The Trial of the 63 (or Uncle Sam plays Dirty Pool)

by Yosh Kuromiya

as presented at "Judgments Judged and Wrongs Remembered: Examining the Japanese American Civil Liberties Cases of World War II on their Sixtieth Anniversary," Japanese American National Museum
November 6, 2004

The Heart Mt. 63 bears the questionable distinction as the only organized draft resistance group of all the ten camps. This is largely attributable to the pre-existence of the Fair Play Committee, the FPC, a group formed a year earlier as a forum to address civil rights issues resulting from our unwarranted abduction and detention.

My initial purpose in attending the FPC meeting was to elicit information about the moral and legal justification for our continued detention without hearings nor trial. I was also seeking what recourse we might have when, while still under such duress, we are ordered to fulfill the same military obligations as citizens enjoying the freedoms denied us. It was after our keepers, the War Relocation Authority, would provide no answers and would only remind us of the dire consequences of disobeying government orders that we, as a group, voted to individually ignore the notices to report for pre-induction exams in order to contest the issue in a court-of-law.

I don’t know how many members received their draft notices subsequent to this proclamation, but would guess a few, at least, decided to comply with the orders, rather than risk a term in prison. 63 including myself did resist, however, and we had our test case---one which would be the largest such case in Wyoming history. The trial would not take place, however, until mid-June, about 2 ½ months away. Camp director Robertson, fearing our presence in the camp during this period might disrupt the ongoing induction effort, requested that we NOT be returned there. It didn’t matter though, as we couldn’t afford the $2,000 per head bail, anyway. Also, paying bail for the privilege of awaiting trial in a concentration camp seemed rather absurd. Thus, we 63 were scattered in small local jails all over Wyoming since the Cheyenne county jail couldn’t accommodate us all.

The pro-administration and pro-JACL newspaper, the Heart Mt. Sentinel was especially vicious in its editorial attacks, accusing the FPC leaders of treason against our country and betraying our people. It characterized the members (me) as deluded, dim-witted cowards, allowing ourselves to be manipulated by the trouble-making leaders (that would be Frank), to fulfill their sinister agenda to obstruct the war effort and detract from the heroic sacrifices of our fighting men. (Shame on you Frank).

When the trial date approached, all those held in outlying jails were transported to the Cheyenne county jail, conveniently located about a block from the courthouse. I had been there for most of the 2 ½ months so luckily, had my own bunk. The newcomers had to throw their sleeping mats on the floor in whatever space they could find and risked getting stepped-on during the night. It was very crowded. Because of the lack of space I suspect a few drunks and petty thieves were left on the streets of Cheyenne during our trial. Indeed, the circus had come to town and this was just the beginning.

The stage was pretty well set on the very first day of our trial, when Judge T. Blake Kennedy addressed the 63 of us as “You Jap boys---”. We all looked at each other and didn’t know whether to laugh or cry. We knew then, that things would not go well for us. Earlier, we had waived our right to a jury trial, reasoning that although we were entitled to a jury by our peers, our peers and potential jurors were behind barbed wire and in their stead we would most likely be stuck with 12 locals who would view us as the enemy, and would be happy to rid their great State of Wyoming of this scourge the federal government had foisted on them. Much wiser, we thought, to plead our case to a professional; someone experienced in the art of jurisprudence and familiar with the intricacies of constitutional law. To our dismay, we got the honorable Judge T. Blake Kennedy, a self-professed racist, who would be more than happy to use his noble bench to rid his great State of Wyoming of this scourge---by catapulting us into the prisons of some other state---preferably somewhere back to the west coast.

The second clue that things would not go well for us came when our attorney, Samuel Menin, during one of his rare visits to the Cheyenne jail, suggested we all crew-cut our heads “bozu” style, to thwart identification. Of course, all we “Jap boys” looked alike to the cowboys anyhow, but without individual identification in the courtroom, he thought he may be able to get us off on a technicality. He seemed oblivious to the fact that WE initiated the trial to plead our grievances and were seeking judicial relief from our and our family’s unjustified incarceration BEFORE joining the military. Unfortunately, several of the fellows, in youthful defiance, went along with this transparent ploy. The prosecution submitted our previous fingerprint records as proof of our identity and Mr. Menin was chastised for wasting the Courts valuable time. We defendants suffered a serious blow to our credibility. I am reminded of this unfortunate and costly charade every time I view the now famous courtroom photograph with the many defendants with identical crew-cuts.

-----And in this ring we have, Prosecuting Attorney Carl Sackett, who will channel the proceedings into the narrow issues of: Did we, or did we not, knowingly and deliberately, disregard the pre-induction notices for a physical exam? (Of course we did! Why else would we be here?) Defense Counsel Samuel Menin persistently questioned the applicability of the Selective Service Law, due to our prior state of incarceration; often trying the patience of a Court that refused to admit the relevance of such testimony. Mr. Menin failed however, to cite the specific provision in the Selective Service Act of 1940, which would have substantiated his claims. In its section on classification, paragraph 346 it states: (and I quote) Class IV-F: physically, mentally, or morally unfit. (According to the Ht. Mt. Sentinel, this alone would seem to disqualify most of us), (a) in class IV-F shall be placed any registrant who: (5) Is being retained in the custody of any criminal jurisdiction or OTHER CIVIL AUTHORITY. (end of quote). We were, in fact, being detained by the War Relocation Authority, a civil authority and denied ingress or egress without authorization. This was demonstrated earlier by Frank Emi and Min Tamesa, two FPC leaders, when they tried to exit through a guarded gate without a leave clearance and were immediately placed under arrest. It would seem the draft board was in violation of the classification procedures in every instance where an internee was classified 1-A instead of IV-F, (ineligible for conscription). But, if Samuel Menin slipped-up on this key piece of evidence, so did Roger Baldwin of the ACLU, who stated PUBLICLY that we had a strong moral case, but no legal case at all! Nor did any of the other lawyers, defending the several internee draft cases of other camps, bother to research the provisions of the very law they presumed to challenge. At any rate, those inducted into the armed forces from the camps were NOT draftees; it seems they had unwittingly volunteered! This revelation would be especially tragic for those who were inducted reluctantly--- and never returned. Perhaps the many monuments memorializing the KIAs have a much more heart-rending story to tell than Japanese America, especially those who promoted military service as a form of ethnic redemption, would care to admit.

At times it appeared our case might be settled by fisticuffs in the back alleys of Cheyenne when the two attorneys got into a particularly heated argument, took off their coats and challenged each other to settle matters the old fashion way. It was high noon in Judge Kennedy’s courtroom.

There is also Mits Koshiyama’s favorite story. Mits is a fellow resister and co-defendant. Toward the end of the trial, Prosecutor Sackett, apparently feeling quite smug in successfully countering defense counsels attempts to introduce the loss of civil liberties as reasonable grounds for civil disobedience---was rocking back in his chair with his hands confidently clasped behind his head. Suddenly, with a loud bang, he disappeared behind the heavy table he was sitting at. Startled, but thankful for the break in the tensions that had pervaded the now stuffy courtroom, we all laughed. That is, all but Judge Kennedy who was madly pounding his gavel like a lion tamer who had lost control of his performers. Mr. Sackett reappeared, red-faced over the indignity he had brought upon himself, brushed off his coat, and angrily righted his recalcitrant chair. He then pointed a shaky finger at us and declared, “You guys won’t be laughing when you hear the verdict!”---As if he and Judge Kennedy had already conferred on the matter.

He was right, of course. We didn’t laugh. The circus was over and nobody cheered, as we were quietly led back to our cages.

In spite of our convictions, a second group of 22 from Heart Mountain followed in our footsteps in the ensuing months. They had no hopes of winning, of course, but acted on principle and as a symbolic gesture of unity in defiance of Judge Kennedy’s court as an insult to the U.S. Constitution.

In summary: According to the guide-lines of the Selective Service Act, the trial of the 63 and all other draft cases from the various camps, should NEVER have happened. But, as all of us who suffered the unprovoked and unwarranted humiliation, degradation, deprivation and social exile of the camps know only too well, our Uncle Sam plays dirty pool! --------- And YES Jimmie, the Gestapo HAS come to America!

-- Yosh Kuromiya, June 2004