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Withheld Evidence in David Hinkson Case - Prevents Fair Trial

David Hinkson was recently convicted on charges which resulted strictly from the hearsay testimony of Elven Joe Swisher of Cottonwood, Idaho that Mr. Hinkson solicited the murder of Federal District Court Judge Edward J. Lodge, United States Assistant Prosecuting Attorney Nancy Cook and IRS Special Agent Steven Hines as early as September, 2000.

Swisher told the jury that Hinkson thought he would be a likely “hit-man” and offered to hire him because of Swisher’s combat experience during a post-Korean War cleanup operation where Swisher had gained applicable experience killing many people ─ “too many”, as Swisher said, and he added that he had been awarded the Purple Heart for the injuries he sustained during combat.

When the Hinkson defense team tried to present evidence refuting the credibility of the witness, Judge Tallman suppressed it.

That evidence included copies of forged and fraudulent military records provided to the court by Swisher, that the Marine Corps has determined to be fraudulent; however, Judge Richard Tallman refused to admit the evidence saying that in order to do so a live person from either the National Personnel Records Center or the Headquarters of the United States Marine Corps would have to be present in the Idaho courtroom to testify regarding the matter, and since “there simply wasn’t enough time to get someone,” the evidence was ruled out and not presented to the jury.

Court testimony revealed that no one else was present when Mr. Hinkson allegedly uttered these solicitations; they were not corroborated (supported) or verified by anyone else and that there was no tape recording of the words allegedly spoken by Mr. Hinkson to Mr. Swisher.

Evidence confirms that Mr. Swisher never reported the “murder-for-hire” allegations to local law enforcement authorities, and they only became public four years later as part of an Indictment against Mr. Hinkson. Testimony revealed that Swisher sued Mr. Hinkson for $522,000.00 in July 2004 after Swisher and another individual failed in their attempt to take over Mr. Hinkson’s business and that Swisher, while employed by Hinkson to test his dietary supplement mineral products, contaminated them with cyanide at the production site and then attempted to blackmail Hinkson for a 50% interest in his company in exchange for not exposing the contaminated products.

Mr. Hinkson was convicted on hearsay evidence supplied by one man. This one man had tried to obtain part ownership of Hinkson’s company and blackmail him, but had failed. This same man had forged military documents to support his credibility to the jury. But Judge Tallman would not allow the credibility of the witness to be questioned or the blatant forgery of the military documents to be presented.

Charges of murder-for-hire are serious, but to deny the jury the opportunity to weigh all of the facts of the case including the credibility of the star witness is a denial of justice. Since when has “a lack of time” been an excuse to deny justice?

Here is the evidence of the forged military documents that the jury was not allowed to see:

1. A letter from National Personnel Records Center, Military Personnel Records dated January 14, 2005, which states, in part:

“Mr. Swisher’s Marine Corps record has been carefully examined by the Military Awards Branch of the office of the Commandant of the Marine Corps, and that office has stated that his record fails to show that he was ever recommended for, or awarded any personal decorations.”

2. A letter from Lieutenant Colonel K. G. Dowling, Assistant Head of the Military Awards Branch at the Headquarters of the United States Marine Corps in Quantico, Virginia written to the State of Idaho Division of Veterans Services on December 30, 2004, which states in part:

“We have thoroughly reviewed the copy of the Certificate of Release of Discharge from Active Duty (DD Form 214) and supporting letter which you (State of Idaho Division of Veteran’s Services) submitted on behalf of Mr. Swisher with your request. The documents you provided do not exist in Mr. Swisher’s official file. The official DD Form 214 in his record of the same date was signed by Mr. Swisher and does not contain any awards information in box 26, and contains no “wounds” information in box 27. A copy of his official DD 214 is provided as the enclosure. Given this information we have reason to believe that the documents you submitted are not authentic.

“Specifically, the DD 214 you submitted on behalf of Mr. Swisher indicates that Mr. Swisher is entitled to the Silver Star Medal, Navy and Marine Corps Medal (Gold Star in lieu of the Second Award), Purple Heart, and Navy and Marine Corps Commendation Medal with Combat “V.” However, our review of his official military records, those of this Headquarters, and the Navy Department Board of Decorations and Medals failed to reveal any information that would indicate that he was ever recommended for, or awarded any personal decoration.

Additionally, the Navy and Marine Corps Commendation Medal, which is listed in block 26 of the DD 214 that you submitted did not exist at the time of Mr. Swisher’s transfer to the Marine Corps Reserve in 1957. On March 22, 1950, a Metal Pendant was authorized for issue in connection with a Letter of Commendation and commendation ribbon. On September 21, 1960, the Secretary of the Navy changed the name of the award to the Navy Commendation Medal. On August 19, 1994, the Secretary of the Navy renamed the medal as the Navy and Marine Corps Commendation Medal. It is impossible that the approving officer could have signed an official document in 1957 indicating Mr. Swisher’s entitlement to a personal decoration which did not exist in its present form until 1994.

Further review of Mr. Swisher’s records reveals that he is not entitled to any service awards, including the Marine Corps Expeditionary Medal, for his service in the U.S. Marine Corps. Mr. Swisher’s official military records failed to indicate any information that he served in Korea during the period when any awards were authorized. His records show that he was stationed at Camp Juji and Yokosuka, Japan from March 4, 1955 to May 6, 1956.

There is no information in his military record or his medical record to substantiate his entitlement to a Purple Heart medal. His medical records show that on February 10, 1957, he was involved in a private vehicle accident near Port Townsend, Washington.

Marines who are recognized with a Navy and Marine Corps personal decoration for their performance, actions or meritorious service while involved in classified military operations may receive an award citation that contains non-specific information about the actions or service of the Marine. However, we found no evidence that Mr. Swisher was involved in any classified operations.”

Hinkson’s defense attorneys note that Mr. Swisher recorded two military discharge form DD 214s with the Idaho County Clerk and Recorder when according to the military only one can be valid. The form recorded on February 5, 2001, had no awards, no wounds and no medical benefits, but the one recorded on February 2, 2004, listed the awards mentioned above. Military policy prohibits the issuance of more than one DD 214. If subsequent decorations are awarded, a DD 215 is issued.