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Firefight at 9th Circuit Over Fake Purple-Heart-Wearing Witness

U.S. COURT OF APPEALS FOR THE 9TH CIRCUIT
By John Roemer - Daily Journal Staff Writer
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February 19th 2010

SAN FRANCISCO - Prominent attorney John W. Keker of San Francisco's Keker & Van Nest is a Marine veteran with a combat record that Elven Joe Swisher could only dream of.

Swisher, the star government witness at a federal murder-for-hire trial, lied on the witness stand and claimed bogus military credentials.

Offended and resentful at what veteran groups call stolen valor claims such as Swisher's, Keker filed a passionate friend-of-the-court brief in favor of defendant David Roland Hinkson. Keker argued it was fundamentally unfair that jurors convicted Hinkson without ever learning of Swisher's deceptions.

Swisher's testimony was key as he told jurors how defendant Hinkson asked him to torture and kill an IRS agent, an assistant U.S. attorney and U.S. District Judge Edward J. Lodge of Idaho in retaliation for a tax prosecution.

But Swisher lied a lot. He produced a forged document that falsely said he'd won the Silver Star, the Navy and Marine Corps Medal, the Purple Heart and the Navy and Marine Corps Commendation Medal with Combat "V."

He testified wearing a sham Purple Heart replica pinned to his lapel as he wrongly declared himself a Korean War combat veteran.

Keker has a real Purple Heart, earned as an infantry platoon leader wounded during Operation Hastings, a major 1966 encounter with the North Vietnamese Army in Quang Tri Provence.

Hinkson cited with admiration Swisher's claims of combat service in offering him $10,000 per victim, Swisher testified, in a plot that derailed when Swisher went to authorities. But jurors never learned they were listening to a fraud.

Following a three-week trial, Hinkson was sentenced to 43 years in prison for attempting to hire Swisher to kill the officials.

Now, a fierce battle rages at the 9th U.S. Circuit Court of Appeals over a controversial decision to deny Hinkson relief based on evidence of Swisher's fakery. Much of the definitive evidence that Swisher lied arrived from the National Personnel Records Center only near the end of the trial, and the trial judge - Circuit Judge Richard C. Tallman of Seattle, sitting by assignment - excluded it and later ruled against a new trial. Tallman held that it was Hinkson's belief in Swisher's tall tales that counted, not whether they were actually true.

Hinkson's appellate lawyer, Dennis P. Riordan of San Francisco's Riordan & Horgan, is an old friend of Keker's who asked him to look at the case. Keker read the record with mounting disbelief at the idea "that a judge would trivialize as collateral impeachment a guy who gets up and falsely says, 'I'm a war hero.'"

Keker proudly displays on an office wall an AK-47 assault rifle sculpted of animal bone. A North Vietnamese soldier may have used an actual weapon of that type during a firefight to shatter Keker's left elbow and riddle his left leg with bullets.

He retired from the Marine Corps as a first lieutenant in 1967 to attend Yale Law School. He founded Keker & Van Nest in 1978.

His damaged left arm and other wounds are an ever-present reminder of his combat service, and he remains angry at blowhards with war stories. "You hear about it all the time," he said in an interview on Tuesday. "Football coaches. Tough guys in town hall meetings. When I hear some guy brag about his military service, I'm always suspicious."

Since around 1980, Keker said, the country has turned "pretty solidly pro-soldier, even as we debate wars. People who served are recognized and applauded. And so many charlatans try to glom onto that."

Keker in his Hinkson brief represents William F. Mac Swain, a Texan and former Army master sergeant who is president of the 17,000-member Korean War Veterans Association. The veterans are as upset as Keker at the spectacle of a fake war hero on the witness stand. But Keker's brief is also an unusual plea on his own behalf.

"Mr. Mac Swain is represented here by John W. Keker, who served as an infantry platoon leader in Vietnam while a first lieutenant in the United States Marine Corps, until he was wounded and retired from the Marine Corps in 1967," Keker wrote. "Mr. Keker received the Purple Heart."

The brief doesn't say so, but Keker's legal battles have also been impressive. He served as chief prosecutor for the Iran/Contra Independent Counsel's Office in the late 1980s in the government's case against fellow Marine Oliver North for acts committed as a member of President Reagan's National Security Council. Keker in the 1990s won a jury verdict in favor of fellow San Francisco attorney Patrick Hallinan, accused of a criminal drug conspiracy with a client, and in 2003 he won a hung jury and later a dismissal of charges against investment banker Frank Quattrone for obstruction of justice.

In the Hinkson case, Keker wants a new jury to hear about Swisher's record of dishonesty before they decide to trust his accusations against the defendant.

The appeal seeks an en banc rehearing or a full court en banc review.

But, Keker said he is disturbed by the fact that 9th Circuit judges are in effect judging one of their own colleagues, Tallman, who heard the case in Boise, Idaho, in 2005. In an 7-4 en banc decision in November, the circuit affirmed Tallman's decisionmaking at trial. U.S. v. Hinkson, 585 F.3d 1247 (Nov. 5, 2009). The majority redefined upward the degree of deference an appellate panel owes a trial judge, holding that only "illogical" or "implausible" trial court rulings amount to an abuse of discretion warranting reversal. Tallman's rulings did not meet that new standard, the majority held.

Does Keker think Tallman's involvement swayed his fellow circuit judges? "Judges always tell you they are immune from any human frailties when they put on their robes, and we have to believe them. If we get up and say we don't believe them, we get thrown in jail," Keker said.

Keker took particular offense at Tallman rulings that evidence proving Swisher lied about his service record was "not 'material' to the issues at trial" and was "'merely impeaching' because it did nothing more than attack Swisher's credibility regarding his military service rather than his testimony regarding the solicitations [to murder] charged," according to language Keker cited from the appellate record.

As he put it in his brief:

"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 to the circuit. "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."

If the jury had known about Swisher's lies, contended Hinkson's lead appellate lawyer Riordan, echoing the en banc dissenters, at least some of the jurors might well have have considered "fabricating military commendations to be an act of deceit powerful enough to render everything that person says totally incredible."

Government lawyers opposed Keker's entry into the case as a friend of the court. "First, let me assure you that we take very seriously the significance and honor of military service," U.S. Department of Justice appellate lawyer Michael Taxay wrote to the Keker firm.

However, Taxay went on, "The primary legal question before the 9th Circuit concerned the deference that ought to be given to certain district court rulings. Relevant here was the government's theory at trial that defendant Hinkson had solicited Swisher to commit murder because of Hinkson's subjective belief that Swisher had killed in combat. Swisher's actual military experience was irrelevant to the government's case."

A Department of Justice spokesman declined to comment further.

Said Keker: "This shows that the government is perfectly happy to have fake combat veterans testify before criminal juries, but objects to letting real combat veterans, like Mr. Mac Swain, be heard in the Court of Appeals."

John W. Keker
John W. Keker

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