Writ of Error Coram Nobis

The coram nobis writ, from the Latin meaning “error before us,” is a device of U.S. law. Derived from the ancient writs of English common law, the writs were designed to protect defendants from arbitrary and unlawful prosecution. In the cases of Hirabayashi (1943), Yasui (1943), and Korematsu (1944) decided by the U.S.

Supreme Court, the coram nobis writ was a way to challenge the original decisions to correct a fundamental error rendered in those rulings. Seldom used, the coram nobis writ was deployed by attorneys for Gordon Hirabayashi, Fred Korematsu, and Minoru Yasui in 1983, charging that government prosecutors failed to acknowledge that it had no evidence to sustain the justification of “military necessity” upon which Hirabayashi, Korematsu, and Yasui were convicted and, in fact, deliberately suppressed evidence that supported the loyalty of Japanese Americans.

An attorney and constitutional scholar, Peter Irons, in the course of his research discovered the evidence that formed the basis for that challenge. In 1943 and 1944, Irons found, government lawyers complained to their superiors that the cases before the Supreme Court contained lies and involved a suppression of evidence. Their warnings, however, were ignored, and the Justice Department proceeded with its prosecution of Minoru Yasui and Gordon Hirabayashi who were convicted of violating the army's curfew order, and Fred Korematsu, who had violated the military's exclusion order. The Supreme Court's decisions, thus, according to the government's own attorneys, were based upon faulty evidence or writ of coram nobis.

Fred Korematsu agreed to petition for a rehearing of his original decision because, he said, “they did me a great wrong” (Irons, 1989, 3). The campaign to reopen and reverse the Supreme Court decision, unprecedented in U.S. jurisprudence, began with the federal court in San Francisco that first heard Korematsu's case. The government's claim was that the military acted to remove Japanese Americans during the war because of a well-founded fear of espionage and sabotage by Japanese Americans while in fact the government had contrary evidence of Japanese American loyalty. By failing to produce that evidence and, in fact, lying before the court constituted an error and fundamental injustice.

Coincidentally and of consequence were the hearings of the Commission on Wartime Relocation and Internment of Civilians created in 1980. During his testimony before the commission the following year, Peter Irons was encouraged by William Marutani, a commission member and Philadelphia judge, to pursue a writ of coram nobis to allow the Supreme Court to reconsider its wartime decisions. The suppression of evidence relevant to its decision might prompt that review, Marutani suggested. That encouragement led Irons to form a legal team to undertake the rehearing campaign.

Dale Minami, a San Francisco Bay Area civil rights attorney, joined the team. Minami was an active member of the Bay Area Attorney's for Redress (BAAR), and helped draft BAAR's statement for the Commission on Wartime Relocation in 1981. In that, BAAR contended that the Supreme Court rendered its wartime decisions based on racial stereotypes and racism or guilt by ethnic affiliation and not as individuals as is required by law. Further, BAAR urged the commission to declare the Supreme Court decisions to be invalid and thus untenable as a precedent to be used against another group.

Attorneys Peggy Nagae of Portland, Oregon, and Kathryn Bannai of Seattle joined the coram nobis team. Besides their expertise and keen interest in the case, Nagae and Bannai, together with Minami, practiced in cities from which the

original wartime cases arose. Fred Korematsu's case was first heard in San Francisco, Minoru Yasui's, in Portland, and Gordon Hirabayashi's, in Seattle. Each assumed leadership of the legal teams in their cities. Their purpose was the reverse the wartime convictions of Hirabayashi, Yasui, and Korematsu.

The research and case preparations were massive, involving over a dozen attorneys and law students. Moreover, the campaign involved public education about the cases and wartime experience of Japanese Americans. The hope was to clear the criminal records of the three Japanese Americans, and to have the entire program of mass removal and detention declared unconstitutional. It was an ambitious effort. Attorney Donald Tamaki volunteered to head the education campaign.

On January 19, 1983, the team filed in San Francisco's federal district court Fred Korematsu's appeal. Judge Marilyn Patel heard the case. Later that month, Hirabayashi's attorneys filed his appeal in Seattle before Judge Donald S. Voorhees, and Yasui's attorneys, in Portland before Judge Robert C. Belloni. The following month, the Commission on Wartime Relocation issued its report titled Personal Justice Denied, which blamed the Japanese American wartime experience on “race prejudice, war hysteria and a failure of political leadership.” In addition, the commission scored the Supreme Court for its endorsement of racial discrimination and deference to military authority.

Judge Patel was the first to act upon the coram nobis appeals. In June 1983, the Commission on Wartime Relocation published its final recommendations, and on October 4, 1983, the government presented its case to Judge Patel, asking the judge to vacate Korematsu's conviction while conceding that the mass removal and confinement of Japanese Americans was “an unfortunate episode in our nation's history.” What the government's lawyers thereby tried to avoid was a court trial about a decision made some 40 years earlier. The judge denied the government's position, and stated she would proceed on the merits of the petition.

During the course of that hearing, attorney Dale Minami argued that Fred Korematsu lived for 40 years carrying the burden of the conviction that had sanctioned the mass removal and confinement of an entire people. Korematsu's interest, Minami contended, was the desire of Japanese Americans as a group for justice, which had been denied them. Korematsu testified how he was handcuffed and arrested as “a criminal.” “As long as my record stands in federal court,” he warned, “any American citizen can be held in prison or concentration camps without a trial or a hearing.” And he concluded, “I would like to see the government admit that they were wrong and do something about it so this will never happen again to any American citizen of any race, creed or color” (Irons, 1989, 26).

Judge Patel concluded the proceedings with her finding that the writ of coram nobis was an appropriate vehicle for contesting the wartime decisions, and although she could not reverse the Supreme Court, she declared, its judgment stands as “a constant caution that in times of war or declared military necessity our institutions must be vigilant in protecting constitutional guarantees” (Irons, 1989, 26). Patel then granted the writ of coram nobis without issuing a written opinion.

In Portland, Judge Belloni denied Minoru Yasui's petition in January 1984, siding with the government and refusing to render a judgment on an action 40 years

after the events took place. Judge Voorhees in Seattle held his hearing on Gordon Hirabayashi's appeal in May 1984. “We can only admire his courage for standing up for his rights,” Judge Voorhees stated of Hirabayashi and his petition. “What he really is seeking now is vindication of his honor, and I feel that he has that right” (Irons, 1989, 33).

The judge then proceeded to give Hirabayashi that right by holding a hearing on his appeal in June 1985. A key witness was Edward J. Ennis, then 77 years old, who recalled telling his superior in 1943 that there was a suppression of evidence in the government's case before the Supreme Court. Moreover, said Ennis, Assistant Secretary of War John J. McCloy “deliberately withheld” information from the Justice Department that showed the military's decision for mass removal was based on its inability to separate the loyal from the disloyal. Accordingly, the military opted for mass, rather than individual, removal and detention.

On February 10, 1986, seven months after that court hearing, Judge Voorhees issued his written opinion. Voorhees expressed his admiration for Hirabayashi, and charged that McCloy's deliberate suppression of evidence “seriously prejudiced” the government's case. That act, the judge stated, comprised “an error of the most fundamental character,” which required vacating Hirabayashi's conviction of violating the “evacuation” order but let stand his violation of the military curfew. After an appeal of that decision, both of Hirabayashi's convictions were reversed.

The government chose not to pursue those lower court rulings before the Supreme Court so the goal of a Supreme Court reversal was not achieved. But the overall purpose of the coram nobis campaign of justice for Japanese Americans as a collective group was achieved with the signing of the Civil Liberties Act of 1988. The coram nobis cases were a part of that larger struggle for redress and reparations.

Gary Y. Okihiro


Irons, Peter. Justice at War. New York: Oxford University Press, 1983.

Irons, Peter. Justice Delayed: The Record of the Japanese American Internment Cases. Middletown, CT: Wesleyan University Press, 1989.