Free to Die for Their Country . . .

s Clark took the bench at the arraignment, the defendants stood before him without counsel. Naturally, they could not afford to hire lawyers, having lost nearly everything when they were uprooted from their homes. Clark’s first job was to find them lawyers—not an easy task in a city as small as Boise. To solve the problem, Clark did something unprecedented: he ordered every available Boise attorney to appear in court that morning. When they arrived, he broke the news that they were each being appointed to represent one or two resisters and that, under prevailing federal court practice at the time, they would not be paid for their service.

Needless to say, the Boise bar was not especially happy with this plan. The problem was not the lack of compensation. The problem was that many of the attorneys wanted no part of the Japanese American defendants. Gene was appointed R.R. Breshears, whom he recalls as large and "stern faced." After Gene entered his plea of "not guilty," Clark gave him the opportunity to meet with his attorney to discuss his defense. Breshears told Gene that he was a "damn fool" and then said, "I’ll be damned if I’m going to help you." Breshears attended later hearings, Gene recalls, but said and did almost nothing.

n September 13, 1944, Clark opened the first trial. The first order of business was a motion by Jim Akutsu to quash the indictment. At the core of his claim was the raw fact of his incarceration behind barbed wire at Minidoka. That fact, he argued, transformed the government’s efforts at drafting him into a violation of both the Constitution’s due process clause and the Selective Service Act. This motion should have presented something of a crisis for Clark because, although new to the bench, he was not at all new to the issue of the incarceration of Japanese Americans at the Minidoka. Indeed, it is not an exaggeration to say that Clark had been partly responsible for the barbed wire fences that imprisoned the internees there.

In April 1942, as governor of Idaho, Clark and the governors of the other western states were invited to meet with federal officials trying to figure out where to move the Japanese Americans of the West Coast. The officials hoped that the western states would agree to welcome the Japanese Americans at loosely structured reception centers, where their fabled Japanese industriousness could be harnessed in the service of the state, the region, the nation, and the war effort. They certainly did not contemplate that the reception centers would look anything like concentration camps.

This was not an acceptable plan to the western governors, and Clark was among the bluntest in saying so. Clark began by confessing that he was "so prejudiced that [my] reasoning might be a little off." "I don’t trust any of them," he said, "I don’t know which ones to trust and so therefore I don’t trust any of them." He then explained that he "would hate it, . . . after I am dead, to have the people of Idaho hold me responsible . . . for having led Idaho full of Japanese during my administration."

Clark made clear that the West Coast states’ Japanese population would be welcome in Idaho only under certain conditions. First, they must arrive and travel in Idaho only under military supervision. Second, he insisted they should be forbidden from buying land in Idaho and forced to return to the West Coast at the war’s end. Finally, and most pointedly, Clark urged that any "Japanese who may be sent [to Idaho] be placed under guard and confined in concentration camps for the safety of our people, our State, and the Japanese themselves."

All this meant that when he entertained Jim’s motion to dismiss the indictment, Clark was presented with an attack on the constitutionality of the very circumstances of confinement he himself had demanded. Federal law at the time required the disqualification of any judge who had a "‘personal bias or prejudice,’ by reason of which the judge [was] unable to impartially exercise his functions in the particular case." Jim’s attorney did not move for Clark’s recusal, but sound judicial practice ought to have prompted Clark to remove himself from the case on his own motion. How could he possibly adjudicate the constitutionality of what he himself had demanded? Yet Clark did not recuse himself. He heard the motion and denied it without recorded opinion.

Clark then set in motion what can only be described as an assembly line of federal criminal justice. Over the next 11 days, he opened and concluded 33 separate jury trials—sometimes hearing as many as four trials in a single day. Needless to say, the trials were hardly elaborate. In each case, the government called a witness or two to establish that the defendant was classified 1-A for the draft, was duly called to report for induction, and failed to report. In some cases, an FBI agent offered in evidence a statement the defendant gave upon his arrest, usually expressing anger at the eviction and internment of the West Coast Japanese Americans and a desire to abandon American citizenship and expatriate to Japan. At that, the government rested.

The typical defense case was also quite spare. The extant judicial records suggest that in each trial, the defendant testified as the lone defense witness. The recollections of surviving Minidoka resisters tend to show that even this minimal involvement by counsel was an exaggeration. Gene remembers struggling to mount his own defense while his attorney stood idly at the back of the courtroom. While no transcript exists that captures their exact words in court, it is fair to surmise that most of them said something similar to what one had written to his local draft board:

If I were treated like an American, I would be more than glad to serve in the armed forces but seeing how things are especially since now that I’m put behind barbed wires for no reasons, except that I was born of Japanese parents, I must be a Jap, like the rest of the aliens. In that case I’ll stick to Japan and you can have my U.S. citizenship papers, it’s never done me any good.

Gene’s efforts to explain his reasons for resisting were in vain; Clark instructed the jury to disregard Gene’s testimony regarding his treatment by the government and how it had prompted his resistance. The issue, Clark instructed the jurors, was simply whether or not the defendant had willfully failed to report for induction.

Gene has vivid memories of the jury’s deliberations. "Deliberations" might be too grand a word for the work of these juries, none of which caucused for more than "a few minutes after each case." He remembers that by the time of his trial, the 23rd, the jury was no longer bothering to deliberate. He remembers that the jurors simply walked out into the hallway for a few moments, long enough for a few drags on a cigarette; said nothing to one another; and returned with a guilty verdict.

Can it really be that the juries in these cases were so cavalier? Are these embittered memories, distorted by the passage of 55 years? There is good reason to believe the former. As it happened, Clark was not the only arbiter in the courtroom who was open to a charge of prejudgment and bias. So too were the jurors.

For the 33 trials, Clark called a total of 34 Idaho citizens to serve as jurors. This meant that when all the trials were completed, each juror had served on at least 10 separate juries. On the seventh day of the trials, a lawyer for one of the defendants challenged the entire venire from which he was expected to pick a jury. He protested to Clark "that members of the jury panel had all sat on juries trying other Nisei on the same charges and thus may not be free of prejudice." Clark said he would give the matter some thought but the next morning resumed jury selection from the same pool of jurors.

Gene’s recollection that his jurors "deliberated" by stepping into the hallway for a silent smoke may well be correct. Each of his 12 jurors had already heard at least five trials of his fellow resisters; most had heard eight. At that point, what was left to talk about?

hatever its flaws, this assembly line of jury trials was unquestionably efficient. In the space of 13 days, pausing only on Sundays, the juries convicted the Minidoka internees of draft evasion at an average pace of three per day.

In late September and early October 1944, the convicted draft resisters appeared before Clark for sentencing. Those who had entered guilty pleas and spared the court the (plainly quite minor) inconvenience of a trial received 18-month sentences. Most of the rest were sentenced to terms of three years and three months in prison and a $200 fine.

Immediately after sentencing, the convicted resisters were sent to serve out their sentences at the federal penitentiary at McNeil Island, Washington, an old fortress of a prison that sat on a small island in the Puget Sound about 50 miles southwest of Seattle. As the ferry carried Gene and his fellow resisters across the water toward the prison, he could not help but note the irony that two and one-half years earlier the government had forced them from their homes along the Puget Sound as suspected subversives. Now it was forcing them back as convicted felons.

The Minidoka resisters’ time at McNeil Island passed uneventfully. They shared several large cells in the place they called the Big House—a cavernous and depressing vault of a building with rows of cells stacked upon one another like so many cages.

On December 18, 1944, the Supreme Court held it illegal for the government to continue to detain loyal American citizens of Japanese ancestry, and on January 2, 1945, the military formally reopened the West Coast to loyal Japanese Americans. But the Minidoka resisters continued to sit in the Big House. As the nation celebrated victory over Japan on September 2, 1945, the Minidoka resisters sat in the Big House. On October 28, 1945, Minidoka closed, but its draft resisters still sat in the Big House. There they remained until April 30, 1946, when they were transferred to an adjacent minimum-security prison camp. It was not until April 1947, when they had served well over two-thirds of their sentences, that the Minidoka resisters were paroled.

The trial, conviction, and imprisonment of the Minidoka resisters took a painful episode—their eviction and internment—and made it excruciating. The pain was more than some could bear. When Gene and Jim returned to Seattle in April 1947, they found their parents living in a makeshift hostel. Their father was scrambling to set up a shoe repair business around the corner from where his thriving prewar shop had been. Their mother was a ruined soul. With her family reunited, the stress and trauma of her wartime experiences caught up with her and consumed her. Six months after her boys returned home, she took her own life. She did not live to enjoy even the minor solace of seeing President Truman pardon them on Christmas Eve 1947.