Former Nissan executive Greg Kelly, left, faces a charge involving ex-company chief Carlos Ghosn, in Tokyo. Photo: AFP

Not all eyes – there’s still Ukraine, after all – but many eyes will be on Tokyo Thursday, March 3, when the Tokyo District Court hands down its verdict in the Greg Kelly trial.

The fact that the presiding judge didn’t toss the case out when he learned that Kelly’s main accuser, Hari Nada, and one of the two lead outside lawyers advising Nada and other members of the coup, Hiroki Kobayashi of the firm Latham & Watkins LLP, had concealed exculpatory evidence speaks tons about the corruption of the Japanese criminal justice system and this case in particular.

Kelly is innocent – not merely “not guilty” – as we’ve reported and demonstrated. Even though the judge, Kenji Shimotsu, didn’t demand admission into his court of the proof of Kelly’s innocence – a July 3, 2019, interview of Nada by Kobayashi and three other Latham lawyers – that proof is not going away. 

Beyond which: Rahm Emanuel’s word is on the line. In his Senate confirmation hearings, America’s new ambassador to Japan declared : “The number one responsibility of an embassy and an ambassador is to … ensure the safety of a US citizen on foreign soil. You have my word as I said to you privately. I’m saying it now publicly.”

Emanuel was speaking to William Hagerty, the junior US senator from Tennessee and former US ambassador to Japan, his soon-to-be predecessor in Tokyo, who had just introduced him to the Senate Foreign Relations Committee in his confirmation hearing last October. And he clearly identified Kelly as a “constituent” of the Tennessee senator.

Emanuel, a former Illinois congressman, Chicago mayor and presidential advisor,  reiterated his position at a Friday news conference in Tokyo. While declining to answer a reporter’s question about what he would do if Kelly is found guilty, he said – his exact words – “I am now here as a representative of the United States. Mr Kelly is a citizen of the United States, and this comes with the obligation as ambassador of the United States to advocate on his behalf. 

“While I don’t want to say anything that would adversely affect any chances that he [Kelly] can be reunited with his family and grandchildren … I will obviously speak about it afterwards.”

US Ambassador Rahm Emanue3l speaking at the Foreign Correspondents’ Club of Japan on Friday. Photo: US Embassy Japan

To be clear, if Kelly is found guilty, there is no guarantee he won’t be tortured again. And, yes, he was tortured at the hands of his Japanese captors as were two other Americans, Mike and Peter Taylor, also “constituents” involved in the broader Carlos Ghosn case, as well as Ghosn himself. We plan to publish a separate report updating readers on the dire situation involving the Taylors.

We quote Article 1 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment:

The term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining … information or a confession …

In a corollary to the UN anti-torture treaty – which has legal standing because it’s a “treaty” signed by Japan and more than 140 other countries – the Nelson Mandela Rule, passed by the UN General Assembly in 2015, puts a 15-day limit on how long a prisoner can be held in isolation. It sets minimum personal hygiene conditions to keep prisoners “clean” and includes a requirement that prisoners have “at least one hour of suitable exercise in the open air daily,” weather permitting.

We’ll begin with Kelly’s previous treatment and then in a follow-up report share some new information about the Taylors’ dire situation today. The US Embassy is fully aware that Japanese prison authorities are not living up to international standards and that Kelly was tortured in the past and that the Taylors (Mike, the father, for sure) are being tortured today.

As in the past, we have reached out to the International Affairs Division of the Criminal Affairs Bureau of the Ministry of Justice for comment. They haven’t gotten back yet this time, but they usually do – with a “no comment.”

The case

Kelly, after having been effectively kidnapped – he was flown back to Japan on false pretenses in a Nissan corporate jet arranged by Hari Nada – was taken directly to the Tokyo Detention House (prison) on November 19, 2018, and there was subjected to five consecutive weeks of interrogation without a lawyer present. 

We’ve gone into detail about his experience – kept in solitary confinement for 37 days, to be exact, in the dead of winter in an unheated cell, initially without winter clothing. On a number of nights, temperatures fell into the 30s Fahrenheit.

Lights were on in his cell 24 hours per day. And during the day, when he wasn’t being interrogated, he would have to sit in the corner, legs stretched forward and not allowed to stand up and walk around for exercise. On weekends and holidays, he was not allowed outside his cell for any “open-air” exercise.

He badly needed neck surgery. In fact, the prosecutors’ office tried to prevent him from having his surgery while continuing daily interrogations, which ran for between four and six hours.

He was permitted only two showers per week.

Ghosn’s experience was worse because it was longer – 109 days following his initial arrest, then another 21 days as punishment for trying to speak to the press. The UN Convention also prohibits torture as punishment for any act that the tortured person ” has committed or is suspected of having committed.”

Note that Kelly was finally released on December 25, 2018. He would have his surgery on January 4, 2019, one month late. As we’ve reported, his American surgeon, who is rated as one of the best in the US, has yet to examine him to determine the extent of any neurological damage from his incarceration and the delay in surgery.

After his surgery, Kelly and his wife have lived in relative seclusion in a modest Tokyo apartment. They must be careful with whom they socialize part because Nissan early on had hired investigators to follow not only Ghosn and his family but Kelly and his. And Renault executives. And journalists. It’s not speculation.

In his nearly three and a half years in Japan, he’s missed four Thanksgiving and four Christmas holidays with his family. He’s never met his youngest grandchild. And he’s more than just a Tennessee constituent, he was born in Chicago and grew up in the suburbs. And he’s had the support of more than just the junior senator from Tennessee.

So, Mr Ambassador, speaking as an American citizen and removing my journalist hat, what are you going to do to keep Greg Kelly from going back into the hell hole he was in three years ago if the panel of judges finds an innocent man guilty?