Coram nobis cases 40 years on

When redress researcher Aiko Herzig Yoshinaga and legal scholar Peter Irons uncovered the veritable “smoking gun” proving the United States had lied to the Supreme Court to justify the wartime incarceration of Japanese Americans, they set off a series of landmark legal battles that eventually helped vindicate Japanese Americans and set legal precedents that continue to be relevant today.

The Asian American Law Journal, in commemoration of the 40th anniversary of Fred Korematsu’s coram nobis case, hosted its annual symposium Jan. 28, entitled “Let’s Get Going!: Lessons from the Young Lawyers Who Overturned Korematsu, Hirabayashi, and Yasui” at the University of California, Berkeley.

“Our team decided on the title, “Let’s Get Going!” in honor of the first memo of the same name that Dale Minami sent to the legal team who took on the coram nobis cases,” said Alan San Diego, chief symposium editor.

Minami and fellow attorneys who served as lead counsel to the three coram nobis cases, along with Judge Mary M. Schroeder, the author of the Gordon Hirabayashi coram nobis case opinion for the Ninth Circuit Court of Appeals, spoke about their experience coming together and filing three separate challenges to the wartime Supreme Court cases.

The symposium also featured a keynote address by Lorraine Bannai, coram nobis legal team member, and closing remarks by Karen Korematsu, daughter of Fred Korematsu and founder and executive director of the Fred T. Korematsu Institute. In addition to the coram nobis legal team panel, a second panel featuring Erwin Chemerinsky, dean of the University of California, Berkeley School of Law; Quyen Ta, a partner at King and Spalding and Alliance for Asian American Justice member; and Eric Yamamoto, Fred T. Korematsu professor of law and social justice at the University of Hawai‘i Manoa, discussed the continued impact the coram nobis cases have today. The Berkeley Law Pro Bonotes also sang a capella between the panel discussions.

Supreme Court Cases Revisited
The symposium started with Bannai giving a quick history lesson on the racist sentiments that led to the wartime incarceration of Japanese Americans during World War II and the three men who challenged the racist military orders.

Minoru Yasui, then a 26-year-old attorney living in Portland, Ore. purposely violated curfew orders seeking to become a test case on the constitutionality of the order. Similarly, 24-year-old Gordon Hirabayashi of Seattle violated both the curfew and exclusion orders as an act of civil disobedience. Meanwhile, 22-year-old Fred Korematsu of Oakland, Calif. defied exclusion orders to stay with his Italian American fiance.

“In each of the cases, the court upheld the constitutionality of the military orders, concluding they were necessary to protect the country,” Bannai said.

In 1982, however, Herzig Yoshinaga discovered a thought-to-be-destroyed military report that directly contradicted what the federal government argued in front of the Supreme Court. Irons, wanting West Coast Japanese American attorneys to reopen the three men’s cases, called on Minami to put together a legal team and pursue what was then a little-known petition known as a “writ of error coram nobis.”

“Coram nobis means ‘before us,’ and a petition for writ of error coram nobis asked the court to correct the fundamental error committed before the court that resulted in a manifest injustice,” Bannai said. “It’s similar to a habeas corpus petition, but coram nobis allowed the conviction to be vacated decades after the sentences had been served.”

Japanese Americans’ Day in Court
Minami, a San Francisco-based attorney, said he contacted Donald Tamaki, then head of the Asian Law Caucus, and other attorneys such as Nagae in Oregon and Kathryn Bannai (Lorraine Bannai’s sister) in Seattle to put together the three teams. Together, they submitted separate petitions for the three men in San Francisco, Portland and Seattle, hoping for three shots at appealing the wartime supreme court decisions to the Supreme Court. The teams also angled to file the petitions in order of which jurisdiction might yield the most favorable judges to their cause. In San Francisco, Minami’s team was pleased that U.S. District Court Judge Marilyn Hall Patel, their first choice, was assigned to their case. Hirabayashi’s attorneys were also pleased when Judge Donald Voorhees, “who was rated by the trial attorneys at that time as the best judge on the West Coast,” was assigned to their case, Kawakami said.

Their default option was Yasui’s case.

“Portland is the whitest city in the whole country,” Nagae said. “Oregon became a state as a white only state. So it has an anti-democratic justice background.”

Minami said the Korematsu coram nobis case gave Issei and Nisei the trial they never had. The Sansei lead counsel said they packed the court with survivors during the trial.

“And while we didn’t expect a ruling that day from the bench, … Judge Patel offered that ruling to the entire courtroom and it was a dynamic ruling, which upheld our petition, overturned the conviction,” Minami said.

Dismissal and Regret
The other two cases, however, went differently. Nagae said they were the second team to file and Yasui’s case was assigned to Judge Robert C. Belloni. The U.S. government took months to respond to the petition. They claimed the 40-year-old misdemeanor conviction was “inappropriate to defend.” Victor Stone, the government’s attorney, said the case should be vacated and dismissed without addressing the government’s wrongdoing in 1942. Belloni agreed with Stone and concluded both the government and the coram nobis petitioners ultimately wanted the same thing.

“That’s like saying these two things are the same, only there’s like an ocean of difference about why we want the ruling, that there’s a difference in finding evidence and finding governmental misconduct. But he basically said this is not a case of controversy, since both sides are asking for the same relief, only for different reasons,” Nagae said.

Nagae called the victory bittersweet. While the court vacated the decision, there was no further hearing on the documents, nor education for the public on what had happened in 1942. Nagae also filed an appeal to the Ninth Circuit Court, but Yasui passed away on Nov. 12, 1986.

“He did not get the day in court that he so wanted. So the Ninth Circuit agreed with the government, dismissed the case as moot, we filed a writ of certiorari to the U.S. Supreme Court, they denied the writ. We filed another motion, requesting a rehearing of the original writ, based on the newly discovered evidence, which I’m not quite sure what the newly discovered evidence was, but they also denied that, and so the case was done, finished, dissatisfied, really sad,” Nagae said.

‘Trial of the Century’
Originally, while the coram nobis teams separately filed their petitions in three different states, Kawakami said they hoped to consolidate their cases into one as they appealed to the Supreme Court, but the government objected and the Hirabayashi and Yasui cases had to come up with a new plan to move forward. In Hirabayashi’s case, Kawakami said Kathryn Bannai brought up a motion for an evidentiary hearing to present all the evidence in the case in open court, which they got.

“After celebrating and pinching ourselves, we were hit with the realization that we need to prepare for what one of our attorney members, Arthur Barnett, would often say is the ‘trial of the century,’” Kawakami said. “Arthur was one of … his original attorneys back in World War II and he also was still alive at that time. And he became the conscience of our group even in his retirement and attended all of our strategy meetings.”

Kawakami said their core team of attorneys comprised of 13 or 14 lawyers working pro bono.

He said they were ethnically diverse and intergenerational, which fit Hirabayashi’s sentiment that his case was not just a Japanese American case, but “an American case.”

Kawakami said their week-long trial featured the testimony of several key figures in uncovering the truth about the purported claim that the wartime incarceration was done under military necessity. Edward Ennis, the government lawyer who warned his superiors they were about to suppress evidence, along with Herzig Yoshinaga, who uncovered the original DeWitt report, testified as witnesses. The legal team ultimately won, but not before the U.S. government tried to pardon Hirabayashi in order to have him drop the case, which Hirabayashi declined.

Kawakami recalled Burnett telling Hirabayashi: “‘the government should be asking you for a pardon.”

Judge Schroeder noted that when the government lost the case, they decided not to appeal it to the Supreme Court. Thus, Schroeder got the “last word” in writing the decision for Hirabayashi.

“Hirabayashi, himself, was furious at this, because he thought that the Supreme Court ought to … have vacated his decision,” she said.

A Well-Timed Case
Schroeder pointed out that the coram nobis case came at a fortuitous time in U.S. history.

Many former inmates from the wartime incarceration were still alive in the 1980s, and at the same time, there was a greater diversity of judges who had themselves faced discrimination in their lives. Schroeder is the first woman to sit on the Ninth Circuit Court.

“Judge Patel, who was a dear friend of mine, actually worked for (the National Organization for Women) … Judge Belloni was of the old school. He was born in 1919, he lived through World War II, and he had a different perspective,” Schroeder said.

Similarly, Schroeder said the panel of judges for Hirabayashi’s case featured Judge Ted Goodwin, a World War II veteran, who was “not disposed well to the petitions,” but also included Jerome Farris, a Black judge from the South, and herself.

“If these cases came up 10 years earlier, they would have come out a different way, because you would not have had the judges who had actually experienced, been victims of discrimination, and he would have had a generation that had fought in World War II,” she said.

Present Day Applications
In the second half of the symposium, Chemerinsky, Yamamoto and Ta spoke on the current day significance of the coram nobis petitions. Chemerinsky said Chief Justice John Roberts’ ruling for Trump v. Hawai‘i, which purportedly struck down Korematsu, did no such thing as it makes the same mistake the Supreme Court did in 1943. Meanwhile, Yamamoto drew parallels to how the U.S. cited “military necessity” to justify the Japanese American incarceration during World War II, and now cites “state secrets” to hide abuses today, such as in United States v. Husayin, aka. Zubaydah.

“Just because the Supreme Court says it, doesn’t mean it’s right,” Chemerinsky said. “And (students) have to think for themselves and evaluate the decisions. And when the Supreme Court is wrong, it’s so important for our society to loudly say it’s wrong.”

While the lessons learned from the wartime cases may have yet to truly reach the U.S. judicial branch, Yamamoto and Ta noted that the coram nobis cases have inspired others. Yamamoto said the Korematsu coram nobis case served as a basis for addressing the April 3, 1948 Jeju uprising in Korea, ultimately resulting in a national and military apology for victims of the anti-communist massacre. Yamamoto added that, what used to be a little-known petition, coram nobis cases have since become well known and used in a variety of other cases to address other ongoing injustices.

Ta, a Vietnamese refugee, wanted to do civil rights work after working as a paralegal community organizer for the Asian Law Caucus, but took a corporate attorney job, citing financial difficulty. She said she found that corporate lawyers can also lend their expertise to social justice. She and other corporate lawyers formed the Alliance for Asian American Justice Network in 2021 in response to the rising tide of anti-Asian hate since the start of the pandemic.

The symposium ended with a message urging the scores of future attorneys in the room to do what is right. Yamamoto warned laws are political and Ta said cases aren’t merely files, but people’s lives. Chemerinsky urged the future attorneys in the room to keep fighting for justice, even if they lose. Karen Korematsu echoed those sentiments in closing.

“We all can make a difference because this is about all of us,” she said. “So as you leave here, remember my father’s words, ‘stand up for what is right and don’t be afraid to speak up.’”