A cesspool of Judicial Corruption

FORTY-SEVEN better to destroy one man than to retry subsequent cases

Faye and I had been under the opinion that eventually, if all else failed, twenty-four judges (called a Super En-banc) could be empanelled to hear the entire Case. In other words, it would be like a district court trial, but instead of a judge like Tallman listening to all the witnesses and running the show, the entire panel of judges would hear the case. Was it naïve of me to believe that this could occur? There was a certain amount of comfort knowing or believing that if the truth were presented to a larger body of judges, commonsense and honor would prevail.

Needless to say further, but the Federal Department of Justice was upset with the conclusions drawn by the Minority Judges as expressed by Judge Fletcher in the Dissent Opinion.

Acting United States Attorney District of Idaho Michael J. Mullaney of the Counterterrorism Section National Security Division Department of Justice wrote on May 7, 2010, the following in his brief to the Ninth Circuit Court of Appeals:

Judge Tallman's decision was predicated upon detailed findings of fact . . . an appellate court is not at liberty to substitute its judgment of the facts for that of the trial judge. Instead, factual determinations are reversible only if they are "illogical," "implausible" or "without support in inferences that may be drawn from the record...."

The holding that Hinkson challenges, does not satisfy the criteria for en banc review and warrant the unprecedented step of granting further review by the entire Court. . . . There is consequently no reason for this case to become the first in this Court"s history to receive plenary [This would be the first Super En Banc in the Ninth Circuit]. Hinkson was convicted of soliciting Elvin Swisher to murder Judge Edward J, Lodge, AUSA Nancy Cook, and IRS Agent Steven Hines, who had all been involved in his tax investigation and prosecution.

At trial, Swisher, James Harding, and Rich Bellon all testified concerning Hinkson's solicitations to murder the officials. According to Harding, Hinkson offered him $10,000 apiece to torture and kill the three officials. Bellon, who had worked for Hinkson, testified that, after Hinkson's arrest, his animus toward the officials became the focus of his life. Hinkson told Bellon that he "would pay to see them dead [No corroboration–just the word of the honorable Richard Bellon] ...."

Relying upon the multi-factor test in United States v. Harrington, he [Tallman] explained that the defense had not been diligent in seeking the evidence it now possessed. [The Court by] having acknowledge before trial that it was suspicious of Swisher's claims concerning his military record that Woodring's statement [and] that his signature had been forged was cumulative of previously available information concerning Swisher's military record. And that the "newly-discovered" evidence was not "material" because whether Swisher was actually a combat veteran and seasoned killer was not relevant to whether Hinkson believed [that] he was [After all if Swisher said it, it must be true] .

With their crystal ball, the prosecutors were able to get into David's head–they knew what he was thinking, or were they just taking Swisher's word without any corroboration?

"Dissenting, Judge McKeown observed that "In granting a new trial, the majority has assumed the role of a super trial court rather than a reviewing court [This is an interesting play on words. What is a super trial court? What is the purpose of a "reviewing court?"] and in so doing has failed to give deference [to take Tallman's word unchallenged] to any of the District Court's [Tallman's] detailed findings. The inquiry is not whether the trial court made findings the appellate court might not have made but whether the trial court's resolution of the motion resulted from a factual finding that was illogical, implausible, or without support in inferences that may be drawn from the facts in the record." [In this context the words illogical, implausible or unfactual are totally meaningless].

Here Mullaney quotes Judge McKeown (who sat on the bench in the first appeal in Seattle) and uses here argument as something persuasive. She had ruled that the Harrington Test totally discredited David's appeal for a new trial. Tallman's detailed findings were composed of Swisher's lies and the testimony of Harding/Bates etc. for which the Jury acquitted David or could not reach a verdict.

Mullaney argues, "We cannot conclude that the District Court's decision was so unreasonable, illogical or arbitrary, as to constitute an abuse of discretion; Where there are two plausible views of the evidence we should not reverse a 'factual' finding unless we believe the finding is so illogical or implausible that a clear mistake has resulted. Clear error review permits only limited reexamination of factual findings where 'the District Court's account of the evidence is plausible in light of the record viewed in its entirety..... Mullaney argued:

Here, Judge Tallman not only identified the correct legal standard, he also made "extensive and careful factual findings in applying that standard to the circumstances of the case. . . ." Judge Tallman afforded Hinkson an unfettered opportunity to cross-examine Swisher concerning his military record by reference to the 'impeaching documents.' Hinkson, however, declined to avail himself of that opportunity [David, he claims, just didn't play the game correctly; thus, you go directly to jail].

Finally, since issuance of the Hinkson decision, a significant number of cases within the Circuit have relied on it in resolving abuse of discretion claim. Judge Tallman's Evidentiary Rulings were correct.

Here, Mullaney buried in his brief the main reason for the government's opposition to David getting a new–and fair–trial:
A significant number of cases within the Circuit have relied on it.... Granting yet further review could call into question the validity of those decisions and generate uncertainty as to the correct standard for deciding similar claims."
Now the Ninth Circuit may have to reconsider other cases if a single judge's opinion becomes Gospel. All of the false testimony of the blackmailer, thieves and conspirators was accepted a truth and acted upon by one man, Judge Richard C. Tallman–a judge who was caught meeting with Swisher during the trial in his chambers.

Again, I draw attention to the fact that Swisher was in a wheelchair, sporting a catheter and barely recuperating from heart surgery, that he was not even welcome to call David. In addition, I had warned David that Swisher is a liar and a crook. But Mullaney goes on:

What did matter to the government's theory of the case was that Swisher told Hinkson that he had killed people in combat and Hinkson believed him, which explains why he chose to solicit Swisher as a contract murderer. . . .

In sum, Hinkson's attempt to involve the entire Court in what Judge McKeown aptly described as "a classic sideshow" should be rejected. For the foregoing reasons, the Petition for Limited Rehearing On Banc or Rehearing by the Full En Banc Court should be denied. Respectfully submitted [Mullaney].

The appeal for a Super En Banc went to the Ninth Circuit for consideration. There was no further involvement of the Defense except for the Amicus Brief from Mac Swain, Keker and Riordan et al. The same group of judges reviewed the same arguments and clung to their prior opinions. The Decision, filed July 14, 2010, was rendered except for with one change. They concluded: "Appellant’s Petition for Rehearing by the Limited En Banc Court and for Rehearing by the Full Court is denied."

However, to his credit Chief Judge Kozinski joined with the four dissenting judges (Pregerson, Wardlaw, W. Fletcher, and Paez). "The original en banc opinion filed on November 5, 2009 remains unchanged, except that Chief Judge Kozinski concurs only in the portion of the opinion that clarifies this court’s abuse of discretion standard of review, but dissents from the application of that standard to the facts of this case....

Chief Judge Kozinski, in his dissent, said:
I continue to agree with, and join, that portion of the opinion explaining how we review for abuse of discretion, but now disagree with the application of this standard to the case before us. I had underestimated the trust some jurors would have placed in Swisher if they thought he was a decorated combat veteran, and the likely backlash if they had learned he was a fraud.

My change of heart came about after I read the Supreme Court’s summary reversal in Porter v. McCollum,130 S. Ct. 447 (2009), and the amicus brief of William MacSwain filed in our case. Without Swisher, the government had no case. I’m now persuaded that Judge Fletcher has the better of the argument for the reasons articulated in his dissent, which I join in full.

Now that the En Banc Hearing failed to free David where do we go from here? The United States Supreme Court will have to decide if we must give "deference" to all trial judges in lieu of granting the convicted the opportunity to be heard in full.

This is a significant case because it takes rights away from all U.S. citizens. In summary, let's take a "fly by" peek at what happened to David Hinkson.