A cesspool of Judicial Corruption

FORTY-TWO 11 judge en banc appeal

Of course, we knew that there was a lot at stake in this trial. The Justice Department got their hair cut. With the huge expenditure of taxpayers' money–of no significance to them-but stymieing their ability to sustain a conviction with only one cooperating judge, without allowing the convict a reasonable chance for appeal, was paramount. If only they could grind us down, deplete al l our resources they win. Maybe you aren't aware, but the prison industry is huge. Unbelievable money is at stake. So it was worth the Department of Justice's time and resources to go again for the brass ring.

With the same tenacity they applied originally in getting a conviction, the U.S. Attorney's Office decided to exercise their option for an en banc hearing. No question in our minds–obviously, this was a political decision from on high. So be it. Now we would have to wait another year or so to get confirmation that David would be free. In the meantime, David languishes in a solitary dungeon. I often wonder how these people can sleep at night or face a mirror.

A year and a half later (December 15, 2008) after the appeal victory in Seattle Faye and I drove to Pasadena, California, for the eleven judge En Banc Hearing. We met Wes and Sandy Hoyt, Dennis Riordan and Curtis Smith at 6:00 p.m. for dinner. We discussed Dennis' strategy.

Next day at 1:00 p.m. we arrived at Court Chambers in Pasadena. John F. De Pue and Michael D. Taxay from the Department of Justice (Washington D.C.) came shortly after we took our seats on a bench. There were a few other observers, mostly students, who sat down on rear benches. At 2:00 p.m. a curtained stage opened, and all eleven judges filed in taking seats in two rows–all clad in black robes. The following judges took their seats: Alex Kozinski, Chief Judge, Harry Pregerson, Diarmuid F. O’Scannlain, Andrew J. Kleinfeld, Kim McLane Wardlaw, William A. Fletcher, Richard A. Paez, Consuelo M. Callahan, Carlos T. Bea, Sandra S. Ikuta and N. Randy Smith.

There were more judges than observers. We had been patiently waiting while squirming on the hard bench. Off at the far right end of the room Mr. De Pue sat un-engaging. Our erstwhile adversary, Mr. Taxay, came into the room just before the command: "All arise!"

Dennis Riordan gave an excellent and compelling summation of the Case. Several of the judges asked questions but demonstrated that they weren't of one opinion. Others were silent throughout the hour. By contrast, De Pue and Taxay argued pathetically from a rehash of all the same old judge-made laws. We felt confident that the judges would unanimously sustain the Three-judge Appellate Decision. Months passed before we heard the verdict.

Judge Carlos Bea wrote the Majority Opinion:

Today we consider the familiar “abuse of discretion” standard and how it limits our power as an appellate court to substitute our view of the facts and the application of those facts to law for that of the District Court.

David Hinkson refused to pay income tax on his business profits [false statement–David challenged the authenticity of the tax code but gave full authority, via power-of-attorney, to take any amount due].

He asserted the United States Constitution forbade the federal government from taxing a person’s income [David's assertion was a correct statement–government can tax lawfully only corporate income].

He was investigated by Internal Revenue Service Agent Steven Hines, prosecuted to a conviction for income tax evasion by United States Attorney Nancy Cook, and sentenced by United States District Judge Edward Lodge [False–he was sentenced by Judge Richard C. Tallman].

While awaiting trial on his tax evasion case, Hinkson solicited his friend and employee Elven Joe Swisher [He was never an employee at WaterOz; at the time Swisher alleged that David solicited him. David would have nothing to do with him] to torture and kill Hines, Cook, and Lodge for $10,000 per head.

Swisher reported Hinkson’s solicitations to federal authorities [only after we refused to pay him $5,000 or comply with his blackmail].

Hinkson was indicted, tried, and convicted by a jury for solicitation of the murder of the three federal officials.

Swisher testified on behalf of the government [The government had full knowledge that Swisher was a fraud].

Hinkson then moved for a new trial principally on grounds that Swisher had fraudulently presented himself to Hinkson, and later to the judge and jury, as a Korean War veteran with experience in killing people, but he had no such war service nor experience.

In brief, Swisher had falsely held himself out to be a war hero.

The trial court denied the new trial motion.

Hinkson appealed this denial of his new trial motion and several evidentiary rulings made by the trial court. We granted en banc review of the panel’s decision to reverse the District Court’s denial of Hinkson’s new trial motion and, for the reasons explained below, we conclude that our “abuse of discretion” standard is in need of clarification.

The standard, as it is currently described, grants a court of appeals power to reverse a district court’s determination of facts tried before it, and the application of those facts to law, if the court of appeals forms a “definite and firm conviction that a mistake has been committed.”

At the same time, the standard denies a court of appeals the power to reverse such a determination if the district court’s finding is “permissible" [How do they define this word?].

It has previously been left to us to decide, without further objective guidance, whether we have a definite and firm conviction that [a] mistake has been committed or whether a district court’s finding is “permissible. There has been no effective limit on our power to substitute our judgment for that of the district court [In other words, "we have the authority and power to choose any interpretation of words or meanings of words we want–even if illogical non-sense!"].

Today, after review of our cases and relevant Supreme Court precedent, we re-state the “abuse of discretion” standard of review of a trial court’s factual findings as an objective two-part test.

As discussed below, our newly stated “abuse of discretion” test requires us first to consider whether the district court identified the correct legal standard for decision of the issue before it.

Second, the test then requires us to determine whether the district court’s findings of fact, and its application of those findings of fact to the correct legal standard, were illogical, implausible, or without support in inferences that may be drawn from facts in the record."

The key phrase here is "facts in the record." If a trial judge denies the jurors from hearing the facts, and exculpatory "facts" are withheld, they will never become part of the record. No appellate court will consider them. Under such a process, a trial judge can determine the outcome of a trial with impunity.