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19. Coram Nobis
- University of Washington Press
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181 Chapter 19 Coram Nobis In the early 1980s, Aiko Herzig-Yoshinaga, senior archivist for the Commission on Wartime Relocation and Internment of Civilians, discovered an original draft of a manuscript written by General John L. DeWitt, Final Report: Japanese Evacuation from the West Coast, 1942. DeWitt’s Final Report is critically important because, as it entails the perspective of a senior military commander, it was used to justify Japanese American removal and incarceration. Although the draft had supposedly been destroyed four decades earlier, a copy had somehow escaped the shredder and was lying unfiled on the desk of an archival clerk. Herzig-Yoshinaga noticed that the original draft differed from the official version used in my federal court hearings in 1942–43. While the final version stated it would be impossible to separate the “loyal” from the “disloyal” Japanese Americans, the original draft version declared that the lack of time, because of the wartime emergency, made mass exclusion the only alternative (the “military necessity” thesis). The wayward original version played a significant role in both the coram nobis hearings and the Japanese American redress movement. Although that discovery was exciting in its own right, a legal historian , Peter Irons, who was researching in the same archive, helped capitalize on the discovery. He found correspondence in the government files from Edward Ennis, a Justice Department lawyer, who had prepared the Supreme Court brief to Solicitor General Charles Fahy regarding a naval intelligence report contradicting the army’s claim 182 Coram Nobis of widespread disloyalty among Japanese Americans. The conclusion to Ennis’s brief advocated individual loyalty hearings for Japanese Americans instead of mass removal and incarceration. The Justice Department had a duty to advise the court about the existence of this report and that any other course of conduct might approximate the suppression of evidence. Fahy ignored the warning not to withhold these findings on the racial bias of mass incarceration from the Supreme Court, and that is what opened the door to a reconsideration of my 1943 conviction. Was it just fate that Peter Irons, just one among the only 2 percent of lawyers familiar with coram nobis, knew about this rarely used legal device that allows a rehearing to challenge a federal criminal conviction obtained by the government through constitutional or fundamental errors? Irons called me, and I told him, “I’ve been waiting over forty years for this call.” Coram nobis wasn’t there for us during the war, but along with an extraordinary degree of citizen commitment, and pro bono lawyers, something wonderful happened for justice. It led to our coram nobis cases from 1983 to 1987. The San Francisco coram nobis team was looking at all the papers in Dale Minami’s office. Peter Irons recommended that they begin with the appeals court where all three cases were processed. He called me, saying that, in contacting Ennis and Fahy and others, they found some evidence of cover-ups. So that, plus the FBI’s own statements and FCC’s statements, became the big ammunition in appealing our wartime convictions. In January 1983, after conferring with Irons and his team, Fred Korematsu, Minoru Yasui, and I jointly announced plans to petition for a writ of error coram nobis in the respective federal district courts where our wartime convictions had been issued: Korematsu’s in San Francisco, Yasui’s in Portland, Oregon, and mine in Seattle. To Victor Stone, U.S. Department of Justice, July 15, 1983. Re Korematsu v. US, Hirabayashi v. US, Yasui v. US: A motion to vacate each of the convictions of the petitioners and a motion to dismiss the indictment or information to the petitioners made by the United States Coram Nobis 183 in open court before each of the judges assigned to these respective actions. My case, the last of the three to get a hearing, involved a change in the Justice Department’s strategy. The federal attorneys fought for dismissal on technicalities. They maintained that the time allowed for a petition had expired, and that I should have requested the rehearing forty years earlier. In addition, since I was a successful professor, I obviously had not suffered from the wartime convictions and therefore did not qualify for a coram nobis petition. I submitted an affidavit in support of the reply to government’s response and motion to the U.S. District Court, Western District of Washington, Seattle. I wrote, “I believe that acquiescing to the exclusion order would be giving...