaka, who is known for winning headline-making not-guilty verdicts.
Last week, Hironaka submitted a new bail petition with tough restrictions on Ghosn’s activities, aiming to overcome prosecution assertions that the former Nissan chief might tamper with witnesses or try to destroy evidence.
Among the restrictions, according to the court and Hironaka: Ghosn must live at a court-approved residence in Tokyo. He can’t leave Japan. He can’t communicate with people overseas on a smartphone or personal computer. And his movements will be monitored by a surveillance camera.
“Concrete plans presented by his lawyers to prove that there was no risk of destroying evidence likely moved the court,” said Masaru Wakasa, a former prosecutor.
Previously, Ghosn had offered to wear an ankle bracelet. Prosecutors dismissed the offer, saying Japan doesn’t have such a system, and some legal experts said that in any case, monitoring Ghosn’s whereabouts via a bracelet wouldn’t address concerns over destroying evidence.
The Tokyo court declined to name the judge who issued Tuesday’s decision or describe that person’s reasoning.
Ghosn’s initial lawyer, Motonari Otsuru, formerly led the Tokyo prosecutors’ unit that is investigating the Ghosn case. Ghosn’s supporters hoped the ex-prosecutor’s familiarity with his former comrades’ tactics could lead to an early release or even get the case dropped.
But when it comes to filing bail petitions, former prosecutors may fall short in expertise compared with veteran defense lawyers such as Hironaka and others now on the Ghosn team who have studied how to persuade judges, said Nobuo Gohara, a former prosecutor. Ghosn now has “the strongest defense team,” Gohara said.
International pressure also played a role, outside lawyers said. The case has spotlighted Japanese practices such as barring suspects’ lawyers from sitting in on interrogations, pressing suspects to confess and holding nonviolent white-collar defendants for up to a year or more pending trial.
Japanese media including public broadcaster NHK and national newspapers have repeatedly fretted that Japan’s international reputation could be damaged by criticism of its legal system. Shortly before the court’s ruling, the Nikkei business daily ran a full page of commentary Tuesday by experts calling for change, including a former top judge who said the Ghosn case showed Japan’s system fell below global standards.
One Japanese diplomat expressed relief after Tuesday’s decision, saying Tokyo was worried that Americans and Europeans would treat it on the same level as China in terms of adhering to rule of law if Ghosn’s detention dragged on.
Judges in Japan are “very sensitive to changes in this sort of external pressure,” said Hayakawa, the lawyer and former lawmaker. The bail decision “likely turned out this way because of the twists and turns of public opinion and the level of concern that this case has received from the international community,” he said.
Ghosn’s release could help his chances at trial, said Wakasa, the former prosecutor. “Because Ghosn is a skilled communicator, he can create the right environment and shape public opinion so he can win a not-guilty verdict with his own words,” he said.