A cesspool of Judicial Corruption

THIRTY-ONE riordan says, "i'll take the case

Several days later, Riordan called Wes and said this Case is "BS"–"I'll take the Case."

On March 11, 2006, Riordan filed an Appeal. Much of the Appeal was merely a reiteration of the facts in the Trial Transcript. He knew he had to concentrate on the most pertinent issues–considering the time restraints (20 minutes, more or less). David's conviction rested solely on the testimony of Elven Joe Swisher, but Swisher's corroborating accusers also need discussion. In addition to Swisher's testimony, he discussed Bates', Harding's and Bellon's testimony because, even though acquitted of the charges, the judges considered the accusations, and merging them carried more weight; "So," he said, "The summary of the evidence as to those counts can be brief."

Riordan started by clarifying a few things. He argued that Harding's and Bates' testimony, whatever the content may have been, "did not rise to the level of criminal conduct since Hinkson was acquitted of the first three soliciting charges related to Harding’s testimony and of the two counts of threatening federal officials (to which Bates testified). And the Jury was unable to reach a verdict on the other Harding charges. It convicted Hinkson of the Swisher solicitation charges [only]."

He quoted from the Trial Transcript–questions and answers, but mostly he concentrated on Swisher's statements. He mentioned Chad Croner, who was incarcerated in the Ada County Jail with David.

Government agents AUSA Sullivan and FBI Mary Martin worked out a plea bargain with Croner that if Croner would testify that David had wanted to hire him for $10,000 to kill the Trio, Croner would get a reduction in his sentence and the charges against his mother for another crime dropped. The following is from Riordan's brief:

Croner received a favorable sentencing recommendation in exchange for his cooperation. According to Croner, Hinkson told him that he had offered Swisher and Harding $10,000 to get rid of Lodge, Cook, and Hines.

Shortly thereafter, Croner met with the FBI and agreed to work as an informant on Hinkson’s case. Hinkson presented several witnesses also in jail with Croner and Hinkson, who testified that they never heard discussions of illegal activities and that Croner was generally dishonest . . . [Chad had lain on his bunk for a couple of days hardly speaking to anyone].

The defense argued that it was entitled to a mistrial because Swisher had produced a falsified document to support his claims regarding his military background.

"Your Honor, we have a document given to us by the government which is false;" and the government knows it’s false. The AUSA [Sullivan] responded: "I have no evidence or reason to believe that the document is false."

The court [Tallman] denied the mistrial motion. . . . also stated that the document produced by Swisher "appears to be genuine," and that it was consistent with Swisher’s testimony about his combat service. . . and ruled that the government "had no reason to believe that [Swisher’s document] was discloseable under Brady or Giglio because it was not impeaching."

The court suggested that it could not evaluate the matter unless the defense could produce a "qualified person" such as a "records custodian from the National Personnel Records Center" to explain the meaning of the documents.

He suggested that the documents were "rank hearsay," and also extrinsic evidence under Rule 608(b). , , , The court suggested that the credibility of Swisher’s claims was still disputed, and that the government would be able to submit conflicting documents and experts showing that Swisher was indeed telling the truth. The court said such an inquiry would "require considerable time," and that it would only serve to confuse the jury, since it would have no way to determine which documents to credit." Lacking the ability to submit any evidence contradicting Swisher’s claims, the defense decided not to recall him to the stand.

In his closing argument, AUSA Sullivan argued that the jury should consider Swisher an entirely credible witness because, rather than being an enemy of Hinkson’s making false accusations, Swisher was a person who liked Hinkson. . . . Mr. Swisher’s testimony is powerful. He talked about how Mr. Hinkson understood that Mr. Swisher had been in the military and had killed a lot of people. He [David] was very impressed by that.

The defense argued that new evidence conclusively proved that Swisher had been lying, that Swisher had committed a fraud on the court by producing the bogus document on the stand, and that the government had committed misconduct by failing to disclose material that would have undermined Swisher’s credibility.

First, in mid-trial the lower court deprived Hinkson of a fair trial when it ruled inadmissible documentary evidence which would conclusively have demonstrated that, contrary to assertions in the government’s opening statement, Swisher had never served in Korea, and had lied to Hinkson, law enforcement officials, and the jury when he claimed to have killed many times in combat. . . .

Second, the government deprived Hinkson of due process when it sought his conviction on the basis of Swisher’s testimony while deliberately failing to correct the false impression created by that testimony – i.e., that Swisher was a battle-hardened killer.

Finally, the court plainly erred in denying Hinkson’s new trial motion which rested on additional and un-controvertible evidence that the defendant’s convictions had been obtained through the knowing use of perjured testimony. . . .

Reasonable jurors would not likely have taken seriously these purported conversations if they had learned that Swisher’s tales of killing on the battlefield were 'wannabe' fantasies, that, in fact, he never had come anywhere near combat.

Hinkson’s documentary proof would have been devastating to Swisher’s credibility, marking him a pathological liar [Swisher sued Don Harkins of the Idaho Observer for $5,000,000, and me, Wes and Greg, for calling him a "pathological liar"].

This Court [the Ninth Circuit] has repeatedly held that evidence that a government witness told lies during the investigation of the case on trial is relevant and admissible. . . .

He [Swisher] thus had a huge personal and financial incentive to testify in accordance with the supposed facts contained in that document [an earlier grand jury hearing]. If he admitted his lack of combat experience, he would not only stand to lose his disability payments, but would expose himself to prosecution for defrauding the government.

Proof that the replacement DD-214 was a forgery could have led the jury to reasonably conclude that the informant had a motive other than altruism for testifying on behalf of the government. Such a finding could have substantially impeached the informant's credibility as a witness. . . . Hinkson’s right to introduce the evidence of Swisher’s perjury was of constitutional dimension.

Defense Attorney Riordan then went into detail how "Rule 608 (b) and Rule 403" (on evidence) had been misapplied by Tallman.

A lie is a lie, no matter what its subject, and, if it is in any way relevant to the case, the district [prosecuting] attorney has the responsibility and duty to correct what he knows to be false and elicit the truth [Dennis cited a couple of current holdings]. . . . If the government was to pursue a conviction in this case after learning of Swisher’s perjury and proffering of forged documents, it had to inform the jury of the truth. The government of a strong and free nation does not need convictions based on [false] testimony.
While David continued to mark time for over two years in his solitary dungeon at ADX Federal Penitentiary, the Ninth Circuit finally rendered their decision, but for David the wait was painful.

However, he used his time to best advantage. He asked for Spanish and Russian primers, dictionaries and books to read. Although he never heard the pronunciations, he learned over 5,000 words in both languages. He struggled with his personal regimen to exercise in his tiny cell trying to stay fit. Occasionally, guards would raid his cell and remove many of his personal possessions. When he boiled over with disillusionment and anger he would call us using one of his 15 minute telephone calls (that they allowed four times per month) and vent.

Is there something wrong with the methods of the government today? Former Assistant Prosecutor Wesley Hoyt unequivocally accuses the Federal Government of prosecutorial misconduct, outrageous governmental conduct and vindictive prosecution.

He asked for dismissal of the phony charges against him in a Motion for New Trial, to which the Ninth Circuit Court of Appeals agreed, but then in a later decision took back the first opinion of reversal and affirmed the trial court’s decision of conviction. Hoyt asserts that, "David was falsely accused by multiple government informants and there is ample evidence of corruption to prove it."