>> Part 2

E. Criminal Intent Vanishes on the Road to Trial

It was also the last day that anyone in the government gave more than fleeting thought to what the actual intent of the Shitara sisters might have been. In order to prove the sisters guilty of treason, the government would have to prove beyond a reasonable doubt that in helping Haider and Loescher escape from Camp Trinidad, they intended to give aid and comfort to an enemy of the United States. In late 1943 and early 1944, the law was clear that a person who helps an enemy of the United States must intend more than to help an individual; she must intend for her help to injure the United States or assist the enemy’s cause. That is, she must not merely “play the part of a traitor”; she must also be a “traitor at heart.”

Six months would pass between the day when Haider and Loescher implicated Toots, Flo, and Billie in their escape and the day when a federal grand jury returned an indictment charging them with treason. Those six months were filled with bitter intra-governmental squabbling over the case—between the Justice Department’s Criminal Division and the FBI, between the Justice Department and the State Department, and between the Justice Department and the War Relocation Authority. But in the midst of it all, as prosecutors and the FBI prepared the case for trial, the issue of the Shitara sisters’ intent simply vanished.

On December 4, 1943, Tom Clark wrote to J. Edgar Hoover that the Justice Department’s Criminal Division needed additional information before making a final decision about a treason prosecution. He listed fourteen inquiries, both general and specific, that he wanted the FBI to undertake. Only one specific inquiry had anything to do with intent: Clark wanted to know whether Haider had told the women “that he wanted to get back to Germany to fight again.”

Hoover responded on January 6, 1944. Upon further questioning, Haider had made clear that he never told Toots, Flo, and Billie that he wanted to go back to Germany to fight. Instead, he told them that he “planned to go to Mexico, from there to South America, and probably to Chile,” where he hoped he might meet some of Julio Hofmann’s relatives. Haider also said he had mentioned the possibility of going to California. Loescher, for his part, said that he had told the women that he “hoped to obtain work,” but had never told them that he “hoped to return to Germany and again enter the fight.”

At about the same time, obviously in anticipation of a trial in the case, the FBI case agent filed a Summary Report in which he listed the likely government witnesses, summarized their likely testimony, and listed the trial subpoenas that should issue. The agent’s review of Haider’s expected testimony did not include a single word about the women’s intent. And Loescher, the agent wrote, would testify only “that he is convinced the girls assisted in the escape not entirely from a romantic motive but actually believing they were helping Germany against this country.” This was a far cry from Loescher’s original statement in early November that he was “convinced they did it to help Germany” and knew their allegiance was to Japan.

In mid-February of 1944, Assistant Attorney General Tom Clark was finally ready to ask the Attorney General for permission to file treason charges against the Shitara sisters. He gave Biddle a two-page synopsis of the evidence. It detailed the chronology of the events, specified the overt acts that the government thought it could prove, and briefly summarized which witnesses could testify to which acts. Clark included not a whit of evidence of the sisters’ criminal intent, though he speculated that “[i]t would have been possible for the escaping prisoners to have committed acts of sabotage such as train wrecking or destroying a bridge or other strategic locations after the escape had been made.” “I do not believe,” he told the Attorney General, “that we can assume that these women did not contemplate such actions by the prisoners when they assisted them in making their escape.” And then Clark volunteered the larger agenda that was driving the prosecution: “I believe that prosecution in this case will serve to discourage other persons from rendering assistance to prisoners of war.” “This factor is extremely important in view of…the fact that a number of the[m] have escaped from custody within the past few months.”

Clark could not have summarized the case more accurately. Apart from the unadorned fact that the woman offered help to prisoners who were German, the government had no proof of treasonous intent. Indeed, its proof tended to show innocence. Yet, the government was going to ask a jury to find intent beyond a reasonable doubt on the basis of an assumption. Furthermore, the government was planning to charge the three women with the capital offense of treason in order deflect attention from the military’s share of the blame for the escapes of prisoners it was supposed to be guarding.

The Attorney General authorized prosecution of Toots, Flo, and Billie on March 2, 1944. A federal grand jury sitting in Denver indicted them on May 9, 1944, for treason and conspiracy to commit treason. The indictment specified four overt treasonous acts: two acts of providing road maps to the prisoners, one act of notifying the Germans that the civilian clothing was waiting for them in the onion field, and one act of driving the Germans south into New Mexico. On the day the indictment was returned, an agent from the United States Marshals Service went to their barracks at the Amache Relocation Center and placed them under arrest. He drove them to Denver and deposited them in a county jail to await trial.

F. “Benedict Arnolds in Skirts”

Trial began on Monday, August 7, 1944, in the courtroom of Federal District Judge J. Foster Symes, the only United States District Judge for the District of Colorado. Symes was a veteran of World War I and a twenty-two year veteran of the federal bench, with a reputation of being stern but fair. The defense attorney, appointed by Judge Symes and serving without compensation, was Kenneth Robinson, universally respected at the Denver bar as one of the best trial lawyers in the city. The prosecutor was Colorado’s United States Attorney, Thomas Morrissey, aided by an Assistant U.S. Attorney named Ivor Wingren, who had been Judge Symes’s law partner in the early 1920s before Symes became a judge.

Judge Symes quickly seated a jury of twelve men and an alternate, excusing for cause only one potential juror who announced on voir dire that he “didn’t like Japanese,” as well as a handful of others who had relatives in the service in the Pacific Theater. Because the sisters never filed an appeal, there is no surviving transcript of trial testimony. But the trial was one of the most dramatic of World War II, and lengthy newspaper accounts make it fairly easy to reconstruct the proceedings. To the eyes of the reporters who covered it, the trial was scrupulously fair—“a remarkable demonstration of American justice,” in the words of the Denver Post. In hindsight, this is not so clear. The prosecutors decided to honor the German soldiers’ request not to reveal their sexual intimacies with the sisters, which meant that the prosecutors suppressed the most powerful evidence of the sisters’ innocent intent. Also suppressed—not just by the prosecutor, but by Judge Symes himself—was Loescher’s letter to the judge explaining how hard it had been to persuade “the seduced women” to help him and Haider escape. In these ways, the case that ultimately went to the jury was racked with reversible error.

The government’s case took just two days to present, and consisted primarily of the constitutionally required two eyewitnesses to the overt acts of treason charged in the indictment. Those eyewitnesses—the eyewitnesses on whose word Toots, Flo, and Billie stood to be convicted—were the two German soldiers they had aided, Heinrich Haider and Hermann Loescher. But just as their stories had changed repeatedly between their arrests and their various pre-trial interrogations, their stories changed again at trial. And they changed dramatically.

Haider was the first of the two to testify. The prosecutor asserted in his opening statement that Haider and Loescher would testify that they had told the sisters that they wanted to escape in order to return to Germany and rejoin the fight against the Allies. It is not clear why the prosecutor ventured that prediction; the investigative files reveal that neither of the soldiers had ever actually said that to an investigator in the case. But to the astonishment of everyone in the courtroom, Heinrich Haider vividly disputed the prosecutor’s prediction. “I object to the [prosecutor’s] statement that I escaped from the Trinidad prison camp so that I might go back and fight for Germany,” Haider volunteered on direct examination. “I escaped so that I might join the Austrian or Czechoslovakian Legion and fight against the Hitler gang.” Haider, an Austrian, explained that he had publicly opposed Hitler’s annexation of his country in 1938, and, for his outspokenness, he had been sent to a concentration camp in Bavaria for two years and then impressed into military service. As an anti-Nazi at Camp Trinidad, he explained, he was victimized by pro-Nazi prisoners; thus, he said, he “told Toots I wanted to escape because life there in the camp was unbearable.” His intended destination, he told the jury, had been South America. Not a single word that Haider spoke from the witness stand even hinted that the sisters intended to help the enemy.

Hermann Loescher followed Haider to the witness stand. His testimony was a bit less stunning, but equally unhelpful to the government’s theory of treasonous intent. Loescher did not depict himself as anti-Nazi, as Haider had done. But he made clear that his days of fighting for Germany were behind him. He had been severely wounded in battle in North Africa; “[s]hell splinters pierced [his] lung,” and he “was buried under a bombshell for four hours, and this affected the joints of [his] hips and shoulders.” “I was wounded,” Loescher explained, “and I could not fight again. I ha[d] no interest in renewing the fight again. I just wanted my freedom.” Loescher, who in one of his interrogations had claimed that he was “convinced that [the sisters] did it to help Germany” and that he knew “the girls [were] definitely Japanese and…f[elt] allegiance to Japan and to its ally Germany,” mentioned none of this from the witness stand. And even though the prosecutor had the FBI report that contained those earlier assertions, he permitted Loescher to leave the stand without ever calling them to his attention.

The government called other witnesses to the stand in order to establish other elements of the crime of treason; but, on the element of intent, the testimony of the Germans was the entirety of the government’s case. And it amounted to nothing—not a single word that tended to show that Toots, Flo, and Billie intended to injure the United States or to advance the cause of Nazi Germany or Imperial Japan. It is difficult to fathom how a case this thin survived a defense motion for a directed verdict at the close of the government’s case, but Judge Symes did deny the motion without opinion. Defense attorney Robinson then put on a case for the sisters that included two character witnesses—white friends of the Shitara family from California—who testified that the sisters were loyal Americans. Toots, Flo, and Billie themselves declined to testify, which meant that the jury never heard any evidence directly from them about their innocent intent. But it also meant that the jury never heard any evidence from them that implied a culpable intent either.

As absent as the issue of intent was from the evidentiary portion of the trial, it was nearly as absent from prosecutor Ivor Wingren’s opening summation to the jury. What, after all, could he say? His witnesses had not offered a word of testimony to show that Toots, Flo, and Billie had intended to help the German Reich. Wingren could argue only that it made no difference that Haider had described himself as anti-Nazi and Loescher had said he would never fight again. All that mattered, he said, was that the sisters knew the men they were helping were German soldiers. “They’re both citizens of the German Reich,” Wingren said, “and true to the German Reich.” That, in the government’s view, was sufficient to establish a capital crime.

Defense attorney Robinson then responded. He argued powerfully to the jury that the case was about love, not treason. His clients, he said, were fools—fools who allowed their hearts to be swept away by manipulative men. He showed the jury the photographs that had gotten the whole case started, and asked, “How far did this go? None has said. But it is indicated it went pretty far.” Playing off age-old gender stereotypes, Robinson argued:

But what, gentlemen of the jury, does any woman do who finds herself in this condition? Why, that heart of hers—that heart of woman—that big heart of this woman foolishly responded and unthinkingly she helped take him away. It is, I say, the old, old story of woman. It is the old, old story of what a man can do to a woman who likes him. For as it has been said, there are…four…things that passeth understanding. They are the way of the bird in the air, the way of the serpent upon the rock, the way of a ship at sea—and the way of a man with a maid.

Robinson concluded in the same vein, conceding the women’s adultery but urging the jurors to see that it was not treason:

Oh, I know these women were married. I am not a judge of morals—I have lived too long for that. But you know, gentlemen, the way of a woman. I say to you, gentlemen, “Frailty, thy name is woman.” It was frailty that motivated these women in whatever wrong they committed, and I do not say to you they did not commit wrong. But they did not commit treason. They did not act in “adherence to the government of the German Reich.”

United States Attorney Thomas Morrissey gave the government’s rebuttal summation, and responded to Robinson’s intent-based defense. “Love—love!” shouted Morrissey. “Fie on love! I say these women are traitors—traitors! I say fie on love and fie on sympathy.” The prosecutor then made explicit what until then had only been implicit: “These were married women. If this be American love, God help us—God help our democracy.” Morrissey put a finer point on the argument moments later: “These are traitors—little Benedict Arnolds in skirts. They were not true to their husbands,” Morrissey thundered, “nor, gentlemen of the jury, were they true to the United States of America.” The form of legal argument here was familiar—the greater entails the lesser. But the content of the argument was truly stunning: a wife who will betray her husband is a woman who will betray her country.

And with that, the case went to the jury. The twelve men deliberated on the sisters’ fate for five and a half hours and then sent out a question to Judge Symes: Did the charge of conspiracy to commit treason require proof of the same intent as the charge of treason itself? Judge Symes answered the question—correctly—in the affirmative. The jurors resumed deliberations for another two and a half hours, and reached their verdict late that night. The next morning, with Toots, Flo, Billie, and a courtroom full of spectators and reporters on the edges of their chairs, the jury foreman read the verdicts: not guilty of treason, but guilty of conspiracy to commit treason.

Judge Symes told the jurors he was satisfied with their verdict. But his words revealed the gaping hole at center of the case, and, indeed, at the center even of the conspiracy conviction that the jury had returned. “Personally, I think the verdict is a very fair one and a proper one in this case,” the judge told the jurors in open court. “After listening to all the evidence, I did not believe the defendants had any intent to harm the United States or help the German government.” “For that reason,” Symes concluded, “I had made up my mind the defendants were not guilty of treason on the first count.” The judge’s reasoning, however, did not make much sense to the defendants. “How come they can find us guilty of conspiracy?” asked Billie under her breath. “We didn’t do that because we didn’t do treason.”

Billie certainly had a point. If not flatly inconsistent, the jury’s verdicts were certainly in deep tension with each other. Some speculated that the verdict was a compromise, and that may be true. But given that both counts of the indictment—treason and conspiracy—required proof of intent to betray the United States, and given that there was no such evidence before the jury, it was a compromise at the Shitara sisters’ expense.

In light of Judge Symes’s frank statement that he saw no evidence of intent to betray the United States, he might have been expected to grant defense counsel Robinson’s motion for a new trial. The absence of evidence of intent was the centerpiece of the motion. But Symes denied it without comment. And on the same day, he sentenced Toots Wallace to a two-year sentence and a $1,000 fine, and Flo and Billie to twenty-month sentences and $1,000 fines. They served their time uneventfully, if sadly, at the federal prison for women at Alderson, West Virginia, and returned to their husbands and children on the West Coast in 1946.

Part 4 >>

* This article was originally presented at the “Law, Loyalty, and Treason: How Can the Law Regulate Loyalty Without Imperiling It?” Symposium at the University of North Carolina in 2003 and published in the North Carolina Law Review, June 2004 and reprinted with permission.

***

Professor Eric Muller will tell the remarkable story of the now-forgotten trial of the Shitara Sisters on July 4, 2008 in Denver, CO.

EVENT: “Betrayal on Trial: Japanese American ‘Treason’ in World War II and the 1944 Trial of the Shitara Sisters”
PRESENTED BY: Eric Muller, Dan K. Moore Distinguished Professor, University of North Carolina School of Law

at Whose America? Who’s American? Diversity, Civil Liberties, and Social Justice
Enduring Communities National Conference

For more information, visit the Enduring Communities Web site .

© 2008 Eric L. Muller