Veterans Outraged by Appellate Court Decision

A recent ruling by a U.S. Court of Appeals has outraged veterans. The panel voted 7-4 against a defendant’s appeal, which was based on the fact that a key witness at his trial had lied. The witness lied about his own military record, but the appellate court said it didn’t matter.

Appeals attorneys note that this is what has upset veterans. How can it not matter, veterans want to know, whether someone bolster’s his credibility with claims that he saw combat in the military, and was decorated with the Purple Heart, when neither claim was true? How can it not matter that the jury was not informed that the witness had lied on the stand? The jury had no opportunity to decide whether the witness’s other claims should have been discounted because of his dishonesty about his military service.

Elven J. Swisher is the witness who testified against the defendant, David R. Hinkson. Hinkson was accused of soliciting three murders, asking Swisher to kill people. The New York Times has described Hinkson politely as “an armchair constitutionalist with eccentric views about the tax code.”

Swisher told Hinkson that he had killed many people in the Korean War, but it was not true. Swisher had served in the military, but saw no combat and served without distinction. Swisher has been convicted of lying to federal officials, wearing fake medals and defrauding the Department of Veterans Affairs of benefits for combat injuries.

The jury never found out about Swisher’s lies. Hinkson was convicted of soliciting the three murders, and of tax evasion. He was sentenced to 33 years for the murder charges, and 10 years for tax evasion. He is now in the maximum-security prison in Florence, Colorado.

Hinkson challenged his convictions for soliciting the murders, based on the fact that Swisher had lied. Hinkson argued that the jury believed he was serious about soliciting murder because Swisher was presented as an experienced killer.

The Ninth Circuit Court of Appeals said no. They said there was no reason to think the jury would have reached a different conclusion had it known of “Swisher’s routine, rather than heroic, military history,” Judge Carlos T. Bea wrote.

Veterans point out, though, that jurors are likely to believe witnesses who have sacrificed to defend the country and are likely to reject the testimony of witnesses who turn out to be frauds.

One of the jurors at Hinkson’s trial later said he would have voted to acquit had he known the truth. Juror Ben S. Casey said in a sworn statement. “These lies discredit him as a witness and therefore discredit the rest of his testimony.”

Hinkson’s team is working on an appeal to the Supreme Court.

Source: New York Times, “A Witness Lies, the Court Shrugs and Veterans Are Outraged,” November 29, 2010