<Begin Segment 39>

MC: So maybe we should fast-forward at this point to the hearing on the petition in Judge Patel's courtroom. And Judge Patel was a "good judge" from your perspective, right?

DM: She was our number one choice because in federal courts it's all a matter of luck and lawyers tend to ascribe, tend not to deal with luck unless of course they lose a case, then it's bad luck. But she was good luck. She was the best judge we could have gotten. One of the two best, I'd say.

MC: So she, she actually held an open hearing in court on the petition and the government had filed a motion to dismiss. Correct?

DM: Correct.

MC: And so it was really on that motion as well as your petition.

DM: Right.

MC: And so, how did you, how did you prepare for the hearing?

DM: The government didn't quite file a motion to dismiss. I think -- well, it was because they were, it was the same as a non-opposition, or that's how the court described it. So, well, it was, it was a little bit difficult because what happened is that before, the day before the hearing the judge called both lead counsel and no other attorneys, just two attorneys and her. And we were in her office in the late afternoon and she said, "Mr. Stone, what is the government's position on this case?" And he said, "Well, we're still trying to figure out, we don't think you should, we don't think we should go ahead at this time." She goes, "Mr. Stone, this is the third time I've given you a continuance," something like that. "I want you to find out what the government's positions are. Are you gonna oppose this so we can go to trial on it? Or are you gonna accept the allegations and I'm going to grant the motion, the petition." He goes, "Judge, I can't make that decision." She goes, "Mr. Stone, you have fifteen minutes to make that decision." "Judge I can't. All my superiors are at a drug conference in Houston," anti-drug conference, I should say at Houston, and so she goes, "Well, call them." So Stone went out to the hallway frantically making calls on the pay phone, the federal pay phone. I didn't even know if he had enough quarters. It was, of course, before cell phones. So Victor is out there and finally -- they give him half an hour, he comes back and goes, "Judge, I can't reach them." Then she says, "I'm gonna treat this as a non-opposition, but I want you to brief the issue of whether I should make findings tomorrow. I want you to address that tomorrow." 'Course, this is like five o'clock at night. We've got to address the issue of findings of fact, which is what we want, we know she's gonna overturn Fred's conviction. But what we need is a statement from her, a political statement as well as a legal statement of why it was wrong.

So now I'm sweating it because I'm thinking, "I gotta make an argument tonight?" So I go back to, we had a team meeting that night back to my apartment and we had this Nerf basketball set-up there and I told them what the judge said and they're happy, 'cause they know we've got Fred's conviction overturned. But I'm sweating it still 'cause I know I've gotta make an argument. So I called Bob Rusky, one of the attorneys, and we're putting together some legal authority, Ed Chen, some of these folks. They're all over at my place and they're drinking beer and they're playing Nerf ball and the Nerf ball's rolling across my notes as I'm writing them down, this is pre-computers, remember, or just about that time. And so I'm making, I finally put together an argument that I think is persuasive as to why she has to make a statement and I realized what this is all about. This is not about law. We don't have to make, cite legal cases. This is a political argument that we have to make in court because the judge is gonna do what she's gonna do no matter what. But we've gotta give her some political cover and explain why politically it's really important. So my argument was framed as a political argument and I threw in, of course, a couple of cites that Bob Rusky had gotten for me about the need for closure and other things like this, a couple, he's very much a legal scholar so there were quotes from Hamilton and Jefferson and stuff like that. And so that was, that was what the legal argument was about.

MC: Well, the transcript of your argument, I think, is reproduced in Justice Delayed, Peter Irons' --

DM: Right.

MC: -- book which has all of the documents from the coram nobis litigation. And what struck me about that argument is that it's really not a technical legal argument at all. You talk about the public interest, and why it's in the public's interest to grant the petition and make findings of fact.

DM: Correct.

MC: Could you describe that a little bit more? Is that the "eureka" you came to the night before? That...

DM: Yeah, pretty much so but it was not, it was a eureka born out of the whole soul of our case as a political case. The whole reason Korematsu got convicted was because of politics. The whole reason the appeal was upheld was because of politics, so, you know, if I were clearly, thinking more clearly at that moment it would have come to me in a second. But eventually it welled up and it occurred to me that everything we're doing here is political. This whole case is about politics, so it's only natural that the argument that I make to the judge should be about politics. So my argument was that the public interest deserved that the judge make findings of fact in conclusions of law and for the people in the audience who were interned. This was the trial that they never had. For Fred Korematsu, his interest deserves consideration. This is a man who lived with the burden for forty years of having brought the case that sent his people to camps. And for all Americans it's important to understand the civil rights implications of what this judge can do. So, I basically argued that what the opposing counsel, what the government wanted to do was let this case, let old wounds heal, as they say. Let bygones be bygones. But whose wounds need healing, I argued. Is it the wounds of the people who put Japanese Americans in camps? Or is it the Japanese Americans themselves who suffered greatly from losses of homes, broken families, lost dreams, that the government was attempting to turn what the public interest was on its head and that the true public interest is that findings of fact had to be made to put this chapter to rest. So it was something along those lines. It was longer than that.

MC: It was very powerful and very passionate and I think the government's argument was not at all along those lines.

DM: No, he, Victor, Victor was a buzz saw. He would just go to straight lines. And part of it, of course, was not his fault but part of it was the way he was as a person.

<End Segment 39> - Copyright © 2003 Densho. All Rights Reserved.