(Sept 14): Almost two years after arriving in Japan for what he thought would be a quick two-day business trip, former Nissan Motor Co. director Greg Kelly faces a trial in Tokyo scheduled to last 10 months — and could land him in jail for as long as a decade if convicted.
The sole individual defendant in a case that has drawn global attention after former Nissan Chairman Carlos Ghosn’s audacious escape from Japan, the criminal trial of Kelly is set to start Sept. 15, his 64th birthday. The U.S. citizen has been charged by Japanese prosecutors for his role in an alleged conspiracy to understate Ghosn’s compensation by tens of millions of dollars, something Kelly strongly denies.
Kelly’s family and attorneys have questioned his ability to get a fair trial without his ex-boss’s testimony and criticized the slow pace of judicial proceedings in Japan. The trial has already been delayed multiple times, and will extend through July — with a verdict not anticipated until next fall. Kelly and his lawyers won’t discuss details about their strategy, but he has plead innocent and hopes to be fully exonerated.
“I feel like I’ve already lost,” Kelly said in an interview. “I was detained shortly after I turned 62, and I’m going to be 65 before the court makes a decision on this case. It’s a violation of my human rights.”
Kelly, along with Ghosn and Nissan, was charged in December 2018 of helping Ghosn hide about 9 billion yen (US$85 million) in compension over eight years. Ghosn was later indicted on breach of trust charges for allegedly funneling the automaker’s money in the Middle East to accounts that he controlled. Ghosn has said that he was a victim of a plot orchestrated by Nissan insider Hari Nada and others to remove him and prevent Nissan from deepening its ties with Renault SA, its two-decade partner in a global automaking alliance.
Ministry of Justice officials have said Kelly will get a fair trial and that Japan’s jurisprudence is on par with other industrialized nations. After Ghosn fled the country at the end of December, the justice minister and government officials defended the system, saying that it was fair and helped to keep the country’s crime rate low. A representative for Nissan declined to comment. The Tokyo prosecutors office didn’t respond to a faxed request for comment.
The circumstances of the trial, from Ghosn’s dramatic escape to the toll it has taken on the automaker, are unusual in a country where dour court proceedings and a 99% conviction rate are the norm. The automaker itself is also a defendant in the trial, but is in the odd position of fully admitting to the charges and cooperating with prosecutors.
Lack of outrage
The American executive won’t take the stand until May, but will have a front seat as a parade of witnesses — mostly his former Nissan colleagues, possibly including current Chief Executive Officer Makoto Uchida — are called to testify. While Kelly’s lawyers, family and a few U.S. politicians have spoken out in his defense and criticized Japan’s judicial system, few of his peers in Tokyo’s business circles and diplomatic corps have rallied publicly to the cause of the embattled expatriate.
Representatives for Kelly say many friends and business contacts have expressed support for him privately but are afraid to do so publicly for fear of unspecified retribution by their employers with operations in Japan or from Japanese authorities. Neither the American Chamber of Commerce in Japan or the U.S.-Japan Council, a leading non-profit business group of executives, have weighed in on the case or provided a comment when contacted ahead of the trial start date.
“I’ve been surprised there hasn’t been more concern voiced by the business community,” said Kevin Kelly, who has created a Change.org petition in support of his father. The younger Kelly sees a disturbing precedent in prosecutors’ decision to charge only foreigners. Although not necessarily punishable by law, other executives at Nissan received excess compensation, including its former CEO Hiroto Saikawa.
The U.S. Embassy in Tokyo and State Department have declined to comment specifically on Kelly’s case, citing privacy concerns. “When a U.S. citizen is detained overseas, the Department works to provide all appropriate consular assistance,” a State Department spokesman said in an email.
A trio of U.S. senators representing Mississippi and Tennessee — two states where Nissan has significant business operations — have been among the few public figures to speak out against Greg Kelly’s treatment in Japan.
“The arrest and prosecution of Mr. Kelly should serve as a warning to Americans and other non-Japanese to be cautious of doing business with Japanese enterprises. This is clearly an abuse of the criminal process to resolve a corporate dispute,” Sen. Roger Wicker of Mississippi said in an emailed statement.
Kelly’s attorneys say they have been constrained by strict limits on their access to case documents such as a court mandate restricting them to computers without internet access at his Japanese lawyer’s office in Tokyo. What’s more, the prosecution produced 84 additional boxes of material a year ago, but so far have handed just half a dozen of them to the defense.
“It’s as unfair a playing field as I’ve ever seen,” said James Wareham, a Washington-based attorney who’s representing Kelly in the U.S. “There’s no way he can get a fair trial in Japan.”
Unlike a related but separate case involving two Americans allegedly involved in Ghosn’s escape plot, who now face extradition to Japan under long-established legal protocols, Wareham said Kelly was lured to Tokyo in November 2018 on false premises by a former colleague cooperating with prosecutors. Kelly was arrested shortly after flying into the city and spent a month in solitary confinement undergoing questioning without a lawyer present, as is common in Japan, before being released on bail.
“The Japanese prosecutors skirted extradition to get my dad,” said Kelly’s son, who works as a data scientist in the Seattle area. “They did that because they have such a weak case.”
The Kellys own a home near Nashville, Tennessee and a vacation property in Florida, where they had planned to be living in retirement by now — hosting grandkids and taking an occasional hunting or fishing trip. Kelly stepped down from operational roles while retaining a board seat in 2015 after a 30-year career at Nissan. He was stripped of that seat after being arrested and his legacy is in tatters at the automaker, which has accused him of masterminding an illicit payment scheme.
“I’m worried he’ll never recover from the trauma,” the younger Kelly said. “They’ve robbed us of the one thing you can’t replace — and that’s time.”