The Asia-Pacific Journal | Japan Focus Volume 18 | Issue 24 | Number 2 | Article ID 5523 | Dec 15, 2020

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Comparative Reflections on the Carlos Ghosn Case andJapanese Criminal Justice

Bruce E. Aronson, David T. Johnson

Abstract: The arrest and prosecution of Nissanexecutive Carlos Ghosn, together with hisdramatic flight from Japan, have focusedunprecedented attention on Japan’s criminaljustice system. This article employs comparisonwith the United States to examine issues inJapanese criminal justice highlighted by theGhosn case. The criminal charges andprocedures used in Ghosn’s case illustrateseveral serious weaknesses in Japanesecriminal justice—including the problems ofprolonged detention and interrogation withouta de fense a t t o rney tha t have beencharacterized as “hostage justice.” But incomparative perspective, the criminal justicesystems in Japan and the U. S. have somestriking similarities. Most notably, both systemsrely on coercive means to obtain admissions ofguilt, and both systems have high convictionrates. The American counterpart to Japan’s useof high-pressure tactics to obtain confessions isa system of plea bargaining in whichprosecutors use the threat of a large “trial tax”(a longer sentence for defendants who insistupon their right to a trial and are thenconvicted) to obtain guilty pleas. An apples-to-apples comparison also indicates that Japan’s“99% conviction rate” is not the extreme outlierthat it is often said to be. Commentary onGhosn’s case emphasized the weaknesses inJapanese criminal justice. Those weaknessesare real and important, but by many criteria,such as crime and incarceration rates, Japanoutperforms the U.S. As for Ghosn’s case inparticular, this article explores four scenariosof what might have happened to him if his casehad occurred in the U.S. It is not obvious that

he would have fared better under Americanlaw, nor is it obvious that justice would havebeen better realized.

Key words: criminal justice, white-collarcrime, Japan, United States, Carlos Ghosn,hostage justice, conviction rates, confessions,plea bargaining

Carlos Ghosn in Detention in Japan

Introduction

The arrest and criminal prosecution of Nissanexecutive Carlos Ghosn, together with hisdramatic flight from Japan, have focusedunprecedented international attention onJapan’s criminal justice system. The periodfrom Ghosn’s arrest in November 2018 until hispress conference in Lebanon in January 2020was filled with a seemingly endless series ofcontroversies. Was Ghosn a greedy autocrat or

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the victim of a coup by Nissan? Were Ghosn’sarrest and prosecution justified? Were theconditions of his detention acceptable or washe subject to undue pressure to force aconfession? More generally, were the tools ofJapan’s criminal just ice system usedappropriately against Ghosn, or were theyutilized to deprive him of his rights as acriminal defendant? And are defendants’ rightsadequately protected in Japanese criminaljustice, or is the system itself seriously flawed?

The controversy was fanned by Ghosn’s tacticsin response to his sudden arrest and lengthypretrial detention and interrogation. Followingthe failure of Ghosn’s first defense team toobtain his release from prolonged detention(for details on Ghosn’s detention and otherdevelopments of the case, see the timeline inAppendix 1), Ghosn changed lawyers and wenton the offensive. He launched a broad publicattack, amplified in the international media, onJapan’s entire system of criminal justice, callingit “hostage justice” (hitojichi shiho). Theresponse of Japan’s government often consistedof formalistic citations of provisions in Japan’sconstitution, rather than descriptions ofJapanese criminal justice in practice oracknowledgement of real problems. Thegovernment’s defense was combined withassertions that each country should be able tochoose the system of criminal justice it desires,with little mention of human rights.

The oversimplified arguments on both sideswere reflected in much of the prolif iccommentary on Ghosn’s case. The Westernmedia was generally sympathetic to Ghosn’scomplaints, while the Japanese media mostlycondemned him and his actions. The caseclearly highlights several difficulties in makingcomparisons between criminal justice systems.Two of the problems are basic issues that applyto comparisons with Japan generally, whileother concerns are specific to the comparisonof criminal justice systems.

First is a basic principle of comparative study,that one should not compare “my theory withyour practice.” Abstract theory always looksbetter than the troubling realities of practice.In the Ghosn case, there were numerousmisleading comparisons that broadly idealizedthe rights of criminal defendants in the U.S. inways that would surprise participants in theactual administration of American criminaljustice. The value of comparative study lies inutilizing knowledge of another country’s systemto shed light not only on that country, but alsoon your own country’s system.

Second is the unfortunate tendency indiscussions of Japan to resort to broad culturalgeneralizations and stereotypes. This is true ofboth critics and defenders (foreign anddomestic) of Japanese criminal justice. Criticsoften imply that the Japanese do not fullyunderstand or appreciate the “Western” rightsof defendants due to cultural reasons, whiledefenders sometimes respond that the Japanesecriminal justice system is appropriate becauseit “fits” with Japanese culture. But an“essent ia l ist” v iew of culture as thedetermining factor in explaining legaldifferences often makes comparison moredifficult (Nelken, 2010).

There are a lso problems spec i f ic tocomparisons of criminal justice systems. First,criminal justice is largely a domestic field ofstudy. Utilizing the state’s sovereign power todeprive individuals of their liberty is a weightyprocess closely tied to a host of domestic policyconsiderations. As a result, criminal justiceexperts seldom make comparisons with othercountries’ systems, and comparative criminaljustice remains a limited field. In addition,white collar crime and corporate crime areneglected in most criminology journals,textbooks, scholarship, and teaching, renderingmarginal what may well be the most seriouscrime problem of our age (Johnson, 2018).

Second, civil and common law systems have

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different assumptions and procedures,particularly in criminal cases. The criminaljust ice system in Japan began as aninquisitorial system imported from Germany, inwhich defense lawyers played a minor rolecompared to judges and prosecutors. Postwarreforms from the U.S. resulted in a formalchangeover to a more U.S.-style adversarialsystem, but in many respects the change hasbeen incomplete.

Finally, there is a lack of common assumptions,definitions, and data among countries withrespect to criminal justice. Common terms suchas “arrest,” “trial,” and “conviction” havedifferent meanings in different countries. As aresult, data on matters such as “convictionrates” utilize different methods of calculationand may not be readily comparable withoutsignificant qualification. Data availability is alsoan issue. Japan’s centralized system producesuniform data, while the U.S. has a complexfederal structure with only fragmented data forthe large majority of cases that occur at thestate and local levels. This makes it challengingto carry out apples-to-apples comparisons.

Much of the commentary on the Ghosn casehas focused on differences between criminaljustice systems in Japan and the U.S. (see, forexample, Associated Press, 2018), but it is alsonecessary to note broad similarities. In bothcountries the overwhelming majority ofcriminal cases are cleared without trial, andconviction rates in contested cases are high.The image of dramatic courtroom battles doesnot represent the reality of how most cases getprocessed.

Because the Ghosn case raises significantissues for Japan’s criminal justice andcorporate governance systems, and forcomparisons with Japan more generally, wedecided to combine our areas of expertise totake a f resh look at th is case f rom acomparative perspective that has been largelymissing to date. The rest of this article

proceeds as follows. Section 2 provides generalbackground on the Ghosn case. Section 3presents substantive and procedural aspects ofthe case. Section 4 summarizes Ghosn’scriticisms of Japanese criminal justice,compares the criminal justice systems in Japanand the U.S., focusing on conviction rates andthe potential for coercion, and presents severalscenarios for how Ghosn might have beentreated if his case had occurred in the U.S. Ourfinal section concludes by discussing thesignificance of the Ghosn case from acomparative perspective.

Contexts of the Ghosn Case

Nissan and Toyota were the only twosignificant domestic automobile manufacturersin prewar Japan (Morck and Nakamura, 2007).Nissan expanded globally following the SecondWorld War and was the first Japanese carmanufacturer to penetrate the profitable U.S.market (beginning in 1958) with a lineup ofsmall, efficient cars and trucks and a famoussports coupe (Nissan Motor Corporation GlobalWebsite, 2020).

Nissan fell upon hard times following thebursting of the Japanese bubble economy in theearly 1990s. It incurred large losses andaccumulated heavy debts. Like manycompanies in Japan, i t was in need ofrestructuring but appeared reluctant to adoptthe necessary, painful measures. This long-deteriorating situation became a question ofsurvival in February 1999 when both majorcredit rating agencies threatened to downgradeNissan’s rating from investment grade to“junk” status, and it was unclear whetherNissan could obtain the necessary funds for arestructuring (Milken and Fu, 2005).

Nissan took action the following month. Itfound a partner in the French automobilecompany Renault. Renault and Nissan agreedto a global alliance and signed an agreement on

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March 27, 1999, under which Renault injectedcapital and purchased 37 percent (which laterbecame 43 percent) of Nissan stock. Nissanowns 15% of Renault with no voting rights,while Renault’s biggest shareholder is theFrench government.

The person designated to join Nissan as chiefoperating officer and implement the necessaryreforms was Carlos Ghosn (pronouncedGOHN). He speaks five languages and is acitizen of France, Brazil, and Lebanon. Ghosnwas in charge of Renault’s own restructuring inthe 1990s following its failed merger withVolvo, and he seemed like a good candidate toreduce Nissan’s excess capacity and cut costs,though there was also skepticism as to whetherhe could succeed with an aggressiveturnaround plan that seemed to violateconventional Japanese practices (Milken andFu, 2005, p. 125).

The turnaround plan was drastic by Japanesestandards. Five Nissan plants were shut down.There was a reduction of 21,000 workers, or14% of the labor force, through a combinationof attrition, hiring freezes, and layoffs. Thekeiretsu system (businesses linked together bycross-shareholdings) was essentially ended,with the number of parts suppliers reduced by50% and with an estimated 20% savings inprocurement costs. Debts were also cut in half,and a new performance-related compensationsystem for executives was introduced (Milkenand Fu, 2005, pp. 131-133).

Many analysts agreed that the plan was a greatsuccess, as profitability was restored withintwo years (one year ahead of schedule), in oneof the most dramatic turnarounds in the historyof corporate Japan. Ghosn received manyinternational and domestic accolades. And hecontinued to rise in the companies’ respectivehierarchies, becoming CEO of Nissan in 2001and CEO of Renault in 2005. He is the onlyperson in modern history to become the head oftwo major corporations simultaneously. He also

became a famous figure in Japan, with over 50books written about him and his businessexploits (he even became the hero of a mangacomic series).

But Ghosn’s success at Nissan in the early2000s was not matched by achievements in thefollowing decade, when Nissan’s performanceand profitability were inconsistent (Boudette,2020). His personal reputation took a hit in2010 due to the high level (at least by Japanesestandards) of his executive compensation. Anew rule in 2010 required that total individualcompensation for company executives must bedisclosed if it exceeded 100 million yen(roughly one million US dollars, utilizing anapproximate exchange rate of 100 yen perdollar) (Financial Services Agency, 2010). Inanticipation of a strong negative reaction to thedisclosure of Ghosn’s salary, Nissan cutGhosn’s disclosed compensation in half, thoughhe apparently expected to eventually be paidthe “remaining” amount after his formalretirement from Nissan. These facts would laterlead to the prosecution of Ghosn for themisleading disclosure of his compensation.

Although high by Japanese standards, Ghosn’sdisclosed compensation was now relatively lowcompared to the heads of foreign automobilecompanies. But Nissan continued to worry thatGhosn’s compensation was too high, whileGhosn thought it was too low. It was lateralleged that Ghosn added to his own benefitsthrough personal use of company funds withoutfollowing proper procedures, such as internalauthorization and disclosure.

During the 2010s, Ghosn’s authority at Nissanbecame more concentrated. He had alwaysretained strong authority over the governanceof Nissan, beyond the authority of a CEO at atraditional Japanese company, due to thewishes of Renault (which was the controllingshareholder). This included a delegation ofauthority from Nissan’s board to set executiveand director compensation (including his own)

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within a total budget (Securities and ExchangeCommission, 2019, p. 1). His power was furtherstrengthened by practices at Nissan that hadbecome entrenched over Ghosn’s nearly twodecades as its head. Day-to-day control atNissan was delegated to a small group ofexecutives with strong relationships withGhosn. It seems little open discussion occurredon the board of directors that Ghosndominated, and beginning in 2009 his aide,Greg Kelly, also exercised extraordinarypowers on his behalf (Nissan Motor Co. Ltd,2020, p. 8).

Two major factors contributing to corporategovernance weaknesses at Nissan were thepresence of a controlling shareholder, Renault,and the long period – nearly 20 years – ofexecutive control exercised by Ghosn. Neitherof these factors is common in Japan or the U.S.(for overviews of corporate governance inJapan, see Aronson, Kozuka and Nottage, 2016;Aronson, 2019).

Renault and Ghosn continued to build up theirglobal automobile alliance with the addition ofMitsubishi Motors in 2016. Nissan became theowner of 34% of the shares of Mitsubishi, andGhosn became chairman of all three companies(Ma and Horie, 2016). However, businesssuccess continued to prove elusive. Profitabilitywas down in the crucial North Americanmarket, and it once again seemed that Renaultand Nissan were fa l l ing beh ind theinternational competition, at a time whensignificant new investments were required tobe competitive in emerging markets for electriccars and self-driving automobiles. Ghosnformally resigned as president and CEO ofNissan in April 2017, but retained his title aschairman and apparently continued to functionas de facto CEO (Nissan Motor Co. Ltd, 2020,p. 8).

One longstanding proposal favored by Renaultto address these challenges was furtherintegration of the alliance companies, which

could have included a complete mergerbetween Renault and Nissan. But this idea wasopposed by executives at Nissan (Tanaka,2018). Like the general public in Japan, theystill viewed Nissan as an iconic Japanese carcompany. They chafed under the alliance’sfailure to rebalance the share ownershipstructure between Nissan and Renault despiteNissan producing substantially larger sales andprofits than Renault.

In 2018, after Nissan received whistleblowerreports alleging Ghosn’s misuse of companyfunds for personal purposes, the companybegan an internal investigation withoutnotifying Ghosn (Nissan Motor Co. Ltd, 2020).Based on the results of this investigation, andfearing personal and corporate liability, twoNissan employees (Nada Hari and OnumaToshiaki) went to prosecutors to offer theircooperation in return for immunity fromprosecution under Japan’s new plea bargaininglaw, which was passed in 2018 (Jiji, 2019).Ghosn (and his aide Kelly) were then arrestedwhen they arrived in Japan in November of thatyear to attend a board meeting. By April 2019,Ghosn would be indicted on four counts offinancial wrongdoing—two for false informationdisclosures concerning his compensation, andtwo for the personal misuse of company funds.

The Ghosn Case in Japan

The first two counts against Ghosn allegeviolations of securities law, based on falsereporting of Ghosn’s compensation in annualsecurities filings. The other two counts arebased on aggravated breach of trust undercorporate law – a corporate crime that iscommon in civil law jurisdictions (the mostfamous c r imina l case on execut i vecompensation in Germany, relating toVodafone’s hostile acquisition of Mannesmannin 2000, was based on a similar provision ofGerman law; see Gevurtz, 2006, pp. 97-108)and would likely fall under the broad mail and

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wire fraud provisions of U.S. federal law(Congressional Research Service, 2019).Japanese prosecutors may have receivedrelatively complete information about Nissan’sinternal investigation before any charges werefiled, but they decided to charge Ghosn onecount at a t ime. This is a common andcontroversial tactic in Japan, for it enablesprosecutors to lengthen the period duringwhich an uncooperative defendant remains indetention and thereby pressure a defendantinto confessing. This is the main reason manycritics of Japanese criminal justice call it asystem of “hostage justice” (within Japan, seethe petition signed by 1010 legal professionals;internationally, see the opinion concerningCarlos Ghosn of the Working Group onArbitrary Detention, UN Human RightsCouncil).

Substance

Count 1: False Entry in Annual SecuritiesReport, FY 2010-2014

The first two counts filed against the Nissancorporation, Ghosn, and Kelly are based onJapan’s securities law. Securities law in Japanwas closely modeled after U.S. law during theallied occupation following the Second WorldWar. Article 24 of the Financial Instrumentsand Exchange Act (Law No. 25 of 1948, asamended,“FIEA”) makes it a crime to file anannual securities report that “contains a falsestatement about a material particular or thatomits a statement as to a material particularthat is required to be stated.” Althoughinaccurate information disclosure might beconsidered a “technical” crime not worthy of acriminal arrest, Article 24 provides forsignificant criminal punishment for violations:up to 10 years in prison, a fine up to 10 millionyen, or both.

Confirmation letters concerning the accuracy ofannual reports must be signed and sent to the

Tokyo Stock Exchange and Financial ServicesAgency by the representatives of the company.Ghosn gave final internal approval for thesereports (Securities and Exchange Commission,2019, p. 10) and also signed and attested to theaccuracy of the securities filings he is chargedwith violating.

As noted in the timeline appended to thisarticle, after Ghosn’s arrest and detention onNovember 19, 2018, he was indicted on Count1 and then rearrested on Count 2 on December10, 2018.

Count 2: False Entry in Annual SecuritiesReport, FY 2015-2017

Japanese prosecutors charged the same threedefendants (Ghosn, Kelly and Nissan) withcriminal violation of the same provision of theFIEA for three additional fiscal years. It shouldbe noted that the legal responsibility for filingannual securities reports formally lies with thecorporation. Accordingly, the prosecutors’inclusion of two individuals in their indictmentis based on these individuals wrongfullywithholding information from the corporationso as to make the corporation’s annualsecurities filings false or misleading.

The major legal issue for these two counts iswhether or not Nissan had a legal obligation topay Ghosn the compensation and retirementbenefits that he expected to receive followinghis retirement from Nissan. Ghosn allegedlyassigned Kelly the task of finding a way tostructure payment to Ghosn of his “postponed”compensation without disclosure. Severalschemes were contemplated, includingpayment through a Dutch subsidiary, butultimately it was decided that payment wouldbe made through post-retirement “consultingfees” (Securities and Exchange Commission,2019, pp. 2-3). Prosecutors have emphasized“secret” documents held in Nissan’s secretarialoffice that allegedly prove that future paymentsto Ghosn were guaranteed (Nikkei, 2018).Ghosn and Kelly have claimed that Ghosn’s

https://www.hrw.org/news/2019/04/10/call-eliminate-japans-hostage-justice-system-japanese-legal-professionalshttps://www.ohchr.org/Documents/Issues/Detention/Opinions/Session88/A_HRC_WGAD_2020_59_Advance_Edited_Version.pdfhttps://www.ohchr.org/Documents/Issues/Detention/Opinions/Session88/A_HRC_WGAD_2020_59_Advance_Edited_Version.pdfhttps://www.ohchr.org/Documents/Issues/Detention/Opinions/Session88/A_HRC_WGAD_2020_59_Advance_Edited_Version.pdf

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“postponed” compensation was not fixed andthat post-retirement compensation wasdiscussed only in the context of services thatGhosn might provide to Nissan after hisretirement (Saiki and Konishi, 2018).

Count 3: Aggravated Breach of Trust: TheSaudi Arabia Route

Counts 3 and 4 both involve aggravated breachof trust under Japan’s Companies Act (Law No.86 of 2005, as amended). Aggravated breach oftrust is generally considered a more seriouscrime than the two counts of false disclosurecited above. Under article 960 of theCompanies Act, a director (or other individualdesignated under this provision) who commits abreach of trust on behalf of his own interest orthat of a third party and damages the companyfaces the same punishment as for falsedisclosure (i.e., up to 10 years in prison, a fineup to 10 million yen, or both). The elements ofthe crime are (1) a violation of official duties,(2) an act done to enrich himself or a thirdparty, and (3) conduct causing financial harmto the company.

In general, the biggest issue in cases ofaggravated breach of trust is the requirementof proof of criminal intent beyond a reasonabledoubt. As in other countries, if the defendantfails to confess proof of such intent mustdepend on circumstantial evidence. Such proofof intent in complicated financial cases tends tomake challenging cases for prosecutorseverywhere.

The “Saudi Arabia route,” which is the factualbasis for count 3, is a complicated financialtransaction involving Ghosn’s entering intocurrency swap contracts for investmentpurposes with Shinsei Bank. When Ghosnincurred paper losses (1.85 billion yen or 18.5million dollars) following the 2008 financialcrisis and Shinsei demanded additionalcollateral, Ghosn transferred the contract toNissan. Nissan claims that it suffered a loss, forwhich Ghosn reimbursed Nissan, but that the

details were never disclosed to Nissan’s board(Nissan Motor Co., Ltd., 2019, p. 9). Ghosnclaims that Nissan suffered no real loss.

Ghosn then arranged for a separate creditguarantee of the currency swap (3 billion yen)with his friend in Saudi Arabia, Khaled Juffali,and Nissan returned the contract to Ghosn. It isalleged that Ghosn used Nissan funds (from theCEO reserve fund) to make payments totaling$14.7 million to Juffali’s company during2009-2012, thus compensating his friend forhelping Ghosn with a personal matter (Kurabe,Yamada and Yuzawa, 2018). Ghosn claims thathis initial transfer of the contract to Nissan wasproperly approved (by the board) and thatNissan suffered no loss. He also claims that thepayments to Juffali were for a legitimatepurpose and properly approved, with other topexecutives signing off, as required, for use ofthe CEO reserve fund (Kyodo, 2019a).

Count 4: Aggravated Breach of Trust: TheOman Route

The factual allegations related to the “OmanRoute” are the most damning allegationsagainst Ghosn by Japanese prosecutors, sincethey clearly involve personal benefits to Ghosnand his family members from Nissan funds.Ghosn is alleged to have again utilized the CEOreserve fund, this time to have Nissan MiddleEast make $35 million in payments to SuhailBahwan Automobiles, a Nissan car dealer inOman, during 2011-2018 (Kostov and McLain,2019).

An executive of the car dealership apparentlymade payments (1.7 billion yen or 17 milliondollars) in his personal capacity to an entityeffectively controlled by Ghosn, which in turnmade payments (560 million yen) to entitiescontrolled by Ghosn’s wife and (partially) by hisson. When Renault (with Nissan) eventuallylaunched its own investigation of Ghosn’sactivities, it apparently shared information onthe Oman route with French prosecutors, whoinitiated their own criminal investigation in

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February 2020, focusing on the Oman routeand 11 million euros in questionable expenses(for personal entertainment, gifts and legalfees, donations, use of jets, and housing) foundby Renault (Associated Press, 2020; for detailsof the expense allegations see Nissan MotorCo., Ltd., 2020, pp. 9-10). As of December2020, the French investigation remains inprogress, and Ghosn has announced thatFrench prosecutors will travel to Lebanon toquestion him in 2021 (Sebag and Patel, 2020).

Although counts 3 and 4 concerning thepersonal use of corporate funds are moreserious than the allegations of misleadingdisclosures, they are also more difficult forprosecutors to prove. Not only do they involvecomplex financial transactions; Japaneseprosecutors are also not well-equipped toobtain evidence and witness cooperation fromsources in the Middle East. However, to theextent that prosecutors had full access toNissan’s (including Ghosn’s) emails and othercommunications, they may well be able to builda persuasive case based on circumstantialevidence of Ghosn’s intent.

Other allegations did not result in indictments.Nissan alleged that Kelly underreported hisown compensation by a total of 626 million yen($6.26 million) from FY2012-2017 and alsoimproperly received 7.17 million yen ($70,170)through manipulation of share appreciationrights (Nissan Motor Co., Ltd., 2020, p. 11).Following Nissan’s initial investigation, it waslater revealed that seven directors and officersof Nissan received overcompensation throughmanipulation of the exercise date of shareappreciation rights (including Ghosn’ssuccessor as CEO, Saikawa Hiroto), but thatthis was carried out by Kelly (to benefit Ghosnand Kelly) without their cooperation (NissanMotor Co., Ltd., 2020, p. 11). Prosecutorsdecided not to indict Saikawa, Ghosn’shandpicked successor who reportedly signed adocument that promised to pay Ghosn’s“postponed” compensation fol lowing

retirement, but then turned against him(Kyodo, 2019b). The decision not to prosecuteSaikawa was later affirmed by a ProsecutionReview Commission (kensatsu shinsakai), anindependent committee of 11 citizens which isauthorized to review prosecutors’ non-chargedecisions (Jiji, 2020) – and which has broughtcharges in other high-profile cases (Johnson,Fukurai, and Hirayama, 2020). Ghosn’s defenseattorney criticized prosecutors’ disparatetreatment of Ghosn and Saikawa, calling it“clear discrimination against foreigners”(McLain, 2019). Saikawa resigned following thedisclosure of his own overcompensation.

For its part, Nissan was fined 2.4 billion yen($24 million) for underreporting compensationby Japan’s Financial Services Agency. This wasthe second largest fine ever imposed by theagency. In February 2020, Nissan filed a civillawsuit against Ghosn for 10 billion yen ($100million) in damages relating to Nissan’s fines,Ghosn’s use of company funds for personalexpenses, and the costs of the company’sinvestigation. In turn, Ghosn filed a civil suitagainst Nissan and Mitsubishi Motor’s Dutchjoint venture seeking 15 million euros forwrongful dismissal (Horie, 2020; Nissan MotorCorporation, 2020).

Criminal Procedure

Japan’s most significant white collar crimecases involving defendants such as nationalpoliticians and corporate executives are usuallyhandled by the Special Investigation Division(“SID”) (tokusobu) of the Tokyo District PublicProsecutors Office (SID counterparts also existin Osaka and Nagoya). Many high-profiledefendants, who typically face both theaggressive methods of the SID and socialpressure to confess and cooperate because oftheir association with a major corporation orpolitical party, end up confessing, receivingsuspended sentences and doing no prison timeafter conviction (see, for example, the

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suspended sentences of three corporateexecutives who pleaded guilty in the $1.7billion Olympus accounting scandal; Woodford,2012; Tabuchi 2013; Naito, 2019). In contrast,Ghosn’s case illustrates what can happen whena defendant with vast resources who is lesssubject to such social pressures challenges thestandard operating procedures of white-collarcrime investigations in Japan.

It was not obvious that Ghosn would pose sucha challenge when he was arrested and detainedon November 19, 2018. He retained as his maindefense counsel the ultimate “establishment”defense lawyer, Otsuru Motonari, a formerhead of the SID in Tokyo. It appears Ghosninitially hoped that by “playing by the rules” ofthe Japanese system he could make anarrangement that would minimize both hiscriminal exposure and the duration of hisdetention, but this approach proved ineffective.

Ghosn’s case was not typical in other ways aswell, not least because it attracted a great dealof international attention. Prosecutors weresurprised by a decision of the Tokyo DistrictCourt in December 2018 to refuse a 10-dayextension they had sought for Ghosn’sdetention and interrogation. Althoughprosecutors’ requests for extensions areroutinely approved, the court may have beensensitive to the prominence of the case(Konishi, 2019). But instead of agreeing toGhosn’s release, prosecutors filed count 3,which enabled them to keep him in detention.At Ghosn’s first court appearance (January 8,2019, some seven weeks after his initial arrest)he proclaimed his innocence. However, his twosubsequent requests for bail were denied.

From Ghosn’s perspective, there did not seemto be any prospect of a negotiated settlementor of release from detention, and the judicialprocess seemed likely to drag on for manymonths. So Ghosn changed tactics, replacinghis lead lawyer with a more aggressive defensecounsel, Hironaka Junichiro, famously known

as the “The Razor,” and a bail specialist,Takano Takashi, who is widely regarded as oneof the best criminal defense lawyers in Japan(Johnson, 2017). The next month, in March2019, Ghosn’s reconstituted defense teamsucceeded in obtaining his release on bail (for10 billion yen or about $10 million), understrict conditions. He had been detained for 108days. The legally sanctioned period of pre-indictment detention is longer in Japan than in32 other OECD nations (Croydon, 2016, p.4),and when police and prosecutors make “serialarrests” (bekken taiho), as they did with Ghosn,the total length of detention can be very longindeed (Nicholas Johnson, 2019).

In April 2019, the day after Ghosn spoke outand announced he would hold a pressconference, he was arrested again (for thefourth time overall, despite having beenreleased on bail). A week after the newdetention period started, Ghosn’s lawyersreleased a video in which he alleged a “plot”and “conspiracy” against him. On April 25,following 22 days of detention, the TokyoDistrict Court released Ghosn on bail of 5billion yen ($5 million) under strict conditionsand despite the vehement objections ofprosecutors who claimed that Ghosn was amajor flight risk (he is wealthy and has fourpassports and many overseas connections).Ghosn’s bail conditions included physicalsurveillance, video surveillance of the entranceto his apartment, restrictions on his use ofcomputers, and other measures. But they didnot include an ankle bracelet or otherelectronic surveillance devices, which are notused in Japan.

The prosecutors’ concerns proved prescient.On December 31, Ghosn announced he had fledJapan for Lebanon. In an escape that requiredmonths of preparation and considerable outsideassistance, Ghosn evaded physical surveillance(on December 29, during the New Year holidayseason), took a bullet train from Tokyo toOsaka, and then was smuggled through an

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airport in Osaka (packed inside a musicequipment case) and onto a private jet. The jetflew to Turkey, where Ghosn changed toanother private jet that took him to Lebanon(Campbell et al., 2020).

At a press conference on January 8, 2020,Ghosn denounced his treatment and renewedhis attack on Japanese criminal justice. Hisillegal flight gave pause to some Western mediathat had previously backed him, but theeditorial board of the Wall Street Journalcontinued its full-throated support, calling hisstatement “a tour de force of self-exoneration”in a case that “should have been settled in theboardroom” (Wall Street Journal, 2020). Thesame month, Interpol issued an arrest warrantfor Ghosn. As of this writing in December 2020,he remains a fugitive from Japanese criminaljustice, and he is also under criminalinvestigation in France, while those who aidedhis escape have been arrested in the U.S. andTurkey. As explained below, Ghosn settled withthe U.S. Securities and Exchange Commission(“SEC”) by paying a $1 million fine andagreeing to a 10-year ban on serving as anofficer or director of a U.S. reporting company.

In Japan, Ghosn was subject to extensiveinterrogation while he was in detention for 130days (see below for more details). Japanese lawgives suspects and defendants the right toremain silent, but judicial interpretation of thisright also imposes a duty to endure questioning(Foote, 1991) – and without a defense lawyerpresent (Ibusuki and Repeta, 2020). Hence,Ghosn was required to sit for hours and days onend, while prosecutors asked questions towhich he did not respond. And unlike manyJapanese defendants who refuse to confess butdo engage with prosecutors’ questions (Ezoe,2010), Ghosn maintained his silence. He did noteven provide a statement of his own version ofthe facts. All of Ghosn’s interrogations werevideotaped, and he was permitted to consultwith his lawyers on a daily basis (outside theinterrogation room). There is no denying that

his interrogations were long, and the conditionsof his detention were certainly harsh – a smallcell, limits on activities outside the cell, andstrictly limited meetings with family. But itappears that the conditions of his confinementwere no worse (and no better) than those forother criminal suspects who face seriouscharges in Japan (Croydon, 2016).

Japan-US Comparisons

Ghosn’s (and his attorneys’) criticism ofJapanese criminal justice consisted of four mainelements (see also Yamashita, 2020). First washis argument that it is impossible to receive afair trial in Japan because the system is“rigged” (Abdallah and Kelly, 2019). On thisview, Japan’s “99 percent conviction rate” isoffered as proof of fundamental unfairness inJapan’s criminal justice system and as a validreason not to cooperate with the process. Whyrespect Japanese procedures if it is impossibleto receive a fair trial?

Second, Ghosn excoriated Japan’s pretrialdetention practices. As noted above,prosecutors (with cooperation from judges) candetain suspects for long periods of time byutilizing the full 23-day period of detention foreach count and by staggering arrests andindictments for each count. Even after thesedetention periods expire, prosecutors regularlypersuade courts to deny bail requests, sodetentions in contested cases often continue formany months thereafter (for examples, seeNaito, 2019). On this view, Japanese criminaljustice has long had such low rates of releaseon bail that it deserves to be called a system of“hostage justice” (Kyodo News, 2019c).

Ghosn’s third criticism was directed at criminalinterrogation. As described above, suspects inJapan do not have the right to have an attorneypresent during interrogation, and though theydo have a right to remain silent, they arelegally required to attend interrogations and to

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endure questioning, which can last many hourseach day. On this view, Japanese criminaljustice is designed to force confessions, evenfrom suspects who proclaim their innocence,and suspects who do not readily confess will beput under increasingly intense pressure(Dooley, 2019a).

Ghosn’s final criticism was political, that thecharges against him were the result of a plot byNissan to prevent a merger with Renault, andthat Japan’s government supported theconspiracy against him. According to this view,political persecution and prosecution justifyGhosn’s escape from Japan (Abdallah and Kelly,2019).

All of Ghosn’s criticisms were reported in themedia against a backdrop of implicitcomparisons to systems of criminal justice thatsupposedly safeguard defendants’ rights betterthan is the case in Japan (see, for example,Associated Press, 2018). The favorite point ofcomparison was the U.S., yet many of thosecomparisons were based on faulty methods andidealized views of American criminal justice. Asthe rest of this sect ion argues, moreappropriate comparisons reveal that Japanesecriminal justice is not the outlier portrayed byits critics (Wall Street Journal, 2020).

High Conviction Rates

The most common criticism of Japan’s criminaljustice system focuses on its supposed “99percent conviction rate” (see, for example,Truong, 2018). But definitions and practicesdiffer between Japan and the U.S. Below weuse data from Japan and from the U.S. federalsystem to compare criminal conviction rates incontested cases.

In the U.S., the “conviction rate” usually refersto cases that go to trial where defendants arefound guilty. Under American criminalprocedure, defendants who plead guilty receive

no trial, which means that all of the cases thatgo to trial are contested. In the federal system,about 84 percent of criminal cases referred toprosecutors result in indictment (Motivans,2019, Table 4). The vast majority of these casesare disposed of through plea bargaining – over97 percent at the federal level (Motivans, 2019,Table 6), and the percentage has beenincreasing for decades. (In the 50 states theplea-bargaining rate is 94 percent; see Neily,2019). Conversely, less than 3 percent offederal cases go to trial in the U.S.

In Japan, by contrast, the majority of cases arecleared by prosecutors through the exercise oftheir discretion to refrain from bringingcharges. When cases are dropped orprosecution is “suspended” (kiso yuyo), thesuspect is neither charged nor punished.Overall, prosecutors in Japan decide to chargein less than one-third of the cases that arereferred to them (Supreme Court of Japan,2019, Graph 3). Moreover, about 90 percent ofcharged cases involve confessions oradmissions of guilt. Although these cases do goto trial, only the remaining 10 percent ofcharged cases are contested at trial (SupremeCourt of Japan, 2019, Table 4). In Japan, the“conviction rate” usually refers to thepercentage of all cases that have been chargedand that result in conviction. We stress: thevast majority of those cases are uncontested.

In order to make a meaningful comparison, weneed to focus on conviction rates for similarlycontested trials. In the U.S. federal system, theconviction rate for contested trials is about 83percent (it is lower in some state and localjurisdictions) (Motivans, 2016, Table 6). InJapan, the conviction rate for contested cases isabout 96 percent – not “more than 99 percent,”as is often claimed (Supreme Court of Japan,2019, Table 4; see also Johnson, 2002, ch.7). Inboth countries, therefore, the vast majority ofdefendants who contest the charges againstthem do get convicted. On the other hand,when we focus on acquittal rates, the U.S.-

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Japan difference is striking. In the U.S., theacquittal rate in contested cases is 17 percent,while it is less than 4 percent in Japan. Thus, anacquittal is four times more likely in Americathan in Japan.

A third perspective provides additional insight.When we employ the conventional Japanesemethod for calculating conviction rates – as apercentage of all prosecuted cases, not justcontested cases – we see great similarity inconviction rates. In fact, this method results ina Japanese conviction rate of 99.8 percent(Supreme Court of Japan, 2019, Table 4) and anAmerican conviction rate of 99.6 percent(Motivans, 2019, Table 4). Putting allprosecuted cases in the denominator producesan extremely high conviction rate in bothcountries. From this vantage point, a convictionrate of 99 percent may be interesting,troubling, or both, but it is not uniquelyJapanese.

Pressure to Admit Guilt

Another striking similarity between Japan andthe U.S. concerns the use of pressure toproduce admissions of guilt. In both countries,protections for defendants on trial arerelatively robust, but in the pretrial processmuch pressure is brought to bear on suspectsto help the state obtain convictions.

In Japan, Ghosn was subject to extremely longinterrogations while he was in detention for130 days. One of his defense lawyers hasreleased records of the daily duration ofGhosn’s interrogations during 70 of those days.The average length of interrogation was 7hours per day, and on several days Ghosn wasinterrogated for more than 10 hours. As notedabove, Japanese law gives defendants the rightto remain silent, but if they invoke it (as Ghosndid), judicial interpretations also impose a dutyto endure questioning (Foote, 1991) – andwithout a defense lawyer present (Ibusuki and

Repeta, 2020). Hence, Ghosn was required tosit for hours on end, day after day and weekafter week, while prosecutors asked questionsto which he did not respond. Goto Sadato, aprominent criminal defense lawyer in Osaka,has said that few criminal defendants are ableto wi ths tand th i s k ind o f sus ta inedinterrogation pressure without confessing.Many other Japanese defense lawyers agreewith him.

Ghosn’s case is not unusual. Interrogations bypolice and prosecutors are often long andarduous, averaging more than 21 hours for allcriminal cases, and more than double that forthe serious cases that are eligible for lay judgetrial (Homusho, 2012; see also Keisatsucho,2012). In white-collar crime cases, the totallength of interrogation often exceeds 100hours. By contrast, interrogations in seriousfelony cases in the U.S. average just a fewhours in length, and suspects who invoke theirMiranda rights cannot be interrogated at all(Leo, 1996).

Interrogation in Japan has been the subject ofmuch good research in English (Foote, 1991;Miyazawa, 1992; Foote, 1993; Takano, 2019).Recent reforms require the electronicrecording of interrogations in a limited range ofcases, but even in those cases “the problem ofthe overborne will” that has long plaguedcriminal justice in Japan has not beeneliminated (Johnson, 2002, ch.8). In the U.S.,pressure is routinely employed in pleabargaining, by threatening to impose a large“trial tax” on defendants who have the temerityto exercise their right to trial – and who thenget convicted (Langbein, 1978; Fisher, 2003;B u r n s , 2 0 0 9 ; L y n c h , 2 0 1 6 ) . M a n ycommentators either do not know about thesize of trial penalties or deny their coerciveeffects, but some observers are clear about thisAmerican problem (Rakoff, 2014). As formerChief Judge William G. Young of the FederalDistrict Court of Massachusetts put it in U.S. vRichard Green et al (2004):

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“Evidence of sentencing disparity [trial penalty]visited on those who exercise their SixthAmendment right to trial by jury is today stark,brutal, and incontrovertible. Today, under theSentencing Guidelines regime with its vast shiftof power to the Executive, that disparity haswidened to an incredible 500 percent [thismeans the punishment after conviction at trialis five times the punishment prosecutorsoffered in plea bargaining]…Not surprisingly,such a disparity imposes an extraordinaryburden on the free exercise of the right to anadjudication of guilt by one’s peers. Criminaltrial rates in the United States and in thisDistrict are plummeting due to the simple factthat today we punish people—punish themseverely—simply for going to trial. It is thesheerest sophistry to pretend otherwise.”

In sum, both Japan and the U.S. rely heavily onadmissions of guilt, and the criminal justicesystems in both countries often use high-pressure tactics to achieve that end. Bothsystems also fail to provide adequate judicialoversight of the processes that are used topressure defendants into helping the stateconvict (Foote, 2010; Lynch, 2016). But there isan interesting difference too. While manyinternational legal norms have been institutedto govern the process of criminal interrogation,human rights instruments have little to sayabout the high-pressure practices that makeplea bargaining problematic in the U.S. and inother countries where “trial waiver systems”are expanding (Fair Trials, 2016, pp. 60-69).This gap in international norms may helpexplain why so much criticism was directed atGhosn’s interrogations while the routineAmerican practice of imposing pressurethrough plea bargaining seldom getsrecognized.

While there are significant similarities in ratesof conviction and in the use of high-pressuretactics to obtain them, Japan and the U.S. arecousins, not twins. Several significantdifferences concern pretrial detention. In

Japan, there are no detention “hearings” inopen court. The decision to allow pretrialdetention (which is the outcome in more than95 percent of the cases requested byprosecutors) is made based on review of a casefile that prosecutors send to a judge. Thesuspect and his or her defense counsel have noright to review the file, and they have littleopportunity to exercise meaningful voice beforethe judge’s decision is made. The judge whomakes the detention decision does not need toexplain it. The judge typically asserts,perfunctorily, that detention is “necessary”because the defendant presents a flight risk, acrime risk to the community, or (most typically)a risk of tampering with case evidence, whichis itself a crime (in Ghosn’s case, there wereallegations of witness tampering by his wife;see Inoue, Yamamitsu, and Gall, 2020). Thethree-judge panels who review defense appealsagainst pretrial detention decisions do notexplain their reasons either.

There are also significant Japan-US differencesin the prosecutor’s obligation to discloseevidence to the defense. In Ghosn’s case, muchevidence was withheld from defense lawyers –including evidence that might have helpedGhosn’s defense (Dooley, 2019b). In Ghosn’scase as in many others, Japan’s judicial stancewas “don’t worry, you should trust theprosecutors”. It is an old entreaty – and a weakone (Johnson, 2002, pp.272-273).

The contrasts with American criminal justiceare stark in other ways as well. Most notably,suspects in Japan do not have the right to havea defense lawyer present during interrogation.This is a right in the U.S. (Leo, 2008), and sincethe European Court of Human Rights Salduzjudgment in 2008, in much of the EuropeanUnion as well, though this right has beenrestricted in several European countries(Hodgson, 2020, p.177). In American pleabargaining, too, defense lawyers are oftendeeply involved in negotiat ions withprosecutors, especially in white-collar crime

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cases (see below). And once a suspect invokeshis or her right to si lence in the U.S.,interrogations must cease. Another Americancontrast concerns Japan’s slow pretrialprocedures. It was reportedly the failure of apretrial conference (on December 25, 2019) tomove forward with a trial schedule (over a yearafter Ghosn’s initial arrest) that promptedGhosn to activate his escape plan (Campbell etal., 2020). In Japan, there is also less respectfor the attorney-client relationship andattorney-client privilege, as when Japaneseprosecutors carried out a search-and-seizure inthe law office of Ghosn’s main attorney inJanuary 2020 (Goto et al., 2020). These are allimportant differences, and collectively theysuggest that some of Ghosn’s criticisms ofJapanese criminal justice are valid.

What If?

Although speculative, it is instructive to discusssome scenarios for how Ghosn might have beentreated if his case had occurred in the U.S. Thefollowing four scenarios explore this question.

First, it is possible that allegations againstGhosn would not be seriously investigated inthe U.S. No bankers from America’s topf inancial f irms were charged for themalfeasance that led to the 2008 financialcollapse, and the problem of non-prosecution ofwhite-collar crime extends far beyond finance.Over the past few decades, corporate lobbying,trial losses, cultural shifts, and other social andlegal forces have hindered the ability toprosecute corporate executives in the U.S. AsJesse Eisinger, a Pulitzer Prize-winningreporter at ProPublica has described, theprosecution of white-collar crime in the U.S. isso routinely shirked and avoided that federalprosecutors deserve to be called “thechickenshit club” (Eisinger, 2017). Otherscholarly works reach similar conclusions(Coleman, 2002; Garrett, 2014; Coffee, 2020;Taub, 2020).

In a second American scenario, Ghosn’sconduct would be investigated, but he is notarrested because a capable defense attorney isable to intervene at an early stage of thecriminal process (which seldom occurs inJapan). By obtaining access to case informationearly, and by shaping how that information isdisclosed and interpreted, white-collar crimedefense lawyers in the U.S. are often able toreframe legal arguments and avoid thedetention and conviction of their clients – or atleast mitigate the consequences of conviction.This shaping of facts early in the criminalprocess “lies at the heart of successful defensework” in many American white-collar crimecases (Mann, 1985), and it is more likely tohappen in the U.S. than in Japan.

A third scenario is that the SEC initiates aninvestigation of misleading disclosures underU.S. securities laws (Nissan’s AmericanDepositary Receipts (ADRs), that are equivalentto shares, are traded in the U.S.) and then filescivil charges against Ghosn. Under thisscenario, Ghosn is not arrested and he probablysettles with the SEC by paying a fine andagreeing to other sanctions. This, in fact, washow Ghosn (and Greg Kelly and Nissan) wereactually treated by the SEC. Ghosn settled bypaying a $1 million fine and agreeing to a 10-year ban on serving as an officer or director ofa U.S. reporting company. The two moreserious charges of misuse of corporate funds,which had no direct connection to the U.S.,were not considered in the SEC case – and thisis presumably why the SEC did not refer theGhosn case to prosecutors for criminalinvestigation.

Finally, the fourth scenario is that Americanprosecutors investigate all of Ghosn’s allegedcrimes and indict him on much the same countsthat Japanese prosecutors charged. In thiseventuality, Ghosn would be arrested, and hemight be detained pretrial if prosecutors couldestablish a clear flight risk, but he otherwisewould likely be released on bail. On the advice

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of his defense attorney (who may be present atinterrogations), Ghosn asserts his right toremain silent and interrogations end. If he isfound guilty at trial, there is the potential for amuch longer prison sentence in the U.S. than inJapan (perhaps 8 to 20 years). Facing thelikelihood of a large trial tax if he does go totrial, Ghosn might try to cut his losses bypleading guilty. Considering the enormoussums of (alleged) undisclosed compensation($80 million) and retirement benefits ($60million), an American plea bargain could alsolead to a substantial term of imprisonment(perhaps 4 to 6 years).

In the fourth scenario, there would likely beconsiderable pressure placed on Ghosn toreach a plea agreement with prosecutors in theU.S. American prosecutors might also grantimmunity to other Nissan offenders in order toobtain testimony against Ghosn – as happenedin Ghosn’s case in Japan. In the U.S. suchgrants of immunity often lead to miscarriagesof justice (Natapoff, 2011), and in Japan, too,many observers worry about this risk under theplea- bargaining law that took effect in 2018(Ibusuki, 2020; Ohno, 2020). The pressure toplead guilty in the American system wouldcome from the “system” (sentencing guidelinesand trial taxes), not just from prosecutors, whomight “overcharge” Ghosn in order to increasetheir own leverage in plea negotiations. IfGhosn resists this attempt at let’s-make-a-deal(as he resisted pressure in Japan to confess),American prosecutors could ratchet up thepressure, by indicting or threatening to indictfamily members who allegedly benefited fromhis misuse of corporate funds and who mayhave aided Ghosn (his wife, Carole, wasindicted in Japan for perjury following Ghosn’sflight to Lebanon, for allegedly making falsestatements about her contacts with Ghosn’sassociates in the Mideast; Inoue, Yamamitsuand Gall, 2020). In this scenario, it is not at allobvious that Ghosn’s treatment in the U.S.would be better than his actual treatment inJapan.

Conclusion

Although Ghosn has fled to Lebanon, heremains a lurking presence in the trial of hisaide, Greg Kelly, which began in Tokyo inSeptember 2020. The strength of theprosecutors’ case will eventually be revealed incourt, at least with respect to the two counts offalse information disclosure. Ironically, thedefense and the prosecution seem to agree onthe basic facts of the case (both Ghosn andNissan kept careful track of his remainingundisclosed “compensation”), but they disagreeon the meaning of the facts and on the intent ofthe parties involved. A criminal investigation inFrance and a civil lawsuit filed by Nissanagainst Ghosn in Yokohama are also ongoing.

Ghosn himself continues to proclaim hisinnocence. In September 2020 he announcedthat he would be coaching top executives at aLebanese business school on how to “makeyourself invaluable” in a company (Reuters,2020), and in November 2020 he filed a formaldeclaration in a U.S. federal court supportingtwo Americans (who aided his escape fromJapan) who are opposing their extradition toJapan to stand trial, stating that they could face“human rights abuses” by the Japanesegovernment (Yaffe-Bellany, 2020). Ghosn’s ownrole in Nissan’s turnaround was significant, butit may have been exaggerated because of themedia’s fondness for images of the “CEO assuperstar.” His story is also a cautionary tale ofhow a CEO who starts out being an effectivecompany leader may, over time, end up beingsurrounded by yes-men and develop an attitudeof entitlement that company assets are his ownresources.

Ghosn’s case illustrates several seriousweaknesses in Japanese criminal justice--notonly the problems of prolonged detention andinterrogation without attorneys that have beencharacterized as “hostage justice,” but alsolesser known but important issues of limitations

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on the role of defense attorneys, a lack ofjudicial transparency and accountability, andfailures to disclose relevant evidence to thedefense.

We should also view this case in perspective.The workings of criminal justice systems areoften controversial, for they attempt to achievea balance between many values that are intension, from crime control and public safety topower control and individual rights. There arealso significant gaps between the high idealsthat underpin criminal justice systems and themessy realities of criminal procedure inpractice. In the end, it is hard to call Japan’scriminal justice system a “failure” (or the like)when the country in which it operates has someof the lowest crime rates in the world andrelatively few of the problems that afflictAmerica’s “unusually cruel” system of criminaljustice (Howard, 2017) -- such as the world’shighest incarceration rate (16 times higherthan Japan’s) and harsh jail and prisonconditions, high rates of arrest (more than 30percent of Americans are arrested at least onceby age 23) and of killings by police (threepersons a day, on the average, compared toabout three a year in Japan), and large racialand class disparities throughout the Americansystem (Garland, 2020).

Much of the commentary on Ghosn’s case hasrelied on implicit or inapt comparisons and lazycaricatures. The impressions thereby createdhave been simplistic and misleading. Japanesecriminal justice has many weaknesses, but ifGhosn’s case had occurred in the U.S., it is notobvious that he would have fared better, nor isit clear that the interests of justice would havebeen better served. The ultimate impact ofGhosn’s case remains uncertain – in Japan andother countries, it is not over yet. We hope thatthe increased attention it has stimulated willaid efforts to reform Japanese criminal justice.We also hope it motivates sound comparativeresearch about criminal justice practices andproblems in Japan and the U.S.

Appendix – Timeline for the Carlos GhosnCase

May 2018 Internal investigation begins.Whistleblowers provide specif icinformation about Ghosn’s personal useof corporate funds—Nissan creates asmall internal investigation team thatdiscovers suspicious use of funds.June 2018 Investigation team goes toprosecutors. Investigation team consultswith lawyer (retired prosecutor) and thenprov ides documents to Spec ia lInvestigation Department of TokyoDistrict Prosecutors Office.Aug. 2018 Plea bargain. Two seniorexecutives, Nada Hari and OnumaToshiaki agree to cooperate withprosecutors.Nov . 19 , 2018 Ghosn and Ke l lyseparately “lured” to Japan to attendboard meeting, arrested on Count 1, andtaken to Tokyo Detention Center. At anews conference that evening, Ghosn’ssuccessor as CEO, Saikawa Hiroto,accuses Ghosn of wrongdoing andconcentrating too much power.Nov. 21, 2018 Tokyo District Courtapproves prosecutors’ request forGhosn’s detention for 10 days.Nov. 22, 2018 Nissan dismisses Ghosn aschairman and str ips Kel ly of hisrepresentative-director role. MitsubishiMotors ousts Ghosn as chairman on Nov.26. Renault names Thierry Bolloreinterim CEO on Nov. 20, but Ghosnremains as formal chairman and CEO ofRenault.Nov. 30, 2018 Tokyo District Courtapproves prosecutors’ request for a 10-day extension of Ghosn’s detention.Dec. 10, 2018 Ghosn indicted on Count 1and re-arrested on Count 2. Kelly andNissan are also indicted.Dec. 11, 2018 Tokyo District Court

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approves prosecutors’ request forGhosn’s detention for 10 days based onCount 2.Dec. 20, 2018 Tokyo District Court(unusually) refuses prosecutors’ requestfor a 10-day extension of Ghosn’sdetention based on Count 2. Prosecutors’appeal is rejected and the court’sdecision raises hopes of a quick releasefor Ghosn.Dec. 21, 2018 Ghosn arrested again onCount 3. This is a more serious crime. Itkeeps Ghosn in detention and ends anypossibility of an early release.Dec. 23 Tokyo District Court approvesprosecutors’ request for Ghosn’sdetention for 10 days based on Count 3.Dec. 26, 2018 Kelly released on bail uponpayment of 70 million yen ($700,000) formedical reasons (must remain inapartment in Tokyo).Dec. 31 Tokyo District Court approvesprosecutors’ request for a 10-dayextension of Ghosn’s detention.Jan. 8, 2019 Ghosn’s f irst courtappearance at his request concerningdetention and bail. Ghosn declares hisinnocence. Judge states that Ghosn’scontinued detention is necessary due toflight risk and the possibility he couldconceal evidence.Jan. 11, 2019 Ghosn indicted on Count 2and Count 3. Kelly and Nissan indictedon Count 2.Jan. 23, 2019 Ghosn resigns as chairmanand CEO of Renault. The following dayRenault appoints Jean-Dominique Senardas chairman and Thierry Bolloré as CEO.Feb. 13, 2019 Ghosn changes lawyers.Ghosn replaces a retired formerprosecutor, Otsuru Motonari (formerhead of the Special InvestigationDepartment) with a more aggressivedefense team headed by HironakaJunichiro, nicknamed “The Razor” and awell-known bail specialist, TakanoTakashi.

March 6, 2019 Ghosn released on bail, inhis third attempt (the first by his newlegal team). Ghosn is released uponpayment of 10-billion yen ($10 million)bail under strict conditions includinghouse arrest. He famously leaves thedetention center dressed as a manuallaborer. He was in detention for 108days.April 3, 2019 Ghosn speaks out. Ghosnopens Twitter account and announcespress conference on April 11 to “tell thetruth.”April 4, 2019 Ghosn arrested for the 4thtime on Count 4. Ghosn is returned toTokyo Detention Center.April 5, 2019 Tokyo District Courtapproves prosecutors’ request forGhosn’s detention for 10 days.April 8, 2019 Ghosn removed as directorat extraordinary Nissan shareholders’meeting. April 9, 2019 Ghosn video alleges “plot”and “conspiracy.” Ghosn’s lawyersrelease video (made prior to his mostrecent arrest on April 4) at ForeignCorrespondents’ Club of Japan.April 12, 2019 Tokyo District Courtapproves prosecutors’ request forGhosn’s detention for 8 days from April15 based on Count 4.April 22, 2019 Ghosn indicted for Count4. Nissan announces it has filed acriminal complaint with prosecutors overpayments to overseas companies thatwere allegedly “directed by Ghosn for hispersonal enrichment.”April 25, 2019 Ghosn released again onbail of 5 billion yen ($5.0 million) withstrict conditions, including limitingcontact with his wife. He was indetention for 22 days.April 26, 2019 Prosecutors decide not toindict Saikawa Hiroto, Ghosn’shandpicked successor as Nissan’s CEO.The decision not to prosecute Saikawa islater affirmed by a citizen’s review panel

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on Jan. 28, 2020. May 23, 2019 Pretrial conferenceprocedure begins at Tokyo DistrictCourt. June 2019 French investigation. Renaultinvestigation uncovers 11 million Eurosof questionable expenses by Ghosn,mainly related to a Netherlands-basedRenault-Nissan holding company. TheFrench state opens its own investigation.Sept. 9, 2019 Saikawa’s resignation asNissan’s CEO is announced immediatelyafter a board meeting. Uchida Makoto(former head of Nissan’s joint venture inChina) becomes new CEO of Nissan onDec . 1 , 2019. At h i s f i r s t pressconference he says changes are neededin the Renault-Nissan-Mitsubishi allianceto spur sales and earnings.Dec. 31, 2019 Email announcement fromGhosn that he fled Japan and is inLebanon. Forfeits combined bail of 1.5billion yen ($15.0 million).Jan. 2, 2020 Interpol arrest warrant forGhosn. Lebanon receives arrest warrantand Turkey begins investigation intoillegal chartering of plane.Jan. 7, 2020 Arrest warrant issued forGhosn’s wife. Japanese prosecutorsallege Ghosn’s wife committed perjury.Jan. 8 , 2020 Ghosn holds pressconference in Lebanon.Jan. 29, 2020 Prosecutors conduct asearch and seizure at the law office ofGhosn’s lawyer, Hironaka.Feb. 12, 2020 Nissan files a civil lawsuitin Japan (Yokohama District Court)against Ghosn for 10 billion yen ($100million) in damages relating to Nissan’sfines, Ghosn’s use of company funds forpersonal expenses and the costs ofinvestigation.Feb. 19, 2020 French prosecutorsannounce they have opened a criminalinvestigation concerning Count 4 (theOman route) and 11 million Euros ofquestionable expenses cited in the 2019

Renault investigation. Feb. 29, 2020 Japan’s Financial ServicesAgency finalizes and issues an order toNissan to pay a fine of 2.4 billion yen($24 million) for underreporting thecompensation of Ghosn and otherexecutives.May 21, 2020 Michael Taylor and PeterTaylor, who assisted in Ghosn’s escapef r o m J a p a n , a r e a r r e s t e d i nMassachusetts at the request of theJapanese government.Sept. 15, 2020 Trial of Greg Kelly beginsin Tokyo concerning Count 1 and Count2. Kelly pleads not guilty. Sept. 27, 2020 Ghosn announces his planto launch a management and businesstraining program at the Universite Saint-Esprit de Kaslik (USEK), a privateuniversity near Beruit, stating that “Therole model is my experience, what I thinkare the basic needs of a top executive ina very competitive environment.” Nov. 10, 2020 Ghosn intervenes inextradition case of Michael and PeterTaylor. Fi les formal declarationsupporting their opposition to extraditionto Japan, stating that the Taylors couldface “human rights abuses” by theJapanese government.Nov. 11, 2020 First hearing held inYokohama District Court in Nissan’s civillawsuit against Ghosn.Nov. 20, 2020 The U.N. Human RightsCouncil’s Working Group on ArbitraryDetention, an independent panel ofexperts, issues a nonbinding opinion thatGhosn’s detention in Japan was arbitrary.It recommends that Ghosn be awarded aright of compensation as a remedy. Itdoes not address the merits of thesubstantive charges. The Japanesegovernment rejects the opinion.

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Bruce E. Aronson is Resident Affiliated Scholar, U.S.-Asia Law Institute, New YorkUniversity School of Law (ba1525@nyu.edu). His main area of research is comparativecorporate governance with a focus on Japan. Recent publications include CorporateGovernance in Asia: A Comparative Approach (with J. Kim, eds., Cambridge University Press,2019).

David T. Johnson is Professor of Sociology at the University of Hawaii at Manoa(davidjoh@hawaii.edu). He is the author of many works on criminal justice in Japan, includingThe Culture of Capital Punishment in Japan (Palgrave, 2020), which is available by openaccess.

https://apjjf.org/mailto:ba1525@nyu.eduhttps://www.amazon.com/Corporate-Governance-Asia-Comparative-Approach/dp/110842077X/?tag=theasipacjo0b-20https://www.amazon.com/Corporate-Governance-Asia-Comparative-Approach/dp/110842077X/?tag=theasipacjo0b-20https://apjjf.org/mailto:davidjoh@hawaii.eduhttps://www.palgrave.com/gp/book/9783030320850