<Begin Segment 4>

PI: Now, one other thing that happened in law school that had a tremendous impact not only on me, but I think on the whole redress, coram nobis effort. When I was in law school, I think in my first year of law school, Congress passed the law called the Freedom of Information Act. I think it was actually passed in 1974, but it became effective in 1975. I was one of the very first people to use the Freedom of Information Act. I'd always suspected that there was a pretty thick FBI file on me. Everything that I'd done in the Civil Rights movement, the antiwar movement, we always knew that there were FBI agents or informers around. And people were very suspicious -- their telephones were being tapped, their mail was being read, their meetings were being spied on. And so I just thought, "Well, I'd like to see what's in the file." So I submitted an FOIA request to the FBI, another one to the Justice Department, and one to the Federal Bureau of Prisons. Now, they processed these requests as slowly as possible, because frankly the government did not want to open up their files, particularly FBI files. So they resisted at every opportunity. And it became sort of a hobby of mine. I liked doing this suit. I filed it, what was called pro se, representing myself, and filed a complaint in the federal district court. The FBI did not respond in the statutory time. In fact, the law gave them ten days to respond. Well, they never responded to anybody within ten days. So I filed a lawsuit. And some of the records actually were turned over, particularly from the Bureau of Prisons.

The Bureau of Prisons had in its file on me a number of documents that they had gotten from other agencies, particularly the FBI. And one of those documents -- I don't remember the details -- but one of those documents suggested that I had been called up for induction. I had been convicted of failing to report for military service, and I had been asked or ordered to report on a particular day, I think in 1963. And I had not gone. One of the records that I got suggested that I had been called up earlier than I should have been under the rules. They were then drafting people by age, starting with the oldest and going down. The maximum age for the draft was twenty-six, and then they'd draft people at twenty-five, twenty-four, twenty-three. And it was all strictly, they later changed to a lottery system. But at that point there were very definite rules. And I felt that it was possible that I could get my conviction reversed the same way that Alger Hiss was trying to get his conviction reversed on the grounds that the government had committed misconduct of various kinds.

So I started doing some research on how to do that. And it was nothing that we had learned in law school. I had taken courses in civil procedure. Knew nothing about that. But in the law library at Harvard, I came up with a section of the federal code called the All Writs Act. And it, a writ is, basically means a writing, a piece of paper. And writs are things that people give to a court, asking the court to do something. The most famous writ is the writ of habeas corpus. If somebody is locked up or arrested, they can ask a judge to have a hearing on the lawfulness of their detention. Well, the All Writs Act says that federal courts can issue all writs which are conformable to practice, totally vague term. What are those writs? Well, I did more research and discovered that there is one writ, very, very rarely used, called the writ of error coram nobis, and I'd never heard of it. And in fact, in the research I found very few cases that dealt in any way with that writ. So I dug into it a little more, and I discovered that there were some hurdles that people had to go over in order to use that writ. First of all, it's only available to people who have already completed serving a sentence, a criminal sentence. You can't use it as a form of appeal. And there has to be a showing, a very strong showing, that the government, whether it was state or local or federal government, had deliberately withheld evidence from the defendant at the time of trial or had presented false evidence. And you had to show this very convincingly. You couldn't just suggest that something wrong had been done. And that the defendant was still alive, and that the defendant faced some continuing legal disabilities because of their conviction, like not being able to vote, which was true in my case.

So I put this together with the records that I'd got from the Selective Service System and the Federal Bureau of Prisons, and filed a writ with the federal court in Cincinnati, where I had been convicted back in 1965. This was ten, eleven years later while I was in law school. Much to my surprise, the U.S. attorney in Cincinnati responded and did not object to the petition, because the evidence was very clear that I had been inducted out of turn. And the Supreme Court had recently decided a case, very similar kind of case, in which somebody had been inducted out of turn to punish them for their anti-draft activities and been convicted, and the U.S. Supreme Court overturned their conviction on the ground that the Selective Service System had not followed their own rules. So I thought, "Well, this is exactly what happened to me." And the U.S. attorney did not oppose the petition. So it was granted by the federal judge in Cincinnati, and as a consequence my conviction was wiped out. And to me, this was sort of a moral victory. It didn't have any real consequences, although I could now vote, and I wouldn't be subject to harsher penalties if I was ever convicted of another crime. But it was a way for me of saying, well, the government had to pay a little price for what they had done to me, even though I had volunteered for prison, in effect, by resisting the draft. Now, the irony of this is that if my lawyer at the time of my original trial, or I had known about what was in the draft board records, we probably could have had the indictment thrown out. But we didn't even think about it. Our only issue was the constitutional issue of the religious test for conscientious objection. So in a sense, because my lawyer had never handled a criminal case, had no notion of how to do these things, he didn't even think of this as a defense. We never called the draft board officials to say, "When did you issue the order? Show us all the records." We stipulated that I hadn't showed up, and that was it.

AI: So the course of your life and your later work might have been extremely different if your attorney at the time had been aware of those possibilities. You might never have gone to prison.

PI: Right. But one of the things I've learned over the years is that -- and this is true in many, many ways in my life and in most people's lives -- is how these little contingencies affect what happens later -- just taking one path rather than another, making one decision rather than another, and meeting a person, being in a certain place. And so the, the experience I had of resisting the draft, going to prison, then going on, graduate school and law school, finishing law school, and at the same time learning more about how to use the law and particularly procedure that nobody -- I'm sure that none of my Harvard Law School faculty, my teachers, could have answered a question about coram nobis. It just wasn't used. So my finding that in my particular case, in fact, having a case in which to use it, was really an accident.

<End Segment 4> - Copyright © 2000 Densho. All Rights Reserved.