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9th Circuit Vindicates Judge for His Ruling in Bizarre Murder-for-Hire Case
The Recorder
November 06, 2009
Conservatives on the 9th U.S. Circuit Court of Appeals rode to the rescue of one of their own on Thursday, finding that Judge Richard Tallman didn't botch a bizarre murder-for-hire case in Idaho.
The en banc decision from Judge Carlos Bea reverses an earlier opinion that blasted Tallman for refusing to grant defendant David Hinkson a new trial. The author of that panel opinion, Judge William Fletcher, now writes in dissent.
Bea and Fletcher largely talk past each other. Bea, a former state trial court judge, used the case to give district court judges more cover on abuse-of-discretion calls. Fletcher, a former UC-Berkeley School of Law professor, essentially accused Bea of cherry-picking the facts, saying his version of events was too "truncated."
A Justice Department spokesman declined to comment on the ruling. Not so Hinkson's defense attorney, Dennis Riordan of Riordan & Horgan in San Francisco.
"Any legal rationale that prevents a jury from learning that the only witness the government has on the charge came before the jury with the express purpose of lying to them, and showing them forged documents, can't possibly be an appropriate or correct standard for a fair trial," he said.
Federal prosecutors charged Hinkson with attempting to hire his onetime friend, Elven Joe Swisher, to kill an IRS agent, a prosecutor and an Idaho district judge. A tax protester who made his living running WaterOz — a company that sold water with small bits of dissolved gold and platinum over the Internet — Hinkson hated federal authorities: He spoke of building a "fed-a-pult," which "was a device to catapult federal agents into a canyon or into an oncoming train," according to the opinion.
At trial, Swisher 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, Swisher produced a military document which purported to prove its authenticity.
Faced with conflicting evidence in Swisher's personnel file, Tallman let the testimony in, and Swisher 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.
In his opinion, joined by six others, Bea tightened the abuse-of-discretion standard.
"We invoke that standard of review as we have hundreds of times before, but this case forces us to step back and consider precisely what 'abuse of discretion' means," Bea wrote. From now on, a district judge's factual findings can only be reversed if they are found to be illogical, implausible or not supported by inferences drawn from the facts, he wrote.
"If any of these three apply, only then are we able to have a 'definite and firm conviction' that the district court reached a conclusion that was a 'mistake,'" Bea wrote. Tallman's decisions passed this test, he concluded.
Joining Bea were Chief Judge Alex Kozinski and Judges Diarmuid O'Scannlain, Andrew Kleinfeld, Consuelo Callahan, Sandra Ikuta and N. Randy Smith.
Fletcher didn't take on Bea's new standard, but instead ticked through a list of mistakes he says Tallman made. For example, Tallman said Hinkson's lawyers waited too long to investigate Swisher's war records, when in fact, Fletcher wrote, they had been waiting for a response from the military for months.
"It is almost incomprehensible to me that the government would make that argument. It is entirely incomprehensible that the majority would accept it," Fletcher wrote. He was joined by Kim McLane Wardlaw, Richard Paez and Harry Pregerson.
Riordan plans to ask the entire Ninth Circuit to hear the case and, failing that, the U.S. Supreme Court. The matter is U.S. v. Hinkson, 09 C.D.O.S. 13469.
