Greg Kelly's prosecutors have painted themselves into a corner

Oct 13, 2020 | News On Japan

Oct 13, 2020 (Nikkei) - A chain of misjudgments and unexpected events, not least Carlos Ghosn's escape to Beirut, have sent Japanese prosecutors and former Nissan Motor general counsel Greg Kelly on a collision course set to unfold in his long-awaited trial over the next nine months.

The single criminal charge against Kelly, that he helped Ghosn understate his compensation in Nissan's securities reports, was never intended by the prosecutors to be the main show. At best, it was a preliminary setup punch -- the initial pretext to arrest, detain and interrogate Ghosn and Kelly, and to fish for evidence of more serious wrongdoing against the primary target, Ghosn.

Quite likely, the prosecutors hoped Kelly would cop a plea on the minor initial charge for time already served in detention in exchange for delivering the goods against his former boss. In any event, Kelly was never the main target. He was released from detention after five weeks as additional, more serious embezzlement charges were brought against Ghosn.

Ghosn's exfiltration to Lebanon in December 2019 turned the prosecutor's plans upside down. With Ghosn out of reach, leniency for Kelly in exchange for ratting on Ghosn no longer made sense. Events unexpectedly made Kelly the main event -- over a dubious charge that was always the weakest card in the prosecution's hand.

The stakes for the prosecutors could not be higher. Dismissal of the charges would be a devastating loss of face that would allow Ghosn to crow from his hideout in Beirut, "See, I told you I was innocent." Unfortunately for Kelly, Japanese prosecutors rarely lose, and even more rarely when it is a must-win case.

It is hard not to see this as a case of selective prosecution. Why is Greg Kelly being singled out for what was clearly a collective breakdown of corporate governance? Former Nissan president Hiroto Saikawa countersigned the side letters documenting Ghosn's post-retirement compensation and certified the securities reports that failed to report it. Saikawa has not been criminally charged.

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