Prosecution of the Shitara Sisters
In 1976, Michi Nishiura Weglyn famously wrote that "not one instance of subversion or sabotage [was] ever ... uncovered ... involving the Nisei" during World War II. This assertion is mistaken. In 1943, three Japanese American women helped two German prisoners of war escape from a Colorado prisoner-of-war (POW) camp. Prosecuted for treason and convicted of conspiracy to commit treason in federal court in 1944, they served two years in prison.
The Nisei women, Tsuroko ("Toots") Wallace, Florence ("Flo") Otani, and Misao ("Billie") Tanigoshi, were sisters, née Shitara, originally from Inglewood, California. Forced from their homes pursuant to Executive Order 9066 , all three sisters spent the summer of 1942 in detention at the Santa Anita Assembly Center along with other members of their family. In the fall of 1942, they were shifted to incarceration at the Granada (Amache) Relocation Center in southeastern Colorado. They remained there until the late spring of 1943, when the War Relocation Authority granted them indefinite leave to work on an onion farm in south central Colorado, not far north of the New Mexico border. Although all three of the sisters were married, they ended up on the onion farm without their husbands.
While at the onion farm, the sisters met Heinrich Haider and Hermann Loescher, two German POWs from Camp Trinidad, a nearby POW camp where the War Department confined more than 3,000 captured German soldiers. The POWs' accounts of what happened next between them and the Shitara sisters shifted significantly over the following months, but it is certain that after the Germans told the sisters that they planned to escape from Camp Trinidad, the sisters agreed to provide the men with civilian clothing and to pick them up on a highway near the POW camp at an appointed nighttime hour.
What the German soldiers were planning—escape from a POW camp—was surprisingly common. More than 2,200 German POWs escaped from POW camps in the United States between 1943 and war's end, to the embarrassment of the War Department and the alarm of the Justice Department and the FBI.
Haider and Loescher made their break from Camp Trinidad on October 18, 1943, by cutting through the wire fence. As agreed, the Shitara sisters were waiting for them. They drove the men south into New Mexico. When their car developed engine trouble, Haider and Loescher struck out across the desert with cash and maps the women had given them.
The POWs reached the small town of Watrous, New Mexico, where they were arrested in a bar while carousing with some local women. A search of the men revealed the cash and the maps the Shitara sisters had given them, but it also turned up several souvenir photographs of the men with the sisters. One of the photographs showed Haider with his arms around Billie Tanigoshi, their lips locked in a passionate kiss. This photo made its way into newspapers across the country, accompanied by breathless stories about the "Japanazi Romance."
Questioned on the onion farm, the sisters at first denied knowing anything about Haider's and Loescher's escape. They admitted that they had taken the photographs with the soldiers at the onion farm and given them to the men as souvenirs, but falsely claimed that they had given the men nothing else and had never talked with them about an escape.
This story soon fell apart. Another POW at Camp Trinidad bargained with the authorities for preferential treatment by offering valuable information about the escape. He revealed to them a 150-foot-long tunnel that POWs were using to escape from Camp Trinidad. And he told the authorities that Haider and Loescher had both admitted to him that the Shitara sisters had helped them escape. He said the escapees had told him that two of the sisters had had sex with them during the drive into New Mexico and that the sisters had given them cash and maps. After further interrogation, Haider and Loescher both confirmed this account.
In February of 1944, Assistant Attorney General Tom Clark sought U.S. Attorney General Francis Biddle 's permission to charge the Shitara sisters with the capital offense of treason. Noting the large number of escapes from POW camps, Clark argued that prosecuting the Shitara sisters would have the valuable effect of deterring other people from rendering assistance to escaped POWs. On May 2, 1944, a federal grand jury in Denver indicted the three Shitara sisters for treason and for conspiracy to commit treason, specifying the provision of maps, the provision of clothing, and the drive into New Mexico as the "overt acts" of which Article III of the U.S. Constitution requires proof by two witnesses.
Trial commenced on August 7, 1944, in the courtroom of J. Foster Symes, Colorado's lone federal district judge. The prosecutor's task was to prove not only that each of the sisters was responsible for one or more of the "overt acts" of treason, but also that in committing those acts each woman acted with treasonous intent, an intent to "give aid and comfort" to an enemy of the United States. This meant that the prosecutor had to show that the women intended not just to help Haider and Loescher personally but to injure the United States out of allegiance to an enemy.
The prosecution had little difficulty proving through the testimony of two witnesses that the sisters committed the overt acts. That testimony came, ironically, from Haider and Loescher, the enemy soldiers to whom they were accused of giving aid and comfort.
The difficult thing to prove was the sisters' criminal intent. What made this difficult was that Haider and Loescher told a variety of shifting stories in the months after their arrest. Upon arrest they did not mention the sisters at all. Then they told investigators that the women had tried to dissuade them from escaping when the subject first came up at the onion farm. Then they told investigators that they had had sex with two of the women but asked that this not be publicly disclosed. Then, when asked if the episode was just a "romantic escapade," one of them maintained that he believed the women had done what they did "to help Germany," and that he knew they "feel allegiance to Japan and to its ally Germany" because they were "definitely Japanese and probably ha[d] not been accepted by Americans." Then one of them sent a pre-trial letter to Judge Symes reiterating that the men had had to "take many troubles by words and by letters" to persuade the reluctant women to help them and insisting that they, and not "the seduced women," were the guilty parties.
When Haider and Loescher took the witness stand at trial, their stories changed yet again, and in ways that were unhelpful to the prosecution on the question of the sisters' intent. Haider asserted that he was an "anti-Nazi" who wanted to escape from Camp Trinidad so that he could join a resistance movement to "fight against the Hitler gang." Loescher, for his part, said that he had been severely wounded in combat and knew he could never fight again; he did not want to return to combat but simply wanted his freedom. Neither said a word suggesting that the women were acting out of disloyalty to the United States or allegiance to Germany or Japan.
The sisters did not testify in their own defense, and therefore did not supply any evidence about what their intent was in helping the POWs. On the issue of criminal intent, the jury knew only that the women had acted to help the POWs in their escape, that they were cheating on their husbands, and that they were ethnically Japanese.
In his summation to the jury, the lawyer for the sisters argued that the case was about love, not treason. He alluded to the intimacies between the men and the women and argued that the case was about the "frailty" of women in love. He noted that the women were married, and acknowledged that they had done wrong, but maintained, in effect, that betraying their husbands was not the same as betraying their country.
The federal prosecutor responded in kind. Calling the sisters "little Benedict Arnolds in skirts," he reminded the jury that "these were married women" who "were not true to their husbands" or "to the United States of America."
Verdict and Aftermath
The all-male jury found the sisters not guilty of the capital crime of treason, but guilty of conspiracy to commit treason, a crime that carried much milder punishment. Judge Symes sentenced Toots Wallace to two years in prison and Flo Otani and Billie Tanigoshi to twenty-two months.
After receiving the verdict, Judge Symes told the jurors that it was "a very fair one and the proper one in this case," because, "after listening to all of the evidence," he "did not believe the defendants had any intent to harm the United States or help the German government." As a legal matter, this comment is perplexing. The charge of conspiracy to commit treason required proof of the same intent as the charge of treason. If there was not enough evidence to prove treason, then logically there was not enough evidence to prove conspiracy to commit treason either.
Yet Judge Symes's assessment of the jury's conspiracy verdict as "fair" seems intuitively right even if legally flawed. What the women did was not treason, but it was dangerous conduct that the government had a strong reason to deter and punish. The legal problem lurking behind the trial of the Shitara sisters was that at the time they did what they did, there was no criminal law on the books specifically forbidding a person to aid in the escape of a prisoner of war. The prosecutor's only option in such a scenario was to charge the capital offense of treason. Less than a year after the verdict in the trial of the Shitara sisters, Congress filled this hole in the law, making it a crime punishable by up to 10 years' imprisonment for a person to help a POW escape or offer assistance to an escaped POW.
The three sisters served their terms at a federal prison for women in West Virginia and rejoined their families in California in 1946.
For More Information
Muller, Eric L. "Betrayal on Trial: Japanese-American 'Treason' in World War II." North Carolina Law Review 82.5 (June 2004): 1759–98. [A version of this article without footnotes is available on the DiscoverNikkei website.]