On September 15 – the day he celebrated his 64th birthday – Greg Kelly stood in the Tokyo District Court and stated that he was not guilty of the prosecutors’ claim that he had conspired with Carlos Ghosn, the former chairman of Nissan, to under-report his pay by billions of yen. And he is quietly determined to clear his name by the time his next birthday comes around.
It has been nearly two years since Kelly was arrested after touching down in Tokyo aboard a Nissan corporate aircraft on Nov 19, 2018. He was held in solitary confinement for 34 days and interrogated repeatedly without his own lawyer present. A quietly spoken and thoughtful man, he comes across as genuinely bemused as to why he is even on trial.
Kelly, Carlos Ghosn's closest aide at Nissan, will be back in court tomorrow for the third day of a case that is expected to last 10 months and has attracted worldwide attention. It has been suggested that Japan’s judiciary was humiliated when his co-defendant managed to slip out of the country in December, concealed in a case for a large music speaker that was placed aboard a private jet.
Although he bears no ill will to his old boss, Kelly does believe that Ghosn's support woul have helped in the fight to clear his name.
“Carlos Ghosn is the main witness and he can testify to what I was and what I was not involved in, so I would love to have him here as a witness,” he says.
The 66-year old Ghosn fled to Lebanon, which does not have an extradition treaty with Japan. Since his escape, he has been highly critical of his treatment at the hands of the prosecutors and has stated that he jumped bail because he feared being “held hostage by a rigged Japanese justice system”.
His escape attracted headlines around the world and triggered an inquiry within the Ministry of Justice as to how a man who had been almost constantly in the Japanese news for the previous 14 months had slipped through the authorities' fingers.
With that fresh in their minds, one of Kelly’s lawyers insists that Japanese prosecutors are doing everything in their power to “tilt the playing field” away from his client and his defence team, but the repeated delays in the trial still suggest very strongly that they do not have a case against his client. And, he says, they know it.
“Carlos Ghosn was a very, very talented executive and there were reasons that were in Nissan’s best interests to retain him,” says Kelly, who is from Nashville in Tennessee.
“I worked with others at Nissan to consider that and, if we had walked into a board meeting in November 2018 instead of into the detention centre, and the board said the company didn’t want to retain him, Ghosn had no enforceable agreement and he was not going to get paid,” he says.
“For me, the whole process has been strange because it’s something that should have been settled at Nissan; it’s a corporate issue.”
Instead, Kelly was imprisoned for more than a month and has effectively been under house arrest since he was freed. He is not permitted to travel overseas or even outside Tokyo without the consent of the court. And he is frustrated at the pace of the inquiry.
“Why have I had to wait two years to start this trial when in any other country it would take about four months?” he tells The Telegraph. “And I have to wait for another year for a decision by a court. That’s three years of my life for a situation in which Carlos Ghosn was neither enforceably promised anything and never paid anything.
“That’s been stressful for my wife and I because, when you’re in your 60s, three years of house arrest is not the most fun thing in the world,” he says.
James Wareham, a partner with Fried, Frank Harris, Shriver & Jacobson LLP In Washington, is less circumspect in his assessment of the Japanese legal system, insisting that the charges against Mr Kelly are “constitutionally infirm and vague under a rational, legitimate system, so as I understand the Japanese system, it is not fair, it is not rational and it is not a first-world system”.
He points out that 98pc of cases heard in a Japanese court are completed in less than two years from indictment and wrapped up within four months.
Wareham echoes Ghosn’s claim of “hostage justice” for his client, saying the prosecution were fully aware that Kelly was due to undergo much-needed surgery on his neck and subjected him to more than a month of solitary confinement hoping he might “say whatever they wanted him to say – and that when he didn’t they haven’t the foggiest notion of what to do”.
Japanese courts have refused to permit simultaneous translations in Kelly’s hearings, significantly slowing down proceedings. They have repeatedly postponed the start of the case and refused three requests to permit him to return to the US until the hearings started. That is almost certainly because he is considered a flight risk, particularly after Ghosn fled – but Kelly insists he would have come back because he is adamant that he is innocent.
In another frustration for the defence, prosecutors have provided them with several hundred million pages of electronic documents that can only be viewed on computers in the offices of Kelly’s Japanese defence team in Tokyo. Those documents cannot be shared via email or the internet, while Kelly’s US attorneys are unable to travel to Japan due to coronavirus quarantine regulations and cannot see all the evidence.
In addition, and despite the case opening, Wareham says the prosecution has still not shared all the evidence with the defence.
“This trial will be completed and I will still not have been able to review millions of documents because of the restrictions mandated by the prosecutors - and I have never seen that before,” he says.
And he admits that he has concerns about Kelly receiving a fair trial.
“He is so demonstrably and fundamentally innocent that I have optimism,” he says. “However, I have been doing this for 34 years and when the principal witness gets in a box and heads to Lebanon, when the prosecution produces more than a billion pages of documents and prevents us from using modern techniques to access that information, and when the pre-trial motions for return to the US, for simultaneous translation and other things are so summarily denied, I have real concerns.”
For his part, Kelly says he had no inkling that Ghosn was planning to flee Japan and, under the terms of his bail, has had no contact with the former Nissan chairman since he left the country.
Remarkably, the prosecution is attempting to keep the formal statements made by Ghosn while in detention out of the evidence presented in Kelly’s trial because, Wareham says, it is “exculpatory with respect to Mr Kelly”. He adds that it is “astounding” that prosecutors are trying to exclude such powerful evidence from the trial.
Prosecutors accuse Kelly of conspiring with Ghosn to conceal his remuneration from shareholders by around Y9bn (£66.9m) over eight years in a scheme that would have given Ghosn deferred payments after he retired from Nissan. Kelly is accused of submitting to Japanese authorities financial reports that specified Ghosn’s pay as Y7.9bn (£58.7m) but that the actual amount he received a year totaled Y17bn (£126.4m).
If convicted, Kelly faces up to 10 years in prison - but he says all he can focus on is getting back to the US to see his sons and grandchildren, one of whom he has never had the chance to meet.
“We’re simple people,” he says, indicating his wife, Dee, who has remained with him in Tokyo throughout the case. “I’m very very fortunate to be married to Dee because she has been an unbelievable support, but let’s say that I live to be 80 years old, this is going to be 15pc of the rest of my life.
“For us family is everything. We like to hike, we like to exercise, we like each other – but we really like our family,” he says. “And that has been the most difficult thing that we have had to face, just not being with the family.”