John Keker, a Marine veteran and head of Keker & Van Nest, filed the brief today on behalf of William F. Mac Swain, national president of the Korean War Veterans Association. The case is U.S. v. Hinkson, in which the government convicted an Idaho man for initiating a murder-for-hire plot against federal officials. At trial, the main witness against David Hinkson appeared on the stand bedecked with a Purple Heart, which he claimed was a product of service in the Korean War. When the defense tried to challenge the medal, the witness, Elven Joe Swisher, produced a military document which purported to prove its authenticity.
Faced with conflicting evidence in Swisher's personnel file, Ninth Circuit Judge Richard Tallman — who was sitting by designation — let the testimony in, and Hinkson was convicted.
After trial, when the defense supplied an affidavit from an officer calling Swisher's document a forgery — and proving that he never served in Korea or won a medal — Tallman didn't order a new trial. Instead, he sentenced Hinkson to 33 years, which he is serving in a Supermax prison for terrorist suspects.
Liberals on the court went ballistic, but Tallman’s conservative colleagues vindicated his handling of the so-called Fed-a-Pult case en banc. Now Hinkson’s attorney Dennis Riordan is hoping for super en banc review, in which all active judges on the circuit hear the case. This has never before been done, and Keker’s filing is part of the attempt to persuade the court to break new ground.
“What amicus is asking this Court to understand is that its reasoning and language are a slap in the face to veterans and jurors alike,” Keker wrote. “For they imply — at a time when this nation is fighting two wars and losing more soldiers every month — that the average American no longer attaches any significance to a veteran’s wartime service. That proposition is not merely unsubstantiated but unfathomable — profoundly out of step with the true views and sentiments of the citizens who serve on our juries.”
— Dan Levine
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