Elven J. Swisher wore a replica of a Purple Heart on the witness stand when he testified that the defendant had tried to hire him to kill three federal officials.
Asked about the medal, Mr. Swisher pulled a document from his pocket to show that he was entitled to it and many others for his service in combat in the Korean War.
Mr. Swisher said the defendant, David R. Hinkson, an armchair constitutionalist with eccentric views about the tax code, had asked him how many men he had killed. “Too many,” Mr. Swisher recalled saying.
All lies. Mr. Swisher had never seen combat, had killed no one and had served without distinction. The document was a forgery. Mr. Swisher has since been convicted of lying to federal officials, wearing fake medals and defrauding the Department of Veterans Affairs of benefits for combat injuries. But the jury knew none of this, and with Mr. Swisher’s testimony it convicted Mr. Hinkson of soliciting three murders. He was sentenced to 33 years for those crimes, along with 10 years for tax evasion, and he is serving his sentence in the maximum-security prison in Florence, Colo.
When Mr. Swisher’s lies came to light, Mr. Hinkson challenged his convictions for soliciting the murders. The jury had believed him guilty of more than loose talk, he said, only because Mr. Swisher had falsely presented himself as a battle-hardened killer.
But the United States Court of Appeals for the Ninth Circuit, in San Francisco, ruled against him last year by a 7-to-4 vote.
Mr. Swisher’s lies, the majority said, were no big deal. There was no reason to think the jury would have come out differently had it known of “Swisher’s routine, rather than heroic, military history,” Judge Carlos T. Bea wrote.
Their contempt for veterans oozing from the opinion, the Ninth Circus has faced steep criticism from veterans:
William F. Mac Swain, the national president of the Korean War Veterans Association, told the appeals court in a brief filed after the decision that “its reasoning and language are a slap in the face to veterans and jurors alike.”
The majority opinion implied “that the average American no longer attaches any significance to a veteran’s wartime service,” Mr. Mac Swain continued.
In fact, he said, jurors are likely to believe those who have sacrificed to defend them and are likely to reject the testimony of those who have falsely claimed entitlement to honors for which others have bled and died.
That was not just speculation. One of the jurors at Mr. Hinkson’s trial, in Boise, Idaho, in 2005, later said he would have voted to acquit had he known the truth.
“I was surprised to hear that Mr. Swisher was allowed to tell such lies which created the misimpression that he would be a good ‘hit man’ candidate based on having been a decorated combat veteran,” the juror, Ben S. Casey, said in a sworn statement. “These lies discredit him as a witness and therefore discredit the rest of his testimony.”
Mr. Mac Swain’s brief was prepared by John W. Keker, a prominent San Francisco lawyer who earned a Purple Heart in Vietnam. In an interview, Mr. Keker said the majority’s “dismissive and even supercilious attitude” about military service “drove me out of my mind.”
“The idea that jurors wouldn’t be tremendously affected if they knew someone had lied about getting their war decorations was just astonishing,” Mr. Keker said.
This is another reason why the Luthor Proposal from Superman: The Movie makes more and more sense each and every day.
