<Begin Segment 40>

MC: So, when you got to the courthouse the day of the hearing, the courtroom was filled, right?

DM: Correct. The judge had had us in her, we had been assigned to her ordinary courtroom but then she realized the import of what was gonna happen, how so many people were gonna be there. So she changed her courtroom to what they called the ceremonial courtroom that, that probably can handle another five hundred people. They put chairs up in the aisles, they put chairs everywhere. I had to go in early. The judge called us in early and gave Victor his last chance. [Laughs] Said, "Mr. Stone, were you able to contact your superiors? What are you gonna do?" He goes, "Well, I talked to them, Judge, but we're not, we haven't come to a conclusion." The judge says, "I'm gonna treat your non-response as an admission because I gave you enough time and here's the citation. But I want you both to argue still the issue of the statement of facts."

MC: Can we go back to the government's responses for just a second before we get to the hearing? The government had asked for continuances a couple of different times.

DM: Correct.

MC: They were trying to delay the case. Why?

DM: I think they were still fighting to decide what policy was gonna be made. See, we were on parallel tracks here with the redress bill in Congress and -- excuse me, and the findings of the Commission on Wartime Relocation and Internment of Civilians and their recommendations. So we were on track with, our cases were going parallel to the commission's work. The government couldn't find a policy internally and they said, "Well, let's delay and wait until the commission makes its findings." So, by the time that we were in the middle of court, we're still going through discovery, we're getting documents, the Department of Justice is still trying to find out its position or determine a position on the coram nobis cases. The commission comes out with its findings saying that what was done to Japanese Americans was wrong.

Before that time, let me reel back a little bit, Victor was asking, the government was asking for all these continuances and so I hatched this plot with Peter. One of the things that always bothered me about the original Korematsu case is that there was no evidence put in about Japanese American disloyalty. There was no evidence at all. So what the Court did is use the judicial procedure called judicial notice. They, they accepted certain facts as true and that formed the basis of their conclusion that ethnic affiliations during time of war determines loyalty. It was a total bogus, sham use of that particular procedure and in fact, the author of that procedure, a woman named Nanette Dembitz, later -- secretly was the author of that -- later wrote a public article condemning the very mechanism that she had suggested. She didn't think anyone would find out. Of course, we knew because Peter did this research on that. Anyways, so I thought, "Peter, wouldn't this be incredibly ironic if we made Victor and the court take judicial notice of the commission findings?" Because we knew they were gonna be in our favor, we had, getting word. So I said, "Let's do it this way. Let's, if he asks for another continuance, we'll say, 'Your Honor, we would oppose that continuance because we have a right to get to a trial on this but it will shortcut this trial if the court, if Mr. Stone agrees to take judicial notice, you to take judicial notice of the commission's findings.'" And the judge, she was so smart, she goes, "That's not a problem is it, Mr. Stone?" And he goes, "Uh, no, Your Honor." And so the court accepted the findings of the commission then and there, which is a major, it comes up in her opinion. And so by the time the findings got done, the recommendations hadn't come out yet. And so he wanted another continuance, recommendations came down and at the very end that was it. By the time the recommendations came down he had promised the court a decision on the government's position, he didn't deliver and the judge was totally justified and therefore stating an opinion on our behalf.

MC: Did the Justice Department think that the commission was gonna come out with findings adverse to your case?

DM: I don't think so. I think there were still hawks and doves in there and it didn't matter.

MC: Right.

DM: I think they just had a hard time finding out a really clear path to policy on this. Because I think there was just two different camps in that Department of Justice at that time.

<End Segment 40> - Copyright © 2003 Densho. All Rights Reserved.