A cesspool of Judicial Corruption

FORTY-FIVE legal reporter levine on en banc decision

Recorder Staff Writer Dan Levine wrote the following article after the decision of the Eleven Judge En Banc Hearing:
Conservatives on the Ninth Circuit U.S. Court of Appeals rode to the rescue of one of their own on Thursday, finding that Judge Richard Tallman didn't botch a bizarre murder-for-hire case in Idaho. The en banc decision from Judge Carlos Bea reverses an earlier opinion that blasted Tallman for refusing to grant defendant David Hinkson a new trial. The author of that panel opinion, Judge Wil­liam Fletcher, now writes in dissent.

Bea and Fletcher largely talk past each other. Bea, a former state trial court judge, used the case to give district court judges more cover on abuse-of-discretion calls. Fletcher, a former UC-Berkeley School of Law professor, essentially accused Bea of cherry-pick­ing the facts, saying his version of events was too "truncated."

A Justice Department spokesman declined to comment on the ruling. "Not so [," said] Hinkson's defense attorney, Dennis Riordan of Riordan & Horgan in San Francisco. "Any legal rationale that prevents a jury from learning that the only witness the government has on the charge came before the jury with the express purpose of lying to them, and showing them forged documents, can't possibly be an appropriate or correct stan­dard for a fair trial," he said.

Federal prosecutors charged Hinkson with attempting to hire his onetime friend, Elven Joe Swisher, to kill an IRS agent, a prosecutor and an Idaho district judge. A tax protester who made his living running WaterOz–a company that sold water with small bits of dissolved gold and platinum over the Internet.

Hinkson hated federal authorities. He spoke of building a "fed-a-pult," which "was a device to catapult federal agents into a canyon or into an oncoming train," according to the opinion.

At trial, Swisher appeared on the stand bedecked with a Purple Heart, which he claimed was a product of service in the Korean War. When the defense tried to challenge the medal, Swisher produced a military document which purported to prove its authenticity.

Faced with conflicting evidence in Swisher's personnel file, Tallman let the testimony in, and Swisher [Hinkson] was convicted. After trial, when the defense supplied an affidavit from an officer calling Swisher's document a forgery–and proving that he never served in Korea or won a medal–Tallman didn't order a new trial. Instead, he sentenced Hinkson to 33 years, which he is serving in a Supermax prison for terrorist suspects [Tallman sentenced David to thirty years plus upward departure of three years on Swisher's testimony and another ten years for the phony structuring charges].

In his opinion, joined by six others, Bea tightened the abuse-of-discretion standard. "We invoke that standard of review as we have hundreds of times before, but this case forces us to step back and consider precisely what "abuse of discretion" means," Bea wrote. "From now on, a district judge's factual findings can only be reversed if they are found to be illogical, implausible or not supported by inferences drawn from the facts, he wrote [This decision gives trial judges unbelievable power but is Constitutionally unlawful].

If any of these three apply, only then are we able to have a "definite and firm conviction" that the District Court reached a conclusion that was a "mistake," Bea wrote. "Tallman's decisions passed this test," he concluded.

Joining Bea were Chief Judge Alex Kozinski and Judges Diarmuid Scannlain, Andrew Kleinfeld, Consuelo Callahan, Sandra Ikuta and N. Randy Smith.

Fletcher didn't take on Bea's new standard, but instead ticked through a list of mistakes he says Tallman made. For example, Tallman said Hinkson's lawyers waited too long to investigate Swisher's war records, when in fact, Fletcher wrote, they had been waiting for a response from the military for months.

"It is almost incomprehensible to me that the government would make that argument. It is entirely incomprehensible that the majority would accept it," Fletcher wrote. He was joined by Kim McLane Wardlaw, Richard Paez and Harry Pregerson.

Riordan plans to ask the entire Ninth Circuit to hear the case and, failing that, the U.S. Supreme Court.
Maybe we shouldn't be surprised that a former trial judge would want to change the law in order to give trial judges decisive power. As Tallman said at David's Trial, "You can always appeal my decision"–yes, if you can afford it. However, with this interpretation of the law there is no effective way to appeal even the most corrupt judges.

Not everyone went along with the Bea Majority Opinion and Decison. Let's consider what our fighting men had to say.

FORTY-SIX seventeen-thousand korean war vets speak out

While all this was going on, Swisher was paddling upstream. From prison, he was begging for mercy because of his discomfort while spending only a couple weeks in jail for just a few of his crimes.

One must give him credit for his persuasive, golden tongue. He has been able to con his way out of trouble almost without exception. Even with all his phony lawsuits, his rapes, his perjury and his stolen valor, he hopes society will honor him as a great American. But he is nothing but a craven coward. His audacity, impudence and disrespect for humanity make him very dangerous to moral people. In my opinion, he is totally "amoral."

John Roemer of the Daily Journal Staff Writer wrote about an amicus brief filed with the Ninth Circuit Court of Appeals by Attorney John W. Keker on behalf of the president of the 17,000-member Korean War Veterans Association, William Mac Swain:

SAN FRANCISCO - Prominent attorney John W. Keker of San Francisco's Keker & Van Nest is a Marine veteran with a combat record that Elven Joe Swisher could only dream of.

Swisher, the star government witness at a federal murder-for-hire trial, lied on the witness stand and claimed bogus military credentials. Offended and resentful at what veteran groups call stolen valor claims such as Swisher's, Keker filed a passionate friend-of-the-court brief in favor of defendant David Roland Hinkson. Keker argued it was fundamentally unfair that jurors convicted Hinkson without ever learning of Swisher's deceptions.

Swisher's testimony was key as he told jurors how defendant Hinkson asked him to torture and kill an IRS agent, an assistant U.S. attorney and U.S. District Judge Edward J. Lodge of Idaho in retaliation for a tax prosecution.

But Swisher lied a lot. He produced a forged document that falsely said he'd won the Silver Star, the Navy and Marine Corps Medal, the Purple Heart and the Navy and Marine Corps Commendation Medal with Combat 'V. He testified wearing a sham Purple Heart replica pinned to his lapel as he wrongly declared himself a Korean War combat veteran.

Keker has a real Purple Heart, earned as an infantry platoon leader wounded during Operation Hastings, a major 1966 encounter with the North Vietnamese Army in Quang Tri Provence.

Hinkson cited with admiration Swisher's claims of combat service in offering him $10,000 per victim, Swisher testified, in a plot that derailed when Swisher went to authorities. But jurors never learned they were listening to a fraud.

Following a three-week trial, Hinkson was sentenced to 43 years in prison for attempting to hire Swisher to kill the officials.

Now, a fierce battle rages at the 9th U.S. Circuit Court of Appeals over a controversial decision to deny Hinkson relief based on evidence of Swisher's fakery. Much of the definitive evidence that Swisher lied arrived from the National Personnel Records Center only near the end of the trial, and the trial judge - Circuit Judge Richard C. Tallman of Seattle, sitting by assignment, excluded it and later ruled against a new trial. Tallman held that it was Hinkson's belief in Swisher's tall tales that counted, not whether they were actually true.

Hinkson's appellate lawyer, Dennis P. Riordan of San Francisco's Riordan & Horgan, is an old friend of Keker's who asked him to look at the case. Keker read the record with mounting disbelief at the idea "that a judge would trivialize as collateral impeachment a guy who gets up and falsely says, "I'm a war hero."

Keker proudly displays on an office wall an AK-47 assault rifle sculpted of animal bone. A North Vietnamese soldier may have used an actual weapon of that type during a firefight to shatter Keker's left elbow and riddle his left leg with bullets. He retired from the Marine Corps as a first lieutenant in 1967 to attend Yale Law School. He founded Keker & Van Nest in 1978.

His damaged left arm and other wounds are an ever-present reminder of his combat service, and he remains angry at blowhards with war stories. "You hear about it all the time," he said in an interview on Tuesday. "Football coaches. Tough guys in town hall meetings. When I hear some guy brag about his military service, I'm always suspicious."

Since around 1980, Keker said, the country has turned "pretty solidly pro-soldier, even as we debate wars. People who served are recognized and applauded. And so many charlatans try to glom onto that."

Keker in his Hinkson brief represents William F. Mac Swain, a Texan and former Army master sergeant who is president of the 17,000-member Korean War Veterans Association. The veterans are as upset as Keker at the spectacle of a fake war hero on the witness stand. But Keker's brief is also an unusual plea on his own behalf.

Mr. Mac Swain is represented here by John W. Keker, who served as an infantry platoon leader in Vietnam while a first lieutenant in the United States Marine Corps, until he was wounded and retired from the Marine Corps in 1967, Keker wrote. Mr. Keker received the Purple Heart.

Mr. Keker has an impressive background as a member of President Reagan's National Security Council in the 1990s. Law professionals recognize him as one of the very top attorneys in the U.S. He entered into this fray pro bono because he was so incensed by what Swisher had done to undermine the credibility of true warriors and had gotten away with.

In the Hinkson case, Keker wants a new jury to hear about Swisher's record of dishonesty before they decide to trust his accusations against the defendant. The appeal seeks an en banc rehearing or a full court en banc review.

But, Keker said he is disturbed by the fact that 9th Circuit judges are in effect judging one of their own colleagues, Tallman, who heard the case in Boise, Idaho, in 2005. In an 7-4 en banc decision in November, the circuit affirmed Tallman's decision making at trial (U.S. v. Hinkson, 585 F.3d 1247–Nov. 5, 2009). The majority redefined upward the degree of deference an appellate panel owes a trial judge, holding that only "illogical" or "implausible" trial court rulings amount to an abuse of discretion warranting reversal. Tallman's rulings did not meet that new standard, the majority held.

Does Keker think Tallman's involvement swayed his fellow circuit judges? "Judges always tell you they are immune from any human frailties when they put on their robes, and we have to believe them. If we get up and say we don't believe them, we get thrown in jail," Keker said.

Keker took particular offense at Tallman rulings that evidence proving Swisher lied about his service record was "not 'material' to the issues at trial" and was "merely impeaching" because it did nothing more than attack Swisher's credibility regarding his military service rather than his testimony regarding the solicitations [to murder] charged, according to language Keker cited from the appellate record.

As he put it in his brief: "What amicus is asking this court to understand is that its reasoning and language are a slap in the face to veterans and jurors alike," Keker wrote to the circuit. "For they imply at a time when this nation is fighting two wars and losing more soldiers every month that the average American no longer attaches any significance to a veteran's wartime service."

If the jury had known about Swisher's lies, contended Hinkson's lead appellate lawyer Riordan, echoing the en banc dissenters, at least some of the jurors might well have considered "fabricating military commendations to be an act of deceit powerful enough to render everything that person says totally incredible."

Government lawyers opposed Keker's entry into the case as a friend of the court. "First, let me assure you that we take very seriously the significance and honor of military service," U.S. Department of Justice appellate lawyer Michael Taxay wrote to the Keker firm. However, Taxay went on, "The primary legal question before the 9th Circuit concerned the deference that ought to be given to certain district court rulings. Relevant here was the government's theory at trial that defendant Hinkson had solicited Swisher to commit murder because of Hinkson's subjective belief that Swisher had killed in combat. Swisher's actual military experience was irrelevant to the government's case."

A Department of Justice spokesman declined to comment further. Said Keker: "This shows that the government is perfectly happy to have fake combat veterans testify before criminal juries, but objects to letting real combat veterans, like Mr. Mac Swain, be heard in the Court of Appeals."
Civil service employees, career politicians and life-time tenure judges must justify their behavior in the eyes of the public. To be exposed for incompetence or fraud can have serious consequences. Don't search for the truth. Understand your role: get a conviction and sustain it. So appoint damage control specialists to spin the facts.