[Guest post by Aaron Worthing; if you have tips, please send them here.]

Or “In which the NYT Forces Me to Defend a Ninth Circuit Decision…”

Strap yourself in, this is going to be a long one.  Adam Liptak, in an editorial barely pretending to be a news item, argues that the Ninth Circuit is disrespecting veterans in its latest ruling.  You see, in U.S. v. Hinkson, the defendant was convicted of soliciting murder for hire involving several federal agents.  But the credibility of one of the witnesses is, shall we say, questionable.  And this is how Liptak presents it:

Elven J. Swisher wore a replica of a Purple Heart on the witness stand when he testified that the defendant had tried to hire him to kill three federal officials.

Asked about the medal, Mr. Swisher pulled a document from his pocket to show that he was entitled to it and many others for his service in combat in the Korean War.

Mr. Swisher said the defendant, David R. Hinkson, an armchair constitutionalist with eccentric views about the tax code, had asked him how many men he had killed. “Too many,” Mr. Swisher recalled saying.

All lies. Mr. Swisher had never seen combat, had killed no one and had served without distinction. The document was a forgery. Mr. Swisher has since been convicted of lying to federal officials, wearing fake medals and defrauding the Department of Veterans Affairs of benefits for combat injuries.

But the jury knew none of this, and with Mr. Swisher’s testimony it convicted Mr. Hinkson of soliciting three murders. He was sentenced to 33 years for those crimes, along with 10 years for tax evasion, and he is serving his sentence in the maximum-security prison in Florence, Colo.

OMG, can you believe that they convicted this man solely on the word of a man scummy enough to lie about his military service?  But you see, this is where the first slight-of-hand occurs.  Why?  Because Liptak leaves out the fact that in fact the defendant solicited two men to commit this crime.  From the court’s opinion:

In January 2003, Hinkson met bodyguard-turned-restaurant manager James Harding at a “health forum” in Southern California. Hinkson offered Harding a job at WaterOz and invited him to stay in Hinkson’s home. Harding later testified that, during his stay, Hinkson handed him a “large amount” of cash and offered him $20,000 total if he would kill Cook, Hines, and Lodge. Harding refused. In March 2003, Hinkson again asked Harding to kill Cook, Hines, and Lodge. Harding again refused. After this second request, Harding called the FBI and reported Hinkson’s solicitations.

(Cook is United States Attorney Nancy Cook.  Hines is IRS Special Agent Steven Hines.  And Lodge is a United States District Court Judge.)

In other words, two different men, reported to the FBI that Hinkson had solicited them to murder these three federal officials.  And if you are worried Harding was just copycatting Swisher’s possible lies, then I will point out that Harding reported to the FBI first, before Swisher.

Now Liptak doesn’t quite say that no one else was solicited for murder or that the testimony rested on this faux war hero.  But isn’t that the impression you get, reading those first paragraphs?  In fact, when you read the article, there isn’t a single word about Harding or any corroborating evidence.  Didn’t Liptak owe it to his readers to share that fact?

Another fact Liptak fails to mention is that even the dissenters believed that Hinkson actually asked Swisher to carry out those murders, Judge Fletcher writing:

The issue at trial was not whether Hinkson asked Harding and Swisher to kill Cook, Hines, and Lodge. The evidence was persuasive that he had done so. The issue was whether Hinkson had been serious in his requests. That is, the issue was whether he had an actual “intent” that Cook, Hines, and Lodge be killed, which was required under 18 U.S.C. § 373(a). Only if Hinkson was serious in soliciting the murder of Cook, Hines, and Lodge— that is, only if he had an actual intent that they be killed—did he commit a criminal offense.

Now I don’t know why the dissent felt that it was so obvious that Hinkson had asked both men to kill those Federal Officials.  More than likely there was so much corroborating evidence that you didn’t really have to take Swisher’s word for it.  Indeed, there might have been other witnesses to the conversation. But didn’t Liptak owe his readers that tidbit?

Here’s another fact you will not learn by reading Liptak’s article.  The Defendant’s attorney had good cause to doubt and investigate Swisher’s story before the trial.  You see Swisher had claimed to be a Veteran of the Korean War.  Only there was one small problem: Swisher was born in 1937.  Do you know when the Korean war occurred?  You don’t do you?  No one does, that is why it is called the Forgotten War.  Which is a shame.  I mean to be honest I wasn’t precisely sure, either, except that Eisenhower ended the fighting, but we really should know and remember.  Anyway, the major shooting went on from 1950-3 (technically the Korean War never actually ended).  So at the beginning of the war he was thirteen years old, and by the end of fighting he was sixteen.  Now, of course underage persons have snuck into the military as long as we have attempted to impose a minimum age, so the age range doesn’t quite make it impossible, just unlikely.

Still the Defendant’s attorney recognized this problem. I will provide the killer quote in a moment, but this is significant.  But you can only recognize the significance of that fact if you consider something else Liptak left out: the law.

In the Ninth Circuit, it was established precedent that new evidence would justify a new trial only if the following test is met:

(1) the evidence must be newly discovered; (2) the failure to discover the evidence sooner must not be the result of a lack of diligence on the defendant’s part; (3) the evidence must be material to the issues at trial; (4) the evidence must be neither cumulative nor merely impeaching; and (5) the evidence must indicate that a new trial would probably result in acquittal.

U.S. v. Harrington (emphasis added).  Now you already know enough to wonder about requirement number five.  Even the dissent doesn’t deny that he asked both men to carry out those murders, but suggested there was a dispute as to intent.  We’ll circle around back to that in a minute.  But the court (in Hinkson) also notes that the second requirement wasn’t met, either:

[T]he district court concluded Hinkson had not been diligent in acquiring the evidence contained in the Miller and Woodring affidavits [demonstrating that Swisher had lied about his service]. The court pointed out that Hinkson’s attorney stated during trial that he had been investigating Swisher’s military record for “quite some time” because he was doubtful, given Swisher’s 1937 birth date, that Swisher had served in the 1950-53 Korean War. Further, the court noted that Swisher had testified, as a party witness in an October 2004 deposition—three months before Hinkson’s trial on murder solicitation charges—to his claimed, but perhaps bogus, military record. That deposition was taken by the same attorney who represented Hinkson in his criminal trial. In addition, the court related that Swisher had testified to the same Korean War combat experience in his appearances before the federal grand jury investigating Hinkson’s tax and solicitation crimes, and the government had delivered transcripts of Swisher’s grand jury testimony to Hinkson a week before this case came on for trial. The court thus found Hinkson had sufficient opportunity and time to uncover and produce the evidence contained in the Miller and Woodring affidavits before the end of trial.

And indeed, this next passage from the opinion bears on counsel’s diligence.  In it they discuss Swisher’s full military record and an apparently forged “Replacement DD-214” letter claiming that he did in fact serve in combat and with distinction:

After reading Swisher’s full military record [in chambers], the court informed counsel that Swisher’s military file appeared to state Swisher was involved in “top secret activities” and was “awarded the medals he says he was awarded.” The court concluded, however, the file was “very difficult to decipher” and the documents were “neither self-authenticating nor self-explanatory.”

Let me pause and explain that this means that you cannot admit the documents into evidence without having a witness explain them.  Going on:

The court stated it was “not convinced” one way or the other whether the Swisher-produced “Replacement DD-214” form was credible because Swisher’s military record was “not explanatory.”

The court said evidence that might establish whether Swisher was a fraud could include testimony from a custodian of military records who could interpret Swisher’s military file, or from Col. Woodring, whose signature appeared on the Swisher-produced “Replacement DD-214” form.  Hinkson’s attorney did not move for a continuance of the trial to allow him time to procure such a custodian to decipher the military record, or to procure testimony from Col. Woodring.

(emphasis added.)  So if the lawyer only moved for a continuance and was granted it, he would almost certainly have found proof that Swisher was a liar.  And if he sought the continuance and was denied, then he would have exercised sufficient diligence.

Now one might rationally wonder: “is it really fair to hold this the defendant responsible for this lack of diligence?”  And the answer is, “absolutely.”  After all, imagine how a defense attorney could game the system with a rule that evidence that could have been discovered during trial (but wasn’t discovered until afterward) can be used to overturn a conviction.  A defense attorney could intentionally engage in weak investigation so he or she could go through one trial, learn from all the prosecution’s tactics and then find some evidence after the fact to overturn the conviction and get a second run at things.  And of course that means the prosecutor would have to win every time, through possibly multiple successive trials.  But under the principle of double jeopardy, the defendant would only have to win once to go free.

But Liptak’s greatest sin is to try to gin up the claim that the majority opinion in the Ninth Circuit somehow disrespected veterans:

Mr. Swisher’s lies, the majority said, were no big deal. There was no reason to think the jury would have come out differently had it known of “Swisher’s routine, rather than heroic, military history,” Judge Carlos T. Bea wrote.

That decision has outraged veterans.

William F. Mac Swain, the national president of the Korean War Veterans Association, told the appeals court in a brief filed after the decision that “its reasoning and language are a slap in the face to veterans and jurors alike.”

The majority opinion implied “that the average American no longer attaches any significance to a veteran’s wartime service,” Mr. Mac Swain continued.

In fact, he said, jurors are likely to believe those who have sacrificed to defend them and are likely to reject the testimony of those who have falsely claimed entitlement to honors for which others have bled and died….

Mr. Mac Swain’s brief was prepared by John W. Keker, a prominent San Francisco lawyer who earned a Purple Heart in Vietnam. In an interview, Mr. Keker said the majority’s “dismissive and even supercilious attitude” about military service “drove me out of my mind.”

“The idea that jurors wouldn’t be tremendously affected if they knew someone had lied about getting their war decorations was just astonishing,” Mr. Keker said.

Read the opinion yourself.  I see nothing dismissive of military service.  Indeed, Liptak’s quote from the opinion, is actually a complete misrepresentation of what the court said.  Let’s review what he says “There was no reason to think the jury would have come out differently had it known of ‘Swisher’s routine, rather than heroic, military history,’ Judge Carlos T. Bea wrote.”  But that quote is actually not in the context Liptak assigns to it.  Here’s a little more context:

It is speculation to conclude acknowledgment of Swisher’s routine, rather than heroic, military history would cause the government to keep him off the stand on a retrial. Prosecutors are accustomed to proving their cases through unsavory individuals[.]

(emphasis added to highlight the portion that Liptak quoted.)  In other words, the government would surely treat Swisher as being like a mob witness who turned states’ evidence to save his own hide: corroborating each claim with either credible witnesses or objectively verifiable evidence, never requiring his testimony to stand on its own.

Update: See below for more analysis of this section of Liptak’s article.

And the only other discussion that could even be misconstrued as discounting the relevance of military service?  Well, it goes back to that issue of intent.  What the defense argues is that the fact that this man was a faux war hero meant that the defendant did not believe he was capable of carrying out murder for hire and therefore was not serious in asking him to kill those people.  But there is one thing missing from that theory.  No one even alleges that the Defendant knew he was a faux war hero.  So for all he knew, Swisher was the real deal.

In a very real way it is no different than the Portland Carbomb case from last week.  The FBI allegedly presented themselves as terrorists.  They allegedly made the (alleged) nitwit believe that they had set up a car bomb and that if he used this cell phone, he would detonate a bomb and kill hundreds of people including children.  The man allegedly pressed the detonation sequence.  Twice.  Now in one sense it is profoundly important that the FBI agents weren’t really terrorists, and that the bomb was a dud, given that this meant no one got hurt except (hopefully) the Defendant.  But in terms of determining whether the man had the requisite intent to kill, the only relevant facts are what this man was made to believe.  And he was (allegedly) made to believe it was the real thing.

The same goes for this faux war hero.  The issue wasn’t whether this guy could actually hurt a fly.  The issue was whether Hinkson thought he was capable of killing those people.  The fact he was a faux war hero, therefore, is irrelevant unless it is also established that Hinkson knew this.  They don’t even allege that he did.

Oh, and incidentally the request Hinkson made to Swisher was a lot worse than Liptak mentioned:

In April 2002, according to Swisher, Hinkson asked him to torture and kill local attorney Dennis Albers and his family because Albers had been causing legal trouble for Hinkson. Hinskon offered Swisher $10,000 per “head” in payment. Swisher thought Hinkson was joking and brushed off the suggestion….

Swisher would later testify that in July or August 2002, Hinkson asked him if he remembered his request regarding Albers and his family. Swisher said he did, and Hinkson told Swisher he wanted Cook and Hines and their families “treated in the same way as Albers.” “I know you’re used to it,” Hinkson prodded Swisher, “I mean, you have killed people.” Swisher, less convinced this time that Hinkson was joking, refused and threatened to report Hinkson to authorities….

While Hinkson was on pretrial release on the tax evasion charges, Swisher later testified, Hinkson once again asked Swisher to torture and kill Cook and Hines and their families; this time he also added Judge Lodge to the list. Hinkson again offered Swisher $10,000 per “head,” and even “pleaded” with Swisher to do the deed, calling Swisher his “best friend.” Swisher declined.

Now I would be remiss if I didn’t mention one thing Liptak did mention that, if it is to be believed, does work in his client’s the Defendant’s favor:

One of the jurors at Mr. Hinkson’s trial, in Boise, Idaho, in 2005, later said he would have voted to acquit had he known the truth.

“I was surprised to hear that Mr. Swisher was allowed to tell such lies which created the misimpression that he would be a good ‘hit man’ candidate based on having been a decorated combat veteran,” the juror, Ben S. Casey, said in a sworn statement. “These lies discredit him as a witness and therefore discredit the rest of his testimony.”

But notice that Liptak doesn’t actually quote any words that fully state that Mr. Casey actually would have voted to acquit.  So we have to trust this surmise from Liptak as accurately summing up something the man’s said that Liptak didn’t bother to actually quote.

Given all what you have just learned about Liptak’s account of this case, are you willing to take his word for it?

Update: I probably owe a hat tip to Instapundit for first steering me toward this article.  As you can see at the link, Mr. Reynolds was taken in, too.  I mean I was too, at first, trusting a basic honesty on Liptak’s part.

Update (II): Minor corrections, thanks Dafydd ab Hugh.

Update (III): Having slept on it, I want to add a little more analysis.  The more I think about it, the more this line from Liptak’s article sticks in my craw:

Mr. Swisher’s lies, the majority said, were no big deal. There was no reason to think the jury would have come out differently had it known of “Swisher’s routine, rather than heroic, military history,” Judge Carlos T. Bea wrote.

What is really egregious about this line is that it is the only line that directly discusses any of the Court’s reasoning. And combined with the indignant quotes from the president of one Veterans group and another veteran who is also the lawyer you are given the distinct impression that the court’s reasoning was more or less, “so what if he was a fake veteran?”  As Liptak characterized their attitude, it was “no big deal.”

Now it is true on some level that the court didn’t think it made a difference to the outcome, but the reason wasn’t a discounting of how vile it was to lie about service.  It was the recognition that other evidence was sufficient to make the case—you know, all those things Liptak fails to mention.  But the only response quoted was outrage at this supposed slight to veterans.  They couldn’t find anyone willing to dispute that interpretation of the decision?  Not even in the United States Attorney’s office?  Or just a law professor who has served as a prosecutor now and then?  For instance, Jed Rubenfeld comes to mind, based mainly on classroom interaction.  He has a really nice balance of seeing things form both the prosecutor’s and the defense attorney’s point of view.  But I am sure there are hundreds of people you could consult.  The failure to even recognize an alternative explanation is inexcusable.

[Posted and authored by Aaron Worthing.]