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9th Circuit Panel Reviews Judge's Role in Murder-for-Hire Trial
The Recorder
December 18, 2008
Eleven members of the 9th U.S. Circuit Court of Appeals met this week to review the work of fellow Judge Richard Tallman in a bizarre murder-for-hire trial.
He may or may not take it personally, but some of them sure seemed to.
The prosecution of David Hinkson, which Tallman presided over by designation in Idaho in 2005, was the focus of a lively en banc session Tuesday afternoon. At one point, Judge Harry Pregerson took a not-so-veiled shot at Chief Judge Alex Kozinski for monopolizing question time.
First, some background. Federal prosecutors charged Hinkson with attempting to hire his one-time friend, Elven Joe Swisher, to kill an IRS agent, a prosecutor and an Idaho district judge. Swisher testified against Hinkson while bedecked with a Purple Heart.
Turns out Swisher was never awarded the medal, and by the conclusion of trial, it became clear he perjured himself about his military service. Yet Tallman, a law and order judge, refused defense requests for a new trial. In May, Judge William Fletcher led a split panel that reversed Tallman.
At en banc argument in Pasadena, Calif., this week, Pregerson telegraphed his sympathy for Fletcher's position.
"I have a Purple Heart, my father had a Purple Heart. So I know what it's about. I'm not challenging you," the judge told Hinkson's attorney, Dennis Riordan.
"You're clearly more knowledgeable on the subject than I am," Riordan said.
Kozinski interjected: "Maybe not by the time you're done with this argument."
Other conservatives on the court, like Judge Andrew Kleinfeld, pressed Riordan about whether the prosecutor suborned perjury. But the chief judge asked about standard of review -- the same note sounded in Judge Margaret McKeown's panel dissent (she wasn't selected for the en banc court).
"Abuse of discretion gives the trial judge a vast amount of deference because he was there and saw the proceedings unfold," Kozinski said.
Before Riordan could answer, Pregerson chimed in.
"I think the abuse of discretion was that this man came and said he was a Purple Heart veteran, a combat Marine, and that was very, very effective," Pregerson said. "He could have been impeached and shown that he was a fraud and it would have been an entirely different story."
"Can I have 30 seconds to very directly answer your honor?" Riordan asked Kozinski.
"Absolutely," the chief replied. "I'll let you accept Judge Pregerson's answer and build yours on top of that."
To which Pregerson parried: "Well, a lot of us don't get to talk much because we have some that monopolize these conversations."
"Including myself," Riordan said.
"No, not you," Pregerson said. "I think you're a pretty good lawyer."
Riordan paused. "Thank you," he said, prompting laughter from the chamber. The defense attorney said Tallman's decisions to keep out certain pieces of impeaching evidence could be reviewed as a matter of law without deference to the trial judge.
Department of Justice attorney John De Pue appeared in court wearing the Distinguished Service Medal. "Why are you wearing the Distinguished Service Medal?" Pregerson asked.
"Because I earned it in the Army," De Pue said.
"Because you're impressing us, right?" Pregerson replied. "And you impressed me when you said that. And if a guy wears a Purple Heart medal it's going to impress people."
De Pue never connected his medal to the government's legal argument.
Kozinski again focused on standard of review, but he took a much more combative tone with De Pue than he did with Riordan, variously telling the government lawyer, "I don't think you're listening," "I don't understand why it's taking so long to get an answer out of you," and "I know how the law works."
Then Pregerson talked over Judge Kim Wardlaw. "Wait a second, can I ask a question please?" Wardlaw said. "I mean I sat here for 10 minutes while a judge asked questions, I'd like to ask one."
Wardlaw got De Pue to acknowledge that some of Tallman's decisions should be reviewed under the same evidentiary rules a trial judge would.
Fletcher, who landed on the panel, vigorously questioned De Pue about whether Hinkson was really serious about hiring Swisher, pointing out that the defendant had many a zany scheme.
"Maybe this was along the lines of his fed-a-pult," Fletcher said. "A fed-a-pult, for those of you who don't know, is a device to throw federal agents into canyons."
