Kelly found himself on the front line in this case after Ghosn, the main suspect, fled to Lebanon at the end of 2019.
This American lawyer, whose sixty-fourth birthday coincides with the date of the start of the trial, is the only defendant who appears personally before the court, while Nissan is represented as a legal person.
The trial is expected to last about ten months and come nearly two years after Ghosn and Kelly were arrested.
The central question foreshadows heated debate: Did Nissan and Kelly intentionally and unlawfully hide from 2010 to 2018 the reference in the group’s annual stock market reports to an income of around 9.2 billion yen (€ 73 million) that Ghosn would later receive?
Nissan will respond affirmatively, pleading guilty, according to several sources interviewed by Agence France-Presse.
Like his former boss, Kelly has dismissed the accusations against him from the start.
“I have done nothing wrong,” he reiterated in an interview with Agence France-Presse in early September. On the deferred payments, he replied that “Carlos Ghosn did not receive anything nor did he get any promise.”
Witnesses are afraid
Nissan and the allegation confirm the opposite. They say they gathered evidence that these future payments were guaranteed to Ghosn. So it should have been announced in the automaker’s reports, under Japanese stock market laws.
Investigators collected an enormous amount of documents related to this file. But Kelly’s attorney complained that only a small portion of these documents had access. “We have no choice but to try to start the trial at last,” one of his lawyers, James Wareham, told France Press.
He added that the start of the trial has been postponed five times, and that his client, who has been released on bail since Christmas 2018, but with a ban on leaving Japan, wants to move forward in the hope of meeting his relatives in the United States one day.
Although Kelly faces up to 10 years in prison and the criminal conviction rate is very high in Japan (over 99 percent), “there is still a reasonable chance of his acquittal,” according to the lawyer.
But his client faces a serious problem: “Foreign witnesses who are so favorable to Kelly do not trust the Japanese legal system.” They fear being trapped and arrested upon arrival in Japan, as happened with Kelly at the end of 2018.
“They are afraid. They will not come to martyrdom in Japan,” Wareham said.
The prosecution and the court rejected the Kelly team’s request to allow witnesses outside Japan to testify via videoconference.
Nissan maintains a secrecy about the trial, while until a short time ago the group made numerous statements about the numerous financial embezzlement that Ghosn was accused of.
“We are not commenting on an ongoing case,” the carmaker’s spokesman told AFP.
And the group seems a bit embarrassed to have come to this position. The trial warns of stirring up “media incitement” that will negatively affect its image, according to what a source close to Nissan met with Agence France-Presse.
One of the most prominent witnesses during the trial will be Harry Nada, a former Kelly aide at Nissan, whose role in the Ghosn case casts deep suspicions on a conflict of interest.
Nada benefited from the whistleblower’s legal status in return for his close cooperation with the Japanese prosecution, and in the past he also personally benefited from the “Ghosn System”.
He still works for Nissan, which has nevertheless removed him from the legal department since October 2019.
Hiroto Saikawa, the former chief executive of Nissan, will also appear at the trial as a witness only, without expressing his fear of the Japanese judiciary, although he admitted last year that he received compensation he did not deserve under Ghosn.