<Begin Segment 18>

AI: So when we broke, you were just on the point of telling us that you were going to be indicted for your, the draft resistance.

PI: The funny thing is that I can't remember how I learned that I had been indicted, and I was living in Washington at the time. My draft board was in Cincinnati. The indictment came from a federal grand jury in Cincinnati. And the way it works is that if a prosecutor, in this case a federal prosecutor, decides that there's evidence that somebody has committed a crime -- my crime would have been not showing up for military induction, and in fact, not showing up for my physical exam even before that, because I'd been ordered to do that and hadn't showed up. And this had, of course, happened more than a year earlier. But if I had committed a crime, a prosecutor can get an indictment, which simply means that a charge is made against somebody and they have to defend themselves. Not every indictment goes to a trial. But in my case, it was fairly clear since I had made a public thing out of this, that I had in fact violated the law deliberately. The question was not whether I was guilty, but whether there was any good defense to that.

So at that time, I was living and working in Washington for the Autoworkers Union. The people in the union were very supportive of me. I was not in danger of losing my job. So I found a lawyer who -- and if I recall correctly, my boss in Washington knew of a lawyer in Cincinnati from when he went to college, and I couldn't find a civil liberties lawyer in Cincinnati -- very, very conservative place. In fact, I called up the American Civil Liberties Union in New York and asked them if they knew of any attorneys in Cincinnati who could defend someone on a draft charge, and they said, "Oh, the draft is not a civil liberties issue." The ACLU was not challenging the draft back then. So I found this lawyer who was a private corporation-type lawyer, very nice guy. He had never handled a criminal case before. So we went to trial in Cincinnati before a federal judge. My lawyer had said, "You don't want a jury trial. Let the judge decide this, because a federal grand, a federal jury in Cincinnati is likely to be twelve retired American Legion members, and they'll send you right to jail." Well, as it turned out, the judge himself -- a man named John W. Peck -- was very conservative. He had a son serving in Vietnam at the time. He was very hostile to me from the very beginning of the trial. Now, I had done some research myself, because the only issue in the case was not whether I had a violated the draft law, but -- and this was a lot like Gordon Hirabayashi's case later on. There's no question that he violated the curfew. He'd gone down to the FBI and turned himself in. So the question was, was there a constitutional defense?

To get ahead of myself, what my lawyer and I did not realize was is that there was another even better defense, which probably could have won the case, kept me out of prison, but we didn't know about it at the time. And that was whether the draft board had followed its own rules and regulations in drafting me. But our sole defense was that requiring a conscientious objector to swear that they believed in a supreme being violated the Constitution because the Supreme Court had ruled -- and I dug this case up myself in a law library, a case called Torcaso v. Watkins, back in the 19-, I think, '50s -- that governments could not require people who applied for official positions, in this case a notary public commission, that they believed in a supreme being. And the Constitution itself says, "No religious test shall ever be used for an office or service under the United States." And I considered military service to be service under the United States. And this was a religious test, very clear. So when I went to the trial, I remember going up on the witness stand. My lawyer had said, "Just explain why you were doing this." So I started explaining. There was hardly anybody in the courtroom. There was no publicity about this trial. And I said to the judge, "Well, Your Honor, I decided that I did not want to apply for exemption as a conscientious objector because the religious test was unconstitutional." Now, that's not why I originally did it. As a matter of fact, I knew nothing about it. But it seemed like a good point anyway. And the judge looked down at me, and I'll never forget as he looked down at me with this look on his face of total scorn, and he said, "Young man, what law school did you go to?" Now, I hadn't gone to law school then or even thought of going to law school, but I realized right then that I was in trouble. So at the end of the very short trial, took less than a day, the prosecution didn't call any witnesses because I had already agreed, stipulated that I'd violated the law. So the judge found me guilty right on the bench and set sentencing for a month later.

<End Segment 18> - Copyright © 2000 Densho. All Rights Reserved.