Ghosn lawyers ask court to dismiss charges, citing violation of rights

TOKYO -- The lawyers for indicted former Nissan Chairman Carlos Ghosn have petitioned a Tokyo court to dismiss the charges, arguing he is innocent and that prosecutors violated his rights by engaging in such activities as illegal evidence collection and conspiring with Nissan against him.

The filings were submitted in advance of a pre-trial hearing on Thursday before the Tokyo District Court and outline the first detailed look at Ghosn's defense strategy.

Ghosn's attorneys take direct aim at prosecutors in a point-by-point attack on the validity of the investigation that resulted in Ghosn's stunning Nov. 19 arrest last year. They then check off counterarguments to the four main accusations leveled against the fallen automotive titan.

Central to the defense is the argument that prosecutors illegally conspired with certain Nissan executives and government officials to frame Ghosn in a coup aimed at removing him from power and preventing further integration of Nissan with its French alliance partner Renault.

"The prosecution against him resulted from unlawful collusion between the prosecutors, government officials at METI [Ministry of Economy, Trade and Industry], and executives at Nissan, who formed a secret task force to drum up allegations of wrongdoing by Mr. Ghosn as a pretext to remove him as head of the Alliance," Ghosn's attorneys said in a statement on Thursday.

They also charge that prosecutors illegally handed prosecutorial and investigative powers to Nissan employees, who then allegedly assembled evidence against Ghosn at their behest.

Ghosn's attorneys say Nissan unlawfully dispatched employees to invade Ghosn's residences and illegally seize personal property and attorney-client privileged files, while prosecutors did the same with attorney-client privileged notes and legal documents from Ghosn's wife, Carole Ghosn.

Moreover, prosecutors engaged in unfair bias by charging Ghosn, who is non-Japanese, while ignoring admitted wrongdoing by other Nissan executives who are Japanese, the filings allege.

Ghosn’s defense team is also struggling to gain access to evidence, said Junichi Hironaka, one of Ghosn’s lead lawyers in Japan. Speaking after the Thursday hearing, Hironaka said Nissan has requested that prosecutors not share some 6,000 pieces email and other digital evidence. 

“That remaining evidence is what prosecutors don’t want us to see. So, we can assume that the evidence should be of benefit to us once,” Hironaka said. “They are withholding evidences, so there is no telling what has been deleted.”

Hironaka said the defense has filed an appeal with the country’s Supreme Court to compel prosecutors to share the evidence. For evidence that prosecutors deemed OK to share, Hironaka said his team is also hobbled by restrictions against the photocopying documents.

“This is quite unrealistic, making it very difficult for us to do our defense activities,” he said.

Additionally, Ghosn's counsel argues, his right to a speedy trial has been violated because even now, almost one year after his initial arrest, he still has no confirmed start date for a trial.  Hironaka said after hearing that the court only expects to start the trial sometime in April.

"Today's court filings detail a pervasive pattern of illegal misconduct by the Tokyo prosecutors that makes it impossible for Mr. Ghosn to receive a fair trial, and requires dismissal of the charges against him," Ghosn's legal team said. "The prosecutors' case, which was politically motivated and poisoned from the start, is fundamentally flawed and contradicted by the evidentiary record.

"This case should never have been brought," their statement said.

Nissan said it doesn’t comment on judicial proceedings.

Ghosn faces four indictments in Japan. The first two are charges of failing to disclose tens of millions of dollars in deferred compensation. The two other counts are breach of trust charges that accuse Ghosn of diverting company money for personal gain.

Ghosn, who denies the entire slate of charges, faces up 15 years in prison and a fine of up to 150 million yen ($1.4 million) if convicted on all four counts.

Ghosn has assembled a high-powered, international defense team, including lawyers from the U.S. firm Paul, Weiss, and attorneys in France. Leading the defense from Japan is a local team that includes heavy-hitting attorneys Junichiro Hironaka and Takashi Takano.

They detailed their strategy for the first time on Thursday in a charge-by-charge rundown.

On the first two charges of millions of dollars in unreported compensation, they say Nissan's securities filings accurately disclosed Ghosn's actual compensation. Regarding the unreported compensation, they say Nissan never committed to paying it and Ghosn never received it.

Regarding the first breach of trust allegation, they argue that the financial transactions in question never caused financial loss to Nissan and that Ghosn paid the money back per contract.

Meanwhile, Ghosn's team tries to undermine the two other accusations, that he siphoned money from Nissan and fed it through business associates in the Middle East in a scheme that, in one case, allegedly circulated millions of dollars back into the pockets of Ghosn or family members.

Ghosn's defense counters that Nissan paid the parties in question because they were legitimate payments for business services, such as reimbursement for expenses, marketing bonuses or incentives. Additionally, the disbursements were fully vetted and approved by multiple senior Nissan executives, including former CEO Hiroto Saikawa, in one case, they say.

Finally, the filings say, none of those Nissan funds were transferred for the benefit of Ghosn or his family.