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MC: There were lots of different decision points along the way and... can you recall any very significant decisions that were made? For example, how did you decide to react publicly to the letter that Justice Goldberg had sent to Judge Marutani and that was eventually published in the Pacific Citizen? Or how did you deal with the offer of a pardon by the government to your client, Fred Korematsu?

DM: Yeah, there were, you know, we all did these things collectively within our Korematsu group. But you know, sometimes, and I can't remember how much we consulted with the Portland or Seattle groups. My feeling is that Karen and Bob later became more in touch with them. But our, we didn't want to react to Justice Goldberg. There was no reason to. We thought our... what we said is, "Once we file our complaint with the petition and the documents, then we're gonna hold this huge press conference, then everybody's gonna know what we got." So we weren't even worried about that. We didn't need to react to that. As far as the strategy, and one of the important legal strategies that was important was to decide whether we were gonna file three separate cases, or try to file one consolidated case in the Supreme Court or Ninth Circuit Court of Appeals. All the law said we had to file three separate cases, but there was some law that we could have made, some argument we could have made for another venue. We decided we wanted three separate cases because we had three bites at the apple. We had three shots at creating a conflict. Even if we lost two of 'em and won one or won two and lost one, we, then our case goes to the Ninth Circuit, the next intermediate level on the way to the possible Supreme Court. So we knew the Supreme Court was conservative, so it was crazy to file there, make a big splash, lose your case, look terrible. Or really do it wisely and patiently and file three separate cases and increases your chances of winning, which is what we did.

MC: Because technically speaking, a writ of coram nobis is an original writ that can be filed in any level of the federal court system, right?

DM: It could be, but you're supposed to go to the venue of... you know, that's... I think it's a little unclear. You can go to the venue of conviction is what our research eventually concluded was the safest way to do it.

MC: Okay.

DM: And then at some point you asked about the pardon. The opposing counsel, Victor Stone, called me up and said, "You know, we're interested in offering Fred a pardon. We've talked to the federal pardons office and would you be interested?" So we did the research. And we discovered that the pardon doesn't absolve you of the guilt. It just absolves you of the punishment. Well, there was no punishment. Fred had a suspended sentence although theoretically he could be denied certain licenses and jobs because of his conviction that the pardon would wipe clean. We talked about it and we thought, "That's nothing. As long as guilt's involved we're not gonna accept it." So we rejected it. When Victor Stone, the government's attorney, called me back about a week later, ten days later, says, "Okay, we'd like to offer him a pardon for innocence." I told him why we couldn't accept a pardon. "It doesn't absolve him." He goes, "We'll offer him a pardon of innocence." I go, "What's that?" He goes, "Well, we just invented it. It's a pardon that absolves him of his guilt, and the punishment." I go, "Well, that's a better step, let me talk to Fred." So we went over to Fred's house, several of us, and we told Fred what this was all about, that there's a chance like, we had to tell him as clients, as lawyer/clients, we just had to tell him, "There is a chance you can lose this case. It's possible. But we've got a great judge, the best judge we can get. We think we're gonna win it." And Fred and Kathryn together just kinda said, "You know, we're not gonna accept any pardon. We should be pardoning the government." And right then it just like, whoa. We got some really good clients here. They had the real -- 'cause we didn't want them to accept it, secretly, but we didn't want to be too negative about it, too manipulative. And we thought that's exactly where we want to be. We want to get a hearing on this. We want to go to trial on this and prove to the world that there was no military necessity.

TI: Dale, after you filed the petition and went public, what was the reaction of the JACL?

DM: Muted. They didn't comment on it but they did -- and this is my best recollection, is they were supportive of the evidence that we had. So they were trying to say it in the nicest way. They never criticized us publicly. So we didn't have that kind of problem. And as the case progressed I got the sense that they were more and more supportive, as the case progressed. So that we didn't have a negative reaction publicly from them, except through possibly -- and this is not confirmed -- but through Arthur Goldberg.

<End Segment 33> - Copyright © 2003 Densho. All Rights Reserved.