Writs. We’ve all heard of them. There’s the writ of certiorari, the writ of habeas corpus, and the writ of mandamus, just to name a few. But what exactly is a writ and what does it do? Simply put, a writ is “an order issued by a legal authority with administrative or judicial powers, typically a court.” Historically, in the common law, writs were used to convey real property, grant privileges or rights, and to convey information. They were also written executive directives from the king, instruments by which the king could intervene into matters that were not resolved by feudal courts. Later, writs evolved, adopting a more judicial nature, acting as summonses or the initial documents in legal matters or as an order commanding a person to do something or refrain from doing something.

Writs are generally referred to “extraordinary remedies,” which means that they only issue when there is no other available judicial relief. Moreover, the granting of writs lies within the discretion of the court, which means that their issuance could be rare and not necessarily granted as a matter of right. The most common of the writs seen today are writ of habeas corpus, writ of mandamus, writ of prohibition, writ of certiorari, and writ of quo warranto. In this post, we will look at another writ, the writ of error coram nobis.

The writ of error coram nobis is a common law writ “intended to correct a final judgment by the same court in which it was rendered by redressing a fundamental error” and calls the court’s attention to facts outside the record that would have changed the judgment. The name of the writ comes from the Latin meaning “before us.” It is generally used in criminal cases and is most closely related to the writ of habeas corpus but can provide relief when habeas corpus is not a sufficient remedy. Although cases may differ on the exact number of requirements a petitioner must fulfill to have the requested relief under a coram nobis granted, there is some consensus that the following, at a minimum, must be met: 1) the judgment must have been the result of a fundamental error; 2) collateral consequences exist as a result of the judgment; and 3) the request must be timely, i.e. petitioner could not have sought relief earlier. Because of the high threshold that a petitioner must cross and because the granting of the writs is discretionary, writs of error coram nobis are more often denied than granted. Korematsu v. United States, 584 F.Supp. 1406 (N.D. Cal. 1984), however, was one of those exceptions.

In 1944, Fred Korematsu, a United States citizen of Japanese ancestry, was convicted of violating a civilian exclusion order that prevented persons of Japanese ancestry from a described military area, even though his home was in that area. See Korematsu v. United States, 323 U.S. 214, 65 S. Ct. 193, 89 L.Ed. 194 (1944). More than 40 years after his conviction, Korematsu filed a petition for a writ of error coram nobis seeking to vacate his conviction on the grounds of governmental misconduct. The court granted the motion. The court found that the government had withheld relevant evidence and provided misleading information. Specifically, the government had omitted from its brief any reference to contrary or contradictory reports from other governmental agencies refuting the need for evacuation in the name of national security but instead relied solely upon the assertions made in the “Final Report, Japanese Evacuation from the West Coast” (1942). The court found that the government’s failure to provide a full and accurate account satisfied the requirement that “coram nobis should be used ‘only under certain circumstances compelling such action to achieve justice’ and to correct ‘errors of the most fundamental character.’”

If you would like to learn more about the Korematsu case and the efforts to overturn his conviction through the use of this extraordinary writ of error coram nobis, please watch the recording of “80 Years Later: The Legacy of Japanese American Incarceration and Korematsu v. The United States,” a CLE webinar hosted by the Harris County Robert W. Hainsworth Law Library. [This recording is accredited by the State Bar of Texas for 2.0 hours of MCLE and 1.0 hour of ethics through January 31, 2023.]