A cesspool of Judicial Corruption

THIRTY our hope to enlist a top appellate attorney

On July 8, 2005, Faye and I drove to San Francisco to meet with Attorney Dennis Riordan. Wes Hoyt flew from Denver, Colorado to our meeting. Wes had tried to get Mr. Riordan on David's case earlier, but Riordan was involved in another time consuming case that he just won. So Dennis was willing to, at least, listen to our plea for his expertise in handling David's appeal.

Emmy award winning journalist Charlie Rose praised Dennis Riordan is one of California’s leading criminal appellate lawyers.

On his Website he praises Riordan's accomplishments:

He has been listed among the "Best Lawyers in America," and is a member of the California State Bar, the New York State Bar, and the Bar of the United States Supreme Court–First, Second, Fifth, Ninth, and Tenth Circuit Court of Appeals.

Riordan received the Skip Glenn Award for Outstanding Advocacy from the California Attorneys for Criminal Justice and the Merit Award from the Bar Association of San Francisco. He taught at the University of San Francisco Law School, and served as Deputy State Public Defender at the State Public Defender’s Office in San Francisco.

His writings appear in books and newspapers including: "Criminal Defense Techniques" (1979); "Jury work: Systematic Techniques" (1983); "Political and Civil Rights in the United States" (1976) to name a few."
Mr. Riordan is well known in the Ninth Circuit, and he didn't just jump in to take David's case. He said he'll review the Case and let us know.

"What questions do you have," he asked, "about me and the process? Why did you come to me, Roland?"

I said that we‘ve been ripped off by all the attorneys to the tune of over $2,000,000 [at that time]. Tiger [an acquaintance of his] calls you, Dennis, "the best." I told Riordan that I no longer believe in the system–based on personal experience and of testimony from those whom I trust. We're looking at you to help David and help save the Country. "Tallman is a criminal," I said, "and should be charged.” I also told him about Swisher’s lying and deceit.

Steve Anderson (another high powered tax attorney) joined the conference on the telephone. Riordan asked Steve if he had read the tax case etc. He said he only read the items for the sentencing issues. Steve talked about the structuring and guidelines for upward departure.

"The Appeal," Riordan said, "may not address all the things we are concerned about. This may be a disappointment to you.”

Anderson mentioned that the scheduling dates are the same in both cases: "We should order the two sets of briefs on the date of the secret hearings and that we want the hearing transcripts that were in camera [judge's chambers]. Steve Anderson said there is something called a 'willfulness requirement.'"

Wes talked to Dennis about appealable issues and reversible error and that we may have dozens of appellate issues. Wes said, "We're looking for some novel approach. We need a hook (suppression, liability, Brady/Giglio, 'ineffective assistance of counsel' etc.)." I learned that a 2255 proceeding is equivalent to a habeas corpus.

Wes said, "Roland and Faye are steeped in the legal aspects of this case." He said he is only a civil attorney. Wes explained the tax case and threats case to Riordan. On the tax case, David was pro se. Wes couldn't get anyone to take the threats case because of the "icky factor." He said, “Under the old system David's could have appealed by saying, "Hey, you're holding me improperly.” The courts now ruled that as long as there is a remedy, that’s what you'll have to talk about. Congress passed a law Title 18 2265, which says if you're going to challenge something, for example–"the attorney did a bad job–that’s what you talk about (e.g. government misconduct). It’s kind of like as a second appeal."

Wes said that not one attorney in Idaho would take David's case. Wes shopped the state for a criminal attorney that would take the case but without success. It was the “icky factor” again. Wes told David's story about his arrest, the Lodge–Lon Hirarushi murder and Winmill recusal [the judge who postpone sentencing until they tried both cases]. He said that they convicted David on "404 B evidence."

He went on and talked about Swisher's testimony, about Lodge, Hines and Olson and about Sean Connelly’s ineffectiveness of counsel. Sean had told Wes, “This [IRS case] could cause the government to collapse.” Sean had recently become a judge.

Without disparaging Tom Nolan [as lead counsel], Wes explained why we hired him. Riordan knows him through a murder case that Dennis tried. Our complaint was that Nolan wouldn't learn the case. He was great at cross examination. Wes did all the preparation. Nolan just wouldn’t ask necessary questions or learn the background of the case. Nolan admitted he botched the "cross" on Swisher's testimony. Riordan even suggested that a proper tactic would be to attack him as ineffective counsel.

Riordan confided, "I don't doubt David's innocence, but I’ve won cases where I have no opinion of guilt or innocence. I [hate] government abuses, and I want to burn them. If the appeal were a Parcheesi game you'd want the best Parcheesi player in the game. We're [talking about] going after a judge of this same court. We don't know who we’ll get. It could be somebody who agrees with Tallman's ideology or someone who disagrees. So it’s going to be a very difficult and complex case. I have never gone to trial where one of the judges I was going against for a client sits on the appellate court."

Wes said, “I've filed a motion for a new trial in the solicitation case.” He also said, “I know David was ineffectively represented in both cases. Looking back, I can see my part in the ineffective representation. It was scrambling representation. Trying to do what I could. Dave might not have owed any taxes.”

This raises the issue of sentencing on the tax case. Wes said, “I'm willing to say I screwed up.”

Riordan said it is unlikely that we can raise any of that until the appellate proceeding is completed. "If you win the appeal you can get a new trial–the exception is by claiming insufficient evidence as your defense."

Wes said Tallman told him there are a number of appealable issues–This is the second case Tallman ever tried. WaterOz has been compliant in paying all taxes for over a year now [although David has signed over a power-of-attorney to the IRS to take any tax they claimed]. Wes mentioned the 7202 and sixteen structuring counts. Wes said the IRS thinks David owes a million dollars or more in taxes. He said, "We're looking at a possible 2255 and retrial. Also there is a Title 7 discrimination case and minor civil issues."

Wes told Riordan the details of the rest of David's story. He talked about Tallman’s denials of motions, that David was outside of U.S. when all these accusations were supposed to have happened etc., and that Tallman had admitted to error in the record.

Wes said that there was failure by the government to prove any taxes were even owed. Nicky Farrell [IRS investigator], he said, talked to two or three people and concluded that David owed taxes on 100 or so people who she claimed worked for WOZ. Truth is that David had no reporting requirement.

"There is a willfulness requirement," Wes said, and that "David is a national treasure. The whole thing was a setup by the conspirators including former FBI agent Ted Gunderson (404 B witness), FBI Agent Long and Elven Joe Swisher."

Wes continued telling him about the body wire and the whole story after the arrest. He said, "They even accused me of conspiring with Dave to kill judge Tallman. I withdrew [from David's case] after the verdict.”

Riordan said if you do a 2255 you become a witness–not counsel. However, Wes can cooperate and assist in the appeal. Then we discussed money issues.

He said if you raise a motion for a new trial before conviction, it will be timely; fortunately we did raise it. Swisher’s fraud was brought out during the trial. Therefore, we can raise it on appeal.

But we couldn't bring in more issues. For example, Dennis explained that we couldn't mention Swisher's rapes or other crimes. You can’t use it on appeal. A "2255 statute" now replaces "Habeas corpus." But you can't bring the 2255 unless you lose your appeal (at least in the 9th circuit). "You may want to put it all together but you can't," he said.

Riordan won a case where the president of the Bar Association was involved in the Web Text Scandal (1970-1980). “We discovered that the witness was lying," he said, "and information was not in the record."

Mr. Riordan explained:
Issues of "ineffectiveness of counsel" are always reserved for later. I'm extremely familiar with the doctrine of "ineffectiveness of counsel." I raise it continuously. Be cautious! The legal standards are much higher than that if the prosecutor made an error. You want to, if you can, show that the court wouldn't allow the attorney to put on evidence rather than that he didn't put it on. If ineffectiveness of counsel is raised the government gets every piece of paper you have (All privileged newspapers files etc.).
Riordan said he’ll look at everything and then let us know if he'll take the case. Riordan said it is unlikely that we can raise any of the issues until the appeal proceeding is completed. If you win the appeal, you can get a new trial. If the trial was unfair, you win on appeal. They'll have a harder time getting a conviction. And now we’re down to only three charges.

But will Riordan take the Case? We couldn't get any support in Idaho at the district court level, now David's life and hope of justice hangs in the balance.