<Begin Segment 27>

MC: I'd like to get to, back to your relationship with Fred as a client, but before we do that, as you know, the conviction, his conviction was almost forty years old by the time the team of lawyers in San Francisco at your firm decided to try to reopen it. And that's a long, long period of time. Typically, most cases, when they're finally decided by the Supreme Court are finally decided. How did you decide or what vehicle did you decide to use to reopen these convictions that were so old?

LB: There was, to our surprise since we had never heard of it before, a legal procedure called the writ of error coram nobis, coram nobis meaning error before us. And it's a vehicle by which a court can reopen an old case in extraordinary circumstances. And in this circumstance, the extraordinary circumstance was that a fundamental error had occurred before the court. There was a fraud on the court. The U.S. government had lied to the court and created a tainted record. And on the basis of this manifest injustice, the law would allow the reopening of an old case, and that was the vehicle that we used here.

MC: But that's hardly a regular vehicle that lawyers use all the time, right?

LB: It's very, very rare, and there's very few reported cases on the writ of error coram nobis. And in fact, when we went in to file the papers with the court in January of 1983, the court clerk had to run back to the back office to ask other people how they're supposed to handle the filing of this because they'd never seen it before.

MC: Was there an assessment by the team of how likely it was that you would succeed using this vehicle of writ of error coram nobis?

LB: Well, certainly we did a lot of legal research. We did a lot of research on what this procedure was, what was required to bring this procedure, and we had a lot of discussion about it. There are some requirements for the writ that we had to prove. And we, of course, as good lawyers, did the research and did our analytical assessment about whether we could prevail or not. But I also think that there was certainly a strong sense of optimism and idealism, that the question wasn't, "Can we do this?" The question was, "How will we do this?" So in other words, we weren't doing the research to figure whether we should file or not, we were doing the research to find out how to construct our arguments so that we would win because we had a great deal of optimism and faith that we would win. Obviously, with the evidence that we had of prosecutorial misconduct there was no reason in our mind that we should not win. Despite that optimism, though, we had to constantly assess the risks, assess what the likelihood was that we would prevail, assess the down side. And we sometimes thought that there was a possibility that we could lose, and what would that mean for Fred Korematsu? What would that mean for our community? But I can't recall that we ever had great doubts.

MC: Other people had doubts though, right?

LB: I think that there were some doubts in some sectors. Certainly on one level there might have been some concern that if we lost, it would make things much worse for the redress movement than if we had never filed at all. I think there was some concern from within the Japanese American community that this could possibly negatively impact the quest for redress. Former Supreme Court Justice Arthur Goldberg expressed some concern about us filing. He was concerned that if the case went to the U.S. Supreme Court, the U.S. Supreme Court would not rule in our favor, and the ultimate ruling would be more damaging to the community and to the law in general than if we had never filed. So we did receive some concerns, hear of some concerns, on the part of some people that we should not proceed or that we might not be successful. And people like my mom worried about whether, I'd get into trouble with the U.S. Government, and is this really what I should be doing because she didn't want me to get arrested or get an FBI file or something like that.

But given all of that, I can't recall that any of us ever really felt that there was any point in time that we felt discouraged or questioned at all whether we should proceed. We were young, we were idealistic, we had lots of energy, and we knew we were right. And I suppose that that just kept on carrying us. And there was tremendous support from all quarters supporting us and urging us on and supporting us with $10 checks, $15 checks, letters of thanks, letters of support, and so certainly even though there might have been some who felt that our actions were ill-advised, it was a very small minority.

<End Segment 27> - Copyright © 2000 Densho. All Rights Reserved.