Metropolitan News-Enterprise


Monday, June 2, 2008


Page 3


Court Orders New Trial After Witness Lies About Combat Experience


By SHERRI M. OKAMOTO, Staff Writer


A defendant who proffered evidence that the star prosecution witness had presented the trial court with a forged military document and repeatedly lied under oath about being a combat veteran was entitled to a new trial, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

A divided panel held that Ninth Circuit Judge Richard C. Tallman, sitting by designation for the Idaho District Court, abused his discretion in denying David Roland Hinkson’s motion for a new trial because post-trial evidence of the witness’ fabrications gave rise to a probability of acquittal on retrial.

Hinkson was charged with soliciting the murder of three federal officials who had been involved in investigating and prosecuting him on tax and currency structuring charges. At trial, the government’s star witness was Elven Joe Swisher.

The government told the jury that Swisher was a Korean War combat veteran, and maintained throughout the trial that Hinkson’s understanding of Swisher’s military exploits demonstrated his seriousness in soliciting Swisher.

Although numerous witnesses testified regarding Hinkson’s feelings for the three government officials and that Hinkson had asked many people to commit murder, Swisher was the only witness who testified as to the specific question of whether Hinkson solicited him to commit murder.

Swisher also took the stand wearing a lapel pin that was a replica of a Purple Heart—an award given to members of the United States military who are wounded in combat.

During a sidebar, Hinkson’s counsel told the trial court that the defense doubted the veracity of Swisher’s claimed military background and had “been trying to dig into [Swisher’s] military history.”

Defense counsel also produced a letter from the military’s National Personnel Records Center indicating that Swisher was never awarded any decorations to substantiate the defense’s claims.

However, when defense counsel cross-examined Swisher about the letter, Swisher pulled a document out of his pocket which purported to be a copy of his military record substantiating his claims.

The next day, outside the presence of the jury, defense counsel produced a copy of Swisher’s military record that counsel had obtained, which was identical to the record produced by Swisher, except that it did not mention any of the medals, commendations or wounds set forth in the record Swisher produced.

Defense counsel then sought and obtained a subpoena for Swisher’s full military record from the National Personnel Records Center.

Upon receiving and reviewing the file, Tallman was unable to conclude whether Swisher’s claims were false, or if he was involved in top secret military activities as he claimed.

In order to be persuaded, Tallman said that “a records custodian from the National Personnel Records Center or someone else who is more familiar with military records and decorations” would have to explain the file.

After concluding that the documents in the file were neither “self-authenticating nor self explanatory, Tallman ruled that the defense could recall Swisher for further examination, but could not introduce any of the documents bearing on his military experience.

The defense elected not to recall Swisher and the jury ultimately convicted Hinkson of three counts for soliciting Swisher to commit murder.

One month later, Hinkson moved for a new trial on the grounds of newly discovered evidence that Swisher had produced a forged document in court and had lied under oath on the witness stand, consisting of declarations from two military officials attesting to the falsity of Swisher’s claims.

On Swisher’s appeal of the trial court’s denial of his motion, Justice William A. Fletcher explained that a defendant seeking a new trial on the basis of newly discovered, material evidence must demonstrate that his failure to locate it was not due to a lack of diligence pursuant to United States v. Harrington (9th Cir. 2005) 410 F.3d 598.

The evidence cannot be cumulative or “merely impeaching,” and must indicate that a new trial would probably result in an acquittal, Fletcher continued.

He reasoned that Hinkson had satisfied the Harrington test and that the affidavits Hinkson introduced were newly discovered because they were neither known to or in the possession of either party during trial. The evidence was also precisely what Tallman had found fatally lacking during trial, Fletcher noted.

Fletcher wrote that Hinkson had been diligent in investigating Swisher’s military record because the defense had begun investigating it immediately after Swisher’s deposition and produced impeaching evidence as soon as it could be obtained from military authorities to continually challenge Swisher’s claims.

He also concluded that Federal Rule of Evidence 608(b) would not bar introduction of Hinkson’s new evidence as extrinsic evidence attacking a witness’ credibility because Swisher had worn the Purple Heart pin, indicating that he had been wounded in combat while serving in the United States armed forces.

Wearing that pin was nonverbal conduct intended as an assertion, Fletcher opined, and evidence contradicting a witness’s statement is not barred by the rule.

Justice Proctor Hug Jr. joined Fletcher in his opinion, but Justice Margaret McKeown dissented.

McKeown wrote that discrediting a witness on a collateral issue was not grounds for reversing Hinkson’s conviction. The evidence that Swisher allegedly lied during the course of Hinkson’s trial would not refute an essential element of the government’s solicitation case against Hinkson at a new trial nor be central to such a trial, she said.

She also wrote that the evidence was not “new” because it was cumulative of the letter Hinkson’s counsel had introduced at trial.

Conceding that the evidence could affect the jury’s estimation of Swisher’s credibility on the stand, McKeown maintained that the evidence would only serve to impeach him, and concluded that an acquittal would not be probable on retrial in light of the corroborating and circumstantial evidence indicating Hinkson’s guilt.

The case is United States v. Hinkson, 05-30303.


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