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TI: So let's go to the coram nobis petition. Can you describe how the Hirabayashi coram nobis petition came to be heard in front of you and I guess the panel?

MS: Well, a coram nobis petition is a very unusual animal. There are what are called in our law extraordinary writs, that's kind a generic name for them. The most common is a writ of habeas corpus, which is a case that is filed in federal court in seeking to challenge the reason why someone is in jail. These are extremely common; almost every prisoner files for writ of habeas corpus and most of them are most unsuccessful. But it's known as the "great writ" because it's the protector that the individual has against arbitrary action by the state that confines them against their will and takes away liberties. The limitation on the writ of habeas corpus is that in order to qualify to file for a writ of habeas corpus you have to be in prison. You have to have your liberty under some kind restraint. And the difficulty that Korematsu and Hirabayashi had in the 1980s was that their prison terms had long since expired, and they had been fruitful, contributing members of society. And so they had to look to a much rarer kind of a writ called the writ of coram nobis, which is very unusual and is reserved for situations in which while the original judgment that caused a restraint to liberty has expired and there are no consequences being felt, material consequences being felt now, the person who has been convicted has suffered a conviction that had some really serious flaw in fairness. And in very rare situations, the writ of coram nobis can be used to attack a conviction that has long since had no actual consequences for the person.

TI: And so you mentioned this was kind of an unusual writ. Was it something that you had seen before?

MS: No, I'd never seen it before. I'd read about it in the law books, but I'd never actually seen a case. Of course, one of the main arguments that the government had by the time Gordon Hirabayashi's case came to us was the whole thing was moot because there was nothing left of the conviction. That he'd served his sentence in the '40s and '50s, it was just over, and we shouldn't pay any attention to it.

TI: So let's go in terms of... so when it got to you it was actually on appeal.

MS: That's correct.

TI: So it already had gone through the district court in Seattle with Judge Voorhees.

MS: Yes.

TI: And so explain to me why it was on appeal.

MS: Well, it was an unusual situation because Gordon Hirabayashi had been convicted both of violating the curfew and of violating the order for evacuation. And when he challenged both of those convictions, Judge Voorhees took the view that coram nobis was appropriate for violating the order of evacuation because the evacuation had resulted in a very serious curtailment of liberties of Japanese Americans, but that the curfew was not a very serious infringement of liberty, and therefore he couldn't use the writ to challenge that. And so both the government and Hirabayashi were unhappy because the government had thought that the writ should not have been granted for either conviction, and Hirabayashi thought that it should have been granted for both, so there had to be an appeal. And in the Korematsu case, which had been challenged a couple of years before in San Francisco where Korematsu was convicted, the only conviction involved was the internment. And the judge in that case, a good friend of mine, Judge Marilyn Patel, granted the writ in that case and the government did not appeal.

TI: And so why was the government proceeding differently? I mean, in the early Korematsu --

MS: Well, I think Hirabayashi was one who -- I think, if I remember correctly -- was probably the motivating force to appeal. And once he appealed, the government had to appeal, too. I think that probably if Judge Voorhees had granted both the petitions, one can speculate that the government may not have appealed. But since Judge Voorhees in essence "split the baby," there had to be an appeal.

TI: Having known Gordon and interviewed him, I can almost hear him say, I can hear his thinking in terms of both convictions were race based.

MS: That's right.

TI: His defiance of the exclusion order was race based in terms of it being targeted to Japanese Americans, and the same thing with the curfew. And so when I think of Voorhees' decision, I'm trying to understand his distinction. They're both race based, and was he saying in some ways that the curfew -- I guess the question is, when is perhaps a race based decision okay?

MS: Well, I don't think he was thinking of it that way. I don't know what he was thinking, but in reading it, I had the feeling that he was looking at it in terms of what is appropriate, what kind of a punishment, what kind of infringement on liberties was involved that would be appropriate for this extraordinary relief. And I think his thinking was that the curfew just didn't amount to enough, curfew violation didn't amount to enough to justify, forty years later, going back and reaching in and overturning it. Whereas the actual order forcing people to leave their homes and go to prison camps was much more serious.

Now, when the case came to our court, that was one of the issues we had to decide was whether or not both should be considered serious enough, and the injury to the individual serious enough to justify a writ for both convictions, and I believe the sentence that I used in the appeal, we concluded that because it was race based, that they both should be treated the same. And I believe the sentence that I wrote was, "When someone has been convicted of a crime on account of their race, they are lastingly aggrieved." The harm never goes away when it's race based.

TI: The other thing, as I was thinking about Voorhees' decision, would there be a reluctance to also vacate a U.S. Supreme Court decision?

MS: Yes. Well, we never vacated the Supreme Court --

TI: Or the conviction.

MS: The Supreme Court opinion is there. We couldn't overturn the Supreme Court opinion based on the record in that case. But what we could do is vacate the conviction on account of newly found evidence that showed that it was based on unfounded assumptions.

TI: So let me reword that again.

MS: [Laughs] It's a little hard to imagine. It's a kind of a legal artificiality, but the Supreme Court opinions are still there and could be cited if someone wanted to cite them, but the Supreme Court is never cited.

TI: But, so the Supreme Court upheld the conviction. Voorhees did not vacate the curfew conviction, which the U.S. Supreme Court upheld. So I guess the question I wanted to ask is, is there a reluctance on the part of judges not to differ with the Supreme Court? Is there like a stronger test for them? Because... so he vacated the exclusion conviction, which the Supreme Court really didn't rule on for Hirabayashi. And then kept the curfew, so I was just wondering if that was...

MS: No, I don't think that's the reason that he didn't do it. You see, the Supreme Court's decision on the basis of the record in the Supreme Court case was not really at issue. What was at issue was the... how can I put it? Whether the record on which that decision was based, and on which these individuals had been convicted, was a record that had been doctored and was based on lies. And when the new evidence came to light that the report that indicated that the exclusion was based on military necessity, when it turned out that there had never been any such judgment, it undercut the basis for the Supreme Court's decision, but didn't overturn the decision itself. Because the Supreme Court's decision was based on deferring to the military assessment of the exigencies of the situation. And when it turned out that there had never really been a military assessment, that there was an exigent situation of danger, but rather that it was based upon stereotypes of Japanese character. The whole basis for deferring to military judgment was just taken away.

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