-
10. Appeals, Threat of Deportation, and Pardon
- University Press of Kansas
- Chapter
- Additional Information
{ 139 } c h a p t e r 1 0 Appeals, Threat of Deportation, and Pardon Great cases, like hard cases, make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful and before which even well settled principles of law will bend. justice oliver wendell holmes, jr., dissenting opinion in Northern Securities Co. v. U.S., U.S. , –, quoted in George G. Olshausen, “D’Aquino v. United States, the So-Called ‘Tokyo Rose’ Case,” Lawyers Guild Review, – (Spring ) As soon as the trial ended, the “fiery” defense attorney, Wayne M. Collins, started to appeal the district court decision. He continued his tireless fight to reverse the conviction of Iva until his death in 1974, on an airplane on his way home from a trip to Hong Kong. All the appeals Collins and his cocounsels instituted repeatedly during 1951, 1952, and 1953 to the U.S. Court of Appeals, Ninth Circuit, and to the Supreme Court of the United States had been turned down. The district court’s judgment of conviction and sentence were appealed for the first time in 1950. The appeal was based upon more than twenty major contentions that largely fall into two categories: calls for a dismissal of the judgment of the district court, and charges of alleged errors, which would require a new trial. They included, to name some of the most important issues, unlawful detention; denial of speedy trial; destruction of evidence, scripts, and records; the “posse comitatus” act; questions relating to the sufficiency of the evidence; questions relating to duress; denial of legal counsel; misconduct of prosecutors; refusal to permit defense offers of proof, especially to produce defendant’s witnesses from Japan; perjured testimony before 140 { Chapter 10 } the grand jury; the Geneva Convention; and prejudicial instructions by the judge. On October 10, 1951, the U.S. Court of Appeals for the Ninth Circuit, to which the case had been appealed, turned down the appeal and affirmed the judgment below. The Circuit judges, William Healy, Homer T. Bone, and Walter L. Pope, are the panel that previously held Iva nonbailable and had been reversed by Supreme Court Justice William Douglas sitting on the Court of Appeals for the Ninth Circuit. Upon receiving the ruling that the Circuit judges had found no prejudicial error in the record and had affirmed the original judgment, Iva’s attorneys on November 8, 1951, filed with the same court a petition for rehearing, but it was denied on December 17. Responding to the extensive opinion written by Circuit Judge Pope, rejecting Iva’s appeal, the defense lawyers prepared detailed statements and petitioned the Supreme Court that a writ of certiorari be issued to review a judgment entered against her on October 10, 1951, and a denial of rehearing on December 17. The attorneys for Iva as the petitioner contended that the Court of Appeals admitted at least twelve errors in the trial court, but excused them as simply nonprejudicial. The cumulative effect was not even considered. This isolated treatment, Iva’s lawyers continued, particularly obscured the concentration of errors on Overt Act 6, upon which Iva was convicted. Collins and his colleagues followed the court’s subject order examining the prosecutor’s misconduct on Overt Act 6, the categorical instruction, and the failure to instruct the jury on the cumulative effect of duress. (The government witnesses, especially Mitsushio, said Overt Act 6 was broadcast in response to their direct order.) Failure under such circumstances to consider the cumulative effect of admitted errors on the pivotal issues, her attorneys insisted in their petition for certiorari, “so far departs from the accepted and usual course of judicial proceedings as to call for an exercise of this court’s power of supervision.” The attorneys for Iva also argued that the conviction of Iva violated the constitutionally guaranteed equal protection. They pointed out that Mitsushio , Oki, and others who had been naturalized from American to Japanese citizenship after the outbreak of the war worked at Radio Tokyo in executive positions and supervised Iva. Those who gave aid and comfort to Japan “after publicly announcing that they spurned the United States for good” are exonerated, while those accused of doing the same thing [44.222.212...